STATE OF NEW JERSEY v. ANTHONY S. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0140-07T40140-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY S. JOHNSON,

Defendant-Appellant.

______________________________

 

Submitted March 16, 2009 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1248.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Seelenfreund, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In June 2005, an Atlantic County grand jury indicted defendant Anthony Johnson, charging him with first-degree aggravated sexual assault upon his minor child, N.J.S.A. 2C:14-2(a) (count one), and second-degree endangering the welfare of that child, N.J.S.A. 2C:24-4(a) (count two). Prior to trial, defendant moved to suppress incriminating statements that he had made to the police at the time of his arrest. The trial court denied the suppression motion, and defendant's statements were consequently admitted against him at trial. The jurors convicted defendant of both counts of the indictment. He was sentenced to an eighteen-year prison term, conditioned upon a nine-year period of parole ineligibility.

Defendant appeals the trial court's denial of his suppression motions and his ensuing convictions. He argues that the trial court misapplied governing principles of law under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), particularly as those principles have been construed by the Supreme Court of New Jersey in State v. Nyhammer, 197 N.J. 383 (2009) and State v. A.G.D., 178 N.J. 56 (2003). Defendant also contends that his sentence was excessive. We reject defendant's arguments, and therefore affirm his convictions and sentence.

I.

The following salient facts in the record are relevant to our consideration of the issues raised on appeal. We glean those facts from both the pretrial suppression hearings and the testimony at trial.

Defendant is the father of C.T., a son who was born in May 1988. According to C.T., defendant began sexually molesting him when he was four or five years old. The acts of sexual abuse ceased when C.T. was age eight or nine. As estimated by C.T., he helped defendant masturbate and ejaculate on about thirty occasions, engaged in oral sex with defendant about twenty times, and had anal sex with defendant about ten times.

When C.T. was thirteen or fourteen years old, he told his "Uncle Dennis," who was then living with him and defendant, about the sexual abuse that defendant had previously inflicted upon him. Uncle Dennis promised C.T. that he would not tell anyone what C.T. had confided in him, including C.T.'s father. Two or three years later, on February 16, 2005, Uncle Dennis accompanied C.T. to the Atlantic City police department. At the time, C.T. was sixteen years old. He apparently had been in an argument with his father earlier that day.

C.T. gave the police a taped formal statement, accusing defendant of the sexual acts that he had previously recounted to his uncle. In addition, Uncle Dennis supplied the police with a formal statement. The two police officers who took the statements were Detective Heidi Clayton and Detective Lee Hendricks.

Following these interviews, Detective Clayton notified the Division of Youth and Family Services and an Assistant Prosecutor of C.T.'s allegations of abuse. The Assistant Prosecutor authorized Clayton to pursue first-degree charges of sexual abuse against defendant. Clayton began preparing an arrest warrant for defendant. The detective was unsure, however, of "exactly what wording to put in" the narrative section of the warrant, so she set the draft aside until she had more information.

Not wanting to put C.T. back in his father's presence, Detective Clayton contacted C.T.'s grandmother, who agreed to look after him at her own residence. Clayton made arrangements for another police officer to drive C.T. to his grandmother's house. That same officer also drove Uncle Dennis back to his apartment.

Later that evening, at about 9:00 p.m., Detective Hendricks, Detective Clayton, and two uniformed officers went to defendant's apartment. Uncle Dennis let the police officers inside. They told him "we're here to arrest [your] brother." The officers spotted defendant in his bedroom, sitting on his bed, with the door open. He was dressed in boxer shorts and attached to an oxygen tank. According to Detective Clayton, he was smoking a cigarette.

When defendant first encountered the officers in his bedroom, he stated to them, without prompting, that he "was expecting that [they] were coming." As Detective Clayton recalled it, she replied, "[Y]ou are under arrest. Get dressed because you are going with us." Detective Clayton, a female, then left the bedroom to allow defendant to get dressed, while Detective Hendricks, a male, remained with him.

As defendant was dressing, he began to talk about the allegations that C.T. had made against him, and, as Detective Hendricks recalled it, "give his side of the story." Defendant was speaking loudly enough for Detective Clayton to hear him from outside the bedroom.

At this point, Detective Hendricks interrupted defendant and gave him Miranda warnings. Despite having been given the warnings, which he acknowledged, defendant resumed talking. In the course of doing so, he made additional incriminating statements about his sexual abuse of C.T.

Detective Clayton reentered the bedroom and told defendant to gather his things because he was going to be taken away in a police car. Defendant was then escorted to the police station. He was not handcuffed because he was still connected to the oxygen tank. Apparently, defendant did not say anything during the short ride.

