STATE OF NEW JERSEY v. R. K. V.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3575-03T53575-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R. K. V.,

Defendant-Appellant.

_________________________________________________

 

Argued October 11, 2005 - Decided:

Before Judges Skillman, Payne and Levy.

On appeal from Superior Court of New

Jersey, Law Division, Cape May County,

03-04-00222-I.

Joseph J. Rodgers argued the cause for

appellant.

J. Vincent Molitor, Assistant Prosecutor,

argued the cause for respondent (Robert

L. Taylor, Prosecutor, Mr. Molitor of

counsel and on the brief).

PER CURIAM

Following receipt of evidence that defendant had fondled and then orally and digitally penetrated his adopted daughter, T.V., as well as exposing himself to her, commencing when she was six years old and ending when she was sixteen, and had shown her pornography commencing approximately when she was twelve, defendant was charged in a twenty-count indictment with first-degree aggravated sexual assault, second-degree sexual assault and second-degree endangering the welfare of a minor. The indictment, which tracked T.V.'s age and the alleged conduct occurring at specific times, contained, as amended, the following charges: second-degree sexual assault in the years 1991 through 1994 when T.V. was age six through nine, N.J.S.A. 2C:14-2(b) (Counts One through Four); first-degree aggravated sexual assault in the years 1995 through 1998 when T.V. was age ten through thirteen, N.J.S.A. 2C:14-2a (Counts Five through Eight); second-degree endangering the welfare of a minor in the years 1991 through 1999 when T.V. was age six through fourteen, N.J.S.A. 2C:24-4a (Counts Nine through Seventeen); first-degree aggravated sexual assault in the years 1999 and 2000 when T.V. was age fourteen and fifteen, N.J.S.A. 2C:14-2a (Counts Eighteen and Nineteen); and second-degree sexual assault in the year 2001 when T.V. was age sixteen, N.J.S.A. 2C:14-2c (Count Twenty).

Defendant was found guilty by a jury of all charges with the exception of the alleged first-degree aggravated sexual assault occurring in 1995 when T.V. was age ten (Count Five), as to which the jury deadlocked. In sentencing, the court merged Counts Six through Nine, charging endangering the welfare of a minor when T.V. was age six to nine, into Counts One through Four, charging sexual assault during the same time frame. The judge then imposed seven-year concurrent sentences on the second-degree crimes charged in Counts One through Four and Thirteen through Seventeen, a consecutive seven-year sentence on Count Twenty, consecutive fifteen-year sentences on Counts Six, Eight, Eighteen, and Nineteen, and a concurrent fifteen-year sentence on Count Twelve. Defendant was thus sentenced to an aggregate term of sixty-seven years, all of which was found to be subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The judge found applicable aggravating sentencing factors one (the nature and circumstances of the offense), two (the seriousness of the harm inflicted), three (the risk of re-offense), and nine (the need for deterrence). N.J.S.A. 2C:44-1a(1), (2), (3), and (9). He also found mitigating factor seven (the absence of a prior criminal record). N.J.S.A. 2C:44-1b(7). Defendant's behavior was deemed to have been repetitive and compulsive, N.J.S.A. 2C:47-1 and -2, and he was found to be amenable to treatment as a sexual offender at the Adult Diagnostic and Treatment Center at Avanel. The requirements of Megan's Law, N.J.S.A. 2C:7-1 to -19, were imposed, as well as appropriate fines and penalties.

Defendant has appealed from both his conviction and sentence, raising the following issues:

POINT I

THE TRIAL COURT ERRED BY NOT SUPPRESSING STATEMENTS GIVEN BY THE DEFENDANT.

POINT II

THE TRIAL COURT ERRED IN ADMITTING TROOPER GANT'S TESTIMONY REFERENCING PRIOR CONSISTENT STATEMENTS OF THE ALLEGED VICTIM.

