STATE OF NEW JERSEY v. ARTURO G. MONTENEGRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5921-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARTURO G. MONTENEGRO a/k/a

ARTURO MONTENEGRO-GARCIA,

Defendant-Appellant.

________________________________________________________________

January 24, 2011

 

Argued November 3, 2010 - Decided

 

Before Judges Carchman, Messano and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-04-0510.

 

Alan Dexter Bowman argued the cause for appellant.

 

Michael A. Nardelli, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Nardelli, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Following an unsuccessful motion to suppress and a jury trial, defendant Arturo Montenegro was found guilty of third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b. After appropriate mergers, defendant was sentenced to an aggregate term of six years incarceration with five years of parole ineligibility. Defendant appeals, and we affirm.

These are the facts adduced at the trial. On November 13, 2006, at approximately 3:30 p.m., Marcus Bragg (Bragg or victim) was driving his vehicle in the parking lot of the Capital Shopping Plaza in Ewing. Bragg was transecting across the parking lot toward the exit, when a blue car, driven by defendant, headed toward him at a high rate of speed. Bragg stopped and beeped his horn. The other vehicle stopped, and Bragg threw his hands in the air and said, "what the fuck." Defendant also threw his hands in the air and said something. Both cars had their windows shut.

Defendant then pulled his car forward past Bragg, causing Bragg to think that the incident was over. Instead, defendant stopped his car in front of Bragg's and blocked his path to the exit. Defendant exited his car and walked toward Bragg. He stood next to Bragg's window, Bragg rolled down his window, and defendant said, "This is my fucking road." Bragg responded "Get the fuck out of here, Poppi." Defendant then went back to his car, retrieved a .38 caliber handgun from the driver's side door and showed the gun to Bragg. He then placed the gun back in the car, shut the car door and began to drive north on Olden Avenue.

Bragg remained in his car and called the police. He explained the incident to the dispatcher and described defendant and the make, model and license plate number of defendant's car. While on the phone with the dispatcher, he followed defendant down Olden Avenue and kept the dispatcher informed of defendant's location. Eventually, defendant pulled into the parking lot of a Wachovia bank, and Bragg told the dispatcher of defendant s location.

Sergeant William Bennett and Officer William Wolverton, both of the Ewing Township Police Department, arrived at the scene. They approached defendant and identified themselves. They told him they were investigating an incident of road rage and asked him if he knew anything about it. Defendant responded in English that he had no idea what they were talking about. He also said he did not know anything about a gun and told them that he drove the blue vehicle that was parked in the lot.

Bennett and Wolverton were already talking to defendant when Officer Carmen Giovacchini arrived. When he entered the lot, Giovacchini observed that the car had the same license plate number that he heard over a radio transmission from the Ewing Township Police Dispatcher Paul Gollinge. Giovacchini exited his vehicle and looked into defendant's car. He observed the butt of a handgun sticking out of the driver's side door storage compartment. He then yelled to Officers Bennett and Wolverton that there was a gun in the car. At this point, Officers Bennett and Wolverton placed defendant under arrest. Bragg, who was still at the scene, positively identified defendant as the individual who drew the gun on him in the parking lot.

After defendant was placed under arrest, the officers encountered Dora Gonzalez, the mother of defendant's children. She was also the registered owner of the vehicle defendant was driving. She was meeting defendant at the bank to obtain money from him. Gonzalez did not speak fluent English, so Officer Irving Bruno, a bi-lingual officer who was also at the scene, spoke to her. The officers then sought to retrieve the weapon from the vehicle. Officer Bruno explained the consent search form to Gonzalez in Spanish and obtained her consent and signature on the form. Pursuant to the consent search, police searched the car and retrieved the weapon from the driver's side door storage compartment.

Another officer at the scene, Joseph A. Paglione advised defendant of his Miranda1 rights, handcuffed him, placed him in the rear of the police car and transported him to headquarters. At headquarters, defendant was again advised of his Miranda rights. The form stated that, "No promises, benefits, rewards or threats have been made to me. No pressure or coercion of any kind has been used against me. Understanding my rights as stated above, I'm now willing to discuss the offenses under this investigation." Defendant then voluntarily signed the form.

