STATE OF NEW JERSEY v. SHEM WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4542-05T44542-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHEM WALKER,

Defendant-Appellant.

________________________________________________________________

 

Argued March 4, 2009 - Decided

Before Judges Fisher, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3069.

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).

LeeAnn Cunningham, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Cunningham, of counsel and on the brief).

PER CURIAM

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.

I.

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, 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 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.

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 they were requesting the judge to use when instructing the jury. The assistant prosecutor commented:

Judge, I indicated yesterday, I [sic] previously to that and even again today went over with counsel the felony murder charge. I know your Honor indicated you would look at it, but it basically is the felony murder charge adding in that, where it says in the felony murder, "slayer participant," this is not, you know, a one-guy-has-gun-and-three-guys-don't situation. It's a hybrid, as I said. I crafted the charge to say "death caused by the defendant or one of the participants in the underlying robbery," and I need an indication from the Court before I sum up, because I intend to sum up on that.

Immediately thereafter, the following exchange occurred:

THE COURT: I just said, I thought, that I believe counsel have agreed on the submission, which I have inside, about the felony murder instruction.

[PROSECUTION]: That is correct, and then you said I'll consider it.

THE COURT: yeah, I'm going to consider it, I'm going to read it, see if it's grammatically correct.

[PROSECUTION]: Right.

THE COURT: See if it tracks the elements of the crime. That's all I mean.

[PROSECUTION]: Okay.

THE COURT: We have agreed on the legal theory about which this jury needs to be instructed --

[PROSECUTION]: Yes.

THE COURT: -- as to the felony murder.

[PROSECUTION]: Yes.

THE COURT: Is that correct, [defense counsel]?

[DEFENSE COUNSEL]: Yes.

THE COURT: And only for that reason.

[PROSECUTION]: All right. Thank you, Judge.

During the November 4, 2005 charge conference, the judge also discussed the lesser included offenses that would be charged. He granted defendant's request to charge simple assault as a lesser included offense of robbery; however, because neither side requested an instruction on theft as a lesser included offense of robbery, and because the facts did not warrant such an instruction, the judge concluded that a theft instruction would not be given.

During his charge to the jury, Judge Giles instructed the jury using the charge entitled Model Jury Charge (Criminal), "Felony Murder - Slayer Participant" (2004) with one significant alteration pursuant to the State's and defense counsel's agreed upon instruction. The judge's instruction did not include the non-slayer participant affirmative defense set forth in N.J.S.A. 2C:11-3a(3)(a) through (d), and in the felony murder non-slayer participant model jury charge.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN FAILING TO INSTRUCT THE JURY AS TO THE AFFIRMATIVE DEFENSE TO FELONY MURDER. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)

II. THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN FAILING TO INSTRUCT THE JURY AS TO "AFTERTHOUGHT ROBBERY." U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)

Because both claims of error are being raised for the first time on appeal, the plain error standard of review governs. Accordingly, we will disregard these alleged errors unless they are "clearly capable of producing an unjust result." R. 2:10-2.

In the context of a jury instruction:

[P]lain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The alleged error is viewed in the totality of the entire charge, not in isolation. In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case.

[State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)) (internal citations omitted).]

II.

We turn first to Point I, in which defendant argues that the judge's failure to charge the jury on the affirmative defense to felony murder constitutes plain error that entitles him to a reversal of his conviction and a new trial. He asserts that the affirmative defense should have been charged sua sponte because "there would appear to be no legitimate trial strategy that would be furthered by not giving the charge."

In relevant part, the statutory non-slayer participant affirmative defense to felony murder provides:

[E]xcept that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
 
(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.

[N.J.S.A. 2C:11-3a(3).]

Moreover, the felony murder jury charge that incorporates the defense specifically instructs the jury that unless there is evidence in the record supporting each of the four subsections, the affirmative defense must be rejected. The relevant portion of the charge provides:

If there is such supporting evidence, either in the State's proofs or as presented in behalf of the defendant, then it is incumbent upon the State to negate this evidence by proof beyond a reasonable doubt. However, it is not necessary that all four requirements be negated. Since the defense is not available to defendant unless the evidence supports all four of the requirements, it is sufficient for the State in such case to present proof beyond a reasonable doubt negating any one of them.

[Model Jury Charge Criminal, "Felony Murder - Non-Slayer Participant" (2004) (emphasis added) (footnote omitted).]

