SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3393-14T3

 A-4789-14T3

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.

Argued (A-3393-14) and Submitted (A-4789-14)

November 29, 2017 – Decided March 8, 2018.

Remanded by Supreme Court July 30, 2019.

Resubmitted March 12, 2020 – Decided July 13, 2020

Before Judges Alvarez and Suter.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 11-08-0827.

NOT FOR PUBLICATION WITHOUT THE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.
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Joseph E. Krakora, Public Defender, attorney for 

appellant Joey J. Fowler (Marcia H. Blum, Assistant 

Deputy Public Defender, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for 

appellant Jamil Hearns (Michael James Confusione, 

Designated Counsel, on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Milton Samuel Leibowitz, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the briefs).

Appellants filed pro se supplemental briefs.

PER CURIAM

The New Jersey Supreme Court remanded the matter for this court to 

address defendants Joey J. Fowler's and Jamil Hearns's remaining issues on 

appeal. Our prior reversal and remand to the Law Division for a new trial was 

itself reversed by the Court's decision. State v. Fowler, 239 N.J. 171 (2019). 

Both defendants raised numerous additional points of error, none of which have 

merit. Therefore, we affirm the convictions and sentences.

Although we consolidate the matters for decision, with two exceptions, 

the points are addressed separately. Those exceptions are the arguments

regarding the testimony of Algere Jones, a witness at the trial, and sentencing. 
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I.

Only Hearns testified. At the time of the shooting, Hearns owed Jones 

$5000. Hearns said that on that night, he offered Jones partial repayment, which 

Jones rejected. The men were standing outside of a bar with Donnell Johnson, 

the victim, who was Jones's cousin. According to Hearns, Johnson tried to 

convince Jones to accept the partial payment. Hearns alleged Jones pulled a gun 

out of his waistband and pointed it at Hearns; he then struggled with Jones over 

control of the gun, and the gun went off with two bullets striking Johnson. He 

and Fowler fled. Johnson died two days later from his wounds.

The State's witnesses testified to the contrary. There was bad blood 

between Fowler and Johnson, arising from Johnson's alleged prior assault and 

carjacking of Fowler. Fowler had reported the attack to the police.

Jones testified to the contrary, stating that on the evening of March 4, 

2011, he, the victim, and some others went to a nightclub. An hour or two later, 

Jones left to visit a friend. He returned to the area and waited for Johnson to 

leave the club. As Johnson walked towards Jones's car, Jones pulled alongside, 

and as the two men spoke through the open passenger window, Jones noticed a 

shadow approaching. The person was wearing a dark-colored hoodie, but Jones 
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was able to see the person's face. He recognized Hearns, whom he had known 

since childhood.

Jones heard gunshots, Johnson ran down the street, and Jones followed

him. Johnson eventually got in the car and Jones drove him to the hospital where 

he died two days later from his bullet wounds.

Off-duty officers heard the sounds of shooting, as did uniformed officers 

posted nearby. Detective James Malone, Jr., drove to the area and saw a man, 

later identified as Hearns, running down the street while wearing a black hooded 

sweat jacket and holding something in his right hand. Hearns got into a small 

silver Infiniti. Fowler had been standing by the driver's side door, and once 

Hearns got into the car, he immediately pulled away from the curb. Malone 

drove past and cut off the car, forcing it to stop. As Malone approached the 

front of the car, he saw Hearns reaching towards the back with his right hand. 

Malone then ran towards the passenger side and saw Hearns place a gun on the 

center tray between the two rear passengers. Malone yelled for the occupants 

to put their hands up in the air, which they did with the exception of Hearns, 

who kept trying to exit the car while Malone held and kicked the door shut. 

Other officers who immediately arrived seized the occupants of the vehicle as 

well as the gun. 
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The Union County Chief Medical Examiner testified the cause of death 

was a gunshot wound to Johnson's back and left thigh. The State's expert in 

firearms forensic identification opined that the handgun taken from the vehicle 

was operable, and bullets fired from it matched those taken from Johnson's body. 

The State also presented surveillance video depicting the victim outside the bar 

near Fowler. 

