September 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS CROSS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 THE STATE AND FEDERAL CONSTITUTIONS.
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
Certification was denied. State v. Cross, 161 N.J. 335 (1999). Thereafter, defendant filed a pro se petition for post- conviction relief (PCR) in which he raised the same issues that had been raised on direct appeal. Defendant was later assigned PCR counsel, who submitted a letter brief that recited:
I have read all of the transcripts in the matter and previously filed documents and communicated with the defendant as to all of the issues that he wanted advanced in his petition and have otherwise become familiar with the facts, procedural history, and pleadings of the case and I find nothing that would by my independent review of the case otherwise satisfy the requirements of R. 3:22-2(a), (b), (c), or (d).
Counsel then stated that the matter was "ready for scheduling and argument," and he requested that defendant be present in court on the return date of the petition.
On May 5, 2001, the PCR judge denied the petition, without oral argument, and entered an order indicating that the "application is procedurally barred under R. 3:22-5 due to prior adjudication of all issues raised on direct appeal, and for good cause shown." Defendant appealed the order, arguing through appellate PCR counsel that PCR counsel was ineffective in failing to meet with him, investigate or research the issues, or provide meaningful legal representation. State v. Cross, No. A- 5610-00 (App. Div. September 19, 2002) (slip op. at 4). We affirmed the denial of PCR, and the Supreme Court denied certification. State v. Cross, 177 N.J. 491 (2003).
Thereafter, defendant filed a second PCR petition, which was also denied by a second PCR judge. Defendant appealed,*fn1 and the State moved for summary disposition, which we granted in an order dated March 19, 2008 that stated: Defendant's petition is time barred by Rule 3:22-12, having been filed eight years after sentence. Also barred by R. 3:22-4, a claim that could have been raised in defendant's first PCR, and R. 3:22-5 as an issue previously adjudicated on first PCR. Furthermore this petition has no merit.
Certification was again denied. State v. Cross, 196 N.J. 343 (2008).
Defendant then filed the petition for a writ of habeas corpus that we previously mentioned. Again, defendant raised the same arguments that he had raised in his direct appeal. In an order dated June 23, 2009, relief was denied, the judge stated that no certificate of appealability would issue, and he directed that the case be closed.
Defendant's petition for habeas corpus relief was followed by the present petition for appointment of counsel and for PCR. In his pro se brief, defendant raised the following arguments.
BECAUSE THE EXISTING RECORD PROVES CUMULATIVE ERROR[,] VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND DEPRIVED PETITIONER OF A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL, THE CONVICTION MUST BE REVERSED ON THE EXISTING RECORD PURSUANT TO Strickland v. Washington and Taylor v. Ky.
a. Ineffectiveness Claims Relax Procedural Bars: R. 3:22-4.
b. Ineffective Trial and Post-Trial Counsel.
I. Authority on Ineffective-Assistance-of Counsel Claims.
II. Record[-]Proven Ineffective Counsel.
c. The Cumulative Impact of the Developed Claims Warrants Reversal of the Conviction without a Hearing.
1. Other-Crimes Prejudice and Lack of Adequate Instructions.
2. Confrontation Violations and an Impassioned Jury.
3. Denial of Presence and Denial of Public Trial.
4. Ex-Parte Communications Between Trial Judge and a Juror.
5. Inference that Petitioner had Intimidated a Witness.
6. Excessive Police Presence.
7. Unnecessary and Uncured References to Warrant.
8. Inference that Another Trial Had Taken Place.
9. Comments on Petitioner Not Testifying.
10. Sleeping juror.
In a letter opinion, a third PCR judge denied assignment of counsel pursuant to Rule 3:22-6(b), finding that good cause had not been demonstrated. In reaching this conclusion, the judge claimed that, in his petition, defendant had identified ten trial issues "that you admit were previously raised, considered and deemed harmless." Nonetheless, the judge stated, defendant wished "to have these 10 harmless trial errors considered for their cumulative impact on [his] ability to receive a fair trial as the basis for this PCR." The judge then stated:
I find these trial issues were raised before, and deemed harmless. I further find that there is no fact or reason alleged as to why the cumulative impact issue could not have previously been raised in the direct appeal or in the first and second petitions for PCR. Therefore, this cumulative impact basis for the instant PCR is barred pursuant to R. 3:22-4. I further find that enforcing the bar in this case would not result in any fundamental injustice and would not be contrary to either the U.S. Constitution or the New Jersey State Constitution. State v. Harris, 181 N.J. 391, 518 (2004).
I also find that the issue of the ineffective assistance of PCR counsel was previously raised and adjudicated in the appeal of the denial of the first PCR and is therefore barred pursuant to R. 3:22-5.
I also find that these 10 individual trial issues have previously been raised and adjudicated in the direct appeal and the appeal of the denial of your first PCR and are, therefore, barred pursuant to R. 3:22-5.
As a consequence, the judge found no basis to have been set forth for the appointment of counsel and no basis for a finding of good cause "as the petition does not put forth any substantial issue of fact or law, and, the issues it does contain were previously adjudicated and are therefore barred."
