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State of New Jersey v. Darryl Bozeman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRYL BOZEMAN, DEFENDANT-APPELLANT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 5, 2010 - Remanded September 13, 2010 Reargued May 25, 2011

Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

This appeal reprises the issues that we left unresolved in our earlier opinion, State v. Bozeman, No. A-0565-06 (App.Div. September 13, 2010). Believing that a remand for an evidentiary hearing was the most appropriate method to unearth all relevant evidence necessary to address defendant Darryl Bozeman's constitutional and other claims of error, we now have the benefit of those evidentiary materials, together with the findings of the remand judge (who was also the trial judge). Having dispelled the specter of conjecture and speculation, we no longer harbor any reservations about tackling the substantive issues raised by defendant Darryl Bozeman, which are the following:*fn1

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).

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).

After reviewing the entire record through the prism of the totality of the circumstances -- including the evidence produced on remand -- we do not find Bozeman's arguments persuasive. We affirm.

I.*fn2

Bozeman was tried and convicted by a jury in 2006 of the murder of Nathan Johnson during a late night home invasion that occurred in Englewood in June 2002. Working with his friends Stanley Holmes*fn3 and Terrence Terrell,*fn4 Bozeman intended to steal a large cash cache believed to be concealed in Johnson's home. The ostensible goal of the robbery was to obtain the money to repay Terrell for a $25,000 debt that Bozeman and Holmes owed him. In addition, Terrell expected to receive monetary compensation for his assistance in the crime.

The three associates drove to the Johnson home in a maroon Dodge Caravan minivan that was usually entrusted to Bozeman's estranged wife, Gina Bozeman.*fn5 In the ensuing entry and occupation of the Johnson home, which included the handcuffing of the decedent's spouse Mary Johnson, Bozeman and Terrell discovered that the cash was nowhere to be found. Instead, they stole some jewelry and furs. Terrell testified that Bozeman shot Nathan two times during ensuing fisticuffs; Mary was able to testify that one of the two men fired on Nathan, but she was not sure who actually pulled the trigger.

In making their hasty escape from the scene of the crime -- with Holmes at the wheel of the minivan -- the three actors traveled from Englewood into nearby Tenafly where they encountered Police Officer Columbia Santarpia. While making a stop of the minivan, Santarpia observed the driver and passenger doors abruptly open and two males fled into the night. Although only briefly observing the clothing of both persons leaving the scene, she noted that one was dressed in blue shorts, an orange tee shirt, and sneakers. She elected to follow that suspect, later finding him hiding behind a bush, before he ran off again. Although she gave chase, Santarpia was unable to locate the eluder.

Meanwhile, another Tenafly police officer apprehended Terrell, who was found in possession of some of Johnson's stolen property. At a separate location not far from where the minivan was parked, Holmes was intercepted by a third police officer, but was released after twenty minutes when the police officer was persuaded by Holmes that he was not involved with anything amiss. Holmes ultimately called upon an acquaintance in New York City to pick him up in the vicinity of Englewood Hospital, and was taken to his car. Holmes then drove to New York City. He was ultimately captured a few days later in New York, and then returned to this State under arrest.

A subsequent search of the minivan disclosed substantial evidence of the crime that had occurred at the Johnson home, as well as a set of keys belonging to a Lincoln Navigator (later determined to be Bozeman's car) and a wallet containing Bozeman's driver's license. A sweatshirt and sweatpants were also recovered from the minivan, from which a specimen collected from the left inside arm cuff revealed evidence of DNA that matched Bozeman's DNA profile.

Several weeks later Bozeman was arrested in a hotel room in the vicinity of Atlanta, Georgia. He had traveled south less than forty-eight hours following the homicide, leaving New York City by bus after telling his paramour, "there was some trouble."

II.