According to Paglione, defendant spoke to him with a Spanish accent, but Paglione believed defendant understood his rights and "seemed to be understanding exactly what was going on, exactly where he was, and exactly what [Paglione s] intentions were." Defendant responded to all of Paglione s questions in English. Defendant then told Paglione that the gun was his cousin's, and he was stupid for having it.

Officer Wolverton also interviewed defendant at headquarters.2 He relied on the executed Miranda form as proof that appellant had been apprised of, and understood his rights. He did not repeat the rights. Wolverton asked defendant what had happened earlier in the day. Defendant responded that the gun was given to him by his cousin who had returned to Guatemala, and it was a stupid thing to have. As we previously noted, following a jury trial, defendant was found guilty of the charged offenses.

On appeal, defendant raises the following issues:

POINT I

 

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II

 

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE DEFENSE OF SELF-DEFENSE AS IT APPLIES TO A POSSESSORY OFFENSE (Not raised below).

 

POINT III

 

THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW APPELLANT TO ADMIT AN EXCULPATORY POST-WARNING STATEMENT UTTERED TO PAGLIONE.

 

POINT IV

 

THE STATE DID NOT DEMONSTRATE THAT THE CONSENT TO SEARCH THE VEHICLE WAS VOLUNTARY.

 

We address the issues seriatim recognizing that in his first argument addressing ineffective assistance of counsel, defendant embeds an argument that the trial judge erred in determining that his Miranda rights were not violated.

Defendant argues that when Bennett and Wolverton were speaking to defendant in the parking lot, before he was arrested, there was a detention, and defendant should have been advised of his Miranda rights at that time. The argument follows that the officers utilized a "question first [], warn later" technique. Defendant contends that this approach renders defendant s post-warning statements inadmissible. Additionally, he claims that the police were obligated to provide defendant with a second Miranda warning between the questions by Paglione and Wolverton at the station.

Finally, relying on State v. Mejia, 141 N.J. 475 (1995), defendant claims his primary language is Spanish, and questions asked at the scene and the post-arrest waiver should have been in Spanish. Even if he understood the English warnings, says defendant, "it cannot be gainsaid that he would have comprehended the prudence of remaining silent."

Miranda warnings are intended to safeguard the right against self-incrimination guaranteed by the Fifth Amendment of the United States Constitution. U.S. Const. amend. V; Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719. This right against self-incrimination is incorporated in New Jersey law, as N.J.S.A. 2A:84A-10 and N.J.R.E. 503. See also Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 503 (2010) ("Although there is no counterpart in the New Jersey Constitution to the 5th Amendment to the U.S. Constitution, State v. Burris, 145 N.J. 509, 518 (1996), the privilege against self-incrimination was rooted in New Jersey's common law jurisprudence from its beginnings as a State").

Miranda requires that a person subject to custodial interrogation be adequately and effectively informed of certain rights. State v. Nyhammer, 197 N.J. 383, 400, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). These rights, which must be read prior to interrogation, include the right to remain silent, the right to an attorney and the right to have an attorney appointed if the suspect is unable to afford one. The suspect must also be told that he or she can exercise these rights at any time during the interrogation, even if the suspect initially chose to waive them. Ibid. (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726). There is no requirement that a defendant be "re-Mirandized" before each questioning. "[B]arring intervening events, '[o]nce a defendant has been apprised of his constitutional rights, no repetition of these rights is required.'" Nyhammer, supra, 197 N.J. at 401 (quoting State v. Melvin, 65 N.J. 1, 14 (1974)).

At a Miranda hearing pursuant to N.J.R.E. 104(c), the prosecution bears the burden of proving beyond a reasonable doubt that a defendant's waiver of his or her Miranda rights was made knowingly, voluntarily and intelligently. The judge must examine the nature of the interrogation and the characteristics of defendant. Withrow v. Williams, 507 U.S. 680, 689, 113 S. Ct. 1745, 1751, 123 L. Ed. 2d 407, 417 (1993); State v. Knight, 183 N.J. 449, 462 (2005). Relevant factors the judge should consider in determining whether the defendant's statement was voluntary and intelligent are: "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment and mental exhaustion were involved." Knight, supra, 183 N.J. at 462-63.

