STATE OF NEW JERSEY v. ALBERTO LOPEZ (15-01-0014, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2694-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERTO LOPEZ, a/k/a
ALBERTO LOPEZ, III,
ALBERTO A. LOPEZ,
ALBERTO C. LOPEZ,
and CHOPPY,
Defendant-Appellant.
______________________
Argued February 15, 2022 – Decided July 15, 2022
Before Judges Sabatino, Mayer and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 15-01-0014.
Douglas R. Helman, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Douglas R. Helman, of
counsel and on the brief).
Taylor S. Hicks, Assistant Prosecutor, argued the cause
for respondent (Angelo J. Onofri, Mercer County
Prosecutor, attorney; Taylor S. Hicks, of counsel and
on the brief).
The opinion of the court was delivered by
NATALI, J.A.D.
After he was waived to the Law Division to be tried as an adult, a jury
convicted defendant Alberto Lopez of murder, felony murder, and robbery –
three first-degree offenses – along with two second-degree weapons charges.
The jury's verdict was based, in part, on the testimony of an eyewitness who saw
defendant shoot the victim in the head during a drug transaction, a murder he
committed when he was sixteen years old.
After merger, the court sentenced defendant to an aggregate forty-two-
year custodial term, subject to an 85% period of parole ineligibility under the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year
term with respect to one of the weapons offenses. Before us, defendant raises
the following arguments:
I. THE RULING THAT [DEFENDANT]'S
STATEMENT, ELICITED IN VIOLATION OF
HIS SIXTH AMENDMENT AND STATUTORY
RIGHTS TO COUNSEL, WAS ADMISSIBLE TO
IMPEACH HIM, IMPERMISSIBLY IMPINGNED
UPON [HIS] RIGHT TO TESTIFY IN HIS OWN
DEFENSE. REVERSAL IS REQUIRED.
II. THE COMPLETE LACK OF ANY JURY
CHARGE ON IDENTIFICATION – WHEN THE
STATE'S ENTIRE CASE HINGED UPON THE
EYEWITNESS TESTIMONY OF ONE
INDIVIDUAL– DEPRIVED [DEFENDANT] OF A
FAIR TRIAL, REQUIRING REVERSAL.
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A. A Jury Instruction on the State's Burden to Prove
Identity was Required.
B. The Court Also Failed to Give the Required
Instruction on the Reliability of Eyewitness
Identifications.
III. THE JUDGE LEFT OUT A CRITICAL PORTION
OF THE ROBBERY CHARGE CONCERNING
INTENT AND THE USE OF FORCE, REQUIRING
REVERSAL, BUT IN ANY EVENT, THERE WAS
INSUFFICIENT EVIDENCE OF THE INTENT
ELEMENT FOR ROBBERY. THE MOTION FOR
ACQUITTAL ON COUNTS II AND III SHOULD
HAVE BEEN GRANTED.
IV. DETECTIVE MCNALLY'S INVOCATION OF A
NON[-]TESTIFYING WITNESS, AND HIS
TESTIMONY ON THE QUALITY OF THE
STATE'S EVIDENCE AND THE CREDIBILITY
OF THE STATE'S WITNESSES, VIOLATED
[DEFENDANT]'S RIGHTS TO
CONFRONTATION, THE HEARSAY RULES,
AND CONSTITUTED IMPROPER LAY OPINION
IN VIOLATION OF N.J.R.E. 701 and 702. THIS
IMPROPER TESTIMONY WAS COMPOUNDED
IN THE PROSECUTOR'S CLOSING
STATEMENT. REVERSAL IS REQUIRED.
V. THE CUMULATIVE IMPACT OF THESE
ERRORS DENIED [DEFENDANT] A FAIR
TRIAL.
VI. [DEFENDANT]'S 42-YEAR SENTENCE
VIOLATED THE PRINCIPLES OF MILLER V.
ALABAMA AND IS ALSO INDEPENDENTLY
EXCESSIVE.
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After considering the record against the applicable standards of review
and legal principles, we affirm defendant's convictions and sentence.
I.
We discern the following facts from the evidence adduced at trial. On
December 18, 2013, two Trenton police officers responded to a "man down" and
"shots fired" report at a location near the police department. Upon arriving at
the scene, the police immediately noticed the victim, Shamere Melvin, on the
ground with a fatal gunshot wound to his head. They also observed a single
bullet shell casing near his body.
Melvin was pronounced dead at the scene. Later that night, a police
officer contacted Detective Robert McNally of the Mercer County Prosecutor's
Office and advised him that Alyssa Simmons, a juvenile, arrived at the police
station and stated she had information regarding the Melvin homicide.
Detectives McNally and Anthony Abarno thereafter obtained statements from
Simmons and her friend, Allyson Keil.
Based on those statements, and other evidence developed during the
investigation, the detectives learned that at defendant's request, Keil reached out
to multiple drug dealers to purchase one ounce of marijuana with the promise
that he would share the marijuana with her. Keil discussed the potential drug
deal with "around [ten]" people by telephone and text message. Keil also posted
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a Facebook message asking if any of her friends had marijuana for sale, to which
Melvin responded and offered $700 for two ounces. Keil testified this was the
highest price proposed with $100 per ounce the lowest offer. She also stated
that she relayed information on each dealer to defendant by Facebook message
and telephone, and defendant asked questions about where each dealer lived,
their appearance, and age.
Keil then reached out to Simmons, who drove her and defendant to
Trenton to purchase the drugs from Melvin. Simmons and Keil testified they
drove with defendant, who Simmons knew as "Choppy" from middle school,
and another individual who both girls assumed was defendant's cousin, known
as "Mooch." Simmons stated Mooch wore a ski mask, a blue hoodie and blue
jeans, and she could only see his eyes. Keil similarly testified that Mooch wore
"a dark hoodie, dark pants . . . [and] had a mask on."
Simmons stated that once the group arrived to meet Melvin, Keil got out
of the car and hugged him. Keil explained she spoke briefly and in a friendly
manner with Melvin because she knew him from school, but defendant called
her back to the car and told her "he did not want to do [the deal] anymore
[because] there [were] too many people [around]." Simmons likewise stated
that she remembered defendant and Mooch quickly returning to the car after
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Keil first got out because the area was too "suspicious," and there were too many
people at the location.
Keil noted that while they were driving to a new location, defendant called
Melvin and told him that he "didn't want to do [the deal] unless he was by
himself." After driving a few blocks, defendant and Mooch saw Melvin, who
was with a friend. Keil stated that she heard Melvin tell his friend to "go and
stand by the corner" and at that point, defendant and Mooch got out of the car
and walked toward Melvin "about a house length away" from the car.
While looking through the mirror as she was seated in the driver's seat,
Simmons testified she saw defendant shoot Melvin. Although it was dark
outside, she stated that there were "a lot of streetlights," and that she saw "a
flash and [Melvin] drop[] to the ground." For her part, Keil testified she was
seated in the backseat and heard a "pop," and turned around to see Melvin's
"body on the floor" and defendant rummaging through his pockets. She stated
that she then watched defendant, with a gun in his hand, take marijuana from
Melvin's pockets while Mooch ran in the opposite direction.
In their initial statements, both Simmons and Keil acknowledged they
were in the car with defendant, stopped so he could purchase marijuana from
Melvin, and saw a flash and heard the "pop of a gun," but stated they could not
be sure if it was defendant that pulled the trigger. Simmons and Keil, however,
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gave later statements in which they identified defendant as the person who shot
Melvin. At trial, Simmons testified that she was certain defendant was the
person she saw shoot Melvin, and acknowledged she neglected to identify
defendant in her earlier statement to detectives, but attributed that omission to
being "scared" and not wanting "anything to happen to [her] family or [her]s elf."
As part of her later statement, Keil also informed detectives that she saw
defendant rummage through Melvin's pockets and steal the marijuana. Keil
testified that she did not tell detectives about the theft in her initial statement
because she was sixteen "at the time, [she] was scared, and [she] was scared she
was going to get charged, too."
Simmons stated that after the shooting she drove off "hysterical," and once
she composed herself in a parking lot, drove to her friend Alyssa Parvesse's
house. Because Parvesse was not home, Simmons and Keil drove to Simmons'
house and waited for Parvesse to pick them up. After she arrived, Parvesse
drove Keil home, and dropped Simmons at her aunt's house, where her mother
was staying. Both Simmons and Keil informed their parents of what had
occurred and then proceeded to the police station.
Parvesse testified at trial and stated that she declined Keil's request to
drive her to Trenton to buy marijuana with defendant. Parvesse also explained
that once Keil and Simmons arrived at her house, they told her that they saw
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"Choppy" shoot Melvin. Parvesse told police that she had warned Simmons
earlier in the evening about her suspicion that Keil and her friends were planning
a robbery. Parvesse also testified as to Simmons' and Keil's emotional states,
describing Simmons as "really scared and shaking and crying" and Keil
behaving "like a shocked person."
Defendant was arrested and charged in the Family Part with first-degree
murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a). He was orally informed of his Miranda1
rights with his parents present, and they signed a consent form for an interview.
Despite being a minor and formally charged, the police obtained a separate
signed waiver of defendant's Miranda rights and elicited a statement from him
without counsel present.
In his recorded statement, defendant denied killing Melvin, and stated he
only approached him to purchase marijuana. Defendant further insisted that his
cousin was not with him that evening, and that he came by himself with Keil
and Simmons. When he arrived, defendant stated that he got out of the car to
meet Melvin, and saw an unknown individual with a black hoodie cross the street
and walk towards them. Believing this individual was about to rob him,
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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defendant explained he began "backing up," and when he turned around and
began to run, "all [he] heard was gun shots." Shocked and afraid, defendant said
he fled the scene after Keil and Simmons left in the car.
The State moved for involuntary waiver of jurisdiction pursuant to
N.J.S.A. 2A:4A-26 and Rule 5:22-2. The court granted the motion and waived
defendant's case to the Law Division. In doing so, the court concluded the State
established probable cause that defendant committed criminal homicide, one of
the enumerated offenses under N.J.S.A. 2A:4A-26.1(c)(2), and more
specifically, murder as defined by N.J.S.A. 2C:11-3.
Defendant was thereafter indicted by a grand jury on first-degree murder
(count one); first-degree felony murder, N.J.S.A 2C:11-3(a)(3) (count two);
first-degree robbery, N.J.S.A 2C:15-1 (count three); second-degree possession
of a weapon for an unlawful purpose (count four); and second-degree unlawful
possession of a weapon (count five).
Defendant filed a number of pretrial motions. As relevant to the issues
before us, he moved to dismiss count two of the indictment and to amend count
three from robbery to theft, relying primarily upon State v. Lopez, 187 N.J. 91,
101-02 (2006), claiming that because any theft occurred after the use of force,
he did not possess the requisite intent sufficient to support the robbery count.
The court denied defendant's motion and distinguished Lopez by concluding that
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the State presented sufficient circumstantial evidence to establish defendant
possessed "an intent to steal from Melvin . . . [that was] formed prior to or
contemporaneous with his shooting."
Defendant also filed an application to suppress his statement to the police
for all purposes, reasoning that it had been taken without counsel present,
contrary to State in the Interest of P.M.P., 200 N.J. 166, 178 (2009) (holding
that juveniles may not waive their Miranda rights without counsel present once
a formal complaint has been lodged). The State conceded that defendant's
statement was obtained contrary to his Sixth Amendment rights and th erefore
agreed that it could not use his statement its case-in-chief. The State argued,
however, that based on State v. Burris, 145 N.J. 509, 533 (1996), defendant's
statement was trustworthy and voluntary, and as such, it could still be used to
impeach him should he testify.
The court rejected defendant's application and explained that although the
statement was inadmissible in the State's case-in-chief, the State was permitted
to use the statement for impeachment purposes, subject to a finding that the
statement was voluntary and trustworthy, as well as any concerns regarding
undue prejudice. The court distinguished P.M.P., 200 N.J. at 178, reasoning
defendant had been waived to adult court, unlike the juvenile in that case. After
defendant and his counsel conferred, his counsel "concede[d] that the statement
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[defendant gave to Detectives McNally and Abarno] was voluntary," and as
such, there was no need for a N.J.R.E. 104 hearing on the issue. The court
confirmed that "in effect, if [defendant] decides to take the witness stand, he is
acknowledging he can be cross-examined with that prior statement?" and
defense counsel stated that was accurate.
At trial, Sergeant Brian Jones of the Trenton Police Department testified
that he arrived at the scene to find a "man down on the sidewalk" and discovered
that the victim had suffered a gunshot wound to the head. He also stated that he
found only one "shell casing in close proximity to the victim," who he identified
as Melvin. A second officer, Sergeant Paul Toth, explained that an inventory
conducted as part of Melvin's autopsy revealed he had five one-dollar bills in
his pocket and a wallet, but no marijuana.
Dr. Lauren Thoma, the Middlesex County Medical Examiner, also
testified for the State, and stated that Melvin's cause of death was a single
gunshot wound to the head. Because there was no evidence of gunshot residue,
Dr. Thoma testified that the wound was a "distant wound," that likely occurred
from "not less than several feet away," but it could be up to twenty or thirty feet
away.
Finally, Detective McNally stated that he spoke with several people at the
scene, who heard the gunshot from their homes. Detective McNally also
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testified with respect to records obtained from Facebook in the course of the
investigation. The detective explained that the police identified defendant's
Facebook account, which was registered under the name "Chop Ice," but after
obtaining a warrant to review records from that account, defendant did not have
any "Facebook messages going back and forth with anybody." In contrast,
Detective McNally indicated that Melvin's Facebook records for the same time
period showed "in excess of 500 pages" of messages.
Detective McNally explained that he also obtained Facebook records for
Keil for the same time period. When asked why the defendant's account did not
reveal any messages, the detective explained that he believed the messages had
been deleted because after speaking with Keil, who informed police she
communicated with defendant via Facebook messenger, "the majority of all her
messages that she had told [police] she had been communicating with were on
her pages, but yet none of those messages were on [defendant's] pages."
On direct examination, Detective McNally also stated that he spoke with
Jabree Green, Melvin's friend, but that Green told detectives he did not witness
the murder and was not willing to give a formal statement. Green did tell
Detective McNally, however, that he had been with Melvin earlier in the evening
near the scene of the murder, when Melvin "walked off and said he'd be back in
about [ten] or [fifteen] minutes," but when he heard a gunshot, Green ran up the
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block and turned the corner to find Melvin lying on the ground. Detective
McNally stated that he tried to speak with Green various times over the years,
but Green was uncooperative, even though the police believed he had been a
witness.
On cross-examination, defense counsel asked Detective McNally about
his interview with Green. In response, Detective McNally again stated that
Green told him "he did not witness [the murder] and was not present." Defense
counsel also asked Detective McNally about the forensic evidence recovered.
Detective McNally testified that law enforcement never recovered a gun, and
there was no DNA or fingerprint evidence linking defendant to the murder.
At the close of the State's case, defendant made a motion for judgment of
acquittal, arguing that there was insufficient evidence under State v. Reyes, 50
N.J. 454, 458-59 (1967), to support a conviction. The court denied the motion,
concluding that based on the evidence introduced at trial, a reasonable jury could
find that defendant purposely or knowingly shot Melvin, and could further infer
that "defendant formed [the] intent to steal the marijuana even before he shot
and killed [Melvin]."
The court charged the jury consistent with the parties' requests and in
accordance with the Model Jury Charges (Criminal). The jury deliberated for
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several days, and after requesting a playback of Simmons' testimony and parts
of Keil's testimony, found defendant guilty on all counts.
At sentencing, the court merged counts two, three and four into count one
and imposed a forty-two-year sentence subject to NERA after applying
aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3)(6) and (9).
The court did not find any mitigating factors applicable, but concluded that
factors one, two and five under Miller v. Alabama, 567 U.S. 460, 478 (2012), as
adopted by our Supreme Court in State v. Zuber, 227 N.J. 422, 429 (2017),
weighed in defendant's favor. The court also sentenced defendant to a separate
five-year custodial term as to count five with a three-and-one-half period of
parole ineligibility, ran the sentences concurrently, and imposed applicable fines
and penalties. This appeal followed.
II.
In his initial point, defendant argues that the court incorrectly ruled that
his statement to Detectives McNally and Abarno could be used for impeachment
purposes, despite the State's concession that it was elicited in violation of
defendant's Sixth Amendment rights, and in doing so, "placed an impermissible
burden on his right to testify in his own defense." He supports his argument on
three separate, but related, bases.
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He first contends, relying on United States v. Brown, 699 F.2d 585 (2d
Cir. 1983), and People v. Gonyea, 421 Mich. 462 (1984), that the court
improperly relied on Burris, as that holding was grounded on violations of the
Fifth Amendment. As such, any attendant "voluntariness" inquiry would be
structurally inapplicable to a Sixth Amendment violation like that committed by
Detectives McNally and Abarno. Second, defendant maintains the court's
decision is contrary to our State's robust Sixth Amendment jurisprudence which
has relied on our Constitution to provide citizens with greater prote ctions than
those afforded under the Federal Constitution. Third, he argues the court's
decision is contrary to New Jersey statutory authority and Supreme Court
precedent that provides juveniles with "special protections" when subject to
interrogation. State ex rel. A.W., 212 N.J. 114, 128 (2012). We disagree with
all these arguments.
We apply a de novo standard of review in construing the "meaning of a
constitutional provision or a statute." Gormley v. Wood-El, 218 N.J. 72 (2014).
Under that plenary analysis, we do not defer to the court's interpretation of the
Sixth Amendment. Id. at 87.
As noted, because his statements were elicited in violation of his Sixth
Amendment right to counsel, defendant contends that the statements may not be
admitted under any circumstances, including impeachment. Defendant argues
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that the impeachment exception noted in Burris applied only to violations of the
Fifth Amendment, and not to the Sixth Amendment violation at issue here.
In Burris, the Court held that a statement taken in violation of the Fifth
Amendment privilege against self-incrimination, though inadmissible in the
prosecution's case-in-chief, is nonetheless admissible for impeachment
purposes. Burris, 145 N.J. at 529. Before admission, however, the statement
must be found to be "trustworthy and reliable in that it was given freely and
voluntarily without compelling influences." Id. at 525.
Defendant argues the Burris rule has no application when the police
violated a defendant's Sixth Amendment rights, and as noted, cites Brown, 699
F.2d at 587 and Gonyea, 421 Mich. at 462, in support. In those cases, both
courts precluded the government from introducing defendant's uncounseled,
post-indictment statements for any purpose, including impeachment. Brown,
699 F.2d at 590; Gonyea, 421 Mich. at 480-81. We disagree and note that Brown
and Gonyea2 are not accurate reflections of the current state of the law on the
issue.
2
We note that Gonyea was a plurality decision of the Michigan Supreme Court,
and since then, relying on Michigan v. Harvey, 494 U.S. 344, 349 (1990), the
Michigan Court of Appeals has held that a defendant's statements elicited in
violation of his Sixth Amendment right to counsel, though inadmissible as
substantive evidence, were admissible for impeachment purposes. People v.
Frazier, 270 Mich. App. 172, 182 (2006), rev'd on other grounds, 478 Mich. 231A-2694-18
16
In Harvey, 494 U.S. at 349 (1990), the United States Supreme Court first
held that a statement obtained from a defendant in violation of the Sixth
Amendment could be used to impeach his inconsistent testimony at trial. The
Court expanded on this ruling in Kansas v. Ventris, 556 U.S. 586, 592 (2009),
when it held that the violation of the Sixth Amendment right to counsel is
infringed at the time of the uncounseled interrogation, and that voluntary
statements obtained in violation of a defendant's Sixth Amendment right to
counsel were admissible to impeach a defendant's inconsistent testimony at trial.
In doing so, Justice Antonin Scalia explained:
Whether otherwise excluded evidence can be admitted
for purposes of impeachment depends upon the nature
of the constitutional guarantee that is violated.
Sometimes that explicitly mandates exclusion from
trial, and sometimes it does not. The Fifth Amendment
guarantees that no person shall be compelled to give
evidence against himself, and so is violated whenever a
truly coerced confession is introduced at trial, whether
by way of impeachment or otherwise. The Fourth
Amendment, on the other hand, guarantees that no
person shall be subjected to unreasonable searches or
seizures, and says nothing about excluding their fruits
from evidence; exclusion comes by way of deterrent
sanction rather than to avoid violation of the
substantive guarantee. Inadmissibility has not been
automatic, therefore, but we have instead applied an
exclusionary-rule balancing test. The same is true for
violations of the Fifth and Sixth Amendment
(2007). On appeal, the Michigan Supreme Court did not disturb this holding,
and has not since ruled on the issue. People v. Frazier, 478 Mich. 231, 235
(2007).
A-2694-18
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prophylactic rules forbidding certain pretrial police
conduct.
[Ventris, 556 U.S. at 590-91 (internal citations omitted).]
Applying that balancing test, Justice Scalia reasoned that suppressing
statements obtained in violation of the Sixth Amendment right to counsel for
impeachment purposes would be an improper remedy for the constitutional
violation, and would provide defendant "with a shield against contradiction of
his untruths." Id. at 594 (quoting Walder v. U.S., 347 U.S. 62, 65 (1954)).
Justice Scalia further explained the "need to prevent perjury and to assure the
integrity of the trial process" outweighed any interest in excluding the
statements. Ibid. (quoting Stone v. Powell, 428 U.S. 465, 488 (1976)).
Accordingly, the Ventris Court found no reason to expand the
exclusionary rule, finding no additional deterrent motivations for police to avoid
obtaining statements that might be later used for impeachment. Ventris, 556
U.S. at 593. As Justice Scalia explained, "[a]n investigator would have to
anticipate both that the defendant would choose to testify at trial (an unusual
occurrence to begin with) and that he would testify inconsistently despite the
admissibility of his prior statement for impeachment." Ibid. (emphasis in
original). These circumstances are not likely to occur, "or at least not likely
enough to risk squandering the opportunity of using a properly obtained
statement for the prosecution's case-in-chief." Ibid.A-2694-18
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The majority of circuit courts have similarly held that statements obtained
in violation of a defendant's Sixth Amendment right to counsel may be used for
impeachment purposes. See Gardner v. Galetka, 568 F.3d 862, 875 (10th Cir.
2009) (Defendant is not licensed "to perjure himself without threat of refutation
using his prior statements," even if the elicitation of those statements violated
defendant's rights under the Fifth and Sixth Amendments.); United States v.
Danielson, 325 F.3d 1054, 1067 (9th Cir. 2003), as amended (May 19, 2003)
(Any statements gathered in violation of defendant's Sixth Amendment right to
counsel "must be excluded from the government's case-in-chief, although 'they
are admissible to impeach conflicting testimony by the defendants,' provided the
statements were voluntary.") (quoting Harvey, 494 U.S. at 349-53 (1990)). 3
3
See also United States v. Fellers, 397 F.3d 1090, 1097 (8th Cir. 2005)
(allowing defendant's "uncounseled statements obtained in violation of the Sixth
Amendment [to] be used at trial for impeachment purposes"); McGriff v. Dep't
of Corr., 338 F.3d 1231, 1236 (11th Cir. 2003) (addressing the right to counsel
under the habeas corpus statute, but noting "statements obtained in violation of
a defendant's Fifth or Sixth Amendment right to counsel cannot be used in the
prosecution's case-in-chief against the defendant, but may be used for
impeachment purposes"); United States v. Bender, 221 F.3d 265, 271 (1st Cir.
2000) (stating that the government was not precluded from using defendant's
incriminating statements, obtained in violation of his Sixth Amendment rights ,
"if knowing and voluntary, for the purpose of impeachment, if he testifies");
United States v. Laury, 49 F.3d 145, 150 (5th Cir. 1995) ("It is well established
that the prosecution may use a statement obtained in violation of the Sixth
Amendment to impeach a defendant's false or inconsistent testimony."); United
States v. Lott, 854 F.2d 244, 249 (7th Cir. 1988) (Defendant's testimony
obtained in violation of his Sixth Amendment right to counsel was admissible
A-2694-18
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Based on the aforementioned authority, we are satisfied that the court did
not err when it concluded that defendant's statements to detectives were
admissible to impeach him should he testify. We acknowledge that Ventris and
Harvey were based upon rights enumerated by the Federal Constitution, and as
our Supreme Court has recently re-emphasized, the United States Constitution
for impeachment purposes at trial because "[t]o hold otherwise would pervert
[defendant]'s Sixth Amendment right to counsel into a right to commit
perjury.").
Numerous state courts have also concluded that statements obtained in
violation of the Sixth Amendment may be admitted for impeachment purposes.
See Phillip v. State, 225 P.3d 504, 514 (Wyo. 2010) ("[E]ven if the evidence
was unlawfully obtained because a defendant's right to counsel was not properly
observed, the evidence may still be used for impeachment purposes."); People
v. Brown, 42 Cal. App. 4th 461, 463-74 (1996) (holding "that the exclusion of a
defendant's voluntary statements, obtained in violation of the Sixth Amendment
right to counsel, from the case-in-chief sufficiently vindicates the defendant's
Sixth Amendment rights," and explaining that "when the defendant takes the
stand and testifies inconsistently with those statements, protection of the truth-
finding purpose of a criminal trial requires that such statements be admissible
for impeachment"); State v. Mattatall, 603 A.2d 1098, 1114-15 (R.I. 1992) ("In
no way should the exclusionary rules enunciated by the Supreme Court . . . be
perverted by any defendant into a license to commit perjury."); Com. v. Batson,
396 Pa. Super. 513, 517 (1990) (relying on Harvey and holding that a statement
made by appellant that was "given voluntarily and of free will" could not be
admitted in the prosecution's case-in-chief, but was amissible for impeachment
purposes); Martinez v. United States, 566 A.2d 1049, 1059 (D.C. 1989) (holding
that "a voluntary statement obtained in violation of a defendant's Six th
Amendment right to counsel may be used at trial to impeach the contrary or
inconsistent testimony of that defendant"); State v. Swallow, 405 N.W.2d 29, 39
(S.D. 1987) ("While we agree that the right to counsel is of great importance to
our system of justice, we do not believe that this right should be contorted into
a rule that would effectively countenance perjury.").
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"provides the floor for constitutional protections, and our own Constitution
affords greater protection for individual rights than its federal counterpart."
State v. Melvin, 248 N.J. 321 (2021).
For example, New Jersey provides greater protection from unreasonable
searches and seizures than does the Fourth Amendment, see State v. Carter, 247
N.J. 488, 529-30 (2021), from self-incrimination than does the Fifth
Amendment, see State v. O'Neill, 193 N.J. 148, 176-77 (2007); and from cruel
and unusual punishment in the context of the Eighth Amendment, see Zuber,
227 N.J. at 438. In the context of the Sixth Amendment, we have clarified that
"[w]here the language of our State Constitution contains similar language, as
Article I, paragraph 10 does regarding the Sixth Amendment, there should be
some intent or historical support for the proposition that our drafters were
providing something different than the drafters of the federal constitution."
State v. Daniels, 364 N.J. Super. 357, 371 (App. Div. 2003), rev'd on other
grounds, 182 N.J. 80 (2004).
Relying on these principles generally, and on State v. Sanchez, 129 N.J.
261, 275 (1992) specifically, defendant argues that in New Jersey, "a right to
counsel violation after indictment implicates a state-based right which preceded
the Sixth Amendment, and thus, demands an even higher waiver standard." In
Sanchez, the defendant moved to suppress his uncounseled, post-indictment
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confession, arguing that it violated his Sixth Amendment right to counsel, even
though he had been read his Miranda rights and signed a waiver form. Id. at
262. The trial court admitted the statement, concluding that defendant had never
requested counsel, and he made a knowing and voluntary wavier of his rights.
Ibid. We affirmed.
Our Supreme Court reversed, and declined to apply the United States
Supreme Court's holding in Patterson v. Illinois, 487 U.S. 285, 298 (1988), that
"Miranda warnings adequately alert an accused of the right to counsel and of the
consequences of a decision to waive his or her Sixth Amendment rights during
post-indictment questioning." The Sanchez Court noted that New Jersey has
long protected a broader right to counsel than the Federal Constitution and
emphasized New Jersey's "traditional commitment to the right to counsel." Id.
at 274-75. The Court reasoned that the indictment "transforms the relationship
between the State and the defendant" and begins a stage of the proceedings in
which the "prosecutor and the defendant are adversaries." Id. at 276.
As such, the court concluded, "the perfunctory recitation of the right to
counsel and to remain silent may not provide the defendant with sufficient
information to make a knowing and intelligent waiver" because these warnings
do not inform the defendant of "the nature of the charges, the dangers of self -
representation, or the steps counsel might take to protect the defendant's
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interests." Id. at 276-77. The Court determined that "[a]s a general rule, after
an indictment and before arraignment, prosecutors or their representatives
should not initiate a conversation with defendants without the consent of defense
counsel." Id. at 277.
We are not persuaded that the holding in Sanchez, or the other authority
cited by defendant, supports his argument that the violation of defendant's right
to counsel under Article 1, paragraph 10 of the New Jersey Constitution, or the
Sixth Amendment, required his statement to be excluded for all purposes,
including impeachment. We reach that conclusion because we agree with the
Ventris Court's reasoning that "preventing impeachment use" of defendant's
statement "would add little appreciable deterrence" to police conduct. Id. at 593.
Our conclusion is further supported by the fact that no New Jersey court
of which we are aware has so broadly interpreted a defendant's Sixth
Amendment rights to effectively allow an accused to lie affirmatively regarding
a non-coerced statement without permitting the State the opportunity to engage
in direct impeachment. That principle is particularly relevant here: if
defendant's statement, which his counsel stipulated was entered voluntarily, was
barred from use at trial for all purposes, defendant could conceivably take the
witness stand and blame the murder on Mooch, and not the unidentified,
mysterious, hooded man who he told detectives emerged from the darkness to
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kill the victim for no known purpose. Under defendant's proposed interpretation
of the Sixth Amendment, the State would be without recourse to confront him
directly with the most damaging evidence against him on that point—his own
statement.
Nor, in our view, does defendant's juvenile status compel a contrary result.
In reaching this conclusion, we fully acknowledge that our State has "long
accorded juveniles special protections when they are subjected to [custodial]
interrogation." State ex rel. A.W., 212 N.J. 114, 128 (2012). We do so because
juveniles are "typically less mature, often lack judgment, and are generally more
vulnerable to pressure than adults," great care must be taken to ensure a
juvenile's statement is voluntary, and "'not the product of ignorance of rights or
of adolescent fantasy, fright or despair.'" State In Int. of A.A., 240 N.J. 341,
354 (2020) (quoting In re Gault, 387 U.S. 1, 55 (1967)).
In particular, "a parent or legal guardian should attend a juvenile
interrogation whenever possible to help assure that any waiver of rights by the
juvenile is the product of free will." State v. Presha, 163 N.J. 304, 322 (2000).
This is so because a parent "can offer a measure of support in the unfamiliar
setting of the police station." Id. at 314. If an adult is unavailable or declines
to accompany the minor, police must conduct an interrogation "'in accordance
with the highest standards of due process and fundamental fairness.'" Id. at 317
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(quoting State ex rel. S.H., 61 N.J. 108, 115, (2004)). In the context of the Fifth
Amendment, courts must consider the "totality of the circumstances" in
evaluating the voluntariness of a juvenile's statement, and the presence of a
parent is an important factor in that determination. Id. at 321.
