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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Messano and Yannotti.
Following a jury trial, defendant Shem Walker was convicted of various offenses including first-degree felony murder, N.J.S.A. 2C:11-3(a)(3). He was sentenced to thirty years imprisonment with a thirty-year period of parole ineligibility. We affirmed defendant's conviction in an unpublished opinion.
State v. Walker, No. A-4542-05 (App. Div. Apr. 8, 2009). The Supreme Court subsequently granted defendant's petition for certification and affirmed his conviction. State v. Walker, 203 N.J. 73 (2010). We briefly recite the relevant facts as contained in the Court's opinion. Id. at 78-81.
On January 23, 2003, defendant and his co-defendant, Carl Trupaire, arrived at the front door of the home of Albert Whitley. Jazeer Redding, who knew both men from high school, let them in and, minutes later, left the house without incident. The next day members of the Irvington police department discovered Whitley's body lying on the first floor of the home, which was in disarray. His hands and feet were tied with tape, and he had suffered stab wounds to his chest and neck. Various items of physical evidence were taken from the scene and sent for DNA testing.
Investigation led the police to defendant and Trupaire. In a statement given to police on May 7, defendant denied knowing Trupaire or Whitley. In a second interview the next day, defendant admitted having visited Whitley on a prior occasion, knowing Trupaire, and that it was Trupaire's idea to go to Whitley's house and rob him on the night in question.
Defendant further admitted that Trupaire punched Whitley, who ran downstairs bleeding with Trupaire in pursuit. Defendant claimed that he punched Whitley once in the face and Trupaire told defendant to tape Whitley's legs. Defendant denied striking Whitley again, but admitted seeing Trupaire kick Whitley in the face and head. When he believed Whitley had passed out, defendant went upstairs looking for money. Trupaire followed, and they discovered money in an envelope, which they took. Upon going downstairs, defendant stood by the door as Trupaire stabbed Whitley. They both left, and Whitley subsequently gave defendant $100.
At trial, forensic evidence revealed that a blood swab taken from the entrance hallway matched defendant's DNA profile. Additionally, a latent fingerprint and palm print found on tape in the stairway were identified as defendant's.
Defendant's testimony at trial conflicted with the statement he gave to the police. He claimed that he went with Trupaire to Whitley's home to secure a Jamaican passport for Trupaire's brother. Defendant acknowledged cutting his hand when, in defense of Trupaire, he hit Whitley once as both men struggled. Defendant watched in shock as Trupaire kicked and stomped Whitley. Defendant denied going to Whitley's home to commit a robbery and claimed that he never saw a weapon.
On September 20, 2010, defendant moved for a new trial. In support, he attached an affidavit signed by Trupaire. Trupaire stated that on the night of the murder, he and defendant went to Whitley's home. Defendant "thought this was going to be a robbery." Trupaire further claimed that he told defendant "if he didn't do what I told him to do 'he was going to get it' meaning bodily harm." Trupaire acknowledged that he killed Whitley and claimed defendant "had no knowledge of [Whitley's] death because he left the house before [Whitley] was killed." Trupaire further stated that defendant "should be cleared of any and all charges pertaining to murder."
Defendant also attached a copy of the transcript from the November 30, 2005 proceedings at which Trupaire pled guilty to aggravated manslaughter. Defendant claimed that "had he been privilege[d] to the plea deal accepted by . . . Trupaire he would have been able to have his plea agreement admitted as evidence . . . and the results of [the jury's] findings might have been different."
The motion was considered on the papers by Judge Peter V. Ryan. The judge noted that defendant claimed Trupaire's affidavit constituted a "'recantation,'" and the plea allocution was "'exculpatory.'" The judge set forth the ...