POINT III

THE COURT BELOW ERRED IN REFUSING TO MERGE VARIOUS COUNTS OF THE INDICTMENT FOR SENTENCING PURPOSES.

POINT IV

THE COURT BELOW ERRED IN SENTENCING DEFENDANT TO MANDATORY MINIMUM TERMS IN VIOLATION OF THE SPIRIT OF BLAKELY v. WASHINGTON, 124 S. Ct. 2531 (2004), AND, AS A RESULT, THE SENTENCE IMPOSED WAS CRUEL AND UNUSUAL.

We affirm defendant's conviction and reverse his sentence, finding errors to have occurred in the application of NERA to the conduct charged, and a review of the sentence's overall length to be warranted.

I.

Evidence at trial disclosed that T.V., along with her two older brothers, were raised as foster and then adopted children by defendant and his wife. Defendant was a successful optician who owned his own business, where T.V. and her brother J.V. worked when they were older. When T.V. was six years old, defendant commenced to fondle her, particularly when she slept with her parents after nightmares. The conduct progressed to oral and digital penetration when T.V. was eleven years old. Shortly thereafter, defendant also commenced showing T.V. pornography in magazines, then in videos and, later, on his office computer. The conduct stopped following T.V.'s protests when she was sixteen years of age.

At age ten, T.V. had disclosed defendant's conduct to her adoptive mother, but was not at the time believed. When she was thirteen, she discussed the abuse with defendant, and he agreed to stop because of her age, but after a hiatus, did not do so. At sixteen, T.V. told defendant that if the abuse did not stop, she would call the police. Two months later, defendant apologized, and they agreed to keep the matter a secret.

On September 17, 2002, when she was seventeen, T.V. wrote a letter to defendant stating that defendant should tell T.V.'s mother of the abuse. The letter, which was never delivered, was found by T.V.'s mother in 2002, just before New Year's Eve. The mother discussed the letter with T.V., but at the time, T.V. did not disclose the details of defendant's conduct. On January 2, 2003, T.V. wrote an additional letter to defendant stating that she had told her mother of the abuse. The mother also wrote to defendant at the time.

On January 15, 2003, the mother reported the sexual abuse to members of the family's church and the State Police, and both she and T.V. were interviewed by Detective William Gant, who also reviewed the letters addressed to defendant. With the consent of the mother and T.V., Gant then obtained a court order that permitted a telephone intercept that would allow him to listen to and record a conversation between T.V. and defendant. The call occurred that night. During its course, defendant admitted "petting" and that he had a problem with pornography, he denied penetration, and was non-specific regarding claims of fondling. He sought forgiveness.

At a suppression hearing conducted in the case prior to trial Gant testified that, following the call, at approximately 9:00 p.m., he went to defendant's place of business, where he placed defendant under arrest in the presence of his son J.V. When asked by defendant what was going on, Gant, who stated that he was reluctant to discuss the charges in J.V.'s presence, replied that defendant knew. Defendant was then advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), transported to State Police headquarters, and handcuffed to a holding bench.

Gant stated that, after approximately fifteen to twenty minutes, he took defendant to an interview room, where he again advised defendant of his Miranda rights and obtained defendant's signature on the warning card. However, at that time defendant indicated that he "might want to talk to a lawyer," and he was therefore returned to the holding bench while Gant arranged for the issuance of a warrant and for bail to be set. After approximately twenty to twenty-five minutes, Gant returned to commence defendant's processing. Before that procedure could occur, defendant asked: "What happens from here?" or "Where do we go from here?" Defendant also asked about the whereabouts of T.V. and his wife.

Gant testified that he refused to engage defendant in conversation, stating to defendant that he would not do so until defendant "[made] a decision as to whether he want[ed] to speak to a lawyer or wish[ed] to make a statement." According to Gant, defendant responded: "I'll talk to you." After receiving confirmation of defendant's intent, Gant informed defendant that a warrant had been authorized or issued, bail set, and that he was not permitted to have contact with T.V., whose location could not be disclosed. Gant also provided generalized information regarding defendant's wife, and requested the location of J.V. who, Gant had been informed, had threatened to kill the person who had caused defendant's arrest. Gant testified that he did not discuss the case with defendant until he had made his decision to give a statement without consulting a lawyer.