Jones initially denied knowing anything about the shooting, even denying

taking Johnson to the hospital. When he finally came forward, he did so as part 

of a plea agreement, hoping it would save him time in prison on his federal 

matter. 

While Jones was testifying, he said he and defendant met when they "had 

been - we were incar–[.]" The judge immediately interrupted. Defense counsel 

made a motion for a mistrial, then immediately withdrew it. The court declined 

to grant a mistrial sua sponte, and instructed the jury to totally disregard Jones's 

volunteered statement. 

Through its witnesses, the State proffered that there was bad blood 

between Johnson and Fowler arising from the carjacking. Fowler's sister was 

called by the State, but denied having previously told police that defendant had 

said to her that he did not know what he would do if he saw Johnson before the 
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police arrested him. To rebut her denial, the prosecution proffered a video of

Fowler's sister making that statement.

After Hearns testified, the State on rebuttal presented Tywan Cobb. He 

said he had spoken to Hearns over a couple of months, during which time, 

Hearns admitted he was carrying a weapon that night intending to shoot 

someone, and intended to claim that there had been a "tussle" over money, even 

though none had occurred. Cobb also acknowledged that he had charges 

pending, and that he testified regarding Hearns's statement as part of his plea 

agreement with the State.

The trial judge did not allow Fowler's attorney to cross-examine Jones 

about statements allegedly made by Johnson to Jones that although he and 

Fowler had previously had a conflict, that they had seen each other that evening 

and "patched things up." Counsel argued it was admissible hearsay under 

N.J.R.E. 803(c)(3).

The jury convicted Fowler and Hearns 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). Additionally, Hearns 

was charged in count four of the indictment with hindering, N.J.S.A. 
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2C:29-3(b)(4). Both defendants were sentenced on the same date, December 19, 

2014. Fowler, charged as an accomplice, was sentenced to fifty years 

imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

Hearns was sentenced to forty-five years subject to NERA. The State agrees 

with the defendants that their conviction for possession of a weapon for an 

unlawful purpose should be merged with the murder count.

II.

On appeal, Fowler raises the following points in the counseled brief:

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.
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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 his uncounseled brief, Fowler states the following:

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 CO-DEFENDANT'S 

LIABILITY OF ACTS IN SELF DEFENSE 

REQUIRING REVERSAL OF THE CONVICTION.

POINT II:

APPELLANT MOVES FOR A REMAND TO THE 

TRIAL COURT, TESTIMONY ABOUT 

DEFENDANT'S PRIOR INCARCERATION 

PREJUDICED HIS RIGHT TO A FAIR TRIAL.
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POINT III:

APPELLANT MOVES FOR A REMAND TO THE 

TRIAL COURT, THE TESTIMONY OF TYWAN 

COBB UNFAIRLY PREJUDICED THE 

DEFENDANT.

POINT IV:

APPELLANT MOVES FOR A REMAND, THE 

TESTIMONY OF ALGERE JONES WAS RES

GESTAE EVIDENCE 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 OF A FAIR 

TRIAL.

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 

[sic] 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.

Hearns raises the following points:

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.
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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.

Point 7

An unfair trial was caused by the trial judge telling the 

jury that a State witness was incarcerated and being 

brought over from prison to testify.

Point 8

Defendant's sentence is improper and excessive.

In his uncounseled brief, Hearns adds the following:

Point I

The Incentivized Witnesses/Informants Used In The 

Case At Bar Illegally Contributed To Appellant[']s 

Fundamental Wrongful Conviction Where The Prior 

Inconsistent Statements Exposed The Credibility Of 
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These Individuals Nor Was There Substantive 

Evidence.

Point II

The Prosecutor's Failure To Inform The Defense Of 

The Exact Inducement Rewards Amounted To 

Withholding Of Exculpatory Evidence.

Point III

The Informants/Witnesses Was Unreliable As Jail 

House State Agents And Federal Agents Whom The 

Prosecutor Knew Would Hinder Appellant's 

Confrontation And Cross Examination Clause Rights 

Contrary To Appellant's U.S. Const. 14Th [sic] Amend. 

And 6th Amend. Rights, and N.J. Const. Art. I Para. 10 

Rights Being Guarded As Protected.

III.

