NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4993-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALLACE L. PARRISH, a/k/a
WALI, WAWA and QUASHAWN T. BETHEA,
Defendant-Appellant.
____________________________________
Submitted September 12, 2017 – Decided July 24, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
11-04-0373.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Wallace L. Parrish appeals his June 19, 2015
judgment of conviction for felony murder, robbery, conspiracy to
commit robbery, and unlawful possession of a handgun. We affirm.
I.
The trial record includes the following facts. On September
28, 2010, at 4:02 a.m., Jimmy Morel, working as a dispatcher and
driver for United Taxi, received a blocked call from a man
requesting a cab at an address on West Sixth Street in Plainfield.1
The call came from a cellphone number later determined to be
assigned to defendant's cousin K.M., who testified he lent the
cellphone to defendant.
Morel dispatched one of his taxi drivers, Jose Gomez, to pick
up the man. Gomez arrived at the location for the fare, and saw
a man. As the man started to get into the back seat of Gomez's
taxi, the man pulled out what Gomez believed to be a silver or
white handgun.
Gomez sped off and called 911 at approximately 4:06 a.m. to
report an attempted armed robbery by the man. Plainfield Officer
Romeo Simeon searched the area, but was unable to locate anyone
matching the man's description.
1
A blocked call is one in which the caller first dials *67 to
block the recipient's caller ID from revealing the caller's phone
number.
2 A-4993-14T4
At 5:35 a.m., Morel received a call from a man requesting a
cab on Spooner Avenue in Plainfield. Later investigation showed
that call came from a telephone used by co-defendant Johnathan
Morgan.
Morel dispatched another of his drivers, Isidro Leonardo, to
pick up that fare. Leonardo's practice was to call Morel right
away to say whether he picked up a fare, but Morel did not hear
from Leonardo. Morel and Gomez called Leonardo several times, but
no one answered. Eventually, Morel sent Gomez, who was in the
area, to check on Leonardo. Gomez arrived on Spooner Avenue at
the same time as Officer Simeon, who had been dispatched at 5:51
a.m. to respond to a call about a vehicle accident.
Officer Simeon saw Leonardo's taxi cab pinned against a parked
vehicle. The taxi was still in gear and Leonardo was in the
driver's seat with his head against the headrest. Officer Simeon
opened the door, but Leonardo did not respond and was making
gurgling sounds. Simeon discovered Leonardo had a gunshot wound
to the back of his head.
Leonardo was taken to the hospital where he later died. The
autopsy revealed the presence of gunpowder residue on Leonardo's
skull, indicating the gun was fired at close range.
Union County Sheriff's Officer Adrian Gardner found
defendant's left palm print on the rear side of the partition
3 A-4993-14T4
separating the front and rear seats. Defendant was questioned by
a detective. Defendant initially denied being in a taxi on
September 28, and later claimed he got a taxi elsewhere.
Ultimately, defendant offered a third version.2
Defendant admitted his cellphone was used to call United Taxi
for the fare Gomez was dispatched to pick up. Defendant denied
making any calls from the cellphone that night. However, the
phone records showed that the cellphone was used to call
defendant's girlfriend, followed immediately by blocked calls to
Flash Taxi at 3:58 a.m., 3:59 a.m., 4:00 a.m., and 4:01 a.m., and
then the call to United Taxi at 4:02 a.m. At 6:53 a.m., the
cellphone was again used to call defendant's girlfriend.3
Defendant denied any involvement in the attempted robbery of
Gomez or Leonardo. Defendant admitted Morgan "was talking about
trying to rob people . . . , everybody was, but that wasn't the
main objective," which was to "jump somebody in the projects."
2
We have only the detective's testimony about defendant's
statements. Defendant's video statements were played for the
jury, but their content was not transcribed by the court reporter
and defendant has not provided us with the videos and transcripts
introduced as exhibits.
3
Morgan's cellphone had similarly been used to make blocked calls
to Flash Taxi at 4:29 a.m., 5:30 a.m., 5:31 a.m., and 5:34 a.m.,
to United Taxi at 4:31 a.m. and 4:40 a.m., to Caribe Taxi at 4:48
a.m., and to United Taxi at 4:50 a.m. before the fatal 5:35 a.m.
call to United Taxi.
