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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 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.*fn1
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.
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);*fn2 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.
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.*fn3
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 ...