State Of N.J. v. Walker

Decision Date28 July 2010
Citation203 N.J. 73,999 A.2d 450
PartiesSTATE of New Jersey, Plaintiff-Respondent,v.Shem WALKER, Defendant-Appellant.
CourtNew Jersey Supreme Court

COPYRIGHT MATERIAL OMITTED

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

LeeAnn Cunningham, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Cunningham and Hilary L. Brunell, Special Deputy Attorney General/Executive Assistant Prosecutor, on the briefs).

Natalie A. Schmid-Drummond, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Paula T. Dow, Attorney General, attorney).

Justice WALLACE, JR., delivered the opinion of the Court.

This case implicates the four-prong statutory affirmative defense to felony murder, as set forth in N.J.S.A. 2C:11-3(a)(3)(a)-(d). Defendant Shem Walker was tried separately from codefendant Carl Trupaire on various charges arising out of the death of the victim, Albert Whitley. At trial, defendant presented evidence to show that he struck the victim once; did not know Trupaire had a weapon; watched Trupaire kick and hit the victim; and departed the scene while Trupaire was still fighting with the victim. The State presented sufficient evidence, including a prior statement by defendant that he entered the premises with Trupaire to rob the victim and that Trupaire stabbed the victim multiple times, for the jury to find defendant guilty of second-degree conspiracy to commit robbery N.J.S.A. 2C:5-2, first-degree robbery N.J.S.A. 2C:15-1, reckless manslaughter as a lesser-included offense of murder N.J.S.A. 2C:11-4(b)(1), felony murder N.J.S.A. 2C:11-3(a)(3), and fourth-degree possession of a weapon N.J.S.A. 2C:39-4(d). The jury also found defendant not guilty of third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). On appeal, defendant asserted reversible error in the trial court's failure to sua sponte charge the jury with the statutory affirmative defense to felony murder. In an unpublished opinion, the Appellate Division affirmed.

We granted defendant's Petition for Certification “limited to the issue of whether the trial court's failure to instruct the jury regarding the statutory affirmative defense to felony murder constituted plain error.” 201 N.J. 146, 988 A.2d 566 (2009). We conclude that evidence in the record clearly indicated that the trial court should have sua sponte charged the jury with the statutory affirmative defense to felony murder. Nevertheless, because the findings of the jury negated most of the factors required to establish the affirmative defense, we find no plain error in this case.

I.

We recite the facts necessary to decide this appeal. The State presented evidence at trial to show that on the evening of January 23, 2003, Jazeer Redding was visiting the home of Albert Whitley, when he heard a knock on the door. Redding answered the front door and saw Trupaire and defendant, both of whom he knew from Irvington High School. Within five minutes of allowing the two young men to enter, Redding left the house. At that time, the house was both clean and in good order.

The following day, the Irvington police discovered Whitley lying on his back on the first floor of his home, with his hands and feet tied with tape. There were stab wounds on the victim's chest and neck, and he was not breathing. Investigators Fernand Williams Jr. and Robert Flanagan of the Essex County Prosecutor's Office investigated the incident. Williams described the house as being in “shambles and disarray.” The evidence collected by the investigators included a ball of tape with possible bloodstains on it from the stairway leading to the second floor, a shoestring with possible bloodstains on it in the dining room, and a knife handle without a blade that was found in the pocket of a suede jacket. Additionally, the investigators collected swabs of blood from various locations throughout the house for DNA testing.

The investigation eventually led the police to defendant and Trupaire. Irvington Police Detective Harold Wallace testified that he interviewed defendant on May 7, 2003. Wallace administered Miranda 1 warnings to defendant, who initially stated that he did not know Trupaire or the victim, and had never been to the victim's house.

The next day, Wallace resumed his interview with defendant. Defendant initially maintained his story from the previous day. He was then informed that his fingerprint had been found at the scene. Upon learning this, defendant demanded to see the fingerprint. After the fingerprint was produced, defendant admitted that he had visited Whitley's home on a prior occasion. In addition, defendant explained that he knew Trupaire and that it was Trupaire's idea to go to Whitley's home to rob him. He said that a young man, whom he did not know, answered the door and let the two of them into the home. The young man left after roughly twenty-five minutes, at which point defendant and Trupaire went upstairs to see Whitley. Trupaire started talking to Whitley and suddenly punched him. Defendant said that Whitley was bleeding and ran downstairs while Trupaire was in pursuit. Defendant also followed and saw Trupaire prevent Whitley from leaving the house. Whitley began fighting back, at which point defendant said he punched Whitley once in the face.

