STATE OF NEW JERSEY v. DARRYL BOZEMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0565-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRYL BOZEMAN,

Defendant-Appellant.

________________________________

September 13, 2010

 

Argued: May 5, 2010 - Decided:

 

Before Judges Stern, J.N. Harris and Newman.

 

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

 

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Smith, of counsel and on the brief).

 

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

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was convicted of murder, two counts of armed robbery, possession of a weapon without a permit and other offenses as a result of a home invasion in Englewood. He was sentenced to life imprisonment and two consecutive twenty-year sentences for the purposeful or knowing murder and armed robberies, each with a No Early Release Act (NERA) ineligibility term, N.J.S.A.2C:43-7.2, and to a consecutive five-year term with two-and-one-half years of parole ineligibility for the permit violation and concurrent terms on the other convictions.1 The aggregate sentence was life imprisonment plus forty-five years with 100 years and three months before parole eligibility.

On this appeal defendant contends that his Sixth Amendment right of confrontation was violated when he was not permitted to cross examine co-defendant Terrence Terrell about his negotiated plea with federal prosecutors; his due process and confrontation rights were violated when an officer identified defendant in court four years after the event but only shortly after she observed him in chains in the courthouse; N.J.R.E.404(b) was violated in the absence of a limiting instruction concerning defendant's drug dealings with co-defendant Terrell, and that the charge on felony murder was plain error. Specifically, counsel for defendant raises the following issues on appeal:

POINT I THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE TRIAL COURT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE TERRENCE TERRELL ABOUT A PLEA BARGAIN THAT HE WAS NEGOTIATING WITH FEDERAL PROSECUTORS WHICH IMMUNIZED HIM FROM PROSECUTION IN THE FEDERAL COURTS AND ALLOWED HIM TO SERVE HIS NEW JERSEY SENTENCE IN A FEDERAL INSTITUTION.

 

POINT II THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN OFF[ICER] SANTARPIA WAS ALLOWED TO MAKE AN IN-COURT IDENTIFICATION OF THE DEFENDANT NEARLY FOUR YEARS AFTER THE CRIME EVEN THOUGH THE TRIAL COURT DID NOT MAKE ANY FINDINGS AS TO THE RELIABILITY OF THE IDENTIFICATION PROCEDURE. DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE COURT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE SANTARPIA ABOUT THE FACT THAT SHE HAD SEEN DEFENDANT IN CHAINS IN A COURTHOUSE HALLWAY SHORTLY BEFORE SHE MADE HER IN-COURT IDENTIFICATION. (PARTIALLY RAISED BELOW)

 

A. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW BY THE TRIAL COURT'S DECISION TO ALLOW OFF[ICER] SANTARPIA TO MAKE AN IN-COURT IDENTIFICATION OF THE DEFENDANT WITHOUT FIRST FINDING THAT SUCH AN IDENTIFICATION WOULD BE RELIABLE.

 

B. THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT RULED, SUA SPONTE, THAT OFF[ICER] SANTARPIA COULD NOT BE CROSS-EXAMINED ABOUT HER ENCOUNTER WITH DEFENDANT IN THE COURTHOUSE HALLWAY. (NOT RAISED BELOW)

 

POINT III ALTHOUGH IT WAS THE DEFENSE THAT BROUGHT OUT TESTIMONY ABOUT DEFENDANT'S PRIOR DRUG DEALS WITH TERRENCE TERRELL, THE TRIAL COURT SERIOUSLY ERRED IN REFUSING TO GIVE A LIMITING INSTRUCTION PURSUANT TO RULE 404(b).

 

POINT IV THE JURY CHARGE ON FELONY MURDER IMPROPERLY ALLOWED DEFENDANT TO BE CONVICTED BASED UPON A JURY FINDING THAT HE HAD CONSPIRED TO COMMIT THE PREDICATE OFFENSES. (NOT RAISED BELOW).

 

Defendant raises the following issues in his pro se supplemental brief:

POINT I THE IDENTIFICATION PROCEDURES USED BY LAW ENFORCEMENT IN APPELLANT'S MATTER WERE SO IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE THAT ITS ADMISSION DEPRIVED APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL UNDER THE U.S. CONSTITUTION, AMEND. VI, XIV, AND ART. 1, PARAS. 8, 9, 10 OF THE N.J. CONSTITUTION AND REQUIRE REVERSAL.

 

POINT II THE COURT'S RULING DISALLOWING ANY AND ALL REFERENCES TO THE PHOTO ARRAY ON MARCH 10, 2006, OR THE ONE-ON-ONE ENCOUNTER ON APRIL 5, 2006, DEPRIVED APPELLANT OF HIS RIGHT TO CROSS-EXAMINATION AND CONFRONTATION.

 

I.