As detailed in our opinion ordering a remand, we expressed "legitimate concern about the fairness of the trial in the aggregate," yet we expressed "no opinion on the State's harmless error argument." Bozeman, supra, slip op. 39-40. We believed that it was prudent for the Law Division to augment the record so that a comprehensive harmless error analysis of the following questions could be made without engaging in guesswork:

* were Bozeman's confrontation clause rights violated by the trial court's limiting the cross-examination of Terrell, and the jury being unaware ofthe full extent of Terrell's cooperation with foreign law enforcement authorities, as well as his expectations regarding punishment and concerns about personal safety;

* was Santarpia's in-court identification of Bozeman reliable;

* were Bozeman's confrontation clause rights violated by the trial court's limiting the cross-examination of Santarpia, and the jury being unaware that Santarpia had just seen Bozeman handcuffed and in shackles in the courthouse hallway; and

* were the jury instructions fatally flawed due to the absence of a specific instruction relating to evidence of Bozeman's involvement in drug trafficking with Holmes and Terrell?*fn6

Among other things, we recognized that the trial court's incomplete findings regarding the admissibility of Santarpia's identification "seriously implicated" Bozeman's Sixth Amendment right to confrontation. Id. at 38. Also, we invited the trial court 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." Id. at 39.*fn7

The evidentiary hearing on remand was conducted in October 2010. Assistant United States Attorney Carolyn Pokorny and Terrell testified during the three-hour proceeding. On December 14, 2010, the remand court rendered an oral decision making findings and denying Bozeman's application for a new trial. This appeal ensued.

A.

Pokorny testified that Terrell was a witness in the federal investigations of two men, Kenneth McGriff and Victor Wright. Terrell was never a target of the investigations, and the United States Attorney's Office never made him any promises regarding the charges he faced in New Jersey. No one from the United States Attorney's Office discussed with Terrell the possibility of reducing the amount of time he would serve in prison.

Pokorny intended to utilize Terrell as a witness at Wright's late-April 2006 trial. She spoke with Terrell after he had testified at Bozeman's trial in mid-April. Pokorny prepareda federal agreement not to prosecute Terrell on April 23, 2006, the day before the Wright trial was scheduled to begin. She testified that she drafted the agreement because "as [she] was prepping him for trial and thinking through what he would be testifying about in the cross-examination, it occurred to [her] that he would be acknowledging that he had committed federal drug crimes that were not covered in his cooperation agreement with the State." It was her experience that "if a witness is on the stand and their liability has not been addressed, our judges will ask them if they understand that they're exposing themselves. They could stop the trial and force the person, or at the very least strongly encourage them, to talk to a federal defender." Pokorny thus decided it would be appropriate to put in writing that Terrell would not face any prosecution for a federal crime he would potentially discuss in federal court. According to Pokorny, there was never any discussion that Terrell might possibly face federal charges before that date.

The agreement not to prosecute provided that there would not be any federal charges against Terrell for drug trafficking and gun possession for the period of 2000-2002. In exchange, he was required to provide truthful testimony for the federal government. The agreement further provided that if the United States Attorney's Office believed it was appropriate, it wouldmake an application and recommend that Terrell be admitted into the witness security program where a person convicted of a crime serves out a term of imprisonment in a witness security facility for his or her protection. Terrell was not assured entry into the program because the United States Attorney's Office did not have final decision-making authority. Also, Terrell was never promised that he would serve any less than the thirty years of his plea-bargained State sentence.

Ultimately, Terrell was permitted to participate in the federal witness security program. Pokorny explained why Terrell's name did not appear on a website showing where federal inmates were being housed. Because he was in a witness security jail, his name would not so appear. Nevertheless, she insisted that Terrell was being housed in a federal facility, and was not part of the civilian population as part of the witness protection program, an adjunct to the witness security program.

B.

Terrell also testified on remand. Following his arrest on the night of Johnson's murder, federal and state law enforcement authorities visited him while he was in custody, and he cooperated with them. During that time, no one promised him anything as it related to his New Jersey case. Although agreeing to become a witness in the federal investigation, hewas never given any assurances that he would serve less time in New Jersey if he cooperated with federal authorities. However, Terrell did believe that he was furthering his interests in so cooperating, even if his cooperation was not directly related to the New Jersey charges.