After an additional five or ten minute period, defendant was again taken into the interview room where, in the presence of Gant and Sergeant Paul Hoffman, Miranda warnings were administered for a third time. The warnings were signed by defendant, as well as by Hoffman and Gant, and a signed waiver of rights was obtained at 10:46 p.m.

Defendant then provided an unrecorded confession, and at 12:35 a.m., commenced giving a recorded statement that, when transcribed, was twenty-nine pages in length. A further recorded administration of Miranda warnings preceded the latter statement, and at that time, defendant confirmed that he understood his rights and was willing to proceed without the presence of a lawyer. No evidence of any incapacity on defendant's part was offered.

Gant testified that at some point prior to commencing his interview of defendant, he informed defendant that he had been a party to the consensual intercept occurring earlier in the evening. At the suppression hearing, defendant acknowledged that he had been informed by Gant of his participation in the intercept, during which his conduct was discussed by T.V., that T.V. had been interviewed and had disclosed to Gant everything that had taken place, and that defendant was aware that he was being charged with sexual assault when he began his confession. In this regard, the following exchange occurred between defendant and the prosecutor:

Q. And when they came to arrest you, you indicated on direct examination that you asked a question, the question being why am I being arrested, correct?

A. Yes.

Q. Did you ask any other question after that? Did you say to him, no, I don't know?

A. No, I did not say that.

Q. Because you did know, didn't you?

A. I knew what was going on.

Q. Okay. And the reason you knew what was going on was not just because Trooper Gant came there, you knew there was a problem probably even two weeks beforehand, correct?

A. Correct.

Q. Okay. And the reason you knew there was a problem beforehand is you received some letters, correct?

A. Correct.

Defendant further confirmed that he had received, along with two other letters, a letter from his wife in which she confronted defendant with T.V.'s allegations, stated that she was going to disclose them to a member of their church, and urged him "to tell somebody." He conceded as well knowledge of T.V.'s intent to disclose what had occurred.

In testimony given at the suppression hearing, defendant stated that he had requested a lawyer on five occasions while he was initially in the interview room, that he had only consented to talk because of concern regarding his family arising from threats of violence by J.V. and because he thought his cooperation would "get something smoothed out," and that his confession was premised upon information garnered from his conversation with the police and was untrue. Defendant did not explain the origin of the extensive factual information that he provided in the last five pages of the transcribed document after police questioning had ceased or the source of his knowledge concerning other lengthy portions of the confession given in response to factually nonspecific, open-ended inquiries by Gant.

II.

We first address defendant's challenge on appeal to the admission of his confession at trial, which occurred after his suppression motion had been denied, as was a motion for reconsideration heard by a different judge.

At the conclusion of the suppression hearing, while acknowledging that Miranda warnings had been given on four occasions, defense counsel had argued that questioning did not cease when defendant invoked his right to counsel. Gant had instead allegedly pressured defendant to cooperate, and when that tactic was unavailing, upset defendant by mentioning J.V.'s threat but then declining to provide information regarding the safety of the family. As a consequence, the statement that defendant then provided was not voluntarily given. Counsel argued as well that defendant had ample time during questioning before the recorded statement commenced to learn the police's version of events and thus could tailor his untruthful statement to meet the police's informational demands.

In declaring the statement to have been voluntarily given and thus admissible, the court found first that defendant was aware of the nature of the charges against him as the result of reading the three letters to him from T.V. and his wife and being informed of the telephone intercept, and that his statement disclosed an awareness of the substantial period of incarceration that he faced.