Once at the police station, defendant was reissued Miranda warnings, and he also initialed a Miranda form. Defendant then agreed to give the police a taped statement. In his taped statement, defendant confessed to sexually abusing C.T. on multiple occasions. As paraphrased by Detective Clayton, defendant stated, among other things, that

one day he was masturbating and his son came in and he was surprised that his son put his hands on his penis and said 'Do you want to help daddy?' And from that point on the defendant and his child when he would want him to help him masturbate or something sexual, he would ask him, Do you want to help daddy? He explained that there were one or two incidents of oral sex, but not very often, that they had tried anal, but [C.T.] had said it had hurt so he had stopped.

The indictment ensued. Despite his stationhouse confession, defendant pleaded not guilty and denied performing any sexual acts upon C.T. He maintained that his taped statement was untrue and resulted from the effects of prescription medication and narcotics that he had been taking on the day of his arrest.

Before trial, defense counsel moved to suppress defendant's statements to the police. The trial court conducted an evidentiary hearing on the Miranda issue, taking testimony from Detective Hendricks, and also listening to defendant's tape-recorded statement. Defendant did not testify at the suppression hearing.

Following those proofs, the court heard oral arguments from counsel. Among other things, defense counsel argued that the police had violated defendant's Miranda rights by not advising him of the pendency of a forthcoming arrest warrant. Defense counsel sought to leave the record open so that he could supply the court with a citation to a supporting case.

The trial judge acceded to defense counsel's request for time to supplement the record with additional case law. However, the judge also made a preliminary oral ruling denying the suppression motion, subject to potential reconsideration in light of the case law forthcoming from defense counsel.

In his initial decision, the trial judge found that defendant's statements to the police were voluntary and that the police officers' conduct had comported with Miranda and related precedents. In particular, the judge found that defendant, even after receiving Miranda warnings, was "very eager" to explain to the police what he had done with his son. The judge also found that defendant was "under no physical or mental labor of any type so as to affect his ability to understand what he was being asked or to give answers or to be nonresponsive in any way, shape or form."

The judge further noted that once defendant was transported to the stationhouse and reissued Miranda warnings, he "again was eager to give information," and that he went on to describe in "infinite detail . . . rather despicable acts that went on with [him] and his son[.]" The judge perceived that defendant "probably realized that his son had [already] spoken and had given statements," and that defendant "wanted to set the record straight" because it "would somehow exonerate him [of] these rather disturbing offenses that by his words took place."

Given the circumstances, the judge concluded that defendant had "waived his Miranda safeguards not once, but twice." He found that defendant was under "no threat [and] under no compulsion to give those statements." The judge rejected defendant's claim that the police were obligated to tell defendant about the forthcoming arrest warrant when he gave his statements. Instead, the judge found that such non-disclosure did not "obviate in any way shape or form the voluntariness" of defendant's statements.

Subsequently, defense counsel provided the trial judge with a citation to the Supreme Court's opinion in A.G.D., supra, 178 N.J. at 56, arguing that the holding in A.G.D. compelled the suppression of defendant's statements. The judge then reopened the Miranda hearing, at which he heard testimony from Detective Clayton and also considered further oral arguments from counsel. In her hearing testimony, Detective Clayton narrated the sequence of events of February 16, 2005, beginning with her interactions with C.T. and Uncle Dennis at the police station that afternoon and concluding with defendant's taped confession later that evening. Clayton corroborated that Detective Hendricks had interrupted defendant when he first began speaking to the officers, and that Hendricks had given defendant Miranda warnings in his bedroom. Clayton also related her conversation with the assistant prosecutor about procuring an arrest warrant.

Upon considering the supplemental testimony, counsel's citation to A.G.D., and further oral argument, the judge reaffirmed his denial of the suppression motion. The judge found that Detective Clayton was credible. He determined that Clayton went to defendant's residence "with a specific intent to arrest" him, and that it was not "fatal that she didn't have an arrest warrant in hand." The judge was satisfied "on the totality of circumstances that the defendant knew why [the police] were there and made a knowing and intelligent waiver of his right to remain silent." Accordingly, the judge ruled that A.G.D. did not require suppression of defendant's statement, given his manifest understanding that he was about to be arrested when the police arrived at his dwelling.

At the ensuing trial, the jury heard detailed testimony from C.T., who described the various acts of sexual abuse that his father had committed upon him since he was a young boy. The State also called Detectives Clayton and Hendricks, who essentially amplified the testimony that they had previously given at the suppression hearing. The State also played the tape of defendant's confession that he gave at the police station. Finally, the State called Uncle Dennis, who explained how C.T. had first confided in him about defendant's abusive behavior.

