STATE OF NEW JERSEY v. C.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4697-03T44697-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

C.S.,

Defendant-Appellant.

__________________________________

 

Submitted: October 31, 2005 - Decided:

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 01-09-0328.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of two counts of first degree sexual assault, contrary to N.J.S.A. 2C:14-2a(1) (Counts One and Four); two counts of second degree sexual assault, contrary to N.J.S.A. 2C:14-2b (Counts Two and Five); and two counts of second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (Counts Three and Six). He is serving an aggregate term of twenty-five years with a twelve-year period of parole ineligibility. The appropriate fines, penalties, fees and Megan's Law terms have been imposed.

On July 31, 2000, Detective Wilson received a call from a man regarding his granddaughter. He told Wilson that he had received a letter from his granddaughter, K.S., in which she alleged that she had been sexually assaulted by her father, defendant, in the summer of 1998. Wilson commenced an investigation.

Detective Tietjen of the New Jersey State Police was assigned to investigate K.S.'s allegations. On December 4, 2000, Tietjen met with defendant at his home in New York. Defendant was unable to speak with Tietjen regarding the allegations on that date, but made an appointment for December 8, 2000, and arranged for Tietjen to pick him up because he did not own a car.

On December 8, Tietjen picked up defendant as planned and drove him to Sussex Station. Defendant sat unrestrained in the front passenger seat. The allegations K.S. had made were not discussed on the way to the station. The pair arrived at the station around 10 a.m. and the interview began around 11 a.m. The interview was conducted in a room decorated much like a home with curtains, plants, TV and toys. Detective Brian Long assisted Tietjen in conducting the interview. Defendant was advised of his Miranda rights. During the interview, defendant asked Tietjen to leave the room, and he complied.

Defendant claims that after Tietjen left the room he asked Long to stop because he wanted a lawyer. Defendant claims that Long ignored his request and continued speaking. Although defendant denied the allegations throughout the interview, he ultimately agreed to give a statement. In his statement, defendant revealed information that Tietjen had not known. For example, he told the officers that he performed oral sex on his daughter and disclosed a prior address. Defendant alleges that he gave a statement because he was promised that he would go home that day and that he could file for custody and have custody of his daughter. He claims that he was also told that he would go to jail if he did not give a statement. Defendant further alleges that Long was yelling at him and calling him a "scumbag."

According to both detectives, defendant did not ask for a lawyer at any time during the interview. Long also stated in his testimony that defendant admitted to having sexual intercourse with his daughter on her twelfth birthday and oral sex on another occasion. Long denies ever threatening or yelling at defendant during the interview.

Prior to giving his taped, sworn statement, defendant was again advised of his Miranda rights. In defendant's sworn confession he stated that he was not threatened and in fact had been treated properly by the detectives.

On appeal, defendant raises the following issues:

POINT ONE

THE DEFENDANT ASSERTED HIS RIGHT TO REMAIN SILENT WHEN HE ASKED HIS INTERROGATOR TO LEAVE THE ROOM AND HIS ASSERTION WAS NOT SCRUPULOUSLY HONORED.

POINT TWO

THE TRIAL COURT COMMITTED PLAIN ERROR WHERE IT ADMITTED INTO EVIDENCE THE COMPLAINT OF THE 12-YEAR OLD VICTIM MADE TWO YEARS AFTER THE ALLEGED SEXUAL ASSAULT WITHOUT DETERMINING ITS RELIABILITY UNDER THE FRESH COMPLAINT DOCTRINE. (Not Raised Below).

POINT THREE

A SENTENCE WHICH EXCEEDS THE PRESUMPTIVE TERM BECAUSE OF AGGRAVATING FACTORS FOUND TO BE PRESENT BY A JUDGE, BUT NOT BY A JURY, VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHT TO A JURY TRIAL. (Not Raised Below).