Defendant was indicted for the purposeful or knowing capital murder of Nathan Johnson, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one);2 first degree murder of Nathan Johnson, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count two); first degree robbery of Nathan Johnson, contrary to N.J.S.A. 2C:15-1 (count three); first degree robbery of Mary Johnson, contrary to N.J.S.A. 2C:15-1 (count four); second degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count five); first degree felony murder during the course of a robbery, contrary to N.J.S.A. 2C:11-3(a)(3) (count six); second degree burglary, contrary to N.J.S.A. 2C:18-2 (count seven); second degree conspiracy to commit burglary, contrary to N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2 (count eight); first degree felony murder of Nathan Johnson during the course of a burglary, contrary to N.J.S.A. 2C:11-3(a)(3) (count nine); first degree kidnapping of Nathan Johnson, contrary to N.J.S.A. 2C:13-1(b) (count ten); first degree kidnapping of Mary Johnson, contrary to N.J.S.A. 2C:13-1(b) (count eleven); first degree felony murder of Nathan Johnson during kidnapping, contrary to N.J.S.A. 2C:11-3(a)(3) (count twelve); second degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count thirteen); and third degree possession of a firearm without a permit, contrary to N.J.S.A. 2C:39-5(b) (count fourteen). Defendant's wife, Gina, and co-defendants Terrence Terrell and Stanley Holmes were also charged in counts two through fourteen. In addition, Gina was charged with third degree hindering her own apprehension, contrary to N.J.S.A. 2C:29-3(b)(4) (count fifteen), and fourth degree hindering apprehension of her co-defendants, contrary to N.J.S.A. 2C:29-3(a)(7) (count sixteen).

About two years before defendant's trial, on February 5, 2004, Terrell entered into a "Cooperation Agreement-Memorandum of Agreement-Understanding" with the State. The agreement required Terrell to plead guilty to kidnapping and felony murder based thereon, and to be a cooperating witness, in exchange for the recommendation that he be sentenced to thirty years imprisonment with eighty-five percent thereof to be served without parole under NERA.

At Holmes' first trial the jury found him not guilty of murder, conspiracy to commit armed robbery, felony murder, possession of a weapon for an unlawful purpose, and possession of a firearm without a permit. The jury was unable to reach a verdict as to robbery, burglary, and kidnapping. At the second trial, Holmes was convicted of those charges for which a verdict could not be reached, and subsequently sentenced to an aggregate thirty-five year term of imprisonment. We affirmed his conviction. State v. Holmes, No. A-3429-04T4 (App. Div. August 1, 2007). Gina was convicted on hindering her co-defendants' apprehension, and we affirm that conviction today in A-110-06T4.

II.

Mary Johnson testified that she was home alone in her Englewood house on the evening of June 25, 2002, watching television in the family room. Nathan returned home from his weekly card game at approximately 10:30 p.m. As Nathan walked into the family room, which was adjacent to the garage, Mary commented that he was always leaving the garage door open and asked why he did not close it. Nathan replied that he was going right back out to the car. Ibid. He went into the den for a few minutes, then returned to the family room. As he walked towards the garage door, the door was pushed "off [its] hinges", knocking him down, and two men with guns came into the room.

Mary saw two men, both about six feet tall and weighing between 180-190 pounds. Both wore dark clothes, and one wore a baseball cap while the other had mesh covering his face. The man wearing the baseball cap, whom Mary later identified as Terrell, put a gun to her head, handcuffed her behind her back, and told her to get down on the floor and to keep her head down. The second man handcuffed Nathan.

The men demanded to know where Mary and Nathan kept their safe. Though they did have a "small little portable safe" behind the couch, they told the intruders that they did not have a safe. Nonetheless, one of the men went over to look at the safe behind the couch, and then threw it on the floor. One of them fired a shot, and said that "the next one is going to count," demanding again to know where the money was.

One of the men said that he was going to shoot again, and Nathan replied "if you're going to shoot[,] go ahead and shoot." Someone then said, "shoot that m-f" and two more shots were fired. Nathan apparently died instantly. Mary "never heard [her] husband's voice again." She did not see which man shot her husband.

The men then came over to Mary and asked her where the money was. She replied that the only money they had was in the bedroom, and the men went down the hall to search for it. Mary lifted up her head and saw that the room was empty, and then went over to her husband to check him, but he was not responsive. As Mary stood up, the handcuff on her left hand came loose and she was able to run out of the house. She began knocking on her neighbors' doors for help, and one neighbor called the police while another let her in the house.

At trial, Terrell testified for the State that he and defendant were friends and had grown up together. Defendant and his friend, Stanley Holmes, owed Terrell $25,000 because defendant and Holmes had delivered "some bad drugs" to him.

On the day before the robbery, defendant drove to Terrell's house in Baltimore. He drove Terrell back to New Jersey, telling him that he and Holmes had been "staking out" an old man who ran "numbers," and that there would be between $100,000 and $250,000 in cash in the man's house. Defendant also told Terrell that he knew about the money because the potential target's wife, Mary, was a customer of his wife, Gina, at her hair salon. Terrell was to get $10,000-$20,000 above the $25,000 he was owed for his participation.

Defendant and Terrell went to defendant's house in Teaneck, where they met Holmes. When they arrived, Gina and her children were outside. A burgundy colored Caravan minivan was parked in the driveway. Terrell asked Gina if he could use the bathroom, and she pointed and told him where it was. Defendant and Gina came inside and were talking in the living room when Terrell went to use the bathroom, and were still talking when he left the bathroom, went through the living room, and got into the minivan.

According to Terrell, Holmes was in the driver's seat. To avoid detection in case he dropped his wallet, Terrell put his wallet and watch into Holmes' vehicle before getting into the minivan. Defendant came out of the garage with a brown paper bag he had retrieved from a shelf. He opened the bag and asked Terrell "which gun [he] want[ed] to use." Inside the bag were a MAC 10 small machine gun and a .380 handgun, as well as handcuffs and duct tape. Terrell choose the .380 and defendant took the MAC 10. Terrell told defendant he needed gloves, and defendant went back into the garage and retrieved a pair of latex gloves for him.

Holmes then drove the minivan to the Johnson house. He let defendant and Terrell out of the minivan, and Darryl told Holmes "to drive up and down the street" while they were inside. Defendant and Terrell climbed over a fence into the backyard, and looked through a window, where they saw Mary lying on the couch. They decided to wait for Nathan to come home, and waited in the backyard for about an hour and a half. Once Nathan arrived home, defendant and Terrell entered the house. Defendant pushed the garage door open and it "came off the hinges." He grabbed Nathan, while Terrell grabbed Mary and told her to get down on the ground.

Terrell further testified that he went into a bedroom looking for the safe, but he could not find any cash. He took some jewelry, including a Cartier watch, and grabbed two fur coats out of the closet. Terrell was getting ready to leave, when he saw Nathan, who had broken loose from his handcuffs, attempting to hit defendant with an object, and then Terrell heard two gunshots.3

Defendant and Terrell ran out of the house, and Terrell dropped the fur coats. They flagged Holmes down, and jumped into the minivan, with Terrell getting in the front passenger door and defendant "jumped in" through the "sliding door" on the driver's side. Defendant told Holmes to "get me the fuck up out of Englewood," and gave him directions on where to go. Defendant said that he had left Nathan "leaking," meaning that defendant had shot him. He asked Terrell if he had found any money, and when Terrell said he had not, defendant responded "what the fuck, you all think this was a game? I knew I shouldn't have brung you all two niggers."

At approximately 11 p.m., Enrico Pulice was traveling north in Englewood Cliffs. As he approached the intersection of Johnson Avenue and North Woodland, he saw two people run into the street and get into a minivan. The minivan was in the street about three to four feet from the curb and did not have any parking lights or headlights on. Pulice thought that the sliding doors of the minivan must have been open, because the two people jumped into the van and it "took off very quickly," and he did not see anyone get into the driver's seat.

Deciding that the situation "just didn't look right," Pulice decided to follow the minivan in order to "get the license plate" number. The van was traveling "very fast," did not stop at the stop signs, and only slowed down in order to make turns.

Pulice called the Englewood Police Department on his cell phone, and spoke to his friend, Lieutenant Thomas Bauernschmidt. Pulice continued to follow the van and to try to get its license plate number. Bauernschmidt contacted the Tenafly Police Department because that was the town in which the van was then located.

Pulice was not able to get the license plate of the van until it slowed down on Dean Drive. After Pulice provided it to Bauernschmidt, Bauernschmidt ran the plate number and determined that the van had not been reported stolen but had been rented from a leasing company in Tarrytown, New York. About a block later, Pulice lost the minivan.

At approximately 11:20 p.m., Tenafly Police Officer Columbia Santarpia received a message that the Englewood Cliffs Police Department was looking for a red van that was possibly involved in a burglary. While stopped at a traffic signal, she saw a red van drive past her vehicle in a southerly direction on Tenafly Road. Though she could not see inside the rear windows because they were tinted, she observed two people in the van: the driver and a person sitting in the passenger seat.

Santarpia "activated" her overhead lights and pulled the vehicle over. After it stopped, "the driver and passenger doors opened and two males fled the vehicle."

Terrell testified that while in the minivan, defendant changed out of his black sweatshirt and dark sweatpants, and had on an orange shirt and blue shorts. After seeing the lights of the police car, defendant jumped out of the minivan. Terrell put his .380 handgun under the passenger seat and jumped out as well.

Santarpia saw "a black male wearing all black clothing" run in an easterly direction. She also saw a second male, "dressed in blue shorts, an orange t-shirt and sneakers." She focused on apprehending the second male as others chased the first man in a easterly direction. Santarpia followed the second male, the passenger in the blue shorts and orange t-shirt, and saw him "crouched behind a bush" before he jumped up and ran around the corner to a senior citizens' complex. She got back into her vehicle, and drove into the parking lot of the complex, then got out of her vehicle and searched the area. She was unable to locate him.

Police Officer Michael DeMoncada of the Tenafly Police Department heard a dispatch about a red Caravan that had been involved in a suspicious incident, traveling northbound on County Road in Tenafly. After hearing Santarpia's radio transmission that she was pulling over the vehicle, he traveled to her location in order to back her up. He saw a black male running westbound to an apartment complex, then running eastbound through a parking lot, and saw another "black male, approximately six feet tall," running eastbound along Washington Street. DeMoncada exited his vehicle and chased the second male, shouting at him to "get on the ground." Another police car pulled up and cut the suspect off, and he then stopped running, "put his hands up," turned around and faced DeMoncada.

DeMoncada placed Terrell under arrest and handcuffed him. A pat down search for weapons revealed cash, jewelry including the Cartier watch, and one latex glove.

Holmes was not seen or arrested at the scene of this stop. At approximately 11:15 p.m., Officer Scott Maura of the Englewood Cliffs Police Department passed Holmes walking on the street as he was responding "to Tenafly on a mutual aid call." Holmes was dressed in "all black" clothing. Maura patted him down, but did not find any weapons.

