STATE OF NEW JERSEY VS. MELVIN K. LEWIS, III (15-04-0201, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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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).

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 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:

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 (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).

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 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.

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