State v. Whipple

Decision Date30 September 2022
Docket NumberA-2840-19
PartiesSTATE OF NEW JERSEY, Plaintiff-Respondent, v. SHANE A. WHIPPLE, Defendant-Appellant.
CourtNew Jersey Superior Court – Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2022

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Rachel M. Lamb, Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

Before Judges Mawla and Marczyk.

PER CURIAM

A jury convicted defendant Shane Whipple of the first-degree murder of his aunt, Jennifer Whipple, with a hatchet. On this appeal, he challenges an order denying his motion to suppress the warrantless entry into Jennifer's[1]apartment, raises various claims of trial errors, and challenges his sentence. We affirm.

On Thursday, January 25, 2018, Officer James Bendig of the Winslow Township Police Department responded to a domestic incident at Jennifer's apartment. Defendant also lived in the apartment. Jennifer called the police because defendant had been throwing things in his bedroom. In addition Jennifer told police that earlier in the week, defendant told her "to go put a knife in her throat." Jennifer told police she was scared and wanted defendant removed from the apartment. Officer Bendig confiscated two key fobs from defendant, escorted him to gather some belongings from his room, and advised him he needed a police escort if he wanted to return to the apartment.

Two days later police were contacted by Jennifer's father David, requesting a well-being check on her. Officer Nicholas Cobian arrived and knocked on Jennifer's apartment door but did not receive a response. He noted her car was still in the parking lot and the hood was cold, indicating the car had not been operated recently. He then contacted David and learned of the previous incident and looked up the police report. Patrolman Kurt Gunson arrived at the scene, then both officers returned to Jennifer's apartment and knocked, but did not receive an answer. Officer Cobian noticed the apartment door was unlocked. The officers entered and discovered Jennifer's body on her bedroom floor.

A Camden County Grand Jury returned an indictment charging defendant with: First-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); unlawful possession of certain weapons (a hatchet), N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count three).

Defendant filed a motion to suppress the warrantless entry into Jennifer's apartment. Officer Cobian testified on behalf of the State, recounting the facts of his January 27 visit to Jennifer's apartment. After receiving no answer to his knocks on Jennifer's door and the observations he made about her car, Officer Cobian testified he called David, who relayed "that two nights prior there was a disturbance at the residence between Jennifer and [defendant]" and defendant "was escorted off the property and . . . forfeited his key." David explained he spoke to his daughter daily but had no contact from her in one or two days.

Officer Cobian then looked up the prior domestic incident report, which recounted defendant's removal from Jennifer's apartment. In pertinent part, the report stated an officer

spoke to [defendant] and advised him . . . Jennifer wanted him to leave the residence for good. [Defendant] stated that[] all he wants to do is leave. He handed over the keys to the entry gate and doorway for the complex. [The officer] stood by as [defendant] removed his belongings from the residence and into his vehicle. Jennifer was given the signed copy of the Victim Notification Form stating she did not want to apply for a [temporary restraining order] at this time. [Defendant] advised he was going to stay in a shelter for the evening.

After Officer Cobian read the report, he called Officer Gunson for backup, and the two proceeded upstairs.

The officers attempted to contact building management to obtain entry into Jennifer's apartment but were unable to reach anyone. They knocked on Jennifer's door "for several minutes" but did not receive an answer. When Officer Cobian discovered the door unlocked he radioed dispatch and stated he was going to enter the apartment and discovered Jennifer. The officers recorded their entry into the apartment on their body worn cameras and the footage from Officer Gunson's camera was played at the suppression hearing.

The State also called Sergeant Victoria Patti, the lead crime scene unit detective from the Camden County Prosecutor's Office in charge of the investigation. She stated she and the other law enforcement officers left the apartment complex once Jennifer's body was removed because they were awaiting a search warrant, which was issued a few hours later.

Defendant argued he had standing to contest the warrantless entry to the apartment because he lived in the apartment for two years prior. He pointed to the domestic incident report, which stated defendant "advised he was going to stay in a shelter for the evening." (emphasis added). He claimed he did not remove all his belongings from the home, which showed an intent to return, and Jennifer did not seek a restraining order, which belied an intent to permanently remove him.

The defense also argued the emergency aid warrant exception did not apply because "there was no objectively reasonable belief that immediate action was necessary to protect or to save a life." David had lost contact with Jennifer for a brief time and police did not hear or observe anything requiring them to enter without a warrant. Further, "police didn't act as if it was an emergency" because officers spent approximately half-an-hour on the premises before opening the unlocked door. The unlocked door did not prove an emergency because Jennifer could have forgotten to lock it.

The trial judge found Officer Cobian's testimony "extremely credible" and corroborated by the domestic incident report, the dispatch call Jennifer made, and the body-worn camera footage. The judge concluded defendant lacked standing to object to the warrantless entry because he "was a trespasser. It's clear that he was told he had to leave terminally. He turned in his keys. He knew that he was not to return to the residence, and he did." Defendant "no longer lived at the address in question. Neither of them, . . . defendant or [Jennifer], were under the impression that he lived there. Because he is not an owner or a resident, he has no reasonable expectation of privacy."

Even if defendant had a reasonable expectation of privacy, the judge found the emergency aid warrant exception applied because "when [police] went to enter, they had an objectively reasonable basis to believe that an emergency required . . . they check to make sure . . . [Jennifer] was okay, to protect or preserve life or serious injury." The judge cited the information police had at the time, namely, the domestic incident report and David's request for a wellbeing check. The "motivation for entering into the home was certainly not to find or seize any evidence. It was to render assistance." The discovery of Jennifer's body on the floor of her bedroom proved "a reasonable nexus between the emergency and the area or the place to be searched." The judge denied the motion.

David testified for the State at trial. He said he was concerned for Jennifer's safety "[b]ecause she had some incidents with problems with [defendant and] arguments" during the two years defendant lived with her.

The State called Officer Bendig, who testified about his response to the domestic incident. When the officer arrived, he "found [defendant] in the parking lot in his vehicle." The officer's conversation with defendant was recorded on his body-worn camera, which the State played for the jury. On the recording, defendant claimed he was "just going through a lot in [his] head" and that he "wasn't fighting with [Jennifer] at all." He stated he "was throwing stuff in [his] room and then [Jennifer] yelled." When the officer told defendant he was responding to a domestic incident, defendant admitted he "got mad" and "flipped [his] bed over. "He stated: "We just had a fucking beef .... I threw my shit out. ... [S]he tried to come talk to me. I locked my door. She went back to her room and then I just came out here to fucking try to calm down."

Officer Bendig urged defendant to "go inside and figure out what's going on" but defendant responded: "I don't want to go inside. I don't want to talk to her.... I didn't touch her. I didn't say anything. We weren't even arguing. I yelled at her one time."

Officer Cobian testified for the State about the discovery of Jennifer's body and the murder scene. He stated Jennifer's bedroom door was "cracked open with the light on inside" and when he entered the bedroom, he "observed Jennifer deceased on the floor. ... There was a large amount of blood on her and throughout the bedroom and it appeared that she suffered from trauma to the head and face." While clearing the apartment, he observed "[s]everal blood spatters on the floor" and "[a] button on the floor."

Sergeant Patti also testified and described the scene in a similar fashion. She "observed . . . what appeared to be teeth and also some suspected bone fragment on the floor as well as several clumps of hair." She found a suspected blood stain on the front door of the apartment, two blood stains on the kitchen floor, and four suspected blood stains in...

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