Opinion
DOCKET NO. A-3860-13T4
05-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KELLY FOWLER, Defendant-Appellant.
Peter R. Willis argued the cause for appellant (Peter R. Willis, L.L.P., attorneys; Mr. Willis, Charles Alvarez, and Jonathan Goodman, of counsel and on the brief). Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-02-0576. Peter R. Willis argued the cause for appellant (Peter R. Willis, L.L.P., attorneys; Mr. Willis, Charles Alvarez, and Jonathan Goodman, of counsel and on the brief). Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In the early morning hours of October 9, 2011, a fire broke out on the front porch of a residential home in West Orange. Three people were sleeping in the home at the time, but they all escaped unharmed. An investigation concluded that the fire had been deliberately set and defendant Kelly Fowler was charged with starting the fire. A jury found defendant guilty of second-degree aggravated 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). The convictions for burglary and criminal mischief were merged into the aggravated arson conviction, and defendant was sentenced to eight years in prison with an eighty-five percent parole ineligibility term in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from her convictions and sentence. We affirm.
I.
The testimony at trial established that defendant and T.M. had been in a romantic relationship in 2010 and part of 2011. In 2011, the relationship became contentious and defendant accused T.M. of giving her a sexually transmitted disease. T.M. broke off the relationship in August 2011, and thereafter began dating T.B. According to T.M., after the breakup defendant continued to send her threatening messages, including messages that stated: "I am going to get you" and "I am not going to stop until you pay. I am on everything, smoking."
To protect privacy interests, we use initials for the victim and witnesses. --------
On October 9, 2011, T.M. was at her home with her then sixteen-year-old son, J.F., and T.B. They were all asleep when T.M. and T.B. were awakened by a banging noise. They got up, smelled smoke, and T.B. looked out the window and reported that the front part of the house was on fire. T.M., T.B., and J.F. all left the home through the back door, and T.M. called 911 and activated a fire alarm system.
The West Orange Fire Department received the fire alert at 4:45 a.m. and responded to the home. A captain of the West Orange Fire Department testified that upon arrival, he saw a small fire on the front porch. The fire was quickly extinguished and the Essex County Prosecutor's Office Arson Task Force was called in to investigate because there was no immediate apparent cause of the ignition of the fire.
At approximately the same time that the fire broke out, a West Orange police detective was on patrol in an unmarked vehicle in the area near T.M.'s home. He observed a vehicle pull out in front of him at a high speed from a side street near T.M.'s home. The detective followed the car and stopped it after the car made an illegal turn at a red light. Defendant was driving the vehicle. While the detective was questioning defendant concerning her identity and where she was coming from, he received a dispatch alert concerning the fire and responded to the scene.
Michael Luker, an investigator with the Essex County Prosecutor Office's Arson Task Force, testified that he has received ongoing training as a fire investigator since 2002, and has investigated hundreds of structural fires. Luker had previously been qualified as an expert in three other court proceedings. The trial court qualified Luker as an expert in determining the origins and causes of fires.
Luker received a call at 6:40 a.m. on October 9, 2011, to investigate the fire at T.M.'s home. After inspecting the home and the potential causes of the fire, Luker determined that the fire had started in a basket of socks that was kept on the front porch near the home's front door. T.M. kept that basket of socks there because she asked guests to take off their shoes before entering her home. Luker opined that the fire was not accidental, but had started when someone introduced a flame to the basket of socks.
Defendant elected not to testify. She called two alibi witnesses who testified that defendant had been at a motorcycle race that took place at approximately 4:15 a.m. on Route 280. Defendant's counsel also argued that other persons, including T.M., J.F. or the daughter of another friend of T.M., may have set the fire for a variety of motives.
At the conclusion of summations, the judge instructed the jury, including, without objection, the model charge concerning burglary. See Model Jury Charge (Criminal), "Burglary in the Third Degree" (1997). The jury acquitted defendant of attempted murder, N.J.S.A. 2C:11-3(a), 2C:5-1, and terroristic threats, N.J.S.A. 2C:12-3(b), but convicted her of the remaining charges. Defendant now appeals her convictions and sentence.
II.
On appeal, defendant argues:
POINT I - THE DEFENDANT'S CONVICTION AS THE RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTED PLAIN ERROR R. 2:10-2.