It was Terrell's understanding that he was not the target of the federal investigations. He testified that he signed an agreement with the federal government that "[he] would testify truthfully [on] all [his] parts in the organization, and [he] will not be prosecuted for no [sic] charges." Prior to Pokorny bringing the agreement to him in jail, he had no discussions with her or anyone else about a potential agreement not to prosecute. He confirmed that any discussions he had with her about the federal agreement occurred after he had already testified at Bozeman's trial.

Terrell mentioned that he was concerned about his security while incarcerated. He was apprehensive about two groups of people: (1) Bozeman and his co-defendants -- "up this way" -- in the New Jersey case, and (2) the individuals -- "people that [were] in Maryland" -- involved in the federal case. His understanding was that the federal witness security program would "secure [him] away [from] who[ever] is [his] highest threat." He entered the program in July 2007, and has been infederal custody in a jail since that time serving his New Jersey term of imprisonment.

C.

As part of its undertaking to follow our mandate, the remand court first addressed the issue of Terrell's constrained cross-examination at trial. The court found Pokorny's testimony "forthright" and "clear"; Terrell's testimony was, despite all of his rough edges and despite all of his demeanor problems in terms of his attitude and oaths don't mean anything to [him], . . . he was very, very clear about what he said . . . and he was consistent with what he had said at trial.

That's not only consistent with what he said at the trial, but it's consistent with the testimony of Ms. Pokorny who basically reiterated that.

The court found that Terrell expected to serve thirty years in prison. At trial, Terrell was extensively cross-examined, and, as the remand court remarked, the jury "got a pretty good picture of what Mr. Terrell was all about, not just his aliases and his prior record and the inconsistencies of his statement." The court felt that it was merely harmless error not to have allowed the cross-examination concerning where Terrell would serve his sentence, as he was very clear about his expectations regarding how much time he would serve.

Turning to another of our concerns, the remand court also held that it was harmless error to have not allowed cross-examination of Santarpia about her seeing Bozeman handcuffed and shackled in the courthouse hallway. It found that "[t]here was ample evidence, overwhelming evidence of Bozeman's involvement in this case and whatever Officer Santarpia saw and was put forward to this jury properly by this [c]court because it was reliable enough identification." Also noted were the inconsistencies in Santarpia's testimony that were extensively exploited by defense counsel on cross-examination, and the court explained that it was the jury's province to assess her credibility and the identification she made.

According to the court, Santarpia was not a witness who was "so critical in this case that [it] would have turned the tables" had her last encounter in the hallway with Bozeman been made known to the jury. Also, the court charged the jury that they could give Santarpia's identification of Bozeman no weight if they were persuaded that the identification was impelled by Bozeman being the only black man sitting at the defense table at the time of Santarpia's in-court identification.

The remand court then went on to address our disquiet about the omission in the jury instructions regarding Bozeman's drug dealings with Terrell and Holmes. Acknowledging that a limiting instruction should have been given, the court found its omission was inconsequential. Observing that (1) defense counsel did not request such a limiting instruction in the final jury charge, (2) none of the attorneys referenced the circumstances of the Baltimore connection in their summations, and (3) the reference was not repeated to the jury, the lack of a specific instruction did not deprive Bozeman of a fair trial. Also, the court mentioned that the issue was not so inflammatory as to poison the jury and keep it from being fair and impartial, as the reference was primarily explanatory of why Terrell accompanied Bozeman back to New Jersey.

The court lastly held that the cumulative effect of the errors did not constitute plain error. In its view, none of the errors would have had any impact on the jury when it assessed defendant's guilt. Thus, the court denied defendant's application for a new trial, and the matter returned to our jurisdiction.

III.

A.

In our earlier opinion in this case, we explicated the law concerning a criminal defendant's confrontation rights. Bozeman, supra, slip op. 27-29. In brief, we recognized that the Confrontation Clauses of the Sixth Amendment and Article I,Paragraph 10 of our State Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. See State v. Guenther, 181 N.J. 129, 147 (2004). The main protection derived from the confrontation right is the entitlement to effective cross-examination of the State's witnesses. See Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 198 (2004); United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842, 98 L. Ed. 2d 951, 957 (1988). It is through effective cross-examination that a criminal defendant hopes to demonstrate to the jury why it should not believe a particular witness. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674, 684 (1986). Effective cross-examination is therefore not limited merely to testimonial inconsistencies, but also the witness's "biases, prejudices or ulterior motives." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 354 (1974).

