State v. Lopez

• Docket Number: DOCKET NO. A-2694-18
• Decision Date: 15 July 2022
• Citation: 473 N.J.Super. 222,279 A.3d 481
• Parties: 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.
• Court: New Jersey Superior Court — Appellate Division

473 N.J.Super. 222

279 A.3d 481

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.

DOCKET NO. A-2694-18

Superior Court of New Jersey, Appellate Division.

Argued February 15, 2022

Decided July 15, 2022

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).

Before Judges Sabatino, Mayer and Natali.

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.

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.

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 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 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, 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]self."

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 "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 Miranda ¹ 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, defend...