Holmes told the officer that he was from New York on his way to work at a club in Teaneck, and that he was first going to pick up his mother's car. After approximately twenty minutes, Maura let Holmes go because he did not feel he had been involved in the crime, as he was not sweating or nervous, and instead was "calm, cool, normal."

Holmes then called a friend in New York City, Mohammed Nofal, and asked him to come to New Jersey to pick him up. Nofal testified that he picked up Holmes in the area of Englewood Hospital, and then drove him to pick up his car in Teaneck. Nofal then followed Holmes back into New York City.

While Nofal waited in his car, Holmes got out of the car and was approached by defendant who was wearing "blue shorts and a gray shirt." Nofal could not overhear the conversation between defendant and Holmes, but he noticed that defendant "looked a little agitated." After about fifteen minutes, Nofal got tired of waiting and left.

Detective Mark Bendul of the Bergen County Prosecutor's Office responded to the site of the motor vehicle stop shortly after midnight. The minivan had all of its running lights on and the engine was running. All of the doors were closed with the exception of the passenger side sliding door. Bendul shined his flashlight into the open door and saw, in plain view, a MAC 10 gun, duct tape, keys to a car (later found to be for the Johnson's Lexus), clothing, a jewelry box, and a jewelry box drawer.

Later that morning, after the minivan had been moved to a secure garage, Bendul conducted a more thorough search. He found a set of keys belonging to a Lincoln Navigator, as well as a wallet containing defendant's driver's license. He found a pair of blue sweatpants on the floor of the second row, and inside the pocket was a Rado watch with a broken strap. He also found a black hooded sweatshirt, with mesh that would cover the face.

Julie Weldon, a forensic scientist at the New Jersey State Police DNA Laboratory, took a swab of the left inside arm cuff of the sweatshirt, and found that it matched defendant's DNA profile, with such a match occurring "in approximately 1 in 90.9 billion of the African American population."

Detective Gregory Kohles of the Bergen County Prosecutor's Office responded to the Johnson home at approximately 12:40 a.m. in order to conduct the crime scene investigation. He found one latex glove on the floor of the garage near the door into the house, two live rounds that had not been fired from a weapon, one on the door and another by the door opening, and three shell casings indicating that three shots had been fired. Forensic testing by a Bergen County Sheriff's Officer determined that the discharged bullets and casings were fired from the MAC 10 gun found in the van.

Kohles also found a boot print on the carpet, which was later determined to be similar to Terrell's boot. In the second bedroom, he found drawers open on the dresser, the closet door was open and it appeared that something had been removed from the closet.

The minivan used in the home invasion was leased to Gina. On June 26, 2002, at approximately 2:15 a.m., Detective Russell Christiana of the Bergen County Prosecutor's Office was instructed to locate and interview Gina. He arrived at Gina's house in Teaneck at 2:30 a.m., accompanied by two detectives and uniformed Teaneck police officers.

Christiana knocked on the front door, and Gina answered. He identified himself and the other officers, and told her that they needed to talk to her about the use of her minivan over the past two days. Gina allowed the police into her house and asked why they were there. Christiana told her that the police had the minivan, that it had been used in a homicide, and that they wanted to interview her at the Englewood Police Department.

Gina was "very excited and said that [the minivan] must've been stolen." She "grabbed a set of keys" from above her refrigerator, and said that it was a spare set and that she must have "dropped the other set outside," and repeated that the van "must've been stolen."

Christiana again told Gina that they needed to interview her at the police department, and suggested she call a friend or relative to come and watch her children, who were sleeping in the house. Gina called her sister and mother, and both arrived a few minutes later. She agreed to go to the police department, but was nervous and asked if her mother could go with her.

Once at the police station, Gina's mother agreed to wait in the lobby and Gina was taken into an interview room with Christiana and two detectives of the Englewood Police Department. The interview began at about 3:19 a.m.

After obtaining some background information, Christiana asked Gina about her marital status. She stated that she was married to defendant, but they had been separated for approximately five to six months because he was cheating on her. He was living somewhere in New York City, but she did not know his address, his phone number, or the name or address of the person with whom he was living. She had last spoken to defendant "a few days in the past."

When asked about the use of the minivan, Gina stated that since June 23, "she was the only person that had used [it and] that she had not lent it to anybody." Gina said that on June 25 she had it all day long and no one else had used it. She had parked the van in her driveway between 9 and 9:10 p.m. that evening, and she had not seen it again.

Christiana asked Gina if she knew Mary Johnson, a client at Gina's hair salon. Gina responded, "I don't know what you're talking about." Gina also denied knowing anyone by the name of Terrence Terrell, and denied that he was at her house on the night of June 25.4

Gina then asked, and was allowed, to call her father. She said she wanted to go home. The police let her leave. Christiana told her that there might be some more questions the police would want to ask, and she agreed to come to the police station later that morning.

At 7 a.m. the next morning, Christiana contacted Gina and said that he wanted to talk to her again. She agreed to come to the station later that day, and arrived at 2 p.m. with her attorney. Christiana asked her the same questions as in the first interview, and she gave the same answers. There were three times during the interview that Gina spoke to her attorney alone. She left the interview around 3 p.m. without providing a sworn statement, and was not arrested.5

At trial, Mary testified that she had met Gina in 1993 or 1994 at a hair salon where Gina worked. Though Gina moved her business from a shop in Englewood to a shop in Teaneck, she continued to style Mary's hair every two weeks.