The court additionally found the statement, which followed an equivocal request for an attorney, to have been voluntary, and that defendant's testimony suggesting a basis for a contrary conclusion was not entirely candid. The court noted that defendant was an educated individual who owned his own business and, at very least, knew the name of an attorney he could contact. He was given Miranda warnings "that are commonplace in books, TV, and movies" at least five times. The court continued:

When [defendant] equivocally exercised his right to remain silent, the Troopers did exactly what the law requires them to do. They stopped talking to him. It was . . . the defendant [who] re-initiated discussions with the officers, indicated that he wanted to know what would happen, wanted to talk about his situation. It was only then that he was re-Mirandized and waived.

The court further found nothing unusual or improper in the police's procedures in handling defendant, and nothing "inherently coercive" about the circumstances.

The defendant in his testimony today kind of tried to make a bridge between why he would have given up his right to speak with an attorney and the statement that he so freely gave by saying he only told the officers what they wanted to hear because he wanted to know about his family. That is not credible. Gant's testimony is credible that he would not have given much detail to the defendant about what had been claimed.

The judge then proceeded to analyze defendant's statement at length, illustrating the preponderance of open-ended questions posed by Gant and the detailed and extensive responses given by defendant. This evidence, the court found, established beyond a reasonable doubt that defendant's waiver of his right to remain silent and to consult with an attorney was voluntarily and intelligently made. Defendant, the court observed, "embraced the opportunity to tell someone about what had gone on," but did so only after the constitutional protections afforded by Miranda had been "scrupulously honored by the State Police."

[The police] stopped questioning when asked to stop by the defendant. They never actually really initiated it. When he changed his mind about exercising his right to remain silent, signed the appropriate paperwork acknowledging that[, t]hat was when the questioning resumed and he reiterates his knowing, intelligent and voluntary waiver of his rights on the tape.

The motion to suppress was therefore denied.

On appeal as in his motion for reconsideration before a different judge, defendant places principal reliance on the Supreme Court's decision in State v. A.G.D., 178 N.J. 56 (2003), and he argues that because the circumstances of his confession were factually analogous, his confession, like that of A.G.D., should be found to have been given in violation of his Constitutional and common-law right to remain silent, and thus inadmissible. We disagree.

A.G.D. is both factually and legally distinguishable. In that case, defendant was approached by law enforcement officers at his home after allegations of sexual abuse had been made against him. Defendant was not told that an arrest warrant had issued, nor was one executed. Defendant was instead informed that the officers sought to interview him at the prosecutor's office regarding unspecified sexual abuse claims. Defendant accompanied the officers voluntarily "to put an end to the matter." Id. at 59. Once there, defendant was informed of the videotaped statement of the juvenile victim, and he commenced to make unrecorded admissions. Evidence was conflicting as to whether Miranda warnings had been given prior to the admissions and as to whether defendant had requested an attorney.

The Court found defendant's waiver of his right to remain silent, incontestably given prior to his written statement, was invalid when defendant remained ignorant of the fact that an arrest warrant had been issued against him. The Court held:

The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives [a defendant] of information indispensable to a knowing and intelligent waiver of rights. . . . [A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission.

[Id. at 68.]

Contrary to defendant's arguments, the facts of this matter differ markedly from those in A.G.D., since as our recitation of evidence found credible by the motion judge demonstrates, defendant was unquestionably in custody, fully aware that a warrant had been authorized or issued, knowledgeable of the factual basis for any charges against him, and at least generally aware of the penal consequences arising from his conviction. For that reason, the holding of A.G.D. is inapplicable in this case, and cannot be utilized as a legal basis for a determination that defendant did not exercise an informed waiver of his rights.

Defendant argues additionally, as he did at the suppression hearing, that the police failed to cease their questions "regarding the investigation" when he invoked his right to counsel, and that their discussions regarding the threat by J.V. significantly influenced his determination to waive his Miranda rights. Defendant claims that, after invoking his right to counsel, he made inquiries regarding his family, and that Gant wrongly interpreted those inquiries as an invitation to commence substantive questioning.

