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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:394(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. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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, 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
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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).]

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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.

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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
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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;

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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,

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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
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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

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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

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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

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