STATE OF NEW JERSEY v. BRIAN FOWLKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2939-05T42939-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN FOWLKES,

Defendant-Appellant.

___________________________________________________

 

Argued September 30, 2009 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-10-1524.

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Gautieri, on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

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:

POINT I

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)

POINT II

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)

POINT III

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)

POINT IV

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)

POINT V

THE COURT ERRED IN PERMITTING A WITNESS TO TESTIFY IN PRISON GARB, AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT. (Not Raised Below)

POINT VI

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)

POINT VII

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.

POINT VIII

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:

POINT I

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.

POINT II

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.

I.

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.

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 did not copy the letter in her own handwriting, but, rather, turned it over to the prosecutor's office.

D.C. testified as to admissions defendant made to him while they were incarcerated together during November 2004. D.C. had previously been convicted twenty-one times of various offenses, including burglary, theft, and escape. Prior to being lodged in Middlesex County, he was in custody in Essex County. There, he contacted authorities with information he had obtained from an inmate regarding that inmate's open robbery charge. D.C. testified at trial against that defendant, and acknowledged that he received favorable treatment as a result. Specifically, the State recommended a sentence of non-custodial probation on his open Essex County charges. As a result of his cooperation, D.C. was transferred to Middlesex County.

There, he was housed near defendant. Both were assigned to administrative segregation, essentially being confined to their cells twenty-three hours per day. D.C. claimed, however, that he garnered defendant's trust, and that eventually defendant told him the details of Bass's murder. Defendant told him about the 1999 fight he had with Bass, and that Bass had bragged on the street after his release that he had gotten the better of defendant.

Regarding the actual shooting, D.C. claimed defendant told him that he had received a gun from a friend, discovered Bass was on the street, and shot him. Defendant told D.C. that he left for Virginia with Arana because he knew the police were looking for him. He also told D.C. that when he was arrested in Virginia, the police found a gun, but that it was not the murder weapon. Defendant told D.C. that only Arana knew where the murder weapon was hidden.

D.C. acknowledged that he received consideration from the State in return for his testimony. He told the jury that the trial prosecutor had appeared at D.C.'s parole revocation hearing and told the Parole Board (the Board) that his cooperation was extremely valuable to the murder case against defendant. The prosecutor further advised the Board of D.C.'s cooperation in other counties.

During the defense case, a number of correctional officers from the Middlesex County facility testified that it would be unlikely that any two inmates could have engaged in the extended conversations that D.C. alleged occurred while he and defendant were in administrative segregation. Defendant also produced two witnesses who testified that he had plans to visit his family in Virginia that pre-existed the date of Bass's murder. Defendant elected not to testify.

We now turn our attention to the legal arguments defendant raises.

II.

Defendant argues that the State was permitted to impermissibly bolster D.C.'s credibility by calling a series of witnesses, all of whom represented the State in some official capacity, and all of whom expressly or implicitly, opined that D.C. was truthful. Additionally, defendant contends that the prosecutor improperly claimed in summation that D.C.'s testimony was credible because it was corroborated by physical evidence at the scene, when in fact D.C. offered no such testimony before the jury.

The State contends that the testimony of these three witnesses was permissible to "rehabilitate" D.C., and that the prosecutor's summation comment was inadvertent and fleeting. Alternatively, it argues that even if error was committed, it was not harmful error requiring reversal, noting that defense counsel frequently did not object.

We turn first to the testimony regarding D.C.'s cooperation and the benefits he derived. During cross-examination, D.C. was permitted to testify that he was arrested for violations of his parole, and that the trial prosecutor appeared at his parole hearing in an effort to have him released from custody. Apparently reading from the Board's written decision, defense counsel had D.C. acknowledge that the trial prosecutor had advised the Board of his "significant and important" cooperation in defendant's prosecution, and urged the Board to continue D.C.'s parole because of his "importance to law enforcement."

The impropriety of this form of cross-examination is beyond cavil; however, standing alone, and particularly since defense counsel himself asked the questions, we cannot conclude that its admission warrants reversal. This example of D.C.'s cross-examination, and others we have referenced, introduced evidence that established D.C.'s motive for giving testimony favorable to the State. In light of what followed, however, we are convinced that the trial went terribly off-track.

