STATE OF NEW JERSEY IN THE INTEREST OF E.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5549-04T45549-04T4

STATE OF NEW JERSEY

IN THE INTEREST OF E.D.

 
___________________________________________________

Submitted June 20, 2006 - Decided July 27, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, Docket No. FJ-13-1093-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jack L. Weinberg, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Lisa Commentucci,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

E.D. was adjudicated to be a delinquent for making a false public alarm, N.J.S.A. 2C:33-3(e); improper behavior, N.J.S.A. 2C:33-2(a); and resisting arrest, N.J.S.A. 2C:29-2(a). He was placed on probation for one year and fined $2,000. On this appeal, the juvenile argues:

POINT I THE JUVENILE'S STATEMENTS TO THE PRINCIPAL

AND OFFICER DILL MUST BE EXCLUDED AS THEY

WERE OBTAINED IN VIOLATION OF THE JUVENILE'S

FIFTH AMENDMENT RIGHT TO REMAIN SILENT.

THESE STATEMENTS WERE MADE DURING THE COURSE

OF A CUSTODIAL INTERROGATION WHERE THE

JUVENILE'S MIRANDA RIGHTS WERE NOT GIVEN

AND WHERE SCHOOL AND LAW ENFORCEMENT OFFICIALS

DID NOT ATTEMPT TO CONTACT THE JUVENILE'S

PARENTS BEFORE BEGINNING THEIR ACCUSATORY

QUESTIONING

POINT II THE STATE FAILED TO PRESENT SUFFICIENT

CREDIBLE EVIDENCE TO SUPPORT THE COURT'S

ADJUDICATIONS OF DELINQUENCY ON THE

CHARGES AND MUST REVERSE THE FINDINGS OF

THE FAMILY COURT IN THIS MATTER

POINT III THE COURT'S FAILURE TO TIMELY CONSIDER

AND ULTIMATE FAILURE TO RULE UPON THE

JUVENILE'S MOTION WITH REGARD TO THE

DISCOVERY ISSUE CONCERNING THE TAPE OF

THE SURVEILLANCE CAMERAS AT THE SCHOOL

PREJUDICED HIS RIGHT TO A FAIR TRIAL

POINT IV THE FAMILY COURT ABUSED ITS DISCRETION

IN FAILING TO IMPOSE A DEFERRED DISPOSITION

IN THIS MATTER. ADDITIONALLY, IT IS FUNDA-

MENTALLY UNFAIR FOR THE COURT TO HAVE TO

IMPOSE A MANDATORY $2000 FINE IN THIS MATTER

SHOULD THE ADJUDICATION FOR FALSE PUBLIC

ALARM BE SUSTAINED UNDER THE CIRCUMSTANCES

OF THIS CASE, THE MANDATORY $2,000 FINE

VIOLATES THE EIGHT[H] AMENDMENT AND THE

NEW JERSEY CONSTITUTION'S BAN ON EXCESSIVE

FINES

Our careful review convinces us that these contentions are without merit and warrant only the following discussion. R. 2:11-3(e)(2).

The proofs at the adjudicatory hearing revealed that at about 1:18 p.m. on September 23, 2004, then-fourteen-year-old E.D. was in World History class in "a trailer separate from the main [school] building" at Keansburg High School. As a result of his conduct and misbehavior, his teacher called security guards to remove him from class, but E.D. left the classroom before the security guards arrived. Shortly thereafter, E.D. returned to the classroom and informed the teacher that he knew the security guards were looking for him, but that he "had tricked them and ran away from them" by giving them a "false name." Around the time that E.D. was out of the classroom, a "9-1-1" call was made from a pay phone located in the hallway near the classroom.

The security guards thereafter entered the classroom and directed E.D. to come with them. E.D. was "verbally rude" and commented that they were "stupid" because "he was able to give them a false name and walk away." He was escorted to Vice-Principal Raymond Billings' office.

Meanwhile, at about 1:18 P.M., Keansburg Police Officer Tiffany Dill was dispatched to Keansburg High School in response to the 9-1-1 call. She reported to the principal's office, and looked at the videotape system with Principal Thomas Normile to see if it recorded who placed the 9-1-1 call from the pay phone. The tape was not "clear enough" to reveal anything and Normile could not identify the caller. The principal then accompanied Officer Dill to the Vice-Principal's office to discuss the matter further.

