NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3699-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHADON M. MCDOWELL, a/k/a SHADON MARCELLO, EUGENE MCDOWELL, SHADOW M. MCDOWELL, and SHADONMAR E. MCDOWELL,
Defendant-Appellant. _____________________________
Argued March 3, 2026 – Decided March 19, 2026
Before Judges Chase and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 22-02-0057.
Rebecca Billig, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Rebecca Billig, of counsel and on the briefs).
Thomas M. Caroccia, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Attorney General, attorney; Paul H. Heinzel, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant Shadon McDowell appeals from his conviction and sentence1
after a jury trial. For the reasons that follow, we reverse and remand for a new
trial.
I.
We glean the salient facts from the record. In February 2022, a grand jury
returned an indictment charging defendant with two counts of third-degree
distribution of heroin, N.J.S.A. 2C:35-5(a)(1), and two counts of second-degree
distribution of heroin within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a). A
two-day jury trial was held in January 2024.
The charges stem from two controlled buys set up by Detective Brett
Marino of the Phillipsburg Police Department, with a cooperating witness
("CW") in July 2021. Marino described that a "controlled buy" occurs when a
CW or undercover police officer is involved in a transaction where they are sent
in to purchase drugs from a suspect.
1 The State concedes that the sentence was illegal and requires a new sentencing hearing; however, because we are remanding for a new trial this issue need not be addressed.
A-3699-23 2 Detective Marino testified that this investigation began when the CW
informed him that someone by the name of "Big Rob," was selling drugs out of
a house on Mercer Street in Phillipsburg. He was then asked by the prosecutor
who "Big Rob" was and if he was in court, to which Detective Marino answered
"Shadon McDowell," and that he was "right over [t]here in the light blue shirt
with the blue tie." Defense counsel did not object, and the identification was
entered into the record by the court.
According to Detective Marino, he set up the controlled buys by having
the CW make "a phone call to Shadon," to arrange for the purchase of heroin
from defendant at the Mercer Street Park. Detective Marino explained that on
the day of the first controlled buy, the CW was searched to make sure that he
did not have drugs on him and then he was provided a recording device and
money that had previously been photographed by the detectives. Detectives then
instructed the CW "to walk from our vehicle or wherever we may be sending
him from directly to the meeting location without stopping or talking to anybody
. . . that after the buy, that he will meet directly back up with us without stopping
and meeting up with anybody."
Detective Marino stated that after he dropped the CW off to walk to the
park, he observed defendant leaving the Mercer Street address. Marino testified
A-3699-23 3 that he did not observe the transaction. Marino testified that the CW returned
and gave him fifty wax folds of drugs that he had purchased, and then he
searched the CW but the money they had given him was gone.
Subsequently, Detective Marino had the CW call and set up a second
controlled buy. Detective Marino stated that the CW was prepared the same
way for the second transaction as the first, and that upon completion the CW
returned with eleven wax folds of drugs "he had just purchased from Shadon."
Detective Marino did not see the transaction but testified that the CW was under
constant surveillance and did not speak to anyone else. Detective Marino stated
that the State's laboratory tested the substances the CW purchased on both
occasions, which both parties stipulated was heroin.
On cross-examination, Marino testified that during both controlled buys,
the CW had a cell phone equipped with an earpiece, that allowed the officers to
hear, record, and transcribe the transaction. Marino stated that the transcripts
from the first controlled buy indicated there was a conversation started by the
CW, but that the rest was inaudible. As to the second controlled buy, Marino
testified that transcript did not indicate a conversation between the CW and
defendant because "there's really no[thing] audible besides hello."
A-3699-23 4 Detective Marino testified that he participated in defendant's arrest a week
or so after the second controlled buy. He stated he searched defendant incident
to his arrest and that no drugs or money were found on his person. On cross-
examination, Detective Marino stated that a search of the Mercer Street home
did not produce the money, any drugs, or drug paraphernalia, including scales,
or packaging agents. Detective Marino further testified that the CW was in
custody, with pending charges, on the day he agreed to the controlled buys ; but
that the CW was not promised anything by Marino in exchange for making the
controlled buys.
Next, Sergent Joseph Cecere, of the Hackettstown Police Department
testified that in the summer of 2021 he was assigned to assist Detective Marino
in investigating defendant. Sgt. Cecere testified that he was directed to observe
both controlled buys at Mercer Park and stated that he had an unobstructed view.
