State v. Fowler

453 N.J.Super. 499

182 A.3d 971

STATE of New Jersey, Plaintiff–Respondent,

v.Joey J. FOWLER, a/k/a Joey Williams, Shaquan Williams, Shaquan Harris, and Joey Flower, and Jamil L. Hearns, a/k/a Khalil Hearns, Jay L. Love, Jayson Love, James Holmes, and Jameel Hearns, Defendants–Appellants.

DOCKET NO. A–3393–14T3

A–4789–14T3

Superior Court of New Jersey, Appellate Division.

Argued A–3393–14 and Submitted A–4789–14 November 29, 2017

Decided March 8, 2018

Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant Joey Fowler (Joseph E. Krakora, Public Defender, attorney; Marcia Blum, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Jamil Harris (Michael Confusione, Designated Counsel, on the brief).

Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Thomas K. Isenhour, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, of counsel and on the briefs.

Appellant Joey J. Fowler filed a pro se supplemental brief.

Before Judges Alvarez, Nugent, and Currier.¹

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

Tried to a jury, co-defendants Joey Fowler and Jamil Hearns were convicted of first-degree murder, N.J.S.A. 2C:11–3(a)(1) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a) (count three). Only Hearns was named in count four of the indictment, which charged hindering apprehension or prosecution, N.J.S.A. 2C:29–3(b)(4), and the jury convicted him of that offense as well. We now consolidate defendants' appeals for decision, vacate the convictions because of errors in the jury charge, and remand for a new trial.

We glean the facts from the trial record. During the early morning hours of March 5, 2011, defendants were standing outside a crowded bar. Some weeks prior, Fowler had reported being carjacked by several men, including the victim, Donnell Johnson. Johnson and his cousins, Algere Jones and Rashon Jenkins, were socializing at that same establishment. At approximately 2:40 a.m., Johnson left the bar, and Jones, who had done so earlier, pulled alongside him in his vehicle.

Jones testified that as Johnson leaned into the car while the men talked, Jones saw Hearns approach through his rearview mirror. Jones knew Hearns from having grown up in the same neighborhood. Jones heard gunshots and saw a gun in Hearns's hands. Johnson initially ran, then got into Jones's car. Jones drove Johnson to a hospital emergency room; Johnson died later from gunshot wounds. He had been struck twice, once by a bullet to the leg, and by a second bullet to the back. The gunshots traveled in an upward trajectory.

Elizabeth Police Department Officer James Malone, Jr., was working security that night outside the bar. At approximately 2:45 a.m., he heard five or six gunshots in rapid succession and immediately drove towards the sound. Malone saw a man dressed in a black hooded sweatshirt, later identified as Hearns, running from the scene while holding something in his right hand.

Hearns jumped into a silver Infiniti. Fowler, who was standing by the driver's side door, got into the vehicle and quickly pulled away from the curb. Malone immediately stopped the car and saw Hearns reaching with his right hand towards the back seat, placing a gun in the rear center console. When told to raise their hands, all the occupants, including Fowler's nephews who were in the back seat, complied. Hearns, however, repeatedly tried to get out of the vehicle while Malone held the door shut. Hearns was arrested when additional officers arrived.

Hearns testified that while he was passing the time in front of the bar, he was approached by Jones, who demanded repayment on the spot of a $5000 loan. Hearns offered to give Jones all the cash in his pocket, $1300. Jones refused. Johnson, who was standing next to Jones, tried to convince Jones to accept the partial payment.

Hearns said after rejecting his offer, Jones pulled out a gun and the two men began to wrestle. Hearns grabbed Jones's arm and wrist, and began to bang the gun on his knee in an effort to knock it out of Jones's hand. As the gun hit his knee, it fired. The bullets ricocheted off the ground and into a parked car. When the gun actually fell to the ground, Hearns grabbed it and ran. After Hearns testified in his defense, the State presented two rebuttal witnesses, another officer and Tywan Cobb.²

Cobb said he had spoken to Hearns two or three times daily over a couple of months. Hearns told him he shot someone twice, and that he was carrying the weapon that evening for that purpose. Hearns told Cobb he intended to claim there had been a "tussle" for money, although none had taken place. Hearns also told him he changed his clothes that night from a bright hoodie into a dark one before the shooting, a fact corroborated by the video film from a camera outside the bar.

The officer who testified as a rebuttal witness said that an empty liquor bottle of the brand Hearns claimed he bought that night at the bar immediately before the shooting was found on the floor of Fowler's car. Contrary to Hearns's testimony, no full bottle of that liquor was in the vehicle. The officer also said she did not see any ricochet or other impact marks in any photos of the shooting scene.

Hearns's attorney asked the judge to instruct the jury on self-defense. The judge refused, reasoning that Hearns's defense to the shooting was not self-defense, but rather accident.

The judge invited counsel to submit an "accident" instruction; the record does not indicate if any such instruction was submitted. The judge also said that in any event, no instruction was necessary because a finding of purpose to kill, necessary for a murder conviction, would run counter to any theory that the death occurred as a result of accident. Thus, he reasoned, if the jury believed Hearns's testimony, they would acquit him and Fowler, who was charged with murder as an accomplice.

