October 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MUMEEN STARKS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-06-1931 and 08-07-2240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Fuentes, Graves, and J. N. Harris.
Defendant Mumeen Starks appeals from two December 7, 2009 judgments of conviction for murder, aggravated assault, unlawful possession of a firearm, unlawful taking of a means of conveyance, and eluding police, for which he was sentenced to life imprisonment in the aggregate.*fn1 One judgment (Indictment No. 08-07-2240) followed a jury trial, and the other (Indictment No. 08-06-1931) resulted from a guilty plea. On appeal, Starks raises the following concerns:
POINT I: THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S REPEATED REQUESTS FOR A MISTRIAL, A REQUEST BASED ON THE INCLUSION OF NUMEROUS INSTANCES OF PREJUDICIAL TESTIMONY.
POINT II: THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S REQUEST TO HAVE THE JURY CHARGED ON PASSION/PROVOCATION MANSLAUGHTER AS A LESSER OFFENSE OF MURDER.
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
On April 18, 2008, Starks had a verbal altercation with Tynesha Morris on a sidewalk in Newark. Following the clash of words, Morris entered the vehicle of her cousin, Theo Stewart. As Morris and Stewart sat in the car talking, Starks approached the driver's side door with a handgun and fired several shots into the vehicle. Stewart pushed Morris out the passenger door and fell on top of her. He was struck by two bullets and died as a result of his wounds.
An Essex County Grand Jury returned a four-count indictment charging Starks with first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); first-degree attempted murder, N.J.S.A. 2C:11-3(a)(1),(2) and N.J.S.A. 2C:5-1 (count two); second-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a weapon (a firearm) for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four). Separately, Starks was indicted for other crimes committed on April 23, 2008, in Newark, including third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10 (count one); second-degree eluding police, N.J.S.A. 2C:29-2(b) (count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count three).
At the trial for homicide and related events, three witnesses identified Starks as the shooter, and he was convicted by a jury of murder, aggravated assault as a lesser-included offense of attempted murder, unlawful possession of a firearm without a permit, and possession of a firearm for an unlawful purpose. Several defense motions for a mistrial were denied during the proceedings, and the trial court rejected Starks's request to include a jury instruction on passion/provocation manslaughter.
After the verdict, Starks entered a negotiated guilty plea to the unlawful taking of a means of conveyance and eluding in Indictment No. 08-06-1931. Thereafter, Starks was sentenced to an aggregate term of life in prison subject to the NERA.
Starks's first argument revolves around his claims that the trial court erred in not granting his multiple requests for a mistrial, based upon "numerous instances of prejudicial testimony." "A mistrial is an extraordinary remedy[.]" State v. Hubbard, 123 N.J. Super. 345, 351 (App. Div.), certif. denied, 63 N.J. 325 (1973). Accordingly, a court should grant a mistrial only when it "finds that as a result of error manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997) (citing R. 3:20-1). On appeal, the denial of a request to enter a mistrial will not be disturbed absent a clear showing of mistaken use of discretion by the trial court or a finding of manifest injustice. State v. LaBrutto, 114 N.J. 187, 207 (1989). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)); see also State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010) (stating that "[t]he grant of a mistrial is a matter of discretion" and declining to reverse a denial thereof "in the absence of an abuse of discretion or undue prejudice").
Specifically, Starks claims that the following four occurrences individually merited a mistrial:
* Demetrius Heyward's statement that the police "had an informant."
* The implementation of extra courtroom security measures during the trial.
* Essex County Prosecutor's Detective Kevin Green's testimony that he utilized a database to ascertain Starks's whereabouts.
* Detective Green's statement that Starks "pleaded the fifth with [him]."
Alternatively, Starks claims that the aggregate effect of the errors mandated a mistrial.
