On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-08-2755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Payne and Messano.
Defendant, Thomas Cross, was charged in a twenty-nine count indictment with crimes including first-degree carjacking (three counts), first-degree armed robbery (two counts), second-degree conspiracy, murder, felony murder, third- and fourth-degree unlawful possession of weapons (five counts), second- and third- degree possession of weapons for unlawful purposes (five counts), third-degree receipt of stolen property (two counts), second-degree eluding, second- and fourth-degree aggravated assault (four counts), fourth-degree resisting arrest, and fourth-degree criminal mischief arising out of acts occurring, as stated in the indictment, on July 9, 1995 and July 14, 1995 in West Orange, Newark and Maplewood. Co-defendant, Warren D. Jenkins, was charged in counts five through eighteen of the same indictment. The charges against each were severed for trial.
Following trial of defendant Cross, the jury returned guilty verdicts on all charges except possession of a handgun without a permit and possession of a weapon for an unlawful purpose in Newark on July 14. Additionally, the jury found that defendant had committed the lesser-included offenses of simple assault on Frank DeFilippo, John Noonan and Frank Donlon, and they convicted him of the disorderly persons offense of resisting arrest, not the charged fourth-degree crime. Defendant was sentenced to an aggregate term of life in prison plus fifty years, with a fifty-year period of parole ineligibility.
In the absence of a transcript of the trial, we adopt for purposes of this opinion the facts set forth in the opinion on defendant's motion for habeas corpus. Cross v. Ricci, Civil Action No. 08-3993 (D.N.J. June 23, 2009).
According to testimony elicited at trial, on July 9, 1995, Petitioner and co-actor Warren Jenkins carjacked a red Beretta in West Orange. Five days later, on July 14, 1995, an elderly couple were going to visit a cemetery in Newark with John Deventer, a retired Hanover Chief of Police, who drove them to the cemetery weekly. On July 14, they were also accompanied by a landscaper.
Deventer and the elderly couple, the Wolfs, dropped off the landscaper at the cemetery and proceed[ed] to a bakery to buy bread. When they returned to the cemetery, Deventer went to join the landscaper and the Wolfs remained with the car, a Lincoln Towncar. Then, Petitioner and Jenkins arrived at the cemetery in the stolen Beretta, parked it outside the cemetery gate, and crawled through a hole in the fence. They targeted the Wolfs, separated, and came up behind the Wolfs in the car, and Petitioner whispered that they had a gun, told them to get out of the car, and that they would blow their brains out if they made any noise. Mr. Wolf complied, but Mrs. Wolf did not immediately comply, so Mr. Wolf attempted to help her and was yanked away from the car. Mr. Wolf had an unobstructed view of Petitioner.
Once Petitioner and Jenkins realized that the Wolfs did not have the keys to the car, they approached Deventer and waved their gun in his face, demanding the car keys. Deventer was defiant and thwarted their attacks, for a short time, with a broomstick. In the midst of the brawl, Deventer yelled, "I'm a cop." Either Petitioner or Jenkins at that point said, "shoot him," and the other obeyed. Deventer died from the gunshot wound. Petitioner and Jenkins escaped, one in the Towncar and one in the Beretta.
The next day, a woman, her infant child, and her father were returning to their white Honda Accord after a doctor's appointment. The woman was trying to secure the baby in the child seat when she heard a noise behind her. Petitioner approached her with a gun, and demanded her car keys. The woman was able to get the baby out of the seat and complied. The woman's father was more belligerent, and was hit in the face. The woman saw the red Beretta parked directly behind her Accord.
Police eventually caught up with Petitioner and proceeded to observe him get into the Accord. Following him in two police vehicles, they attempted to "box" in the Accord. When Petitioner realized he was being trapped, he crashed into one of the police cars, and a car chase ensued. Petitioner eventually crashed into another vehicle, then got out of the car and attempted to flee by foot. He was finally apprehended and secured.
Following entry of a judgment of conviction, defendant appealed, and we affirmed his conviction and sentence in State v. Cross, No. A-675-96 (App. Div. April 20, 1999), after considering the following arguments:
THE POLICE DID NOT SCRUPULOUSLY HONOR DEFENDANT'S ASSERTED RIGHT TO REMAIN SILENT, THEREBY VIOLATING HIS FIFTH-AMENDMENT RIGHTS AND HIS CORRESPONDING STATE CONSTITUTIONAL AND STATE COMMON-LAW RIGHTS.
THE TRIAL JUDGE GAVE AN IMPROPER COERCIVE INSTRUCTION TO THE JURY WHEN ASKED IF IT WAS NECESSARY FOR THE JURY TO RETURN VERDICTS FOR THE COUNTS CHARGING MURDER AND FELONY MURDER. (Not Raised Below)
THE TESTIMONY OF A PROSECUTOR'S INVESTIGATOR REGARDING THE CO-DEFENDANT'S CONFESSION VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION UNDER ...