POINT FOUR

THE TRIAL COURT IMPROPERLY RELIED ON THE SAME FACTORS TO IMPOSE AN ENHANCED TERM OF IMPRISONMENT AND A CONSECUTIVE SENTENCE. (Not Raised Below).

The Fifth Amendment of the United States Constitution affords protection against self-incrimination. U.S. Const. amend. V. The privilege, however, is not automatic, it must be invoked by the person claiming its protection. State v. P.Z., 152 N.J. 86, 101 (1997) (citations omitted). When the individual being questioned fails to assert the privilege and instead answers questions, the answers are considered voluntary. Ibid. (citations omitted). A statement is voluntary if it is the product of free choice. Id. at 113. Voluntary statements may be used against a defendant. Ibid. Use of a defendant's involuntary statements, however, offends due process. Ibid.

Custodial interrogations by law enforcement officials are considered inherently coercive and automatically trigger the privilege against self-incrimination. "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Id. at 103. Miranda warnings serve to protect the privilege against self-incrimination in custodial interrogations. According to Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07, prior to a custodial interrogation, a defendant must be informed of his right to silence, that any statement made may be used as evidence against him, that he has the right to an attorney, and that an attorney will be provided if one cannot be afforded. A defendant's right to silence must be "scrupulously honored." State v. Johnson, 120 N.J. 263, 282 (1990) (citations omitted). The right is not "scrupulously honored" when the defendant invokes his right to silence but the interrogation continues without interruption. State v. Bey, 112 N.J. 45, 68 (1988). "Fresh" Miranda warnings must be given before a custodial interrogation can be resumed if the defendant has asserted his right. State v. Hartley, 103 N.J. 252, 267 (1986).

In the present case, although defendant had not been formally arrested prior to the interview and was not handcuffed, an evaluation of the objective circumstances leads to the conclusion that it was a custodial interrogation - defendant was questioned in an interview room at the police station by two detectives for about an hour; he was not a random witness brought in for questioning, he was the accused offender; and prior to questioning, the detectives read defendant his Miranda rights. Defendant now asserts that by asking Tietjen to leave the room, he asserted his right to silence. Yet, defendant testified at the suppression hearing that he asked Tietjen to leave the room because he "wanted to talk to Brian Long . . . ." By defendant's own admission, he wanted to talk to the detective. This was not an assertion of his right to silence.

There was no need for new warnings to have been given to defendant. Ibid. "Not every break in questioning compels renewed administration of the Miranda warnings." State v. Bey, 112 N.J. 123, 138 (1988). There is nothing in the facts to indicate that the interview had ceased, only that one of the detectives briefly left the room. Accordingly, the Miranda warnings previously given to defendant were sufficient to cover the period when Tietjen was outside of the room and when he returned.

Courts have recognized that asking to speak to a parent is an assertion of the right to silence. See, e.g., State v. Harvey, 121 N.J. 407, 418-20 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991) (asserting that the suspect invoked his right to silence during an interrogation by asking to speak to his father). It has also been recognized that a request to speak to an attorney before speaking to police indicates a decision to remain silent. Miranda, supra, 384 U.S. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723. Nowhere in the case law is there any indication that asking one of two interrogators to leave the room is an exercise of the right to silence.

The trial judge reasonably determined that defendant knowingly, intelligently and voluntarily waived his Miranda rights. He observed defendant's demeanor; he heard the taped statement. The judge found that defendant was read his rights and he acknowledged that he knew what they were. Defendant had been told that he would go to jail for the alleged actions, yet he still gave a sworn, written confession. Although he alleged that it was coerced, the judge found that because defendant revealed details of incidents that the detectives had not known, it certainly was not a coerced confession. In his determination that the confession was not coerced, the judge further noted, "[t]hat interview that he gave, as reflected in that taped statement, does not bespeak an individual who is suffering from the effects of pressure or coercion . . . and was emotionally upset. . . ." The fact that defendant was questioned in a comfortable room, his hands were free, and he was given a cigarette break before his sworn statement was taken added to the judge's finding that there had been no coercion. Appellate review is limited when an error in judicial factfinding is alleged. State v. Locurto, 157 N.J. 463, 470-71 (1999). We must defer to the factfinder's ability to judge credibility because the factfinder had the opportunity to observe the witness. Ibid. A trial court's discretionary determination regarding whether to admit or exclude evidence is entitled to deference absent an "abuse of discretion" or "clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). Such a decision by the trial court "must stand unless . . . its finding was so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).