Here, a Miranda hearing was held during the trial addressing the voluntariness of defendant s statement to Paglione and Wolverton that he received the gun from his cousin and was stupid for having it.

Miranda rights are triggered by a custodial interrogation. Custody is not and cannot be confined to physical lock-ups at police headquarters. "Custody may occur in a suspect's home or a public place." State v. Coburn, 221 N.J. Super. 586, 595 (App. Div. 1987) certif. denied, 110 N.J. 300 (1988). Although custody is not determined by the location of the police interrogation, we may consider the place of the questioning as a relevant factor when deciding whether a suspect was in custody. Coburn, supra, 221 N.J. Super. at 595-96.

In general, custody arises only after the police conduct constitutes the functional equivalent of a formal arrest based on an objective evaluation of the totality of circumstances. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). The Supreme Court adopted the "objective reasonable man test" in assessing whether a suspect is in custody at the time of questioning. State v. O Neal, 190 N.J. 601, 615-16 (2007). We will consider the totality of circumstances, including the officer's articulated intent, the time and place of the interrogation, the length of the interrogation, the nature of the questions, the conduct of the police, the status of the interrogator, the status of the suspect, and other such factors. State v. Milledge, 386 N.J. Super 233, 244 (App. Div.), certif. denied, 188 N.J. 355 (2006).

In this case, the trial judge did not make an express finding as to whether the questioning in the parking lot was a custodial interrogation because defendant did not raise the issue below.

As previously noted, to trigger Miranda rights, there must be a custodial interrogation. Assessing the totality of the circumstances and applying the factors set forth in Milledge, we conclude that there was no custodial interrogation when Bennett and Wolverton first asked defendant whether he knew anything about a road rage incident. First, although the location of the questioning is not dispositive, this questioning occurred in an open public parking lot and lasted only a "few minutes." At one point, defendant asked if could leave, and the officers said he could. We conclude that this was not a custodial investigation warranting administration of Miranda warnings.

Defendant s argument that police were obligated to administer a second Miranda warning before he made his statement to Wolverton is also without merit. The trial judge explained:

This man was not in custody for a long period of time. I'm of the opinion, and so I hold, that he need not have been Mirandized again. . . . Detective Wolverton said he saw the sheet that had just been executed that very afternoon, I would have to assume within the hour, based on the timing of everything that we have here, that he had, in fact, been recently Mirandized and that he had signed a waiver and that he saw it and used it as being a document that permitted him to, let's say, exclude Mirandizing him again. There was no clear manifestation of a desire by the defendant to remain silent. He made his statement. He said what he had to say. . . . Therefore, all of the evidence that I find that's worthy of belief here is that Arturo Montenegro on the afternoon of his arrest was Mirandized, and he made a statement to two different officers regarding his possessory interest in that gun, where he got it, and the fact that he said he felt stupid because he had it.

The trial judge evaluated the totality of the circumstances and explained the substantial evidence in the record that contributed to these findings. Defendant was only in custody for a short amount of time. He was "Mirandized" once at the station and signed a waiver. The trial judge properly concluded that defendant did not need to be "re-Mirandized" during his custody and admitted the statements.

Finally, as to the necessity of the warnings being administered in Spanish, the trial judge examined the testimony concerning defendant's language ability and concluded that:

You know, I've listened to the testimony, and I've had the opportunity to hear about the several documents that were relative to these two statements and the question of their admissibility. . . . I have to believe that [defendant] does understand the language adequately and was able to understand and answer the questions. Whether or not he understands constitutional law is not the issue, but does he understand the simple language that's given to everyone [when] they come to the police and are being about to be interrogated. . . . There was no clear manifestation of a desire by the defendant to remain silent. He made his statement. He said what he had to say. I look at the totality of the circumstances also in terms of voluntariness, the characteristics of the defendant. . . . I know he was able to speak to several people with an intelligent version of the language.

 

The trial judge did not err in finding that it was not necessary for the police to give defendant warnings in Spanish. In Mejia, the Court instructed the Attorney General to develop appropriate bilingual Miranda warnings. However, the facts in this case differ from those in Mejia. In Mejia, the officer asked defendant if he understood English, and defendant responded, "very little." Mejia, supra, 141 N.J. at 501. Then after the officer read Mejia his Miranda rights, Mejia again indicated that he did not understand. Ibid.

