State v. GomezState v. Gomez
Tried by a jury, defendant was found guilty of murder (
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)
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.
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.
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.
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
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
Applying these principles, the statement here manifestly cannot be regarded as being against the penal interests of defendant. Far from being “contrary to his interests,” the statement plainly exculpated defendant from any criminal liability for Fuetler‘s killing. Although defendant admitted that he possessed a handgun within his apartment, such conduct does not violate
Examination of the statement in its entirety reveals a clear design on the part of defendant to exonerate himself from criminal exposure after being apprised that he was charged with the commission of a crime. Although our research has
More troublesome is defendant‘s claim that his exculpatory statement should have been admitted under the doctrine of testimonial completeness. The rule provides that where a part of a conversation between a witness and another person (here the defendant) has been elicited, the other party may elicit the remaining portions which are relevant to the part which has been adduced. State v. Wade, 99 N.J. Super. 550, 556, 240 A.2d 689 (App.Div. 1968); State v. Caccavale, 58 N.J. Super. 560, 566, 157 A.2d 21 (App.Div. 1959); 7 Wigmore, Evidence (Chadbourn rev. 1978), § 2113 at 653. The object of the rule is to permit the trier of the facts to have laid before it all that was said at the same time upon the same subject matter. State v. Wade, 99 N.J. Super. at 556-557, 240 A.2d 689.
The question is more complex and the problems compounded in the context of a declaration which might have both exculpatory and inculpatory portions. The question broached in State v. Abrams was whether the exculpatory portion of a declaration was required to be admitted after the inculpatory part had been introduced. There, the codefendant confessed that she had sold cocaine to an undercover agent, but said that the defendant was
In his dissenting opinion, Judge Conford (temporarily assigned) offered a somewhat similar mode of analysis. Id. at 343, 370 A.2d 852. He reasoned that resolution of the issue hinged upon whether the declaration was to be “considered as constituting one statement or two or more statements.” Id. at 344, 370 A.2d 852. If the latter, the disparate portions of the statement not directly incriminating the declarant must be excised because they were not contrary to the declarant‘s penal interest when made. Ibid. If, however, a correct appraisal of the entire document were that it was essentially a single, integral statement “such that the trustworthiness of the portion admitting liability rubbed off on the portion” absolving the defendant of connection with the criminal transaction, “it should be admissible.” Ibid. Like Justice Clifford, Judge Conford suggested that whether the trustworthiness ascribable to the self-inculpatory portion “rubs off” on the portion absolving the defendant was “peculiarly one for the discretionary judgment of the trial judge in the light of all the attendant circumstances.” Id. at 345, 370 A.2d 852.
So posited, the question is easily answered. Defendant‘s statement that he had never been in New Jersey was not admitted as a declaration against penal interest under
Against this analytical backdrop, we conclude that defendant‘s later exculpatory tape recorded statement was properly excluded and not admissible under the doctrine of testimonial completeness. The subsequent statement was in no sense explanatory of defendant‘s prior declaration that he had never lived in New Jersey. Indeed, the two statements are mutually inconsistent, exculpatory versions. In a similar vein, admission of the later statement was not necessary to place defendant‘s prior declaration in its proper context. Nor was its admission required to avoid misleading the jury or to prevent confusion. Clearly, the two statements, made hours apart and relating to entirely different subjects, were not integrated so that introduction of one required admission of the other.
Although not directly raised, we address the related question whether defendant‘s tape recorded exculpatory statement was so related in time and subject matter to his concession that he had in fact resided in New Jersey as to compel its admission under the doctrine of testimonial completeness. As we noted previously, despite defendant‘s initial denial, approximately three hours later into the interview when faced with irrefutable evidence compiled by the investigators, defendant admitted that he had been in New Jersey, and had, for some time, lived under the boardwalk in Atlantic City. Following this admission, the questioning abruptly turned to the subject of the homicide. Also at this juncture, the investigators began to tape the interview. In her testimony before the jury, Folkes related defendant‘s original denial and his later admission. The trial court barred defense counsel from introducing defendant‘s subsequent tape recorded statement made after being apprised that he was charged with murder. Defendant‘s admission that he had lived in Atlantic City, under the circumstances of having
We are convinced that it did not. In reaching this conclusion, we believe that the criteria we identified for determining testimonial completeness are equally applicable in deciding whether the trustworthiness ascribed to a declaration against penal interest is transferable to subsequent exculpatory accounts. These criteria are useful in determining whether incriminatory and exculpatory statements constitute essentially a single, integral account, such that the trustworthiness of the portion admitting liability “rubs off” on the portion absolving the defendant of connection with the criminal transaction. State v. Abrams, 72 N.J. at 344, 370 A.2d 852.
In that context, we are convinced that none of the concerns we identified previously is implicated here. Defendant‘s tape recorded statement was not in any sense explanatory of his admission that he had been in Atlantic City. It was not needed to place the admitted portion of the statement in context. No misleading impression would have been corrected by introduction of defendant‘s exculpatory statement. The tape recorded statement was not required to insure a fair and impartial understanding of the facts. Instead, defendant‘s description of the circumstances surrounding the killing related to an entirely different and unconnected subject. See State v. Wade, 99 N.J. Super. at 557; see also State v. Marchand, 31 N.J. 223, 229-230, 156 A.2d 245 (1959); State v. Cohen, 97 N.J.L. 5, 9, 116 A. 724 (Sup.Ct. 1922). Under these circumstances, it cannot fairly be said that there was some reasonable nexus between the admitted portions of defendant‘s statement and his subsequent tape recorded exculpatory account of the killing.
III.
We briefly comment on defendant‘s remaining arguments. We find no merit in the contention that defendant‘s statement was involuntary. The trial court‘s findings in that respect are based on sufficient, credible evidence present in the record. See State v. Micheliche, 220 N.J. Super. 532, 537, 533 A.2d 41 (App.Div. 1987).
We discern no palpable abuse of discretion in the trial court‘s decision, admitting three of the four photographs of the decedent offered by the prosecution. See State v. Moore, 113 N.J. 239, 296, 550 A.2d 117 (1988). The probative value of the photographs outweighed their potential for undue prejudice.
The prosecutor did not exceed the bounds of fair comment in his summation. Viewed in its proper context, the prosecutor was merely responding to defense counsel‘s attack upon the integrity of the prosecution. State v. Doyle, 77 N.J. Super. 328, 341, 186 A.2d 499 (App.Div. 1962), aff‘d 42 N.J. 334, 350, 200 A.2d 606 (1964). The prosecutor noted the implausibility of the defense counsel‘s contention that Pugh had been told what to say by members of the prosecutor‘s office. We perceive no prosecutorial dereliction. In any event, the judge‘s
Our thorough review of the trial court‘s instructions on self-defense and imperfect self-defense discloses no error, far less plain error. Because defendant‘s initial statement denying residence in New Jersey was not offered as proof of the truth of its contents, an instruction directing the jury to determine the credibility of the declaration under State v. Hampton, 61 N.J. 250, 271-272, 294 A.2d 23 (1972) would have been inappropriate. In any event, defense counsel neither submitted a request to charge nor interposed a timely objection. Plain error was not committed.
Additionally, we find no sound basis to disturb the sentence imposed. In imposing the sentence, the trial court weighed the appropriate aggravating and mitigating factors.
Accordingly, the judgment of convictions is affirmed.