Here, while the State does not expressly concede that subsections (a) through (c) are satisfied, it vigorously argues that because the record could not remotely support the requirements of subsection (d), the trial judge did not err when he failed to sua sponte charge the affirmative defense to felony murder. In particular, the State argues that defendant's own testimony "failed to establish that he had no reasonable ground to believe that Trupaire intended to engage in conduct likely to result in the death or serious physical injury" to Whitley. In support of that argument, the State points to defendant's testimony that he observed Trupaire tackle the victim to the ground and repeatedly punch and kick him in the head for five to ten minutes. The State also points to defendant's testimony that while the victim lay defenseless on the floor, defendant went upstairs to retrieve his jacket and left the victim's house.

As such, the State maintains that defendant could not reasonably have believed that Trupaire had any purpose other than causing Whitley's death or inflicting serious physical injury. The State therefore argues that because no reasonable jury could conclude that subsection (d) was satisfied, the judge's failure to instruct the jury on the affirmative defense was not error, much less plain error.

During appellate oral argument, defendant argued that for purposes of the subsection (d) analysis, the "clock stops running" at the moment defendant inflicted his single punch to Whitley. He asserts the record demonstrates that after he punched Whitley, his participation was merely that of a bystander who stood near the door and watched as Trupaire continued to beat Whitley. Under those circumstances, defendant argues, his active participation had come to an end. Therefore, any evaluation of his assessment of Trupaire's intentions toward Whitley must be judged only as of that moment and must not encompass Trupaire's vicious continued attack on Whitley thereafter.

As the State correctly argues, defendant's proposed construction of subsection (d) adds an element that the Legislature did not include when it enacted N.J.S.A. 2C:11-3a(3). We must assume that had the Legislature intended to essentially "stop the clock" at the moment a defendant's own active participation comes to an end, it would have so stated. State v. Vonderfecht, 284 N.J. Super. 555, 559 (App. Div. 1995).

Neither of the two reported decisions that discuss the quantum of proof necessary to warrant an instruction on the affirmative defense is dispositive in light of the particular facts adduced at trial here. In State v. Smith, 322 N.J. Super. 385, 392 (App. Div.), certif. denied, 162 N.J. 489 (1999), the defendant testified that he and his co-defendant had conspired to commit the robbery but had agreed that no weapons would be used. The defendant did not have a gun and claimed he was surprised when his co-defendant displayed the gun during the robbery. Ibid. We held that the defendant was not entitled to an instruction on the affirmative defense because in "defendant's own testimony to the jury[,] he admitted, on direct examination, that after he saw his accomplice display the handgun, he actively continued to perpetrate the robbery by demanding money and kicking the victim." Id. at 397. Here, Whitley did not die from the blows that Trupaire and defendant inflicted. Thus, the active participation of the defendant even after he saw the weapon, which was dispositve in Smith, is missing here. Consequently, Smith is distinguishable.

In State v. Sheika, we held that the defendant was not entitled to the felony murder affirmative defense because the State's proofs established through eyewitness testimony that the defendant repeatedly kicked the helpless victim who was found dead the next morning as a result of blows inflicted by the defendant and his co-defendant. 337 N.J. Super. 228, 234-35 (App. Div.), certif. denied, 169 N.J. 609 (2001). Under those circumstances, because the defendant was a direct participant in the very conduct that led to the victim's death, we rejected his argument that the trial court erred when it failed to sua sponte instruct the jury on the affirmative defense. Id. at 251. Here, the State's proofs did not support such a conclusion. Thus, neither Smith nor Sheika provides definitive guidance on the question of whether the trial judge had a responsibility to sua sponte instruct the jury on the affirmative defense.

In evaluating defendant's claim, we must determine whether there was "some evidence" to support all four sections of the affirmative defense. Smith, supra, 322 N.J. Super. at 396 ("The jury is only to be instructed on a defense if there is some evidence supporting it.")

Applying that test, we agree with the State that, contrary to N.J.S.A. 2C:11-3a(3)(d), the record contained evidence that defendant had "reasonable ground[s] to believe that [Trupaire] intended to engage in conduct likely to result in death or serious physical injury." Even if the jury had accepted defendant's trial testimony, and rejected Wallace's account of defendant's statement to police, defendant's own testimony established that he had a reasonable ground to believe that Trupaire intended to inflict, at a minimum, "serious physical injury," N.J.S.A. 2C:11-3a(3)(d), upon Whitley. Trupaire's brutal and prolonged assault on Whitley, who lay helplessly on the ground while Trupaire stomped and kicked him in the head, was consistent with no other purpose on Trupaire's part than inflicting serious physical injury. Under the circumstances, there was no evidence to support subsection (d). Consequently, the judge did not err by failing to sua sponte charge the jury on the affirmative defense.