POINT II - THE ADMISSION OF THE STATE'S EXPERT OPINION CONSTITUTED PLAIN ERROR R. 2:10-2.
POINT III - THE FAILURE TO OBJECT TO THE JURY CHARGE CONSTITUTED PLAIN ERROR R. 2:10-2.
POINT IV - THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR R. 2:10-2.
POINT V - THE CONVICTION WAS THE PRODUCT OF CUMULATIVE ERROR.
POINT VI - THE DEFENDANT'S SENTENCE WAS EXCESSIVE.
A.
We address defendant's arguments concerning ineffective assistance of counsel last. Defendant's contentions in Points II through V are raised for the first time on appeal. Consequently, we review these arguments under a plain error standard. See R. 2:10-2. For an appellate court to reverse for plain error, the "erroneous admission of expert testimony" must have been "'clearly capable of producing an unjust result,' or [have] 'led the jury to a verdict it otherwise might not have reached.'" State v. Sowell, 213 N.J. 89, 107-08 (2013) (citations omitted) (first quoting R. 2:10-2; then quoting State v. R.B., 183 N.J. 308, 330 (2005)).
We start by analyzing defendant's second contention that the trial judge should have excluded the testimony given by the State's fire investigation expert, Investigator Luker. Defendant argues that there was no showing that Luker's testimony was based on accepted standards of fire investigation methods. Defendant also argues that Luker's testimony was inadmissible as a net opinion. We disagree with both of these contentions.
Even if objected to, "[t]he admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015). An appellate court applies "[a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Id. at 53 (alteration in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).
Two rules of evidence frame the analysis for determining the admissibility of expert testimony. N.J.R.E. 702 identifies when expert testimony is permissible and requires the expert to be qualified in his or her respective field. N.J.R.E. 703 addresses the foundation for expert testimony. Expert opinions must be grounded in "facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N. J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Id. at 53-54 (alteration in original) (quoting Polzo, supra, 196 N.J. at 583). Accordingly, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). In short, the net opinion rule is "a prohibition against speculative testimony." Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certifs. denied, 154 N.J. 607 (1998)).
Applying these principles here, we see no abuse of discretion nor plain error in the admission of the expert testimony from Luker. Luker was properly qualified as an expert. He testified that he had received ongoing training as a fire investigator since 2002. Luker also testified that he had over twelve years of experience as a fire investigator and that he had investigated hundreds of fires. Luker had also previously been qualified as an expert in three prior court proceedings. While defendant contends that Luker's methodologies might not have been based on accepted fire investigation standards, she fails to identify any method used by Luker that was not an accepted standard. Indeed, our review of Luker's testimony satisfies us that the methods he used were based on his training and experience and nothing in the record supports the contention that the methods Luker used were not sufficiently reliable. Thus, we discern no abuse of discretion in the trial court's decision to qualify Luker as an expert.
We also reject defendant's contention that Luker's testimony was a net opinion. Luker gave detailed testimony concerning his personal investigation of the fire. He explained that he examined the house and, in particular, the front porch and ruled out any accidental causes such as an electrical short. He then explained that he identified where the fire started based on the pattern of the spread of the fire. Finally, Luker explained that he came to the conclusion that the fire started by a flame being introduced to the basket of socks. Thus, Luker's opinion was based on factual evidence he developed from his own examination of the scene of the fire and his analysis of how the fire started and spread. An opinion on causation of a fire reached through the process of elimination is not a net opinion. See State v. Sharp, 395 N.J. Super. 175, 182 (Law Div. 2006) (allowing an opinion on the causation of fire based on a process of elimination).
B.
Next, defendant contends that the jury instructions were improper. In the context of jury instructions, plain error means a "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court." State v. McKinney, 223 N.J. 475, 494 (2015) (alteration in original) (quoting State v. Camacho, 218 N.J. 533, 554 (2014)). "Clear and correct jury instructions are essential for a fair trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div. 2015) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "[A] reviewing court must evaluate a challenged jury instruction in the context of the entire charge to determine whether the challenged language was misleading or ambiguous . . . ." State v. Nelson, 173 N.J. 417, 447 (2002). Moreover, "any finding of plain error depends on an evaluation of the overall strength of the State's case." State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
Defendant argues that the trial court should have added language to the instructions concerning aggravated arson and criminal mischief. The trial judge closely followed the model jury charges for both aggravated arson and criminal mischief. See Model Jury Charge (Criminal), "Aggravated Arson" (2011); Model Jury Charge (Criminal), "Criminal Mischief - Purposeful or Knowing Damage to Tangible Property" (2005). We discern no plain error in the trial court not sua sponte instructing the jury concerning recklessness, negligence or accidental causes of the fire. Indeed, defense counsel at trial stated that he did not think that recklessness applied.
