On appeal from the Superior Court of New Jersey, Law Division, Essex County, 95-08- 02755-I.
Before Judges Wefing, Lesemann and Landau.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 18, 2001
Following a third extended trial, defendant was convicted of aggravated manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4; felony murder, N.J.S.A. 2C:11-3a(3); two counts of carjacking, N.J.S.A. 2C:15-2; robbery, N.J.S.A. 2C:15-1; two counts of conspiracy, N.J.S.A. 2C:5-2; one count of aggravated assault, N.J.S.A. 2C:12-1b(4); two counts of possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and one count of receiving stolen property, N.J.S.A. 2C:20-7. Two of the convictions (felony murder and aggravated assault) were for Graves Act offenses, N.J.S.A. 2C:43-6c. At sentencing, the trial court granted the State's motion for an extended term under N.J.S.A. 2C:44-3d. For felony murder, the trial court sentenced defendant to life in prison, with a thirty-five year period of parole ineligibility. The two carjacking convictions were first-degree crimes; for those offenses the trial court sentenced defendant to two concurrent thirty-year terms, with a fifteen-year period of parole ineligibility but directed that sentence be served consecutively to the sentence for felony murder. All other sentences were made concurrent. Defendant's aggregate sentence is thus life in prison, with a fifty-year period of parole ineligibility. Defendant appeals his convictions and sentence. We have reviewed the record on appeal in light of the contentions advanced and are satisfied that defendant's convictions and sentence should be affirmed.
Defendant, with an accomplice Thomas Cross, went on a crime spree in Newark and the surrounding area in the spring and summer of 1995. We have already affirmed his convictions and sentences for incidents which occurred in April and June of that year. State v. Jenkins, 321 N.J. Super. 124 (App. Div. 1999); State v. Jenkins, A-818-98, decided July 18, 2000. This appeal follows defendant's conviction for the shooting death of John Deventer on July 14, 1995 in Fairmount Cemetery in Newark.
John Deventer lived in Hanover, New Jersey. He had, several months earlier, retired as the chief of the Hanover police department. George and Elsie Wolf were friends and neighbors of the Deventers. The Wolfs were in their eighties and unable to drive any longer. Deventer would assist the Wolfs in a variety of ways, including regularly driving them, together with a gardener, to Fairmount Cemetery to see to the maintenance of a tract known as the "Hoffman plot" for which the Wolfs were responsible.
Deventer went to the Wolfs' home on the morning of July 14. He then drove the Wolfs and the gardener to the cemetery, using the black Lincoln Town Car the Wolfs owned. When they arrived at the cemetery, they dropped off the gardener and then drove to Giordano's bakery. The Wolfs and Deventer were regular customers at the bakery on their weekly trips to Newark and Mr. Wolf had called ahead to place an order for particular breads and rolls. When they arrived, Monica Giordano packed the order for him in the bakery's regular white bags and Mr. Wolf placed it in a satchel he had brought with him. He then put the satchel into the rear of the car.
Deventer then drove back to the cemetery to pick up the gardener. He parked the car, turned off the engine and, taking the keys, walked over to the area where the gardener was working. Mr. and Mrs. Wolf remained in the car, he in the front, she in the rear.
A few minutes later, Mr. Wolf saw a thin black man wearing a colorful shirt some 200 feet away; the man was pointing at the Town Car and calling to someone else. A second black man appeared and the two conversed briefly and then moved out of his field of vision. Suddenly, the front passenger door of the car was opened; Mr. Wolf felt something pressed against his head and the man with the flowered shirt he had seen a few moments earlier was standing there. He ordered Mr. Wolf out of the car, saying if he made any noise he would "blow [his] brains out." The other man had opened Mrs. Wolf's car door and the elderly couple was forced out of the car and then told to wait.
The two assailants then approached Deventer and the gardener who, by then, were returning to the car. The two demanded the keys to the car and Deventer resisted. A struggle ensued and Deventer shouted, "I am a cop." One of the attackers told the man with the gun, "Shoot him" and the other immediately complied, shooting Deventer in the abdomen. Deventer collapsed and the two assailants stole the car keys, ran back to the Town Car and drove off. Mr. Wolf sent his wife to summon help; Deventer died in his arms.