He said that Trupaire forced Whitley to the floor and told defendant to tape Whitley's legs. Defendant complied, but Whitley was able to break free, requiring defendant and Trupaire to use shoelaces to tie him. Defendant said he did not strike Whitley again, though Trupaire was kicking Whitley in the face and head. Defendant, believing Whitley had passed out, walked upstairs to look for money. Trupaire followed upstairs, at which point they found money in an envelope. The two returned downstairs where Trupaire stabbed Whitley as defendant stood by the door and watched. Defendant said that Whitley was still unconscious when Trupaire stabbed him. A short while later, defendant left the house alone. Trupaire later caught up to defendant and gave him approximately $100.

When Wallace asked him if he wanted to add anything to his statement, defendant said he was sorry and did not realize “it was going to turn out to be like this.” Defendant signed and dated the written statement prepared by Wallace during the interview.

At trial, Teri Mason McIntosh, a forensic scientist with the New Jersey State Police DNA Laboratory, testified that the blood swab taken from the entrance hallway precisely matched defendant's DNA profile at all thirteen locations. However, it was determined that defendant was not the source of the bloodstain on the tape found on the stairway. Instead, Eric Carpenter, a fingerprint analyst with the Federal Bureau of Investigation, testified that a latent fingerprint and palm-print found on the tape from the stairway were made by defendant. He found no prints on the knife handle or the tape used to tie the victim's hands and legs.

Dr. Noby Chipo Mambo, M.D., of the Essex County Medical Examiner's Office, who performed the autopsy on the victim's body, testified as an expert forensic pathologist. He explained that the victim's right thumb was “broken backwards,” and that death was a result of twelve stab wounds to the neck “caused by a knife, or some sharp object.” Dr. Mambo noted that the victim also suffered cuts to his chest, back, and upper abdomen, some of which were inflicted post-mortem.

Defendant testified in his defense. Notably, defendant's testimony was substantially different from his previous statement given to the police. He said that two days prior to the incident, he was in Whitley's house packing merchandise using clear tape. Defendant then outlined what happened on the day of the incident, explaining that he and Trupaire visited Whitley in an attempt to secure a Jamaican passport for Trupaire's brother. Defendant described how Trupaire unexpectedly hit Whitley in the head and that Whitley ran downstairs with Trupaire pursuing him. When defendant followed, he found the two men fighting and pushing one another. He admitted that he hit Whitley once in the face to help defend Trupaire. Defendant explained that he cut his hand when he hit Whitley and then watched for five to ten minutes in a state of shock, as defendant kicked and stomped Whitley. Defendant eventually ran upstairs to retrieve his jacket and left the house. He never saw Trupaire use a weapon and denied going to the home to rob Whitley. Defendant claimed that he lied in his statement to Wallace because the detective threatened to throw him out the window if he did not talk. To avoid that, he answered the questions in the manner specified by Wallace.

During cross examination, defendant testified that he was packing boxes at Whitley's home two days prior to the murder, and he denied leaving blood on the packing tape. He acknowledged that he could have been bleeding on the night of the incident when he walked through the hallway as he left Whitley's home.

The trial court instructed the jury using the Model Jury Charge (criminal), “Felony Murder-Non-Slayer Participant” (2004), with minor adjustments. Neither side requested a charge on the statutory affirmative defense to felony murder.

The jury found defendant guilty of second-degree conspiracy to commit robbery, first-degree robbery, first-degree felony murder, first-degree reckless manslaughter as a lesser-included offense of knowing or purposeful murder, and fourth-degree unlawful possession of a knife. Defendant was acquitted on the charge of third-degree possession of a knife for an unlawful purpose. At sentencing, the trial court merged defendant's convictions on conspiracy, robbery, and reckless manslaughter into the felony murder conviction and imposed a...

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