Our courts further recognize "the profound importance of a decision to
waive a minor accused of an offense to the adult criminal court" due to "the
fundamental difference between juvenile courts that focus on rehabilitation of
youths and adult criminal courts that are more focused on deterrence and
punishment." State in Int. of E.S., 470 N.J. Super. 9, 17 (App. Div. 2021).
Juveniles are entitled to various procedural protections before waiver to adult
court, and must "receive a hearing, effective assistance of counsel who have
access to relevant information, and a statement of reasons for the court's
decision." State in Int. of N.H., 226 N.J. 242, 253 (2016). Indeed, at these
hearings, juveniles are afforded "greater rights than adults have at comparable
probable cause hearings." Ibid.Further, the waiver process is carefully crafted to ensure juveniles who
commit only enumerated delinquent acts are tried in adult court, see N.J.S.A.
2A:4A-26.1(c)(2), and has recently been revised to require even greater
protections for juveniles. In 2016, the Legislature raised the minimum age for
eligibility for waiver from fourteen to fifteen, see N.J.S.A. 2A:4A-26.1(c)(1),
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and required any "wavier motion to be 'accompanied by a written statement of
reasons' from the prosecutor." State in Int. of Z.S., 464 N.J. Super. 507, 516
(App. Div. 2020) (quoting N.J.S.A. 2A:4A-26.1(a)). This statement of reasons
must "'clearly set[] forth the facts used in assessing all [of the enumerated
waiver] factors . . . together with an explanation as to how evaluation of those
facts supports waiver for each particular juvenile.'" Ibid. (quoting N.J.S.A.
2A:4A-26.1(a) (emphasis in original)). Those eligibility factors include the
nature and circumstances of the offense, the degree of the juvenile's culpability,
the juvenile's age and maturity, the degree of criminal sophistication, prior
history of delinquency, among others. See N.J.S.A. 2A:4A-26.1(c)(3).
Recent developments in New Jersey sentencing law provide juveniles with
further protections. In Zuber, 227 N.J. at 451, our Supreme Court held that
judges must "take into account how children are different," and consider the
factors enumerated in Miller v. Alabama, 567 U.S. 460, 479 (2012), before
sentencing juveniles to life imprisonment without the possibility of parole or its
practical equivalent. Zuber, 227 N.J. at 429. These factors include "immaturity
and 'failure to appreciate risks and consequences'; 'family and home
environment'; family and peer pressures; 'an inability to deal with police officers
or prosecutors' or the juvenile's own attorney; and 'the possibility of
rehabilitation.'" Ibid. (quoting Miller, 567 U.S. at 477-78).
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Beyond the Miller factors, our Legislature also recently revised the
sentencing criteria to require sentencing courts to consider a defendant's
youthful status as an independent factor in the sentencing calculus. See N.J.S.A.
2C:44-1(b)(14). The court must consider defendant's age in mitigation of any
aggravating factor if "defendant was under twenty-six years of age at the time
of the commission of the offense." L. 2020, c. 110 (eff. Oct. 19, 2020).
In addition, in P.M.P., 200 N.J. at 177, the Court held that the Code of
Juvenile Justice requires a juvenile defendant "to have 'counsel at every critical
stage of the proceeding which, in the opinion of the court may result in the
institutional commitment of the juvenile.'" Ibid. (quoting N.J.S.A. 2A:4A–
39(a)). Thus, because the filing of the juvenile complaint by a prosecutor's
office, followed by the issuance of a judicially approved arrest warrant,
constituted a "critical stage" of the proceedings, the Court concluded that the
statutory right to counsel was implicated, and the defendant could not waive his
Miranda rights in the absence of his attorney. Id. at 177-78.4
4
Defendant also relies upon N.J.S.A. 2A:4A-38 and N.J.S.A. 2A:4A-39 to
support his argument that juveniles, even those waived to adult court, should
receive special protections under our evidence Rules. We acknowledge these
protections provided by the Code of Juvenile Justice, but we are not persuaded
that these statutory provisions apply here. Defendant was not denied
representation at a detention hearing, N.J.S.A. 2A:4A-38, and his statements
from a waiver proceeding were not introduced at trial, N.J.S.A. 2A:4A-39.
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Defendant argues the Presha "voluntariness inquiry" has "no place" once
a juvenile delinquency complaint has been filed, and urges us to draw a bright-
line rule declaring all statements given by a juvenile in the absence of an
attorney per se involuntary and inadmissible for any purpose. We decline to do
so and note that here, defendant's counsel conceded his statement was not
coerced and determined an N.J.R.E. 104 hearing on the issue was not required.
We are satisfied that any inherent impulsivity or vulnerability due to
defendant's age has been remedied by the preclusion of his statement in the
prosecution's case-in-chief. Further, we do not believe the aforementioned
jurisprudence, including Zuber and P.M.P., would be contravened by preventing
the State from impeaching defendant with his inconsistent statements. In sum,
we are not persuaded that New Jersey's juvenile protections should be expanded
so far such that a juvenile waived to adult court is permitted to lie 5 under oath,
without permitting the State the opportunity to confront defendant with his or
her prior inconsistent statement.
5
We do not presume that a defendant's uncounseled statement to the police was
necessarily truthful and that his contrary testimony at trial is necessarily false.
What we are saying is that the State is entitled to impeach the defendant at trial
to highlight the disparity.
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III.
In his second point, defendant contends that because the State's case relied
heavily upon eyewitness testimony, the court erred in failing to instruct the jury
that the "State has the ultimate burden of proving the identity of the perpetrator
beyond a reasonable doubt." He also argues that by failing to provide any
instruction on identification, premised on Simmons' "middle-of-the-night,
yards-away, through-her-rear-view-mirror identification of someone she barely
knew," the court violated State v. Henderson, 208 N.J. 208, 218 (2011), as well
as his Fourteenth Amendment rights under our Federal and State Constitutions
in failing to provide "enhanced instruction" consistent with that case. We find
no merit in these arguments.
We review a "missing instruction on identification . . . for plain error."
State v. Sanchez-Medina, 231 N.J. 452, 468 (2018). "Any error or omission
shall be disregarded . . . unless it is of such a nature as to have been clearly
capable of producing an unjust result." Ibid. The possibility of such an unjust
result must be "sufficient to raise a reasonable doubt as to whether the error led
the jury to a result it otherwise might not have reached." State v. Macon, 57
N.J. 325, 336 (1971).
Further, any alleged plain "error must be evaluated 'in light of the overall
strength of the State's case.'" Sanchez-Medina, 231 N.J. at 468 (quoting State
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v. Galicia, 210 N.J. 364, 388 (2012)). Defendant carries the burden of showing
plain error. State v. Morton, 155 N.J. 383, 421 (1998).
In Henderson, the defendant challenged an identification on the ground
police officers had unduly influenced the eyewitness. 208 N.J. at 217. The
eyewitness initially expressed doubt about the identity of the perpetrator but was
able to confidently identify the defendant after meeting with investigators. Id.
at 223-24. The Court identified numerous factors that can affect the ability of a
witness to remember and identify perpetrators, resulting in misidentifications,
and ordered an amplified, comprehensive jury charge. Id. at 298-99. The Model
Jury Charges (Criminal), "Identification: In-Court and Out-of-Court
Identifications" (rev. July 19, 2012) was then drafted and adopted by the Court.
In Sanchez-Medina, the Court made clear that "[w]hen eyewitness
identification is a 'key issue' the trial court must instruct the jury how to assess
the evidence—even if defendant does not request the charge." Id. at 466
(quoting State v. Cotto, 182 N.J. 316, 325 (2005)). For the failure to deliver the
charge to be plain error, however, identification must be "a critical issue at trial
that defendant disputed." Id. at 469; see also Cotto, 182 N.J. at 325. An issue
is made a "key issue" if it is "the major, if not the sole, thrust of the defense."
State v. Green, 86 N.J. 281, 291 (1981). And we must also consider the error
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"in light of 'the totality of the entire charge, not in isolation.'" Ibid. (citation
omitted).
Defendant relies on State v. Davis, 363 N.J. Super. 556, 560 (App. Div.
2003) for the proposition that trial courts have a duty, "even absent a request, to
present the model charge on identification." The defendant in Davis was
convicted of distributing cocaine within 1000 feet of a school after he
purportedly sold it to an undercover Drug Enforcement Agency (DEA) officer
who had never met defendant before the transaction, and identified him twenty -
five minutes after the sale through a single photo. Id. at 559. Describing
defendant's case as "squarely one of misidentification," we concluded the
absence of a detailed identification charge constituted plain error. Ibid.Defendant also relies on Green, 86 N.J. at 291-292, for the authority that
"a missing instruction on identity can almost never be harmless when there is
only a single other eyewitness who makes an identification at trial." In that case,
the victim (and only eyewitness) was attacked at night by an assailant who
remained behind her while they walked to a dimly lit spot where he raped her.
Id. at 291. Her initial description of the assailant was a man five inches shorter
and thirty pounds lighter than the defendant, and it did not refer to defendant's
chipped tooth, a detail she provided several months after the assault. Ibid.Based on these circumstances, the Court noted that there was no corroboration
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or forensic evidence so that the danger of a mistaken identification was
"particularly significant." Ibid. Because the trial court failed to charge the jury
that it was the State's burden to prove beyond a reasonable doubt that it was the
defendant who had raped the victim, the Court reversed and remanded for a new
trial. Id. at 293.
The witnesses in this case are unlike the victim-witness in Green or the
DEA officer in Davis. Both Keil and Simmons knew defendant from prior
interactions in school, and Keil occasionally socialized with defendant. Further,
while neither specifically identified defendant in their original statements, they
unequivocally identified him in later statements and at trial. Alyssa Parvesse
also testified that both women told her "Choppy" was responsible for Melvin's
death immediately after the incident.
Defendant's argument also incorrectly presupposes that an eyewitness
identification instruction was appropriate and necessary in this case. This
argument fundamentally misconstrues the nature and purpose of that jury charge
as, contrary to defendant's argument, eyewitness identification within the
meaning of Henderson and its progeny was not a key issue in this case.
The eyewitness identification charge, drafted in accordance with
Henderson, is designed to provide guidance to juries in gauging a witness's
capacity to testify reliably that the defendant is the person the eyewitness
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observed at the scene and time of the crime. Where the eyewitness is someone
well known to the person identifying defendant—like in this case—there simply
is no significant risk the witness would misidentify the culprit within the
meaning of Henderson.