During the direct examination by the prosecutor, the putative eyewitness Heyward indicated that he had given a statement to the police after the incident. This exchange followed:
Q. Were you able to identify anybody to the police as who the individual, who the shooter was?
A. They told me who he was.
Q. When you say that they told you who he was, what did they tell you or how did they tell you?
A. I guess they had an informant or --.
Heyward's statement was immediately interrupted by defense counsel's objection. At sidebar, Starks's attorney requested a mistrial, claiming that "[w]e now have a trial based on hearsay," and arguing that he could not "cross-examine the so-called informant." The prosecutor responded that he was surprised by Heyward's statement and "was not expecting that at all." The trial judge sustained the objection but denied the application for a mistrial. He nevertheless cautioned the prosecutor "to sit on [the witness] a little" and ask more leading questions to avoid "any further issues." The judge then gave the following limiting instruction:
Ladies and gentlemen of the [jury,] please disregard the last answer. Issues with regard to an informant or anything else are not part of this case, and you're not to consider them with regard to the evidence in this particular case.
We view the trial judge's reaction to the objection and his prompt action to instruct the jury as entirely appropriate and curative of any defect in the trial. A mistrial at that point in the proceedings would have been entirely unwarranted.
Soon afterwards, when the trial recessed for lunch, court officers responded to a threat made inside the courtroom. The judge summarized what had happened:
For the record, I was advised over lunch by a Sheriff's Officer that there became an issue with regard to security in the matter. Just so the record is clear, I've discussed the matter with counsel in chambers [and] . . . the Sheriff's Officers briefed both counsel and myself regarding the issues involved here. There's some issue regarding a threat. Unclear as to whether the threat is against witnesses, defendant, counsel, [or] court . . . . [H]owever, the matter's been discussed with counsel.
[T]he jury is now in the jury room. After they've been put in [the courtroom] the Sheriff's Officers [are going to] set up an appropriate screening mechanism outside with a magnetometer and so forth for purposes of doing a search on people coming in, because I understand it was one of the people who was in the audience this morning for whom the issue was originally raised or overheard saying something to someone.
Defense counsel objected to these precautions, and again sought a mistrial. He claimed that the presence of a screening table outside the courtroom "create[d] the impression that . . . something untoward occurred" and argued that it would "affect the jury's ability to decide this case." The trial judge indicated that the additional officers would "remain suitably unobtrusive," and the defense's motion was denied.
"[T]he deployment of security personnel in a courtroom is not inherently prejudicial" and does not constitute grounds for reversal unless "'an unacceptable risk is presented of impermissible factors coming into play.'" State v. Zhu, 165 N.J. 544, 553-54 (2000) (quoting Holbrook v. Flynn, 475 U.S. 560, 570, 106 S. Ct. 1340, 1346-47, 89 L. Ed. 2d 525, 535 (1986)). As the Court has noted:
Common experience informs us that citizens have become accustomed to the presence of security personnel in most public places, including schools. Members of the public pass through metal detectors and have their bags inspected at airports, courthouses, and elsewhere as part of the everyday precautions now tolerated in a free society.
Such common practices help prevent jurors from drawing any undue inferences at the sight of similar security measures in a courthouse setting. [Id. at 555.]
In this case, the only measure objected to by defendant was the presence of a table outside of the courtroom and, perhaps, additional security officers present in the vicinity of the courtroom. There is no showing, however, that the deployment of security personnel was excessive or particularly conspicuous. Under these facts, the trial court did not abuse its discretion by refusing to grant a mistrial.
The next day, Detective Green was asked by the prosecutor if he "attempt[ed] to arrest Mr. Starks." The detective responded,
I went into a database where Mr. Starks'[s] name, where he had a previous history in Essex County, obtained several addresses where Mr. Starks had been known to frequent and had no luck finding him in those locations, along with the area that the incident occurred where he normally frequent[s]. He [had not] been seen out there since the incident.
For a third time, defense counsel objected and requested a mistrial. He argued that Detective Green's statements regarding a database and Starks's prior history were "just dirtying up" his client. Once again, the prosecutor responded that he "wasn't expecting" Green's testimony regarding a database, and he requested a curative instruction. The court sustained the objection and immediately told the jury:
Folks, you've just heard some testimony from the witness with regard to certain databanks and so forth. You are not to take in any consideration with regard to that testimony, with regard to any prior history, with regard to this defendant, with regard to this case. It's irrelevant, and you should not consider it in any way . . . when you discuss this matter at the end of the case. It's irrelevant and I so instruct you to ignore that particular testimony.
