On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-10-1524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2009
Before Judges Wefing, Grall and Messano.
Defendant Brian Fowlkes appeals from the judgment of conviction that followed a jury trial at which he was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to life imprisonment with a thirty-year parole disqualifier on the murder conviction; a concurrent ten-year sentence was imposed on the weapons charge.
On appeal, defendant raises the following points for our consideration:
THE PROSECUTOR VIOLATED THE WITNESS-ADVOCATE RULE BY CALLING A PAROLE OFFICER WHO RECOUNTED THE PROSECUTOR'S REPRESENTATIONS AS TO A JAILHOUSE INFORMANT'S COOPERATION. THE PROSECUTOR ALSO VOUCHED FOR AND BOLSTERED THE INFORMANT'S CREDIBILITY BY ELICITING TESTIMONY FROM ANOTHER PROSECUTOR THAT THE INFORMANT HAD PROVIDED ACCURATE INFORMATION IN THE PAST, AND BY SUGGESTING THAT THE INFORMANT'S TESTIMONY WAS CORROBORATED BY EXTRA-RECORD EVIDENCE. (Partially Raised Below)
THE JUDGE AND DEFENSE COUNSEL FAILED TO TAKE NECESSARY STEPS TO LIMIT OR SANITIZE OTHER-CRIMES EVIDENCE, INCLUDING EVIDENCE THAT FOWLKES HAD BEEN PREVIOUSLY INCARCERATED, AND THE JUDGE ERRED IN FAILING TO PROVIDE LIMITING INSTRUCTIONS. (Partially Raised Below)
THE JUDGE VIOLATED FOWLKES'S RIGHTS TO BE PRESENT, TO A PUBLIC TRIAL BY AN UNTAINTED JURY, TO DUE PROCESS, AND TO COUNSEL WHEN HE ENTERED THE JURY ROOM DURING THEIR DELIBERATIONS. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, PARAGRAPHS 1, 10. (Not Raised Below)
THE COURT'S FAILURE TO INSTRUCT JURORS THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED FOWLKES A FAIR TRIAL. (Not Raised Below)
THE COURT ERRED IN PERMITTING A WITNESS TO TESTIFY IN PRISON GARB, AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE DECEDENT DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, PARAGRAPHS 1, 10.
THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DEPRIVED FOWLKES OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
In a pro se supplemental brief, defendant raises the following points:
THE STATE[']S ILLEGAL SUPPRESSION OF EVIDENCE DUE TO ITS FAILURE TO PRESERVE TAPES OF ITS WITNESSES['] GRAND JURY TESTIMONY VIOLATED APPELLANT[']S DUE PROCESS. U.S.C.[A.] AMENDS. 14, 18.
TRIAL COURT ERRED IN ITS FAILURE TO IMPOSE SANCTIONS ON STATE FOR ITS FAILURE TO DISCLOSE GRAND JURY TRANSCRIPTS OF ITS WITNESSES['] TESTIMONY, IN VIOLATION OF R. 3:17-1 AND JENCKS ACT[,] 18 U.S.C.A. § 3500 DUE TO THE STATE[']S LOSS/DESTRUCTION OF THE TAPES AND TRIAL COURT[']S DENIAL OF APPELLANT[']S MOTION TO DISMISS DURING SENTENCING CONSTITUTED CLEAR ERROR.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
Late in the afternoon of May 22, 2004, Hassan Bass was fatally shot on the corner of Hassart and George Streets in New Brunswick. Although several people in the immediate location heard the shots, their description of the events and Bass's killer were divergent. Bass's cousin, Rodney Daniels, heard two shots, turned and saw a man with pantyhose covering his face and head holding a black revolver, and saw him run off as Bass lay on the ground. He could not identify the assailant when first questioned by the police.
At trial, after Daniels again stated that he could not identify defendant as the shooter, the State introduced a second statement Daniels gave to the police a few days after the shooting. In that statement, Daniels identified defendant as the shooter, claiming that he was able to see his face through the mask. Daniels explained on cross-examination, however, that he provided this identification based upon information he heard on the street, and his personal belief that defendant shot his cousin.