Defendant did not dispute that he was present at the crime scene when the
fatal shots were fired. Defendant's argument—reflected in his counsel's opening
and closing statements—was that Mooch fired the gun that killed Melvin.
Accordingly, the key issue for the jury to decide was not whether Simmons and
Keil had misidentified defendant, but rather whether they were truthful when
they told the jury they saw defendant shoot the victim.
In these circumstances, the model identification charge explaining the risk
of eyewitness misidentification would not have been helpful—and might even
have been confusing—in contrast to the witness credibility jury instruction that
was given to the jury. Indeed, had the court given instructions regarding as to
how the estimator variables affect identification, the jury may well have been
even more convinced that Simmons and Keil correctly identified defendant as
the shooter. As noted, both knew defendant from school and spent time driving
with him in the car prior to the shooting, and even though it was dark, both
women were seated in the car only about "a house length away" from defendant.
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This case is more similar to State v. Gaines, 377 N.J. Super. 612, 626
(App. Div. 2005), in which we found that the failure to provide an identification
instruction did not require reversal because the two eyewitnesses knew the
defendant prior to the aggravated manslaughter for which he was convicted, and
"[t]heir independent identifications . . . were not dependent upon their ability to
observe and recall physical features and characteristics of a person who was a
stranger to them." See also State v. Baylor, 423 N.J. Super. 576, 592 (2011).
We further observed that the court's other instructions "did not permit the jurors
to conclude that they could convict [the] defendant if the State had not
established beyond a reasonable doubt that he was the person who fired the fatal
shot." Id. at 625.
Here, the jury was clearly instructed that the State must prove beyond a
reasonable doubt that defendant committed the crimes for which he was charged.
In this regard, the court specifically instructed the jury to determine whether
"the State has proven beyond a reasonable doubt that the defendant[ ] violated a
specific criminal statute." The court's reasonable doubt charge repeatedly
referred to "defendant's guilt." Further, when detailing the elements of each of
the charges against defendant, the court repeatedly stated that an element of each
is "[t]hat the defendant knowingly or purposely caused the death or serious
bodily injury resulting in the death of Shamere Melvin."
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Additionally, the court charged the jury to "weigh the testimony of each
witness and then determine the weight to give it," specifically asking the jury to
consider a witness's "means of obtaining knowledge of the facts" and to the
extent the witness is "corroborated or contradicted . . . by other evidence." The
court also charged the jury on circumstantial evidence stating "[i]t is not
necessary that all the facts be proven by direct evidence" and that a guilty verdict
"may be based on . . . circumstantial evidence alone or a combination of direct
evidence and circumstantial evidence."
We thus conclude the failure to give the eyewitness identification jury
charge was not error, much less plain error capable of producing an unjust result.
R. 2:10-2; see also Cotto, 182 N.J. at 326 (noting although "[f]ailure to issue [an
identification] instruction may constitute plain error," that "determination . . .
depends on the strength and quality of the State's corroborative evidence").
IV.
Defendant further argues the court committed reversible error when it
failed to instruct the jury with respect to the intent to commit theft, which "must
precede or be coterminous with the use of force," consistent with Lopez, 187
N.J. at 98-99. Defendant maintains the instruction was critical to acquit on
robbery and felony murder, and the lack of instruction on defendant's mental
state was "plainly prejudicial." We disagree.
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Pursuant to N.J.S.A. 2C:15-1(a)(2), "[a] person is guilty of robbery if, in
the course of committing a theft, he . . . [t]hreatens another with or purposely
puts him in fear of immediate bodily injury." The State must prove, beyond a
reasonable doubt, that the actor's conduct threatens the victim with or purposely
puts the victim in fear of immediate bodily injury to compel the victim to give
up his money or other property. State ex rel. L.W., 333 N.J. Super. 492, 497
(App. Div. 2000). The analysis is based upon the totality of the circumstances,
and there are no special words or conduct required. Ibid.; State v. Smalls, 310
N.J. Super. 285, 292 (App. Div. 1998).
In Lopez, the defendant struck and killed the victim, and thereafter
decided to steal the victim's jewelry. Lopez, 187 N.J. at 93. The Court observed
that "without the intention to steal evidenced by a theft or attempted theft, there
can be no robbery." Id. at 98. Accordingly, the Court held that our robbery
statute does not encompass "afterthought robbery," as the intention to steal must
precede or be coterminous with the use of force. Id. at 101.
Defendant contends that the trial court incorrectly omitted the following
optional portion of the model jury charge on robbery (the Lopez charge):
To find the defendant guilty of robbery, the intent to
commit theft must precede or be coterminous with the
use of force. In other words, the defendant must have
formed the intent to commit a theft before or during
his/her use of force. If you find the defendant formed
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the intent to commit a theft after his/her use of force,
then he/she cannot be found guilty of robbery.
[Model Jury Charges (Criminal), "Robbery in the First
Degree (N.J.S.A. 2C:15-1)" (rev. Sept. 10, 2012).]
As is clear from the record, defendant did not specifically request a Lopez
charge. As noted, however he did file two motions – a motion to dismiss certain
counts of the indictment and a motion for a judgment of acquittal – that reflected
his challenges to the intent element of the robbery charge. Defendant suggests
that in light of those previous applications, he effectively preserved the issue,
and the court should have given the instruction absent a request. Even were we
to indulge that argument, and consider the issue under the harmless error
standard, see Willner v. Vertical Reality, Inc., 235 N.J. 65, 80 (2018), as
opposed to the plain error standard, we conclude that the jury was appropriately
charged on the robbery count.
Lopez does not support defendant's argument. We are satisfied that there
was more than sufficient evidence for a reasonable jury to conclude defendant
formed the intent to rob Melvin prior to arriving at the scene. After deciding on
a drug deal for twice his originally intended quantity, defendant rejected the first
meeting location as "too suspicious," because the area was too crowded. He
then led Melvin to a more isolated location to conduct the drug deal, deliberately
secluding him. Further, defendant arrived to complete the drug transaction with
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a gun and his cousin who wore a ski mask, strongly suggesting he planned to
steal the marijuana from Melvin.
We also note that the court advised the jury that "an act is considered to
be 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." (emphasis added). And, the court informed jury that
the State must prove beyond a reasonable doubt each element of the crimes, and
defined the terms "bodily injury" and "force" in detail.
We next turn to defendant's claim that the court erred when it denied his
motion for a judgment of acquittal under Rule 3:18-1, similarly arguing that
there was insufficient evidence to support a finding that he formed the intent to
steal either before the shooting or concurrent with it. The question on a motion
for acquittal is:
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 reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[Reyes, 50 N.J. at 459.]
If the State's evidence and its favorable inferences can support a guilty
verdict, the motion for acquittal should be denied. State v. Jones, 242 N.J. 156,
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168 (2020). Appellate review of the denial of a motion for acquittal is de novo.
Ibid.The court rejected defendant's argument, concluding that "certainly the
inference is there that the defendant formed [the] intent to steal the marijuana
even before he shot and killed [Melvin]." For the reasons noted, we find no
error in this conclusion, as there was ample evidence supporting a finding that
defendant formed the intent to commit theft prior to the shooting.
V.
In point four, defendant maintains Detective McNally's testimony
"constituted a series of interrelated constitutional and evidentiary violations."
Specifically, defendant argues that Detective McNally's testimony violated the
Confrontation Clause by invoking a non-testifying witness, violated N.J.R.E.
701 by going beyond the scope of a lay witness, and improperly "vouched" for
other witnesses' testimony. Again, we find no merit to these contentions.
A "trial court's evidentiary rulings are entitled to deference absent a
showing of an abuse of discretion." State v. Nantambu, 221 N.J. 390, 402
(2015). However, "[w]hen a defendant does not object to an alleged error at
trial, such error is reviewed under the plain error standard." State v. Singh, 245
N.J. 1, 13 (2021) (quoting R. 2:10-2). We apply the plain error standard as
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39
defendant failed to object to any of Detective McNally's testimony. We address
defendant's challenges to the detective's testimony separately.
A. Confrontation Clause
First, defendant argues that Detective McNally's speculation as to Green's
refusal to testify violated the Confrontation Clause under the Federal and State
Constitutions. Defendant maintains Detective McNally conveyed "superior
knowledge" as to defendant's guilt by suggesting the existence of an
incriminating out-of-court statement made by Green and inferring that Green
"would have identified [defendant] as the murderer if he was braver."
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution both provide that the accused in a
criminal trial has the right to confront the witnesses against him. U.S. Const.
amend. VI; N.J. Const. art. I, ¶ 10. "[T]he Confrontation Clause of the United
States Constitution bars the 'admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.'" State v. Slaughter, 219 N.J.
104, 116-17 (2014) (quoting Crawford v. Washington, 541 U.S. 36, 53-54
(2004)). Generally, the Confrontation Clause forbids the admission of testimony
that is directly or indirectly derived from a non-testifying witness and
incriminates a defendant. Branch, 182 N.J. at 350.
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Statements "are testimonial when the circumstances objectively indicate
that there is no . . . ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006). In
contrast, "[s]tatements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency." Ibid. Whether a statement is testimonial under the primary
purpose test is "a fact-specific analysis . . . based on the circumstances
presented." State v. Bass, 224 N.J. 285, 317 n.9 (2016).
"[A]dmission of an out-of-court testimonial statement violates the
Confrontation Clause unless the witness is unavailable and the defendant had an
opportunity to cross-examine that witness." State v. Wilson, 442 N.J. Super.
224, 239 (App. Div. 2015); see also U.S. Const. amend. VI; Crawford, 541 U.S.
at 59. In State ex rel. J.A., 195 N.J. 324, 348 (2008) our Supreme Court
explained that "a declarant's narrative to a law enforcement officer about a
crime, which once completed has ended any 'imminent danger' to the declarant
or some other identifiable person, is testimonial." (quoting Davis, 547 U.S. at
827).
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Our Supreme Court has further emphasized that "[w]hen the logical
implication to be drawn from the testimony leads the jury to believe that a non -
testifying witness has given the police evidence of the accused's guilt, the
testimony should be disallowed as hearsay." State v. Bankston, 63 N.J. 263, 271
(1973). In Bankston, 63 N.J. at 268-69, our Supreme Court concluded that both
the Confrontation Clause and the hearsay rule are violated when, at trial, a police
officer conveys, directly or by inference, information from a non-testifying
declarant to incriminate the defendant in the crime charged.
