NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5245-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MELVIN K. LEWIS, III a/k/a MELVIN K. LEWIS,
Defendant-Appellant.
_________________________________
Submitted April 11, 2018 – Decided July 9, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 15- 04-0201.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Tried by a jury, defendant Melvin K. Lewis, III, was convicted
of certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On
March 18, 2016, the trial judge commenced defendant's sentencing
hearing. Defendant requested a three-day delay for medical
reasons. He failed to return on the scheduled date, and thus was
not sentenced until July 15, 2016, when the judge imposed the
minimum five-year without parole term of imprisonment called for
by the statute. Defendant appeals and we affirm.
At trial, Penns Grove Police Department Corporal Joseph
Schultz testified he was dispatched to defendant's home on December
21, 2014, on a call regarding an attempted burglary. Schultz
approached the residence as defendant was walking out onto the
porch. Both men looked down and simultaneously saw a semi-
automatic handgun on the ground in front of the doorway. A
magazine lay alongside.
The officer asked defendant "what's going on, what
happened[,]" and defendant responded that someone had tried to
break into his home. While the officer secured the weapon,
defendant told Schultz he believed the person intended to kill
him.
Defendant explained that when he ignored the sound of the
doorbell, the would-be intruder kicked and banged on the door. He
heard a loud noise, assuming it was a gunshot. The officer saw a
2 A-5245-15T3 small hole in the door consistent with a bullet and, a few minutes
later, found a bullet lying in close proximity to the location of
the handgun.
County Prosecutor's Investigator Jessica Venello responded
immediately to Schultz's call, and defendant and the other adult
present in the home when the incident occurred, defendant's
girlfriend, drove to the police station to be interviewed. Venello
began the taped interview by asking defendant what had happened.
Defendant answered that he had a break-in at another property he
owned, and when he returned home around 7:00 p.m., someone he did
not know knocked and called out his name. Defendant told his
girlfriend to go into the bedroom. Defendant added: "And all of
a sudden, boom, boom, boom. The hole you see in the door is made
by me. By a blank that saved my life. I have the gun at the
house. I shot a .38 revolver blank. That's the hole in the door."
Defendant then heard someone say "oh shit," the sound of something
dropping, and running footsteps. Meanwhile, defendant's
girlfriend called 911. Defendant was reluctant to tell police
"but that blank saved my life. That blank saved my life. Made
them drop their gun." He told the officers that he was not
supposed to be in possession of firearms.
Defendant said he acquired the gun two days earlier because
he heard his life was in danger. He went on to name certain
3 A-5245-15T3 individuals he had confronted because they had been stealing from
him. Defendant suspected they were planning to retaliate by
putting out "a hit." The officers continued to interview defendant
about the break-in at his other property and the alleged contract
on his life. Defendant repeated his description of the shooting
incident, and provided additional details regarding how he learned
about the threat.
When defendant was driven back to his home from the police
station, he was seated in the back of a police car but not
handcuffed. Upon arrival, he pointed out the red bag containing
a black revolver hidden beneath a living room couch. The gun held
three bullets and one empty casing. Later on that evening, the
officers ran a criminal history check and verified that defendant
had been convicted of predicate offenses that barred him from
possession of a firearm.
The State presented essentially the same testimony during the
pretrial motion to suppress evidence. In his October 2, 2015
motion decision, Judge Benjamin C. Telsey described defendant
during the taped interview as cooperative and having given "a very
conversational statement." Defendant volunteered information
regarding the circumstances that had led to the attack, and
volunteered information about the weapon he had obtained two days
earlier. Defendant did not hesitate in explaining his possession
4 A-5245-15T3 of the weapon and suggested he take the officers back to his home
so they could seize it. When defendant was interviewed, he was
not under arrest, handcuffed, or had any reason to believe he was
not free to leave. Obviously, defendant knew he was a person not
to possess because he told the officers——rather than the officers
learning about defendant's record after additional investigation.
Defendant may not have realized he was confessing to a crime
because the bullets were blanks, but other than that, "he knew
exactly what he was doing and what he was showing the police." He
brought the officers into his home while being well "aware that
he could speak up, stop the search, or stop what was happening.
But, that wasn't even his intent at that point. Clearly, his
intent was to cooperate with this investigation." The court
further found that a defendant who volunteers evidence does so at
his own peril. Accordingly, the court denied the motion to
suppress the weapon.
On appeal, defendant raises the following points for our
consideration.
POINT I IT WAS ERROR TO DENY THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
POINT II IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO CHARGE THE JURY ON SELF-DEFENSE. (Not raised below).