Here, there was ample evidence that defendant did understand English. Unlike Mejia, the record here reveals that even though defendant spoke with an accent, he understood English and responded to Paglione's questions in English. Wolverton indicated that defendant spoke English to him. Defendant spoke English to the victim during their altercation in the parking lot. Prior to trial, the trial judge asked defendant if he needed an interpreter, and defendant replied, in English, that he spoke English and would not need an interpreter. The trial court concluded that defendant understood English.

If there is substantial credible evidence on the record to support a trial judge's decision to admit statements, we are bound by that decision. State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993). If the trial judge's findings of fact are supported by substantial credible evidence in the record, we will defer to the judge's decision. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226-27 (2010). We will reverse only if the decision is clearly mistaken and justice demands reversal, as it is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We are satisfied that the judge's findings admitting defendant's statements were supported by the credible record and see no basis for our intervention.

Our conclusion that defendant's statements were properly admissible as well as administered consistent with Miranda and in English, a language that defendant understood, obviates the necessity to address the issue of ineffective assistance of counsel based on a failure to secure a Miranda hearing.

Even if we were to consider the issue, we conclude that defendant could not satisfy the second prong of the two-part test necessary to establish ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Strickland test incorporates two elements:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[State v. Fritz, 105 N.J. 42, 52 (1987) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

 

In interpreting Strickland, the New Jersey Supreme Court labeled the first prong as "the performance prong." Strickland sets forth no specific test for the "performance prong." Fritz, supra, 105 N.J. at 52. But, the Court explained that there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed.2d 696-97). To prove prejudice, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 52 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

In this case, defendant has failed to establish any basis for suggesting that the result would have been different. We find no basis on which to conclude that counsel was deficient or ineffective.

Defendant next argues that the judge erred by failing to instruct the jury as to self-defense as it applies to a possessory offense. As this issue was not raised below, we must consider this argument under a plain error standard.

Pursuant to R. 1:7-2, defendant is required to challenge instructions at the time of trial. "Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by R. 1:7-2." State v. Adams, 194 N.J. 186, 206-07 (2008). "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003) (citing State v. Macon, 57 N.J. 325, 333 (1971)).

We will reverse only if we find that the lack of such an instruction resulted in plain error, or "error capable of producing an unjust result." Adams, supra, 194 N.J. at 207 (citing R. 2:10-2). See also State v. Martin, 119 N.J. 2, 15 (1990). Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached . . . ." State v. Melvin, 65 N.J. 1, 18-19 (1974).

Defendant argues that Bragg's reckless operation of his vehicle evoked defendant's road rage because Bragg beeped his horn and made threatening hand gestures toward defendant. He claims that if he actually exhibited a firearm, such conduct must be viewed in light of Bragg's "verbally threatening and cursing [defendant] in a circumstance where Bragg was at fault for any traffic difficulty." Defendant further asserts that defendant feared Bragg intended to assault him, so he was entitled to have the jury instructed as to self-defense as it relates to weapons possession offenses. Defendant argues that "a properly instructed jury clearly would have found that the weapon was possessed and brandished, if at all, for self-defense as opposed to unlawfully or for an unlawful purpose."

The State counters that nowhere in this record is there evidence that defendant believed such a response was necessary because the victim did not get out of his car, and defendant approached the victim rather than leave the parking lot.

Generally, a trial judge must sua sponte instruct the jury as to any defense for which there is a factual basis in the evidence, particularly the defense of self-protection. State v. Walker, 203 N.J. 73, 89 (2010). See also State v. O'Carroll, 385 N.J. Super. 211 (App. Div. 2006). However, the Supreme Court has held that it is not plain error for a judge to decline to sua sponte instruct the jury on self-defense if such charge is inconsistent with defendant's trial strategy. State v. Perry, 124 N.J. 128, 162-63 (1991). In Perry, the Court explained that tactical decisions may dictate the failure to request a certain charge and trial courts should be careful not to interfere with such strategic determinations. Ibid. Relying on its decision in State v. Choice, 98 N.J. 295 (1985), the Court explained that "although tactical decisions to forego such lesser-included-offense charges do not minimize the public's interest in the appropriate charge, a trial court nonetheless should be sensitive to the potential that such charges might prejudice a defendant's case . . . ." Perry, supra, 124 N.J. at 163.

