McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Defendant Sandra Abril Burgos was indicted with Jose Antonio Rodriguez in a six count indictment which charged conspiracy to commit murder (N.J.S.A. 2C:5-2 and 2C:11-3), conspiracy to commit robbery (N.J.S.A. 2C:5-2 and 2C:15-1), murder (N.J.S.A. 2C:11-3), robbery (N.J.S.A. 2C:15-1), unlawful possession of a sawed-off shotgun (N.J.S.A. 2C:39-3b), and possession of the weapon for the purpose of using it unlawfully against another (N.J.S.A. 2C:39-4a). Rodriguez entered into a plea bargain wherein he pled guilty to murder, conspiracy to commit robbery, robbery and possession of a weapon for an unlawful purpose, and agreed to testify against defendant. Under the agreement he was to receive a maximum of 30 years with 10 years of parole ineligibility. Defendant Burgos was tried by a jury and convicted of all charges except conspiracy to commit murder, upon which the jury was hung. The trial judge merged the conspiracy to rob into the robbery, which was merged into the murder. Defendant was sentenced to 30 years with 15 years of parole ineligibility for the murder and to concurrent terms of four years for unlawful possession of a weapon and seven years with three and a half years of parole ineligibility for possession of a weapon for an unlawful purpose; both to be served concurrently with the murder sentence.
Defendant appeals alleging the following:
Point I -- The trial court committed reversible error by allowing into evidence the prior statement of Jose Abril.
Point II -- The trial court improperly delved into mental process of jury after it was apparent they could not reach a verdict as to the conspiracy and murder counts in indictment.
Point III -- An alleged oral statement of the defendant, and certain items of an alleged consent search were improperly allowed into evidence.
The victim Numberto Burgos Soto, the husband of defendant Sandra Burgos, died of a gunshot wound. He was found lying face down in a hallway, the apparent victim of a robbery. Rodriguez testified he was passing defendant's apartment when she called him and inquired whether he needed money. She told him to come upstairs and gave him a pump sawed-off
shotgun and said they "had to rip [somebody] off." They went together in a car belonging to defendant's brother and waited until defendant identified the victim as he came out of a building. Rodriguez forced the victim into the building and told him to give up his wallet. The gun went off and Rodriguez ran to the car. He was seen by a witness who was able to identify the vehicle, give a partial license plate number and his description. Defendant allegedly gave Rodriguez the wallet and shotgun and told him to "get rid of it." He threw the wallet in a sewer and took the shotgun home. Both were later found. The car was traced to Jose Abril, defendant's brother, who was taken to police headquarters where he gave a written signed statement under oath. Defendant's sister-in-law, Doreen Abril, told police defendant showed her a shotgun two weeks before the incident and said she had "bullets" for it and that she would get even with Numberto.
Defendant maintains the statement of Jose Abril was improperly allowed into evidence. The trial judge ruled this evidence admissible under Evid.R. 63(1)(a). Abril testified at trial that he could not remember anything with respect to the contents of the statement offered by the prosecution although he remembered the police coming to his house, pointing guns at him and accusing him. He acknowledged his signatures on the statement but maintained he could not remember what happened at police headquarters and that he did not remember saying anything.
The trial court conducted an Evid.R. 8 hearing as to Abril's qualifications to be a witness and found him qualified. Abril's psychiatrist testified he was suffering from "paranoia schizophrenic subchronic" and that he was "not capable to testify because he had the tendency to make distortion of the question and misinterpret of the ...