In response, the State elicited additional testimony as to the nature and extent of D.C.'s cooperation with, and the benefits it yielded for, law enforcement. That evidence was improperly placed before the jury to bolster D.C.'s credibility, and it implied that because D.C. previously had given testimony that proved useful to the State, this prosecutor believed his testimony in this trial was truthful, and so should the jury. Such evidence, highlighted by the prosecutor's summation comments, was "clearly capable of producing an unjust result

. . . ." R. 2:10-2.

The next State's witness after D.C. was assistant Union County prosecutor Regina Caulfield. She described in detail the duties of her office and her familiarity with two criminal cases pending against D.C. in Union County. Caulfield testified that she was contacted by members of the Middlesex County prosecutor's office and told of D.C.'s cooperation in the murder investigation. As a result, she agreed to release D.C. on his own recognizance on one of the charges and maintain his bail on the other, though she was not asked, and did not agree, to modify or downgrade the pending charges.

Following Caulfield, the State called Frederick Ellen, an assistant Essex County prosecutor, who was permitted to describe in detail a robbery trial he prosecuted earlier in Essex County, and D.C.'s cooperation based upon a "bullpen conversation" he had with that defendant. The following exchange took place during Elflein's direct examination:

Q. And is it fair to say that the information [D.C.] provided to you about what occurred . . . was helpful and accurate?

A. It was.

Q. And based on that--

[Defense counsel]: Objection to accurate

. . . .

[Judge]: Counsel, I'm going to leave it. That is what the gentleman said. You're free to cross-examine on his understanding of its accuracy.

Q. Because of the quality of the information you put [sic] [D.C.] to testify in that case?

A. That is correct. We did.

The judge cautioned the prosecutor for leading the witness, but then posed his own question to Elflein:

[Judge]: Why did you call [D.C.] as a witness?

[Prosecutor]: Why did you call him as a witness?

A. He had knowledge that only someone who had spoken to the defendant would have had. I didn't know [D.C.] before he came to our attention. I had never met him . . . . But he knew what was going on in that trial somehow or other. And he could only have known it if the defendant told it to him. And that's why I used him.

Without objection, the State also called Robert M. Egels as a witness. Employed by the Board, he was assigned "to conduct revocation hearings in the cases of parolees who are charged with violating conditions of parole." Egels conducted D.C.'s hearing in December 2004. He testified in significant detail regarding the nature of the parole violations, and their ultimate resolution, which was D.C.'s continued parole with electronic monitoring. The following exchange took place on direct examination:

Q. Now, I appeared at that hearing and advised you of cooperation that [D.C.] was providing not only to Middlesex County Prosecutor's Office, but [that] he had previously provided to other Prosecutor's . . . Office[s]?

A. Yes, you did.

Q. All right. And . . . did my recommendations advising you . . . of those things affect your opinion?

A. Well, I suppose it gave me some assurance that not only would [D.C.] be closely monitored electronically by parole, but that he was going to have other ongoing law enforcement contact, positive contact.

In response to further questioning by the prosecutor, Egels explained in detail his "decision-making" regarding the parole violations lodged against D.C. Again asked about "the effect" of the prosecutor's information, Egels responded, "I suppose it supported the opinion . . . that [D.C.] would be cooperative under supervision . . . . And that if he was going to be having contact with your office or law enforcement, that that would just reinforce parole's job of making sure he flies straight."

In summation, the prosecutor reviewed D.C.'s testimony, acknowledging that D.C. understood "there's value in testifying against people." He continued,

But the value in testifying against people only comes when you have good, credible information . . . . [I]f you bring in something that is not credible, that is not good, something that can't be substantiated . . . no one's going to try to help you. And no one is going to listen to really what you have to say.

. . . .

[L]et's talk about the value of [D.C.'s] information. [He] cannot know these things but for speaking [with defendant] . . . . Something really innocuous that . . . puts it all together, the bloody T-shirts on the sidewalk.

. . . .

If you're going to tell a story, if you're going to come and tell a lie, are you going to give that kind of detail, something that's innocuous, that's nothing? But it's important because it says when he came to the Middlesex County Prosecutor's Office and told us that, well, hey, you must have talked to somebody.