With regard to the burglary charge, defendant argues that the court should have given the jury more detailed instructions about whether the porch was a structure within the definition of the burglary statute. Here again, the trial judge used the model jury charge for burglary, including the statutory language that a person is guilty of burglary "if with purpose to commit an offense therein, enter[s] a structure . . . ." See Model Jury Charge (Criminal), "Burglary in the Third Degree" (1997); see also N.J.S.A. 2C:18-2(a). The trial judge then read the relevant portion of the definition of a structure: "Structure includes any building, [it] also means any place for overnight accommodation of persons whether or not persons are actually present." See Model Jury Charge (Criminal), "Burglary in the Third Degree" (1997); see also N.J.S.A. 2C:18-1. Accordingly, we discern no error in the instructions given to the jury and no error possessing the capacity to bring about an unjust result.
Defendant also argues that the trial court should have charged the jury concerning trespass, N.J.S.A. 2C:18-3(a), and defiant trespass, N.J.S.A. 2C:18-3(b), as lesser included offenses of burglary. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). The State presented evidence that defendant went on to the porch with the intent to commit arson. There was no evidence that defendant was merely trespassing. Accordingly, we see no plain error resulting from the jury not being charged about trespass or defiant trespass. See State v. Braxton, 330 N.J. Super. 561, 567 (App. Div. 2000) ("[D]efiant trespass is not generally . . . a lesser included offense of unlicensed entry of [a] structure[] . . . .") (citing N.J.S.A. 2C:1-8(d)(3))).
C.
Defendant also argues that the verdict was against the weight of the evidence and the conviction was the product of cumulative errors. As to her weight of the evidence argument, defendant did not pursue a motion for a new trial and, thus, is precluded from raising this argument on appeal. R. 2:10-1. Concerning her cumulative error argument, having already rejected defendant's arguments with regard to each purported error individually, this contention does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
D.
We next address defendant's contention that her sentence was excessive. After merging the convictions for burglary and criminal mischief into the aggravated arson conviction, defendant was sentenced to eight years in prison with a period of parole ineligibility pursuant to NERA.
Appellate review of a criminal sentence is generally guided by an abuse of discretion standard. State v. Robinson, 217 N.J. 594, 603 (2014). An appellate court "must affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), six, N.J.S.A. 2C:44-1(a)(6) (prior criminal record), and nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). Defendant had six indictable convictions, including one for aggravated manslaughter in 1993. The judge did not find any mitigating factors, rejecting factors seven, N.J.S.A. 2C:44-1(b)(7); nine, N.J.S.A. 2C:44-1(b)(9); ten, N.J.S.A. 2C:44-1(b)(10); and eleven, N.J.S.A. 2C:44-1(b)(11).
The judge then sentenced defendant to eight years in prison for the second-degree conviction of aggravated arson. That sentence was in the mid-range for a second-degree conviction, see N.J.S.A. 2C:43-6(a)(2), and we discern no abuse of discretion in the sentence.
E.
Finally, defendant urges reversal on the grounds that trial counsel provided ineffective assistance of counsel due to errors committed during trial.
To prove ineffective assistance of counsel, a "defendant must show that counsel's performance was deficient" and that counsel's error so prejudiced the defendant that he or she was deprived of a fair trial. 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, 58 (1987). Generally, we do not entertain ineffective assistance of counsel claims on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate procedure for their resolution commonly is not direct appeal, but rather a post-conviction relief (PCR) application. Ibid.
Defendant's claims are better suited for a PCR proceeding, rather than this appeal, as they appear to concern trial strategy decisions. See State v. McDonald, 211 N.J. 4, 30 (2012). Thus, we decline to consider the claims of ineffective assistance of counsel. Our determination is without prejudice to defendant raising such arguments in an appropriate and timely PCR petition. We express no view as to the merits of such an application.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION