On appeal from Superior Court of New Jersey, Law Division, Bergen County, 03-01-0032-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2006
Before Judges Stern, Collester and Baxter.
Defendant Stanley Holmes appeals his convictions and sentence. There were two trials on the indictment against defendant and co-defendant. The jury found defendant not guilty of murder, conspiracy to commit armed robbery, felony murder, second-degree possession of a weapon for an unlawful purpose, and third-degree possession of a firearm without a permit. When the jury was unable to reach a verdict on the counts of the indictment charging first-degree armed robbery, second-degree burglary and first-degree kidnapping, the judge declared a mistrial and directed a retrial as to those charges. At the second trial the jury found defendant guilty of all remaining charges. Defendant's motion for judgment of acquittal or a new trial was denied, and he was sentenced on January 28, 2005, to an aggregate term of thirty-five years incarceration to serve eighty-five percent under the No Early Release Act (NERA). We affirm his convictions and sentence.
On June 25, 2002, there was a home invasion at the residence of Nathan and Mary Johnson in Englewood. Shortly after 10:30 p.m., two armed men burst through a connecting door from the garage to the family room. After assaulting Mr. Johnson, the men made both him and his wife lie on the floor while they handcuffed them. When the men demanded the location of a safe, Mrs. Johnson told them that there was a portable lockbox in another room. She said that when the box was found to be empty, one of the men fired a shot, stating "The next one is going to count." He then declared he was going to "shoot that motherfucker." Mrs. Johnson then heard two shots. One of the men yelled at her, "Where's the money?" She directed him to a bedroom closet where her furs were hung. After a few minutes and she believed the men had left, she freed herself by sliding her right hand out of the handcuffs. When she got up, she saw her husband's body slumped against a bookcase. He did not respond to her cries and she fled to a neighbor's house where the police were called.
At about 11 p.m. Englewood Police Officer Thomas Greeley and his partner were dispatched to the Johnson home after a report of an armed robbery. After no one answered the door, the officers walked through the garage and saw that the door to the family room had been forced open. Inside they saw Mr. Johnson's body. Paramedics were called but were unsuccessful in resuscitating him. Mr. Johnson was pronounced dead by the medical examiner at 12:15 a.m. The cause of death was gunshot wounds to the head and abdomen.
Before the Englewood police arrived at the Johnson residence Erico Pulice, a passing motorist, saw two people run from a house into the van that was parked with the motor running and the lights off. Sensing that something untoward was going on, Pulice impulsively followed the van as it sped away. From his car he called Lieutenant Thomas Bauerschmidt of the Englewood Cliffs Police Department, who was a personal friend.
By this time Bauerschmidt had received a report of an armed robbery in progress. He asked Pulice to try to get the license plate number and Pulice continued to follow the van at speeds of sixty-five to seventy miles an hour and was able to report the license plate number to Bauerschmidt. An immediate computer check disclosed that the vehicle was a maroon Dodge Caravan registered to Gina Bozeman. Bauerschmidt radioed the Tenafly Police Department that Pulice was following a suspicious van that may have been involved in an armed robbery.
Shortly after receiving the radio alert, Tenafly Police Officer Columbia Santarpia saw the van. She gave pursuit and activated her overhead lights. The van stopped, and two men ran out of the van, each in a different direction. Tenafly Officer Michael DeMoncada saw a man running from the bushes of an apartment complex near Tenafly Road and through a parking lot. He cornered the man, ordered him to the ground, and handcuffed him. Patting the man down for weapons, Officer DeMoncada found several pieces of jewelry and a watch later identified as having been taken from the Johnson home. The man was later identified as Terrence Anthony Terrell. He was transported to the Englewood police headquarters where Mrs. Johnson was being interviewed. Terrell was brought into the room, and she immediately identified him as one of the robbers.
At about the same time, Detective Mark Bendul of the Bergen County Prosecutor's Office was looking through the open passenger door of the van with the aid of his flashlight and saw a .9mm handgun, rolls of duct tape, and an empty jewelry box. He examined a wallet containing identification of Darryl Bozeman as well as business cards for Gmade Hair Studio in Englewood with the inscription "Gina Bozeman, Stylist." When the .9mm handgun was subsequently test fired, the test cartridges matched the bullets retrieved from Johnson.
Later that night, Terrell was interviewed by Captain Joseph Hornyak of the Bergen County Prosecutor's Office. Given his Miranda*fn1 warnings, he agreed to give a statement. At that time he said that he participated in the armed robbery with Darryl Bozeman and a man named Stan but only as the driver, denying the he went into the Johnson house. However, in his trial testimony Terrell changed his testimony to admit that he entered the house with Bozeman while Stan remained in the car. He explained that he initially lied because he believed that he would get a lighter sentence if he said he was only the driver.
At or about the time that Terrell was captured by the police, Englewood Cliffs Officer Scott Mura was assisting in the search for the men observed running from the van. He saw a man, later identified as defendant, walking about 500 feet from the van. Mura stopped him and requested identification. Defendant gave his name and showed his driver's license. He explained that he was on foot because he had taken a cab from New York City to pick up his mother's car but had gone to get out after a dispute with the driver about the fare. He added that he worked at a nightclub on Tenafly Road and lived in New York City. Officer Mura said that defendant was calm, polite and courteous. He sat in the police car while Mura ran a computer check on his driver's license number. When a radio transmission broadcast that the home invasion in Englewood involved a "DOA" and suspects were armed and dangerous, defendant joked that he was safer living in the Bronx than in New Jersey. Officer Mura accepted defendant's explanation as to his presence in the area and told him he was free to go.
Later that night defendant called Mohammed Nofal, a friend in New York, and asked him for a ride. When Nofal arrived, defendant directed him to a red Ford Taurus parked a short distance away, which he drove across the George Washington Bridge to his parents' home in the Bronx, arriving at about 1 a.m. He then called Terrell's sister, Ashley Jones, and insisted on meeting her immediately. Jones had rented the burgundy Taurus that afternoon and let the defendant use it that night. Defendant gave Jones her brother's wallet, which he said was left in the Taurus. He said he drove Terrell and Bozeman to a house in New Jersey. When they went inside he drove around waiting for them. After some time, they ran out of the house and into the van, screaming at each other and saying that a man inside the house was bleeding to death. The following day investigators were able to put together Terrell's statement about the involvement of a man named Stan Officer Mura's report that he saw defendant a short distance away from the van. Two New York detectives located defendant at his job site. Later he was taken to the Bergen County Prosecutor's Office and given his Miranda ...