5 A-5245-15T3 When reviewing motions to suppress, we uphold "the trial
court's decision so long as [the factual] findings are supported
by sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1,
15 (2009)). This fundamental principle has particular
significance when the findings of the trial court are
"substantially influenced by [the judge's] opportunity to hear and
see the witnesses and to have the 'feel' of the case," even if we
might have reached a different conclusion. State v. Elders, 192
N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). "A trial court's findings should be disturbed only if
they are so clearly mistaken 'that the interest of justice demands
intervention and correction.'" Ibid.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5245-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MELVIN K. LEWIS, III a/k/a MELVIN K. LEWIS,
Defendant-Appellant.
_________________________________
Submitted April 11, 2018 – Decided July 9, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 15- 04-0201.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Tried by a jury, defendant Melvin K. Lewis, III, was convicted
of certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On
March 18, 2016, the trial judge commenced defendant's sentencing
hearing. Defendant requested a three-day delay for medical
reasons. He failed to return on the scheduled date, and thus was
not sentenced until July 15, 2016, when the judge imposed the
minimum five-year without parole term of imprisonment called for
by the statute. Defendant appeals and we affirm.
At trial, Penns Grove Police Department Corporal Joseph
Schultz testified he was dispatched to defendant's home on December
21, 2014, on a call regarding an attempted burglary. Schultz
approached the residence as defendant was walking out onto the
porch. Both men looked down and simultaneously saw a semi-
automatic handgun on the ground in front of the doorway. A
magazine lay alongside.
The officer asked defendant "what's going on, what
happened[,]" and defendant responded that someone had tried to
break into his home. While the officer secured the weapon,
defendant told Schultz he believed the person intended to kill
him.
Defendant explained that when he ignored the sound of the
doorbell, the would-be intruder kicked and banged on the door. He
heard a loud noise, assuming it was a gunshot. The officer saw a
2 A-5245-15T3 small hole in the door consistent with a bullet and, a few minutes
later, found a bullet lying in close proximity to the location of
the handgun.
County Prosecutor's Investigator Jessica Venello responded
immediately to Schultz's call, and defendant and the other adult
present in the home when the incident occurred, defendant's
girlfriend, drove to the police station to be interviewed. Venello
began the taped interview by asking defendant what had happened.
Defendant answered that he had a break-in at another property he
owned, and when he returned home around 7:00 p.m., someone he did
not know knocked and called out his name. Defendant told his
girlfriend to go into the bedroom. Defendant added: "And all of
a sudden, boom, boom, boom. The hole you see in the door is made
by me. By a blank that saved my life. I have the gun at the
house. I shot a .38 revolver blank. That's the hole in the door."
Defendant then heard someone say "oh shit," the sound of something
dropping, and running footsteps. Meanwhile, defendant's
girlfriend called 911. Defendant was reluctant to tell police
"but that blank saved my life. That blank saved my life. Made
them drop their gun." He told the officers that he was not
supposed to be in possession of firearms.
Defendant said he acquired the gun two days earlier because
he heard his life was in danger. He went on to name certain
3 A-5245-15T3 individuals he had confronted because they had been stealing from
him. Defendant suspected they were planning to retaliate by
putting out "a hit." The officers continued to interview defendant
about the break-in at his other property and the alleged contract
on his life. Defendant repeated his description of the shooting
incident, and provided additional details regarding how he learned
about the threat.
When defendant was driven back to his home from the police
station, he was seated in the back of a police car but not
handcuffed. Upon arrival, he pointed out the red bag containing
a black revolver hidden beneath a living room couch. The gun held
three bullets and one empty casing. Later on that evening, the
officers ran a criminal history check and verified that defendant
had been convicted of predicate offenses that barred him from
possession of a firearm.
The State presented essentially the same testimony during the
pretrial motion to suppress evidence. In his October 2, 2015
motion decision, Judge Benjamin C. Telsey described defendant
during the taped interview as cooperative and having given "a very
conversational statement." Defendant volunteered information
regarding the circumstances that had led to the attack, and
volunteered information about the weapon he had obtained two days
earlier. Defendant did not hesitate in explaining his possession
4 A-5245-15T3 of the weapon and suggested he take the officers back to his home
so they could seize it. When defendant was interviewed, he was
not under arrest, handcuffed, or had any reason to believe he was
not free to leave. Obviously, defendant knew he was a person not
to possess because he told the officers——rather than the officers
learning about defendant's record after additional investigation.
Defendant may not have realized he was confessing to a crime
because the bullets were blanks, but other than that, "he knew
exactly what he was doing and what he was showing the police." He
brought the officers into his home while being well "aware that
he could speak up, stop the search, or stop what was happening.
But, that wasn't even his intent at that point. Clearly, his
intent was to cooperate with this investigation." The court
further found that a defendant who volunteers evidence does so at
his own peril. Accordingly, the court denied the motion to
suppress the weapon.
On appeal, defendant raises the following points for our
consideration.
POINT I IT WAS ERROR TO DENY THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
POINT II IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO CHARGE THE JURY ON SELF-DEFENSE. (Not raised below).