Our conclusion that defendant's claim in Point I is meritless is bolstered by defendant's express approval of the jury charge that the judge ultimately gave. The record reflects that defendant participated in drafting it, and that there were at least two discussions between the trial judge, the prosecutor, and defense counsel in which the defense approved the jury charge in question. The affirmative defense was specifically referenced by both the judge and the prosecutor, yet at no point during either of those discussions did defense counsel mention, let alone request, the affirmative defense. More importantly, the record also shows: the prosecutor and defense counsel cooperated with one another in drafting the felony murder jury charge that the judge gave to the jury; and defense counsel told the judge he was satisfied with the felony murder jury charge that he helped draft.

This situation implicates the invited-error doctrine, because the alleged error, the trial judge's failure to instruct the jury on the affirmative defense, was "induced, encouraged[,] acquiesced in or consented to by defense counsel[.]" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). The invited-error doctrine, also referred to as induced error, "applies when a defendant in some way has led the court into error." State v. Jenkins, 178 N.J. 347, 359 (2004). As such, "[s]ome measure of reliance by the court is necessary for the invited-error doctrine to come into play." Ibid. In particular, we must determine "whether defense counsel [was] responsible directly or indirectly for the asserted error[.]" Corsaro, supra, 107 N.J. at 345. In Corsaro, the Court explained that in deciding this issue, generally "[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." Ibid. (quoting Harper, supra, 128 N.J. Super. at 278).

Here, the record shows that the judge relied on defense counsel's failure to request the affirmative defense when the opportunity twice presented itself during the charge conferences, and defense counsel's participation in drafting the charge the judge ultimately gave. However, the Court warned that a finding of reliance "does not foreclose reversal." Ibid. The central inquiry must be whether the asserted error "cut mortally into the substantive rights of the defendant." Id. at 345 (quoting Harper, supra, 128 N.J. Super. at 277). The Court explained that:

where the invited error did not demonstrably impair a defendant's ability to maintain a defense on the merits or where the after-criticized judicial action was reasonably thought to secure a trial or tactical advantage for the defendant, it has not been considered so egregious as to mandate a reversal on appeal. We must recognize, however, that, although brought about by the defendant, there are errors of such magnitude that they trench directly upon the proper discharge of the judicial function. Some errors "may go so plainly to the integrity of the proceedings that . . . a new trial is the just course. . . ." We conceive that errors of this dimension may be cognizable on appeal as plain error notwithstanding their having been precipitated by a defendant at the trial level.

[Id. at 346 (quoting Harper, supra, 128 N.J. Super. at 277-78) (emphasis added).]

The Court held that, in determining whether an invited error requires reversal, a reviewing court should engage in "a close, balancing examination of the nature of the error, its impact on the . . . jury's verdict and the quality of defendant's motives and conduct in bringing about the error." Ibid. (quoting Harper, supra, 128 N.J. Super. at 278.) In this case, the error did not have the capacity to "deflect the jury from a fair consideration of the competent evidence of record[.]" State v. Simon, 79 N.J. 191, 207 (1979). The absence of an instruction on the affirmative defense had no impact on the jury's capacity to consider all of the evidence, and to decide which portions it accepted and which it rejected. The error did not have a capacity to constrict defendant's proofs, nor did it affect his trial strategy. Indeed, in his closing, defendant strenuously argued he did not participate in a robbery, had no idea Trupaire intended to rob Whitley, was not present when a stabbing occurred and never saw a weapon. Thus, the error did not alter the jury's fact-finding responsibilities and function. Under those circumstances, the induced error doctrine remains applicable. Ibid.

Based on the specific facts presented, we conclude that the failure of the trial judge to charge the non-slayer participant affirmative defense was not reversible error. Specifically, this invited error did not "deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt . . . supported overwhelmingly by properly admitted evidence." Ibid. Specifically, as was the case in Harper, supra, 128 N.J. Super. at 273, there was sufficient circumstantial evidence for the jury to find defendant guilty of felony murder beyond a reasonable doubt. In particular, the State's proofs demonstrated that: defendant's blood was found at the crime scene, in the area where the beating occurred; defendant's fingerprints were found on a piece of packing tape -- the same type of tape used to bind the victim -- that was recovered from the stairway at the victim's house; and the victim had, in fact, been robbed.

