On appeal from Superior Court, Law Division, Bergen County.
Approved for Publication May 8, 1997.
Before Judges Long and Skillman. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
In 1994, Pedro E. Cook was charged in Bergen County indictment § -117-94 as follows: with purposeful and/or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1), (2) (Count One); felony murder, in violation of N.J.S.A. 2C:11-3(a)(3) (Count Three); first degree robbery, in violation of N.J.S.A. 2C:15-1 (Count Four); possession of a weapon, a tree branch or other wooden objects, for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (Count Five); and attempted theft of movable property, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3 (Count Six). *fn1 Tried separately from his co-defendants, Cook was convicted of purposeful and knowing murder; possession of a weapon for an unlawful purpose; and attempted theft of moveable property. The jury acquitted Cook on the charges of felony murder and robbery. On January 13, 1995, the trial Judge sentenced Cook to a thirty-year custodial term with thirty-years of parole ineligibility on the murder conviction and to concurrent five year custodial terms on the remaining convictions. Appropriate Violent Crimes Compensation Board (VCCB) penalties were also imposed.
Cook appeals, contending that the following errors warrant reversal:
THE TRIAL COURT'S ERRONEOUS ACCOMPLICE LIABILITY CHARGE REQUIRES A REVERSAL OF DEFENDANT'S MURDER CONVICTION. (Not Raised Below).
A. The Judge Failed To Instruct The Jurors That Defendant Could Have Been Found Guilty Of The Lesser Included Offenses Of Aggravated Manslaughter Or Manslaughter, On The Basis Of His Own Reckless Mental State, Even If He Was An Accomplice And The Principal Had The Mental State For Murder.
B. The Jury Instructions On Accomplice Liability Were Incorrect In That They Potentially Caused The Jury To Believe That Merely Silently Assenting To And Approving Of Another Person's Criminal Behavior Makes One An Accomplice.
THE TRIAL JUDGE'S FAILURE TO ADEQUATELY INSTRUCT THE JURY ON WHAT EVIDENCE IN THE CASE WOULD SUPPORT A FINDING OF "UNLAWFUL PURPOSE" IN THE CHARGE OF POSSESSION OF A WEAPON WITH PURPOSE TO USE IT UNLAWFULLY AGAINST THE PERSON OF ANOTHER DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PAR. 9. (Not Raised Below).
THE COURT ERRED IN CHARGING THE JURY ON FLIGHT, AND THE CHARGE PROVIDED WAS LEGALLY INADEQUATE. (Partially Raised Below).
DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT AND THE STATE CONSTITUTION BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY THAT THE DEFENDANT'S PRE-ARREST SILENCE WAS RELEVANT ONLY AS TO HIS CREDIBILITY. (Not Raised Below).
THE INTRODUCTION INTO EVIDENCE OF S-32; S-34, AND ALL ELEVEN COLOR AUTOPSY PHOTOGRAPHS, WAS IMPROPER AND CONSTITUTED A DENIAL OF DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. ...