Opinion
DOCKET NO. A-4480-10T2
06-07-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHEM WALKER, Defendant-Appellant.
Shem Walker, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, 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NOT FOR PUBLICATION WITHOUT THE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 Yannotti.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3069.
Shem Walker, appellant pro se.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
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 We affirmed defendant's conviction in an unpublished opinion.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 appropriate standards guiding review of defendant's motion:
A jury verdict will not be set aside unless "it clearly and convincingly appears that there was a manifest denial of justice under the law." [R. 3:20-1]. A motion for
a new trial on the basis of newly discovered evidence is not favored and "should be granted with caution." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.), certif. denied, 97 N.J. 650 (1984). Newly discovered evidence warrants a new trial where defendant shows "that the evidence is
(1) material, and not [']merely['] cumulative, impeaching, or contradictory;
(2) that the evidence was discovered after the completion of the trial and was not discoverable by reasonable diligence beforehand"; and (3) that the evidence "would probably change the jury's verdict if a new trial was granted." State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).
. . . Where recantation testimony is the asserted newly discovered evidence, that evidence is generally regarded as "suspect and untrustworthy." State v. Carter, 69 N.J. 420, 427 (1976). . . . Therefore, the burden is on defendant to show that the recantation testimony is "probably true and the trial testimony probably false." Ibid. The Supreme Court recognized that "[r]ecantations by fellow prisoners are not uncommon." State v. Baldwin, 4 7 N.J. 379, 400 [,cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 422 (1966).]
Judge Ryan concluded that the transcript of Trupaire's guilty plea contained "sworn testimony . . . which clearly inculpate[d] [defendant] as an accomplice in a felony murder -- the offense which the jury found him guilty." The judge noted that since Trupaire was not a witness at trial, "an evidentiary hearing to evaluate the credibility of . . . Trupaire, or determine the truthfulness of the 'recantation' is unnecessary."
The judge further concluded:
In applying the criteria set forth in State v. Ways, supra, this court is led inexorably to conclude that the threshold requirements for a new trial have not been satisfied. First, the proffered evidence is not material, but rather is plainly inculpatory. Second, the evidence would not "change the jury's verdict if a new trial was granted." State v. Ways, supra, 180 N.J. [at] 187; State v. Carter, supra, 85 N.J. [at] 314. Third, the plea allocution testimony . . . was readily available to the defendant before trial for at least one year. In comparing the plea allocution and the . . . Trupaire affidavit, the only logical conclusion is that "the affidavit is the product of fabrication" and undoubtedly rehearsed. Finally, to reiterate, the plea allocution is incriminatory and not exculpatory.The judge denied defendant's motion for a new trial and this appeal followed.
Before us, defendant raises the following contention:
POINT ONEWe have considered this argument in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Ryan in his comprehensive written opinion. We add only the following.
THE JUDGE'S RULING DENYING APPELLANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE IS NOT SUPPORTED BY CREDIBLE EVIDENCE, AND A MISAPPLICATION OF APPLICABLE LAW FOR NEWLY DISCOVERED EVIDENCE (RAISED BELOW)
We agree with Judge Ryan's assessment of the transcript of Trupaire's guilty plea. Based upon the sworn testimony Trupaire gave under oath, defendant was an accomplice to felony murder. Thus, the transcript cannot be characterized as "exculpatory."
Trupaire's affidavit might be seen as newly discovered evidence since it could not have been obtained with the exercise of due diligence before the motion was made, and it was not "cumulative, impeaching, or contradictory" because Trupaire did not testify at trial. Ways, supra, 180 N.J. at 187. However, Judge Ryan's conclusion that its substance would not have changed the results of defendant's trial is clearly supported by the record.
In the affidavit, Trupaire admitted that defendant went with him to rob Whitley, defendant did what Trupaire told him to do, albeit under alleged duress, and defendant left before Whitley was killed. To the extent this is exculpatory information, it is contradicted by Trupaire's sworn testimony at the time he pled guilty, defendant's statement to the police and, in large part, defendant's trial testimony.
Moreover, we have said that "a mere exculpatory statement of a co-defendant cannot by itself give rise to a new trial if that statement is clearly false or merely designed to give an accomplice a second chance for acquittal . . . . This is especially true since [the recantor] as a sentenced co-defendant [has] nothing to lose by exonerating [the defendant] and [such] testimony is therefore inherently suspect." State v. Robinson, 253 N.J. Super. 346, 367-68 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 130 N.J. 6 (1992).
In short, Trupaire's plea allocution was not exculpatory, and his subsequent affidavit lacked any credibility and did not provide the basis for a new trial.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION