August 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY L. HOLMES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 warnings. He agreed to make a statement and told Detective Hornyak the same story he told Officer Mura about taking a cab from New York to pick up his mother's car and being told to get out of the cab by the cabdriver. He said he knew nothing about a robbery and denied knowing either Terrell or Bozeman.
Detective Hornyak placed defendant under arrest and had him taken to a detention cell. Hornyak then told Terrell, who was also in custody, that defendant denied any involvement. Terrell agreed to confront the defendant. He stood outside defendant's cell and repeated what he had told the police earlier about defendant's participation. Shortly thereafter, defendant confessed that he was the driver of the van. He said that Bozeman had called him at about 7:30 the night before and asked to see him. He picked up Bozeman and Terrell and drove the burgundy Dodge Caravan to Englewood. During the trip Terrell said that he and Bozeman had handguns, handcuffs and latex gloves. At first defendant said he had no idea what they were going to do. Later he admitted that Bozeman told him that his wife Gina said she was Mrs. Johnson's hairdresser and had seen a lot of cash and jewelry at her home. Following Bozeman's directions, defendant drove Terrell and Bozeman to a house in Englewood where Bozeman told him to pick them up at 11. He drove around until he saw Terrell waving his hand and yelling at him. Terrell and Bozeman jumped into the van and began screaming at each other about someone being shot. As he drove away, defendant noticed a car following the van and tried to lose it. When a police car approached with its flashing lights on, defendant stopped the van, and Bozeman and Terrell ran off. Defendant watched the police follow them while he remained in the van. After a few minutes, he walked away and encountered Detective Mura a short distance from the van.
The State's case centered on defendant's confession and Terrell's testimony following his guilty plea to felony murder and kidnapping pursuant to a plea agreement recommending a sentence of thirty years parole ineligibility. Terrell testified on June 25, 2002, he received a call at his Baltimore home from Bozeman, who said he was going to pick him up and take him back to New York so that he could collect the $25,000 owed to him by Bozeman and defendant. During the ride, Bozeman told him of a plan to rob the house of a seventy-year-old man who controlled an illegal numbers operation and kept between $100,000 to $250,000 in a safe. The plan was to grab the wife, tie her up, wait for the husband to come home and then make him open the safe. At first they agreed that Terrell was to be the driver while Bozeman and the defendant were to go inside and get the money. But Bozeman decided to change the plan, saying that he had lost confidence in the defendant, and Terrell agreed that he would go into the house with Bozeman. Later that day he and Bozeman met defendant who was driving a red Taurus rental car. When it was discovered that the interior light was slow to turn off, they decided to use Gina Bozeman's burgundy caravan instead. Terrell said he left his wallet in the Taurus to avoid any chance of dropping it at the scene of the crime. He said Bozeman brought a bag containing duct tape, latex gloves, two sets of handcuffs and two handguns.
Terrell testified that after they saw Mr. Johnson come home at about 10:30, he and Bozeman forced their way in, assaulted Mr. Johnson and handcuffed both victims. When Mr. Johnson would not tell them where the safe was located, Bozeman fired a warning shot. Mrs. Johnson then said there was money in the bedroom along with jewelry and furs, and Terrell went to find it. He found some jewelry and two fur coats but no money. When he returned to the family room, he saw Mr. Johnson standing with a ceramic statue. Two shots were fired by Bozeman. Terrell said he dropped the furs and ran out of the house into the waiting van followed by Bozeman. After they heard police sirens, defendant stopped the van. Terrell then ran away but was soon apprehended by police.
Defendant testified on his own behalf. He denied knowing that Bozeman and Terrell intended to commit a robbery. He admitted driving them to Englewood and said he heard them talking about guns. He also saw handcuffs but said he was not troubled because they were "kiddie cuffs." He said after he dropped the two off, he drove around until they ran back to the van. It was only when they began screaming at each other that he became aware that there had been a serious incident inside the Johnson home.
In addition to his testimony, the defendant presented numerous character witnesses, all of whom attested to defendant's honesty and his propensity to drive others around when requested to do so. Following his conviction and sentence after his second trial and the denial of his motion for judgment of acquittal or a new trial, defendant filed this appeal. He makes the following arguments:
POINT I -- THIS PROSECUTION IS INVALID UNDER PRINCIPLES OF DOUBLE JEOPARDY, AND ACCORDINGLY THE CONVICTION MUST BE VACATED AND THE INDICTMENT DISMISSED AS TO THE DEFENDANT. U.S. CONST., AMEND. V, XIV; N.J. CONST., (1947), Art. 1, par. 11.
