STATE OF NEW JERSEY v. STANLEY HOLMES

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0483-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY HOLMES,

Defendant-Appellant.

___________________________________

November 3, 2010

 

Submitted October 14, 2010 - Decided

 

Before Judges Axelrad and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-01-0032.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stanley Holmes appeals from the denial of his

application for post-conviction relief (PCR) and an evidentiary hearing. We affirm.

In December 2004,1 defendant was convicted by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts three and four); second-degree burglary, N.J.S.A. 2C:18-2 (count seven); and first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts ten and eleven). On January 28, 2005, the Law Division imposed an aggregate term of thirty-five years incarceration, subject to the minimum term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant pursued a direct appeal, which resulted in our affirmance of the convictions and related sentences,2 and the Supreme Court thereafter denied certification. State v. Holmes, No. A-3429-04T4 (App. Div. Aug. 1, 2007), certif. denied, 194 N.J. 268 (2008).

The instant PCR was commenced by defendant's pro se petition in September 2008. In December of that year, assigned counsel submitted an amended petition on defendant's behalf. On January 27, 2009, Judge Donald R. Venezia denied defendant's application without an evidentiary hearing. This appeal followed.

Defendant has presented to this court the following arguments as contained in his appellate brief:

POINT I: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE EVEN IF NON-DISCLOSURE OF THE TRUE STATUS OF TERRELL'S DEALINGS WITH THE UNITED STATES ATTORNEY DID NOT RESULT IN A BRADY V. MARYLAND VIOLATION, THE MISREPRESENTATION MADE BY THE PROSECUTOR RESULTED IN A VIOLATION OF THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL AND A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

 

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE AS A RESULT OF THE PROSECUTOR'S MISREPRESENTATIONS, TRIAL COUNSEL'S PERFORMANCE IN HIS OPENING STATEMENT, DURING HIS CROSS-EXAMINATION OF TERRELL, AND IN HIS SUMMATION, WAS DEFICIENT AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT III: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST CONVICTION RELIEF

 

(A)

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST FACT-SPECIFIC JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

 

(B)

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE AS AN ISSUE ON APPEAL THE TRIAL COURT'S RULING DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE CHARGES OF KIDNAPPING.

 

(C)

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTIONS ON THE GUILTY PLEA OF A TESTIFYING CO-DEFENDANT AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL (NOT RAISED BELOW).

 

POINT IV: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

After a review and analysis each of defendant's contentions, we conclude that, except for Point I, they are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I.

The trial evidence, in brief, reveals the following. On June 25, 2002, defendant was a participant in a home invasion in Englewood that culminated in the gunshot homicide of one of the residents. Defendant was involved with Darryl Bozeman and Terrence Terrell in planning aspects of the crime; he drove his two cohorts to the scene of the crime; and whisked them away after the plot failed to produce the expected windfall of cash.

Eventually, the three men were apprehended. Bozeman's wife Gina was also implicated in the plot, and all four were eventually indicted for murder, first-degree armed robbery, felony murder, second-degree burglary, first-degree kidnapping, second-degree possession of a firearm for an unlawful purpose, and third-degree possession of a handgun without a permit. Gina was also indicted alone for hindering her own prosecution and for hindering the apprehension of the others. Her husband was indicted alone for capital murder, which was eventually dismissed. Darryl and Gina Bozeman were tried separately in April 2006, more than two years after defendant's first trial and almost a year-and-a-half after his retrial and conviction.

On February 5, 2004, Terrell entered into a "Cooperation Agreement-Memorandum of Agreement/Understanding" with the State in which he pled guilty to counts of felony murder and kidnapping, in exchange for a recommended sentence of thirty years without parole and the dismissal of all other counts in the indictment against him. Terrell also agreed to testify during the upcoming trials of defendant, and Darryl and Gina Bozeman.

The State's case against defendant relied heavily on the testimony of Terrell and the decedent's widow, as well as defendant's statement to the police following the incident. At the commencement of the first trial in May 2004, the State informed the court that Terrell apparently was a cooperating witness for the federal government in an unrelated matter. The prosecutor represented that having spoken with the U.S. Attorney's Office, Terrell was not a defendant in any federal case, no promises had been made to him by federal authorities, but if Terrell's safety became an issue, he would be permitted to request a transfer to "a different facility." When cross-examined about the terms of his arrangement with the State at trial, Terrell repeatedly stated that he would serve no less than thirty years without parole.

Similarly, during defendant's second trial in December 2004, Terrell was questioned at length about his plea bargain and arrangement with the State. Although repeatedly pressed, Terrell confirmed his understanding that if he had gone to trial and been convicted, his sentence could have been life imprisonment. However, the plea bargain obliged the State to recommend a sentence of thirty years incarceration, meaning Terrell, who was thirty-years old at the time of the crimes, would "hit the parole board at about [sixty-four]."

