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Defendant Wins Remand on Sixth Amendment Issue

16
Nov
2010

by in Criminal Appeals, Criminal Defense

State v. Darryl Bozeman, unpublished opinion, App. Div. Docket No. A-0565-06T4 (September 13, 2010) – Case remanded for evidentiary hearing. “Defendant argues that his Sixth Amendment right to confrontation was violated when the trial court refused to allow defense counsel to cross-examine Terrell about two topics: a plea bargain that Terrell was negotiating with federal prosecutors, which would immunize him from prosecution in the federal courts, and the alleged fact that the bargain would allow him to serve his New Jersey sentence in a federal institution…. The State concedes that the trial court should have allowed defendant to question Terrell about the impact of serving his State sentence in federal custody, but asserts that the preclusion was harmless. We cannot presume, however, that despite the representation of the United States Attorney shortly before the trial about the absence of any cooperation agreement, that upon his return to federal custody in New York after he testified, he immediately had unrelated discussions with the United States Attorney and entered the agreement. It would be improper to speculate that it was pure coincidence that an agreement was executed with the United States Attorney about ten days after Terrell testified in this case and while this trial was just ending. Nor can we speculate about the timing and the impact the agreement may have had on Terrell’s testimony in this case if he anticipated such an agreement might or could be entered, and that he would serve his New Jersey sentence in some federal facility which may well be more accommodating than the one in New Jersey. We therefore decline to consider the confrontation issue or make a harmless error analysis at this time, and remand the matter to develop a record on the impact of the prohibition of questioning about Terrell’s service of his State sentence in federal custody and to determine whether it impacts on defendant’s argument that he is entitled to a new trial.”

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