POINT II -- THE STATE'S PROOFS FAIL TO SUPPORT THE CONVICTIONS FOR KIDNAPPING, NECESSITATING THEIR VACATION. (Not Raised Below.)
POINT III -- THE TRIAL COURT ALLOWED, WITHOUT REMEDIATION, TESTIMONY INDICATING THAT THE DEFENDANT HAD PREVIOUSLY ENGAGED IN CRIMINAL CONDUCT, GREATLY PREJUDICING THE DEFENDANT AND NECESSITATING REVERSAL.
POINT IV -- THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE IN ADMITTING EXTENSIVE EVIDENCE CONCERNING A MURDER, INCLUDING PHOTOGRAPHS OF THE BODY AND BULLETS, AND WEAPONS OFFENSES, FOR WHICH HE WAS NOT BEING TRIED.
POINT V -- THE SENTENCING COURT FAILED TO FIND STATUTORY FACTORS, NECESSITATING A REMAND FOR RESENTENCING AND IMPROPERLY IMPOSED CONSECUTIVE SENTENCES.
A. THE COURT FAILED TO FIND STATUTORY FACTORS, NECESSITATING A REMAND FOR RESENTENCING.
B. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
We first address defendant's argument that his acquittal of felony murder and weapons counts at his first trial barred his subsequent prosecution for armed robbery, armed burglary, and kidnapping under the New Jersey and United States constitutional prohibition against double jeopardy. We disagree.
The double jeopardy principle prohibits a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed. 2d 656, 661 (1969); State v. DeLuca, 108 N.J. 98, 102 (1987), cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed. 2d 358 (1987). Here, defendant was neither convicted nor acquitted of the charges of armed robbery, armed burglary, or kidnapping at his first trial because the jury was unable to reach a verdict as to those counts of the indictment.
Since United States v. Parez, 9 Wheat 579, ___ S.Ct. ___, 6 L.E. 165 (1824), the United States Supreme Court has held that a retrial following a hung jury does not violate the double jeopardy clause of the Fifth Amendment. Logan v. United States, 144 U.S. 263, 297-98, ___ S.Ct. ___, ___ L.E. ___ (1892); Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949); Richardson v. United States, 468 U.S. 317, 325-26, 104 S.Ct. 3081, 3086, 82 L.Ed. 2d 242, 251 (1984). Moreover, our Supreme Court has held that the New Jersey Constitution prohibiting retrial "after acquittal . . . for the same offense," N.J. Const. art I, ¶ 11, is co-extensive with the Fifth Amendment clause with respect to claims of multiple prosecutions. See, e.g., State v. Dillihay, 127 N.J. 42, 47 (1992); State v. Churchill Leasing, Inc., 115 N.J. 83, 107-08 (1989); State v. Roller, 29 N.J. 339, 344 (1959). See also State v. Shellbaker, 227 N.J. Super. 129 (1994).
The defendant's double jeopardy claim lacks the essential predicate because the original jeopardy never concluded. Put another way, this was not a plural attempt by the State to expose defendant to trial but the continuation of its attempt to convict defendant in the same trial on the charge. There was no double jeopardy and no collateral estoppel. See State v. Triano, 147 N.J. Super. 474 (App. Div. 1974), certif. denied, 65 N.J. 280 (1974).
We next address defendant's argument that the trial judge erred in denying his mistrial application based on the following testimony by Terrell on the State's direct examination:
Q: Was there a discussion where [defendant] wanted to go inside the house?
Q: And you said, what did he say?
A: He [Bozeman] was saying he can do it, he can do it, he can do it this time.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Defendant argues that the clear implication of the phrase "this time" is that defendant had been involved in similar criminal activity with Bozeman and Terrell. He argues that the comment was extremely prejudicial, especially since his defense was based on the fact that he had no criminal record and the testimony of his character witnesses that he was law abiding.
The standard for granting a mistrial is whether or not the error or incident is of such dimension that continuation of the trial would result in a manifest injustice. See generally, State v. Winter, 96 N.J. 640 (1984); State v. Hogan, 297 N.J. Super. 7, 14-19 (App. Div.), certif. denied, 149 N.J. 142 (1997). It is also a matter resting on the sound discretion of the trial judge, and we will defer to the judge's determination absent a clear showing that manifest injustice will result. State v. Harvey, 151 N.J. 117, 205 (1997).
While a cautionary instruction would have been appropriate, we find that the fleeting, isolated and unsolicited comment by Terrell was not of such dimension to warrant reversal of the trial judge's decision to deny a mistrial.
The remaining arguments raised by defendant as to his convictions and sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).