That same day, Rose Weinbaum took her elderly father to the doctor in Maplewood, accompanied by her two-year-old daughter. When they came out of the doctor's office, she helped her father into the car and turned on the engine and the air-conditioning. As she was placing her daughter in the car seat, a tall, thin black man approached with a gun and ordered everyone out of the car. Her father tried to resist and was knocked to the ground. The man then drove off in Ms. Weinbaum's, car, a white Honda. Ms. Weinbaum noticed that the thief seemed to be following a red car which had pulled out of a nearby parking space. She jotted down the license plate of that red car as the two vehicles sped away. It was later determined that the red car had been stolen several days earlier at gun point from the driveway of Michael Calabria in West Orange.
Following the report of the Weinbaum carjacking, police set up surveillance to look for the car. It was spotted later that afternoon in Newark. Police followed it and arrested the occupants, a man and a woman. The man, later identified as Thomas Cross, matched the description of the carjacker supplied by Michael Calabria and Rose Weinbaum. Both Calabria and Weinbaum later positively identified Cross from a photo array.
Police went to the address Cross had supplied, an apartment in Newark belonging to one Edward Barden. Barden confirmed that Cross had been staying with him. He said he had seen Cross driving a white Honda. He gave police permission to search the apartment; the search turned up a .38 caliber handgun Barden said belonged to Cross. Barden also said that Cross's friend, defendant Warren Jenkins, had been at the apartment earlier looking for Cross but left when he heard Cross had been arrested. According to Barden, Jenkins had been driving a red car.
Later that night, police discovered the Town Car belonging to the Wolfs parked on Van Ness Place in Newark. No fingerprints could be found in the car. The next day, July 15, Lafayette Kollick, who lived on Van Ness Place, contacted the police after he read in the newspapers of the Deventer killing. He told the police that on the afternoon of the 14th, he had been sitting in a van in front of his house when a black Town Car pulled up and parked behind him. He noticed that the man who got out of the Town Car had socks on his hands. A small red car pulled up behind the Town Car and the man got into it and it drove away. Kollick later identified defendant from a photo array as the man he saw exit from the Town Car.
Also on the 15th, police stopped at the home of Gary Jenkins, whom they understood to be defendant's cousin. They met Evelyn Cruse, Gary's girlfriend. She told the police that defendant had been there the day before, driving a small red car. She said defendant had given her a quantity of bread and rolls, packed in white bakery bags. They were later identified as the goods that Mr. Wolf had purchased at Giordano's.
After leaving that residence, the police were driving to another location to pursue the investigation when they spotted Calabria's red car parked on the street. Deventer's rosary beads and St. Jude medal were found in the car. Defendant was arrested later that night, when police found him hiding in a basement at 413 Lyons Avenue in Newark.
As part of their investigation of the Deventer killing, police spoke to all the employees of Fairmount Cemetery who were working July 14. Edward Fisher told the police that he had been on his way to lunch, near the site of the Hoffman plot, when he passed a black man wearing shorts and carrying a shirt. He picked defendant's picture from a photo array as the individual he had seen.
Police received a report of a second shooting in the cemetery which had occurred at about the same time as Deventer was killed, although some distance away. In that incident, Mr. Ortiz and Mr. Rodriguez said a black man wearing a brightly colored flowered shirt shot at them. The bullet in that incident entered a car and the size of the hole indicated a large caliber weapon. The bullet that killed Deventer, on the other hand, was a small caliber. Through later investigation, the police concluded the two incidents were unrelated. They determined that the second shooting was done by Willie Drewery who had dated Mr. Ortiz's daughter. Drewery and Ortiz had had disputes over that relationship.
During their initial investigation, however, the police were uncertain whether the two shootings were connected. Thus they showed several witnesses photo arrays containing pictures of Cross, Jenkins and Drewery. When Mr. Wolf was shown the arrays, he picked out Drewery's picture as most resembling the man with the gun who shot Deventer. The newspaper carried a report of the arrest of defendant and Cross and included pictures as part of its story. When Mr. Wolf saw the newspaper report, he identified Cross as one of the assailants. Mr. Wolf testified, however, that he suffered ...