The court again advised the prosecutor to "[s]it on" the witness to avoid any further surprises.
However, on cross-examination, defense counsel asked the detective whether Starks had provided his address at the time of his arrest. Detective Green responded that Starks had not, and then volunteered that defendant had "pleaded the fifth with [him]." Defense counsel instantly objected and renewed his request for a mistrial. The prosecutor yet again urged the trial court to issue a curative instruction, arguing that the jury understood defendant's right to remain silent. The judge again declined to grant a mistrial and gave an additional instruction to the jury:
All right, folks, as you will recall, when we came up to sidebar, we had a whole bunch of questions that I asked you at the beginning. Some of them had to do with the absolute right of the defendant under the
[F]ifth [A]mendment not to testify. As you were instructed then, you're instructed now the fact that there may have been that assertion of the [F]ifth [A]mendment privilege of the right not to testify you're not to consider in any way, shape or form with regard to your deliberations in this particular case and you are to ignore the last answer with regard to the fact that it was testified to in this particular matter.
That being the case, the witness is instructed to kindly refrain from making those kinds of observations and to please answer the question that the [d]efense counsel is asking.
Although Detective Green's reference to a database containing Starks's "previous history in Essex County" was improper, it did not warrant a mistrial. See, e.g., State v. G.S., 145 N.J. 460, 468 (1996) (stating that evidence of prior crimes "poses a distinct risk that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself"). The trial judge immediately recognized the detective's gaffe and issued a curative instruction to inform the jury that testimony "with regard to any prior history" was irrelevant and not to be considered in any way. We consider this intervention to have been entirely appropriate and ample enough to safeguard a fair trial for all parties.
Detective Green's statement that Starks "pleaded the fifth," when asked about his address, also did not constitute grounds for a mistrial. Obviously, the State was not permitted to use Starks's silence as evidence of guilt. See State v. Muhammad, 182 N.J. 551, 569 (2005) ("Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody."). Nevertheless, as the trial judge noted, the jury was already instructed that it could not consider a defendant's decision to remain silent as evidence of guilt. This admonition was reinforced by a clear limiting instruction from the judge immediately following Detective Green's testimony. Thus, the denial of the fourth application for a mistrial was not an abuse of discretion.
Starks asserts that his serial requests for a mistrial warrant reversal because they bespeak cumulative error. The cumulative error doctrine has existed in this State for over fifty years. See State v. Orecchio, 16 N.J. 125, 129, 134 (1954). The doctrine recognizes that even errors that are individually harmless, when taken together, can prejudice a defendant and violate his or her right to due process of law. See State v. Jenewicz, 193 N.J. 440, 473-74 (2008) (holding that the errors' cumulative impact prejudiced the fairness of the defendant's trial and, therefore, cast doubt on the propriety of the jury verdict); see also State v. Koskovich, 168 N.J. 448, 540 (2001) (holding that cumulative error warranted reversal of death sentence regardless that no individual error warranted reversal). Where the legal errors within a trial "are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before a new jury." Orecchio, supra, 16 N.J. at 129. However, a new trial is not required for "incidental legal errors."
Ibid. Indeed, it is axiomatic that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. Loftin, 146 N.J. 295, 397 (1996) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)).
We recognize that the proceedings in this matter may not have resulted in a perfect trial, but our federal and state constitutions do not guarantee an error-free proceeding. See United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974, 1980, 76 L. Ed. 2d 96, 106 (1983) ("[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial."); see also State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971). Nevertheless, the flaws observed here were insufficient to warrant a mistrial, both individually and cumulatively. The trial court acted within its discretion by denying each of Starks's motions, and we have no basis to intervene.
Starks's second argument asserts that the trial judge's decision to omit a passion/provocation manslaughter charge from the jury instruction "was erroneous and that there was a rational basis to support [the] charge." We disagree.
