STATE OF NEW JERSEY VS. BRIAN FOWLKES (04-10-1524 AND 11-02-0295, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5055-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN FOWLKES,

Defendant-Appellant.
______________________________

Submitted January 22, 2020 – Decided February 20, 2020

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 04-10-
1524 and 11-02-0295.

Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).

Christopher L.C. Kuberiet, Acting Middlesex
Prosecutor, attorney for respondent (Joie D. Piderit,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant appeals from an order entered by the Law Division on May 11,

2018, which denied his petition for post-conviction relief (PCR). We affirm.

I.

In October 2004, a Middlesex County grand jury returned Indictment No.

04-10-1524, charging defendant with first-degree murder of Hassan Bass,

N.J.S.A. 2C:11-3(a)(1) or (2) (count one); and second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two). Defendant

was tried before a jury and found guilty of both offenses. Defendant appealed

from the judgment of conviction. We reversed and remanded for a new trial.

State v. Fowlkes, No. A-2939-05 (App. Div. Jan. 7, 2010) (slip op. at 38).

In February 2011, a grand jury returned superseding Indictment No. 11-

02-0295, which charged defendant with first-degree murder of Hassan Bass,

N.J.S.A. 2C:11-3(a)(1) or (2) (count one); fourth-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(4) (count two); second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-

degree witness tampering, N.J.S.A. 2C:28-5(a) (count five).

A-5055-17T4
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 The trial court granted the State's motion to disqualify defendant's

attorney, finding that his continued representation of defendant would create a

potential conflict of interest and an appearance of impropriety. A new attorney

was assigned to represent defendant. The court also dismissed counts two and

five.

Defendant was tried before a jury on the remaining counts. At the trial,

the State presented evidence that on May 22, 2004, a masked gunman fatally

shot Bass on a street corner in New Brunswick. The State's case against

defendant consisted primarily of testimony by C.A., who was defendant's

girlfriend, and D.C., a longtime jailhouse informant with a lengthy criminal

record.1 They both testified that defendant had admitted shooting Bass.

The jury found defendant guilty on counts one, three, and four.

Thereafter, the court sentenced defendant on count one to life imprisonment,

without parole eligibility. The court also merged counts three and four, and

sentenced defendant on count four to a concurrent prison term of five years, with

three years of parole ineligibility.

Defendant appealed from the judgment of conviction and appellate

counsel raised the following arguments:

1
We use initials to identify these and other individuals involved in this matter.
A-5055-17T4
3
POINT I
IN VIOLATION OF THIS COURT'S RULING ON
APPEAL OF THE FIRST TRIAL THAT IT WAS
ERROR TO ADMIT A GUN THAT WAS NOT THE
MURDER WEAPON SOLELY TO SUPPORT THE
JAILHOUSE-SNITCH'S CREDIBILITY, THE GUN
WAS AGAIN ADMITTED ON RETRIAL SOLELY
TO SUPPORT THE JAILHOUSE-SNITCH'S
CREDIBILITY.

POINT II
THE ADMISSION OF FOWLKES' PURPORTED
CONFESSION, ELICITED BY AN UNDISCLOSED
GOVERNMENT INFORMANT AFTER FOWLKES
WAS INDICTED AND WHILE HE WAS IN
CUSTODY, VIOLATED HIS RIGHT TO THE
ASSISTANCE OF COUNSEL AND SHOULD HAVE
BEEN EXCLUDED. (Not Raised Below).

POINT III
FOWLKES WAS PREJUDICED BY THE ABSENCE
OF A COOPERATING-WITNESS INSTRUCTION
TELLING THE JURY THAT IT WAS REQUIRED TO
GIVE CAREFUL SCRUTINY TO THE JAILHOUSE-
SNITCH'S TESTIMONY. (Not Raised Below).

POINT IV
THE PROSECUTOR'S STATEMENT IN
SUMMATION THAT "THE STATE DOESN'T
BELIEVE DEFENDANT" AND HER ATTEMPT TO
VOUCH FOR THE SNITCH BY
MISCHARACTERIZING HIS TESTIMONY
CONSTITUTED PREJUDICIAL MISCONDUCT.
(Not Raised Below).

POINT V
THE COURT ERRED IN MERGING THE TWO GUN
OFFENSES TOGETHER; THE CHARGE OF

A-5055-17T4
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 POSSESSION OF A GUN FOR AN UNLAWFUL
PURPOSE SHOULD HAVE MERGED WITH THE
MURDER. (Not Raised Below).

POINT VI
THE SENTENCE OF LIFE WITHOUT PAROLE IS
ILLEGAL.