After thoroughly assessing defendant's credibility, the motion judge found that the facts were not as defendant had asserted them to be. The judge relied instead on the testimony of Detective Gant, who stated at the suppression hearing that he only spoke to defendant regarding his family after defendant had inquired what now would happen, and Gant had confirmed to his satisfaction that defendant wished to waive his right to counsel. Gant testified that he did not initiate any conversation with defendant even with respect to his family prior to that point. Further, Gant's testimony reflects that the decision to return defendant to the interview room and to commence questioning was prompted by defendant's query regarding what would occur, that Miranda warnings were again administered to defendant immediately upon his return to that room, and that an explicit waiver of a right to counsel was received before any questioning took place regarding T.V.'s allegations. We find no basis to disturb the court's credibility determination, or any suggestion from the record of Gant's examination or cross-examination of any divergence by him from this recitation of events. It is therefore accepted. State v. Locurto, 157 N.J. 463, 470-71 (1999).

As defendant argues, an inquiry regarding family members has been held to be insufficient to permit a resumption of questioning following a request for counsel. Jacobs v. Singletary, 952 F.2d 1282, 1294 (11th Cir. 1992); see also State v. Chew, 150 N.J. 30, 64 (1997) (inquiries incidental to the custodial relationship should not be deemed as initiating further interrogation), cert. denied sub nom. Chew v. N.J., 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). However, an inquiry by defendant, such as that which Gant believed signified defendant's willingness to talk and which Gant confirmed through re-administration of Miranda warnings was intended in that fashion, has been found to provide a sufficient basis for a custodial interrogation. Chew, supra, 150 N.J. at 64 ("Well, what is going to happen to me now?" invites discussion of the crime) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1043-44, 103 S. Ct. 2830, 2834, 77 L. Ed. 2d 405, 411 (1983)).

We thus affirm the determination to permit the introduction of defendant's confession at trial.

III.

Defendant also argues in support of a reversal of his conviction that the court erred when, after the testimony of T.V. had concluded, it admitted Detective Gant's testimony recounting the version of defendant's conduct supplied by T.V. in her initial interview by him as a prior consistent statement pursuant to N.J.R.E. 607.

The Rule provides that "any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." However,

[a] prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.

The court found the Rule's conditions for admissibility to have been satisfied by evidence of a motive for retaliation by T.V. against her father as the result of T.V.'s admission on cross-examination of family discord from objections to T.V.'s boyfriend and her desire to live with him, her failure to come home at hours her family deemed reasonable, her wish to obtain tattoos, and her objection to her father's sale of a motorcycle she wanted and his refusal to purchase a new car for her or pay for necessary repairs on her existing vehicle. However, the court also instructed the jury prior to Gant's testimony that it could only be considered as evidence relating to the credibility of the testimony that T.V. had previously provided, and not for its truth. Chew, supra, 150 N.J. at 77-81.

We do not find that the testimony by Gant was properly admitted to rehabilitate T.V., since it had no probative bearing on her credibility. At the commencement of the police's investigation into defendant's conduct, T.V. gave a statement to Detective Gant. At trial, T.V. testified regarding the content of that statement and gave additional substantive evidence that accorded with it. No claim of substantial variance between T.V.'s trial testimony and what she had previously told the police was made. Rather, the defense contended that the statement was untrue, and that T.V. had given it to exact revenge against her father or achieve other personal goals. An additional introduction of the substance of that same statement through the testimony of Gant was irrelevant to the issue of its truth. Thus N.J.R.E. 607, which applies to prior consistent statements utilized to rebut charges of fabrication or improper motive, provided no basis for the statement's reintroduction through Gant.