"Criminal homicide constitutes manslaughter when . . . [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). This provision codifies the common-law crime of voluntary manslaughter. State v. Robinson, 136 N.J. 476, 482 (1994). "Passion/provocation manslaughter has four elements: (1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying." State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Mauricio, 117 N.J. 402, 411 (1990)).
"Regarding the adequacy of the provocation, '[t]he question essentially amounts to whether loss of self-control is a reasonable reaction.'" State v. Foglia, 415 N.J. Super. 106, 126 (App. Div.) (quoting State v. Mauricio, 117 N.J. 402, 412 (1990)), certif. denied, 205 N.J. 15 (2010). "[T]he provocation must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Mauricio, supra, 117 N.J. at 412 (second and third alterations in original) (quoting State v. King, 37 N.J. 285, 301-02 (1962)).
"Little more than a 'scintilla of evidence' is required to warrant submitting to the jury passion/provocation manslaughter as a lesser-included offense." State v. Heslop, 135 N.J. 318, 326-27 (1994) (citing State v. Crisantos, 102 N.J. 265, 278 (1986)). Moreover, "[s]ubmission of the passion/provocation charge will not be foreclosed even where ample evidence demonstrates that 'defendant's homicidal act was coolly calculated.'" Ibid. (quoting Mauricio, supra, 117 N.J. at 417). Nevertheless, "a court may charge a jury on lesser-included offenses such as passion/provocation manslaughter only when there is a rational basis in the evidence for a verdict convicting the defendant of such an offense." State v. Abrams, 256 N.J. Super. 390, 397 (App. Div.) (citing N.J.S.A. 2C:1-8(e); State v. Ramseur, 106 N.J. 123, 269-70 (1987)), certif. denied, 130 N.J. 395 (1992).
Here, there was no rational basis to support a charge of passion/provocation manslaughter. See N.J.S.A. 2C:1-8(e). The evidence clearly shows that Starks approached Heyward, Stewart, and Morris with a handgun and fired multiple shots into Stewart's vehicle. There was no testimony that Starks and Stewart ever exchanged words or that any individual's actions aroused Starks's passions beyond the point of his control. Mauricio, supra, 117 N.J. at 412. Starks's unsupported claim that Stewart's opening of the car door -- as Starks strolled down the street brandishing a firearm -- was an act of provocation is belied by logic and common sense. The record does not support a charge of passion/provocation manslaughter and the trial court rightly refused to instruct the jury on its contours.
In his final point, Starks asserts that the sentence imposed by the trial court is excessive. Specifically, he claims that the Law Division erred by extending defendant's period of parole ineligibility from fifty to sixty-four years and failing to properly weigh the aggravating and mitigating factors. These arguments are unpersuasive and we find no basis to adjust the sentence.
At sentencing, the trial court found no mitigating factors and three aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of his offense, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Describing the fact pattern as "truly horrific," the trial court sentenced Starks to the following terms: (1) for first-degree murder,*fn2 life imprisonment subject to the NERA*fn3 ; (2) for second-degree aggravated assault, a concurrent term of ten years subject to the NERA; and (3) for unlawful possession of a firearm, a concurrent term of ten years with five years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Concurrent five year terms for counts one and two of Indictment No. 08-06-1931 were also imposed, in accordance with Starks's plea arrangement.
Appellate review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Absent a "clear error of judgment," an appellate court may not substitute its judgment for that of the sentencing court. Ibid. (quoting State v. Roth, 95 N.J. 334, 363-65 (1984)). So long as the sentence is within statutory guidelines and the aggravating and mitigating factors "'were based upon competent credible evidence in the record,'" it will not be disturbed. State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)); see also State v. Clarke, 203 N.J. 166, 176-77 (2010).
We discern no abuse of discretion in the trial judge's identification and weighing of the applicable sentencing factors. The record fully supports the sentence imposed. The trial judge's findings as to the aggravating and mitigating factors were all supported by substantial credible evidence, and the sentence does not shock the judicial conscience. Additionally, the judge properly corrected his initial sentence and re-sentenced Starks in accordance with the provisions of the NERA.