To protect the defendant from the confrontation problems associated with
such evidence, restrictions have been placed on Bankston-type testimony. An
officer may explain the reason he approached a suspect or went to a crime scene
by stating he did so "upon information received," Banskton, 63 N.J. at 268, but
the officer may not become more specific by repeating details of the crime, or
implying he received evidence of the defendant's guilt, as related by a non -
testifying witness. State v. Luna, 193 N.J. 202, 216–17 (2007).
The Court affirmed and reinforced the Bankston rule in Branch, 182 N.J.
at 342. In Branch, an officer testified he had included the defendant's
photograph in an array "because he had developed defendant as a suspect 'based
on information received.'" Ibid. The Court determined the officer's testimony
was inadmissible hearsay, engendering a jury that "was left to speculate that the
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42
detective had superior knowledge through hearsay information implicating
defendant in the crime." Id. at 348. The Court noted "[b]ecause the [informant]
. . . was not called as a witness, the jury never learned the basis of [the
informant's] knowledge regarding defendant's guilt, whether he was a credible
source, or whether he had a peculiar interest in the case." Ibid. The Court
emphasized that the introduction of this "gratuitous hearsay testimony violated
defendant's federal and state rights to confrontation" and concluded that the
violation was sufficiently prejudicial, warranting reversal as plain error. Id. at
354.
We also evaluate defendant's arguments against State v. Irving, 114 N.J.
427, 447-448 (1989), where our Supreme Court held admission of a detective's
hearsay testimony did not amount to plain error, as there was substantial credible
evidence elsewhere in the record to support the guilty verdict. There, the
defendant argued that the detective's testimony produced an "inescapable
inference . . . that an unidentified informant, who was not . . . subject to cross -
examination, had told [the detective] that [defendant] had committed the crime."
Id. at 445. The Court rejected this argument, however, where, among other
evidence, two eyewitnesses identified the defendant both in and out of court. Id.
at 448.
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As noted, defendant did not object to Detective McNally's testimony, and
we are satisfied that the court did not commit error by admitting his statements
regarding Green. We note that Green's statements, as recounted by Detective
McNally, did not place defendant at the scene. Detective McNally explained
that he reached out to Green after speaking with witnesses at the scene, because
he believed Green had been a witness to the murder. He testified that Green told
him he was "hanging with [Melvin]" near the murder that night, and as noted,
heard a gunshot and found Melvin lying on the ground.
In addition, as Green was largely uncooperative with detectives, he never
provided police with a formal statement and insisted he did not witness the
murder. Detective McNally repeatedly testified that Green told him, "he was
not there when it happened [and] he did not witness it." Unlike in Irving, there
was no inference to be drawn that a non-testifying witness provided police with
evidence of defendant's guilt.
As such, we are satisfied Green's statements that he was with Melvin that
evening, only to soon after found him dead on the sidewalk, did not directly
implicate defendant, unlike the non-testifying witnesses in Bankston and
Branch. Although Green's statements are likely testimonial in nature, as they
were given to detectives in order to "establish or prove past events potentially
relevant to later criminal prosecution," Davis, 547 U.S. at 822, and Detective
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McNally's statements hearsay, we are not persuaded that the allowance of this
testimony amounted to plain error.
B. Improper Lay Opinion
Defendant next argues that Detective McNally offered improper lay
opinion testimony. He contends Detective McNally's testimony, as detailed
supra at pp. 12-14, invaded the province of the jury, contrary to N.J.R.E. 701
and State v. McLean, 205 N.J. 438, 453 (2011), when he attributed both Keil's
initial lack of candor and Green's failure to testify to their fear. Defendant also
maintains that these statements improperly "vouched" for Keil's testimony,
contrary to State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004).
Defendant argues that because Keil omitted certain information in her original
statement to police, and only later came forward with information about
defendant's involvement, Detective McNally's testimony "encouraged the jury
to credit her most recent testimony because she purportedly overcame her
'legitimate' fear." As to Green, because he did not come forward, defendant
maintains that Detective McNally's testimony inferred that Green had not
overcome his fear and therefore possessed incriminating information.
Defendant also contends Detective McNally's testimony violated N.J.R.E.
701 when he relied upon his experience to opine on Lopez's deleted Facebook
messages and the lack of forensic evidence in the case, thereby implicitly
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"ask[ing] the jury to consider him an expert," and offering testimony on the
ultimate issue of defendant's guilt. Finally, defendant asserts these errors were
compounded when the State referenced Detective McNally's testimony in
summation, contrary to Walden, 370 N.J. Super. at 560.
N.J.R.E. 701, which governs lay witness opinion testimony, states: "[i]f a
witness is not testifying as an expert, the witness' testimony in the form of
opinions or inferences may be admitted if it: (a) is rationally based on the
witness' perception; and (b) will assist in understanding the witness' testimony
or determining a fact in issue." "The purpose of N.J.R.E. 701 is to ensure that
lay opinion is based on an adequate foundation." Neno v. Clinton, 167 N.J. 573,
585 (2001); see also Singh, 245 N.J. at 14. Lay opinion testimony can be
admitted "[only] if it falls within the narrow bounds of testimony that is based
on the perception of the witness and that will assist the jury in performing its
function." McLean, 205 N.J. at 456.
Opinion testimony may not "intrude on the province of the jury by
offering, in the guise of opinions, views on the meaning of facts that the jury is
fully able to sort out . . . [or] express a view on the ultimate question of guilt or
innocence." McLean, 205 N.J. at 453. "[L]ay opinion testimony is limited to
what was directly perceived by the witness and may not rest on otherwise
inadmissible hearsay." Id. at 460. To be admissible, lay opinion testimony must
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be founded on a witness's perception which must "rest[] on the acquisition of
knowledge through use of one's sense of touch, taste, sight, smell or hearing."
Id. at 457.
Accordingly, lay opinion testimony is impermissible when it constitutes
"an expression of a belief in defendant's guilt" and "an opinion on matters that
were not beyond the understanding of the jury." Id. at 463. Stated differently,
lay opinion testimony is impermissible if is "not within [the witness's] direct ken
. . . and as to which the jury is as competent as [the witness] to form a
conclusion." Id. at 459 (alterations in original) (quoting Brindley Fireman's Ins.
Co., 35 N.J. Super. 1, 8 (App. Div. 1955)). For police officers, lay opinions may
not "convey information about what the officer 'believed,' 'thought' or
'suspected.'" Id. at 460.
In addition, lay witnesses, including police officers, may not "improperly
bolster or vouch for an eyewitness's credibility and thus invade the jury's
province." State v. Lazo, 209 N.J. 9, 24 (2012). While a prosecutor may argue
that a witness is credible, the prosecutor may not "personally vouch for the
witness or refer to matters outside the record as support for the witness's
credibility." Walden, 370 N.J. Super. at 560.
Police testimony concerning a defendant's guilt or veracity is particul arly
prejudicial because "[a] jury may be inclined to accord special respect to such a
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witness," and where that witness's testimony goes "to the heart of the case,"
deference by the jury could lead it to "ascribe[] almost determinative
significance to [the officer's] opinion." State v. Tung, 460 N.J. Super. 75, 102
(App. Div. 2019) (quoting Neno, 167 N.J. at 586-87); see also State v. Frisby,
174 N.J. 583, 595 (2002) (finding the admission of certain police testimony to
be plain error, noting "[t]he effect of the police testimony essentially vouching
for" the version of events contrary to a defendant's version "cannot be
overstated").
Expert opinion testimony is permitted if the subject matter is beyond the
ken of the average juror. State v. Kelly, 97 N.J. 178, 208 (1994). If the matter
is within the jury's competence, expert testimony is unnecessary. State v.
Sowell, 213 N.J. 89, 99 (2013).
In McLean, 205 N.J. at 460-63, our Supreme Court explained certain
restrictions upon the ability of prosecutors to present lay opinion testimony from
police officers who have not been proffered by the State as expert witnesses.
The Court specifically considered testimony given by a police officer who had
participated in an investigation that led to the defendant's prosecution for
possession of controlled dangerous substances (CDS) and possession of CDS
with intent to distribute. Id. at 443-47. The officer testified that he had observed
the defendant engage in two transactions, in both instances some unidentified
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item had been exchanged for money. Id. at 443-44. Over defense counsel's
objection, the prosecutor asked the officer, "[s]o based on your own experience
sir, and your own training, what did you believe happened at that time?" Id. at
446. The trial court permitted the officer, who had not been qualified as an
expert witness, to testify that, based on his experience, he believed he had
observed a drug transaction. Ibid.The Court held in McLean that the police officer's statement was
inadmissible as a lay opinion because it was an expression of a belief in the
defendant's guilt and it offered an opinion on matters that were not beyond th e
understanding of the jury. Id. at 463; see also N.J.R.E. 701. The Court ruled
that an officer testifying as a lay or fact witness may not testify about his belief
that a transaction he observed was a narcotics sale. Id. at 461. "To permit the
lay opinion rule to operate in that fashion would be to authorize every arresting
officer to opine on guilt in every case." Ibid.The McLean Court further concluded in that the references to the lay
witness police officer's "training and experience, coupled with the request that
he testify about his belief as to what had happened, impermissibly asked for an
expert opinion from a witness who had not been qualified to give one." Id. at
462. As noted, only if a police officer is properly qualified as an expert witness
may he or she give testimony explaining the implications of observed behaviors
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that may be beyond the understanding of an average juror. Id. at 460-61; see
also N.J.R.E. 702.
As noted, we consider defendant's arguments under the plain error
standard, as he did not object to the testimony at trial. The application of this
standard of review is illustrated by our Supreme Court's recent opinion in Singh,
245 N.J. at 14. In Singh, a surveillance video captured an armed robbery, and
the arresting officer referred to defendant as "the defendant" twice while
narrating the surveillance footage at trial. 245 N.J. at 5-7. The court also
permitted the officer to testify that the sneakers worn by the perpetrator in the
surveillance video were similar to the sneakers worn by the defendant when the
officer encountered him shortly after the robbery. Id. at 8.
The Court's majority in Singh reasoned that the passing references to
"defendant" in the video were erroneous but were not capable of producing an
unjust result. Id. at 17. Other circumstantial evidence, such as the defendant's
sweaty "physical state" and his proximity to other evidence when found close
by the crime scene, rendered the opinion references "not so prejudicial as to
meet the plain error standard." Id. at 18.
The Court also concluded that the officer's testimony about the similarity
of the sneakers met the requirements of N.J.R.E. 701(a). Id. at 19. Although
the officer had not witnessed the crime, he had firsthand knowledge of the
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sneakers in the immediate aftermath of the crime because he saw them as he was
arresting the defendant. Id. at 19-20.