. . . .

And then he takes that, and brings it to us. And . . . stating the State's position, [when] you hear that information, you know that is . . . a jailhouse confession.

Reviewing Elflein's testimony regarding D.C.'s cooperation in Essex County, the prosecutor noted,

Again, if a guy is not telling the truth to him, it's not even valuable. He can't bring that . . . in front of a jury for it to blow up in your [sic] face. If someone brings you a pack of lies, if the prosecutor brings a pack of lies, it's going to eventually crumble and blow in our face, and we're not going to accomplish what we intend to do, which is to provide the evidence, information to you.

Regarding Egels's testimony, and his own participation at the parole revocation hearing, the prosecutor reminded the jury that D.C. only "wanted to be out for Christmas," and that he received no other consideration in return for his testimony.

But with the kind of information, kind of testimony, the things that [D.C.] could only have known having talked to [defendant], and brought that to our office, if getting out for Christmas is what it will take to get him to testify in this situation . . . the State, in fact, would do that. And that's the only consideration that [D.C.] received.

Defendant contends that the impact of Egels's and Elflein's testimony, in conjunction with the prosecutor's summation comments, amounted to "[i]mproper vouching," that is "indicating a personal belief in the witness's credibility." He also contends that since it is admitted that D.C. never testified that defendant told him about Sesay's bloody T-shirt on the street, the prosecutor improperly "bolstered [D.C.'s] testimony[,]" that is, he implied that the testimony was "corroborated by evidence known to the government but not to the jury."

We begin by recognizing that the testimony of Caulfield, Elflein, and Egels was inadmissible for the reason now expressed by the State, that is, to "rehabilitate" D.C. On cross-examination, defendant implied that D.C.'s motive for testifying as he did was to secure a benefit to himself. See State v. Holmes, 290 N.J. Super. 302, 312-13 (App. Div. 1996) (commenting on the propriety of such impeachment evidence). Since defense counsel never objected to the witnesses testifying, and the judge never, therefore, made any ruling, we assume the State was permitted to call these three witnesses to rebut that implication, demonstrating that any consideration D.C. received was minimal. See N.J.R.E. 607 (permitting, with limitations, that "for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility . . . ."). However, even in this regard, the testimony had limited probative value since D.C. candidly acknowledged his cooperation was motivated by anticipation of favorable treatment. Since D.C.'s anticipation of favorable treatment was something he acknowledged, evidence that D.C. actually received minimal consideration for his efforts was irrelevant. See Holmes, supra, 290 N.J. Super. at 313 (characterizing the relevancy of impeachment evidence of this nature as follows: "There may exist no express agreement at all that the witness will benefit from testifying favorably for the State, or, alternatively, that the witness will suffer because of failing to do so. All that matters is that the witness subjectively regards himself as vulnerable to government pressure.").

However, even if the testimony of Caulfield, and in particular, Elflein and Egels, was deemed admissible to "rehabilitate" D.C., its scope far exceeded this limited purpose. Taken in conjunction with the prosecutor's summation comments, the admission of the testimony requires reversal.

A witness need not expressly vouch for the credibility of another in order for the testimony to be inadmissible. As the Supreme Court has noted, "the mere assessment [by one witness] of another witness's credibility is prohibited." State v. Frisby, 174 N.J. 583, 594 (2002). When the witness vouching for another is a police officer, "[t]he effect . . . cannot be overstated." Id. at 595; see Neno v. Clinton, 167 N.J. 573, 586-87 (2001) (holding in a civil case that when a police officer implicitly expresses an opinion regarding the testimony of another witness, "[a] jury may be inclined to accord special respect to such a witness").

Because the impact of this testimony must be assessed in light of the comments the prosecutor subsequently made in summation, we note some basic principles concerning the prosecutor's obligation in that regard. "[P]rosecutors occupy a unique position in the criminal justice system and . . . their primary duty is not to obtain convictions but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988) (citing State v. Farrell, 61 N.J. 99, 104 (1992)), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). As the Court recently noted,

[A] prosecutor is afforded considerable leeway to make forceful arguments in summation. Even so, in the prosecutor's effort to see that justice is done, the prosecutor should not make inaccurate legal or factual assertions during a trial. Rather, a prosecutor should confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence. Nor should the prosecutor vouch for the credibility of a witness.

