STATE OF NEW JERSEY VS. KELLY N. FOWLER (12-02-0576, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3841-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KELLY N. FOWLER,
Defendant-Appellant.
_________________________
Submitted September 25, 2019 - Decided October 4, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No.12-02-0576.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kelly Fowler appeals from a February 22, 2018 order denying her
petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant
was convicted by a jury of second-degree arson, N.J.S.A. 2C:17-1(a)(1); third-
degree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree criminal mischief,
N.J.S.A. 2C:17-3(a). She was acquitted of attempted first-degree murder, N.J.S.A.
2C:5-1(a)(2) and N.J.S.A. 2C:11-3, and third-degree terroristic threats, N.J.S.A.
2C:12-3(b). Defendant was sentenced to an aggregate term of eight years in prison,
subject to an eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:42-7.2. We affirmed. State v. Fowler, No. A-3860-
13 (App. Div. May 10, 2016). Our Supreme Court denied certification. State v.
Fowler, 227 N.J. 365 (2016).
Defendant raises the following issues on appeal:
POINT I: THE PCR COURT ERRED WHEN IT
FOUND DEFENDANT HAD FAILED TO
ESTABLISH A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE WHEN
HE FAILED TO REQUEST THE LESSER
INCLUDED CHARGE OF THIRD-DEGREE ARSON.
B. TRIAL COUNSEL'S FAILURE TO REQUEST AN
INSTRUCTION ON CAUSATION AND
NEGLIGENCE PREJUDICED HIS CLIENT’S RIGHT
TO A FAIR TRIAL.
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C. DEFENSE COUNSEL FAILED TO
EFFECTIVELY PRESENT TIME DISCREPANCY
EVIDENCE WHICH WOULD HAVE
DEMONSTRATED IT WAS NOT FEASIBLE FOR
DEFENDANT TO HAVE STARTED THE FIRE.
D. DEFENSE COUNSEL FAILED TO CHALLENGE
[T.M.] ABOUT HER FALSE AND MISLEADING
GRAND JURY TESTIMONY.
E. DEFENSE COUNSEL FAILED TO MOVE TO
DISMISS THE INDICTMENT.
F. DEFENSE COUNSEL WAS INEFFECTIVE
WHEN HE FAILED TO CHALLENGE THE
VALIDITY OF THE ARREST WARRANT.
G. TRIAL COUNSEL FAILED TO OBJECT TO THE
ADMISSIBILITY OF CERTAIN VOICEMAIL
RECORDINGS.
H. APPELLATE COUNSEL WAS INEFFECTIVE
BY FAILING TO ARGUE THE TRIAL JUDGE’S
CONDUCT DENIED DEFENDANT A FAIR AND
RELIABLE TRIAL.
POINT II: AS THERE WERE GENUINE ISSUES OF
MATERIAL FACTS IN DISPUTE, AN
EVIDENTIARY HEARING WAS REQUIRED.
Because defendant failed to demonstrate a prima facie case of ineffective
assistance of counsel necessitating a plenary hearing, we affirm.
A-3841-17T1
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I.
We review a judge's denial of PCR without an evidentiary hearing de novo.
State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). A PCR petitioner must
establish the grounds for relief by a "preponderance of the credible evidence." State
v. Goodwin, 173 N.J. 583, 593 (2002). To sustain that burden, the "petitioner must
do more than make bald assertions that he [or she] was denied the effective
assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). The petitioner must
articulate specific facts that demonstrate counsel's constitutional deficiency. Ibid.
To succeed on a claim for ineffective assistance of counsel, a defendant must
establish both prongs of the Strickland1 test. State v. Parker, 212 N.J. 269, 279-80
(2012). Under the first prong, counsel's representation must be objectively
unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a
"reasonable probability [must exist] that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 583 (quoting Strickland,
466 U.S. at 694).
In reviewing claims for ineffective assistance of counsel, courts apply a strong
presumption that defense counsel "rendered adequate assistance and made all
1
Strickland v. Washington, 466 U.S. 668, 687 (1984).
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significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will
not serve to ground a constitutional claim of inadequacy." Fritz, 105 N.J. at 54
(1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Nash,
212 N.J. 518, 543 (2013) ("The test is not whether defense counsel could have done
better, but whether he [or she] met the constitutional threshold for effectiveness.").
We incorporate our statement of facts from our decision on direct appeal.
Fowler, slip op. at 2-5. Defendant was convicted of starting an early morning fire
on the front porch of the home of her former girlfriend.
II.