4 A-4993-14T4
Defendant said he, Morgan, and a man known as "Fuzz" went onto the
streets but when they could not find anyone to jump, they abandoned
the plan. However, defendant's cousin A.L., known as Fuzz,
testified he was not with defendant and Morgan on September 28.
Defendant stated the three men made several calls to taxi cab
companies, and that Leonardo's cab finally answered their call.
Defendant claimed that an argument over payment erupted between
the three men, that Leonardo stopped the cab on Spooner Avenue and
told the men to get out because they did not have the money, that
he and Fuzz exited the cab, and that defendant then heard a
gunshot.
Defendant admitted he knew Morgan often carried a silver
revolver, but asserted he did not know Morgan was armed at the
time. Defendant claimed he had never used a gun before, and that
he did not take part in Leonardo's murder.
The grand jury indicted defendant and Morgan with: count
one - first-degree purposeful or knowing murder, N.J.S.A. 2C:11-
3(a)(1) or (2); count two - first-degree armed robbery, N.J.S.A.
2C:15-1; count three - first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3); count four - second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; count five - second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and count
six - second-degree possession of a firearm for an unlawful
5 A-4993-14T4
purpose, N.J.S.A. 2C:39-4(a)(1). Defendant was tried by a jury
between March 19 and April 15, 2013.4
The jury acquitted defendant on count one, but found defendant
guilty on the remaining counts, specifically finding that
defendant conspired to rob Leonardo, Gomez, and other cab drivers.
The trial court sentenced defendant to thirty years in prison with
a thirty-year period of parole ineligibility on count three, and
a concurrent seven years in prison on count four, with an 85%
period of parole ineligibility under the No Early Release Act,
N.J.S.A. 2C:43-7.2. The remaining counts merged for sentencing
purposes.
Defendant appeals, arguing:
POINT ONE - THE TRIAL COURT WRONGFULLY
EXCLUDED EVIDENCE WHICH REFUTED DEFENDANT'S
MOTIVE TO ENGAGE IN ROBBERY.
POINT TWO - THE TRIAL COURT WRONGFULLY DENIED
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
POINT THREE - THE JURY INSTRUCTION ON FELONY
MURDER WAS DEFICIENT.
II.
Defendant first argues that the trial court erred in refusing
to allow him to admit testimony from his cousin K.M. about a
4
Morgan were tried separately and convicted of felony murder as
a non-slayer participant and robbery. We affirm his judgment of
conviction in a separate opinion.
6 A-4993-14T4
lawsuit. We must hew to our standard of review. "The trial
court's evidentiary rulings 'are reviewed under the abuse of
discretion standard because, from its genesis, the decision to
admit or exclude evidence is one firmly entrusted to the trial
court's discretion.'" State v. Prall, 231 N.J. 567, 580 (2018)
(citation omitted). "[C]onsiderable latitude is afforded a trial
court in determining whether to admit evidence." State v.
Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "In light
of the broad discretion afforded to trial judges, an appellate
court evaluates a trial court's evidentiary determinations with
substantial deference." State v. Cole, 229 N.J. 430, 449 (2017).
"A reviewing court must not 'substitute its own judgment for that
of the trial court' unless there was a 'clear error in judgment'
— a ruling 'so wide of the mark that a manifest denial of justice
resulted.'" State v. Scott, 229 N.J. 469, 479 (2017) (citation
omitted).
The State called K.M. to testify about defendant's use of his
cellphone, and defendant's attempts to see him after September 28.
On cross-examination, defendant's trial counsel elicited that
defendant gave K.M. $6 on October 1. Trial counsel asked:
Q. And when you saw Mr. Parrish, — didn't
Mr. Parrish give you money?
A. Yes.
7 A-4993-14T4
Q. He gave you money on October 1st; right?
A. Yes.
Q. He gave you like $6; right?
A. $6, yes.
Q. And it wasn't unusual for Mr. Parrish to
have money; am I correct?
A. No.
Q. Because Mr. Parrish had just got a big
lawsuit where he got a lot of money?
The prosecutor objected. The trial court told the jury it
was "striking that portion of [trial counsel's] question which
encompassed Mr. Parrish receiving money in a lawsuit and the answer
that may have been given to that question about the lawsuit," and
instructed the jurors not to consider the question or any answer
in their deliberations.
Defendant argues he was trying to show he had money and thus
had no financial motive for committing robbery. Generally,
"evidence of a defendant's financial state should not be admitted
nor commented on." State v. Martini, 131 N.J. 176, 266 (1993).
Thus, as the prosecutor noted, the State may not introduce evidence
solely to establish "that defendant had no apparent means of income
and hence was likely to commit a crime for dollar gain." Ibid.
(quoting State v. Mathis, 47 N.J. 455, 472 (1966)); see State v.
Patterson, 435 N.J. Super. 498, 510 (App. Div. 2014) (same).
8 A-4993-14T4
As our Supreme Court explained in Mathis: "Undoubtedly a lack
of money is logically connected with a crime involving financial
gain. The trouble is that it would prove too much against too
many." 47 N.J. at 471. The Court followed Wigmore's treatise:
The lack of money by A might be relevant enough
to show the probability of A's desiring to
commit a crime in order to obtain money. But
the practical result of such a doctrine would
be to put a poor person under so much unfair
suspicion and at such a relative disadvantage
that for reasons of fairness this argument has
seldom been countenanced as evidence of the
graver crimes, particularly of violence.
[Id. at 471-72 (quoting 2 Wigmore on Evidence
§ 392 at 341 (3d ed. 1940)).]
However, Wigmore took the opposite position on whether a
defendant could offer evidence he had money: "On the other hand,
the fact that a person was in possession of money tends to negative
his desire to obtain it by crime or by borrowing, and is always
admissible, the foregoing objection not being here applicable."
2 Wigmore on Evidence § 392 at 343.
Nonetheless, in Wilbely, we rejected Wigmore's position, and
"h[e]ld that evidence of the possession of money is not admissible
to disprove intent." State v. Wilbely, 122 N.J. Super. 463, 466-
67 (App. Div. 1973), rev'd on other grounds, 63 N.J. 420 (1973).
We felt that just "as evidence of poverty might well 'prove too
much against too many,' evidence of affluence might well result
9 A-4993-14T4
in a proving of too little against too few, and this to the very
real detriment and prejudice of fair law enforcement." Id. at 465
(quoting Mathis, 47 N.J. at 471).
In Wilbely, we conceded there was "some relevance with respect
to both poverty and affluence." Ibid. We assumed that just as
"some poor steal for the sole purpose of rectifying that economic
condition," some "scoundrels exist whose larcenous propensities
are restrained solely because affluence overcomes a running of the
risks involved." Ibid. On the other hand, we found "equally
evident" that just as there are "the honest poor," there also are
"the thieving wealthy." Id. at 466.
Given the questionable probative value of such evidence,
Wilbely viewed the issue at the very least required
weighing the utility of the relevant aspects
of the evidence, either of affluence or
poverty, against reasons opposing
admissibility, principally such as the
likelihood of improper inferences being drawn,
the opportunity for personal prejudices to be
manifested, or, most significantly, the
expansion of the fact issues to be tried, and
this into an area where exculpating perjury
might well be hard to disprove.
[Id. at 466.]
Applying that "weighing process" to Wilbely's "offer to prove
his financial resources in order to disprove his intent to steal,"
we "conclude[d] that in addition to the reasons bespeaking
10 A-4993-14T4
nonadmissibility mentioned above, evidence of affluence, while
possibly relevant to negate an intent to steal, should not be
admissible on account of the likelihood of the involvement of
collateral concerns." Id. at 464, 466. For example,
if a defendant is allowed to prove equity in
improved real estate, how far can the State
go to show that there is little cash to meet
the mortgage payments to protect that equity?
May defendant then demonstrate accounts
receivable and the liquidity of his debtors
to refute the prosecutor's implications? And
so on.
[Id. at 466-67.]
We concluded in Wilbely "that even if evidence of affluence
were otherwise admissible, it should be excluded on account of
unfair prejudice to the State, whose rights and those of the
people it represents are also entitled to protection, in the
same manner as unfair prejudice to the defendant produced the
Mathis exclusion." Id. at 467.
Wilbely's principle that "a court may consider the prejudice
to the State as well as to the defendant in evaluating whether to
exclude evidence" has been adopted by commentators and courts.
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 5
on N.J.R.E. 403 (2018) (citing Wilbely); see, e.g., State v.