We noted that the pendency of charges against a prosecution witness is "an appropriate topic for cross-examination," and a defendant need not show that an agreement existed between the State and the witness before delving into that line of cross-examination. State v. Landano, 271 N.J. Super. 1, 40 (App. Div.), certif. denied, 137 N.J. 164 (1994). The jury ispermitted to gauge the state of mind of the witness based on his subjective reactions to the favorable treatment that he received or hopes to receive in connection with the witness's own criminal involvement. See State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001); State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996); State v. Mazur, 158 N.J. Super. 89, 103-04 (App. Div.), certif. denied, 78 N.J. 399 (1978).

It is the State's burden to prove that an error denying a confrontation right did not "materially affect[] the verdict." United States v. Pugh, 405 F. 3d 390, 401 (6th Cir. 2005). Bozeman is entitled to prevail unless the State can show "'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Van Arsdall, supra, 475 U.S. at 680, 106 S. Ct. at 1436, 89 L. Ed. 2d. at 684, (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)). In making that determination, an appellate court may consider:

[T]he importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. [Van Arsdall, supra, 465 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87.]

A viable confrontation challenge exists only if "'[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination." Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483, 102 L. Ed. 2d 513, 520 (1988) (quoting Van Arsdall, supra, 475 U.S. at 680, 106 S. Ct. at 1436, 89 L. Ed. 2d at 684).

Terrell's testimony was, of course, an important part of the State's case; however, it was not the linchpin, notwithstanding Bozeman's argument that Terrell was the only witness to actually place Bozeman inside the Johnson home on the night of the homicide. Nevertheless, we do not minimize Terrell's testimony, as the State's supplemental letter in lieu of brief concedes that "Terrell was a key State's witness at [Bozeman's] trial."

Arrayed on one side of our analytical scale are the subjects that Bozeman claims he was unable to question Terrell about:

* Terrell's cooperation with Maryland law enforcement authorities;

* Terrell's cooperation with New York law enforcement authorities;

* Terrell's cooperation with federal law enforcement authorities

* Terrell's expectations of federal immunity for his New Jersey actions; and

* Terrell's expectations concerning his (and his family's) safety during the service of his New Jersey incarceration.

On the other side of the scale are the matters that were actually explored during the trial:

* Terrell's prior criminal history;

* Terrell's extensive use of aliases;

* Terrell's admitted lack of regard for oaths;

* Terrell's giving of inconsistent statements in this case; and

* Terrell's cooperation agreement with the State in this case, including the promised recommendation of a thirty-year term of incarceration without parole.

We note that it was not until the remand hearing that Bozeman became aware of the scope of Terrell's cooperation efforts with New York and Maryland law enforcement authorities; therefore, he cannot strenuously complain about being deprived of information that he was not prepared to explore at trial. Also, the main confrontation grievance raised during the trial was the defense's curtailment in cross-examining Terrell about where, and under what circumstances, he would serve his NewJersey sentence. The remand-derived information about Terrell's longer-standing involvement with government agents was discovered by serendipity.

The touchstone of our inquiry is whether Bozeman was given an adequate opportunity to effectively impeach the credibility of Terrell. We find that he was beyond a reasonable doubt. In analyzing the host of factors that inform a harmless-beyond-a-reasonable-doubt analysis, we first recognize that even in the absence of Terrell's (and Santarpia's) testimony, the case arrayed against Bozeman was formidable. The following proofs were part of what was presented to the jury to demonstrate Bozeman's participation in the charged crimes:

* Bozeman's family connection to the getaway minivan, including (1) the presence of his DNA (along with Johnson's) on a sweatshirt, (2) his car keys, (3) and his wallet found inside;

* Bozeman being seen in New York City several hours after the incident wearing an article of clothing -- blue shorts -- similar to what was attributed to him in New Jersey;

* Bozeman's conduct immediately following the events of June 25, that is, fleeing New York City by bus after informing his paramour that "there was some trouble"; and

* the discovery of a hair stylist card in Bozeman's Lincoln Navigator, connecting Mary Johnson as Gina Bozeman's hair salon customer.