Furthermore, in State v. Vasquez, we held that "[t]he trial court's failure to charge self-defense sua sponte did not amount to plain error. Defense counsel chose a strategy which the trial court appropriately decided not to interfere with. Any charge on self-defense would have prejudiced defendant and increased the likelihood of the murder conviction." State v. Vasquez, 265 N.J. Super. 528, 550 (App. Div. 1993), certif. denied, 134 N.J. 480 (1993). See also State v. R.T., 411 N.J. Super. 35, 52 (App. Div. 2009) (observing that when it would prejudice defendant due to a conflicting stratagem, it is not error to refrain from issuing a jury charge sua sponte.)

Here, there was no factual basis on which to base a charge of self-defense; there was no evidence in the record to suggest that defendant believed he had to display a firearm to protect himself from the victim. To the contrary, defendant approached victim's car twice, and on one occasion, he was holding a gun. The victim never exited the car or made physical threats. There is no evidence to suggest that victim was a threat to defendant or defendant thought he was in danger of imminent bodily harm.

Critically, such a charge would have been inconsistent with the defense at trial. Defendant claimed that he did not know the gun was in the car and "at no time brandished it." Defendant's witness, Dora Gonzalez, testified consistent with this defense. There was no error regarding the absence of a self-defense charge.

Defendant next argues that the judge erred in failing to admit an exculpatory post-warning statement uttered to Paglione. Defendant allegedly told Paglione that he "never showed anyone the gun," but Paglione did not testify as to this statement. Although hearsay, defendant attempted to introduce this statement, arguing that it was admissible under the doctrine of testimonial completeness. The trial judge excluded the evidence because the statement was "exculpatory, not inculpatory, not against the interest," and hearsay.

The State argues that the trial judge did not abuse his discretion in declining to admit the exculpatory statement because the inculpatory and exculpatory statements were not a single statement. Rather, they were two separate statements made at different times and do not qualify under the doctrine of testimonial completeness.

N.J.R.E. 106 provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously." The completeness doctrine allows the reading of a second writing or statement where "it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding." State v. Lozada, 257 N.J. Super. 260, 270 (App. Div.) (quotation omitted), certif. denied, 130 N.J. 595 (1992).

Where a part of a conversation between a witness and another person (here defendant) has been elicited, the other party may elicit the remaining portions that are relevant to the part that has been adduced. State v. Wade, 99 N.J. Super. 550, 556 (App. Div. 1968); State v. Caccavale, 58 N.J. Super. 560, 566 (App. Div. 1959). The object of the rule is to permit the trier of the facts to have presented to it all that was said at the same time upon the same subject matter. Wade, supra, 99 N.J.Super. at 556-57. The primary question is whether the two declarations are "essentially a single, integral statement." State v. DeRoxtro, 327 N.J. Super. 212, 222 (App. Div. 2000).

In DeRoxtro, we concluded that two statements to the same witness, one coming after the other, were still distinct and severable statements. We found one of the statements, wherein defendant admitted to possessing a weapon, was reliable against defendant's penal interest but concluded that the other exculpatory aspects of the statement were "self-serving and likely a product of contrivance on the part of [defendant]." Ibid.

Defendant relies on State v. Gomez, 246 N.J. Super. 209 (App. Div. 1991). There, defendant first testified that he had never visited or lived in New Jersey where the crime occurred. However, later in the same questioning session, defendant admitted that he killed the victim, claiming it was an accident and in self-defense. The trial court admitted defendant's initial declaration denying his residence in New Jersey, but denied the exculpatory statement that the killing was an accident and in self defense. Id. at 215.

