Opinion
DOCKET NO. A-1853-13T4
05-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHEM WALKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3069. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury separately from his co-defendant, defendant Shem Walker was convicted 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). State v. Walker, 203 N.J. 73, 77 (2010). On direct appeal, we rejected defendant's contention that the trial judge's failure to sua sponte provide jury instructions on the "statutory affirmative defense to felony murder" required reversal. Ibid. The Supreme Court's grant of certification was limited to that issue. Id. at 78.
N.J.S.A. 2C:11-3(a)(3) provides an affirmative defense to felony murder if the defendant was not the only participant in the underlying crime and
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; 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.
[Ibid.]
In a unanimous decision, the Court initially concluded:
[D]efendant's trial testimony raised a factual dispute that clearly indicated that a jury charge on the defense to felony murder should be given. That is, if the jury believed defendant's trial testimony, there was evidence in the record to satisfy each of the factors needed to establish the defense to felony murder. Under those circumstances, the trial court was required to sua sponte render an appropriate charge.However, because there was no objection at trial to the charge as given, the Court considered whether "an unjust result occurred" because of the omission. Id. at 90; see R. 2:10-2 (permitting an appellate court to notice "plain error" that was "clearly capable of producing an unjust result").
[Id. at 89.]
The Court noted:
[T]he jury convicted defendant 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 defendant aided the commission of the homicidal act, (reckless manslaughter); possessed a deadly weapon, (possession of a knife); had reason to believe the codefendant was armed with a knife, (conspiracy and reckless manslaughter); and engaged in conduct likely to result in death or serious physical injury, (reckless manslaughter). Thus, the jury, although not charged with the affirmative defense to felony murder, found against defendant on most, if not all, of the four prongs of the defense.As a result, the Court held that "the failure to give the omitted charge on the defense to felony murder would [not] have altered the jury's conclusions." Id. at 90-91. The Court reasoned "the charges given did not preclude the jury from finding in defendant's favor on the same issues that directly implicated the affirmative defense to felony murder, but the jury determined otherwise." Id. at 91.
[Ibid.]
Defendant then filed a motion for a new trial based upon newly-discovered evidence. Judge Peter V. Ryan denied the motion, and in an unpublished opinion we affirmed substantially for the reasons expressed by Judge Ryan. State v. Walker, No. A-4480-10 (App. Div. June 7, 2012) (slip op. at 6).
Defendant next filed a petition for post-conviction relief (PCR) alleging, among other things, the ineffective assistance of counsel (IAC) for failing to request jury instructions on the affirmative defense to felony murder. In a comprehensive written opinion, Judge Ryan first noted that the petition was filed more than five years after the judgment of conviction, and defendant failed to establish excusable neglect for the delay. See R. 3:22-12(a)(1). The judge nonetheless considered the merits of all claims raised in defendant's petition.
In particular, Judge Ryan rejected defendant's IAC claim regarding counsel's failure to request a felony murder affirmative defense instruction at trial. He noted that based upon the Court's holding, defendant had not been prejudiced by the omission since "the results of the proceeding would not have been different." Judge Ryan entered an order denying the petition and this appeal followed.
Before us, defendant argues Judge Ryan erred in denying his petition on procedural grounds, and the judge should have ordered an evidentiary hearing on defendant's IAC claim regarding omission of the felony murder affirmative defense instruction. Defendant contends that trial counsel not only failed to request the charge, but also "never contemplated utilizing such a defense, or, in the alternative, was unaware such a defense even existed."
We have considered these arguments and affirm, once again substantially for the reasons expressed by Judge Ryan. We add only the following.
We need not consider defendant's argument that the judge erred in concluding the petition was time-barred, since Judge Ryan carefully considered the merits of all claims raised by defendant.
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It is well-recognized that a defendant is entitled to an evidentiary hearing "only upon the establishment of a prima facie case in support of post-conviction relief," and "[t]o establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b). To establish an IAC claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
First, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "In determining whether defense counsel's representation was deficient, '[j]udicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (alterations in original) (quoting State v. Norman, 151 N.J. 5, 37 (1997)) (internal quotation marks omitted).
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
Judge Ryan correctly noted that, assuming arguendo trial counsel's performance was deficient for failing to request the charge, defendant could not meet the second prong of the Strickland-Fritz test. The Court had noted that the charge should have been given based on defendant's testimony at trial, which was "substantially different from his previous statement given to the police." Walker, supra, 203 N.J. at 80, 88-89. However, the jury's verdict demonstrated it rejected defendant's version of the facts and "found against defendant on most, if not all, of the four prongs of the defense." Id. at 90. In other words, had counsel requested the charge and had it been given, the result would have been the same.
We also reject defendant's claim that counsel was unaware of the statutory affirmative defense. First, there were extensive discussions regarding the proposed jury instructions, including consideration of both versions of the Model Jury Charge for felony murder, one of which includes the elements of the affirmative defense. See Model Jury Charge (Criminal), "Felony Murder — Non-Slayer Participant," (2004). Furthermore, as the Court noted, trial counsel elicited facts regarding all four elements of the defense through defendant's testimony, Walker, supra, 203 N.J. at 89-90, but the jury nevertheless rejected that testimony, very likely because it conflicted substantially with defendant's prior statement to the police.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION