On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 03-01-0032.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, J.N. Harris and Newman.
Defendant was indicted with her husband, Darryl, and with Terrence Terrell and Stanley Holmes, and charged with murder, two counts of first degree robbery, conspiracy to commit robbery, three counts of felony murder, second degree burglary, conspiracy to commit burglary, two counts of kidnapping, possession of firearms for unlawful purposes, and unlawful possession of firearms. She was also indicted alone for hindering her own prosecution, contrary to N.J.S.A. 2C:29-3(b)(4), and for hindering the apprehension and prosecution of the co-defendants, in violation of N.J.S.A. 2C:29-3(a)(7). Her husband was indicted alone for capital murder. All defendants were jointly charged in the remaining counts.
The case dealt with the "home invasion" of Nathan and Mary Johnson, allegedly in an effort to obtain proceeds of illegal activity, and particularly cash, which defendants believed to be there. Nathan and Mary Johnson were each victims of the robbery and burglary counts, and Nathan was killed during the event. As a result, defendant's husband, Darryl, was charged with capital murder and all four defendants with purposeful and knowing murder and with felony murder based on Nathan's death during the robbery, burglary and/or kidnapping. The facts produced at the joint trial with her husband are embodied in our opinion regarding her husband's appeal, filed today in A-0565-06T4. That opinion details the evidence as it relates to this defendant, and the opinion is incorporated herein.
Defendant was convicted only of fourth-degree hindering apprehension or prosecution of another, N.J.S.A. 2C:29-3(a)(7), notwithstanding the proofs that the home selected belonged to a long term client of defendant in her capacity as a hair dresser and that her van was used as the getaway vehicle. As noted in our companion opinion, a passerby observed the van's license number and called the local police who were able to stop it before leaving the area. The co-defendant occupants of the van abandoned the vehicle and were caught at different times and places. The defendant and her estranged husband were tried together but not with the co-defendants.
Defendant first argues that her conviction on the single count "was based solely upon defendant's statements to police" and that they must be suppressed. She was allowed to take her mother with her for an early morning interview at the Englewood Police Department, was permitted to call her father while being interviewed, and to leave when she asked to go home to be with her children. When she returned, as requested, she did so with an attorney and signed no statement.
There is no basis for interfering with the trial judge's findings that her statements were voluntary and not the product of custodial interrogation. Moreover, there appears to have been no inconsistency between what she said when the police came to her house during the early phase of the investigation and what she later stated to the police.*fn1 Defendant's problem is she was found to have lied from the outset about her van being stolen, and that she did not see her husband or Terrell on the eve of the home invasion. At least the first part of that false information was conveyed by defendant to the police by her responses at her house.
Next, defendant claims her motion for severance and to admit the testimony of co-defendant Holmes at her trial should have been granted. She claims that the testimony of Holmes from his prior trial was exculpatory to her because he contradicted Terrell about entry into the defendant's home and observation of discussions with her husband at defendant's home before the perpetrators departed in her van. Defendant sought a severance because the Holmes testimony was incriminatory as to her co-defendant husband.
We agree with the State that the trial judge did not abuse his discretion in denying the severance. The trial judge was told Holmes intended to assert his Fifth Amendment right and could not have been called to testify at the joint trial. We have to presume he would have done the same had there been a severance, and we by-pass the problems based on defendant's failure to call Holmes to see if he would actually assert the privilege at the trial or if he could legally do so after his trial had ended. In any event, the State did not cross-examine Holmes at his trial on issues of relevance to this defendant's trial. As stated by the State, it "simply did not have a 'substantially similar' interest at Stanley Holmes' trial, as it did at defendant's own trial, of bringing out defendant's actions and whereabouts before the fatal trip to the Johnson  house." Moreover, in our view, the lack of severance probably helped defendant because the case really did not focus on her, and the verdict certainly reflects she was not prejudiced by the lack of evidence. On the other hand, she was convicted on the count related to hindering the co-defendants' arrest and prosecution, and that is the count to which she asserts Holmes' testimony related.
As we understand the evidence, the conduct for which defendant was convicted related to hindering the prosecution of her husband and his confederates based on her statements concerning not seeing them that night and her lack of knowledge of what happened concerning the van which she reported as stolen. Moreover, we have read Holmes' testimony in the transcript presented to us from his trial, and do not see it as exculpatory when considered as a whole. Holmes did not really "exculpate" defendant because Holmes said he was not concentrating on the scene once he entered the vehicle, and testified he, Holmes and Darryl met at Gina's home and took her minivan.
All the other arguments advanced by defendant lack sufficient merit to warrant discussion in a ...