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State v. Whitaker

December 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
QUADIR WHITAKER, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 402 N.J. Super. 495 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader.It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether, under New Jersey's accomplice liability law, a jury can convict a defendant of robbery and felony murder based solely on defendant's after-the-fact conduct aimed at concealing the murder weapon and hindering the apprehension of the robber.

On December 21, 2002, police officers responded to the sound of a gunshot at Marcy and Conover Streets in Freehold Borough where they found Seth Mejia Hernandez lying in the street, mortally wounded. In his pants pocket was a wallet along with $80.00 and credit cards. On the ground nearby was a nine millimeter shell casing. An autopsy later revealed that Hernandez died from internal bleeding caused by a bullet. Before his death, Hernandez evidently had been heavily drinking; he had a blood alcohol content of .208 percent.

Later that same morning, Freehold Borough Detective Brian Veprek questioned the then eighteen-year-old defendant Quadir Whitaker, who denied knowing anything about Hernandez's killing. Defendant stated that he and Greg Davis were asleep in Issach Powell's bedroom at 45 Parker Street. On January 9, 2003, the police executed a search warrant at 45 Parker Street where they found defendant, Davis, and Powell. The police discovered a black shaving bag containing a fully loaded nine millimeter handgun with one round in the chamber on the roof of the house. Ballistics testing later determined that the bullet removed from Hernandez's body had been fired from that nine millimeter handgun. The three men were taken into custody.

At the Monmouth County Prosecutor's Office, defendant waived his Miranda rights and agreed to respond to questioning. Defendant stated that he and Davis were together when they spotted Hernandez "drunk" and "stumbling down Conover." Defendant explained that Davis followed Hernandez, tapped him on the shoulder, and that Hernandez turned and swung at Davis, at which time Davis "shot him with the black nine." Defendant further stated that Davis was going to "rip" (rob) Hernandez. Defendant claimed that he observed the shooting from about six feet away and that afterwards he and Davis ran to Powell's house, at which time defendant telephoned Powell to tell him that "it was going to be hot in Freehold."

On January 14, 2003, in the presence of his attorney, defendant gave another statement. Defendant indicated that after walking a friend home, he and Davis were standing at the corner of Conover and Marcy Streets when Hernandez came into sight. Defendant denied having any direct knowledge that Davis intended to rob Hernandez. Contrary to his earlier statement, defendant now placed himself "15 to 16 feet" away from the shooting. Defendant admitted that after the shooting he ran with Davis from the scene. Defendant denied exchanging any words with Davis as the two ran from the scene. In addition, defendant stated that he first saw Davis in possession of the "9 millimeter semi-automatic" when Davis shot Hernandez.

In addition to reading defendant's statements to the jury, the State called several witnesses tying defendant to the crime scene. Two sisters, Jasmine and Shanelle Scales, testified that on the evening of the crime they were on their grandmother's porch at 38 Parker Street, intoxicated, and remembered nothing. However, earlier they gave statements to the police that they saw Davis and defendant running towards Powell's house. In her statement, Jasmine recalled hearing defendant say "put it up, put it up." In her statement, Shanelle remembered defendant saying "Yo, god hurry up and put that shit up." The two sisters did not see either Davis or defendant with a gun. Issach Powell testified, in part, that he and Davis had purchased the gun for protection. He also had given a statement to the police that he had observed defendant and Davis with the gun one evening.

In summation, the prosecutor argued that the jury could convict defendant of robbery and felony murder on either of two theories of accomplice liability. In one theory, the prosecutor contended that the evidence supported a finding that defendant aided and abetted Davis in a crime of opportunity against Hernandez. The prosecutor suggested that defendant's words to Davis as the two fled the scene -- "yo, you got to put it up" -- was a direction to discard the murder weapon and could be considered evidence that defendant was in on the crime from the beginning. The prosecutor told the jury that, alternatively, defendant could be found guilty of robbery and felony murder even if defendant did not share Davis's purpose to rob Hernandez or participate in the shooting so long as he aided Davis in discarding the gun.

Defense counsel raised no objection to the prosecutor's argument. In addition, the trial court never advised the jury that the prosecutor's legal theory on after-the-fact accomplice liability was an impermissible basis on which to find defendant guilty of robbery and felony murder. The jury convicted defendant of first-degree robbery, felony murder, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose.

The Appellate Division reversed defendant's convictions of felony murder, robbery, and possession of a weapon for an unlawful purpose, finding that the prosecutor in summation misstated the law on accomplice liability and that the trial court committed plain error by not correcting that misstatement when charging the jury. The Appellate Division concluded that defendant could be convicted of armed robbery and felony murder as an accomplice if he shared Davis's intent to commit the robbery, but that he could not be convicted of those crimes if his intent solely was to aid Davis in his escape after the robbery had been completed. The panel parted ways with State v. Baker and State v. Williams, to the extent those cases suggested that a defendant's after-the-fact assistance to a robber -- without shared intent to commit the robbery -- made him liable for robbery.

The Supreme Court granted the State's petition for certification. In addition, the Court granted the Attorney General's motion to participate as amicus curiae.

HELD: Defendant could not be found guilty as an accomplice of robbery and felony murder unless he shared the principal's intent to commit the theft before or at the time the theft or attempted theft was committed. Because the prosecutor improperly advised the jury that it could convict defendant of robbery and felony murder solely on the ground that he aided in the robber's escape, even if he did not participate or assist in any way in the attempted theft or killing, the Court is constrained to order a new trial.