We review issues not raised at trial under a plain error standard. R. 2:10-2. 

This means we reverse where the error was "clearly capable of producing an 

unjust result." R. 2:10-2. 

Absent a clear abuse of discretion, we uphold evidentiary decisions of the 

trial court. State v. Gorthy, 226 N.J. 516, 539 (2016). We disturb those rulings 

only when so wide of the mark as to result in a manifest denial of justice. Griffin 

v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. 

Co., 160 N.J. 480, 492 (1999)). 
12 A-3393-14T3

A. JONES'S TESTIMONY

Hearns contends that unfair prejudice was caused by the jury hearing 

Jones testify while wearing jail clothes, and by the judge's reference to the fact 

that Jones was being brought over from the jail. In this case, contrary to the 

more commonplace situation, Jones was being called, not as a defense witness,

but as a State's witness. If anything, his jail garb and the judge's passing

comment undermined his credibility, to defendants' benefit. We consider the 

point to lack such merit as to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Fowler contends that the court erred in refusing to allow counsel to crossexamine Jones in order to refute the State's motive evidence. N.J.R.E. 803(c)(3) 

frames exceptions to the hearsay rule for a declarant's statement about his state 

of mind. But:

[a] deceased victim's then-existing state of mind 

cannot directly prove a defendant's motive; the stateof-mind exception to the hearsay rule does not 

permit imputation of a defendant's state of mind out of 

no more than a deceased person's feelings about that 

defendant. That is to say, subject to certain exceptions, 

a fact probative of the victim's state of mind, standing 

alone, does not tend to prove any material fact about a 

defendant's conduct or state of mind.

[State v. Calleia, 206 N.J. 274, 291-92 (2011).] 
13 A-3393-14T3

The state of mind exception should be construed narrowly, and the focus is 

whether the declarant's state of mind is directly relevant to the issues at trial. 

State v. McLaughlin, 205 N.J. 185, 189 (2011). 

In this case, the victim's state of mind was not relevant to any issue. 

Counsel argued in support of admission that decedent's state of mind was 

relevant in order to explain Johnson's presence at the nightclub where the killing 

occurred. However, the judge ruled that the state of mind was not pertinent 

because motive was at issue, not presence. Thus, the judge sustained the State's 

objection. 

Even if offered to depict the victim's state of mind—the argument now 

raised—the alleged statement was not relevant on the issue of whether or not the 

killing, as observed by an eyewitness, occurred. Furthermore, even if the victim 

thought the conflict had ended, that did not mean that the shooting did not occur

and that Fowler had reconciled with Johnson. The statement was being 

proffered to establish defendant's state of mind without him testifying.

Fowler's brief also argues that the judge did not give the jury a cooperating 

witness instruction. The record does not support the claim, however. 

The judge gave an instruction, which closely followed the model jury 

charge, to the effect that the jury should "give[] the testimony of such witness 
14 A-3393-14T3

careful scrutiny." See Model Jury Charge (Criminal), "Testimony of a 

Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006). The argument does 

not require further discussion. R. 2:11-3(e)(2).

With regard to Jones's fleeting comment on direct examination, Jones said

he met Fowler when "we were incar[.]" The judge stopped him from completing 

the sentence. The judge immediately gave a limiting instruction, directing the 

jury that not only should they disregard what they heard, but that "it is stipulated 

between the parties in this case that the witness and . . . Fowler knew each other 

from the neighborhood." Given the brevity of the comment, and the judge's 

prompt curative instruction, no prejudice occurred. No further discussion is 

necessary. R. 2:11-3(e)(2). 

B. FOWLER

In his uncounseled brief, Fowler contends that Cobb's testimony 

prejudiced him because the witness used the plural tense, implying that more 

than one person was involved in the shooting. Cobb was called as a rebuttal 

witness, and testified only as to the statements made to him by Hearns. 

The court charged the jury, however, that when deliberating the statement 

should be used only as to Hearns. A jury is presumed to follow a judge 's 
15 A-3393-14T3

instructions. State v. Burns, 192 N.J. 312, 335 (2007). The point does not 

warrant further discussion. R. 2:11-3(e)(2).