POINT VII
BECAUSE DEFENDANT HAS CONTINUOUSLY
BEEN IN CUSTODY FOR THIS OFFENSE SINCE
THE DATE HE WAS ARRESTED, HE SHOULD
HAVE RECEIVED CREDIT FROM THE DATE HE
WAS ARRESTED TO THE DATE HE WAS
RESENTENCED FOLLOWING HIS [SECOND]
CONVICTION.

Defendant filed a pro se supplemental brief, in which he argued:

POINT I
THE PROSECUTOR ALLOWED TESTIMONY SHE
ELICITED AND KNEW TO BE FALSE GO
UNCORRECTED WHILE LATER CAPITALIZING
OFF OF IT DURING HER SUMMATION, IN
SHOWING A MANIFEST DENIAL OF JUSTICE;
COMMITTED MISCONDUCT SO EGREGIOUS, IT
VIOLATED FOWLKES' RIGHTS TO DUE PROCESS
AND [A] FAIR TRIAL.

POINT II
[THE] TRIAL COURT COMMITTED PREJUDICIAL
ERROR[] WHEN IT ADMITTED TESTIMONY,
WHICH SHOULD HAVE BEEN EXLCUDED IN
ACCORDANCE WITH STATE v. COFIELD, 127
[N.J.] 328 [(1992)], WITHOUT GIVING ANY
LIMITING OR CURATIVE INSTRUCTIONS TO
THE JURY, INFRINGING ON FOWLKES' DUE
PROCESS AND RIGHT TO A FAIR TRIAL.

A-5055-17T4
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 We affirmed defendant's convictions, reversed the sentences, and

remanded the matter to the trial court for re-sentencing. State v. Fowlkes, No.

A-3027-12 (App. Div. Feb. 2, 2016) (slip op. at 22). After our decision, the trial

court resentenced defendant.

The court merged count three with count one and sentenced defendant to

a term of life imprisonment, with thirty years of parole ineligibility. On count

four, the court sentenced defendant to a five-year prison term with three years

of parole ineligibility, to be served concurrently to the sentence on count one.

Thereafter, the Supreme Court denied defendant's petition for certification.

State v. Fowlkes, 225 N.J. 339 (2016).

II.

In August 2016, defendant filed a pro se petition for PCR in the Law

Division alleging he was denied the effective assistance of trial and appellate

counsel. The trial court appointed counsel for defendant, and PCR counsel filed

a brief in support of the petition. The PCR court later heard oral argument in

the matter and placed its decision on the record.

The court noted that defendant alleged he was denied the effective

assistance of counsel because his attorney failed to: address an alibi witness;

seek to exclude D.C.'s testimony; request an instruction regarding the testimony

A-5055-17T4
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of a cooperative witness; object to the State's summation; request merger of the

weapons offenses; seek a Wade2 hearing on identification; and obtain a

surveillance video.

Defendant also argued that his right to due process was violated by

testimony regarding a weapon; trial counsel's cumulative errors made the trial

unfair; and his rights under Miranda3 were violated because he was questioned

while in administrative segregation. In addition, defendant claimed he was

denied the effective assistance of appellate counsel because counsel did not

argue on appeal that the court erred by disqualifying his first attorney.

The PCR court found that defendant had not presented a prima facie case

of ineffective assistance of either trial or appellate counsel and that an

evidentiary hearing was not required. The PCR court entered an order denying

relief. This appeal followed.

On appeal, defendant's appellate counsel raises the following arguments:

POINT I
THE MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT HAS ESTA[BL]ISHED A PRIMA
FACIE CASE OF DEFENSE COUNSEL'S
INEFFECTIVENESS FOR NOT ENSURING

2
United States v. Wade, 388 U.S. 218 (1967).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5055-17T4
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 DEFENDANT'S PRESENCE AT THE MOTION TO
DISQUALIFY [COUNSEL]; ADDITIONALLY,
APPELLATE AND PCR COUNSEL WERE PRIMA
FACIE INEFFECTIVE FOR NOT PURSUING THE
ISSUE OF DEFENDANT'S ABSENCE AT THE
HEARING. (Not Raised Below).

POINT II
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF APPELLATE COUNSEL'S
INEFFECTIVENESS FOR NOT RAISING THE
DISQUALIFICATION OF DEFENSE COUNSEL.

In addition, defendant has filed a pro se supplemental brief, in which he

argues:

POINT I
DEFENDANT SHOULD BE GRANTED A NEW PCR
HEARING BECAUSE BOTH PCR COUNSEL
DEPRIVED THE DEFENDANT OF THE EFFECTIVE
ASSISTANCE OF COUNSEL, [AS] REQUIRED BY
[RULE] 3:22-6(d).