Defendant takes issue with trial counsel's strategy to argue only her non-
involvement and not her lack of intent to cause injury. Defendant argues that
trial counsel's failure to seek a lesser guilty verdict on the basis of a lack of
intent to cause harm constituted ineffective assistance of counsel. However, "an
otherwise valid conviction will not be overturned merely because the defendant
is dissatisfied with his or her counsel's exercise of judgment during trial." State
v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293,
314-15 (2006)). Our Supreme Court explained that a reviewing court should
defer to counsel's strategically defensible and tactical decisions, "[e]ven if
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counsel made strategy miscalculations or trial mistakes." State v. Buonadonna,
122 N.J. 22, 42 (1991).
On direct appeal, we rejected defendant's arguments that the jury
instructions were improper, discerning "no plain error in the trial court not sua
sponte instructing the jury concerning recklessness, negligence, or accidental
causes of the fire." Fowler, slip op. at 10. The PCR court described defense
counsel's decision not to request instructions for third-degree arson, causation,
and negligence as "an objectively reasonable strategy." The PCR court
explained that under N.J.S.A. 2C:17-1 "[b]oth second- and third-degree [a]rson
charges contain an element of an intentional setting of fire. The difference is
whether the fire was set knowingly or intentionally to cause injury or it was set
and could have recklessly caused injury."
During trial, the court discussed the lesser charge with counsel, but
defense counsel and the judge concluded that under the asserted defense, the
charge was not appropriate. The PCR court found "the issue of the consequence
of that fire being known as opposed to being recklessly disregarded [had] no
bearing on the defense of non-involvement." The PCR court stated:
The fact that the trial counsel's strategy was ultimately
unsuccessful is not dispositive and the Court's
assessment of the trial counsel's performance will not
be affected by the benefit of hindsight. Under the first
A-3841-17T1
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Strickland prong, it was objectively reasonable for the
trial counsel to argue that Fowler was not involved in
starting the fire. Indeed, in support of this strategy, the
trial counsel called two alibi witnesses. Moreover, the
alibi defense was inconsistent with Fowler's now
proposed strategy.
We agree with the PCR court that defense counsel's strategy was not
constitutionally defective.
III.
Defendant argues she was prejudiced by defense counsel's failure to
address the improbability that she started the fire when the fire was reported at
about the same time defendant was stopped by the police. On October 9, 2011,
the morning of the fire, a defense witness testified that defendant was at a
motorcycle race, which concluded at 4:30 a.m. Defendant's car was pulled over
by the police about two minutes away from the scene of the fire at 4:40 a.m.
The fire was reported at 4:42 a.m.
Defendant asserts that trial counsel should have argued more effectively
that it was unlikely defendant started a fire at the victim's residence within the
ten minutes of leaving the motorcycle race and before being stopped by the
police.
Defense counsel, however, did make that precise argument in his closing
argument, stating:
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You remember [the investigator] stated this wasn't a
smoldering fire, this wasn't a fire that smoldered. That
was his determination. This fire was lit and caught up
so you know it didn't smolder which would have given
the time to say maybe the fire was smoldering, it gave
her time. That's not what [the investigator] said.
[The investigator] said the opposite. If he said, yeah,
you know the fire smoldered for a while before it caught
up, maybe that would be an issue but that's not what he
testified to. He testified that the fire did not smolder,
went right up.
So how could they actually try and pin this case on Miss
Fowler when the fire didn't smolder, went right up?
The door bangs, [the victim] is calling at 4:42. Miss
Fowler is stopped at 4:40 after being followed all that
way . . . Couldn't have been her.
Trial counsel thus discussed the time element.
IV.
Defendant argues defense "counsel's failure to confront [the victim] with
her false sworn testimony before the [g]rand [j]ury was inexplicable." When the
victim was asked before the grand jury about when and what kind of voicemails
defendant left her, the prosecutor elicited the following testimony:
Q: And in these messages, did she -- well, did she tell
you a lot of things, including that she loves you and also
that she was going to get you?
A: Yes.
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Q: And did she threaten to kill you?
A: Yes.
Q: And in those messages, -- and was this in the first
week or so of -- let me get the dates right here. I don't
want to get them wrong --between the 7th of October
and the 9th of October of last year?
A: Yes.
Q: And when Ms. Fowler left messages threatening to
kill you, did you believe her?
A: Yes.
Although defense counsel did not directly confront the victim about her
misleading testimony to the grand jury concerning the source of the October 7,
2011 voicemail she received, defense counsel did clarify for the jury that the
voicemail was not from defendant, but rather an unidentified male.
Q: I represent to you that the message on October 7th
was a male. The message that you provided was from a
male, that's not Miss Fowler, correct?
A: The male referring to Miss Fowler, yes.
Q: That's not Miss Fowler correct?
A: That message was not Miss Fowler. It was a male
referring to her.
Q: On October 7th, 8th, or 9th, you have no telephone
message from Miss Fowler, correct?
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A: Correct.
Thus, defense counsel did not fail to cross-examine the victim about who left
the voicemail message on October 7. The fact that counsel failed to confront
her with her misleading testimony before the grand jury was not significant.
V.
In a related argument, defendant claims trial counsel should have moved
to dismiss the indictment pretrial because the State failed to present exculpatory
evidence to the grand jury regarding the male voice on the threatening voicemail
the victim received on October 7, 2011. Also, defendant argues the fire
investigator's grand jury testimony that the fire smoldered coupled with his trial
testimony that it did not smolder before at trial mislead the grand jury.