Fowler also contends that a Gross hearing should have been conducted 

before a video of his sister's recorded statement to the police was played for the 

jury. She said in a recorded interview with police that Fowler told her he did 

not know what he would do if the perpetrators of the carjacking were not found 

but unequivocally denied making the statement while testifying during the 

trial. However, a Gross hearing is required only when a prior inconsistent 

statement is sought to be admitted for its substantive value. See State v. Gross, 

121 N.J. 1, 8-9 (1990). In this case, as the trial judge correctly stated, the 

purpose of the video was to impeach the sister's credibility as a witness, not for 

its substantive value. Therefore, the judge did not err in denying defendant's 

motion. The judge instructed the jury before they viewed the video that they 

could only consider it for credibility purposes, not for its substance. No further 

discussion is warranted. R. 2:11-3(e)(2).

C. HEARNS

Hearns contends his right to a speedy trial was not honored. A defendant 

has a fundamental right to a speedy trial guaranteed both under the United States 

Constitution and the New Jersey Constitution. Whether the right to speedy trial 
16 A-3393-14T3

has been violated is guided by four factors: "the length of the delay, the reasons 

for the delay, whether the defendant asserted his right to speedy trial, and any 

prejudice to the defendant occasioned by the delay." State v. Farrell, 320 N.J. 

Super. 425, 449-450 (App. Div. 1999). As to the length of delay, we consider

whether the delay beyond New Jersey's sixty-day goal was excessive. See State 

v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009). Delays that are reasonably 

explained will be considered less consequential than those without reasonable 

justification. See Farrell, 320 N.J. Super. at 449-50. Courts also examine the 

timing of a defendant's assertion of his speedy trial rights. See State v. Fulford, 

349 N.J. Super. 183, 193 (App. Div. 2002). Finally, prejudice to the defendant 

can include a host of considerations, including, for example, loss of 

employment. Tsetsekas, 411 N.J. Super. at 13.

Defendant was arrested March 5, 2011. The trial court denied defendant's 

June 11, 2013 speedy trial motion, finding that a two-year delay in a multidefendant murder trial was not unusual. When the trial date was set at June 3, 

2013, the court was unable to proceed. The next available date was September 

20, 2013, but the court again had to reschedule the matter. The trial did not 

begin until May 12, 2014. Conference dates were adjourned at the request of 

defense counsel on at least three separate occasions, once at the request of the 
17 A-3393-14T3

State. Significant delays were caused by pretrial motions necessary for the fair 

disposition of the matter. Thus, the delay was not caused by the State. Although 

prejudice is presumed when there is a delay, defendant did not specifically 

identify any resulting prejudice. Thus, the delay did not warrant dismissal of 

the complaint because it was reasonable and no specific prejudice resulted from 

it.

A determination by a trial judge on a defendant's application for dismissal 

of an indictment due to speedy trial considerations is not overturned unless 

clearly erroneous. See State v. Marino, 153 N.J. Super. 12, 17 (App. Div. 1977). 

It was not clearly erroneous in this case, or even erroneous at all.

Next, Hearns contends that the court erred in not sua sponte severing the 

trials, and not granting Hearns's motion for a new trial on that basis. A trial 

judge's decision denying a motion for a new trial is not reversed unless it clearly 

appears that there was a miscarriage of justice under the law. R. 2:10-2. In 

deciding whether such a miscarriage occurred, we defer to the trial court with 

respect to those "intangible aspects" only the trial court can know such as 

credibility, demeanor, and "feel of the case." Carrino v. Novotny, 78 N.J. 355, 

360 n.2 (1979). Otherwise, we make an independent determination as to 

whether a miscarriage of justice occurred. Ibid. "The decision on whether to 
18 A-3393-14T3

grant a severance generally 'rests within the trial court's sound discretion and is 

entitled to great deference on appeal.'" State v. Lado, 275 N.J. Super. 140, 149 

(App. Div. 1994) (quoting State v. Brown, 118 N.J. 595, 603 (1990)). 