As the Singh majority noted, New Jersey courts have allowed officers to
testify as lay witnesses based upon their personal experience and observations
in various circumstances, even "where expert testimony might otherwise be
deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989). In LaBrutto,
a police officer was permitted to testify to his own observations with respect to
the point of impact in a car accident, even though he was "not qualified as an
accident-reconstruction expert." Id. at 200. The Court reasoned that the officer's
opinion was rationally based on his observations at the scene, and helpful to the
jury. Ibid.We begin with Detective McNally's testimony about the statements given
by Keil and Green. Detective McNally attributed Green's lack of cooperation to
a "fear of retaliation" and a desire not "to be involved." Discussing Keil's
multiple statements, he stated that it is "not uncommon" for witnesses to be less
than forthcoming in the first statements they give to police, suggesting that
witnesses may be "afraid," or "accidentally leave [information] out." Defendant
maintains that this testimony is "exactly the harm contemplated by McLean."
We disagree.
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Detective McNally never testified that he "believed" Keil or Green were
afraid of defendant. Rather, Detective McNally made these comments in the
context of explaining his investigatory process. When asked why Keil gave
multiple statements to the police, Detective McNally noted that one of the
prosecutors retired during the course of the investigation, and the State brought
Keil in for her to meet the new prosecutor and make another formal stat ement.
At that time, Detective McNally testified that she provided "additional
information" that she had not reported in previous statements. Detective
McNally contextualized that comment, as evidenced by the following colloquy:
[PROSECUTOR]: Detective, in the course of your
experience investigating over a hundred homicides as
an assisting detective and [twenty] to [twenty-five] as a
lead, is it uncommon for witnesses to provide
information in bits and pieces?
[DETECTIVE MCNALLY]: No, it's not uncommon.
[PROSECUTOR]: In your experience, why does that
happen?
[DETECTIVE MCNALLY]: It's multiple reasons.
Sometimes they intentionally forget -- or they
intentionally leave it out. Sometimes they accidentally
leave it out. When you're interviewing these witnesses,
you're coming at them with a lot of things, they have a
lot of information, a lot that they just don't get, and
sometimes they leave things out. It's not intentional.
Other times, people are afraid. They don't want to be
involved, and they figure if they don’t give all the
details that they’re not going to be needed down the
road.
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These statements, while not an account of Detective McNally's direct
observations, do not "bolster" or "vouch" for the testimony of Keil. Lazo, 209
N.J. at 24. The detective stated that there are "multiple reasons" that witnesses
may be less than forthcoming, fear being only one of them. Detective McNally
at no point testified with respect to what he "believed, thought or suspected"
regarding defendant's guilt and never specifically opined on any one witness's
actions. McLean, 205 N.J. at 460. Further, Keil herself testified at trial that she
left out details in her original statement because she was "scared," and the jury
had the opportunity to evaluate her credibility.
We also reject defendant's argument that Detective McNally's testimony
regarding defendant's Facebook messages constituted improper lay opinion
testimony. These statements did not express a view on defendant's guilt, nor did
he offer this testimony under the "guise" of an opinion. See McLean, 205 N.J.
at 453. Rather, Detective McNally again contextualized the State's Facebook
exhibits based upon his own personal observations and what he "directly
perceived" during the course of his investigation. He never stated that he
"suspected" defendant deleted the messages because of their incriminating
nature, but reasoned that the messages had been deleted once he compared
defendant's account to Keil's, and saw messages between the two that did not
exist on defendant's account.
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Similarly, we find no merit to defendant's contention that the court
improperly admitted Detective McNally's testimony regarding his experience
with homicide investigations in violation of N.J.R.E. 701 and 702. Defendant
argues the Detective's testimony that, in his experience, law enforcement rarely
uncovers DNA or fingerprint evidence in homicide investigations
inappropriately opined on the strength of the evidence. On cross-examination,
Detective McNally testified:
[DEFENSE COUNSEL]: Detective McNally, there
was no fingerprint evidence that came back linking
[defendant] to this murder, correct?
[DETECTIVE MCNALLY]: That's correct.
[DEFENSE COUNSEL]: And there was no DNA
evidence linking my client to this murder, correct?
[DETECTIVE MCNALLY]: That's correct.
[DEFENSE COUNSEL]: No surveillance footage
linking my client to this murder, correct?
[DETECTIVE MCNALLY]: Correct.
[DEFENSE COUNSEL]: You never tested [defendant]
for any gunshot residue, correct?
[DETECTIVE MCNALLY]: Correct.
[DEFENSE COUNSEL]: No gun was found in this
case linking [defendant] to the murder, correct?
[DETECTIVE MCNALLY]: That's correct.
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[DEFENSE COUNSEL]: You didn't test the .25 caliber
shell casing for fingerprints, did you?
[DETECTIVE MCNALLY]: I personally did not, no.
[DEFENSE COUNSEL]: When was the .25 caliber
shell casing tested for fingerprints in this case?
[DETECTIVE MCNALLY]: It could have been before
it was submitted to the lab.
[DEFENSE COUNSEL]: Do you know if it was tested?
[DETECTIVE MCNALLY]: I do not.
In response, on re-direct, the prosecutor asked the following:
[PROSECUTOR]: Detective, you were asked a series
of questions about forensic evidence in this particular
case specifically linking the defendant to the homicide.
Do you recall those questions?
[DETECTIVE MCNALLY]: I do.
[PROSECUTOR]: In the course of your over 100
homicide investigations, what percentage involved
fingerprint evidence directly linking a defendant to a
homicide?
[DETECTIVE MCNALLY]: It’s very rare.
[PROSECUTOR]: In your experience, how many times
has DNA evidence directly linked a defendant to a
homicide?
[DETECTIVE MCNALLY]: That’s also very rare.
[PROSECUTOR]: You and other detectives in this
case, did you look for video surveillance of this
homicide?
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[DETECTIVE MCNALLY]: Yes.
[PROSECUTOR]: And was any located?
[DETECTIVE MCNALLY]: None was located?
[PROSECUTOR]: Is that uncommon?
[DETECTIVE MCNALLY]: Not at all.
[PROSECUTOR]: You were asked about whether or
not the defendant was tested for gunshot residue. Do
you recall that?
[DETECTIVE MCNALLY]: I do.
[PROSECUTOR]: How long after the homicide was
the defendant arrested?
[DETECTIVE MCNALLY]: I believe two to three
days.
[PROSECUTOR]: Have you ever had a case that
involved gunshot residue?
[DETECTIVE MCNALLY]: I personally have not, no.
[PROSECUTOR]: You were also asked whether or not
the .25 caliber shell casing recovered from the right of
Shamere Melvin's body was tested for fingerprints. Do
you recall that question?
[DETECTIVE MCNALLY]: I do.
[PROSECUTOR]: In your experience, have you ever
had a case that involved a fingerprint being recovered
from a spent shell casing?
[DETECTIVE MCNALLY]: Yes.
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[PROSECUTOR]: How many times?
[DETECTIVE MCNALLY]: Rare.
Defendant did not object to the re-direct testimony, and we are not
convinced that the court committed error by not precluding that testimony. Most
significantly, the initial testimony on this issue was elicited on cross -
examination, and Detective McNally's responses on re-direct were proper in
light of the issues raised by defense counsel. Further, the statements are
rationally based on Detective McNally's perception and his first-hand
experience in this homicide investigation and others, and were offered to assist
the jury in understanding his testimony on cross-examination, assumedly
elicited to highlight the lack of physical evidence connecting defendant to the
murder. The statements with respect to the frequency of DNA and fingerprint
evidence merely clarified this point for the jury.
Finally, we find no merit to the contention that the prosecutor's comments
in summation compounded any of the above alleged errors. The prosecutor told
the jury, "[d]on't forget about what Detective McNally testified about his
experience with witness cooperation," and discussed Green's refusal to provide
a formal statement to the police. The prosecutor further noted that any fear Keil,
Simmons, and Green may have felt about testifying was "consistent with
Detective McNally's experience in homicide investigations." Finally, the
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prosecutor stated that Keil's and Simmons' testimony was "exactly what they've
been saying since the moments after the murder," but the "only inconsistencies
in those original statements were [Simmons] not saying that she saw the
defendant pull the trigger and [Keil] not saying that she saw the defendant with
a gun and that she saw him taking the marijuana."
In Walden, 370 N.J. Super. at 560, we held that a prosecutor's comments
describing a witness as a "good, solid, decent, courageous [and] honest kid" and
"the type of kid we hope our sons will grow up to be" were not harmless and
remanded for a new trial. Those comments, the court reasoned, could be
"understood to be an expression of the prosecutor's personal belief in [the
witness]'s truthfulness." Walden, 370 N.J. Super. at 561. Accordingly, the court
concluded that counsel improperly implied "that the jury [could] accept the
witness's credibility based upon information outside the trial evidence." Ibid.The same is not true of the prosecutor's comments here. The prosecutor
did not express any personal belief in the witnesses' truthfulness or comment on
the witnesses' characters. Rather, the prosecutor argued that their testimony
remained consistent throughout the investigation, and properly argued that they
were credible without referring to information outside the record as support. See
State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div. 1997) ("A prosecutor
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may argue that a witness is credible but may not personally vouch for the
credibility of a State witness.").
In any event, even if we were to accept that the court erred in admitting
any portion of Detective McNally's testimony, defendant failed to establish that
any such error was "clearly capable of producing an unjust result." R. 2:10-2.
As noted, the State presented a strong case establishing defendant's guilt based
upon Simmons' and Keil's testimony that defendant shot Melvin and placed him
at the scene with a gun. In sum, we are not persuaded that any alleged error
impacted the verdict. See State v. Weaver, 219 N.J. 131, 154 (2014); see also
State v. Derry, ___ N.J. ___ (2022) (slip op. at 31-32) (concluding a detective's
testimony explaining the meaning of slang terms was erroneously admitted as
lay, rather than expert, opinion, but holding any error was harmless given the
"overwhelming evidence against defendants").
VI.
In his fifth point, defendant maintains that even if each of the errors he
argues in his first four points individually do not require reversal, the cumulative
effect of the mistakes requires reversal, as they resulted in the denial of his due
process rights and a fair trial. We are not persuaded.
"[N]o matter how abhorrent the offense charged nor how seemingly
evident the guilt, an accused is entitled to a fair trial," but this "does not mean
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that the incidental legal errors, which creep into the trial but do not prejudice
the rights of the accused or make the proceedings unfair, may be invoked to
upset an otherwise valid conviction." State v. Orecchio, 16 N.J. 125, 129 (1954).
Moreover, it is well-settled that "[a] defendant is entitled to a fair trial but not a
perfect one." State v. Marshall, 123 N.J. 1, 170 (1991) (quoting Lutwak v.