Defendant took the stand in his own defense. He denied that he had abused C.T., and attempted to explain his contrary statements to the police as the by-product of the influence of drugs. No other defense witnesses testified.

After deliberations, the jury convicted defendant of both counts of the indictment. At sentencing, the judge merged count two into count one and sentenced defendant to an eighteen-year-term, with a nine-year parole ineligibility. Defendant was referred for evaluation at the Adult Diagnostic and Treatment Center in Avenel.

In his initial brief on appeal, defendant raised the following points:

POINT I

THE TRIAL JUDGE'S DECISION TO ALLOW DEFENDANT'S STATEMENTS TO BE USED AT TRIAL VIOLATED JOHNSON'S RIGHT TO DUE PROCESS OF LAW AND WAS FUNDAMENTALLY UNFAIR.

A. Defendant's Motion For Reconsideration Based On A.G.D. Should Have Been Granted.

B. The Trial Judge Compounded The Legal Error -- The Refusal To Apply A.G.D. To His Own Factual Findings -- By Allowing The State To Reopen Its Case And Put On An Additional Witness. This Decision Was A Gross Abuse Of Discretion.

C. The Trial Judge's Failure To Resolve The Inconsistencies Between The "New" and "Old" Findings Negates The Deference Normally Given to Trial Courts. Analyzing The Entire Record Yields A Conclusion That The State Did Not Meet Its Burden Of Proof Of Beyond A Reasonable Doubt On The Voluntariness Of Defendant's Statements.

D. The Trial Judge Applied The Wrong Legal Standard And Made Incorrect And Erroneous Legal Findings.

E. Conclusion

POINT II

THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

Defendant also filed, at the request of the court, a supplemental letter brief addressing the Supreme Court's intervening opinion in Nyhammer, supra, 197 N.J. at 383. He argued:

SUPPLEMENTAL POINT I

STATE V. NYHAMMER STRONGLY SUPPORTS DEFENDANT'S ARGUMENT RAISED IN POINT I OF HIS APPELLATE DIVISION BRIEF

We now consider these contentions.

II.

In Miranda v. Arizona, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719, the United States Supreme Court held that, in order to safeguard Fifth Amendment rights against self-incrimination, a person may not be subjected to custodial interrogation by the police unless he is apprised of certain rights. Those rights include the right to remain silent, the right to know that anything he says may be used against him in court, the right to have counsel present, and the right to have appointed counsel if he is indigent. Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. The Court in Miranda also required that statements made to the police during a custodial interrogation be excluded at trial, unless it is shown that the defendant "knowingly, voluntarily and intelligently waived his rights" in responding to the officers' questions. Ibid.

In New Jersey, a prosecutor bears the burden of proving such a voluntary waiver beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313 (2000). In making that assessment, our courts must look at the "totality of circumstances" involved. Ibid. We consider such factors as defendant's age, education and intelligence; the advice given about his constitutional rights; the length of the detention; whether the questioning was repeated or prolonged; and whether physical punishment or mental exhaustion was involved. Ibid.; see also State v. Dispoto, 189 N.J. 108, 124-25 (2007) (noting that "fact-based assessments" are appropriate in considering the totality of circumstances and deciding whether a defendant voluntarily waived his rights).

As a preliminary matter, we reject defendant's contention that the trial judge abused his discretion in reopening the Miranda hearing to allow testimony from Detective Clayton. The probative significance of Clayton's narrative increased when defense counsel made an issue of the fact that the police had said nothing about an arrest warrant when they appeared at his apartment. The court acted well within its prerogative in gathering as much evidence as it needed to rule on defendant's suppression motion, with the benefit of a well-developed record. See N.J.R.E. 614 (authorizing judges to call and interrogate any witness); see also In re Kallen, 92 N.J. 14 (1983) (recognizing a tribunal's inherent power to reopen a hearing to adduce more relevant proofs). The judge also fairly attempted, through a letter to counsel, to provide advance notice of his intention to reopen the hearing, not only for more legal argument, but also for more testimony, although that letter apparently was not received in time.

Having dispensed with the procedural objection, we turn to defendant's substantive arguments. At the core, defendant contends that the Supreme Court's opinions in A.G.D. and Nyhammer required the police in this case to tell defendant explicitly that they were preparing a warrant for his arrest before they issued him Miranda warnings and took his statement. We disagree.

