State v. Gomez

• Decision Date: 19 February 1991
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Al GOMEZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 209

246 N.J.Super. 209

587 A.2d 272

STATE of New Jersey, Plaintiff-Respondent, v. Al GOMEZ, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 18, 1990.

Decided Feb. 19, 1991.

Wilfredo Caraballo, Public Defender, for defendant-appellant (William E. Norris, designated counsel, Parsippany, of counsel, and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, for plaintiff-respondent (James F. Smith, Asst. Prosecutor, of counsel, and on the brief).

Before Judges PRESSLER, DEIGHAN and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Tried by a jury, defendant was found guilty of murder ( N.J.S.A. 2C:11-3) and possession of a handgun without the requisite permit ( N.J.S.A. 2C:39-5b). The Law Division judge imposed a sentence of life imprisonment on the murder conviction and directed that defendant serve 30 years without parole eligibility. A concurrent five-year sentence with a parole ineligibility term of two and one-half years was imposed on the weapons conviction. In addition, defendant was assessed penalties totaling $60 payable to the Violent Crimes Compensation Board.

On appeal, defendant asserts that (1) his custodial statement was involuntary and should not have been admitted in evidence, (2) the trial court erred by admitting inculpatory portions of defendant's statement while excluding his subsequent exculpatory account of the killing, (3) the Law Division judge committed reversible error by admitting photographs of the decedent, (4) the prosecutor exceeded the bounds of fair comment in his summation, (5) the court's instructions on self-defense, imperfect self-defense and the jury's role in determining the truthfulness of defendant's statement constituted plain error, and (6) the sentences imposed were manifestly excessive and unduly punitive. Although we will comment briefly on each of these contentions, the only argument warranting extended discussion is the claim that the trial court erred by excluding exculpatory portions of defendant's custodial statement. Defendant's remaining arguments are clearly without merit. R. 2:11-3(e)(2).

I.

On April 26, 1987, Demous Fuetler's lifeless body was found in a rooming house in Atlantic City. An autopsy revealed that Fuetler had been shot through the head, the bullet piercing his brain, between three to seven days before the discovery of his body. Further investigation disclosed that defendant had rented the room in which the body was found and that Fuetler had occupied a room on another floor.

Defendant was nowhere to be found. The police learned that defendant had been employed by the Viking Yacht Company in New Gretna, approximately 20 miles north of Atlantic City. Interviews with the payroll clerk and the assistant comptroller of that company revealed that defendant had appeared on the morning after the homicide and had requested his pay, claiming that a relative had been injured in Baltimore and that he needed to visit her. Defendant appeared to be inebriated. Although the work week had not concluded, defendant was given a check for $150. While that amount did not cover his pay for the previous day, defendant never attempted to secure the balance due him.

The record discloses that defendant immediately cashed the check at the First National Bank of Tom's River which is located in New Gretna, approximately one-quarter of a mile from the Viking Yacht plant. Defendant then left New Jersey. He was later arrested in Dakota County, Nebraska, on unrelated charges.

Upon being notified of defendant's apprehension, members of the Atlantic County Prosecutor's office proceeded to Nebraska. On December 3, 1987, Investigator Leslie Folkes and Sergeant Raymond Bollis appeared at the Dakota City jail for the purpose of confirming that defendant was the individual named in the warrant and to make arrangements for his return to New Jersey. The two arrived at the Sheriff's Department at 2:15 p.m. and, after speaking to Nebraska authorities, were led into an interview room where defendant was seated unrestrained behind a desk.

Once in the room, Folkes and Bollis identified themselves, informed defendant that they were investigating a homicide and apprised him of his constitutional rights. At 3:20 p.m., defendant signed a waiver form confirming his understanding of his Fifth and Sixth Amendment rights. Defendant was then asked whether he was Al Gomez and whether he had ever resided in New Jersey. Defendant responded that he was Al Gomez, but that he had never visited or lived in New Jersey. Following these preliminary questions, the officers progressively disclosed to defendant the items they had discovered in the course of their investigation. Several hours later, defendant admitted that he had visited Atlantic City for "a couple" of weeks and had lived under the boardwalk. We note that prior to this concession, defendant had not been questioned in any way about the homicide or the circumstances leading up to it.

When defendant admitted that he once had been in New Jersey, however, Folkes told him that he was charged with the murder of Fuetler. The questions then shifted to the subject of the homicide. Defendant's subsequent statement in which he claimed that he had killed Fuetler accidentally and in self-defense was tape recorded. We need not recount the statement in detail. We merely note that defendant's statement was entirely exculpatory and mirrored his trial testimony which we will describe later in our opinion. At this point it is enough to say that the trial court permitted the State to introduce defendant's original denial of having ever resided in New Jersey, but precluded the defense from admitting defendant's exculpatory account of how the killing occurred.

Thadeus Pugh, an inmate at Annandale Prison, was one of the State's principal witnesses. Pugh recounted several statements allegedly made by defendant while the two were housed together in jail. According to Pugh, defendant confided that he and Fuetler had planned to rob the small bank where he cashed his checks. Gomez indicated that only several women worked at this "little bank" in New Gretna and that he and Fuetler believed the robbery could be committed with ease. However, an argument developed at defendant's residence and Fuetler threatened to tell the police about the planned robbery. Pugh testified that defendant told him he then "pulled a gun" and shot Fuetler in the head. Gomez indicated that after the killing he "grabbed" as many of his belongings as he could and left his apartment. Defendant told Pugh that he initially "was going to tell the police" that an individual broke into his room and that he used the gun for self-defense. Defendant said that he changed his mind, because the lock on the door of his room was not broken and the police would not believe his story. Gomez also told Pugh that he had considered telling the police he and Fuetler were playing Russian Roulette, but decided against that story because he had used an automatic weapon. Defendant indicated that he had fled to Nebraska where he had disposed of the gun. It is undisputed that as a result of his testimony, Pugh's sentence was reduced.

Defendant testified that he and Fuetler had been drinking earlier in the evening. Fuetler left, but later burst into defendant's apartment, demanding that Gomez engage in sexual acts with him. Defendant allegedly grabbed a gun from under his pillow and fired a warning shot. Fuetler refused to leave, suddenly running toward defendant, striking his shoulder, and causing the firearm to discharge.

Based upon the foregoing evidence, the jury rejected the defenses of accident, self-defense and imperfect self-defense and found defendant guilty of murder. This appeal followed.

II.

Defendant argues that the trial court erred by allowing admission of his initial declaration, denying his residence in New Jersey, but excluding his later exculpatory statement. It is argued that defendant's tape recorded account of the killing constituted a declaration against penal interest under Evid.R. 63(10) because he admitted that he had shot the victim. Alternatively, defendant claims that the exculpatory portion of the statement was in some way related to his initial refusal to acknowledge that he had resided in New Jersey and should have been admitted under the doctrine of testimonial completeness. We disagree with both contentions.

We reject defendant's argument that his tape recorded statement in which he claimed that he fired the gun accidentally in the course of defending himself against the victim's sexual attack constituted a declaration against interest under Evid.R. 63(10). The rule permits admission of a statement that, when made, "so far subjected [the declarant] to ... criminal liability ... that a reasonable person would not have made [it] unless he believed it to be true...." Evid.R. 63(10). We recognize that the hearsay exception does not require each discrete part of a statement must imply involvement in a crime. See State v. Abrams, 140 N.J.Super. 232, 235, 356 A.2d 26 (App.Div.1976), aff'd 72 N.J. 342, 370 A.2d 852 (1977). See also State v. Gaines, 147 N.J.Super. 84, 370 A.2d 856 (App.Div.1975), aff'd sub nom. 72 N.J. 346, 370 A.2d 854 (1977). Cf. State v. Davis, 50 N.J. 16, 28-29, 231 A.2d 793 (1967), cert. den. 389 U.S. 1054, 88 S.Ct. 805, 19 L.Ed.2d 852 (1968). The critical test is whether the statement so far exposes the declarant to criminal liability that "but for [its] truth [it] would not have been made." State v. Abrams, 72 N.J. at 342, 370 A.2d 852 (Clifford, J., concurring and dissenting). This evidentiary principle rests on the common sense notion that ordinarily one would not utter a statement implicating complicity in a crime unless it was true. The converse rule is that a self-serving statement made after the commission of a crime provides too much opportunity for contrivance to warrant admission. ...