The following exchange then took place, without objection from defense
counsel:
PROSECUTOR: And did you observe a transaction involving Mr. McDowell?
CECERE: Yes Sir, I did.
PROSECUTOR: Is Mr. McDowell present in court?
CECERE: Yes Sir.
A-3699-23 5 PROSECUTOR: Where is he seated?
CECERE: At the defense table.
....
THE COURT: Let the record reflect that the witness identified the defendant sitting at defense counsel table. Thank you.
Sgt. Cecere further testified that he was in a vehicle both times, parked in
a lot across the street from Mercer Park. Sgt. Cecere testified for the first
controlled buy he observed the CW sit on a bench and wait for defendant, and
when defendant showed up, they "briefly" sat together, exchanged something,
then defendant left. For the second controlled buy, Sgt. Cecere stated that the
CW waited on a set of swings, got off the swing when defendant arrived, and
the two made an exchange to the right of the swing set, then "parted ways." Sgt.
Cecere stated that during both controlled buys he did not see the CW interact
with anyone else except defendant.
On cross-examination, Sgt. Cecere stated he did not know the exact
distance he was from the location of the controlled buys but estimated "I was a
little bit further from where I'm sitting now to the back of the courtroom."
During recess a map of the court was examined, and the distance referenced by
Sgt. Cecere was determined to be sixty-two feet. Sgt. Cecere also stated he had
A-3699-23 6 a cell phone with him at both controlled buys, but he did not record the
transactions, nor did he take pictures or audio recordings during them.
The CW testified that he remembered assisting the police in the controlled
buys but did not recall from whom he was asked to purchase the heroin. The
CW stated he met with detectives prior to the controlled buy and stated the
detectives "[j]ust told me to call somebody and buy some dope." The CW
testified that the detectives provided him with a phone, headphones, and money
with which to purchase the drugs.
On cross-examination, the CW testified that he was a drug addict at that
time and had been using heroin for approximately fifteen years. The CW stated
he was arrested on the same day the officers approached him to make the
controlled buys, on unrelated pending drug charges. The CW stated he was
released from custody on that day for agreeing to make the two controlled buys,
and that he was never brought back into custody on those charges.
The CW further testified that he was familiar with Mercer Street, and that
he had seen the person he referred to as "Big Rob" prior to the two controlled
buys, but that he did not know "Big Rob's" actual name. The CW testified
because he was heavily into drugs at that time it affected his memory.
A-3699-23 7 On redirect, the CW answered that he was currently sober, and in custody
on unrelated charges. The CW estimated that he had purchased heroin more
than 500 times and that it was common for him to not know the actual name of
the dealer he purchased from, but it was common for the dealers to use street
names. The CW never identified defendant in court.
Last to testify was Officer Teddy Garcia of the Warren County
Prosecutor's Office. Officer Garcia stated he participated in the first buy and
that his role was to prepare the CW and then set up in position to watch the
transaction. Officer Garcia testified that he had an unobstructed view and
observed that the CW "met with Shadon McDowell, an exchange happened, and
then they parted ways." Garcia was then asked "[w]hen you say Shadon
McDowell, is that person in court right now," to which Garcia answered "[y]es,
he's sitting right there." The court then stated, "[l]et the record reflect that
witness identified the defendant sitting at counsel table."
Officer Garcia further testified that from his position he could see the
entire park, and that he was parked on the street about 90 to 120 feet from the
location of the controlled buy. On cross-examination, Officer Garcia stated his
only role was to observe the transaction, and that he kept the CW in his view the
entire time until the CW met up with Detective Marino after the controlled buy
A-3699-23 8 took place. Officer Garcia testified that he did not make any type of recording
or photographs.
On the second day of trial, after closing arguments, the jury was charged.
Despite having the opportunity, defense counsel never requested the model jury
charge for in-Court identifications be included. That day, the jury returned with
a guilty verdict on all counts.
Defendant was sentenced in June 2024. The court granted the State's
motion for an extended sentence, pursuant to N.J.S.A. 2C:43-6(f), and sentenced
defendant to: six years' incarceration with a three-year period of parole
ineligibility on counts I and II; and twelve years with a five-year period of parole
ineligibility on counts III and IV. All sentences were ordered to run
concurrently.