Leeman Sesay also heard a shot, saw a masked gunman standing behind Bass, and saw him fire two more shots into Bass's head before running from the scene, leaving Bass on the pavement. Sesay and others unsuccessfully tried to follow the shooter, and when they returned to the scene, Sesay took his T-shirt off and placed it over Bass's head. When police responded, Sesay told them that he had not seen the shooter.
A third individual, Kevin Sadler, who knew defendant and his father for some years, heard one or two shots fired, and saw a man with a black ski mask running from the scene. Sadler testified that he could not tell the race of the shooter and could not identify him. Sadler took Sesay's T-shirt and placed it under Bass's head, comforting him until police and emergency medical personnel arrived and removed Bass from the scene.
When Detective James Mullin arrived at the location, he interviewed a number of people who described the gun used by the assailant as a small, black revolver. Mullin also obtained a basic description of the shooter--braided hair, 5'6" tall, medium build, wearing a mask, a black head rag, blue jeans and a dark shirt. Sadler, who saw defendant earlier in the month of May, however, described defendant as wearing a closely-cropped Afro without braids.
Bass died of a single gunshot wound to the head, described by the medical examiner as a "contact" wound, caused by a .22 caliber bullet fired from a revolver. The murder weapon was never recovered, and no forensic evidence linked defendant to the crime.
The State's contention was that defendant killed Bass because of a fight that occurred while both were inmates at the Garden State Youth Correctional Facility in 1999. Disciplinary action brought against defendant resulted in his placement in administrative segregation at the facility. The testimony of defendant's girlfriend, Carolina Arana, further supported the contention that animosity was the motive for the murder. Specifically, she testified that two days before the shooting, defendant told her he was punched by someone on the street without provocation. Arana saw that defendant's lip was injured. Defendant's father's girlfriend, Juanita Johnson James, also saw his injured lip. She testified that defendant told her that he had been punched without warning, and that his assailant was someone with whom he had a confrontation "when they both w[ere] locked up."
In large part, however, the State's case rested upon the testimony of Arana and D.C., a jailhouse informant. Arana testified that on the day of the shooting, she was napping at defendant's home when she was awakened by the sound of someone looking for something. She observed defendant with a small, black handgun; when she asked what he was doing, defendant did not respond directly, telling her that she asked too many questions. Defendant left, wearing a white shirt, jeans and a black hat.
Sometime thereafter, defendant called Arana and told her to go to her mother's house. She did, and defendant arrived there fifteen minutes later. He told Arana that he was going to his mother's house in Virginia, and that she would be safer if she went with him. Arana packed some clothing in a bag defendant had with him, and saw in the bag the same gun she had seen earlier. Together, Arana and defendant took a train to Philadelphia, and then a bus to Portsmouth, Virginia, eventually arriving at defendant's mother's home. Along the way, defendant told Arana that he had shot someone, something defendant repeated to his mother in Arana's presence when they reached Virginia.
One week after the shooting, police officers arrived at defendant's mother's Virginia home with a warrant for his arrest. They were given permission to search the downstairs apartment where Arana was seated in the living room. She told them that she had not seen defendant in "a while." In fact, defendant had gone to the rear of the apartment when the police arrived and was found by officers in a closet. He was placed under arrest; police discovered a .380 caliber handgun, which was admittedly not the murder weapon, in the bedroom, and drugs in the living room. Arana was arrested for possession of the drugs and obstruction of justice; she remained in custody in Virginia for three months, repeatedly denying that the drugs were hers. Eventually, the drug charges against her were dismissed.*fn1
Arana returned to New Jersey and occasionally defendant, who was in custody, would contact her by calling his father, and having his father arrange a conference call with Arana. Defendant had his father provide a letter to Arana. The letter was in defendant's handwriting, but it was addressed to defendant and signed, "Your wife, Carolina." Arana received the letter from defendant's father with instructions that she copy the letter in her own handwriting and return it to him.
The contents of the letter expressed Arana's remorse for supplying information to the police; her belief that defendant told the police in Virginia that the drugs discovered there belonged to Arana; and her further belief that defendant was responsible for her detention in Virginia. The letter intimated that defendant had an alibi regarding his whereabouts at the time of the shooting. Arana ...