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State v. Gomez

Decided: February 19, 1991.


On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

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).


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 ...

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