Here, we discern no basis to disturb the trial judge's determination that defendant waived his constitutional protection against self-incrimination. Defendant's confessions were admissible.

According to K.S.'s trial testimony, defendant kissed, fondled and sexually assaulted her on July 17, 1998, her twelfth birthday. K.S. alleged that defendant sexually assaulted her "once or twice more" in the summer of 1998. On other occasions that summer, defendant also touched K.S.'s chest and vagina and forced her to engage in oral sex.

Although these events occurred during the summer of 1998, defendant did not reveal them to family members until 2000 while she was a patient at St. Claire's crisis intervention unit after attempting suicide. K.S. waited two years to disclose these events because she was afraid, trying to forget, and "my sister died, and at first I wanted to be with her, and I realized that it would . . . hurt my family more than it would myself to go so, I just told why I was doing this."

Defendant complains that the victim's statements to her grandfather and others two years after the events are inadmissible as fresh complaint evidence. We disagree.

The fresh complaint doctrine is an exception to the hearsay rule. State v. Buscham, 360 N.J. Super. 346, 358 (App. Div. 2003). Traditionally applied in "rape and morals cases", the fresh complaint doctrine "permits proof by the prosecution on the State's case that the victim complained of the criminal act within a reasonable time after it occurred to someone she would ordinarily turn to for help and advice." State v. Tirone, 64 N.J. 222, 226 (1974). Because of the vulnerability of the victims, the doctrine is flexibly applied to the complaints of children; for example, a longer time may be allowed between the assault and complaint. State v. Pillar, 359 N.J. Super. 249, 282 (App. Div.), certif. denied, 177 N.J. 572 (2003). The purpose of the doctrine is to show that a complaint was made, not for corroboration of the alleged offense. State v. Bethune, 121 N.J. 137, 146 (1990).

To determine admissibility under the fresh complaint doctrine, the court "must consider the age of the child, the child's relationship with the interviewer, the circumstances under which the interrogation takes place, whether the child initiated the discussion, the type of questions asked, whether they were leading, and their specificity regarding the alleged abuser and the acts alleged." Pillar, supra, 359 N.J. Super. at 283.

Defendant claims that the trial court should have determined the reliability of the victim's complaint before admitting it into evidence. Specifically, defendant argues that the two-year delay between the alleged abuse and the complaint, K.S.'s failure to verbally discuss the incident with her grandfather, and her reluctance to discuss the incident with the detective, all point to a lack of reliability that the trial court should have explored. Defendant also claims that the court's failure to give a limiting instruction caused prejudice and a new trial should be granted. The State, however, claims that because defendant failed to object to K.S.'s testimony and failed to request a specific limiting instruction, he waived his right to appeal this issue. In the alternative, the State claims that the admission of K.S.'s complaint was proper as a prior consistent statement under N.J.R.E. 803(a)(2). In addition, the State also claims that K.S.'s prior consistent statements met the requirements of "fresh complaint" and the lack of a limiting instruction did not change the outcome of defendant's case.

Defendant admits that he failed to object to this "fresh complaint evidence" and the lack of jury instruction. Because of defendant's failure to object, he must demonstrate that the admission of the testimony and omission of the limiting instruction merits the plain error standard. Under the plain error standard, an appellate court will not reverse unless the error is "clearly capable of producing an unjust result." R. 2:10-2; Macon, supra, 57 N.J. at 335.

