State v. Lopez
8 A.3d 256
N.J. Super. Ct. App. Div.2010Background
- Lopez was convicted of unlawful possession of a weapon.
- A second trial for possession of a firearm by a convicted felon was conducted before the same jury, resulting in a conviction on that charge.
- The court sentenced Lopez to three years for weapons possession and a five-year consecutive term on the certain persons conviction.
- In the second trial, Lopez’s right to testify was barred by the judge who believed the right did not apply to the second proceeding.
- The exclusion of Lopez’s testimony in the second trial violated due process, requiring reversal of the certain persons conviction and remand for a new trial, while the weapons possession conviction and its sentence were affirmed.
- The court upheld the admissibility of evidence of prior slaps as bearing on motive for the later gun possession, with proper limiting instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to testify in second trial violated? | Lopez’s waiver in first trial carried over to second trial. | State denied defendant a fundamental right to testify in the second trial. | Second trial is a separate proceeding; denial requires reversal/remand. |
| Whether evidence of prior acts was admissible? | Evidence showed motive for bringing gun to the Quick Chek. | Not necessary for proving possession; potential prejudice. | Admissible under N.J.R.E. 404(b) with proper limiting instructions. |
| Whether waiver of right in first trial affects second trial? | Waiver in first trial should not bind second trial. | Right should carry over due to same case. | Waiver does not carry over; second trial requires independent consideration of rights. |
| Consecutive sentencing/merger considerations? | Certain persons conviction treated independently of weapons possession. | Potential requirement of mandatory consecutive sentence. | No statutory mandate for consecutiveness; no merger with weapons conviction; remand for new trial on certain persons if proceedings occur. |
Key Cases Cited
- State v. Savage, 120 N.J. 594 (1990) (right to testify implicit in state constitution; due process)
- State v. Ragland, 105 N.J. 189 (1986) (two separate trials; need for separate consideration of evidence)
- State v. Wray, 336 N.J. Super. 205 (App.Div. 2001) (second trial requires presumption of innocence; separate trial)
- State v. Boratto, 80 N.J. 506 (1979) (evidence admissible with limiting instructions under 404(b))
- State v. Wright, 155 N.J. Super. 549 (App.Div.1978) (no merger; sentencing considerations for multiple convictions)