STATE OF NEW JERSEY v. NATHAN G. FOWLKES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1588-05T31588-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHAN G. FOWLKES,

Defendant-Appellant.

 

Submitted November 14, 2007 - Decided

Before Judges Skillman and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 98-04-0409-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In April 1998, a Middlesex County Grand Jury indicted defendant, Nathan Fowlkes, on thirteen charges, including two counts of first-degree robbery. He was tried before a jury in March 1999, which found him guilty of all charges. The court sentenced him to an aggregate fifteen-year prison term, with an eighty-five percent period of parole ineligibility subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, we affirmed, State v. Fowlkes, No. A-2958-99 (App. Div. Apr. 12, 2002), and the Supreme Court denied defendant's petition for certification. State v. Fowlkes, 177 N.J. 492 (2003).

Defendant now appeals from a September 21, 2005 order denying his petition for post-conviction relief. On appeal, he raises two legal arguments:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE SINCE TRIAL COUNSEL FAILED TO REQUEST LESSER INCLUDED CHARGES OF SECOND DEGREE ROBBERY AND APPELLATE COUNSEL FAILED TO RAISE THE IMPROPER JURY CHARGE ON APPEAL.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.

We have carefully considered these arguments in light of the record and the prevailing law and conclude that they are without sufficient merit so as to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Defendant has not established a prima facie case of ineffective assistance of either trial counsel or appellate counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Consequently, we affirm the order denying defendant's petition for post-conviction relief. We add only the following brief discussion of his claim that he was entitled to a jury instruction for second-degree robbery and his claim that the trial court should have provided the jury with a cross-racial identification instruction.

The record shows that sometime after midnight on January 11, 1998, defendant and his co-defendant, Shadee Trotman, forced their way into the home of Rutgers University students Jennie Robb and Beryle Chandler. Robb and Chandler were in their bedrooms on the second floor of the house, but Chandler's fiancé, Paul Haas, and Robb's friend, Peter Toth, were downstairs, when Haas heard the doorbell ring. Haas testified that when he answered the doorbell, he looked out the door to the front porch where defendant and Trotman were standing. Trotman was brandishing a handgun. After Haas slammed the door and locked it, defendant and Trotman broke into the premises and screamed at Haas, "get down," and "where's the money?" Haas gave the men a ten dollar bill as he was being beaten and kicked by Trotman, who continued to brandish the weapon. Defendant ran into the kitchen and began beating and kicking Toth. Defendant and Trotman switched victims a number of times. Subsequently, defendant and Trotman ran from the premises with Haas's ten dollars.

Given these facts, we find no basis to support defendant's contention that trial counsel was ineffective for failing to request a second-degree robbery charge. Robbery is a crime of the second-degree, "except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. For defendant to have been entitled to a jury charge for second-degree robbery, the evidence must have presented "a rational basis on which the jury could [have] acquit[ted] . . . defendant of the greater charge and convict[ed] [him] of the lesser [charge]." State v. Brent, 137 N.J. 107, 117 (1994); see also N.J.S.A. 2C:1-8e ("court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense").

Here, no such rational basis existed to warrant a second-degree robbery instruction. Defendant and Trotman broke into the house together while Trotman brandished a handgun. Both defendant and Trotman beat and kicked the victims. Both defendant and Trotman demanded money from Haas while Trotman held the handgun. In other words, defendant and Trotman acted together in threatening the victims with the immediate use of a handgun. The evidence provided a rational basis for first-degree, not second-degree, robbery.

Finally, we briefly address defendant's claim that trial counsel was ineffective for failing to request a cross-racial identification charge. On direct appeal, we concluded that the judge was not required to sua sponte instruct the jury on the possible unreliability of cross-racial identification in that the trial was concluded before the New Jersey Supreme Court's decision in State v. Cromedy, 158 N.J. 112 (1999). State v. Fowlkes, supra, slip op. at 13-14. In Cromedy, the Court stated that a cross-racial identification instruction should only be given when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132. The Court recognized that a "simple fact pattern of a white victim of a violent crime at the hands of a black assailant would not automatically give rise to the need for a cross-racial identification charge." Ibid.

Defense counsel was not ineffective for failing to anticipate the Cromedy decision. At the time of defendant's trial, the admissibility of expert testimony as to cross-racial identification had not yet been endorsed in New Jersey, and cases from other jurisdictions did not support the position that the charge should be given. Id. at 118.

Moreover, though here, defendant and his victims were of different races, in his brief he has not explained why a cross-racial identification charge was warranted. He simply concludes that the failure to request a cross-racial identification charge by trial counsel, "combined with failure to comment on other legal charges to the jury, resulted in [defendant's] receiving ineffective assistance of counsel." Simply put, defendant points to no evidence, aside from the differences in the race of the perpetrators and their victims, to support his argument that a cross-racial identification charge was warranted.

Affirmed.

 

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A-1588-05T4

December 7, 2007