On appeal, the defendant in Gomez argued that the trial court should have admitted the exculpatory statement under the doctrine of testimonial completeness. However, we explained that defendant's statement that he had never been in New Jersey was "clearly admissible as proof of his consciousness of guilt." Id. at 219. But, the statement was actually intended to be exculpatory. The issue is "whether the subsequent contradictory account of the killing should have been admitted as well." Ibid. We concluded that the analytical framework suggested by Justice Clifford (concurring and dissenting) and Judge Conford (dissenting) in State v. Abrams, 72 N.J. 342 (1977) was appropriate. Ibid. We explained that the question is whether the "trustworthiness ascribable to the portion of defendant's statement that was admitted, i.e. his denial of ever having lived in New Jersey, is transferable to the portion in which he exonerated himself from criminal liability." Ibid.

We concluded that defendant's statement that he had never lived in New Jersey was not reliable or trustworthy. It was not admitted as a declaration against penal interest. It was admitted as an admission and to show that defendant lied to police officers in an attempt to escape liability. Because the initial statement was neither reliable nor trustworthy, there was no reason to admit the later exculpatory statement. Ibid.

In DeRoxtro, supra, 327 N.J. Super. 212, a witness testified before the grand jury that co-defendant called her from jail. The witness testified that she asked the co-defendant two questions. The first was how he had obtained the weapon. The co-defendant replied that he had taken them from defendant's dresser. The second question was why did he take the weapon. To this he responded that he was scared that another individual was going to harm someone. Id. at 221.

The co-defendant argued that his first statement was admissible as a statement against penal interest, and the second statement was also admissible because it constituted "part of the first statement." Ibid.

We explained that there are two theories under which the admission of a hearsay statement against defendant's penal interest may justify the admission of another statement that is not a declaration against interest. The first is that it could be found that the trustworthiness of the statement "rubbed off" on the second statement, which would allow the second statement to "tag along" with the first statement. Id. at 222. The second theory is that of "completeness." Under this theory a statement would be admitted for the purpose of conveying the "full and complete meaning of the first statement." Ibid.

We found that neither concept applied in DeRoxtro. Citing Gomez, we explained that under the first theory, the statements must be "essentially a single, integral statement." Gomez, supra, 246 N.J. Super. at 218. However, in DeRoxtro we found that the statements, though they were answers to consecutive questions in a conversation, were not a single statement, but rather were distinct and severable. DeRoxtro, supra, 327 N.J. Super. at 223. We explained that the second statement was for co-defendant's benefit. It had none of the indicia of trustworthiness that the first statement had. Ibid.

We also did not admit the statement under the theory of completeness, and explained that under Gomez, there are four bases on which an otherwise inadmissible statement could be accepted into evidence in order to provide "completeness" for another, admissible statement. These are: (1) to explain the initial, admissible statement; (2) to provide context for the admissible statement; (3) to avoid any misleading of the trier of fact; or (4) to insure a fair and impartial understanding" of the initial statement. Ibid. None of these reasons applied in DeRoxtro.

Here, defendant has no basis for relief under either of these theories. Defendant first told Paglione and Wolverton that he was stupid for having the gun. Then he later stated that he did not show anyone the gun. Defendant asserts that under Gomez, the trustworthiness of his first inculpatory statement should "rub off" onto his second inculpatory statement. In both Gomez and DeRoxtro, we explained the statements must be "singular and integral." Gomez, supra, 246 N.J. Super. at 218; DeRoxtro, supra, 327 N.J. Super. at 222. And in both cases, we concluded that statements which were made in response to separate questions within the same questioning sessions were separate and distinct. The same is true here. We do not know precisely how far apart these statements were from each other. The State asserts they were made during separate conversations to separate individuals. Defendant suggests the statements were made one right after another when defendant was questioned by Officer Paglione. Even accepting defendant's assertions, the timing is not the dispositive determinant.

The second statement did not serve to explain the first statement. It did not provide a context for the admissible statement. It did not prevent the misleading of the trier of fact, and it did not insure a fair and impartial understanding of the initial statement. DeRoxtro, supra, 327 N.J. at 223.

Our standard of review informs our ultimate determination here. A judge's evidentiary ruling is reviewed pursuant to the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). We grant substantial deference to the evidentiary rulings of trial judges on review, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and the decision of the trial judge must stand unless it is shown that the trial court's "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). "[A] trial judge is afforded 'considerable latitude regarding the admission of evidence,' and is to be reversed only if the court abused its discretion." State v. Nelson, 173 N.J. 417, 470 (2002) (citation omitted).