Defendant appeals his conviction, raising the following arguments:
POINT I: [DEFENDANT] WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED THE STATE TO ELICIT THREE FIRST TIME IN COURT IDENTIFICATIONS IN DIRECT CONTRAVENTION OF THE PROCEDURES MANDATED BY STATE v. WATSON, 254 N.J. 558 (2023).
POINT II: [DEFENDANT] WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON
A-3699-23 9 HOW TO ASSESS THE RELIABILITY OF THE THREE FTIC IDS. POINT III: [DEFENDANT] WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT ALLOWED THE LEAD DETECTIVE TO IMPLY TO THE JURY THAT [DEFENDANT] WAS VIOLENT.
POINT IV: THE CUMULATIVE EFFECT OF THE ERRORS REQUIRES REVERSAL.
POINT V: [DEFENDANT'S] SENTENCES ARE ILLEGAL.
II.
We now address the arguments raised by defendant, reordering them for
ease of discussion.
A.
Defendant contends that the trial court committed plain error for failing
to sua sponte provide the model jury instruction related to eye-witness
identification. "It is a well-settled principle that appropriate and proper jury
charges are essential to a fair trial[,]" and that a jury charge functions as a "'road
map to guide the jury and without an appropriate charge a jury can take a wrong
turn in its deliberations.'" State v. Savage, 172 N.J. 374, 387 (2002) (first citing
State v. Collier, 90 N.J. 117, 122 (1982) (internal citation omitted) and then
quoting State v. Martin, 119 N.J. 2, 15 (1990)).
A-3699-23 10 In this instance, defendant did not request an eyewitness identification
instruction. "When a defendant fails to object to an error or omission [about a
jury charge] at trial, we review for plain error. Under that standard, we disregard
any alleged error 'unless it is of such a nature as to have been clearly capable of
producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016)
(quoting R. 2:10-2). Reversal is warranted only where an error raises "a
reasonable doubt . . . as to whether the error led the jury to a result it otherwise
might not have reached." Ibid. (alteration in original) (quoting State v. Jenkins,
178 N.J. 347, 361 (2004)). "The mere possibility of an unjust result is not
enough." Ibid. A jury instruction is particularly "crucial to the jury's
deliberations on the guilt of a criminal defendant[,]" and "'[e]rrors [having a
direct impact] upon these sensitive areas of a criminal trial are poor candidates
for rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409,
422-23 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)).
When a defendant does not object to the charge, "there is a presumption
that the charge was not error and was unlikely to prejudice . . . defendant's case."
State v. Montalvo, 229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211
N.J. 157, 182 (2012)). Failure to interpose a timely objection constitutes strong
evidence that the belatedly raised error was of no moment. State v. Tierney, 356
A-3699-23 11 N.J. Super. 468, 481-82 (App. Div. 2003). However, the failure to provide the
eyewitness identification instruction may constitute reversible error even when
that instruction is not requested. See State v. Cotto, 182 N.J. 316, 326 (2005).
In State v. Davis, we reversed the defendant's conviction finding the
absence of an instruction on identification amounted to plain error, despite
general jury instructions given, pertaining to credibility, the elements of the
charged crimes, and the State's burden. 363 N.J. Super. 556, 558, 561 (App.
Div. 2003). The defendant in Davis was convicted of distributing cocaine within
100 feet of a school after selling to a DEA officer, and "his defense was squarely
one of misidentification." Id. at 559. The DEA agent had never met the
defendant, and when backup officers tried arresting him, he fled on foot. The
DEA officer was shown a single photograph by a detective around twenty -five
minutes after the sale/interaction with the defendant and identified defendant.
Ibid. From the start, defense counsel argued for misidentification but did not
specifically request a charge on identification. Id. at 560-61.
After reinforcing that the State was obligated to prove the defendant's
identification beyond a reasonable doubt, we further opined "[a] jury is at liberty
to reject a meritless defense, but trial courts are not at liberty to withhold an
instruction[]." Id. at 561-62. Moreover, we stated, "[w]hile it is possible that
A-3699-23 12 the corroborative evidence against a defendant may be sufficiently strong that
the failure to give an identification instruction does not constitute plain error
. . . . as a matter of general procedure a model identification charge should be
given in every case in which identification is a legitimate issue." Id. at 561
(internal citation omitted).