[State v. Bradshaw, 195 N.J. 493, 510 (2008) (citations and quotations omitted) (emphasis added).]

See State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (noting that in regard to comments on a witness's credibility "[a] prosecutor [may] not personally vouch for the witness or refer to matters outside the record [for] support . . . .") (citations omitted), certif. denied, 182 N.J. 148 (2004); State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997) (holding, "It is clearly improper for a prosecutor to give a jury his or her personal opinion regarding a case.").

As we discussed in detail above, Elflein was permitted to testify over objection that D.C.'s information had been "helpful and accurate" to the case he prosecuted in Essex County. Despite the fact that testimony regarding Elflein's thought processes in calling D.C. as a witness was clearly irrelevant, the judge himself asked why Elflein elected to produce him at trial. That permitted Elflein to explain that D.C. knew information about the robberies that could have only been gained from conversations with that defendant.

The factual similarities must have been obvious to the jury, since they heard directly from D.C. how he contacted the authorities in this case to provide information regarding not only defendant, but other inmates he spoke to at the Middlesex County facility. In his summation, the prosecutor told the jury that D.C. was worthy of belief because he could not "know the[] things [he testified to] but for speaking with" defendant. Implicit in his argument was an invitation to the jury to reach the same conclusion that Elflein had reached in the Essex County case, i.e., that D.C.'s testimony was credible because of details that he could only have known from conversations with his fellow inmates.

Among those "things" that D.C. knew in this case was "something really innocuous," which the prosecutor asserted "put[] [D.C.'s information] all together . . . ." The prosecutor stressed that it was this "innocuous" detail, i.e., D.C.'s knowledge of Sesay's bloody T-shirt left at the murder scene, that caused "the Middlesex County Prosecutor's Office" to conclude D.C. "must have talked to somebody," i.e., defendant. The prosecutor told the jury that his office had concluded that D.C. had secured "a jailhouse confession" from defendant. However, as noted, D.C. never testified that defendant ever told him about the T-shirt.

The prosecutor's summation comments went even further. In referencing Elflein's testimony, the prosecutor argued that D.C.'s testimony was only "valuable" to the prosecution if it was "good, credible information." He also told the jury that in deciding to call D.C. as a witness at trial, Elflein faced a dilemma common to prosecutors in general, noting that "[i]f someone brings you a pack of lies, if the prosecutor brings a pack of lies, it's going to eventually crumble and blow in our face, and we're not going to accomplish what we intend to do, which is to provide the evidence, information to you." (emphasis added). We are hard-pressed to view this comment as anything other than a subtle, though nonetheless prohibited, vouching for D.C.'s testimony in the instant case.

Similarly, the prosecutor's reference in summation to Egels's testimony, and his own appearance at D.C.'s parole revocation hearing, subtly implied to the jury that the State had determined D.C. was credible. Egels was permitted to testify in detail regarding his "thought processes" in deciding to continue D.C. on parole, noting the impact that the trial prosecutor's statements regarding his cooperation had on that decision. Egels noted that D.C.'s contacts with the prosecutor's office would be "positive" and help assure that D.C. continued to "fl[y] straight." The prosecutor told the jury that because of the information D.C. "brought . . . to [his] office," he personally assisted in trying to secure D.C.'s release "for Christmas[,]" if that "[wa]s what it w[ould] take to get him to testify in this situation . . . ." Implicit in the argument was the notion that the very person trying defendant for Bass's murder had evaluated D.C.'s credibility and was willing to support him before the parole board.

The jury was likely to accord the testimony of these witnesses "special respect[,]" Neno, supra, 167 N.J. at 586, because of the positions they occupied in our criminal justice system. Caulfield and Elflein were assistant prosecutors from other counties, who, like the trial prosecutor, were duty-bound to assess the merits of a criminal case and, hence, the credibility of potential witnesses. Egels, by the exercise of his official duties, determined whether D.C. remained in custody or was released with conditions. Their testimony became fodder for much of the prosecutor's argument to the jury regarding D.C.'s credibility.

