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Description: Trenton, New Jersey criminal defense lawyer represented defendant charged with murder, felony murder and robbery.


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]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

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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 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,

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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.

Outcome: Affirmed

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