In State v. Henderson, our Supreme Court addressed pre-trial out-of-court
identifications. 208 N.J. 208, 222-24 (2011). Citing developments in science,
the Court stated, "that memory is malleable, and that an array of variables can
affect and dilute memory and lead to misidentifications." Id. at 218; see also
Watson, 254 N.J. at 585 (noting the "lengthy delay between the time of the
offense and the identification inevitably allows for memory to decay.") The
Henderson Court directed that new jury instructions be developed. 208 N.J. at
298-99. The following year, the Court approved new model jury charges on
eyewitness identification, which addressed various factors like memory decay,
stress, and the duration of the crime. See Model Jury Charge (Criminal),
"Identification: In-Court and Out-Of-Court Identifications" (rev. July 9, 2012);
see also Model Jury Charges (Criminal), "Identification: In-Court and Out-of-
Court Identifications" (rev. May 18, 2020).
A-3699-23 13 In State v. Sanchez-Medina, our Court also reviewed a "missing
instruction on identification . . . for plain error." 231 N.J. 452, 468 (2018). In
Sanchez-Medina, the Court reaffirmed that "[w]hen eyewitness identification is
a 'key issue,' the trial court must instruct the jury how to assess the evidence—
even if defendant does not request the charge." Id. at 466 (citing Cotto, 182 N.J.
at 324).
The issues defendant presented to the jury were whether he was "Big Rob"
and whether it was him who sold the heroin. The CW averred that after being
approached by law enforcement on the same day he was arrested for an unrelated
drug charge, he told the officers that someone named "Big Rob" was selling
drugs out of a house on Mercer Street but conceded he did not know "Big Rob's"
actual name. Further, although the CW testified that he had seen "Big Rob" in
the past, he did not identify McDowell as "Big Rob" at trial.
Moreover, the arresting officer, Detective Marino, did not observe either
of the two controlled buys, he only witnessed defendant leaving the Mercer
Street address on both occasions. There are no photographs or video recordings
of the controlled buys, and the audio recording from the phone the CW was
provided was inaudible. Additionally, the search incident to defendant 's arrest
did not turn up any physical evidence that McDowell was selling drugs. There
A-3699-23 14 were no drugs, or drug paraphernalia, in defendant's home, nor did the search
turn up the photographed money that the CW was given by the detectives for the
As we pointed out in State v. Frey, where identification was a key issue,
"[n]otwithstanding the failure of defense counsel to request an instruction on
identification, it was the trial judge's responsibility to instruct the jury on all
essential and fundamental matters." 194 N.J. Super. 326, 329 (App. Div. 1984).
The question before the jury was whether it was this defendant who sold the
heroin to the CW. Despite defense counsel not requesting a model jury charge
on identification, it nonetheless should have been provided, and not doing so
raises reasonable doubt as to whether the jury reached a result it might otherwise
not have reached. Therefore, defendant's conviction is reversed and retrial is
required.
B.
Because we have found that there was a violation of defendant's right to a
fair trial that requires reversal of the convictions, we address defendant's
remaining arguments concerning evidence rulings only to the extent they present
issues that may arise on retrial.
A-3699-23 15 We review evidentiary rulings for an abuse of discretion. Watson, 254
N.J. at 602. However, we afford no deference to questions of law, such as those
interpreting constitutional rights. State v. McInerney, 450 N.J. Super 509, 521
(App. Div. 2017).
First, we address defendant's claim that the three first-time in-court
identifications were improper because the procedures set forth in Watson were
not followed. Our Court has explained that trial courts must "take steps to guard
against practices that pose serious due process concerns—especially inside a
court of law in front of a jury." Watson, 254 N.J. at 586. "By conducting a
suggestive identification procedure in a courtroom, the State may implicate due
process concerns and deprive defendants of their due process rights in a way
that neither cross-examination nor jury instructions can adequately address."
Ibid.
In Watson, a defendant was on trial for a bank robbery. 254 N.J. at 568.
At trial, without first notifying the defendant, the State elicited a first -time in
court identification, from a bank teller, who identified the defendant as the
robber, stating they were "maybe like . . . 80 percent' sure"; the defense failed
to object. Id. at 572. Defendant's former girlfriend also testified, and identified
A-3699-23 16 defendant, with 100 percent certainty, from two still photos she was shown from
a bank surveillance video. Ibid.