Nonetheless, Gant's testimony in this regard added nothing to the testimony that had already been provided by T.V., and it was entirely consistent with defendant's taped confession, which was played for the jury. At oral argument on appeal, defense counsel conceded that any error in admitting the testimony was thus insignificant. We agree, finding any error by the trial court to have been insufficient to have influenced the result, and not to require reversal. State v. Macon, 57 N.J. 18, 23 (1970).

IV.

The State has conceded that NERA was improperly applied to establish a period of parole ineligibility for defendant in this case. NERA was not effective until June 9, 1997, after the acts charged in Counts One through Six and Nine through Fourteen of defendant's indictment had taken place. Thus NERA cannot apply to those counts. State v. Fortin, 178 N.J. 540, 608-09 (2004).

When enacted and until June 29, 2001, NERA applied only to first- and second-degree "violent crimes," which were defined in relevant part as requiring "death or serious bodily injury." "Serious bodily injury was defined, in turn, as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. Additionally, "violent crime" included "any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of physical force." N.J.S.A. 2C:43-7.2d. The Supreme Court determined in State v. Thomas, 166 N.J. 560, 570-73 (2001) that NERA as then enacted did not apply to either first- or second-degree sexual assaults on victims of tender years without an independent act of physical force. Since there was no evidence presented at trial of an independent threat or use of physical force or of serious bodily injury, NERA cannot apply to the counts that have as their subject conduct occurring after NERA's enactment and prior to June 29, 2001, which are Counts Seven and Eight and Fifteen through Nineteen. State v. Parolin, 171 N.J. 223, 230-33 (2002) (applying the version of NERA that was in effect at the time that the conduct occurred).

NERA was amended, effective June 29, 2001, as a legislative response, in part, to Thomas. Assembly Appropriations Committee, Statement to Assembly Bill No. 3201, at 1 (June 4, 2001). Former subsection d of that statute, which defined "violent crime," and subsection e, which outlined the requirements for a NERA sentencing hearing, were repealed. In their place, the Legislature provided in subsection d that "the court shall impose [a NERA] sentence upon conviction of" enumerated crimes including aggravated sexual assault, N.J.S.A. 2C:14-2a and sexual assault, N.J.S.A. 2C:14-2b and -2c(1). See N.J.S.A. 2C:43-7.2d(7) and (8).

Count Twenty of defendant's indictment charges second-degree sexual assault in violation of N.J.S.A. 2C:14-2c. However, defendant was not charged under subsection -2c(1) (use of physical force or coercion without severe personal injury), but rather under subsection 2c(3)(b) (applicable when the victim is at least sixteen but less than eighteen years old, and the actor has supervisory or disciplinary power over her). As a consequence, the 2001 version of NERA is also inapplicable to this case. That aspect of defendant's sentence must therefore be vacated.

We are satisfied that the court, in sentencing, adequately articulated its reasons for declining to merge Counts Fourteen through Seventeen, charging endangering the welfare of a minor in the years 1996 through 1999, with Counts Six through Eight and Eighteen, charging aggravated sexual assault in the same years and appropriately applied the law to those convictions. State v. Miller, 108 N.J. 112, 118-19 (1987). We also find the court's consideration of the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), when imposing consecutive sentences on Counts Six, Eight, Eighteen, Nineteen, and Twenty to have been, with one exception, appropriate. However, we note that the court failed to consider whether the overall sentence imposed met the requirement of fairness in the circumstances. State v. Pennington, 154 N.J. 344, 361-62 (1998). We remand for that analysis.

 
Defendant's conviction is affirmed; the NERA component of his sentence is vacated, and the matter is remanded for resentencing.

Count Five was dismissed as the result of the jury's failure to reach a verdict on it.

Counts Fifteen through Seventeen charge endangering the welfare of a minor. Counts Seven, Eight, Eighteen, and Nineteen charge aggravated sexual assault.

(continued)

(continued)

23

A-3575-03T5

RECORD IMPOUNDED

December 22, 2005