POINT II
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF SHOULD BE REMANDED
BACK TO THE TRIAL COURT FOR A NEW PCR
HEARING WITH INSTRUCTIONS TO BE
ASSIGNED TO A DIFFERENT TRIAL COURT FOR
THE JUDGE['S] ABUSE OF DISCRETION WHEN
HE RELIEVED PCR COUNSEL . . . , OF HIS
OBLIGATIONS PURSUANT TO [RULE] 3:22-6(d).

III.

A-5055-17T4
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 As noted, defendant argues that he established a prima facie case of

ineffective assistance of trial and appellate counsel because his attorney failed

to ensure his presence at the oral argument on the State's motion to disqualify

his attorney, and that appellate counsel erred by failing to raise this issue on

appeal. He contends the PCR court should have conducted an evidentiary

hearing on his claims.

We note that an evidentiary hearing on a PCR petition is only required

when the defendant presents a prima facie case in support of relief, the court

determines there are material issues of fact that cannot be resolved based on the

existing record, and the court finds an evidentiary hearing is required to resolve

the issues presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-

10(b)). "To establish a prima facie case, defendant must demonstrate a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b).

A defendant asserting a claim of ineffective assistance of counsel must

satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668,

693 (1984), and later adopted by our Supreme Court in State v. Fritz, 105 N.J.

42, 58 (1987). Under that test, a defendant first "must show that counsel's

A-5055-17T4
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performance was deficient." Strickland, 466 U.S. at 693. The defendant must

establish that the attorney's performance "fell below an objective standard of

reasonableness" and "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Ibid.

The defendant also must show "that the deficient performance prejudiced

the defense." Ibid. To establish prejudice, the defendant must establish "there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome" of t he matter.

Id. at 698.

Here, the record shows that the State moved to disqualify defendant's first

attorney because he had previously represented D.B., who was an eyewitness to

the shooting and was expected to testify at trial for the State. The State argued

that counsel's prior representation of D.B. would materially affect his

representation of defendant. The trial court granted the State's motion. The trial

court found there was a potential appearance of impropriety and conflict of

interest, which required counsel's disqualification.

A-5055-17T4
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 On appeal, defendant argues he was denied the effective assistance of

counsel because his attorney failed to ensure his presence at the trial court's

hearing on the State's disqualification motion. Defendant did not raise this issue

on direct appeal, nor did he raise this issue before the PCR court.

We will not consider an issue that is raised for the first time on appeal

unless the issue pertains to the trial court's jurisdiction or concerns a matter of

great public interest. State v. Marroccelli, 448 N.J. Super. 349, 373 (App. Div.

2017) (citing State v. Robinson, 200 N.J. 1, 20 (2009)). Defendant's argument

regarding counsel's failure to ensure his attendance at the argument on the

disqualification motion does not come within either of these exceptions.

Therefore, we will not address this claim.

Defendant further argues he was denied the effective assistance of

appellate counsel because counsel did not argue on appeal that the trial court

erred by disqualifying his attorney. Defendant contends his attorney's prior

representation of D.B. was not a direct conflict of interest. He asserts if there

was a conflict, it could have been waived and he would have waived the conflict.

He contends his counsel should have argued on appeal that, because the trial

court erred by disqualifying his attorney, a new trial was required.

A-5055-17T4
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 Here, the PCR court found that defendant failed to establish that he was

denied the effective assistance of appellate counsel. The court found that

appellate counsel reasonably elected, as a matter of strategy, not to raise this

issue in order to avoid raising an excessive amount of arguments on appeal.

We conclude that the PCR court correctly determined that defendant had

not presented a prima facie case of ineffective assistance of appellate counsel.

We reach that conclusion not because counsel reasonably chose to avoid raising

an excessive number of issues raised on appeal. Rather, we conclude defendant's

claim fails because any challenge to the trial court's ruling on the

disqualification motion would not have succeeded.

Under the Sixth Amendment to the United States Constitution, a defendant

in a criminal case "must have a fair opportunity to have counsel of his own

choosing, [but] that right must yield when an actual of conflict is found." State

ex rel. S.G., 175 N.J. 132, 140 (2003) (citing United States v. Moscony, 927

F.2d 742, 749-50 (3d Cir. 1991)). Moreover, "it is incumbent on the courts to

ensure that defendants receive conflict-free representation." Ibid. (citing State

v. Loyal, 164 N.J. 418, 433 (2000)).