United States, 344 U.S. 604, 619 (1953)).
When multiple errors are alleged, "the predicate for relief for cumulative
error must be that the probable effect of the cumulative error was to render the
underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007).
However, even where a defendant alleges multiple errors, "the theory of
cumulative error will still not apply where no error was prejudicial and the trial
was fair." State v. Weaver, 219 N.J. 131, 155 (2014).
Given our conclusion that any trial errors were harmless, there can be no
cumulative errors that could have denied defendant a fair trial. None of
defendant's contentions, viewed individually or collectively, casts doubt upon
the verdict. State v. Reddish, 181 N.J. 552, 615 (2004). We are satisfied that
defendant received a fair trial, particularly given the various opportunities he
had to object to the errors he alleges for the first time on appeal. Marshall, 123
N.J. at 170.
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VII.
In his final point, defendant contends his sentence was unconstitutionally
excessive and violated the principles established by the United States Supreme
Court in Miller, 567 U.S. at 471, and our Supreme Court in Zuber, 227 N.J. at
477-78. He argues that we should remand the matter for resentencing as the
court inaccurately weighed the Miller factors, particularly by crediting
defendant's father's testimony that he did not abuse defendant, despite a defense
expert report which reached the opposite conclusion. Having considered
defendant's arguments, we affirm his sentence, substantially for the reasons
detailed in the sentencing court's oral decision. We add these additional
comments by way of amplification.
We apply a deferential standard when reviewing a trial court's sentencing
decision. State v. Grate, 220 N.J. 317, 337 (2015); State v. Fuentes, 217 N.J.
57, 70 (2014). We must affirm a sentence unless: 1) the court failed to follow
the sentencing guidelines; 2) its findings of aggravating and mitigating factors
were not based on competent and credible evidence in the record; or 3) "the
[court's] application of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the judicial conscience." Fuentes,
217 N.J. at 70 (second alteration in original) (quoting State v. Roth, 95 N.J. 334,
364-65 (1984)). Moreover, the deferential standard of review only applies "if
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the trial judge follows the Code and the basic precepts that channel sentencing
discretion." State v. Case, 220 N.J. 49, 65 (2014).
In Miller, 567 U.S. at 479, the United States Supreme Court held under
the Eighth Amendment, except in rare instances of incorrigibility, a juvenile
generally cannot be sentenced to life without the possibility of parole. The Court
identified five reasons why life without parole, or its functional equivalent,
unconstitutionally failed to differentiate between adults and juveniles, factors
subsequently described as "the Miller factors." Zuber, 227 N.J. at 445. 6
Our Supreme Court addressed these youthful offenders sentencing
concerns in Zuber, 227 N.J. 422. It held that "Miller's command that a
sentencing judge 'take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison'
applies with equal strength to a sentence that is the practical equivalent of life
without parole." Id. at 446-47 (quoting Miller, 567 U.S. at 480) (internal
citations omitted). The Court explained that the "proper focus" under the Eighth
Amendment is "the amount of real time a juvenile will spend in jail and not the
formal label attached to his sentence." Id. at 429.
6
As described in Zuber, those factors are a "defendant's 'immaturity,
impetuosity, and failure to appreciate risks and consequences'; 'family and home
environment'; family and peer pressures; 'inability to deal with police officers
or prosecutors' or his own attorney; and 'the possibility of rehabilitation.'" Id.
at 453 (quoting Miller, 567 U.S. at 477-78).
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In a consolidated opinion, the Court in Zuber reviewed the sentences of
two offenders who were juveniles when they committed their crimes: Zuber,
who was convicted of two sexual assaults and sentenced to an aggregate of 110
years with fifty-five years of parole ineligibility, and Comer, who was convicted
of four armed robberies and sentenced to an aggregate of seventy-five years with
just over sixty-eight years of parole ineligibility. 227 N.J. at 430-33. The Court
deemed these sentences to be the functional equivalent of life without parole.
Id. at 448. It declared that when a sentencing court imposes "a lengthy, aggregate
sentence that amounts to life without parole" it must consider the factors set
forth in Miller. Id. at 450.
We initially address an issue not addressed by the sentencing court or the
parties – whether defendant's sentence is the equivalent of life without parole .
As noted, our Supreme Court recognized protections under the Federal and State
Constitutions that apply to juveniles sentenced to "'life without parole' or
multiple term-of-years sentences that, in all likelihood, will keep [them] in jail
for the rest of [their lives]." Zuber, 227 N.J. at 446. Defendant's sentence does
not appear to fall into the same category that requires consideration of the Miller
factors. Unlike the defendants in Zuber, who faced a minimum off fifty-five
years, in one case, and more than sixty-eight years in the other, see id. at 428,
448, defendant, in contrast was sentenced to a maximum of a forty-two-year
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prison term. He will be first eligible for parole when he is fifty-one years old;
at most, he will be released when he is fifty-eight years old. As defendant was
in any event facing a considerable minimum custodial sentence, we discern from
the court's comments at the sentencing proceeding that it believed consideration
of the Miller factors was appropriate and necessary in light of the "real time,"
see Zuber at 227 N.J. at 429, defendant will spend in jail. It is the court's
findings on those factors that defendant challenges and which we accordingly
address.
First, we reject any challenge to the court's findings regarding the first
Miller factor and specifically any argument that the court failed to consider
defendant's age and his "underdeveloped intellectual capacity." On this point,
the court fully considered defendant's age by acknowledging that he was but
sixteen years old when he killed Melvin, and noted that the "hallmarks" of a
teenager that age are "immaturity, acting on impulse" and an inability to
"appreciate risk and consequences." The court also discussed defendant's
developmental issues with his mother prior to sentencing and expressly noted
the opinions of defendant's neuropsychological expert, Dr. Megan Perrin, Ph.D.,
MPH, as stated in her report in which she concluded defendant "had an
adolescent brain that was not fully developed, that he lacked maturity, [and] that
he lacked understanding of the risks involved . . . ." In light of these challenges,
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and defendant's age and immaturity when he killed Melvin, the court concluded
the first Miller factor weighed in defendant's favor.
The trial court also conscientiously considered the second Miller factor
and noted that it was evident defendant was raised in "somewhat of a
dysfunctional family through no fault of the defendant." Defendant argues that
the court improperly found that his father did not abuse him, contrary to Dr.
Perrin's report. The court made the aforementioned comment only after
considering the testimony of defendant's father, and a letter from a pastor at the
family's church, which explained that defendant and his father were active
church members, and his father a role model for other children. We accordingly
find no merit to defendant's challenge to the court's factual finding on this point
as it was amply supported by the record. In any event, the court determined that
the second factor also weighed in favor of a lesser sentence.
The court, however, weighed the third Miller factor against defendant. In
doing so, the court acknowledged "defendant was placed with other peers who
had anti-social behavior, and if anything, that put pressure on him." The court
noted that defendant's peers "were not positive role models," he was expelled
from the public school system, and had smoked marijuana since the 7th grade.
Nevertheless, the court determined that defendant was not a member of a gang
and did not commit the murder upon pressure from his peers.
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Defendant argues that this conclusion was "ill-founded," as there "was a
peer with [defendant] at the time of the crime, and there was no evidence one
way or the other whether this individual pressured [defendant] or not."
Defendant further maintains that the court conflated gang membership with peer
pressure. Contrary to defendant's contention, the court noted defendant's
participation in the murder, explaining that he "planned the robbery," "carefully
selected his victim," and murdered him without any outside influence. These
findings are also fully supported by the record.
The court also concluded the fourth Miller factor militated against a
reduced sentence. In doing so, the court relied on defendant's undisputed
extensive involvement with the criminal justice system, which included
numerous juvenile delinquencies. The trial court determined, based on his
criminal history, that defendant had an ability to interact with the police and the
prosecutor, along with his attorney.
Finally, the court determined that the fifth Miller factor, defendant's
amenability to rehabilitation, should be weighed in defendant's favor. In doing
so, the court noted that defendant finished high school, had completed anger
management classes since he was incarcerated, and had not engaged in any
physical altercations since he was detained. Based on those facts, the court
concluded defendant was maturing.
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In two footnotes, defendant contends first that his "arguments in the
context of the Miller factors . . . apply with full force to the weighing of the
aggravating and mitigating factors under N.J.S.A. 2C:44-1," and second the
court should have applied new mitigating factor N.J.S.A. 2C:44-1(b)(14)
retroactively as he was under twenty-six at the time of the murder. Raising
substantive issues in footnotes is improper, see Rule 2:6-2(a)(6), and we could
reject defendant's arguments on that procedural ground. We have nevertheless
considered the arguments on the merits and reject them.
The court's consideration of aggravating factors three, six, and nine, and
rejection of all mitigating factors was fully supported by the record and
consistent with the law. Although defendant argued at sentencing for
application of mitigating factors eight and nine, the court applied neither.
Defendant does not specifically challenge the court's rejection of these factors
before us, but we agree with the court that there was no support in the record for
those mitigating factors.
As to mitigating factor eight, N.J.S.A. 2C:44-1(b)(8), that defendant's
conduct was the result of circumstances unlikely to recur, the court noted
defendant's lengthy juvenile record and twelve arrests during the period of
December 2009 to May 2013, resulting in six adjudications. During that time,
defendant violated probation once.
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This record also supports the rejection of mitigating factor nine, N.J.S.A.
2C:44-1(b)(9), the character and attitude of the defendant indicate that he is
unlikely to commit another offense. His delinquent adjudications included two
thefts, burglary, criminal trespass, obtaining or selling controlled dangerous
substances, and aggravated assault on a law enforcement officer. Given this
history, and the escalation of defendant's crimes to murder, we are satisfied that
the court did not err by rejecting application of any mitigating factor. Mitigating
factor fourteen does not apply retroactively, see State v. Lane, ___ N.J. ___, ___
(2022) (slip op. at 16-17), and we note that the court considered defendant's
youth, in any event.
A few final comments. Defendant's sentence will result in his
incarceration for over four decades – an indisputably lengthy term. But, as the
jury determined, he committed a grievous crime when he murdered Melvin in
cold blood for two ounces of marijuana. We are convinced that defendant's
sentence was consistent with our Code of Criminal Justice and imposed only
after the court fully considered the Miller factors. On this point, we note the
State recommended that the court sentence defendant to a fifty-five-year term.
In rejecting the State's recommended sentence, the court specifically stated, "but
for the Miller factors, [it] would [have] sentenced [defendant to] a longer time."
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To the extent we have not specifically addressed any of defendant's
arguments, it is because we have concluded they are of insufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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