Under Rule 3:7-7, "[t]wo or more defendants may be charged in the same 

indictment . . . if they are alleged to have participated in the same act . . . 

constituting an offense or offenses." There is a "preference to try co-defendants 

jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div. 1992). Where 

"much of the same evidence is needed to prosecute each defendant, a joint trial 

is preferable." State v. Sanchez, 143 N.J. 273, 281 (1996) (quoting State v. 

Brown, 118 N.J. 595, 605 (1990)). Joint trials foster an efficient judicial system, 

spare witnesses and victims the inconvenience and trauma of testifying about 

the same events more than once, serve the interests of justice by avoiding the 

scandal and inequity of inconsistent verdicts, and allow for a more accurate 

assessment of relative culpability, which sometimes operates to a defendant's 

benefit. See id. at 282. 

However, the interest in judicial economy is not unchecked as Rule 3:15-2 

provides an avenue for separate trials where defendants may be prejudiced by 

being tried jointly:

If for any other reason it appears that a defendant or the 

State is prejudiced by a permissible or mandatory 
19 A-3393-14T3

joinder of offenses or of defendants in an indictment or 

accusation the court may order an election or separate 

trials of counts, grant a severance of defendants, or 

direct other appropriate relief.

[R. 3:15-2(b).]

In determining whether severance is appropriate, 

the trial court must focus on the substance and quality 

of the proffered testimony, and attempt to ascertain the 

testimony's exculpatory value. The court should 

distinguish between credible, substantially exculpatory 

testimony and testimony that is insignificant, subject to 

damaging impeachment, or unduly vague, conclusory, 

or cumulative. Where the testimony rendered 

unavailable by a joint trial is not substantially 

exculpatory, a defendant has not suffered cognizable 

prejudice for the purpose of Rule 3:15-2(b). Where, 

however, the proffered testimony is likely to be 

significantly exculpatory, denying the defendant's 

severance motion could be highly prejudicial to the 

defendant, and potentially could lead to the conviction 

of an innocent person.

[Sanchez, at 291].

There was no error committed here by the trial judge in failing to sua 

sponte order separate trials. Hearns did not demonstrate specific prejudice 

arising from the joint trial. Although Hearns argued that he was not able to 

demonstrate his lack of motive to harm the victim in general terms, he did not 

and does not advance a single instance where as a matter of strategy or for some 
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other reason he could have taken a different approach during the course of a 

separate trial. 

Hearns fully cross-examined the State's witnesses, even with regard to the 

incident that led to Fowler's complaint to police about the carjacking. That 

testimony highlighted that Hearns was uninvolved in the incident. Given that 

Hearns cannot identify how he was prejudiced, other than making a general 

argument based on speculation, he has not demonstrated that a miscarriage of 

justice occurred. No new trial should have been granted on that basis. There 

was no miscarriage of justice. The argument lacks merit.

Issues not raised at trial, as we have said, are reviewed under a plain error 

standard. R. 2:10-2. Such decisions are reversed only if the error was clearly 

capable of producing an unjust result. 

Now on appeal, Hearns argues that his Fifth Amendment right to remain 

silent was violated when the prosecutor asked a detective, after playing the video 

of Hearns's interview, "does defendant Hearns invoke his Fifth Amendment 

right at that point?" The officer answered "yes," and the prosecutor goes on to 

ask, "and you are no longer talking to him?" and he answered "correct." Defense 

counsel did not object. No reference was made to the testimony thereafter. 
21 A-3393-14T3

Obviously, the tape could have been ended without explanation. But, that 

defense counsel did not object at the time demonstrates that the comment was 

perceived as fleeting and innocuous. See State v. Timmendequas, 161 N.J. 515, 

576 (1999). Had defendant objected, obviously, the court could have provided 

a curative instruction, advising the jury to disregard it. This unobjected-to 

testimony, in light of the other evidence presented, could not have alone

prejudiced defendant's right to a fair trial. State v. Cain, 224 N.J. 410, 432 

(2016). Furthermore, even if error, it was harmless in light of the other proofs 

presented, which included eyewitness testimony.

Next, defendant contends that the court erred by allowing the medical 

examiner to testify based on another doctor's autopsy report and accompanying 

photographs. This argument is also reviewed employing plain error analysis, as 

no objection was made at the time. 

