On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2009
Before Judges Wefing, Grall and Messano.
Defendant Brian Fowlkes was indicted and charged with crimes against a corrections officer. A jury found defendant guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), purposely, knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causing serious bodily injury. The jury acquitted him of knowingly and unlawfully possessing a weapon under circumstances not manifestly appropriate for its use, N.J.S.A. 2C:39-5d, and of possessing a weapon with the purpose of using it unlawfully against the person or property of another, N.J.S.A. 2C:39-4d. Defendant was sentenced to an eight-year term of imprisonment subject to terms of parole ineligibility and supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. Appropriate fines, penalties and assessments were imposed.
On appeal defendant claims that errors in the jury charge not raised at the time of trial require reversal of his conviction. Although the jury instruction on self-defense was less than complete, we conclude that defendant was not prejudiced by the omissions and affirm.
The testimony presented at trial was as follows. On July 29, 2005, defendant was an inmate in the Middlesex County Corrections Facility and housed on the upper tier of "C-Pod." Mark Whitlock, a corrections officer and the victim of the aggravated assault, was assigned to that tier. Whitlock is about six inches taller and over one hundred pounds heavier than defendant. Prior to that day, defendant had never dealt with Whitlock.
Each inmate in C-Pod is allowed to leave his cell for one hour a day. No two inmates are allowed to use their hour at the same time. By 7:15 a.m. on July 29, breakfast had been served and the sergeant had made the first of his two daily tours of CPod. Whitlock asked defendant if he wanted to use his hour. If defendant had declined, he would not have been given an opportunity later in the day.
Defendant accepted Whitlock's offer and went to the supply closet to get materials to clean his cell. The supply closet was in the same area as the officer's desk, and relative to defendant's cell, the desk and closet were at the opposite end of the tier. Defendant took a broom and a dust pan and went back to his cell. When he finished cleaning, he put the equipment back in the closet.
Before returning to his cell, defendant asked Whitlock if he could use the remainder of his hour during the evening so that he could speak to his lawyer. According to Whitlock, he informed defendant that he did not want to give the other inmates the impression that he was giving defendant preferential treatment. But according to defendant, Whitlock told him that he did not care whether defendant had to speak to his attorney or not.
Defendant said he wanted to speak to the sergeant, but Whitlock told him he would have to wait until the sergeant returned to C-Pod later that day. In defendant's view, Whitlock was indifferent to his need to consult with his lawyer and wrong not to call the sergeant when defendant needed him. Although defendant knew the sergeant would return before it was time for him to call his lawyer, he believed his disagreement with Whitlock warranted immediate attention.
In any event, defendant went to his cell for a moment but then returned to the outer area of the tier, picked up a garbage can and threw it. Defendant acknowledged that he did that because he was "mad," but he denied throwing the can at Whitlock. Whitlock thought defendant threw the trash can toward him.
An officer on the lower tier of the C-Pod, Clint Giles, heard the incident and yelled to Whitlock to see if everything was alright. Whitlock indicated it was but said he was going to call the sergeant.
According to defendant, Whitlock got up from the desk and made the call. After that Whitlock put on his gloves and paced.
By Whitlock's account, after defendant threw the trash can he returned to the supply closet, removed the broom and, holding it up like a sledge hammer, approached Whitlock. Concerned that if defendant moved into a wider space near the stairway "he would have pretty much a free swing, pretty much like a baseball bat for anyone coming up the stairs," Whitlock responded. He "stepped in toward" defendant, placed his hand on defendant's shoulder, spun him around and pinned him against the wall. Whitlock then felt two blows land on the left side of his head.
Officer Giles, watching from below, saw defendant with a broom raised above Whitlock's head. Giles also saw Whitlock try but fail to prevent defendant from striking him in the face with the broom.
Defendant's account was different. Although he acknowledged walking away from his cell and approaching the area of Whitlock's desk, he testified that he did not have the broom and that the supply closet was kept locked. Defendant explained:
And I went right there where - I went to that area, and I stood there, and there's a railing right there. And I just leaned on the railing waiting for the sarg to come up the steps, because you could see them when they [are] getting ready to come on the unit. And [Whitlock's] still walking, and while he's walking, he's telling me to get away from cell door 13, but I wasn't by the door. I was just leaning on the railing right there by the steps, waiting for the sarg to come up.
So, as we were talking, we had an exchange. We're exchanging words back and forth, and he still is walking up on me . . . and I'm standing right here, and he rushed me and tried to grab me up, like try to put me in a choke hold. And once he did that, I threw a punch at him, and we began fighting. And then we be probably fighting for like a good five, ten minutes. Like it happened real fast. We begin fighting, and then the other police respond, and they run up, snatch me up, throw me down, put the cuffs on me, and then beat me up, take me to the cell, beat me up.
In other portions of defendant's testimony, he suggested that Whitlock managed to place him in a choke hold. The prosecutor asked, "So he put you in a choke hold?" Defendant responded, "No, he didn't, but he grabbed me up and tried to put me in a choke hold. He didn't do that."
Defendant provided no further details about the force Whitlock employed that led defendant to perceive the action as an effort to place him in a choke hold. Questioned as to whether Whitlock struck him, hit him or punched him, he gave the same response: "He put his hands on me." He explained, "Once he put his hands on me, I felt like I had to defend myself." According to defendant, when Whitlock tried to grab him, he, defendant, "swung a punch" and they began fighting.
Eladio Echarte-Vera, a resident of C-Pod, testified that he heard defendant ask to see the sergeant and Whitlock refuse that request. Echarte-Vera also heard Whitlock direct defendant to move and saw Whitlock grab defendant's hand. When defendant did not submit, Whitlock punched defendant. After that, he saw defendant throw only one punch that missed.
Whitlock does not recall what happened immediately after he felt the blows to his head. He remembers being on his hands and knees and looking down at blood on the floor when he noticed that other officers were trying to restrain defendant. Whitlock got up and "stumbled over" to the group, and he put his "right knee on [defendant's] right shoulder blade to help pin him down."
Defendant estimated that he and Whitlock fought for about five to ten minutes before other officers came to the tier, "snatched" him up, threw him down and put cuffs on him. Officer Arthur Brown was one of the officers who restrained defendant.
When Officer Brown arrived on the scene, he saw Whitlock bent over and attempting to fend off defendant's blows. Brown did not see a broom; defendant was using his hands. Brown admitted that the officers tackled defendant to restrain him, and he said that Whitlock, who was bleeding, came to their assistance. According to ...