State v. Shem Walker, ? N.J. ?, 2010 N.J. LEXIS 703 (July 28, 2010) – Conviction for felony murder affirmed.
“This appeal presents the issue of when a trial court should instruct the jury on the defense to statutory felony murder in the absence of a request to charge from counsel….[I]t is for the factfinder to determine when defendant ceased participating in the wrongful conduct and whether at that time defendant had ‘no reasonable ground to believe that Trupaire intended to kill or inflict serious physical injury on the victim.’ There was evidence in the record for the jury to reasonably find that defendant punched the victim to help defend Trupaire, and that once he punched the victim, he ceased his active involvement….
Thus, if the jury believed defendant’s testimony, then the jury could find that defendant 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 ground[s] 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:11-3(a)(3)(d). In sum, so long as there is some evidence pertaining to each of the four prongs of the defense, whether produced in the State’s case or in defendant’s case, the instruction on the affirmative defense to felony murder should be given to the jury…. We are satisfied that defendant’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…. 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…. [D]efendant neither requested that instruction, nor did he object to the instructions that were given…. [I]n addition to felony murder, the 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.”