NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2572-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK LOVETT,
Defendant-Appellant.
________________________________
Submitted November 7, 2016 – Decided June 27, 2017
Before Judges Sabatino & Nugent.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13- 03-00526.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Camila Garces, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Mark Lovett appeals from a judgment of conviction
for aggravated manslaughter, aggravated assault, and two weapons offenses. For those crimes, a judge sentenced him to prison for
thirty-one years. On appeal, he argues:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S REQUEST FOR A WADE HEARING BECAUSE THERE WAS AMPLE EVIDENCE IN THE RECORD THAT CALLED THE RELIABILITY OF THE EYEWITNESS IDENTIFICATION PROCEDURE USED INTO QUESTION.
POINT II
WHEN THE JURY POLL REVEALED THAT JURORS WERE NOT UNANIMOUS AS TO THE VERDICT, THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INQUIRE AS TO WHETHER FURTHER DELIBERATIONS WOULD BE FRUITFUL AND FAILING TO INSTRUCT THE JURORS NOT TO ABANDON THEIR HONESTLY HELD VIEWS FOR THE SAKE OF REACHING A UNANIMOUS VERDICT.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO READ THE PORTION OF THE MODEL JURY CHARGE ON IDENTIFICATION WHICH DEALS WITH THE SUGGESTIVENESS OF SINGLE-SUSPECT IDENTIFICATION PROCEDURES. ([N]ot raised below).
POINT IV
THE AGGREGATE 31-YEAR PRISON SENTENCE IMPOSED WAS BOTH PROCEDURALLY DEFECTIVE AND MANIFESTLY EXCESSIVE FOR A DEFENDANT WITHOUT ANY PRIOR ADULT CONVICTIONS.
For the reasons that follow, we affirm.
In March 2013, an Essex County grand jury charged defendant
and co-defendant Shawn Watford in a six-count indictment with the
2 A-2572-14T3 following crimes: first-degree conspiracy to commit murder,
N.J.S.A. 2C:5-2 and 2C:11-3(a)(1) and (2) (count one); first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count two); two
counts of first-degree attempt to commit murder, N.J.S.A. 2C:5-1
and 2C:11-3(a)(1) and (2) (counts three and four); third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(c) (count five);
and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count six).
Defendant moved for a Wade1 hearing, arguing the court should
exclude a witness's out-of-court identification because it
resulted from unduly suggestive circumstances. Analyzing
defendant's motion under Manson v. Brathwaite, 432 U.S. 98, 97 S.
Ct. 2243, 53 L. Ed. 2d 140 (1977) and State v. Madison, 109 N.J.
223 (1988), rather than the new standards of State v. Henderson,
208 N.J. 208 (2011), the trial court denied defendant's motion for
a hearing.
The court granted the State's pre-trial motion to dismiss
count four, one of the attempted murder counts. The State tried
defendant separately from the co-defendant. At the conclusion of
defendant's trial, the jury found him not guilty of conspiracy to
commit murder (count one), but guilty of the lesser-included
1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
3 A-2572-14T3 offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (count
two). On count three, the jury found defendant not guilty of
attempted murder, but guilty of the lesser-included offense of
third-degree aggravated assault, N.J.S.A. 2C:12-(b)(7). The jury
found defendant guilty of the two weapons offenses.
For purposes of sentencing, the court merged count six,
possession of a weapon for an unlawful purpose, with counts two
and three, aggravated manslaughter and aggravated assault. The
court sentenced defendant on count two to a twenty-seven-year
prison term subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. The court imposed a four-year prison term with two
years of parole ineligibility on count three, consecutive to the
sentence imposed on count two. On count five, unlawful possession
of a weapon, the court imposed a five-year prison term with three
years of parole ineligibility concurrent to the sentence imposed
on count three.2 This appeal followed.