On April 23, 2006, subsequent to the filing of defendant's direct appeal but before the affirmance of his convictions and sentence, Terrell entered into an "Agreement Not to Prosecute" with the U.S. Attorney's Office for the Eastern District of New York. The agreement stipulated that in exchange for his cooperation including grand jury testimony, Terrell would not be prosecuted for federal gun possession and drug crimes committed between 2000 and 2002, and could be placed in a "Witness Security Program" at the discretion of the Department of Justice.

This agreement was the basis for defendant's petition for PCR, in which he argued pro se and through appointed counsel that the prosecution's non-disclosure of "important exculpatory impeachment evidence" at trial, namely Terrell's arrangement with the U.S. Attorney, violated his Sixth Amendment right to confrontation and his right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Defendant also claimed ineffective assistance of counsel stemming from the prosecution s alleged concealment of the federal no-prosecution agreement from defense counsel.

In rejecting defendant's claim that the State withheld exculpatory evidence regarding Terrell's involvement with the U.S. Attorney, the PCR court concluded that because the State disclosed all information that was relevant and known to its agents at the time of trial, no Brady violation occurred. Furthermore, Judge Venezia was unpersuaded that it was legally appropriate to impute the U.S. Attorney's knowledge of Terrell's cooperation agreement to the State.

For the same reasons, the PCR court rejected defendant's ineffective assistance of counsel claim, adding that that "the jury chose to believe Mr. Terrell based on their assessment of his credibility and taking into consideration" the details of the State plea evoked from defense counsel's cross-examination. In other words, the jury was fully apprised of the fact that Terrell was accepting a thirty-year sentence in lieu of a possible life sentence, and the jury chose to believe his testimony in spite of that fact. More importantly, the PCR court concluded that eliciting additional testimony from Terrell regarding his arrangement with federal authorities would not have affected the outcome of the case "by virtue of the other facts in the case."

II.

On appeal, we give deference to the PCR court's factual findings when supported by sufficient credible evidence. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 1 255 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, questions of law are subject to de novo review. Ibid. An application for post-conviction relief is entitled to a plenary hearing in every case in which an issue of fact is asserted. The Law Division judge, after considering the papers submitted in support of and in opposition to the application, has the discretion to evaluate an issue as lacking adequate factual or legal merit. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Judge Venezia's determinations here adequately and correctly measured the sufficiency of defendant's attenuated proofs and found them lacking.

Although it would be rank speculation to surmise what Terrell had been told by the U.S. Attorney's Office as of defendant's trial in late 2004, the State only knew that Terrell was simultaneously serving as a cooperating federal witness and that if "[Terrell's] safety became an issue, he may make an application to be transferred to a different facility." The State did not know and the U.S. Attorney's Office denied that Terrell's cooperation was in exchange for immunity from prosecution for other crimes at that time. Moreover, the arrangement between Terrell and the U.S. Attorney's Office was not reached until April 23, 2006, more than sixteen months after the jury determined defendant's guilt. Assistant Prosecutor James V. Santulli, who tried defendant's case, as well as the Bozeman matter, did not learn of this federal agreement until June 12, 2006. Unlike the Bozeman trial, at which Terrell testified for the State the same month he struck his deal with the U.S. Attorney's Office, defendant's trial took place more than a year before Terrell finalized his arrangement with the U. S. Attorney's Office. At the time of defendant's trial in December 2004, he received all that he was due pursuant to the Confrontation Clause and other constitutional principles. Accordingly, he is not entitled to PCR relief.

In determining whether a defendant's confrontation right was violated, the question is not whether the outcome at trial would have been different, but whether the defendant was prevented from "engaging in otherwise appropriate cross-examination designed to show . . . bias," or challenge the reliability of the testimony and inferences that could be deduced therefrom. Del. v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 684 (1986). Although it is uncertain what favorable treatment Terrell unilaterally anticipated from his cooperation with the U.S. Attorney's Office, it is undisputed that defense counsel was not prevented from questioning Terrell about what he knew as of defendant's trial. Everything the State learned from the U.S. Attorney's Office regarding Terrell was disclosed during trial and put on the record. Thus, while defense counsel's ability to cross-examine Terrell about his involvement as a witness in another case may have been stymied by the simple fact that no better information was available at the time, and did not become available until more than a year later, neither the prosecution nor the trial judge prevented defendant's counsel from exercising his right to cross-examine Terrell on this or any other relevant issue.

Moreover, we agree with the PCR court that the additional information that lay in the future was insignificant in light of the other inculpatory evidence that was arrayed against defendant. The physical evidence, defendant's own statement, and the testimony of the decedent's widow who was herself terrorized by Bozeman and Holmes on the night defendant was their getaway driver sealed defendant's fate. An evidentiary hearing would have clarified nothing, and there was no misapplication of the law in denying defendant's application for such a proceeding.

Affirmed.

 

1 This was defendant's second trial. Defendant was initially indicted upon a multitude of charges, along with three other individuals: Darryl Bozeman, Gina Bozeman, and Terrence Terrell. At defendant's first trial he was acquitted of most of the charges, but the jury could not achieve unanimity on the rest. The charges that remained unresolved after the first trial were the subject of the proceeding in December 2004.

2 On September 12, 2007, we denied defendant's motion for reconsideration.