We have also noted that juries will likely accord similar special deference to the comments of the prosecutor. "Prosecutors are the representatives of the State, a position which carries great prestige with jurors. Their statements, as representatives of the State, have a tendency to be given great weight by jurors." Walden, supra, 370 N.J. Super. at 558. In his summation comments regarding this testimony and his own role at D.C.'s parole revocation hearing, the prosecutor suggested to the jury that D.C. should be believed because his knowledge of events could only have come from conversations with defendant. Like Elflein did regarding the Essex County prosecution, so, too, this prosecutor effectively "testified" that he reached a similar conclusion regarding the accuracy of D.C.'s information in this case; having done so, he appeared before Egels to support D.C.'s release. Viewed in its totality, the testimony and summation comments of the prosecutor amounted to an "express[ion] [of] a personal belief or opinion as to the truthfulness of his . . . witness's testimony[,]" State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 2003) (citing State v. Marshall, 123 N.J. 1, 154, 156 (1991)), and that is prohibited.

However, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (citation and quotation omitted).

In this case, we conclude that the testimony of Elflein and Egels, in conjunction with the prosecutor's comments, did substantially prejudice defendant's right to a fair trial. Defendant was not identified at trial as the shooter, and, while portions of the general description of the assailant that Mullin secured from eyewitnesses undoubtedly applied to defendant, other portions did not. For example, Stadler testified that defendant did not wear his hair in braids; Arana's description of the clothing defendant wore as he left the house, presumably to shoot Bass, did not square with that general description. There was no forensic evidence that linked defendant to the crime. The murder weapon was never found, and, although D.C. claimed defendant told him Arana knew where the weapon was hidden, she did not testify to its location.

In short, the State's case rose or fell upon Arana's testimony and defendant's alleged "jailhouse confession" to D.C. We acknowledge that Arana's credibility was vigorously attacked on cross-examination by defense counsel; standing alone, her testimony clearly supplied enough information upon which the jury could have convicted defendant. The same is true regarding D.C.'s testimony. However, for the reasons we have expressed, the State improperly buttressed D.C.'s credibility before the jury.

We cannot eliminate a reasonable doubt that the State's improper vouching for D.C. affected the jury's consideration of his testimony, nor can we divine the synergistic effect the testimony of these two witnesses may have had upon the jury. For those reasons, we must reluctantly reverse defendant's conviction and remand the matter for a new trial.

III.

Because we conclude reversal is required for the reasons already stated, we address defendant's remaining points to provide guidance in the event of a retrial.

A.

Defendant argues that the trial court failed to take necessary steps to limit or sanitize "other crimes" evidence, depriving him of a fair trial and due process. Specifically, defendant contends it was improper to admit evidence that he was imprisoned in 1999; that he was in possession of drugs and a gun upon his arrest in Virginia; that he was confined to administrative segregation pending trial; and that he threatened Arana in an attempt to have her not testify. With the exception of the handgun, defense counsel did not object to the admission of that evidence.

The State argues that the admission of the evidence cannot amount to plain error, in part, because defense counsel wanted to place the evidence before the jury because it supported the attack upon the State's most important witnesses, i.e., D.C. and Arana. For example, the State notes that defense counsel sought to impeach Arana's credibility by arguing that she cooperated with police specifically because drugs were found and defendant refused to accept responsibility for them, thus resulting in her incarceration. Further, the State notes that defense counsel wanted the jury to know defendant was in administrative segregation because it demonstrated that he had little time to spend with D.C.

The State concedes that because there was no objection to much of this testimony, the judge never applied a N.J.R.E. 404(b) analysis as required by State v. Cofield, 127 N.J. 328, 338 (1992). Nevertheless, it argues this evidence was all properly admitted. As to the admission of the handgun found in defendant's possession in Virginia, to which defendant timely objected, the State contends this was not "other crimes" evidence because there was no showing that possession of the handgun was a crime in Virginia, and that the jury clearly understood it was not the murder weapon. It also contends that limiting instructions were not necessary.

N.J.R.E. 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. In Cofield, supra, the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007) (citations omitted).]

