On certification to the Superior Court, Appellate Division.
(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 Court considers whether the trial court's failure to instruct the jury regarding the statutory affirmative defense to felony murder, N.J.S.A. 2C:11-3(a)(3)(a)-(d), warrants a new trial.
On January 23, 2003, a visitor at the home of Albert Whitley heard a knock on the front door and opened it to find defendant Shem Walker and co-defendant Carl Trupaire, both of whom the visitor knew from high school. After admitting Walker and Trupaire, the visitor left the house. The following day, police found Whitley on the first floor of the house. His hands and feet were bound and he had multiple stab wounds. Evidence taken from the house included a ball of tape with possible bloodstains on it, a shoestring with possible bloodstains on it, a knife handle without a blade, and blood from various places in the house. After being given Miranda warnings, Walker told police that he did not know Trupaire or Whitley. Eventually, Walker admitted that he knew Trupaire and stated that it was Trupaire's idea to go to Whitley's home to rob him. Walker claimed that after the visitor left, Trupaire suddenly punched Whitley. Walker admitted that he punched Whitley once in the face to defend Trupaire and that he complied with Trupaire's instructions to bind Whitley's legs with tape after Trupaire knocked Whitley to the floor. Walker claimed that he did not strike Whitley again, but Trupaire repeatedly kicked Whitley in the head. Walker claimed that after they located money, Trupaire stabbed Whitley as Walker watched. According to Walker, he left the house alone a short time later.
At trial, expert testimony was presented that blood swabs taken from the house matched Walker's DNA profile and prints found on the tape were made by Walker. Walker's testimony at trial differed from the statement he gave to police. He testified that he had been at Whitley's house using tape to pack merchandize two days before the incident. Walker claimed that on the day of the incident he and Trupaire went to Whitley's house, Trupaire and Whitley began to fight, Walker hit Whitley once to defend Trupaire, cutting his hand in the process, and then he left the house. Walker denied intending to rob Whitley and testified that he did not see Trupaire use a weapon.
The trial court instructed the jury using the Model Jury Charge for felony murder, non-slayer participant. Neither the State nor the defense requested a charge on the statutory affirmative defense to felony murder. The jury found Walker guilty of conspiracy to commit robbery, robbery, felony murder, reckless manslaughter as a less-included offense of knowing or purposeful murder, and unlawful possession of a knife.
The Appellate Division affirmed the convictions, rejecting Walker's claim of error in the trial court's failure to instruct the jury on afterthought robbery and the statutory affirmative defense to felony murder. In part, the panel determined that even if the jury accepted Walker's trial testimony, it established that he had a reasonable ground to believe that Trupaire intended to inflict at least serious physical injury on Whitley, therefore the statutory felony-murder defense would not apply. It also rejected Walker's argument that the felony-murder clock stopped running after Walker inflicted his single punch to Whitley, finding no support for that argument in the statute.
The Supreme Court granted Walker'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 (2009).
HELD: Based on the evidence presented in the criminal trial in this matter, the trial court should have sua sponte charged the jury with the statutory affirmative defense to felony murder. However, because the jury's findings negated most of the factors required to establish the affirmative defense, a new trial is not warranted.
1. Because of the potential unfairness of imposing strict liability on all participants when a death occurs during the course of an underlying felony, the Legislature adopted an affirmative defense to felony murder, N.J.S.A 2C:11-3(a)(3)(a)-(d). It provides, in part, that if a defendant was not the only participant in an underlying crime, it is an affirmative defense that the defendant (a) did not commit the homicidal act or solicit, request, command, cause or aid the homicide; (b) was not armed with a deadly weapon or any instrument readily capable of causing death or serious injury; (c) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (d) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. A defendant must present some evidence to support each of these four factors before a request to give the jury charge should be granted. If a defendant fulfills that responsibility, the burden shifts to the State to disprove the defense beyond a reasonable doubt. A trial judge should instruct the jury on the affirmative defense if the defendant requests the charge and there is a rational basis in the record to give it. On the other hand, if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it. (Pp. 10-15)
2. Here, the factfinder had to determine when Walker ceased participating in the wrongful conduct and whether at that time Walker had no reasonable ground to believe that Trupaire intended to kill or inflict serious physical harm on Whitley. The Court notes Walker's assertion at trial that when he punched Whitley once in the face, it was to defend Trupaire, not to assist in robbing or killing Whitley. At trial, Walker also denied helping Trupaire bind Whitley, asserted that the outcome of the altercation was not certain when he ceased participating in the fight, and claimed that he never saw Trupaire with a knife. Although he admitted to watching while Trupaire continued to attack Whitley, he also testified that just prior to his departure words were being exchanged between Whitley and Trupaire. Thus, if the jury believed Walker's testimony, it could find that he had interceded in a contested fight between two individuals and that he ceased participation in the fight at a point when he had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. The Court is satisfied that Walker's trial testimony should have resulted in the trial court charging the jury on the defense to felony murder because, if the jury believed Walker's trial testimony, there was evidence in the record to satisfy each of the four factors. (Pp. 15-20)
3. Walker did not request the instruction and did not object to the jury charge at trial, therefore the issue must be considered under the plain error rule, which dictates a reversal for unchallenged error if the Court finds that the error was clearly capable of producing an unjust result. In that regard, the Court notes that in addition to felony murder, the jury convicted Walker of conspiracy, robbery, reckless manslaughter as a lesser-included offense of knowing or purposeful murder, and possession of a knife. For those convictions, the jury had to conclude that Walker aided the commission of the homicidal act, possessed a deadly weapon, had reason to believe that Trupaire was armed with a knife, and engaged in conduct likely to result in death or serious physical injury. Thus, the jury, although not charged with the defense to felony murder, found against Walker on most, if not all, of the four prongs of the affirmative defense. The Court does not believe that providing the charge on the affirmative defense to felony murder would have altered the jury's conclusions, therefore the Court finds no justification to order a new trial. (Pp. 20-22)
The judgment of the Appellate Division is AFFIRMED, but for different reasons.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
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 co-defendant 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 (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.
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*fn1 warnings to defendant, who initially stated that he did not ...