A trial court is afforded much freedom when determining whether to admit evidence. In fact, a trial court's evidentiary rulings will be reversed only when there has been an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998). An appellate court may substitute its decision for that of the trial court when the trial court's "finding was so wide of the mark that a manifest denial of justice resulted." Kelly, supra, 97 N.J. at 216.

Considering first the fresh complaint doctrine, K.S.'s complaint satisfied the requirements. The allegations involved sexual assault, the young complainant told people from whom she would have sought comfort (cousin, friend and fellow patients), and in fact, K.S. came forward with the detailed allegations without any outside prompting. Although it took two years for K.S. to discuss the alleged assault, two years is a reasonable amount of time given her young age and the fact that the perpetrator was her father. Furthermore, her personal situation in 2000, which prompted her ability to reflect about her life circumstances following the death of a sister and her attempted suicide, provides a reasonable context for the revelation.

In addition, the State also claims that K.S.'s complaint was admissible under N.J.R.E. 803(a)(2) as a prior consistent statement. N.J.R.E. 803(a)(2) allows prior consistent statements by a witness to be admitted when offered to rebut a charge of "recent fabrication or improper influence or motive." The State claims that defendant's counsel attacked the credibility of K.S.'s complaint from the very beginning of the trial by implying, in his opening remarks, that it was fabricated out of anger toward her father. A prior consistent statement offered to counter a charge of improper influence or motive may be admitted substantively and therefore no limiting instruction is needed. State v. Swint, 328 N.J. Super. 236, 255 n.3 (App. Div.), certif. denied, 165 N.J. 492 (2000). The trial court did not err by failing to give a limiting instruction because the evidence that K.S. had made prior statements to her cousin, her friend, and other hospital patients was admissible to rebut the implication of improper motive.

Defendant claims that the sentences received for the first and second degree sexual assaults, which exceed the presumptive terms, must be vacated because the aggravating factors used to increase the sentences beyond the presumptive terms were found by the judge, not the jury.

According to the statute, the term of imprisonment for a first degree offense is ten to twenty years. N.J.S.A. 2C:43-6a(1). Unless the finding of aggravating or mitigating factors dictates otherwise, the presumptive sentence for a first degree crime is fifteen years. N.J.S.A. 2C:44-1f(b). The term of imprisonment for a second degree offense is five to ten years. N.J.S.A. 2C:43-6a(2). Absent aggravating or mitigating factors, the presumptive term for a second degree crime is seven years. N.J.S.A. 2C:44-1f(c). In the present case, for both Counts Four and Five, the judge found three aggravating factors: gravity and seriousness of the harm inflicted on the victim; risk that defendant will re-offend; and the need for deterrence. N.J.S.A. 2C:44-1a(2),(3) and (9). No mitigating factors were found.

On Count Four, first degree sexual assault, defendant was sentenced to eighteen years with a nine-year period of parole ineligibility. The sentence is within the statutory range, but is three years greater than the presumptive term. On Count Five, second degree sexual assault, defendant was given a nine-year sentence with three years of parole ineligibility. Again, the sentence is within the statutory range, but two years greater than the presumptive term.

Since the time of defendant's trial, case law has changed the rules for sentencing in New Jersey. The Supreme Court, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), stated that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum needs to be submitted to a jury and proven beyond a reasonable doubt. In Blakely v. Washington, 542 U.S. 296, ___, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413-14 (2004), the Supreme Court recognized that the "statutory maximum" is the maximum sentence that a judge may impose based solely upon the facts that were part of the jury's verdict, or admitted by the defendant, not the sentence the judge could impose after additional factfinding. As discussed above, under the New Jersey Code of Criminal Justice, a defendant cannot be sentenced to a term greater than the presumptive term absent aggravating factors. N.J.S.A. 2C:44-1f(1).

In State v. Natale, 184 N.J. 458, 466 (2005) (Natale II), the Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee" because "the Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant." To bring the Code of Criminal Justice into compliance with the Sixth Amendment, the Court excised presumptive terms. Ibid. The "statutory maximum" authorized by a jury verdict or facts admitted by the defendant is now the top of the sentencing range for the crime charged. Id. at 487.