The Rules of Professional Conduct (RPC) provide that an attorney "shall

not represent a client if the representation involves a concurrent conflict of

A-5055-17T4
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interest." RPC 1.7(a). "A concurrent conflict of interest exists if: (1) the

representation of one client will be directly adverse to another client; or (2) there

is a significant risk that the representation of one or more clients will be

materially limited by the lawyer's responsibilities to another client, a former

client, or a third person or by a personal interest of the lawyer." Ibid.

An attorney may, however, represent a client notwithstanding a

concurrent conflict of interest if

(1) each affected client gives informed consent,
confirmed in writing, after full disclosure and
consultation, provided, however, that a public entity
cannot consent to any such representation . . . ;

(2) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent
representation to each affected client;

(3) the representation is not prohibited by law; and

(4) the representation does not involve the assertion of
a claim by one client against another client represented
by the lawyer in the same litigation or other proceeding
before a tribunal.

[RPC 1.7(b).]

In addition, RPC 1.9(a) provides that an attorney who previously

represented a client may not represent another client "in the same or a

substantially related matter in which that client's interests are materially adverse

A-5055-17T4
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to the interests of the former client . . . . " The representation is permitted,

however, if "the former client gives informed consent confirmed in writing."

Ibid.

However, in a criminal case, a defendant's consent to an attorney's conflict

of interest under RPC 1.7(a) or 1.9(a) may not resolve the disqualification issue

because "the interests that are implicated transcend those of the immediate

parties and their attorneys." In re Garber, 95 N.J. 597, 614 (1984). "The public

. . . has the greatest stake in the propriety of the legal relationships that are

created to properly administer criminal justice." Ibid.

Moreover, although an appearance of impropriety may no longer be the

basis for attorney discipline, it may still be considered by the court in

determining whether an attorney's "representation poses an unwarranted risk of

disservice either to the public interest or the interest of the client." State v.

Davis, 366 N.J. Super. 30, 44 (App. Div. 2004) (quoting Administrative

Determinations in response to the Report and Recommendation of the Supreme

Court Commission on the Rules of Professional Conduct, Commission

Comment, RPC 1.7 (2003)). Therefore, in determining whether an attorney's

representation would create an appearance of impropriety, the court can consider

A-5055-17T4
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whether such representation would undermine public confidence in the fairness

of the proceedings. Ibid. (citing Loyal, 164 N.J. at 430).

The record shows that defendant's counsel was a pool attorney for the

Office of the Public Defender, and he previously represented D.B. in the same

matter. The trial court found that, under the circumstances, defendant's attorney

might have divided loyalties, which could have a material effect on his ability

to represent defendant. The court therefore found that counsel was disqualified

from representing defendant.

Defendant has not established he was denied the effective assistance of

counsel because of his attorney's failure to raise this issue on appeal. Defendant

has not shown that the result of the appeal probably would have been different

if counsel had raised this issue. The trial court's ruling on the State's

disqualification motion was consistent with the applicable law and supported by

the record.

Defendant contends that the trial court erred by disqualifying his attorney

because at trial, D.B. was an uncooperative witness and the State was allowed

to play recordings of D.B.'s prior statements before the jury. Defendant

therefore argues that his attorney's prior representation of D.B. did not

materially affect his ability to cross-examine D.B.

A-5055-17T4
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 However, when the trial court ruled on the State's motion, it could not

have anticipated D.B. would be an uncooperative witness at trial. The court was

required to determine whether counsel's prior representation of D.B. could

materially affect his ability to represent defendant based on the record before

the court at the time it made its decision, not after D.B. testified.

In his supplemental pro se brief, defendant also argues he was denied the

effective assistance of PCR counsel because counsel's representation failed to

conform to the requirements of Rule 3:22-6(d). Defendant contends PCR

counsel failed to investigate his PCR petition properly; did not submit

certifications or affidavits to support his claims; denied his claims in court; and

denigrated him in court. Defendant also asserts that, in the oral argument before

the PCR court, his counsel failed to point out that the court had not addressed

all of the issues raised.

Defendant's argument lacks sufficient merit to warrant discussion. R.

2:11-3(e)(2). We note, however, that the transcript of the oral argument on

defendant's petition does not support defendant's claim. Defendant has not

shown that PCR counsel's handling of the matter was deficient, or that the result

of the proceeding would have been different if PCR counsel had handled the

A-5055-17T4
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matter differently. We therefore reject defendant's contention that he was denied

the effective assistance of PCR counsel.

Affirmed.

A-5055-17T4
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