In A.G.D., supra, 178 N.J. at 56, the Court considered a scenario in which the police had obtained a warrant to arrest defendant for sexually abusing his daughter. Four days later, a detective went to defendant's house and told him that the police wanted to discuss allegations of sexual abuse that had been asserted against him. Id. at 59. The detective did not tell defendant of the existence of the arrest warrant, and he did not say to defendant that he was under arrest. Ibid. Defendant cooperatively accompanied the detective to the police station, where, after he was issued Miranda warnings, he gave an incriminating statement. Ibid.

The Court held defendant's statements in A.G.D. had to be suppressed because his waiver of his right to remain silent, under the circumstances, was not knowing, intelligent and voluntary. Id. at 68. According to the Court, the problem was that the police had extracted the statement "without advising the suspect of his true status when he does not otherwise know it." Ibid. In announcing that ruling, the Court in A.G.D. made clear that its holding "is not to be construed as altering existing case law in respect of the manner in which the police conduct interrogations other than imposing the basic requirement to inform an interogatee that a criminal complaint has been filed or issued." Id. at 68-69.

More recently, in Nyhammer, the Court dealt with a situation in which the police contacted defendant by telephone and requested him to come down to the police station to discuss allegations that his uncle had sexually abused his grand-niece. 197 N.J. at 389. The detective did not tell defendant, however, that the child had made accusations of abuse not only against defendant's uncle but also against defendant himself. At the time of the request for defendant to appear for questioning, however, no arrest warrant or criminal complaint against him had issued. Id. at 389-90. Defendant complied with the detective's request. He came to the police station, where he was given Miranda warnings and interrogated. At that point, the police divulged to defendant the accusations that the child had made against him, whereupon he admitted to inappropriate contact with her. Id. at 391.

Reversing a contrary decision of this court, the Supreme Court held that Nyhammer's custodial statement was admissible, even though the police had not mentioned to him that he was a suspect when they brought him in for questioning. Id. at 405. The Court noted that "the defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime." Id. at 406. The Court recognized the subjective nature of the label "suspect," observing that "[a] suspect to one police officer may be a person of interest to another officer." Id. at 405. The Court contrasted "suspect" status to "the issuance of a criminal complaint and arrest warrant by a judge," which is "an objectively verifiable and distinctive step." Id. at 404. Consequently, the Court in Nyhammer distinguished the facts from those in A.G.D., where a complaint and warrant had already issued and the police hid their existence from the defendant. At most, Nyhammer instructs that the status of the interviewee as a suspect is only one of many factors to be analyzed within the totality-of-circumstances test, not a bright line basis for exclusion. Under the record facts in Nyhammer, the Court was satisfied that the defendant had a clear understanding of his rights and that coercive tactics by the police were absent "throughout the interrogation." Id. at 409.

Here, the proofs show that no arrest warrant or criminal complaint had issued by the time that the police appeared at defendant's apartment. The police clearly had probable cause to demand to be let inside and to apprehend defendant before he possibly attempted to go undercover or flee. The police did not mislead defendant in any way. As the trial judge found, defendant plainly knew why the police had come to see him. In fact, defendant announced that he had been "waiting" for the police to arrive. Under A.G.D., supra, 178 N.J. at 68, defendant "otherwise knew" of his status and it was unnecessary for the police to have validated his assumptions explicitly.

We also reject defendant's claim that there were critically material deviations in the testimony of Detective Hendricks and Detective Clayton. The differences cited by defendant are inconsequential, in light of the implications of the governing law and the factfinding undertaken by the trial court that reasonably harmonized the proofs.

In sum, we adopt the trial court's finding that defendant's statements to the police were knowing, voluntary and intelligent, and the trial court's associated findings about the testifying detectives' credibility. State v. Locurto, 157 N.J. 463, 474-75 (1999). We affirm the denial of the suppression motion, essentially for the sound reasons articulated by Judge Michael Donio in his oral decisions of January 5 and February 2, 2006.

III.

Defendant's challenge to his sentence as excessive is without merit. Although we are mindful that defendant had no prior criminal record, we are equally mindful of the repetitive and exploitative nature of his acts of intrafamilial sexual abuse. We also note that the trial judge described defendant's sworn protestations of innocence as "some of the most incredulous testimony I've ever heard in almost 27 years[.]" Given our limited scope of review of sentencing decisions, we are not persuaded that the eighteen-year term imposed on this first-degree offender "shocks the conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). The sentence is affirmed.

IV.

Full consideration has been given to the balance of defendant's arguments. Because they all lack merit, we need not discuss them in this written opinion. R. 2:11-3(e)(2).

 
Affirmed.

"Uncle Dennis" is defendant's adult brother. We use the pseudonym "Dennis" in lieu of his actual first name.

(continued)

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10

A-0140-07T4

RECORD IMPOUNDED

July 17, 2009