Pursuant to Rule 3:10-2(c), the State has the opportunity to cure any
irregularity or defect in the grand jury process any time before trial. State v.
Simon, 421 N.J. Super. 547, 551 (App. Div. 2011). When an indictment is
dismissed, the State has the right to bring a new indictment. Ibid. (citing State
v. Womack, 145 N.J. 576, 590 (1996)).
As correctly noted by the State, ample evidence existed to sustain an
indictment. The victim testified to the following at trial:
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Q: Is it fair to say that you received messages from the
defendant of all sorts like threatening messages I think
you said?
A: Yes.
Q: Apologetic messages and messages that said what?
A: "I am going to get you." She expressed her anger.
She would just make comment like "I am not going to
stop until you pay. I am on everything, smoking." There
is just a number -- I can't remember them all verbatim.
Q: Did you save them all?
A: I believe so -- no, I didn't save every single message.
Q: When did you start saving them?
A: In August.
Q: And between August and what date did you save
them until approximately?
A: October.
The fact that the victim received a threatening voicemail from an
unidentified male does not negate that defendant also left threatening
voicemails. As to the investigator's testimony about the amount of time the fire
burned, the length of time the fire smoldered would not negate probable cause.
Even if defense counsel had successfully moved to dismiss the indictment,
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sufficient probable cause existed for the State to re-present the matter to a new
grand jury.
VI.
Defendant argues defense counsel should have challenged her arrest
warrant because it was "based on hearsay[] and deliberate falsehoods intrinsic
to the facts of the alleged offense in question" and had defense counsel objected
to its validity, "it was likely the court would have denied an arrest warrant for
making terroristic threats." Our Supreme Court established that "for an arrest[]
'there must be probable cause to believe that a crime has been committed and
that the person sought to be arrested committed the offense.'" State v. Brown,
205 N.J. 133, 144 (2011) (quoting State v. Chippero, 201 N.J. 14, 28 (2009)).
"[T]he appropriate remedy for an improper arrest is suppression of any
evidence that may have been seized in connection with that arrest." State v.
Egles, 308 N.J. Super. 124, 131 (App. Div. 1998). Defendant fails to
demonstrate how her purportedly unlawful arrest affected her conviction. See
Brown, 205 N.J. at 137 (discussing the validity of defendant's warrantless arrest
in light of her post-arrest statements). Trial counsel was not ineffective by
failing to challenge the warrant.
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VII.
Defendant argues defense counsel should have requested a pre-trial hearing
to suppress the voicemails introduced by the State because they were edited and
altered. Pursuant to State v. Driver, 38 N.J. 255, 287 (1962), sound recordings
are admissible if the speaker is identified and "(1) the device was capable of
taking the conversation or statement, (2) its operator was competent; (3) the
recording is authentic and correct; (4) no changes, additions or deletions have
been made, and (5) in instances of alleged confessions, that the statements were
elicited voluntarily and without any inducement."
The victim used a hand-held device to record the messages from her phone
and testified she did not alter the recordings in any way. She explained that
some of the dates were inadvertently missing from the recordings. The Driver
standards were met and defense counsel had no basis to suppress the recordings.
VIII.
Defendant also argues appellate counsel was ineffective when he failed to
argue that the trial judge denied defendant due process "by acting as a prosecutor
[and] by inserting her own opinion in the case." The standard of review for
assessing ineffective assistance of appellate counsel is the same Strickland two-
prong test that applies to ineffective assistance of trial counsel claims. State v.
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Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007). Appellate counsel is not
required to bring all non-frivolous claims or claims that are "legally unworthy
of pursuit." State v. Webster, 187 N.J. 254, 256 (2006); see also State v. O'Neil,
219 N.J. 598, 613 (2014) (noting "appellate counsel does not have an obligation
'to advocate ad infinitum'") (internal citation omitted).
Defendant's argument regarding the bias of the trial judge is meritless. In
defendant's first example regarding the date of the complaint, the trial judge
explained on the record that she misread the document and defense counsel
stated the correct date. In the second example, rather than questioning defense
counsel's knowledge about the facts, the trial judge sought clarification of the
timeline. In the third example, the colloquy occurred outside the presence of
the jury. Appellate counsel had no obligation to bring this claim.
VIX.
Finally, defendant argues that because "there was a genuine dispute of
material facts, she was entitled to an evidentiary hearing on her various claims." A
PCR judge has the discretion to grant such a hearing. State v. Jones, 219 N.J. 298,
311 (2014). We review this decision under the abuse of discretion standard. State
v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). A defendant is entitled to
an evidentiary hearing only when (1) he or she sets forth a prima facie case of
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ineffective assistance of counsel; (2) the court determines "there are material issues
of disputed fact that cannot be resolved by reference to the existing record"; and (3)
the court determines "that an evidentiary hearing is necessary to resolve the claims
for relief." R. 3:22-10(b). Because defendant failed to establish a prima facie case
for ineffective assistance of counsel, an evidentiary hearing was not warranted.
Affirmed.
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