5 A-5245-15T3 When reviewing motions to suppress, we uphold "the trial
court's decision so long as [the factual] findings are supported
by sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1,
15 (2009)). This fundamental principle has particular
significance when the findings of the trial court are
"substantially influenced by [the judge's] opportunity to hear and
see the witnesses and to have the 'feel' of the case," even if we
might have reached a different conclusion. State v. Elders, 192
N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). "A trial court's findings should be disturbed only if
they are so clearly mistaken 'that the interest of justice demands
intervention and correction.'" Ibid. (quoting Johnson, 42 N.J.
at 162).
Under the Fourth Amendment of the United States Constitution
and Article 1, Paragraph 7 of the New Jersey Constitution, a
warrantless search is presumed to be invalid, and places upon the
State the burden to prove that the search "falls within one of the
few well-delineated exceptions to the warrant requirement." State
v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167
N.J. 471, 482 (2001)).
Consent is a well-recognized exception to the Fourth
Amendment's search warrant requirement. Schneckloth v.
6 A-5245-15T3 Bustamonte, 412 U.S. 218, 219 (1973). Consent searches have long
been considered a "legitimate aspect of effective police
activity." State v. Domicz, 188 N.J. 285, 305 (2006) (quoting
Schneckloth, 412 U.S. at 228). A consent to search must be
voluntary and knowing in nature, and the person giving consent
must be advised of his right to refuse. State v. Johnson, 68 N.J.
349, 353-54 (1975). The State bears the burden of demonstrating
the person giving consent knew he or she had a choice by clear and
convincing evidence. Domicz, 188 N.J. at 309.
The New Jersey Supreme Court recently reiterated the analysis
courts must employ when assessing voluntariness that was first
outlined in State v. King, 44 N.J. 346, 352-53 (1965):
Factors potentially indicating coerced consent include:
(1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; [and] (5) that consent was given while the defendant was handcuffed. . . .
Factors potentially indicating voluntariness of consent include:
7 A-5245-15T3 (1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers.
[State v. Hagans, 233 N.J. 30, 39 (2018) (alterations in original) (citations omitted) (quoting King, 44 N.J. at 352-53).]
Citing to King, the Hagans Court described the factors as
"guideposts," and observed that the absence of one alone may be
very consequential in one case while insignificant in another.
Id. at 40. The voluntariness of the consent depends on "the
totality of the particular circumstances of the case[,]" and each
situation must rise or fall on its own facts. Ibid. (quoting
King, 44 N.J. at 353).
In this case, the State has readily met its burden. Police
went to defendant's home to investigate an incident in which he
was the victim, not a suspect. The information conveyed in the
dispatch was confirmed when the officer and defendant
simultaneously saw the weapon on the porch.
Defendant drove himself and his girlfriend to the police
station voluntarily in order to assist police in their
investigation of the attempted break-in. During his taped
interview, while still viewed as a victim and not a suspect,
8 A-5245-15T3 defendant explained that he had fired a revolver through the front
door. Thus, defendant admitted his guilt before police even had
any reason to suspect that he had committed a crime. His
statements no doubt came as a surprise to the officers who were
conducting the interview.
Defendant, while on tape, offered to show police where he had
hidden the weapon, and told them that he was a convicted person
not permitted to possess firearms. Defendant acknowledged his
guilt and provided police with the location of the evidence.
None of the factors apply that would lead us to the conclusion
defendant's consent was involuntary. He was not under arrest, was
not handcuffed, faced no accusation, and was not asked for consent.
The record therefore supports the judge's conclusion that
defendant affirmatively volunteered the information that he had
committed a crime and led the officers to the place where the
weapon could be found. His decision was not coerced or
involuntary. Therefore, defendant's motion to suppress was
properly denied.
Defendant also contends that it was "plain error" for the
court to have failed to charge the jury under the theory that
defendant acted in self-defense. We consider this argument to be
so lacking in merit as to warrant little discussion in a written
opinion. R. 2:11-3(e)(2).
9 A-5245-15T3 Defendant relies upon State v. Montalvo, 229 N.J. 300 (2017),
in support of the argument. Montalvo, however, relates to a
different statute. In Montalvo, defendant was charged with
unlawful possession of a weapon, not possession of a weapon by a
certain person. Id. at 307. Here, defendant does not dispute
that he is a person prohibited from possession. See In re Wheeler,
433 N.J. Super. 560, 597-98 (App. Div. 2013) (citing District of
Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of
Chicago, 561 U.S. 742 (2010)). That a person who has lost his
right to arm himself by virtue of convictions can continue to be
charged with the offense at issue here was a fundamental principle
left intact by Heller and McDonald.
All that is required under the pertinent statute is that a
defendant has been previously found guilty of a predicate offense
and was in possession of the firearm. See N.J.S.A 2C:39-7(b).
The thrust of the statute is that mere possession by a convicted
person violates the law. Thus, self-defense is not a defense to
the charge, and no instruction was necessary.
Affirmed.
10 A-5245-15T3