Upon receipt of the judge's opinion, defendant filed a "motion to amend" the judge's March 25, 2010 order - a motion that we deem to have constituted a motion for reconsideration. In it, the defendant took issue with the judge's conclusion that either the trial issues or the issues of ineffectiveness of trial, appellate and PCR counsel in connection with those trial issues, set forth in his third petition for PCR, had been previously raised and adjudicated. In response, the judge issued a further letter opinion denying relief and stating:
The arguments in the brief supporting this motion are erroneous. As stated in my letter decision, the bases for denial of your third post-conviction relief petition were:
1. the fact that the issues you raised in your third petition for post-conviction relief were previously raised, R. 3:22-5; and/or
2. the "cumulative error impact" issue could reasonably have been raised, R. 3:22-4, in your previous post-conviction relief petitions and appeals.
This appeal followed.
On appeal, defendant makes the following arguments:
Point I -
THE LOWER COURT ERRED BY INCORRECTLY FINDING THAT THE ISSUES HAD BEEN PREVIOUSLY RAISED AND DEEMED HARMLESS.
Point II -
THE LOWER COURT NEVER CONSIDERED DEFENDANT'S CLAIM THAT PCR COUNSEL WAS INEFFECTIVE.
Point III -
THE LOWER COURT'S INSUFFICIENT CONCLUSORY LANGUAGE VIOLATES R. 1:7-4(a), R. 3:22-1, and R. 3:29.
Point IV -
THE RECORD-PROVEN Bruton VIOLATION WARRANTS REVERSAL ON THE EXISTING RECORD.
Our review of the record in this matter, together with defendant's briefs in support of his third petition for PCR, reconsideration, and this appeal, satisfy us that the PCR judge was mistaken in finding any of the issues that defendant has now raised had been raised previously or that defendant had ever stated such to be the fact. Moreover, we are satisfied that defendant has argued not only cumulative error but also individual errors that are potentially of constitutional dimension.
In his initial appeal, defendant argued that the prosecutor erroneously elicited testimony from an investigator from the prosecutor's office that a statement by non-testifying co- defendant Jenkins had inculpated defendant. We rejected that argument, finding that the trial judge's prompt and detailed curative instruction to disregard the testimony eliminated any prejudicial impact that the "passing mention" might have had. State v. Cross, No. A-675-96 (App. Div. April 20, 1999) (slip op. at 3). In the present PCR petition, defendant notes a further reference to Jenkins's confession by the prosecutor in his opening statement, at which time he stated: "According to the words of Jenkins and a statement he gave to the police, they [Jenkins and defendant] split up shortly after entering the cemetery to see who could find a victim the fastest." No objection to that statement was made and no curative instruction was given. Defendant claims that the reference constituted a violation of his Sixth Amendment right of confrontation and cross-examination as expressed in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and that trial, appellate and PCR counsel were each ineffective in not raising the error.
Defendant also argues, among other things, prejudice as the result of the massive presence of uniformed police observers at trial; in the introduction of other crimes evidence pursuant to N.J.R.E. 404(b) without any instruction to the jury as to its use; in the introduction of hearsay testimony by decedent Deventer that he was a cop to suggest a motive for the killing; in the opening statement by the prosecutor, which contained comments designed to inflame the passions of the jury, such as saying that Deventer was carrying a rosary, not a gun; as the result of misconduct by the prosecutor in his closing argument when he made reference to the fact that defendant had not testified on his own behalf; and as the result of permitting a sleeping juror to remain on the panel without adequate inquiry as to what the juror had missed. The ineffectiveness of counsel is raised in connection with each of these arguments and others contained in defendant's brief.
We recognize the monumental procedural roadblocks that defendant faces in raising the claims that he has at this late date. See R. 3:22-3, R. 3:22-4 and R. 3:22-12. Nonetheless, in light of the arguments now made by defendant, some of which are seemingly substantial and may be of constitutional significance,*fn2 we are concerned that we may have been misled by counsel's statement in connection with the first PCR proceeding that, following a review of the record, he could discern no issues warranting relief. Although, at that time, we rejected defendant's argument that PCR counsel had been ineffective, we did so because PCR counsel stated that he had consulted with defendant and because defendant's "PCR appellate counsel d[id] not indicate what arguments PCR counsel should have made on the petition or how the result would have been different if PCR counsel's PCR brief had been more expansive." State v. Cross, No. A-5610-00 (App. Div. September 19, 2002) (slip op. at 5). It is of course possible that both PCR and appellate PCR counsel were correct that no issue warranting PCR exists. Nonetheless, the fact remains that they provided no legal support whatsoever to defendant when he sought judicial relief through the PCR process. In this circumstance, we regard defendant's papers as establishing prima facie evidence of ineffectiveness. See R. 3:22-4(b)(2)(C) (requiring a prima facie showing of ineffectiveness in connection with a second or subsequent petition for PCR). As a result, good cause having been shown, we reverse the present PCR judge's determination not to assign counsel to defendant in connection with his petition and to deny PCR. We remand to permit the assignment of counsel pursuant to Rule 3:22-6(b), and a further hearing on defendant's claims for relief. In doing so, we express no opinion as to whether defendant's claims, as more fully articulated, are procedurally barred or whether PCR should be granted. Jurisdiction is not retained.
Reversed and remanded for further proceedings in light of this opinion.