Scherzer, 301 N.J. Super. 363, 468 (App. Div. 1997) (citing
Wilbely). N.J.R.E. 403 provides that at the behest of any party,
11 A-4993-14T4
"relevant evidence may be excluded if its probative value is
substantially outweighed by the risk of (a) undue prejudice,
confusion of issues, or misleading the jury or (b) undue delay,
waste of time, or needless presentation of cumulative evidence."
Applying Wilbely, we find no abuse of discretion here.
Defendant wanted his cousin to testify that defendant "got a lot
of money" in a lawsuit, without proffering what and how his cousin
might know. The cousin's proposed testimony posed issues of
hearsay and an "expansion of the fact issues to be tried . . .
into an area where exculpating perjury might well be hard to
disprove." Id. at 466. It also raised collateral issues of how
much defendant had received, how much he had spent or dispensed
to others (e.g., civil and criminal counsel, medical providers,
relatives, and creditors), how great his expenses were, and so on.
Id. at 467; see State v. Medina, 201 N.J. Super. 565, 581 (App.
Div. 1985) (applying Wilbely and excluding evidence "because of
the collateral questions it could raise").
Thus, defendant's proposed evidence opened new issues that
could entail undue delay to allow the State to investigate and to
present counter-testimony, waste of time on collateral issues, and
confusion of the issues and of the jury. N.J.R.E. 403. Its
probative value was limited because those who have money may seek
more money through criminal activities – as illustrated by
12 A-4993-14T4
defendant's admission that he had been discussing robbing someone
with Morgan. Wilbely, 122 N.J. Super. at 466. That limited value
was substantially outweighed by the concerns above as well as the
risk of improper inferences, personal prejudices (e.g., against
litigious plaintiffs), and undue prejudice to the State which was
barred from making the mirror-image argument that defendant sought
to rob because he needed money. Ibid.; see N.J.R.E. 403.
Defendant cites opinions in which we have upheld the State's
introduction of counter-evidence when defendants contended they
had money and therefore no motive to commit the charged crimes.
E.g., Patterson, 435 N.J. Super. at 510-11; State v. Downey, 237
N.J. Super. 4, 16 (App. Div. 1989); State v. Farr, 183 N.J. Super.
463, 469 (App. Div. 1982). However, those defense appeals did not
address whether the defendants' presentation of such evidence was
proper. Thus, our opinions did not reach or resolve the issue we
squarely decided in Wilbely.
Defendant notes that "[t]he Federal and New Jersey
Constitutions guarantee criminal defendants 'a meaningful
opportunity to present a complete defense.'" State v. Garron, 177
N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)). Nonetheless, "the introduction of [defense] evidence is
. . . subject to 'the application of evidentiary rules that
themselves serve the interests of fairness and reliability.'"
13 A-4993-14T4
State v. Rosales, 202 N.J. 549, 562 (2010) (quoting Crane, 476
U.S. at 690).
While the Constitution thus prohibits the
exclusion of defense evidence under rules that
serve no legitimate purpose or that are
disproportionate to the ends that they are
asserted to promote, well-established rules of
evidence permit trial judges to exclude
[defense] evidence if its probative value is
outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or
potential to mislead the jury.
[Holmes v. South Carolina, 547 U.S. 319, 326-
27 (2006) (citing, e.g., Fed. R. Evid. 403).]
N.J.R.E. 403 is just such a well-established rule of evidence.
It serves a legitimate purpose, and its balancing test ensures
that its application is not disproportionate. Thus, "trial courts
must still determine that the probative value of [defense] evidence
is not substantially outweighed by any of the Rule 403 factors."
State v. Weaver, 219 N.J. 131, 151 (2014); see State v. Perry, 225
N.J. 222, 237 (2016) (citing N.J.R.E. 403).
Here, the limited probative value of any evidence that the
question could elicit from defendant's cousin was "substantially
outweighed" by the risk of undue prejudice, confusion, undue delay,
and waste of time. N.J.R.E. 403. By contrast, only "evidence
relevant to the defense that has probative value outweighing its
prejudicial effect must be placed before the trier of fact" under
the New Jersey Constitution. Garron, 177 N.J. at 172. "Stated a
14 A-4993-14T4
different way, if evidence is relevant and necessary to a fair
determination of the issues, the admission of the evidence is
constitutionally compelled." Id. at 171. Because the probative
value of the cousin's evidence did not outweigh its prejudicial
effect, it was not necessary to the fair determination of the
issues. See, e.g., Perry, 225 N.J. at 243-45.