The State also presented the testimony of Wallace, who recounted defendant's statement from which the jury could reasonably have concluded that: defendant had the specific intent to commit a robbery; defendant did, in fact, rob the victim; and defendant was an active participant in the felony murder in that he assisted Trupaire in binding the victim's hands and feet. Thus, the evidence was sufficient to enable the jury to find beyond a reasonable doubt that a felony murder had taken place, and that defendant actively participated in that felony.

Thus, we reject the claim defendant advances in Point I for the following reasons: 1) accepting defendant's construction of N.J.S.A. 2A:11-3a(3) would require us to add to the statute a "stop-the-clock" condition that the Legislature never adopted; 2) the record is devoid of evidence that defendant could reasonably have concluded that Trupaire had no intention to engage in conduct likely to result in serious physical injury to Whitley; and 3) if there was any error, it was induced, in significant part, by defendant himself. We therefore conclude that the judge's failure to sua sponte charge the non-slayer participant affirmative defense to felony murder charge was not "sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Nero, supra, 195 N.J. at 407.

III.

We turn next to Point II, in which defendant argues that the judge's failure to instruct the jury that "afterthought robbery . . . is not recognized as robbery under our law" was plain error warranting reversal.

In State v. Lopez, the Court held that N.J.S.A. 2C:15-1, the robbery statute, does not include afterthought robbery. 187 N.J. 91, 101 (2006). The Court reasoned that because the intimidating or assaultive conduct that elevates theft to robbery must occur during either a theft or an attempted theft, or during immediate flight thereafter, the "intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery." Id. at 98. Therefore, the Court held:

[O]ur statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force. That is why a person who has stolen goods and thereafter uses violence in flight is guilty of robbery -- the intention to commit the theft generated the violence. That model simply does not work where a violent fracas occurs for reasons other than theft, and the perpetrator later happens to take property from the victim. In the former example, the theft is the reason for the violence and a robbery has occurred. In the latter, the violence and the theft are unconnected, and the perpetrator is guilty of assault and theft but not of robbery.

[Id. at 101.]

Relying on Lopez, defendant argues that the judge was required to instruct the jury that he could not be convicted of robbery if the intent to steal did not arise until after the violence had been completed. That argument is a misreading of Lopez. The Court did not require that such an instruction be given. Instead, the Court concluded that the trial court's response to a question from the jury was reversible error, id. at 101, and that the Appellate Division's sua sponte molding of the verdict to the lesser offense of theft was unwarranted, id. at 103. The trial judge's instruction, which the Court disapproved, told the jury that "it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the intent to steal and the use of threat of force can be found as constituting a single transaction." Id. at 94.

The Court did not hold -- as defendant's argument would have us believe -- that a judge is required to specifically instruct the jury that "afterthought robbery" is not encompassed within N.J.S.A. 2C:15-1. Here, the judge instructed the jury that the State must prove beyond a reasonable doubt that while "in the course of committing a theft, the defendant knowingly inflicted bodily injury or used force upon another." The judge also instructed the jury that "an act is considered in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission." As such, the judge's instruction would have prevented the jury from finding defendant guilty if the intention to steal did not arise until after the violence against Whitley had ceased. Neither Lopez nor any other reported decision has required a trial court to issue the instruction defendant urges here. Consequently, we reject the claim defendant raises in Point II.

Affirmed.

Trupaire entered a negotiated plea of guilty to first-degree aggravated manslaughter. He did not testify at defendant's trial.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant filed a pre-trial motion to suppress his May 28, 2003 statement, which the judge denied. The denial of that motion is not an issue on appeal.

The alteration, as charged to the jury, stated:

It also does not matter that the act which caused the death was committed by another participant in the robbery. Each participant in the crime of robbery, whether the defendant himself caused the deaths, is guilty of felony murder. Alright? Now, this is -- these instructions are applicable to this offense and this offense alone. Alright?

In a footnote, defendant contends that it was per se ineffective assistance of trial counsel to fail to request the affirmative defense. Because defendant has failed to raise the issue of ineffective assistance of counsel under the appropriate point heading format, pursuant to Rule 2:6-2(a)(5), and has failed to brief it, we will not consider the issue of ineffective assistance. See Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998). However, the issue is preserved for post-conviction relief. State v. Preciose, 129 N.J. 451, 461 (1992).

(continued)

(continued)

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A-4542-05T4

April 8, 2009