Upon his arrival, Principal Normile asked Vice-Principal Billings why E.D. was there, and then asked E.D. if he had "touched the [pay] phone," but E.D. did not respond. Upon being asked again, E.D. responded that he "may have touched the phone," and that he "might have dialed a few numbers." According to Principal Normile, Officer Dill was standing behind him during this questioning, and "Officer Dill did not ask any questions until after [he] had asked [E.D.] if he had touched the phone [and] after [E.D.] told us that he did touch the phone, and he may have touched a few numbers on the phone." "Officer Dill then proceeded to ask [E.D.] for his pertinent information so she could go on and make a report."

Vice-Principal Billings confirmed that Officer Dill was standing "behind" Normile "outside in the hallway" during Principal Normile's questioning and that she subsequently stepped inside. Officer Dill also testified that Billings' office was small and that she was standing "behind" Normile "in the hallway" when the principal was questioning E.D. However, E.D. could see her from where he was seated. She was wearing a uniform and carrying a weapon.

As E.D. had become "agitated" and used "profanities" while being questioned by Normile, Officer Dill "switched positions" with the principal and moved closer to E.D. She proceeded to ask E.D. for his pertinent information to construct a report. According to Normile, "[t]he questions she asked related directly to his name, address and age." E.D. responded, [y]ou can fucking as[k] them, they know."

In light of E.D.'s conduct during the interview, Principal Normile asked Dill "to remove him from the school." Officer Dill then attempted to handcuff E.D. and instructed him to stand up. As E.D. stood up, Dill instructed him to remove his book bag. E.D. "very roughly" took off his book bag and "threw it, hitting the officer in the shin and top of her foot." Officer Dill felt "a dull sharp pain in [her] shin" that "went up towards [her]" knee. According to Dill, the bag weighed "approximately 10 pounds."

As Officer Dill attempted to handcuff E.D., he also refused to put his arms behind his back. Dill "was able to get one of his arms behind his back," but he "violently continued to flail," telling her to "get [her] fucking hands off" him. As he was "flailing," E.D. "threw a punch" at Vice-Principal DiVincenzo, who was also present and trying to calm E.D. down, saying "keep your fucking hands off me old man." Dill was finally able to get the second hand into the handcuffs, and arrested E.D.

I.

E.D. contends that his statements at the school were inadmissible because they were obtained in violation of his Fifth Amendment right to remain silent because his statements were made during the course of a custodial interrogation in which neither the principal nor Officer Dill attempted to contact his parents. We reject the contention, but add that even if we were to agree with E.D., that might only affect the false alarm charge and not excuse his conduct while in the Vice-Principal's office. Moreover, notwithstanding the juvenile's separate arguments about the insufficiency of the evidence on which to convict even if his statements were admissible, we decline to decide the issue on harmless error grounds.

Miranda warnings are necessary where there is a "custodial interrogation," as defined by "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966).

In State v. Biancamano, 284 N.J. Super. 654, 661 (App. Div. 1995), certif. denied, 143 N.J. 516 (1996), overruled on other grounds, State v. Dalziel, 182 N.J. 494 (2005), we considered whether a school principal and vice-principal are to be considered as law enforcement officers when they question a student on school grounds. In that case, a student was called to the vice-principal's office and questioned about drug dealing with the principal present for an hour and fifteen minutes. Id. at 657-58. We held that in interrogating the student, the vice-principal was acting within his capacity as a school administrator whose duties included maintaining the "welfare and safety and welfare of his students." Id. at 661. We further stated that "[w]hile the police may eventually be summoned, the need to question students to determine the existence of weapons, drugs, or potential violence in the school requires that latitude be given to school officials." Id. at 663.

In quoting the Supreme Judicial Court of Massachusetts in Commonwealth v. Snyder, 597 N.E.2d 1363, 1369 (1992), we said:

There is no authority requiring a school administrator not acting on behalf of law enforcement officials to furnish Miranda warnings. Even if we were to assume that, during the questioning in the principal's office, the environment was coercive because Snyder was in custody (or because his freedom was significantly restricted) and that, therefore, Miranda warnings would have been required if the questioning had been by the police . . . [the principal and assistant principal] were not law enforcement officials or agents of such officials. The Miranda rule does not apply to a private citizen or school administrator who is acting neither as an instrument of the police nor as an agent of the police pursuant to a scheme to elicit statements from the defendant by coercion or guile . . . The fact that the school administrators had every intention of turning the marihuana over to the police does not make them agents or instrumentalities of the police in questioning Snyder.

[State v. Biancamano, 284 N.J. Super. at 663].

We also noted that school officials "must have leeway to question students" about activities that violate the law or that violate school rules. Id. at 661. "This latitude is necessary to maintain discipline" and "to determine whether a student should be excluded from the school" to protect other students. Ibid. We did not have to resolve the question of interrogations by school officials conducted within the presence of law enforcement officers, or at their "behest." Id. at 661-62.

This case is different that Biancamano in that Principal Normile conversed with Officer Dill and looked at the surveillance video recordings with her before questioning E.D., and the subsequent discussion can be considered more of an interrogation than in Biancamano because it focused on E.D.'s suspected wrongdoing. However, there is no proof that Dill prepared Principal Normile's interrogation of E.D. or suggested what he should ask. To the contrary, neither knew E.D. was in the Vice-Principal's office when they went there to further investigate the "9-1-1" call to which Officer Dill responded, and Dill did not participate in the questioning which led to the incriminatory response after the principal asked why E.D. was there.

Moreover, while present during the principal's questioning of E.D., Dill was standing behind him and did not personally engage in the interrogation. Furthermore, it is not clear that E.D. would have been taken into custody or arrested if he were responsive to the concerns of the school officials or contrite.

In the totality of circumstances, we affirm the judge's ruling of admissibility. The principal did not appear to be acting on behalf of law enforcement, but was endeavoring to ensure safety and discipline on school grounds, as opposed to furthering a police investigation for purposes of prosecution. Cf. Joye v. Hunterdon Cent. Reg'l High School, 176 N.J. 568 (2004) (upholding drug testing under Fourth Amendment because not for law enforcement purposes). The "9-1-1" call required the police to respond, and school officials had to be assured that there was no threat to the health and safety of students. Cf. State v. Frankel, 179 N.J. 586 (2004) (discussing "9-1-1" calls and the emergency aid doctrine).

II.

E.D. contends that the trial court's failure "to timely consider and ultimate failure to rule upon [his] motion with regard to the discovery issue concerning the tape of the surveillance cameras at the school prejudiced his right to a fair trial." E.D. also alleges that there was a discovery rule and Brady violation because "counsel requested a copy of the surveillance tape before the principal testified," and the court never ruled on his pretrial discovery motion. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963) (discussing State's obligation to provide exculpatory evidence and holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution").

In order to establish a Brady violation, E.D. must show that "(1) the prosecution failed to disclose the evidence; (2) the evidence was of a favorable character for [E.D.]; and (3) the evidence was material." State v. Carter, 85 N.J. 300, 311 (1981).

There was a dispute at the outset of the trial about discovery of the school videotape. A motion with respect to discovery of the tape had never been heard, but the prosecutor represented that "you can't see anything on it" and "[i]t's totally dark." The judge who tried the case said he would resolve the matter at a later time. After the second day of trial, the State rested, and before the defense witness testified nineteen days later, the following was placed on the record:

THE COURT: All right. Was the issue about going and looking at the tape at the school resolved?

[PROSECUTOR]: Yes, Your Honor. Judge, [defense counsel] has gone and looked at the tape, as did myself. But the State also was able to reproduce a copy of the tape.

THE COURT: You now have it?

[PROSECUTOR]: Yes. We sent our electronic surveillance guys over there to the school for two days, and we managed to take apart the system and download it onto the tape, which I provided to [defense counsel] last week. Yes, he does have a copy of it.

THE COURT: All right, so there's no dispute that whatever the two of you went to look at is the same thing that [] was given to [defense counsel]?

[PROSECUTOR]: Yes, it is exactly the same. It's literally downloaded off of the security system.

THE COURT: All right. Go ahead, [defense counsel].

[DEFENSE COUNSEL]: The family will call Charles Benoit.

Benoit, a criminal investigator, testified for the defense. He had reviewed the tape and gave a "chronological view of what [he] saw."

In rebuttal, Principal Normile testified about the video system, and Cheryl Flannigan, a school employee, testified about what she saw on the tape.

Normile testified that the system was forty years old, and Vice-Principal Billings had further explained during his testimony that the videos were not stored on tapes or DVDs, but on a "hard drive of the device that records." Hence, initially the tapes could only be viewed on school property, and the trial judge adjourned the trial so that the juvenile's attorney could visit the school and view the surveillance video. The prosecutor was also ultimately able to have a detective dismantle the system, make a tape copy, and provided it to E.D.