Counsel and the court further agreed no lesser-included offenses should be charged because, as the judge explained, "if you believe [ ] Hearns' version of what happened, there's no criminal state of mind for any murder, not for any of the lesser includeds.

So where is the, you know—I don't see any version of facts that would support an aggravated manslaughter—the state of mind, aggravated or reckless." The prosecutor agreed, and the judge went on to state: "Everyone is agreeing, no lesser includeds?" Not hearing any response, the judge charged only murder.

Fowler raises the following issues for our consideration:

POINT I

THE COURT ERRED IN REFUSING TO INSTRUCT ON SELF–DEFENSE AND ACCIDENT DESPITE ITS ACKNOWLEDGMENT THAT THE CODEFENDANT TESTIFIED THAT THE VICTIM WAS SHOT BY ACCIDENT IN THE COURSE OF THE CODEFENDANT'S ATTEMPT TO DEFEND HIMSELF.

POINT II

THE COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO CROSS–EXAMINE ALGERE JONES IN ORDER TO REBUT THE STATE'S MOTIVE EVIDENCE.

POINT III

THE COURT ERRED IN FAILING TO GIVE A COOPERATING–WITNESS INSTRUCTION WITH RESPECT TO ALGERE JONES.

POINT IV

THE COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL AFTER THE JURY HEARD TESTIMONY THAT DEFENDANT HAD PREVIOUSLY BEEN INCARCERATED.

POINT V

THE CONVICTION FOR POSSESSION OF A GUN FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE MURDER.

POINT VI

THE 50–YEAR TERM IMPOSED ON DEFENDANT, WHO WAS CHARGED AS AN ACCOMPLICE, IS FIVE YEARS GREATER THAN THE SENTENCE IMPOSED ON THE CODEFENDANT, WHO WAS THE PRINCIPAL, AND IS EXCESSIVE.

In a pro se brief, Fowler asserts the following points:

POINT I:

THE TRIAL COURT PREJUDICED THE DEFENDANT BY REFUSING TO INSTRUCT ON SELF DEFENSE TO THE JURY. BY SUCH ERROR, THE DEFENDANT WAS DEPRIVED OF HIS RIGHT OF A FAIR TRIAL, BECAUSE THE RECORD REVEALS SEVERAL TESTIMONIES AT TRIAL ONLY ATTRIBUTED TO CODEFENDANT'S LIABILITY OF ACTS IN SELF DEFENSE REQUIRING REVERSAL OF THE CONVICTION (Partially raised below).

POINT II:

APPELLANT MOVES FOR A REMAND TO THE TRIAL COURT, TESTIMONY ABOUT DEFENDANT'S PRIOR INCARCERATION PREJUDICED HIS RIGHT TO A FAIR TRIAL (Partially raised below).

POINT III

APPELLANT MOVES FOR A REMAND TO THE TRIAL COURT, THE TESTIMONY OF TYWAN COBB UNFAIRLY PREJUDICED THE DEFENDANT (Partially raised below).

POINT IV

APPELLANT MOVES FOR A REMAND THE TESTIMONY OF ALGERE JONES WAS RESGESTAEEVIDENCE IN NATURE, AND SHOULD HAVE BEEN ALLOWED UNDER N.J.R.E. 803(c)(3), TO DEFEAT THE STATE'S THEORY ON MOTIVE, WITH THE FACTS, THEREFORE DEFENDANT AT LOWER COURT WAS DEPRIVED A FAIR TRIAL (Partially raised below).

POINT V

APPELLANT MOVES FOR A REMAND TO THE TRIAL COURT TO CONDUCT A GROSS HEARING SINCE THE CREDIBILITY OF A WITNESS CLEARLY AND CONVINCINGLY CONSTITUTES A DENIAL OF JUSTICE, MOTIVATED REQUIRES CONVICTION BE OVERTURNED AND VACATED DUE TO AN UNFAIR TRIAL WHICH VIOLATES DEFENDANT'S RIGHTS GUARANTEED BY THE U.S. CONST. AMENDS. V & XIV, § 1; N.J. CONST. ART. I, PAR. 1 (Partially raised below).

Hearns raises the following issues:

Point 1

The trial court erred in denying defendant's request to charge self-defense, and in failing to sua sponte charge aggravated and reckless manslaughter as lesser included offenses to murder; the trial court erred in denying defendant's motion for a new trial on this ground (partially raised below).

Point 2

The trial court erred in denying defendant's motion to dismiss the indictment because of violation of his speedy trial right.

Point 3

The trial court erred in not granting severance during trial, sua sponte, or in not granting defendant Hearns a new trial on this ground.

Point 4

Reference to the co-defendant Fowler's prior incarceration caused an unfair trial for both defendants during the joint trial below.

Point 5

Defendant's right to remain silent was violated.

Point 6

The prosecutor placed improper hearsay before the jury that violated defendant's state and federal right to confront the witnesses against him.

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