STATE OF NEW JERSEY v. ANTHONY C. FOWLKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY C. FOWLKES,

a/k/a ANTHONY C. YOGEL,

Defendant-Appellant.

___________________________________

June 15, 2015

Submitted October 27, 2014 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-09-0939.

Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, on the brief).

Sean F.Dalton, GloucesterCounty Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Anthony C. Fowlkes appeals his February 1, 2013 judgment of conviction, claiming that it was error to mention his arrest warrant at trial. He also challenges his sentence. We affirm.

I.

The evidence at trial demonstrated the following. At 1:40 a.m. on May 5, 2011, Paulsboro Officer Kenneth Ridinger was driving on patrol when he saw defendant on foot. Ridinger was "aware of a warrant for [defendant's] arrest." Ridinger pulled up to defendant and told him to stop and move against the patrol car. Defendant asked why. Ridinger again told defendant to move against the car, and defendant asked "what for?" As Ridinger walked toward him, defendant ran and discarded a vial and a cigarette case. Ridinger picked them up and pursued defendant, yelling from ten yards behind that defendant was under arrest. Defendant continued to flee through several properties, going over fences. After a 150 to 200-yard chase through four or so properties, defendant fell against a fence. Ridinger caught up to him.

Defendant refused Ridinger's command to offer his hands for handcuffing, and instead put his hands under his body. Nonetheless, Ridinger was eventually able to arrest him. The subsequent search of defendant revealed more vials, syringes, spoons, razor blades, and baggies.

The jury convicted defendant of fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2), third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and third-degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10(a)(1). The sentencing judge merged the PCP count into the cocaine count. Defendant was sentenced to five years in prison for the cocaine count, and a concurrent eighteen months for resisting arrest, as well as fines and other penalties.

Defendant appeals, raising the following arguments

POINT I THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT AN OUTSTANDING WARRANT FOR MR. FOWLKES WITHOUT ISSUING A TIMELY CURATIVE INSTRUCTION, THEREBY DEPRIVING MR. FOWLKES OF HIS RIGHT TO A FAIR TRIAL AND TO DUE PROCESS OF THE LAW. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10. (Not Raised Below)

POINT II THIS CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING COURT DID NOT CONSIDER MITIGATING FACTORS SUPPORTED BY THE RECORD AND BECAUSE THE SENTENCE IS EXCESSIVE.

II.

During direct examination, Officer Ridinger was asked, "were you aware of a warrant for [defendant's] arrest." Ridinger replied, "Yes, I was." On cross-examination, defense counsel reiterated that defendant twice had asked why he was being commanded to come toward the police car. Counsel also questioned how far away defendant was when Ridinger yelled he was under arrest. On redirect examination, the prosecutor asked: "Why didn't you advise him when you first came into contact with him that he was under arrest?" Ridinger responded: "It had to do with the type of warrant that he had."1

Defendant did not object to at least the first mention of the warrant. "'Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Patterson, 435 N.J. Super. 498, 507 (App. Div. 2014) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). "'However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is "clearly capable of producing an unjust result."'" Ibid. (quoting State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2)). We must hew to that standard of review.

Here, the existence of the warrant was relevant because it was the sole reason Officer Ridinger stopped defendant. As our Supreme Court has ruled, "the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, "the mention of a warrant gave the reason for [Officer Ridinger] placing defendant under arrest." State v. Williams, 404 N.J. Super. 147, 168 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010). The need to mention the warrant was highlighted by defense counsel's cross-examination, and by his closing argument that defendant "twice asked why" and that defendant "had no idea why he was under arrest or why he was being told to come over to the car."

Defendant argues the prosecutor's mention of the warrant was prejudicial because it suggested defendant engaged in "other crimes, wrongs, or acts," N.J.R.E. 404(b), and that a judge believed criminal conduct had occurred. He argues such mention was barred under State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999). However, "the Supreme Court squarely rejected this argument in State v. Marshall." Williams, supra, 404 N.J. Super. at 167. "Insofar as this court's rationale in Milton and Alvarez may conflict with Marshall, we are of course required to follow the Supreme Court's decision in Marshall." State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001).

In addition, we have found Milton and Alvarez "factually distinguishable" where the "reference to an arrest warrant did not imply that the State had any evidence in addition to that which was heard by the jury." Williams, supra, 404 N.J. Super. at 167-68; McDonough, supra, 337 N.J. Super. at 33-34. Here, the mention of the arrest warrant did not suggest the State had any other evidence of the crimes before the jury. In any event, the Supreme Court's ruling in Marshall was not conditioned on that distinction. Marshall, supra, 148 N.J. at 239-40.

Rather, the Supreme Court in Marshall definitively rejected "the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt." Ibid. The Court was "satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant." Id. at 240. The same principles apply to an arrest warrant. Williams, supra, 404 N.J. Super. at 168.

Here, the trial judge properly instructed the jury

You heard testimony in this case, ladies and gentlemen, that the Defendant was the initial contact with the Defendant was resulting from a warrant . . . .

[T]he fact that the Defendant had a warrant doesn't necessarily mean that he's a bad person and you shouldn't draw any adverse inferences from that. Warrants issue for any number of reasons.

Yours truly may have had a warrant against him at one point in time. I don't know but it's possible because I missed paying a traffic ticket one time and, frankly, if you are late with a payment on a traffic ticket, a warrant will issue.

If you're sick and can't make it to court on a date that a court date is scheduled and don't communicate with the court, that judge issues a warrant. So warrants can be issued for any number of things that are relatively innocuous.

All we know is that there was a warrant, from the testimony of the officer, should you decide to accept it, is that there was a warrant and that he chose to exercise the or to effect that warrant.

To cause an arrest because there's a warrant, which is essentially an order for any law enforcement officer to take someone into custody.