The United States Supreme Court has "[o]nly rarely . . . held
that the right to present a complete defense was violated by the
exclusion of defense evidence under a state rule of evidence."
Nevada v. Jackson, 569 U.S. 505, 509 (2013). This is not one of
those rare cases.
In any event, we must also "determine whether any error found
is harmless." Prall, 231 N.J. at 581. "Any error or omission
shall be disregarded by the appellate court unless it is of such
a nature as to have been clearly capable of producing an unjust
result." R. 2:10-2. The cousin's evidence that defendant "had
no financial motive to participate in a robbery" "was of relatively
insignificant probative weight." State v. Smith, 32 N.J. 501, 526
(1960). Moreover, the cousin's testimony that "it wasn't unusual
for [defendant] to have money," and that defendant had given him
$6, "remained before the jury." See ibid. Trial counsel used
that evidence, and defendant's statement to police that he could
15 A-4993-14T4
pay his share of the cab fare, to argue in summation that "[w]e
know [defendant's] got money."
Thus, "[t]he action of the trial court in this respect did
not amount to reversible error." Id. at 525-26 (finding any error
in excluding other "evidence of [a defendant's] financial
condition at the time of the crime" was harmless where the
defendant was able to elicit he had a $44 per week job and a bank
account). This was not a situation "where there was no other
available evidence to demonstrate particular defense issues."
Scherzer, 301 N.J. Super. at 414.
III.
Defendant next claims the trial court erred in denying his
motion for acquittal on the count charging conspiracy to commit
robbery. Appellate courts "review the record de novo in assessing
whether the State presented sufficient evidence to defeat an
acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).
The "well-established standard for determining the sufficiency of
the evidence," State v. Wilder, 193 N.J. 398, 406 (2008), was set
forth in State v. Reyes, 50 N.J. 454, 459 (1967):
whether, viewing the State's evidence in its
entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as well
as all of the favorable inferences which
reasonably could be drawn therefrom, a
16 A-4993-14T4
reasonable jury could find guilt of the charge
beyond a reasonable doubt.
A person is guilty of conspiracy with another person to commit
robbery if
with the purpose of promoting or facilitating
its commission he:
(1) Agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or
(2) Agrees to aid such other person or persons
in the planning or commission of such crime
or of an attempt or solicitation to commit
such crime.
[N.J.S.A. 2C:5-2(a).]
A conspiracy to commit robbery does not require the robbery
occur. "Actual commission of the crime is not a prerequisite to
conspirator liability." In re State ex rel. A.D., 212 N.J. 200,
222 (2012) (quoting State v. Samuels, 189 N.J. 236, 245-46 (2007)).
Indeed, "[n]o overt act need be proven to convict of conspiracy
to commit a crime of the first or second degree," such as robbery.
State v. Hardison, 99 N.J. 379, 387-88 (1985); see N.J.S.A. 2C:5-
2(d); N.J.S.A. 2C:15-1. "The only question is whether a reasonable
jury, viewing the State's evidence in its most favorable light,
could find beyond a reasonable doubt that defendants, acting with
a purposeful state of mind, agreed to commit, attempted to commit,
17 A-4993-14T4
or aided in the commission of [the crime]." Scherzer, 301 N.J.
Super. at 401.
"Because the conduct and words of co-conspirators is
generally shrouded in 'silence, furtiveness and secrecy,' the
conspiracy may be proven circumstantially." Samuels, 189 N.J. at
246. Here there was direct evidence, and ample circumstantial
evidence, that defendant agreed to commit, attempt, or aid robbery.
Additionally, there was evidence the conspirators committed
multiple acts which corroborated their agreement.
Defendant admitted Morgan and "everybody," including
defendant, were "talking about trying to rob people." Defendant
and Morgan repeatedly called United Taxi, Flash Taxi, and Caribe
Taxi, often blocking their numbers from caller ID. When United
Taxi dispatched Gomez's taxi, a man drew a silver gun and tried
to enter. When United Taxi dispatched Leonardo's taxi, defendant
admittedly got in the taxi with Morgan. The right-handed
defendant's left palm print was on the partition through which
Leonardo was shot. Given the absence of shell casings in the
taxi, it was a reasonable inference Leonardo was shot with a
revolver. Defendant admitted Morgan often carried a silver
revolver. Based on all the evidence, a reasonable jury could find
that defendant and Morgan agreed to rob a taxi driver in the pre-
dawn hours, and repeatedly tried to do so.