There was no evidence contradicting the material points of what had occurred on the night of the robbery. Van Arsdall, supra, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87. Coupled with the vast assortment of other evidence linking Bozeman with his co-defendants, and a convincing explanation for why the crime was committed -- to obtain money to repay a (drug) debt -- we harbor no reservations in determining, as did the remand court, that the contrived limitation placed on Terrell's cross-examination was harmless beyond a reasonable doubt.

We further perceive that the additional areas of inquiry sought by Bozeman to explore with Terrell were cumulative, largely because any additional bias or interest that could have been thereby exposed was only marginally related to the State's prosecution. The jury fully heard about Terrell's plea arrangement with the State; it knew of the consequences of that plea, and from that, it could accurately assess how his credibility was affected. The supplementary information was mostly concerned with Terrell's cooperative efforts with foreign law enforcement authorities and immunity from potential federal prosecution. These involvements did not give the State any sway over Terrell that might "prompt [him] to color his testimony in favor of the prosecution." Parsons, supra, 341 N.J. Super. at458. Any accretion in the ability to further challenge Terrell's credibility was negligible.

The only material that was directly related to the New Jersey matter was the question of Terrell's expectations regarding how, and where, he would serve his thirty-year sentence, as well as his concern for his family's safety. From our examination of the entire record, we are satisfied, "assuming that the damaging potential of the cross-examination were fully realized," that such error was harmless beyond a reasonable doubt. Van Arsdall, supra, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686; see also Chapman, supra, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11.

B.

Because we were genuinely troubled about the Sixth Amendment implications of allowing Santarpia's in-court identification to be considered by the jury, Bozeman, supra, slip op. at 38 (Bozeman's "Sixth amendment right to confrontation is seriously implicated"), we also remanded the matter to develop findings "concerning identification which the trial judge did not address and to determine issues of admissibility based thereon." Ibid. We recognized that there were two potential Confrontation Clause violations: (1) the admission of Santarpia's in-court identification without the endowment of reliability and (2) the denial of Bozeman's right to cross-examine Santarpia concerning her close encounter with Bozeman just before she testified and identified him to the jury.

Unfortunately, the remand court failed to provide us with a clear-cut analysis of the relevant factors as outlined in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988); and their progeny. Nor did it explain why, at trial, it precluded the State from offering Santarpia's out-of-court identification of Bozeman conducted three weeks prior thereto, using a six-person photo array, and yet permitted her to make the in-court identification.*fn8

Instead, the remand court stated:

The issue is there . . . in my opinion enough substance in [Santarpia's] identification and her specifics, her ability to say I'm [fifty] percent sure of her statement, I saw him pop up, saw him twice, where it could be presented to this jury taken into consideration all of the factors, all of the inconsistencies that were brought out on cross-examination how come she didn't mention the [identification] before in the Holmes trial, and said she only saw Bozeman once and then said she saw him twice.

It's all indications for this jury to assess her credibility and assess the [identification] but certainly not to make a decision wherein [the court] could say or anyone else could say that her identification was tainted.

The dismantling of her story on cross-examination gave this jury plenty of reason if they wanted to discount the identification and give it little or no weight. The fact that this [c]court did not allow the cross-examination -- the evidence to be brought forward with respect to having seen Mr. Bozeman in [hand]cuffs and the effect that would have had on her [identification] is in my opinion of no merit and harmless because everything else that was before this jury including the fact that in my opinion her identification itself was proper, this jury had more than enough evidence to look at to basically -- especially on cross-examination to basically indicate that they were going to give little or no circumstance to her identification especially in light of and I say this with due respect and again even on the first issue when we talked about Terrell and his - - the way he's going to spend his sentence.

Notwithstanding our disappointment in the remand court's failure to adequately fulfill our mandate, we nevertheless are able to extract from its expression, together with our independent review of the record, a sound basis upon which to examine Bozeman's arguments.

The remand court, without specifically addressing the suggestibility and reliability of the identification procedures, nonetheless appears to have applied the reliability factors set forth in Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. It noted that Santarpia testified at the N.J.R.E. 104 hearing that she saw Bozeman's face when he first jumped out of the van and then when he "popped up" from behind the bushes. She observed him for about one minute from a distance of about fifteen feet, with adequate lighting. She focused on him because of the emotion of the situation and because her degree of attention was high.

After reviewing the appropriate factors, we are satisfied that the totality of the evidence supports the inescapable conclusion that the in-court identification was reliable. We recognize that "[t]he findings of the trial judge as to reliability of the witnesses are entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.) (citing State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973); State v. Scott, 236 N.J. Super. 264, 167 (App. Div. 1989)), certif. denied, 178 N.J. 250 (2003). Because we need address only what happened during the trial, as opposed to what could have, but did not, happen, it is unnecessary to resolve the apparentdiscordance of suppressing the out-of-court identification while allowing the in-court process to proceed. We also conclude that the failure of the trial court to allow cross-examination about Santarpia's spotting Bozeman in handcuffs and shackles was harmless beyond a reasonable doubt.

Notwithstanding the increasing potential for this State's adoption of a different approach in ascertaining reliability in light of State v. Henderson, No. A-8-08 (June 18, 2010) (containing the report*fn9 of retired Appellate Division Judge Geoffrey Gaulkin regarding the validity of State law standards on the admissibility of eyewitness identification), we remain bound to the Manson/Madison "totality-of-the-circumstances" test. This test requires that a court first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). In determining reliability, a court must consider the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]

The existing record demonstrates that (1) Santarpia's participation in the photo array procedure three weeks before trial, (2) her observance of Bozeman just before she testified, and (3) the dynamics of making the identification of Bozeman as "the only black man sitting at counsel table only minutes after she had seen him in the courthouse hallway surrounded by Sheriff's officers" combine to render the in-court identification procedure impermissibly suggestive. However, we are equally satisfied that the evidence of reliability trumps the impermissible suggestiveness.

Santarpia testified that she observed Bozeman's face two times: first, when he jumped out of the minivan, and then when he "popped" up from behind the bushes while she was searching for him. She was able to see his face for under a minute, from a distance of about fifteen feet. Her degree of attention was quite high, as she was actively attempting to apprehend individuals who were in flight from a motor vehicle, and were suspected of having just engaged in a home invasion. Although her descriptions of Bozeman became more specific as time went on, nothing in her earlier descriptions of him was inaccurate.

Finally, although four years had passed between the incident and the in-court identification, longer gaps have been held to be permissible when other factors are persuasive. See, e.g., United States v. Flores-Rivera, 56 F.3d 319, 331 (1st Cir. 1995) (seven-year gap between crime and identification).

The State concedes that it was erroneous to deprive Bozeman of the right to cross-examine Santarpia about her view of him in handcuffs and shackles just before she testified and identified him sitting at counsel table for the jury. Because this implicates a Confrontation Clause concern, the State bears the burden of demonstrating that the mistake was harmless beyond a reasonable doubt. As we have already noted, the elements of that analysis include:

[T]he importance of the witness' testimony in the prosecution's case whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. [Van Arsdall, supra, 465 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87.]

Furthermore, "[u]nder the harmless error analysis, any prejudice to defendant was not such that created a real possibility that the jury arrived at a result it otherwise might not have reached." State v. Marrero, 148 N.J. 469, 492-93(1997). "[W]e focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]'" State v. Kemp, 195 N.J. 136, 149 (2008) (quoting State v. Macon, 57 N.J. 325, 338 (1971)). In the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199, 1204 (1967).