So don't speculate because of the fact there was testimony on a warrant that it means that the Defendant's some nefarious character of any sort. There's absolutely that would be pure speculation and not appropriate in this case at all.

Defendant does not dispute the appropriateness of this cautionary instruction, the outline of which counsel approved before trial began. Defendant did not object to the instruction at the jury charge conference. Indeed, defense counsel anticipated the instruction in his closing argument, telling the jury: "Just because there was a warrant out doesn't mean that you should speculate as to why the warrant wa[s] out. It could be for a missed court date or a missed fine or something innocent or whatever. You're not to speculate on that." The prosecutor similarly stated that defendant's warrant "could be for not paying a fire ticket, where he parked too close to a fire hydrant. You're not to speculate about that, like [defense counsel] said."

Defendant argues the court's instruction was not timely, and should have been given immediately after Officer Ridinger mentioned the warrant. However, defendant failed to make such a request, either before trial, when the instruction was first discussed, or when Ridinger testified. Indeed, defendant's counsel in closing alerted the jury that "the Judge will tell you how to use [the] information" that Ridinger "knew [defendant] had a warrant."

Moreover, the period between Officer Ridinger's testimony and the cautionary instruction was relatively brief. After one more minute of testimony by Ridinger, and twenty-five minutes of testimony from the evidence custodian and the forensic expert, the jury was excused, had lunch, and heard brief closing arguments before the court's final charge, which was given between three and four hours after Ridinger's comments. During this time the jury was under instruction not to form opinions or discuss the case. There is no basis for defendant's conjecture that the jury speculated about the warrant before receiving the cautionary instruction, and "[w]e presume the jury followed the court's instructions" not to do so when it subsequently deliberated. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); see Patterson, supra, 435 N.J. Super. at 505-06, 511 (instruction after closing arguments sufficient to cure reference during testimony).

In any event, Officer's Ridinger's two references to the warrant were "fleeting," and the warrant was not mentioned again except in the cautionary instructions from court and counsel. Williams, 404 N.J. Super. 147, 168-169 (App. Div. 2008). Defendant did not object to the mention of the warrant, the court's instruction, or the timing of the instruction. We "'infer from the failure to object below that in the context of the trial [any] error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471 (2002) (quoting State v. Macon, 57 N.J. 325, 333 (1971)). Defendant has failed to show plain error.

III.

Defendant next challenges his sentence. First, he contends the court should have granted his request to find mitigating factors one and two, namely that "defendant's conduct neither caused nor threatened serious harm," and that "defendant did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(1)-(2). Defendant notes he simply possessed only 1.0 gram of cocaine and 0.8 grams of PCP.

We have held mitigating factors one and two apply where a defendant's "possession of a single baggie containing .33 grams of cocaine . . . . neither caused nor threatened serious harm nor did he contemplate that it would." State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002). We need not decide whether defendant's larger quantity of drugs and drug paraphernalia would alone be a sufficient basis to reject these mitigating factors, because defendant's criminal conduct was not limited to drug possession.

Defendant was also convicted of "purposely" resisting arrest by flight "to prevent a law enforcement officer from effectuating an arrest." N.J.S.A. 2C:29-2(a)(2). Attempting to prevent an arrest can threaten serious harm to the justice system's ability to function, and waste its resources. Moreover, resisting arrest and flight can pose a risk of serious physical harm to law enforcement officers and others.

Here, defendant's late night flight through yards and over fences threatened serious harm to Officer Ridinger. It also posed a risk of accidents, as evidenced when defendant fell against a fence, and of injury to the officer. Moreover, defendant's flight and resistance not only prevented Ridinger from effecting the arrest safely and quickly, but caused the summoning of six other officers from three police departments to aid Ridinger and prevent defendant's escape. Finally, defendant's flight threatened to thwart the execution of a judicial warrant, which was for contempt and for a parole violation. Such defiance of the justice system, diversion of its resources, and danger to the officers were themselves sufficient bases not to find mitigating factors one or two. Accordingly, the sentencing judge properly "didn't find any mitigating factors."

Second, defendant objects to the court's imposition of a five-year sentence, the maximum for a third-degree offense. N.J.S.A. 2C:43-6(a)(3). However, defendant was being sentenced for two third-degree offenses, for which the State sought consecutive sentences. The court found aggravating factors three, six, and nine, and no mitigating factors. See N.J.S.A. 2C:44-1(a)(3), (6), (9). The court gave substantial weight to defendant's "very, very significant" criminal history. Defendant had at least nine Superior Court convictions, including a conviction for drug distribution in a school zone, and multiple convictions for conspiracy, drug possession with intent to distribute, and drug possession. He also had numerous Municipal Court convictions, three parole violations, one parole violation, and an escape. The court gave substantial weight to the risk that defendant would commit another offense, and especially to the need for specific deterrence because defendant was a repetitive offender.

"Appellate review of a criminal sentence is limited" and "deferential." State v. Bolvito, 217 N.J. 221, 228 (2014). We must decide "whether there is a 'clear showing of abuse of discretion,'" and must affirm unless

(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not "based upon competent credible evidence in the record;" or (3) "the application of the guidelines to the facts" of the case "shock[s] the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

We find no such error in the five-year "flat" sentence here.

1 The prosecutor then approached the bench, explaining to the court that this warrant had been posted on the National Crime Information Center (NCIC) system, that it gave Officer Ridinger the right to arrest, but that the issuing jurisdiction had to be contacted to confirm it wanted defendant taken into custody. Defense counsel stated it was irrelevant whether Ridinger had a reason to say defendant was under arrest. The court told the prosecutor that further inquiry might reveal the substance of the warrant, and advised the prosecutor to stay away from that area. Following that advice, the prosecutor made no further inquiry about the warrant.