18 A-4993-14T4
Defendant argues the evidence was insufficient to support a
conspiracy to rob taxi drivers from Flash Taxi or Caribe Taxi.
However, the number and frequency of calls by defendant and Morgan
to all three taxi companies supported a reasonable inference that
they had agreed to rob whatever taxi driver responded, as they
tried to rob both Gomez and Leonardo. As there was sufficient
evidence of that agreement, it is irrelevant whether Flash Taxi
and Caribe Taxi answered or responded to defendants' calls. "It
is the agreement that is pivotal." Ibid.
Defendant argues there was insufficient evidence of a
conspiracy to rob Gomez. However, Gomez testified the man who
tried to get in his taxi was around 6'0" tall; defendant was over
5'8", while Morgan was 5'2" or less. Gomez testified that he saw
the man had a gun, that "I thought it was a gun because I had seen
them before in my country," and that as soon as he saw the gun he
"sped off with the doors open." Based on that testimony and all
the evidence, it was a reasonable inference that the man was
defendant, that he had a gun, and that he intended to rob Gomez
as he and Morgan had agreed. See id. at 248-49. The jury could
rely on that testimony even though Gomez expressed uncertainty on
cross about the object he saw, and defendant denied involvement.
Scherzer, 301 N.J. Super. at 404.
19 A-4993-14T4
On its verdict sheet, the jury found defendant guilty of
conspiracy to commit robbery generally, and specifically against
Leonardo, Gomez, and taxi drivers from the other taxi companies.
We must uphold defendant's conspiracy conviction if there was
sufficient evidence to support a conspiracy to rob any one of
those victims. See N.J.S.A. 2C:5-2(c). We find the evidence was
sufficient as to each of the victims. Indeed, defendant does not
appeal the sufficiency of the evidence he conspired to rob Leonardo
and committed robbery against him.
IV.
Finally, on appeal, defendant for the first time challenges
the jury instructions on the crime of felony murder. The trial
court instructed the jury using Model Jury Charge (Criminal),
"Felony Murder – Slayer Participant (N.J.S.A. 2C:11-3a(3))" (rev.
Mar. 22, 2004) [Slayer Charge]. Defendant now claims the court
sua sponte should also have instructed the jury using Model Jury
Charge (Criminal), "Felony Murder – Non-Slayer Participant
(N.J.S.A. 2C:11-3a(3))" (rev. Mar. 22, 2004) [Non-Slayer Charge].
Where a defendant "does not request the [non-slayer]
instruction, it is only when the evidence clearly indicates the
appropriateness of such a charge that the court should give it."
State v. Walker, 203 N.J. 73, 87 (2010). Moreover, such a
defendant must at least show plain error. Id. at 78, 89-90. A
20 A-4993-14T4
defendant claiming plain error must demonstrate "'[l]egal
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.'" Id. at 90 (citation omitted); see R. 2:10-2.
Defendant did not merely fail to request the instruction; he
agreed the trial court's charge was acceptable. Thus, his claim
on appeal is barred by the doctrine of invited error. "Under that
settled principle of law, trial errors that 'were induced,
encouraged or acquiesced in or consented to by defense counsel
ordinarily are not a basis for reversal on appeal.'" State v.
A.R., 213 N.J. 542, 561 (2013) (citation omitted).
At the final charge conference, the trial court noted: "I've
been working on what I believe is now the final version of the
charge with counsel extensively during the course of the trial up
through and including today." The court presented the parties
with the "proposed jury charge," which included the Slayer Charge,
but not the Non-Slayer Charge. After counsel and the court
discussed various instructions, including felony murder and
lesser-included offenses, the court asked:
THE COURT: . . . So having said those things,
is my 32-page charge as it exists, with the
changes that were pointed out to the Court by
21 A-4993-14T4
counsel on the enumerated pages, acceptable?
Is the charge acceptable?
[DEFENSE COUNSEL]: Yes, Your Honor.
