On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, C.L. Miniman and Baxter.
Defendant, Shem Walker, appeals from his February 23, 2006 conviction, following a trial by jury, on second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2/2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); second-degree manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4(b)(1) (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five). The jury acquitted defendant of third-degree possession of a weapon for an unlawful purpose, as charged in count six. After merging counts one, two and four into the felony murder conviction, the judge sentenced defendant to a thirty-year term of imprisonment with a thirty-year parole ineligibility term. On count five, the judge sentenced defendant to an eighteen-month term of imprisonment, concurrent to the sentence imposed on count three. Appropriate fines and penalties were imposed. On appeal, defendant raises two instructional errors, namely the judge's failure to sua sponte charge the jury on the statutory affirmative defense to felony murder and his omission of a charge on "afterthought robbery" as a lesser included offense of robbery. We affirm.
On January 24, 2003, Irvington police found the body of Albert Whitley lying on the first floor of his two-story home. Whitley was the victim of a brutal stabbing. According to the testimony of Officer Dawn Koontz, the house was ransacked, with blood smeared on the wall in the foyer. Koontz found Whitley on his back, barefoot, with his hands taped behind his back with clear packing tape. The same clear tape was used to bind Whitley's legs together. Koontz observed deep stab wounds on his neck and chest.
The forensic pathologist who performed the autopsy, Nobby C. Mambo, M.D., opined that Whitley died of stab wounds caused by a knife or other sharp object. Crime scene investigators located a blood-stained knife handle without its blade in the pocket of a jacket hanging over a chair on the first floor. They also found a wad of blood-stained clear packing tape on the stairway that appeared to match the tape that had been used to bind Whitley's hands and legs. Police took swabbings of blood stains found throughout the first and second floors of the house.
Terri Mason McIntyre, a forensic scientist, testified that after analyzing the blood stains found in the house, she was able to conclude within a reasonable degree of scientific certainty that defendant was the source of the blood stain that was found in the foyer, but the remaining blood stains were those of Whitley. Eric Carpenter, an expert in fingerprint analysis employed by the Federal Bureau of Investigation, opined that defendant's prints matched a fingerprint and palm print lifted from the clear packing tape found on the stairway of Whitley's home. Carpenter also testified that no latent fingerprints were found on the knife handle or the clear tape found on Whitley's hands and legs.
The State also presented the testimony of Jazeer Redding, who testified that he was at Whitley's home at approximately 8:45 p.m. on January 23, 2003, when he heard a knock at the door, and admitted two men into the house. Redding identified one of the two as co-defendant Carl Trupaire,*fn1 whom Redding knew from high school. Redding identified defendant as the other individual after selecting defendant's photograph from a photo array. Redding testified that he left the house shortly after defendant and Trupaire arrived.
Irvington Police Detective Harold Wallace testified that on May 28, 2003, after administering Miranda*fn2 warnings to defendant, he interviewed him and took a formal statement. Wallace described defendant's statement in the following terms: defendant initially denied knowing either Whitley or Trupaire and claimed he had never been to Whitley's home; however, when Wallace told defendant that his fingerprint had been found at the crime scene, defendant acknowledged that he and Trupaire were friends and he admitted that he had been to the victim's home on a prior occasion. Defendant claimed that it was Trupaire who devised the plan of going to Whitley's home to "rob him." According to defendant, all three men were upstairs in Whitley's house, and as soon as Whitley got off the phone, Trupaire began punching him. Whitley fled downstairs, but Trupaire caught up with him and continued slugging him. Defendant claimed he did not assist Trupaire, but admitted that he "punched Whitley one time in the face."
According to Wallace, defendant claimed that Trupaire told him "to tape" Whitley's legs. With Trupaire holding the victim, defendant retrieved the tape from the dining room table, and taped Whitley's "legs and wrists." After Whitley was bound, defendant "went upstairs looking for money to steal." According to defendant, Whitley was already "knocked out" by the time he went upstairs. Defendant also maintained that after Whitley was bound, Trupaire hit him and was "stomping him in the face and in the head." Defendant denied stabbing Whitley, but admitted that he stood "by the door" while Trupaire continued to stab him.
Defendant told Wallace that after the two left Whitley's house, Trupaire gave him approximately $100. At the conclusion of his statement, defendant commented that he "didn't know it was going to turn out to be like this" and "didn't know [Whitley's] life was going to be taken . . . ." Defendant claimed that if he had been aware of what was going to take place, he "would not have got [sic] involved." Defendant signed and dated the written statement that Wallace prepared during the interview.