"[N]othing . . . suggests that it is impermissible for judges to exercise discretion . . . in imposing a judgment within the range [of sentences] prescribed by statute." Apprendi, supra, 530 U.S. at 481, 120 S. Ct. at 2358, 147 L. Ed. 2d at 450. "Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments." Harris v. United States, 536 U.S. 545, 558, 122 S. Ct. 2406, 2415, 153 L. Ed. 2d 524, 538 (2002). The Harris Court went on to state that "the facts guiding judicial discretion below the statutory maximum need not be . . . submitted to the jury, or proved beyond a reasonable doubt." Id. at 565, 122 S. Ct. at 2418, 153 L. Ed. 2d at 543.

Judges customarily sentence defendants within the statutory range by balancing the aggravating factors against mitigating ones. Natale II, supra, 184 N.J. at 487. See also, State v. Abdullah, 184 N.J. 497, 506-07 (2005) (discussing the elimination of presumptive terms and the use of aggravating and mitigating factors in sentencing procedures). An appellate court ensures that the trial courts follow the sentencing guidelines. Natale II, supra, 184 N.J. at 489. "An appellate court is bound to affirm a sentence . . . as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

Here, the sentences for both Counts Four and Five are below the statutory maximums but above the presumptive terms. In accordance with Natale II, a remand is required to reconsider the sentence because it is impossible to know whether the sentences imposed were fashioned using the now judicially excised presumptive terms as the starting point.

On remand, the judge should also reconsider the sentence imposed on Counts Three and Six, two counts of endangering the welfare of a child. The use of aggravating factor one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1), was improper in fashioning the sentence for the endangering the welfare of a child convictions. The assailant's relationship with the child victim is the single factor that elevates the offense from a third degree to a second degree offense. N.J.S.A. 2C:24-4a. Use of aggravating factor one in this circumstance constitutes impermissible double-counting. State v. Jarbath, 114 N.J. 394, 404 (1989). Therefore, on remand the trial judge shall not consider the familial relationship between defendant and the victim as an aggravating factor in fashioning the sentence for Counts Three and Six.

The twenty-five year aggregate term is composed by a web of concurrent and consecutive terms. Essentially, the term is composed of a seven-year term with a three-year period of parole ineligibility for a second degree endangering the welfare of a child conviction (Count Three) and a consecutive eighteen-year term with a nine-year period of parole ineligibility for a first degree sexual assault conviction (Count Four). In his justification for the consecutive terms, the sentencing judge expressly eschewed the independent occurrence factor offered by State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and stated:

However, I do take a different tact on this . . . and that is he's the father of this victim. He had a parental responsibility to, as the mother of the child has clearly indicated in her heartfelt remarks to the Court, if the child cannot look to . . . a mother and father, to whom can they seek solace and comfort in time of need? . . . . So that special relationship, he destroyed, unfortunately. And he broke the trust that a daughter should expect to receive from a parent, especially a father. And he has to be deterred. In my view those circumstances are sufficient to cause me to conclude that they require consecutive sentencing.

The judge proceeded to impose consecutive terms for the sexual assault and endangering convictions. The betrayal of the victim by her father is despicable behavior. The expressed reason, however, emphasizes the familial relationship which is already reflected in the degree of the endangering offense and contravenes the prohibition against double-counting. Accordingly, on remand the judge shall also reconsider the imposition of consecutive terms.

 
The conviction is affirmed; remanded for reconsideration of sentence.

The initial Judgment of Conviction imposes a DEDR penalty. The
April 16, 2003 amended Judgment of Conviction deletes this penalty.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966).

Counsel's failure to raise the error below indicates that counsel did not consider the error to be significant at the time of trial. State v. Macon, 57 N.J. 325, 333 (1971).

(continued)

(continued)

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A-4697-03T4

RECORD IMPOUNDED

November 16, 2005