On June 28, Detective Kohles went to New York City to look for defendant and his vehicle, a Lincoln Navigator. It was located in a parking garage at the Esplanade Gardens Apartment Complex at West 147th Street and Lenox Avenue in Manhattan. The police seized it, took it to the Bergen County Sheriff's Department, and searched it. They were able to unlock it using the keys found by Bendul in the minivan. Inside it, Kohles found a client record card for a hairstylist evaluation for Mary, with the hair evaluation stylist's name shown as Gina.

Tanya Hall testified that she began dating defendant in 1999, while he was still married to Gina. After defendant and Gina separated, defendant moved into Tanya's apartment in New York City in February 2002.

The day after the robbery, on June 26 at approximately 10 p.m., Hall saw defendant in front of her apartment building. He said that he would be leaving town for awhile because "there was some trouble." At about 2 a.m. the next morning, on June 27, defendant came home to her apartment and told her that he was "gonna be leaving town," and then left, taking a bag with him. Later that morning, defendant called Hall who went to the Port Authority bus station, and purchased a bus ticket for him to Charleston, South Carolina.

In late June, Gary Richardson, who lived in a suburb north of Atlanta, Georgia, received a telephone call "out of the blue" from defendant who was at the local bus station. Richardson who had not seen his childhood friend for about six years, testified that defendant stayed at several hotels in the area, and that Richardson was paying because defendant did not have any money or identification.

On August 8, 2002, after learning that defendant had taken a bus to Atlanta, two FBI agents contacted Richardson and asked him about defendant's whereabouts. After learning from Richardson where defendant was staying, they arrested him at his hotel room.

III.

Defendant argues that his Sixth Amendment right to confrontation was violated when the trial court refused to allow defense counsel to cross-examine Terrell about two topics: a plea bargain that Terrell was negotiating with federal prosecutors, which would immunize him from prosecution in the federal courts, and the alleged fact that the bargain would allow him to serve his New Jersey sentence in a federal institution.

As already noted, on February 5, 2004, the State entered into a cooperation agreement with Terrell. Terrell agreed to plead guilty to felony murder with robbery as the underlying felony, and to first degree kidnapping; give a sworn statement regarding his involvement in and knowledge of the crimes committed by himself and his co-defendants; testify truthfully in any legal proceedings; and testify truthfully at all times, whether under oath or not, in proceedings such as interviews and grand jury presentations. In exchange, the State agreed to recommend that Terrell be sentenced to a thirty-year term of imprisonment in New Jersey state prison, with eighty-five percent to be served before parole eligibility under the No Early Release Act, and dismiss all other counts of the indictment against him. In his direct testimony, Terrell testified about his "agreement" with the prosecutor for "thirty years" of "jail time." When asked if there was "any parole eligibility," Terrell said "no" and that he would "have to do the full 30 years."6

On February 21, 2006, at a pretrial motion in this case, counsel for Gina indicated that he had learned that Terrell was involved as a cooperating witness in a federal death penalty prosecution in New York. Counsel argued that he was entitled to discovery regarding this information, as it involved Terrell's motive in testifying. The trial judge ordered the State to contact the federal authorities to determine "(1) whether a nexus existed between [the federal case and the state prosecution] and, if so the extent of said nexus," and (2) "what, if any, promises were made to Terrence Terrell by the federal government in exchange for cooperation in the federal investigation as it relates to Terrell's pending sentence" on his plea under the agreement.

In a letter dated February 24, 2006, the prosecutor reported that he had spoken with Assistant United States Attorney Carolyn Pokorny of the Eastern District of New York, the previous day. Pokorny had stated that there was "no known relationship between the acts alleged in [the federal case] and the home invasion, armed robbery and murder charges" in the state case. Moreover, there was "no signed or unsigned cooperation agreement between Terrence Terrell and the federal government." She also stated that Terrell "is not, and was not, a target in the aforementioned federal case nor was he facing or 'working off' charges in exchange for his cooperation."

The prosecutor was also "assured that no promises of any kind were given to Terrence Terrell in exchange for potential testimony of Terrell as a witness." However, he was informed "that as a potential witness, steps would be taken to help ensure his protection while in custody, just as would be proffered for any other witness." Finally, Pokorny assured the prosecutor that there were "no promises or deals in existence . . . that would lessen Terrell's period of incarceration from the thirty years without parole as part of his plea agreement" in the state prosecution.

The judge was "satisfied that there [was] no agreement . . . other than that delineated" in the prosecutor's confirming letter, and therefore held that he was "not going to allow any further discussion on that issue either now or reopen it later."

Defense counsel for Gina further argued that he had a right to cross-examine Terrell on his expectation regarding service of his thirty year sentence because "once he's taken from state jurisdiction, they're not going to get him back. . . . He can be placed into witness protection and he can end up serving none of this sentence." He argued that the jury was entitled to hear if Terrell expected to serve any of his state sentence. Counsel for defendant joined in the application that the cross-examination be allowed, but the judge did not allow the questioning.

Terrell testified on April 12 and 13, 2006. At trial, Terrell acknowledged his New Jersey plea agreement, and that he faced a prison sentence of thirty years without parole, and "would have to do the full thirty years." On cross-examination by Gina's counsel, Terrell admitted that he had given several "different versions" of what had occurred, and that while he took the oath before giving his statements, that oath meant nothing to him. Gina's counsel also questioned him about his plea agreement with the State, but there was no mention of the possibility of serving his sentence in federal custody or of any deal with the federal prosecutor.

Despite the earlier representations by the federal prosecutor, on April 23, 2006, about ten days after he testified, Terrell entered into an "Agreement Not to Prosecute" prepared by the United States Attorney for the Eastern District of New York. In return for Terrell's cooperation, no charges would be filed against him "for his heretofore disclosed conduct relating to + including gun possession and conspiracy to distribute and possession with intent to distribute heroin and cocaine in or about and between 2000 and 2002."7 The agreement also allowed Terrell to request to be placed in the Witness Security Program, on the recommendation of the United States Attorney, although the final decision rested with the Department of Justice.

In a letter dated June 12, 2006, Gina's counsel requested an adjournment of the sentencings of defendant and Gina in order to hold a hearing regarding the agreement between Terrell and the federal government. The judge denied the motion to adjourn, and both defendants were sentenced on June 16, 2006.

On June 22, 2006, Terrell was sentenced to thirty years imprisonment without parole eligibility. We are told he is serving his sentence in a federal facility.8

Both the Federal and New Jersey Constitutions guarantee
criminal defendants the right "to be confronted with the
witnesses against them." U.S. Const. amend VI; N.J. Const. art.
1, 10. Included in the right of confrontation are "the
opportunity for defendants to face their accusers and to cross-
examine the state's witnesses." State v. Budis, 125 N.J. 519, 531 (1991). The right to confrontation also guarantees criminal
defendants "a meaningful opportunity to present a complete
defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986) (citations omitted). The right to confront and cross-examine accusing witnesses is "among the minimum essentials of a fair trial." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973). See also Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (right to cross examine on impact of being on juvenile probation).

However, the Sixth Amendment right is not absolute. Budis, supra, 125 N.J. at 531-32. "[T]rial courts 'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Id. at 532 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)).

The pendency of charges against a State's witness or an investigation of that witness is "an appropriate subject of cross-examination." State v. Landano, 271 N.J. Super. 1, 40 (App. Div.), certif. denied, 137 N.J. 164 (1994). There does not need to be "an express agreement that the witness will benefit from testifying favorably for the State, or alternatively, that the witness will suffer because of failing to do so," for the defense to have the opportunity to question the witness. State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996). See State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001). Instead, "[a]ll that matters is that the witness subjectively regards himself as vulnerable to government pressure." Holmes, supra, 290 N.J. Super. at 313 (emphasis in the original). Our courts have held that "[i]t is 'fundamental' that a defendant has a right to explore evidence tending to show that the State may have a 'hold' of some kind over a witness, the mere existence of which might prompt the individual to color his testimony in favor of the prosecution." Parsons, supra, 341 N.J. Super. at 458 (citing Holmes, supra, 290 N.J. Super. at 312).

Thus, a defendant establishes a violation of the Confrontation Clause when a defendant shows that he or she "was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness." Van Arsdall, supra, 475 U.S. at 680, 106 S. Ct. at 1436, 89 L. Ed. 2d at 684. The court must determine whether a "reasonable jury might have received a significantly different impression of [the witness]'s credibility had [defense] counsel been permitted to pursue his proposed line of cross-examination." Ibid.

The State concedes that the trial court should have allowed defendant to question Terrell about the impact of serving his State sentence in federal custody, but asserts that the preclusion was harmless. We cannot presume, however, that despite the representation of the United States Attorney shortly before the trial about the absence of any cooperation agreement, that upon his return to federal custody in New York after he testified, he immediately had unrelated discussions with the United States Attorney and entered the agreement. It would be improper to speculate that it was pure coincidence that an agreement was executed with the United States Attorney about ten days after Terrell testified in this case and while this trial was just ending. Nor can we speculate about the timing and the impact the agreement may have had on Terrell's testimony in this case if he anticipated such an agreement might or could be entered, and that he would serve his New Jersey sentence in some federal facility which may well be more accommodating than the one in New Jersey. We therefore decline to consider the confrontation issue or make a harmless error analysis at this time, and remand the matter to develop a record on the impact of the prohibition of questioning about Terrell's service of his State sentence in federal custody and to determine whether it impacts on defendant's argument that he is entitled to a new trial.

We cannot, of course, control the conduct of the remand proceedings, but would expect that the prosecutor would use his best efforts and statutory authority to endeavor to obtain the testimony of both Terrell and Pokorny. If that cannot be accomplished, with the ability of both parties to examine them under oath inside or outside New Jersey, the judge shall expressly consider the impact of the lack of testimony on his decision concerning the new trial.

 

 

IV.