Wallace testified that he did not physically assault or threaten defendant during the interview. He also asserted that defendant appeared to understand the questions and was able to answer them clearly.*fn3
Defendant's testimony at trial differed sharply from the statement he gave to Wallace. According to defendant's trial testimony, he worked in the candle store that Whitley operated, and had used packing tape at Whitley's home to wrap candles, as recently as two days before Whitley was murdered. Defendant testified that although he and Trupaire went to Whitley's home on the night of January 24, 2003, they had no plans to rob him. Instead, defendant insisted that the two went to Whitley's home to see if Whitley could assist in obtaining a passport for Trupaire's brother. Defendant testified that unexpectedly Trupaire hit Whitley in the head with his hand, causing Whitley to run downstairs to get away from him. Defendant admitted that while Trupaire and Whitley were fighting, he punched Whitley in the face with his right hand, causing his knuckle to bleed. Defendant reiterated the claim he made to Wallace that he only hit Whitley once. He also testified that after Whitley tried to get up, Trupaire continued to "hit him to the ground," stomp him and kick him in the face while Whitley lay on the ground defenseless. After five or ten minutes of watching Trupaire relentlessly beat Whitley, defendant went upstairs, grabbed his jacket and left the house because "what [Trupaire] was doing to [Whitley] didn't look right."
However, contrary to the statement he gave to Wallace, defendant denied: 1) binding Whitley or seeing him constrained around his wrists and legs; 2) seeing Trupaire stab Whitley; 3) observing a weapon while he was at Whitley's home; and 4) ransacking Whitley's bureau to look for money.
Defendant also testified that Wallace threatened to throw him out the window "if [he] didn't start talking." He also asserted that he never read the statement before signing it and that the answers he gave were not truthful because he was "[a]nswering [Wallace's] questions as he wanted me to."
On November 3 and 4, 2005, the judge conducted charge conferences to discuss the appropriate felony murder jury charge. During the first charge conference, the assistant prosecutor commented that the model jury charge would need "to be tailored to the facts of this case, which don't fit neatly into either of [the] model charges," Felony Murder-Non-Slayer Participant or Felony Murder-Slayer Participant. When the judge commented that he was not sure what charge the State was requesting, the assistant prosecutor clarified the State's theory, commenting that Trupaire and defendant "acted together, that this jury can be satisfied either of the individuals, [or] both of the individuals together[,] killed Albert Whitley during the commission of a robbery and that is felony murder. I'm not picking one or the other."
The judge then turned to defense counsel, who replied:
I don't see the need to have an ultimate outcome on that right now, only for this reason. I don't think it's going to preclude or inhibit her from arguing what she's going to argue, before the Jury anyway. She's not going to tell the Jury that [defendant] stabbed this man, killed him . . . . She's going to say they were acting together, they're responsible for each other's action - I don't want to make her arguments, I'm being forced to - not forced, but I am, and you know, I have to flesh it out a little more to be honest.
The November 3 charge conference concluded with the State commenting that it saw no need to immediately resolve the felony murder instruction, and reiterated that, in its summation, it could argue "accomplice liability as it pertains to the substantive offense of murder and the lesser included offenses of aggravated murder and reckless manslaughter." The judge agreed.
Defense counsel then presented his summation, in which he argued that defendant was "totally innocent," and labeled defendant's conduct "not a crime," but "a mistake in judgment" when he accompanied Trupaire to Whitley's home on January 23, 2003. In particular, defense counsel argued defendant was unaware that Trupaire "was going to do anything wrong and certainly not something to what ultimately happened" to Whitley. He reminded the jury that defendant "was in [Whitley's] house, not when the man died, but when the fight started and things got out of hand."
The defense also argued in summation that none of defendant's DNA was found on Whitley or his clothing, asserting that Mambo was unable to identify the individual who killed Whitley or determine when the killing occurred. Defendant also asserted that, of the eight fingerprints, "seven had nothing - or prints that were not identifiable as [defendant]." The defense concluded its summation, arguing that defendant had no involvement in Whitley's death or in the robbery, and urging the jury to acquit him on all counts.
After the defense closing, the judge conducted the second charge conference, in which he explained that he had been provided with "a version of the felony murder instruction which [both] counsel have agreed upon." When asked, both attorneys agreed that the judge's statement was correct. The assistant prosecutor explained that the parties had cooperated in drafting the felony murder charge that ...