The Court found the teller did not have a prior relationship with defendant
or know him from before; thus, "[t]here was no 'good reason' for the State to
conduct a first-time in court identification." Id. at 589. Moreover, the Court
held, "[t]he extremely suggestive in-court identification in this case therefore
should not have taken place." Ibid. Because defendant's identification was
"central to the case, the error raised a reasonable doubt as to whether the jury
reached a result it otherwise might not have." Id. at 590-91 (citations omitted).
Thus, the Court held there was plain error and reversed defendant's conviction.
Furthermore, the Court prospectively held that "the State must file a
motion in limine if it intends to conduct a first time in court identification
procedure." Id. at 588. At the motion, the parties and the court must explore
whether good reason exists to conduct a first-time in-court identification. Id. at
587-88. Lastly, the Court determined that "any hearing on the admissibility of
an in-court identification should be held and the issue should be resolved before
the start of the trial." State v. Burney, 255 N.J. 1, 27 (2023) (citing Watson, 254
N.J. at 587-588).
A-3699-23 17 The State argues that because all three officers were part of one
surveillance team, we should aggregate their observations and find that their in-
court identifications were confirmatory. Furthermore, the State contends that
because the witnesses were police officers, they should not be evaluated using
the same standards for civilians. In support, they emphasizes the following
example of "good reason" from the Massachusetts case Commonwealth v.
Crayton, cited by our Supreme Court in Watson: "'the witness is an arresting
officer who' saw the crime and 'the identification merely confirms that the
defendant is the person who was arrested for the' offense"; and "when a witness
is already 'familiar with the defendant' from before the crime." 254 N.J. at 583
(quoting 21 N.E. 157, 170 (Mass. 2014)).
In State v. Pressey, the parties presented the Court with "an intriguing
question: whether an identification made by a law enforcement officer should
be tested by the same standards that apply to a civilian." 232 N.J. 587, 590-91
(2018). Ultimately, the Court concluded:
Based on the record before us, we cannot determine whether part or all of the protections outlined in Henderson should apply to identifications made by law enforcement officers. We encourage parties in the future to make a record before the trial court, which can be tested at a hearing by both sides and then assessed on appeal.
A-3699-23 18 [Id. at 592.]
We invite the same here.2 On remand, the parties shall follow the
procedures outlined in Watson. If the State files a motion to admit the
identifications, the court should determine at a pre-trial hearing whether there is
"good reason" for each officer to individually identify defendant at trial.
Defendant also contends that Detective Marino's testimony stating that he
did not arrest him sooner because it was their hope he could help them get
"somebody a little more violent," sent an "unmistakable message to the jury that
he was violent." McDowell contends this violated his rights to due process and
a fair trial. We disagree.
During Detective Marino's testimony, defense counsel asked him if
defendant was arrested after either controlled buy. On re-direct, the prosecutor
asked if it was "uncommon to withhold charges after an initial purchase of CDS
from a target?" Detective Marino responded that it was "[v]ery common."
When asked why, he explained, "[b]ecause we're –– pending charges to hope
2 Because there was no pre-trial motion, the record is devoid of any information regarding what investigation, if any, was done regarding "Big Rob" or the Mercer Street residence before the controlled buys were executed. If a search warrant was issued after the controlled buys, the information contained in the affidavit also is not part of the record on appeal. A-3699-23 19 that they will cooperate with us to get somebody, a –– a larger drug dealer,
maybe somebody a little more violent." There was no objection.
Defendant's assertion that this was improper because it characterized him
as "violent" takes the answer out of context and lacks merit. The question at
issue was directed at understanding whether it was "common" to withhold
charges concerning a target from whom drugs had already been purchased, and
Detective Marino explained why it was "very common" to do so. As he
explained, sometimes criminal charges against a target may be withheld to give
the target a chance to lead the police to "a larger drug dealer" and/or to
"somebody a little more violent." To say that this explanation of the general
practice of police offered a description of defendant as a violent person
completely misreads the exchange. It did nothing of the kind and had no
capacity for prejudice.
To the extent we have not addressed any of McDowell's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Reversed and remanded. We do not retain jurisdiction.
A-3699-23 20