Defendant argues that he was denied due process of law by the trial court's decision to allow Officer Santarpia to make an in-court identification of him without first finding that such an identification would be reliable. In his pro se brief, he also argues that the identification procedures used by law enforcement were so impermissibly suggestive and unreliable that admission of the identification deprived him of due process. Defendant further contends that his Sixth Amendment right to confront the witnesses against him was violated when the trial court ruled, sua sponte, that Santarpia could not be cross-examined about her encounter with defendant in the courthouse hallway. Defendant's counsel objected that Santarpia should not be allowed to identify defendant in court, but he made no specific objection to the court's ruling that Santarpia could not be cross-examined about seeing defendant in the courthouse hallway shortly before. Finally, in his pro se brief, defendant also contends that the court's ruling disallowing any and all references to the photo array on March 10, 2006, deprived him of his right to cross-examination and confrontation.

In her report dated June 26, 2002, the day after the shooting, Santarpia described the second man as "a black male wearing an orange t-shirt and blue shorts." Santarpia also testified during the two Holmes trials in 2004. At the first trial, she described the second man who exited the minivan as "dressed in blue shorts and an orange shirt." She described her interaction with the second man as follows:

Initially I ran after the male that was all dressed in black, running east on Washington Avenue. Two other officers responded. I then turned around and went after the other black male. He then ran into a courtyard. I got back in my patrol car, went around the block to the other side of the building where I then lost the black male.9

At the second Holmes trial, she also described him as "dressed in blue shorts and an orange t-shirt, and he had on sneakers also."

In her pretrial interview with the prosecutor on March 9, 2006, Santarpia described the second male as dressed in blue shorts and an orange shirt, "approximately 6'00" to 6'01" in height, and approximately 200 lbs. in weight." The Bergen County Prosecutor's Office report of this interview notes that she said "she briefly saw the face of this suspect while she pursued him on foot and when asked by [the Assistant Prosecutor] if she believed she could identify him, she said she possibly could." She had never before been asked whether or not she could identify the suspect she had chased on foot, but "believed she could possibly identify" him either in person or in a photograph. She had not seen defendant, either in photograph or in person, since the night of the incident, and she denied ever seeing his photograph in a newspaper article or other publication.

On March 10, 2006, about three weeks before trial, Detective Matthew McGowan of the Bergen County Prosecutor's Office conducted a photographic line-up with Santarpia. There were six photographs in the line-up, labeled "A" through "F", with defendant's photograph labeled as "D." She viewed the photographs three times, and indicated that she was "50% sure" that photograph "D" was the same individual she had chased on foot, but that she could not eliminate photograph "A" even though the eyes did not appear right.

On March 22, 2006, Santarpia testified at a N.J.R.E. 104 hearing about the admissibility of her identification of defendant.10 She testified that after the minivan stopped on Tenafly Road, just south of Washington Avenue, two black males fled the vehicle. One of the men, wearing all black, ran west in the area of Washington Avenue. The other "was wearing blue shorts and an orange t-shirt and he fled west into [the] senior citizens complex." She followed the second man. "It was dark with some street lights on." She saw him "crouch down" behind something, then he "popped back up" and ran into the complex. At that point she was able to see his face for under a minute. He was about six feet tall, and approximately 200 pounds, with a "leaner build than the other black male." She went back to her patrol car and went around the block to the parking lot of the complex, but was unable to find him.

On cross-examination, Santarpia testified that she saw the second man's face "when he first got out of the car." She admitted that she had never told anyone before that she had seen his face when he exited the van. She never stated in her report that she saw the man's face. She described the man as "approximately six foot, 200 pounds, lean build, sneakers, blue shorts, orange shirt, the shape of his head was -- I guess it would be considered an oval. His eyes dark, very, very, short cropped hair almost to his scalp." She could tell the color of his eyes, "dark" or "brown," even though she was fifteen feet away and it was night. If there were bulletins posted in the police department with defendant's picture on them, she did not see them. She never read a newspaper article about the case.

On re-direct examination, Santarpia testified that she had a specific enough recollection of the person she saw run out of the minivan that she could possibly identify him at trial.

After hearing this testimony, the judge ruled that the State would be allowed to present Santarpia's testimony, but would not be allowed to elicit any testimony about the out of court photographic identification.

Santarpia testified at trial on April 5, 2006. As defendant was being brought into the courtroom, in shackles and handcuffed, he passed Santarpia in the hallway. Defense counsel argued that Santarpia should not be allowed to make an in-court identification because it had been tainted by seeing him in the hallway. The judge denied the motion, holding that there could be an in-court identification but there could be "no mention" that Santarpia saw defendant in the hallway. During her testimony, Santarpia identified defendant in court as being the second man in the blue shorts and orange shirt she had seen run from the minivan.

In instructing the jury on identification, the judge stated that the State had the burden of proving the identity of the person who committed the crime beyond a reasonable doubt. He also stated that:

In considering the in-court identification made by Officer Santarpia, I must caution you that a one-on-one confrontation in court is the most suggestive setting in which to ask a witness if they can make an identification. The reasons for this are obvious. By virtue of the defendant appearing as the only black male at counsel table, the witness is given a very strong impression that the prosecuting authorities are already satisfied that he is the right man.

