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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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."
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.
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.
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 ...