Here, there was no failure to disclose information by the prosecution, no prejudice to E.D., and nothing exculpatory which was not provided.

Although E.D. argues that there are time discrepancies between the times referred to in testimony and on the tape (which has not been presented to us), the prosecution in summation conceded "that the tape is eight to ten minutes off" (for example, Officer Dill was observed arriving at around 1:40 on the tape, and Principal Normile testified that, given the fact that the surveillance system was forty years old, the recording device clocked slightly inaccurate timing. The trial judge concluded that the timing discrepancies were not "fatal" to the case. There is no basis for disturbing that ruling and finding.

III.

E.D. contends that the Family Part abused its discretion by imposing a term of probation as opposed to a deferred disposition. In the dispositional phase, the trial judge noted that E.D. had committed "a prior simple assault" for which he had previously been given a deferred disposition, and concluded:

I've also taken into consideration the impact on the school community; the school as the victim; the threat to the safety of the public.

On the mitigating . . . [h]e should have, but didn't contemplate that his conduct would cause any serious harm.

I'm satisfied that with the help he's getting from Mr. Anderson something like this won't happen again, he won't commit another offense. Non-custodial treatment is appropriate. And I've also considered as an additional factor his psychological and development needs.

Weighing all of the factors, the judge found that the mitigating factors outweighed the aggravating factors, sentenced E.D. to one year of probation, and instructed him to attend school and cooperate with the Department of Human Services. He also directed E.D. to engage in additional therapy with his mentor through the "My Brother's Keeper" program. We find no basis to disturb the sentence.

Nor does the $2,000 mandatory fine required by N.J.S.A. 2C:33-3.2 constitute cruel and unusual punishment. State v. Ramseur, 106 N.J. 123, 169 (1987). As the judge pointed out, the mandatory fine was indeed difficult for the juvenile to pay, but it was embodied into a civil judgment to be paid over time, and he cannot be incarcerated for an inability to pay it, so long as he pays what he can over time. See e.g. In re D.G.W., 70 N.J. 488, 505 (1976); State v. Anaya, 238 N.J. Super. 31, 40 n.6 (App. Div. 1990); In re L.M., 229 N.J. Super. 88, 98-101 (App. Div. 1988), certif. denied, 114 N.J. 485 (1989). We note that E.D. does not argue that N.J.S.A. 2C:33-3.2 does not apply to juveniles.

The adjudication is affirmed.

 

Three other offenses were dismissed or resulted in not guilty adjudications.

Apparently, school officials were unaware of the "9-1-1" call before Keansburg Police Officer Tiffany Dill responded to the scene.

At first the question was asked in terms of "touch[ing]" the phone on the way to the office after being escorted from class by the security officer.

With regard to the sufficiency argument, as we understand the record, the tapes appear to disclose no one else monitored on a surveillance camera who could have used the particular phone at the time in question.

The State had completed its case on February 4, 2005, and the trial resumed on February 23, 2005. At the end of the proceedings on February 4, the judge said:

I'm going to continue it Tuesday the 15th at 1:30. I believe that Judge Scully on the 14th and 15th has light calendars and he's going to be doing referee informal cases pretty much on those days. And I'm ordering Ms. Commentucci [the prosecutor] and Mr. McGowen [defense counsel], between now and then, to go to the Keansburg High School and to view the security tape that's been referred to that's a hard tape. I guess it doesn't sound like you can make a coy off of it. So that Mr. McGowen can see what it shows. And I also want Ms. Commentucci to make a notation of anything on that in the system that denotes time periods of the scene that's depicted when the defendant allegedly can be seen in the main hallway on the tape. All right?

[DEFENSE COUNSEL]: I'll tell you right now, I don't think I can get up to Keansburg between now and Tuesday.

THE COURT: Well --

[DEFENSE COUNSEL]: And Ms. Commentucci made a representation yesterday on the record that basically she viewed the tape, it was supposedly they couldn't see anything. Normile said the same thing.

THE COURT: Well, if you don't want to go see it, that's fine. I'm giving you that opportunity.

The case was carried for additional reasons to February 23.

A post-adjudication certification of the trial prosecutor, prepared for the appeal, is consistent with the record, but need not be considered by us.

(continued)

(continued)

16

A-5549-04T4

RECORD IMPOUNDED

July 27, 2006