"Challenges to convictions based on in-court identifications following out-of-court photographic identification procedures are reviewed in this state under the two-step procedure established by the United States Supreme Court." State v. Little, 296 N.J. Super. 573, 579 (App. Div.), certif. denied, 150 N.J. 25 (1997). Under this test, a trial court must first decide whether the pretrial identification procedure was impermissibly suggestive and, if it was, the court "must then decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

Where a trial court finds a pretrial identification procedure to be impermissibly suggestive, the State has the burden of proving by clear and convincing evidence that the identification had a source independent of the suggestive identification procedure. United States v. Wade, 388 U.S. 218, 240, 87 S. Ct. 1926, 1939, 18 L. Ed. 2d 1149, 1164 (1967); State v. Madison, supra, 109 N.J. at 245; State v. Cooper, 165 N.J. Super. 57, 66 (App. Div.), cert. granted, 81 N.J. 56, appeal dismissed, 81 N.J. 261 (1979). This second prong of the analysis requires the court to focus on the reliability of the identification. "'Reliability is the linchpin in determining the admissibility of identification testimony.'" Madison, supra, 109 N.J. at 233 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). "The reliability determination is to be made from the totality of the circumstances adduced in the particular case." Id. The factors to be considered in evaluating reliability "include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his or her prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972). "If the court finds that the identification is reliable, despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Madison, supra, 109 N.J. at 232.

Also, although a trial court is required to reach the issue of "taint" only if it first finds that the identification process was unduly suggestive, the better practice is to make specific findings of fact on the independent reliability of the identifications. Madison, supra, 109 N.J. at 244-45.

Here, the trial court did not make the necessary findings. The judge never stated whether Santarpia's out-of-court photo array identification of defendant was impermissibly suggestive, but held that it could not be admitted into evidence at trial. On the other hand, he made no findings as to the reliability of the identification or why the in-court was admissible in light of the excluded photographic identification and the courthouse observation. As a result defendant's Sixth Amendment right to confrontation is seriously implicated.

We remand for further proceedings on the questions concerning identification which the trial judge did not address and to determine issues of admissibility based thereon. The judge should also consider whether defendant is entitled to a new trial as a result of this issue either based on the law to which we have averted or anything the Supreme Court may decide in the interim based on the pending report of the Master on the issue of identification testimony. See State v. Henderson, 2 009 Lexis 45 (2009); http:/www.judiciary.state.nj/pressrel/pr100621a.htm.

Moreover, the two issues on which we remand and a third warrant legitimate concern about the fairness of the trial in the aggregate. There was testimony that the motive for the robberies was to obtain the $25,000 that defendant owed Terrell because, according to Terrell, the defendant had delivered "bad drugs" to him and Terrell "sent it back." A limiting instruction on the issue of the basis for admission of testimony concerning defendant's drug dealing with Terrell was required. SeeState v. Barden, 195 N.J.375, 390 (2008).11 As a result, in addition to addressing the two specific issues we have asked him to address, we also direct the trial judge to do a careful analysis of whether the defendant should be entitled to a new trial based on the aggregate of concerns which we have addressed.

If the trial judge concludes that a new trial is not warranted, we shall address the issues remaining on the appeal and those raised by supplementary briefs to be exchanged within 30 days after the defendant produces the transcript. If a new trial is ordered by the trial judge, we hereby grant leave to appeal and require supplementary briefs to be filed within thirty days after the transcript is produced at the expense of the State.

Irrespective of the conclusions of the trial judge on the remand, which shall be concluded by October 30, 2010, a careful harmless error analysis should be considered in the supplementary briefs. See e.g., Delaware v. Van Arsdall, supra, 475 U.S.at 684, 106 S. Ct.at 1438, 89 L. Ed. 2d at 686. By remanding the matter for further proceedings, we do not now consider and express no opinion on the State's harmless error argument.

R

emanded for further proceedings consistent with this opinion.

1 Defendant was tried with his co-defendant estranged wife, Gina, only. The defendant was charged alone for capital murder which was dismissed during trial, and his wife was charged alone with hindering apprehension and prosecution of herself, and of her husband and two co-defendants who were also charged in the remaining counts.

2 This count was dismissed during trial.

3 Terrell's version of events contradicts Mary's testimony that both men were present when her husband was shot.

4 Christiana told her that, by then, Terrell had "told detectives that he was her cousin and that he was at her house the night of June 25, 2002."

5 The testimony about the attorney was developed at the N.J.R.E. 104 hearing, but not before the jury. At that hearing it was also developed that Gina was arrested on July 19, 2002. She was advised of the charges against her, and she immediately said she wanted her attorney. When her attorney arrived, he told the police they could only ask her about defendant's whereabouts. The police advised her of her Miranda rights in the presence of her attorney. She said she did not know where defendant was, but that his girlfriend, Tanya Hall, would probably know.

6 Concurrent sentences aggregating thirty years were imposed. Thirty years of parole ineligibility was imposed for the murder and eighty-five percent for the kidnapping. The judge also imposed separate Graves Act sentences.

7 The words "+ including gun possession and" were added by hand.

8 Defendant notes that according to the federal Inmate Locator, http://www.bop.gov/iloc2/LocateInmate.jsp, "Terrence A. Terrell," was released on January 3, 2006. However, on January 22, 2009, Assistant United States Attorney Carolyn Pokorny certified that Terrell is serving his thirty-year New Jersey prison sentence "in a federal facility."

9 At the time of the first Holmes' trial, Officer Santarpia's surname was Trainor.

10 Apparently, pursuant to "the defense position," defendant was excused from the hearing.

11 Defendant argued the drug dealing was the alleged "motive" for the robbery. His wife argued she was entitled to assert she was not involved in any drug transactions.