In the context of the other evidence produced during the trial, Santarpia's hallway-enhanced identification of Bozeman was insignificant. Other evidence of Bozeman's participation in the crimes was legion. We note that Bozeman's defense counsel, in summation, only referred to Santarpia twice: first asserting that her observation of two men running from the minivan buttressed Bozeman's theory that only two persons (not including him) were involved in the crime; and then referring to "Santarpia's lies" in an effort to undermine her identification. In the State's summation, the prosecutor emphasized all of the other record evidence in response to defense counsel's attacks on Santarpia's identification of defendant, and reminded the jury of the multitude of witnesses and tangible evidence that was claimed to tie Bozeman to the charged crimes.

We also appreciate that the trial court's jury instruction regarding Santarpia's identification reduced the impact of her recognition of Bozeman in the courtroom. The trial court stated:

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.

Although it was not a panacea for the mistaken truncation of Bozeman's cross-examination, it demonstrates the minimal effect of the gaffe.

C.

On remand, the court rejected Bozeman's argument that he was entitled to a new trial because of its failure to properly instruct the jury concerning other crimes evidence. N.J.R.E. 404(b). Bozeman argues that although it was the defense that brought out testimony about his prior drug deals with Terrell, the trial court erred in refusing to give a proper limiting instruction. Although, again, the State concedes error (but not fatal error), the absence of the limiting instruction was harmless error, and thus was not ground for reversal because it was not "clearly capable of producing an unjust result." R. 2:10-2.

In general, evidence of other crimes, wrongs, or acts may not be introduced to show that a person is disposed toward criminal behavior and, therefore, guilty of committing the crime charged. N.J.R.E. 404(b) states:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

A defendant has the same right to introduce "other crimes" evidence as does the State. State v. Garfole, 179 N.J. 533, 566 (2004).

Whether it is the State or the defense that elicits the other crimes evidence, the court must give a limiting instruction, even if defense counsel did not request one. State v. Clausell, 121 N.J. 298, 322-23 (1990). The instruction should be given when the evidence is presented and again in the final jury charge. State v. Barden, 195 N.J. 375, 390 (2008).

At trial, the court was made aware that drug trafficking would be addressed by co-defendant Gina Bozeman as a defense suggesting that the incident involved "going to meet a drug dealer and money owed and none of it had anything to do with [Gina Bozeman]." Bozeman's defense counsel then requested a limiting instruction because the information was a "bad act not charged in this indictment" and the jury instruction was needed, to protect Mr. Bozeman from this bad, uncharged conduct that's hinted based on that [Cofield*fn10 ] test. If it's just for motive here -- for this so-called debt that Terrell testifies to in various ways about -- if you're [going] to permit this type of prejudicial testimony it should come with an instruction, limited use.

After the State pointed out that it was Gina Bozeman who was bringing out the information, the trial court indicated that it "was not sure that [Bozeman is] entitled to the instruction." It never definitively ruled, but a limiting instruction was never given. Bozeman's counsel did not bring up the issue again or propose a final instruction for the jury to address the issue.

In his direct testimony, Terrell stated that on the morning prior to the robbery, Bozeman called to say that he was going to Baltimore to bring Terrell back to the New York area "to get something that they owed [to him]." When asked, Terrell said that Bozeman and Holmes owed him $25,000. He also said that Holmes had been making drug deliveries to Terrell for Bozeman.

On cross-examination, Gina Bozeman's attorney asked if the $25,000 was supposed to buy drugs. The trial court allowed the testimony "limited and only to the issue of drugs." Terrell admitted that he had given Bozeman the $25,000 to buy heroin in New York City and send the drugs down to him in Baltimore. However, the heroin Bozeman bought turned out to be "bad product," and Terrell required either the return of his $25,000 or good heroin.

On re-direct examination, the State asked what the initial plan was, and Terrell responded that it was to "bring me up here, take me to get my drugs or money." Terrell again stated that Bozeman and Holmes "gave me some bad drugs and I sent it back." It was Bozeman who proposed the plan to get the money by breaking into the Johnson home.

During the jury charge conference, defense counsel made no request for an instruction regarding Bozeman's involvement with drug dealing and the money he owed Terrell. During summation, no one mentioned the $25,000 or that Bozeman's relationship with Terrell involved drug trafficking.

