On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-04-0510.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Messano and Waugh.
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 Miranda*fn1 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.*fn2 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:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
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).
THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW APPELLANT TO ADMIT AN EXCULPATORY POST-WARNING STATEMENT UTTERED TO PAGLIONE.
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 ...