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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...