We conclude that the failure to provide the jury with the requisite instructions was harmless error. The information about the $25,000 drug indebtedness was relevant evidence because it explained the connection between Terrell and Bozeman, and why Terrell accompanied defendant back to New Jersey. See N.J.R.E. 402 ("Except as otherwise provided in these rules or by law, all relevant evidence is admissible."). Even though no limiting instruction was given, the evidence of Bozeman's connection with the drug trade "was neither abundantly repetitive nor highly inflammatory." Clausell, supra, 121 N.J. at 323. It was not mentioned during summation by the prosecution or the defense, and thus was only fleetingly brought to the jury's attention during Terrell's testimony. In addition, the testimony supported the defense claims that Terrell was Bozeman's superior, who was implicating Bozeman in return for a lighter sentence.

In light of the totality of the evidence, we are convinced that the failure of the trial court to give the jury proper instructions pursuant to N.J.R.E. 404(b) did not have the capacity to produce an unjust result. Thus, the remand court's conclusion to the same effect was correct.

D.

Our final disposition revolves around Bozeman's claim that even if each discrete mistake by itself were harmless, the cumulative effect of the trial court's missteps deprived him of a fair trial. The cumulative error doctrine has existed in this State for well over fifty years. See State v. Orecchio, 16 N.J. 125, 129, 134 (1954). Even errors that are individually harmless, when taken together, can prejudice a defendant and violate his or her right to due process of law. State v. Jenewicz, 193 N.J. 440, 473-74 (2008) (holding that the errors' cumulative impact prejudiced the fairness of the defendant's trial and, therefore, cast doubt on the propriety of the jury verdict); State v. Koskovich, 168 N.J. 448, 540 (2001) (holding that cumulative error warranted reversal of death sentence regardless that no individual error warranted reversal).

The remand court concluded that its errors, whether considered individually or cumulatively, did not deprive Bozeman of due process of law. It found that the errors had no impact on the jury's assessment of Bozeman's guilt, particularly given the amount of evidence against him. Because the litany of errors is significant, this is a close question. Nevertheless, we do not agree that Bozeman's trial was infected with sufficient error to have "'led the jury to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).

Although we are obliged to consider the effect of the miscues as part of our assessment of their influence on the verdict, our view as to whether the evidence established Bozeman's guilt is not material. Orecchio, supra, 16 N.J. at 129. Errors cannot become prejudicial by sheer weight of numbers. Prejudice is determined not by looking at the complained-of questions in isolation, but at the record as a whole for indicators of whether the trial was so fatally infected that the trial's fundamental fairness was compromised.

After canvassing the record, we find ourselves incapable of stating with any confidence that Bozeman was deprived of the full measure of due process of law. Although he was unable to heap additional credibility-detracting factors upon Terrell through cross-examination of Terrell's penal expectations in foreign jurisdictions, Bozeman was given wide-ranging opportunities to tear down Terrell in the eyes of the jury, and he exploited those opportunities to the hilt. The limitations imposed regarding the cross-examination of Santarpia were likewise inconsequential in light of the fulsome opportunities afforded that permitted Bozeman to erode her four-year-old recollection and corresponding identification. The lack of an N.J.R.E. 404(b) limiting instruction was just one of dozens of real-time trial occurrences that did not materially contribute to skewing an otherwise reliable verdict. Lastly, we have reviewed the various other putative errors highlighted in Bozeman's appellate briefs and, in sum, we cannot say that Bozeman's trial was plagued by errors to the point that his constitutional right to a fair trial was violated.

IV.

This was not a perfect trial, but our federal and state constitutions do not guarantee an error-free proceeding. See United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974, 1980, 76 L. Ed. 2d 96, 106 (1983) ("[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial."); State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971). We have no doubt that Bozeman would have been convicted even had he received a perfect trial. See State v. Gillispie, ___ N.J. ___, ___ (2011) (slip op. at 43-45); State v. Loftin, 146 N.J. 295, 397 (1996).

Affirmed.*fn11


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