1. Under the New Jersey Code of Criminal Justice, an accomplice to a crime is legally responsible for "the conduct" of the person who actually commits the crime. N.J.S.A. 2C:2-6. The Code's accomplice liability statute requires that a defendant act with a purposeful state of mind in furtherance of the crime. Whether a defendant is a principal or an accomplice, the State must prove that he possessed the mental state necessary to commit the offense. N.J.S.A. 2C:2-2(a). An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal. On the other hand, an accomplice who does not share the same intent or purpose as the principal may be guilty of a lesser or different crime than the principal. In addition, to be found guilty as an accomplice, a defendant must not only share the same intent as the principal who commits the crime, but also must "at least indirectly participate[] in the commission of the criminal act." State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). (Pp. 15-18)

2. Committing or attempting to commit a theft is a necessary element of the crime of robbery. Theft is classified as a "specific intent crime," and because robbery is nothing more than an "aggravated" theft, it too is a "specific intent crime." State v. Lopez, 187 N.J. 91, 98 (2006). To be clear, "[a]bsent proof of the specific intent to steal, a defendant cannot be found guilty of robbery." Also, the assaultive or intimidating conduct necessary to elevate theft to robbery somehow must be related to the theft itself and if such conduct occurs "in immediate flight after the attempt or commission" of the theft, then what was a theft becomes a robbery. N.J.S.A. 2C:15-1(a). (Pp. 18-21)

3. Defendant is an accomplice to the robbery committed by Davis only if he had the "purpose of promoting or facilitating" the theft, that is, if he shared Davis's intent to steal from Hernandez. If the State could prove that defendant, acting as an accomplice, intended to aid or abet Davis in the theft and knew that Davis was armed, then defendant too would be guilty of armed robbery and felony murder. However, if defendant lacked the specific intent to commit the theft but instead intended only to assist in hindering Davis's apprehension, defendant would be guilty only of the crime of hindering. In this case, after Davis fatally shot Hernandez, the first-degree robbery had occurred. Unless defendant intended to promote or facilitate the theft committed by Davis before or at the time of its occurrence, defendant is not a culpable party to the robbery. As did the appellate panel, the Supreme Court rejects the sweeping interpretation of New Jersey's accomplice liability and robbery statutes that would result in per se culpability for assisting in the immediate flight of a robber. The Code does not support holding a defendant strictly liable for a crime in which he did not share the same criminal intent as his confederates. (Pp. 21-25)

4. There was sufficient direct and circumstantial evidence in the record from which a properly charged jury could have found defendant guilty as an accomplice to the robbery and felony murder of Hernandez. On the other hand, the jury could not convict defendant if it did not believe beyond a reasonable doubt that defendant had the intent to participate in a theft from Hernandez and did not aid Davis in shooting Hernandez. If all the jury believed was that defendant aided Davis in concealing the weapon after Davis committed the robbery, then defendant could not be found guilty of robbery and felony murder. In this case, the prosecutor's explanation of the scope of accomplice liability was clearly erroneous. In addition, the trial court had the obligation not only to give the model charges on accomplice liability and the substantive crimes to the jury, but also to dispel the tantalizingly simple but mistaken legal theory the prosecutor offered in summation to the jury. The failure to do so constituted plain error. R. 2:10-2. The Court is thus constrained to reverse defendant's convictions of armed robbery and felony murder. In addition, the Court agrees with the Appellate Division that defendant's conviction of possession of a weapon for an unlawful purpose must be reversed as well. (Pp. 25-29)

The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court for a new trial and proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN's opinion.

The opinion of the court was delivered by: Justice Albin

Argued September 15, 2009

Defendant Quadir Whitaker was convicted of robbery and felony murder based on accomplice liability. The issue before the jury was whether defendant aided and abetted Greg Davis in the robbery and shooting death of the victim. In summation, the prosecutor told the jury that it could convict defendant as an accomplice to robbery and felony murder, regardless of whether defendant participated in or shared Davis's intent to commit a theft or played any role in killing the victim, so long as he assisted Davis in disposing of the murder weapon as the two men fled the crime scene.

The Appellate Division reversed defendant's conviction, rejecting the State's legal theory that would allow defendant's conviction of robbery and felony murder for merely concealing evidence or hindering Davis's apprehension after commission of the crimes. We affirm the Appellate Division for reasons rooted in basic tenets of criminal culpability set forth in the New Jersey Code of Criminal Justice (Code).

Under the Code, accomplice liability requires that a defendant act "[w]ith the purpose of promoting or facilitating the commission of the offense." N.J.S.A. 2C:2-6(c)(1). Defendant could not be found guilty of robbery and felony murder unless he shared Davis's intent to commit a theft before or at the time that Davis shot the victim. Because the prosecutor improperly advised the jury that it could convict defendant of robbery and felony murder solely on the ground that he aided Davis in his escape, even if he did not participate or assist in any way in the attempted theft or killing, we are constrained to order a new trial.

I.

In a multi-count indictment, a Monmouth County Grand Jury charged defendant Quadir Whitaker and co-defendant Greg Davis with first-degree armed robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder, N.J.S.A. 2C:11-3; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).*fn1 Defendant Whitaker was tried alone before a jury. The State's theory was that defendant acted as Davis's accomplice in committing the crimes. To prove that defendant acted as an accomplice, the State's case relied, in large part, on statements defendant made to the police and others and on witness testimony describing defendant's conduct immediately after the shooting.

A.

At about 2:00 a.m. on December 21, 2002, police officers responded to the sound of a gunshot at Marcy and Conover Streets in Freehold Borough. There they found Seth Mejia Hernandez lying in the street, mortally wounded. In his pants pocket was a wallet along with $80.00 and credit cards. On the ground nearby was a nine millimeter shell casing. An autopsy later revealed that Hernandez died from internal bleeding caused by a bullet that entered his left arm and pierced his ...


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