"At the very least, [defendant] consented or acquiesced to"
the trial court's proposed charge by stating it was acceptable,
which encouraged and induced the court to give that charge. A.R.,
213 N.J. at 563; see N.J. Div. of Youth & Family Servs. v. M.C.
III, 201 N.J. 328, 339-40, 341 (2010) (finding defense counsel
consented to the admission of evidence by agreeing he was not
objecting). Thus, defendant invited the court to give its charge
without the Non-Slayer Charge, and he is "barred by the doctrine
of invited error from contesting" the charge. That bars
defendant's belated challenge to the charge. See Brett v. Great
Am. Rec., 144 N.J. 479, 503-04 (1996); see State v. Ramseur, 106
N.J. 123, 282 (1987); see also State v. Munafo, 222 N.J. 480, 487
(2015).
"'Even if a party has "invited" an error, though, courts will
not bar defendants from raising an issue on appeal if "the
particular error . . . cut mortally into the substantive rights
of the defendant"'" or "would '"cause a fundamental miscarriage
of justice,"'" A.R., 213 N.J. at 562 (first quoting State v.
Corsaro, 107 N.J. 339, 345 (1987); then quoting M.C. III, 201 N.J.
at 342 (quoting Brett, 144 N.J. at 508)). However, "this case
22 A-4993-14T4
presents no fundamental injustice that would warrant relaxing the
invited error doctrine." See M.C. III, 201 N.J. at 342.
The Slayer Charge defendant received was more favorable to
him than the Non-Slayer Charge. Using the Slayer Charge, the
trial court instructed the jury: the State contended defendant
"shot and killed Isidro Leonardo"; and "the State must prove beyond
a reasonable doubt" both that "the death of Isidro Leonardo was
caused by the defendant," and that "but for defendant's conduct
in the commission of or attempt to commit or flight after
committing or attempting to commit robbery, the victim would not
have died."
By contrast, under the Non-Slayer Charge, the court would
have instructed the jury "[t]he State does not contend that
defendant himself[] killed" the victim, and "it does not matter
that the act which caused death was committed by a participant in
the crime of [robbery] other than the defendant." Id. at 1. The
court also would not have required the State to prove the victim's
death was caused by defendant, and instead would have required the
State to prove merely that "but for defendant's conduct or the
conduct of one or more others with whom the defendant participated
in the commission of, or attempt to commit or flight after
committing or attempting to commit [robbery], the victim would not
have died." Id. at 2-3 (emphasis added). Thus, giving the Non-
23 A-4993-14T4
Slayer Charge would have given the jury another way to convict
defendant of felony murder, without having to find either that he
caused Leonardo's death or that Leonardo would not have died but
for defendant's conduct.
Nonetheless, defendant claims the Non-Slayer Charge is
favorable because it contains an affirmative defense "if there is
proof" that the defendant was not the only participant in the
crime and 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.
[Id. at 5; see N.J.S.A. 2C:11-3(a)(3)(a)-(d).]
However, that affirmative defense would not have prevented
defendant's conviction of felony murder under the trial court's
Slayer Charge, which required the jury to find defendant caused
the victim's death, in contravention to the first prerequisite of
24 A-4993-14T4
the affirmative defense. See N.J.S.A. 2C:11-3(a)(3)(a). "[T]he
affirmative defense leaves unaffected the imposition of absolute
liability" on the primary actor, and "merely narrows the
circumstances in which an accomplice, as distinguished from the
primary actor, may be liable for felony murder." State v. Martin,
119 N.J. 2, 23 (1990).
In any event, there must be "some evidence to support each
of the four factors" before an instruction on the affirmative
defense should be given. Walker, 203 N.J. at 84, 89. Although
defendant stated he had never used a gun before, he does not point
us to evidence he was not armed. Even assuming his statements
contained such evidence, his claim fails. In Walker, our Supreme
Court found an erroneous failure to charge the affirmative defense
was not plain error because "the findings of the jury negated most
of the factors required to establish the affirmative defense."
Id. at 78, 89-91.
[T]he jury convicted defendant of conspiracy
[to commit robbery], 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
25 A-4993-14T4
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.
[Id. at 90; see id. at 82.]
Here, the jury found the State proved beyond a reasonable
doubt that defendant possessed a handgun unlawfully and for an
unlawful purpose, which negated that he "[w]as not armed with a
deadly weapon," one of the prerequisites for the affirmative
defense. N.J.S.A. 2C:11-3(a)(3)(b). "[I]t is sufficient for the
State in such case to present proof beyond a reasonable doubt
negating any one of them." Non-Slayer Charge at 5; see State v.