The State developed the following proofs at trial. Shortly
after midnight on May 27, 2012, fifteen or twenty people were
2 We note counts two and three were not listed in the "final charges" section of the judgment of conviction. Counts two and three were, however, listed in the judgment of conviction's "sentencing statement" along with the sentences to be imposed on those counts. The judgment of conviction also improperly lists defendant's aggregate custodial term as twenty-seven years rather than the correctly computed figure of thirty-one years.
4 A-2572-14T3 socializing in front of a home on Taylor Street, between Hickory
and Center streets, in Orange. A light-colored Audi turned from
Hickory Street onto Taylor Street and slowed as it passed the
crowd. The Audi's front-seat passenger fired multiple bullets
into the crowd. One bullet struck a victim in the chest, and he
died as the result of the gunshot wound. Another bullet grazed
the left leg and passed through the right leg of a second victim,
who was seated in a car.
Law enforcement officers photographed and processed the crime
scene. Officers found ten shell casings that had been ejected
from a semi-automatic weapon, but found no evidence, such as
fingerprints, to aid them in identifying the perpetrators.
Officers also located a surveillance camera used by a nearby
business. Although the camera captured the Audi turning from
Hickory Street onto Taylor Street, authorities could identify
neither the car's occupants nor its license plate number from the
video recording.
The State proved defendant and co-defendant were the
perpetrators through the testimony of a witness who identified co-
defendant as the Audi's driver, and through the prior statement
of another witness, decedent's friend, who had once identified co-
defendant and defendant to law enforcement as the driver and
5 A-2572-14T3 shooter.3 The first witness, who had observed the shooting from
the third floor of a neighboring house, could not identify the
passenger who fired the shots. This witness was looking through
the window because the noise from the crowd was keeping him awake.
He saw the Audi slow down as it neared the crowd, and then he
heard "boom, boom, boom, boom." He saw fire coming from the car
as people on the sidewalk fled or ducked behind parked cars.
The driver's side window was down. The witness had seen the
driver previously in Orange, and described his hair, moustache,
and sideburns. Within the next two weeks, the witness gave a
statement to authorities and identified a photo of co-defendant
as the Audi's driver. The witness could not identify the car's
other occupant, who he believed to be the shooter. The witness
had seen "flames" coming "[f]rom the right-hand side of the front
window."
The other witness, decedent's friend, had given a video-
recorded, sworn statement to police two days after the homicide.
According to the statement, he was talking to decedent when "a
silver or beige Audi hit the corner hard and it slowed down by us
and started shooting." When asked by detectives if he saw who was
3 A third witness, who had been at the scene, had also given a statement to police identifying defendant as the shooter and co- defendant as the Audi's driver. This third witness refused to testify at trial, and the court held him in contempt.
6 A-2572-14T3 shooting the gun, decedent's friend said it was defendant, "Mark
Lovett." The friend saw defendant sticking his hand out the Audi's
window firing a gun. Decedent's friend had known defendant for
approximately six or seven years, since seventh grade, and he had
seen him recently at a deli and liquor store. According to
decedent's friend, defendant, also known as "Spitter," was
"always" at the deli. The friend also had known co-defendant,
nicknamed "Spot," for approximately four years. Decedent's friend
identified Spot as the Audi's driver. Decedent's friend said in
his statement he "got a very good look" at defendant and co-
defendant.
During the friend's interview, after he identified defendant
and explained how he knew him, detectives showed the friend a
single photograph of defendant. The friend identified defendant
as Spitter, Mark Lovett. Decedent's friend also identified co-
defendant from an array of six photographs.
Decedent's friend recanted at trial, asserting the men in the
Audi wore black masks and he could identify neither of them.
Following a Gross4 hearing the trial court determined the friend's
video-recorded statement was reliable and admissible. The State
played a redacted version for the jury.
4 State v. Gross, 121 N.J. 1 (1990).
7 A-2572-14T3 As previously noted, the jury found defendant guilty of
aggravated manslaughter, aggravated assault, and two weapons
offenses; and the court sentenced defendant to an aggregate thirty-
one year custodial term.
On appeal, defendant first challenges the trial court's
denial of his motion for a Wade hearing. He argues that because
police showed decedent's friend a single photograph — an inherently
suggestive procedure — the trial court should have conducted a
hearing to determine whether the friend's identification was
sufficiently reliable to satisfy due process. Defendant also
argues the trial court wrongly analyzed the identification issue
under Manson and Madison rather than Henderson. We find
defendant's arguments unavailing. Under either a Manson-Madison
or Henderson analysis, defendant failed to make the showing
necessary to entitle him to a hearing.
Here, the officers did not show decedent's friend a
photograph, thereby prompting the friend to identify defendant;
rather, the friend identified defendant, thereby prompting the
officers to obtain his photograph. The friend's identification
of defendant and co-defendant had been made and was complete before
the officers showed the friend defendant's photograph. The friend
had known defendant for six or seven years, and he had seen him
in middle school and in the community. Defendant could not
8 A-2572-14T3 demonstrate when he filed his Wade motion, nor can he demonstrate
now, that the officers showing the witness defendant's photograph
after he identified defendant had any likelihood of influencing
his identification.
Under the Manson-Madison analytical framework, a defendant
must first "proffer . . . some evidence of impermissible
suggestiveness" to be entitled to a Wade hearing. State v.
Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993) (citations
omitted), aff'd o.b., 135 N.J. 3 (1994). A defendant cannot
satisfy this requirement by isolating one of the totality of
circumstances surrounding an identification and ignoring all
others. In cases such as this, where a witness has positively
identified a perpetrator who he has known for six or seven years,
has seen in middle school, and has seen in the community, police
later showing the witness a photograph of that perpetrator does
not constitute an impermissibly suggestive procedure.
Defendant fares no better under Henderson's analytical
framework. Under Henderson, "to obtain a pretrial hearing, a
defendant has the initial burden of showing some evidence of
suggestiveness that could lead to a mistaken identification."
Supra, 208 N.J. at 288. Here, defendant failed to demonstrate how
showing his photograph to a witness who had already positively
identified him as the shooter realistically constituted "some
9 A-2572-14T3 evidence of suggestiveness that could lead to a mistaken
identification." Ibid.
In short, the trial court correctly determined defendant had
not made the required initial showing entitling him to a Wade
hearing.
Next, we address defendant's contention the trial court
committed reversible error by failing to instruct the jury on
show-up identifications, Model Jury Charges (Criminal),
"Identification: Out-of-Court Identification Only" (2012), even
though defendant did not request the charge.
"If the defendant does not object to the charge at the time
it is given, there is a presumption that the charge was not error
and was unlikely to prejudice the defendant's case." State v.
Singleton, 211 N.J. 157, 182 (2012). Here, defendant did not
object to the court omitting the show-up identification
instruction. Because defendant did not object at trial, we review
the charge for plain error. R. 1:7-2; R. 2:10-2; State v.
McKinney, 223 N.J. 475, 494 (2015). Plain error in this context
is "[l]egal impropriety in the charge prejudicially affecting the
substantial rights of the defendant sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring about
an unjust result." State v. Adams, 194 N.J. 186, 207 (2008)
10 A-2572-14T3 (alteration in original) (quoting State v. Jordan, 147 N.J. 409,
422 (1997)).
For the same reasons we expressed in rejecting defendant's
argument that he was entitled to a Wade hearing, we conclude that
even if the trial judge erred by omitting the show-up
identification charge, the omission did not have a clear capacity
to bring about an unjust result. Ibid. As previously pointed
out, the witness had identified defendant before detectives showed
him the photograph. Under those circumstances, the court's
omission of an instruction that defendant did not request, and
that had little if any bearing on the witness's identification,
was at most harmless error. R. 2:10-2.
We also reject defendant's argument the court erred by failing
to make an appropriate inquiry of the jury and failing to give an
instruction to the jury when they revealed they were not unanimous
as to the verdict. Defendant raises this argument for the first
time on appeal.
These are the circumstances concerning the jury's verdict.
The jury began deliberating on a Thursday at 12:16 p.m. and went
to lunch from 12:56 p.m. to 2:10 p.m. The jury ceased
deliberations at 4:01 p.m. and returned the following Tuesday.
The jury deliberated from 9:28 a.m. to 1:06 p.m. when they
announced they had reached a verdict. After the foreperson
11 A-2572-14T3 announced the verdict, the court began to poll the jury. Juror
number six initially whispered "yes," indicating agreement with
the verdict, but then whispered "no" when the court repeated the
inquiry. Following a sidebar discussion with counsel, the court
stated: "All right. The record will reflect we've been waiting
here for over a minute for Juror Number 6 to respond. He is not
responding. The verdict is not unanimous. I'm going to send
them back in for further deliberations . . . ."
Defendant made a motion for a mistrial, which the court
denied. Defendant did not request any further inquiry or
instruction. After breaking for lunch from 1:19 p.m. to 2:25
p.m., the jury resumed deliberations. At 3:21 p.m., the jury sent
a note stating they were again ready "to report our unanimous
verdict." The jury then returned a unanimous verdict.
Defendant now argues the court should have inquired if further
deliberations would have likely resulted in a verdict, and should
have instructed the jury on further deliberations in accordance
with Model Jury Charges, (Criminal), "Judge's Instructions on
Further Jury Deliberations" (2013). Because defendant did not
request either further inquiry or an instruction, we review the
omissions for plain error. R. 2:10-2; McKinney, supra, 223 N.J.
at 494.
Rule 1:8-10 governs situations such as this. The rule states:
12 A-2572-14T3 Before the verdict is recorded, the jury shall be polled at the request of any party or upon the court's motion . . . . If the poll discloses that there is not unanimous concurrence in a criminal action . . . the jury may be directed to retire for further deliberations or discharged.
While it is appropriate "to inquire of the jury whether further
deliberations will likely result in a verdict . . . it is not
always necessary for the trial court to do so." State v. Figueroa,
190 N.J. 219, 240 (2007) (citations omitted). A trial court also
has discretion "to decide whether repeating [the jury charge on
further deliberations] is appropriate when a jury . . . is unable
to agree." Id. at 235.
Here, no juror announced the jury was deadlocked, nor did
juror number six indicate in any way a verdict could not be
reached. Moreover, the court had instructed the jury near the end
of its charge:
It is your duty as jurors to consult with one another and deliberate with a view to reaching an agreement, if you can do so without doing violence to your individual judgment. Each of you must decide the case for yourself, but do so only after impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purposes of
13 A-2572-14T3 returning a verdict. You are not partisans. You are judges . . . of the facts.
In view of this instruction, defendant's failure to request
either further inquiry or further instruction after juror number
six was polled, and the absence of any indication the jury had
reached a deadlock, we cannot conclude the trial court's omissions
require reversal. The omissions did not amount to "[l]egal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant sufficiently grievous to justify notice
by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust
result." Adams, supra, 194 N.J. at 207 (alteration in original).
Lastly, defendant challenges his sentence as excessive. We
may not substitute our judgment for that of the trial court's when
reviewing a sentencing decision. State v. Johnson, 118 N.J. 10,
15 (1990) (citation omitted). "[A]s long as the trial court
properly identifie[d] and balance[d] aggravating and mitigating
factors . . . supported by competent credible evidence in the
record[,]" we must affirm even if we would have reached a different
result. State v. O'Donnell, 117 N.J. 210, 215 (1989).
Here, the court based its finding of aggravating and
mitigating factors on defendant's background and juvenile record.
The court reasonably balanced the factors, and concluded the
14 A-2572-14T3 aggravating factors preponderated. Further, defendant's sentence
is not manifestly excessive, but falls within the range of
available sentences for the crimes of which he was convicted.
Finally, the court conducted an adequate Yarbough5 analysis and
its imposition of consecutive terms was proper.
We affirm defendant's convictions and sentence, but remand
to the trial court to correct the judgment of conviction to include
the correct final charges and aggregate sentence. We do not retain
jurisdiction.
5 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
15 A-2572-14T3