An expert need not personally examine the subject matter before 

providing an opinion. See State v. D.R.H., 127 N.J. 249, 264 (1992). 

Additionally, the New Jersey Supreme Court has recently determined that a 

substitute medical examiner can testify as an expert regarding the results of an 

autopsy. State v. Bass, 224 N.J. 285, 291-92 (2016). 
22 A-3393-14T3

The testifying expert witness here reached an independent opinion within 

a reasonable degree of medical certainty regarding the cause of death. He 

explained his findings, providing information about the wounds caused by the 

bullet, as well as his basis for the conclusion. His analysis was based on the 

work of another, yet his ultimate opinion was founded on his independent 

examination of the evidence. 

Thus, as established in Bass:

[T]he State may present the testimony of a qualified 

expert who has conducted independent observation and 

analysis regarding an autopsy conducted by a medical 

examiner who is unavailable to testify at trial, without 

violating the defendant's confrontation rights under 

the Sixth Amendment of the United States 

Constitution and Article I, Paragraph 10 of the New 

Jersey Constitution. 

[Ibid.]

Hearns's right to confrontation was not violated. 

In his uncounseled brief, Hearns contends that both Cobb's and Jones's 

testimony should have been excluded because the testimony was "incentivized." 

Defense counsel was not informed "of the exact inducement rewards" which 

meant exculpatory evidence was withheld, and that the inherent unreliability of 

the testimony because these were informants meant their testimony should have 

been excluded. The arguments have no support in the law. Overall, we consider 
23 A-3393-14T3

them to be so lacking in merit as to not warrant discussion in a written opinion. 

R. 2:11-3(e)(2). 

D. SENTENCING AS TO BOTH DEFENDANTS

We review criminal sentences with an eye towards whether there is a clear 

showing that an abuse of discretion has occurred. State v. Bolvito, 217 N.J. 221, 

228 (2014). We 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.'" Ibid. (alteration in original).

Furthermore, a sentencing court is required to weigh aggravating and 

mitigating factors as set forth in the statute. See N.J.S.A. 2C:44-1(a) and (b). 

Trial judges must explain how they arrive at a particular sentence employing 

that analysis. State v. Case, 220 N.J. 49, 65 (2014). This trial judge qualitatively 

assessed the statutory factors. See State v. Fuentes, 217 N.J. 57, 72 (2014). 

As to Fowler, the judge found aggravating factor three, defendant's risk of 

reoffense; six, the seriousness and extent of his prior criminal record; and nine, 

the need to deter him and others. N.J.S.A. 2C:44-1(a)(3), (6), and (9). The 

judge found no mitigating factors. He anchored his conclusions on Fowler's 
24 A-3393-14T3

extensive prior criminal history, including an aggravated arson, aggravated 

assault, disarming a law enforcement officer, contempt, certain persons not to 

possess a handgun, drug charges, and a history of violations of parole. 

Additionally, he said, "This was basically the ordering of an execution over a 

beef over a car." The trial judge carefully analyzed the statutory factors, 

assessing the weight of each in a manner supported by the record. Given 

Fowler's prior criminal history and the nature of this offense, his sentence to 

fifty years subject to NERA does not shock our conscience. Nor given his role 

in the homicide, does it appear unfairly disproportionate when compared with 

Hearns's forty-five-year sentence.

In similar fashion, the judge carefully reviewed Hearns's prior criminal 

history. He found in that case aggravating factor three, defendant's risk of reoffense; aggravating factor six, the seriousness of his prior criminal history; and 

aggravating factor nine, the need to deter him and others, and no mitigating 

factors. N.J.S.A. 2C:44-1(a)(3), (6), and (9). Hearns was the shooter. The judge 

supported his findings based on his prior criminal history of three counts of 

robbery, weapons offenses, a burglary, drug distribution, and resisting arrest. 

Although Hearns had family, and requested that mitigating factor eleven be 

found, there was nothing about the circumstances that made his situation any 
25 A-3393-14T3

different from that of any other defendant who has children. All suffer a tragic 

loss because of the imprisonment of a loved one. The judge carefully and 

thoughtfully analyzed the relevant factors as to this defendant as well. Our 

conscience is not shocked by the sentence.

Affirmed.