Ingram, 196 N.J. 23, 35, 43 (2008) (approving a judge's instruction
that "the State has [the] burden to disprove one of those
elements"); see also State v. Smith, 322 N.J. Super. 385, 396
(App. Div. 1999) (finding the affirmative defense does not apply
if the evidence "did not provide any support for" one factor).
Moreover, by convicting defendant of felony murder, the jury
necessarily found elements which negated another prerequisite for
the affirmative defense. As the State argued, defendant could be
convicted of felony murder either (1) as the shooter under the
Slayer Charge or (2) as an accomplice to the shooter.5
5
Defendant argues the jury could have convicted him of felony
murder as a conspirator, but he was not charged with conspiring
26 A-4993-14T4
Under the first option, if the jurors convicted defendant of
felony murder under the Slayer Charge, they found the death of the
victim was "caused by the defendant." That finding would be
inconsistent with the affirmative defense's prerequisite that the
defendant "[d]id not commit the homicidal act or in any way . . .
cause . . . the commission thereof." N.J.S.A. 2C:11-3(a)(3)(a).
Defendant contends the jury found he was not the shooter
because it acquitted him of murder. However, the jury could have
found that defendant was the shooter but did not act "purposely
or knowingly," as required by the court's instructions on murder.
See N.J.S.A. 2C:11-3(a)(1), (2). Defendant cites a question from
the jury: "If the State does not have enough evidence to prove
that, one, Wallace Parrish committed the murder of Isidro Leonardo;
two, [Morgan] committed the murder of Isidro Leonardo, can Wallace
Parrish be convicted of felony murder as an accomplice?" That
question does not say whether the jury convicted defendant under
the Slayer Charge or as an accomplice; indeed, the trial court
instructed the jury to refer to both its Slayer Charge and its
accomplice charge.
to commit felony murder, and the trial court instructed the jury
that "[c]onspiracy to commit robbery is a separate offense from
robbery and cannot be a basis for a conviction of felony murder."
27 A-4993-14T4
In any event, under the second option, the trial court
instructed that the jury could convict defendant as an accomplice
of another person only "if, with the purpose of promoting or
facilitating the commission of the offense, he (a) solicits such
other person to commit it and/or (b) agrees or attempts to aid
such person in planning or committing it." See N.J.S.A. 2C:2-
6(c)(1)(a), (b). That finding would be inconsistent with the
affirmative defense's prerequisite that the defendant "[d]id not
. . . in any way solicit . . . or aid the commission" of the
homicidal act." N.J.S.A. 2C:11-3(a)(3)(a).
Therefore, whether the jury convicted defendant as the
shooter or the shooter's accomplice, the jury necessarily had to
find that the State proved beyond a reasonable doubt an element
that negated N.J.S.A. 2C:11-3(a)(3)(a), another prerequisite for
the affirmative defense. "Thus, the jury, although not charged
with the affirmative defense to felony murder, found against
defendant on [two], if not all, of the four prongs of the
[affirmative] defense." Walker, 203 N.J. at 90.
The jury also found defendant committed robbery and
conspiracy to commit robbery. We need not reach whether those
convictions were inconsistent with the affirmative defense. See
State v. Belliard, 415 N.J. Super. 51, 76 (App. Div. 2010)
(indicating that a defendant must have "had nothing to do with the
28 A-4993-14T4
act that caused the death" and that "the intent and preset plan
[must be] to commit a non-violent felony").
In any event, the jury found facts beyond a reasonable doubt that
were inconsistent with at least one of the prerequisites for the
affirmative defense. Thus, "we do not believe that the failure
to give the omitted charge on the defense to felony murder would
have altered the jury's conclusions," and any failure to instruct
on the affirmative defense did not have the capacity to result in
"an unjust result." Walker, 203 N.J. at 90-91; State v. Sheika,
337 N.J. Super. 228, 251 (App. Div. 2001). "Nor was the alleged
error of such moment as to '"cut mortally into the substantive
rights of the defendant[]."'" Ibid. (quoting Corsaro, 107 N.J.
at 341). We see no reason to reverse based on an alleged error
defendant invited.
Defendant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
29 A-4993-14T4