The determination of whether the exculpatory portion of a statement should be permitted to "tag along" with the inculpatory part, under the doctrine of continuing trustworthiness or for reasons of completeness is "peculiarly one for the discretionary judgment of the trial judge in the light of all the attendant circumstances." State v. Abrams, supra, 72 N.J. at 345.

The trial judge did not abuse his discretion in concluding that the statement was inadmissible. His conclusion that it was inadmissible is supported by the record, and we find no basis for our intervention.

Next, defendant argues that Gonzalez did not give the police voluntary consent to search her vehicle. Defendant claims that Gonzalez was handcuffed at the scene and her hands were placed behind her back and she was "terrified of this unwarranted police action." Defendant also asserts that no effort was made to read the consent form to her, and she was coerced to sign the form. The State counters by arguing that the factual determination that she consented is supported by the record.

When preceded by valid consent, a warrantless search of property is permissible under the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2044, 36 L. Ed. 2d 854, 858 (1973); State v. Johnson, 68 N.J. 349, 353-54 (1975). Consent must be voluntary and the consenting party must understand his or her right to refuse. Ibid. Consent to a warrantless search not otherwise supported by probable cause or other clear exceptions to the warrant requirement must be shown to be unequivocal, voluntary, knowing, and intelligent. State v. Sugar, 100 N.J. 214, 233-35 (1985).

Moreover, under the New Jersey Constitution, a consent to search is valid only if the person giving consent has knowledge of his or her right to refuse. Johnson, supra, 68 N.J. 349, 353-54 (1975).

To meet its burden, the State is required to prove voluntariness by "clear and positive testimony." State v. King, 44 N.J. 346, 352 (1965). "Voluntariness is a question of fact to be determined from all the circumstances . . . ." Schneckloth, supra, 412 U.S. at 248-49, 93 S. Ct. at 2059, 36 L. Ed. 2d at 875. Consent contemplates the exercise of choice, "and choice entails the opportunity to evaluate the available options." State v. Johnson, 68 N.J. at 355 (Schreiber, J., concurring). The right of self-decision is effectively safeguarded if the person giving consent knows that the search may be refused. Ibid. This knowledge may be imputed from information furnished by the police. Ibid.

Here, the trial judge explained:

Now Wolverton said this is what he did; he read it to her and that Bruno translated it for her and she, as a cooperative person, signed it. I have no trouble believing that she was nervous, she was in the presence of police . . . Now if she testifies that I don't recall being asked about the search, I don't remember being asked to search my car, and then the next thing she says is I feel I had no choice, I had to say to myself, well if she had no choice and she didn't recall, what is she talking about? She is inconsistent . . . . She said she never read the form . . . said it was never explained to her. . . . Well, I happen to find that to be not credible testimony. I think the police went through a lot of, shall we say, procedures here, whether or not they had to or not, but they went through it. And Officer Wolverton struck me as being a credible witness who, frankly, said that he read the consent, that they would not go in that car until they got it. They were going to wait until they obtained that, even though one officer said that he had seen the hand gun . . . The totality of the circumstances . . . does not give rise to a showing, in my opinion, that her free will to refuse was so overborne that she could not give a free, deliberate . . . choice.

 

The trial court did, however, find Officer Wolverton to be a credible witness, and in light of all of the circumstances, adopted his recitation of the facts.

We may only overturn this determination if it is "clearly mistaken." The trial court made a well reasoned credibility determination and explained that reasoning on the record. There was no error here.

Defendant argues that the jury instruction on unlawful purpose was inadequate because it failed to instruct as to the appropriate mens rea. Defendant asserts that the trial judge failed to instruct the jury that it had to find that the purpose of defendant's possession of the gun was unlawful and "was to cause a particular result against person or property." Defendant also asserts that possession for an unlawful purpose is an inchoate offense and brandishing a gun does not, in itself, establish a purpose to use it unlawfully.

The elements of the offense require the State to establish that the purpose of the possession was to use the firearm against another's property or person, and defendant intended to use it in a manner that was unlawful. State v. Banko, 182 N.J. 44, 57 (2004). A purpose to use the weapon unlawfully must be proved particularly and it cannot be inferred from proof that the weapon was unlicensed. See State v. Dixon, 114 N.J. 111, 113 (1989). In addition, particular kinds of unlawful acts must be suggested by the evidence as the purpose of possession, and the jury must be asked to find that purpose. State v. Mello, 297 N.J. Super. 452, 466 (App. Div. 1997). Because jurors are not qualified to decide, without guidance, which purposes for possessing a gun are lawful and which are not, the jury instruction must include an identification of such unlawful purposes as may be suggested by the evidence plus an instruction that the jury may not convict based on its own notion of the unlawfulness of some other, undescribed purpose. State v. Brims, 168 N.J. 297, 306-07 (2001). A court's reference to the State's argument that defendant brandished a firearm to terrorize, threaten or coerce is sufficient. Mello, supra, 297 N.J. Super. at 466.

Despite defendant's contentions, the trial court instructed the jury in exactly the manner prescribed above. He said:

The third element the state must prove beyond a reasonable doubt for Count 2 is that the defendant's purpose in possessing the firearm was to use it against the person of another. . . . Purpose is another one of those mental states, conditions of the mind; it cannot be seen, like awareness and knowing. It can only be determined by inferences from conduct, words or acts. In determining the defendant's purpose in possessing the firearm, you may consider that a person acts purposely with respect to the nature of his conduct or a result of his conduct, if it is the person's conscious object to engage in conduct of that nature, or to cause such a result. That is, a person acts purposely if he means to act in a certain way or to cause a certain result. A person acts purposely with respect to attendant circumstances, if the person is aware of the existence of such circumstances or believes or hopes that they exist . . . . In this case, the state contends that the defendant's unlawful purpose in possessing the firearm was to, I'll call it, intimidate or frighten or in some form threaten Marcus Bragg. You may not rely on your own notions of the unlawfulness of some other undescribed purpose of the defendant. Rather, you must consider whether the state has proven the specific unlawful . . . purpose charged . . . may be inferred from all that was said, all that was done, from all of the surrounding circumstances of this case.

The instruction read by the trial judge comports with the requirements of Mello and Brims. The jurors were instructed as to the mental state required. They were instructed that they had to find an unlawful purpose and consider whether the State proved it. They were warned not to rely on their own notions of other unlawful undescribed purposes. There was no plain error in this jury instruction.

Finally, defendant argues that when questioned in the Wachovia parking lot, the victim identified defendant as the other driver who confronted him and brandished the gun. Defendant asserts that the victim testified before the jury that he made an out-of-court identification of defendant during a one-man show up. Defendant further argues that the judge should have charged the jury that the State's burden of proof on the issue of identification is beyond a reasonable doubt and set forth the respective factual contentions relating to witness descriptions and identifications.

Defendant is entitled to a jury instruction on identification whenever the identity of the person committing the crime is an issue in the case. State v. Green, 86 N.J. 281, 292 (1981). A general instruction that the jury should consider the credibility of the witnesses is inadequate. "The defendant [has] a right to expect that the appropriate guidelines would be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness of [the] identification." Ibid. These requirements also apply to out-of-court identifications. State v. Romery, 191 N.J. 59, 75-76 (2007). However, when the State offers corroborating evidence that supports the reliability of the identification, courts are less inclined to find that the lack of an identification instruction had the capacity to bring about an unjust result. State v. Salaam, 225 N.J. Super. 66, 70 (App. Div. 1988) ("The corroborative evidence offered by the State renders the issue of identification far less compelling than it was in Green").

The victim viewed defendant for at least a few minutes during their altercation. The victim then followed defendant and identified him within a half an hour of the incident. Defendant was found with a gun, matching the description of the gun given by the witness, in the car he was driving. The evidence was highly corroborative of the victim s account of the crime and greatly reduced the chance that the conviction was a result of mistaken identity. We find no merit to this argument.

A

ffirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

2 It is unclear from the record when Officer Wolverton conducted this interview. The record suggests, implicitly, that it occurred a short time after Paglione's questioning.