Moreover,

even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

[State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403).]

In order to minimize the "inherent prejudice in the admission of other-crimes evidence," the judge must "sanitize the evidence when appropriate" before it is presented to the jury. State v. Barden, 195 N.J. 375, 390 (2008) (citing State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999)). After the admission of such evidence, the judge should clearly instruct the jury on the prohibited and permitted uses for which it may consider the evidence. Ibid; Cofield, supra, 127 N.J. at 341; see also State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.) (recommending that limiting instruction be provided when evidence is admitted, and repeated at the conclusion of the case), certif. denied, 165 N.J. 138 (2000).

Our scope of review of a trial judge's determination on the admissibility of other bad conduct evidence is normally narrow, deferential, and limited to whether the judge mistakenly exercised his discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). However, if the trial court admits evidence of other bad acts without applying the four-step Cofield analysis, no deference is owed to that decision and our standard of review becomes de novo. State v. Darby, 174 N.J. 509, 518 (2002).

We agree with the State that the fact that defendant and Bass were incarcerated together in 1999 was important to demonstrate allegations of motive. Only if the jury understood the ramifications of the fight, i.e., defendant was placed in administrative segregation and denied privileges, could it possibly accept its occurrence, in conjunction with the subsequent fight a few days before the shooting, as motive for the killing. While reference to defendant's administrative segregation while in custody awaiting trial could have been avoided, we doubt that this significantly prejudiced defendant since the jury was aware of when, where, and how D.C. claimed to have gained defendant's trust. Likewise, D.C.'s testimony regarding defendant's admissions that he had others threaten Arana to dissuade her from testifying against him was also clearly admissible because it tended to show defendant's consciousness of guilt. However, even without objection from defense counsel, the judge should have provided a limiting instruction to the jury, clearly explaining the prohibited and permitted uses for this evidence.

The same is true regarding the evidence of the drugs seized in Virginia when defendant and Arana were arrested. We accept what is implicit in the State's argument, i.e., that even if the State did not introduce the evidence, defense counsel would have. Our review of the cross-examination of Arana, and defense counsel's summation comments, convinces us this is so. Of course, this does not explain why the evidence was deemed admissible on the State's case in the first instance. Nevertheless, regardless of how the evidence was admitted, we believe it was incumbent upon the judge to fully explain to the jury how it could be used, or, more importantly, how it could not be used in considering defendant's guilt.

We lastly consider the objection, timely lodged by defendant at trial, to the admission in evidence of the gun found when the police arrested him in Virginia. Initially, we categorically reject the State's argument that since possession of the handgun may not have been criminal conduct under New Jersey or Virginia law, it was not "other crimes" evidence subject to N.J.R.E. 404(b)'s exclusion. The Rule applies to conduct that is not criminal. See Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2009) (noting that the Rule "excludes evidence of other wrongs and of other acts generally when offered for the proscribed purpose").

The State argued at trial that the gun was admissible evidence to corroborate D.C.'s testimony that defendant told him about the police finding the gun at the time of his arrest. The judge deemed not only testimony regarding the finding of the gun, but the actual gun itself, to be admissible under this theory. However, "ordinarily other-crime evidence should not be admitted simply to bolster the credibility of a witness." Darby, supra, 174 N.J. at 520. We see no reason to deviate from the ordinary rule in this case, particularly since we conclude there is no other independent basis for admission.

Furthermore, contrary to the State's assertion that no limiting instruction was necessary because the jury understood the handgun was not the murder weapon, the jury may not have understood that it could not utilize the evidence for a prohibited purpose. In other words, the jury was never told that it could not consider the gun as evidence that defendant had a propensity for carrying firearms, something that was clearly prejudicial. In short, the admission of the .380 caliber handgun found when defendant was arrested in Virginia was error that was further compounded by the failure on the judge's part to provide any limiting instruction.

B.

Defendant contends the judge violated his right to be present for all stages of trial by entering the jury room during deliberations to dismiss the jurors for the day without counsel or himself being present, and without any record of the judge's comments to the jurors. We need only reiterate that we "have repeatedly and clearly condemned judges' ex parte communications with deliberating juries." State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005); see State v. Walkings, 388 N.J. Super. 149, 158 (App. Div. 2006). Such a procedure should not be employed again.

