NOT FOR PUBLICATION WITHOUT THE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. APPROVED FOR PUBLICATION
AS REDACTED
ALBERTO LOPEZ, a/k/a
July 15, 2022
ALBERTO LOPEZ, III,
ALBERTO A. LOPEZ, APPELLATE DIVISION
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 therefore
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. 231
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In Harvey, 494 U.S. at 349, 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 holdi ng,
and has not since ruled on the issue. People v. Frazier, 478 Mich. 231, 235
(2007).
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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 saw 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.
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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
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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 Sixth
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.
[At the direction of the court, the published version
of this opinion omits the discussion of additional
issues in Parts III through VII. See R. 1:36–3.]
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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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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STATE OF NEW JERSEY v. ALBERTO LOPEZ (15-01-0014, MERCER COUNTY AND STATEWIDE)
Combined Opinion