Although there was no objection at trial to the lack of a specific charge on identification, defendant now contends this failure requires reversal. "[W]hen identification is a fundamental or an essential issue at trial," a defendant is entitled to have the jury charged on the issue. State v. Robinson, 165 N.J. 32, 41 (2000). Under certain circumstances, the failure to do so will amount to plain error. State v. Pierce, 330 N.J. Super. 479, 490 (App. Div. 2000).

In this case, none of the eyewitnesses to the shooting could identify defendant. Daniels, who reluctantly identified defendant to the police, recanted that identification before the jury. Instead, the case turned on Arana's rendition of defendant's statements and actions before and after the shooting, and the jailhouse confession defendant allegedly made to D.C. As to both of those witnesses, identification was not an issue, and we do not think it was plain error not to provide the model jury instruction on identification. That being said, however, we cannot divine what evidence the State intends to produce at retrial. Therefore, we leave any decision on the issue to the trial judge after consideration of the full evidential record.

Defendant next contends it was plain error to permit Sadler to testify before the jury while dressed in prison garb. Sadler specifically elected not to change into civilian clothes that were available. Although called as a State's witness, Sadler also provided information that helped defendant to the extent he described defendant's hairstyle contrary to that provided by eyewitnesses.

Since the trial ended, this issue has been clarified by the Supreme Court's decision in State v. Kuchera, 198 N.J. 482 (2009). There the Court set out the appropriate procedure and analysis to be applied by the trial judge:

[I]n some instances it may not be practical to provide wardrobe changes to prison inmates; or a particular inmate may present an extraordinary risk of flight or danger; or an inmate may refuse to wear a change of clothing. In those and other instances, the prosecution should request relaxation of the presumptive rule and articulate a basis for the exception sought. Trial courts should assess the reason proffered and, in exercising their sound discretion, make a determination in the individual case, and place their reasons on the record. If the trial court allows a prosecution witness to testify in prison garb, the trial court must instruct the jury that the witness's attire should play no role in the jury's primary determination of weighing the evidence and determining the defendant's guilt.

[Id. at 501.]

The judge shall utilize these procedures during any retrial.

Defendant raises for the first time on appeal an objection to the judge's instruction regarding his election not to testify. We do not agree that the judge's minor deviations from the model jury charge amounted to plain error. See State v. Burns, 192 N.J. 312, 341 (2007) ("In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous . . . to convince the [reviewing] court that of itself the error possessed a clear capacity to bring about an unjust result.'") (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Should the circumstances present themselves again at retrial, however, it would be prudent for the judge to strictly adhere to the language of the model criminal jury charge.

Defendant objected at trial to the admission into evidence of two autopsy photographs, one of the victim's skull, the other of his brain removed from the skull. As he did below, he now argues that the photographs "w[ere] unnecessary, gruesome, and highly prejudicial . . . ." Having seen the photographs that are part of the appellate record, we disagree.

We begin by noting that our standard of review requires us to give substantial deference to the trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998). The decision to admit photographs rests with the sound discretion of the trial judge. State v. Johnson, 120 N.J. 263, 297 (1990). Here, the State argued that the photographs provided visual confirmation of the entry wound, and the bullet's path through Bass's brain. This, in conjunction with the medical examiner's testimony, corroborated the State's version of events, to which several eyewitnesses had testified. We do not conclude that the trial judge mistakenly exercised his discretion in admitting the photographs, and, at retrial, we commend the issue to the trial judge's broad discretionary powers should it present itself again.

Lastly, we view the arguments defendant raised in his pro se brief to be without merit and requiring no further comment in this opinion. R. 2:11-3(e)(2).

Reversed and remanded for a new trial.

 

Arana believed that the obstruction charge was also dismissed, though a police officer testified that she was found guilty of the charge in Virginia.

Indeed, as defendant points out, it is highly unlikely defendant, who was alleged to have fled from the scene immediately following the shooting, would have had knowledge of the bloody T-shirt to convey to D.C. in the first place.

(continued)

(continued)

38

A-2939-05T4

January 7, 2010