STATE OF NEW JERSEY v. SHAHID BASKERVILLE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4209-09T4

A-4410-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAHID BASKERVILLE,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDER ALFARO A/K/A

ALEXANDER GOMEZ,

Defendant-Appellant.

______________________________

October 19, 2010

 

Submitted: September 15, 2010 - Decided:

 

Before Judges Cuff, Fisher and Fasciale.

 

On appeal from the Superior Court of New Jersey, Criminal Division, Essex County, Indictment No. 08-09-2688.

 

Yvonne Smith Segars, Public Defender, attorney for appellant Shahid Baskerville (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

 

Yvonne Smith Segars, Public Defender, attorney for appellant Alexander Alfaro (Michael J. Marucci, Deputy Public Defender, and Raymond P. Morasse, Designated Counsel, on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the briefs).

 

PER CURIAM

By leave granted, we review two orders denying defendants Shahid Baskerville and Alexander Alfaro's motions to suppress statements made by them during a police interrogation.1 Each defendant was a juvenile at the time of his arrest. The charges arise from their involvement in the August 4, 2007 shooting of four students, three of whom died, in a Newark schoolyard.

Each defendant gave a statement to police in the presence of his mother following the administration of Miranda2 warnings and waiving his right to remain silent. Each argues he had a right to counsel at that time in accordance with State in the Interest of P.M.P., 200 N.J. 166 (2009), and each argues he did not knowingly and voluntarily waive his right to remain silent. We affirm.

On August 4, 2007, at approximately 11:40 p.m., Newark Police officers arrived at the Mt. Vernon School at 142 Mt. Vernon Place in Newark to investigate a report of a shooting. The officers found three deceased young adults: Terrance Aeriel, Dashon Harvey, and Iofemi Hightower. They also found a young woman, Natasha Aeriel, lying in the parking lot, conscious, and covered in blood from a gunshot wound. Emergency medical personnel transported her to a hospital for treatment.

Autopsies determined that Iofemi Hightower died from a gunshot wound to the neck and "sharp-force" injuries to the face, head, and upper extremities. Terrance Aeriel died from a gunshot wound to the neck. Dashon Harvey died from a gunshot wound to the head.

Between August 4 and August 10, 2007, the Newark Police Department (Newark PD) filed an eleven count juvenile delinquency complaint charging defendant Baskerville with multiple acts of felony murder, robbery, weapons possession, and conspiracy to commit robbery. On August 14, 2007, the Newark PD filed a similar complaint against defendant Alfaro.

Alfaro and Baskerville were waived to adult court on January 29, 2008, and April 17, 2008, respectively. On September 12, 2008, an Essex County Grand Jury returned a nineteen count indictment against defendants and their co-defendants Rodolfo Godinez,3 Jose Carranza, Melvin Jovel,4 and Gerardo Gomez.5 The charges included one count of second degree conspiracy to commit robbery, four counts of armed robbery, three counts of felony murder, three counts of knowing and purposeful murder, and one count of attempted murder. Alfaro was charged in seventeen of nineteen counts. Baskerville and another co-defendant were also charged with aggravated sexual assault and sexual assault.

Baskerville and Alfaro filed motions to suppress statements they gave following their arrests. Alfaro's Miranda hearing commenced on March 26, 2009; the judge issued a written opinion and order denying the motion on July 27, 2009. Baskerville's hearing commenced on March 25, 2009. The judge did not render an opinion before the matter was re-assigned to Judge Ravin. On October 9, 2009, Baskerville requested to recall the witness who had testified in March, and also argued that his statement should be suppressed because counsel had not been appointed before his interrogation as required by P.M.P. Baskerville's hearing resumed on November 10, 2009, and concluded on December 17, 2009. Judge Ravin denied Baskerville's request to recall the witness who had testified in March 2009 after defense counsel conceded the witness's tone or demeanor was not relevant to his decision. On April 9, 2010, Judge Ravin denied the Baskerville motion to suppress and the Alfaro motion for reconsideration in which he argued that P.M.P. should be applied retroactively and counsel should have been provided to him.

On appeal, defendant Shahid Baskerville raises the following arguments:

POINT I

SINCE THE STATE FAILED TO PRODUCE ANY EVIDENCE REGARDING POLICE INTERACTION WITH DEFENDANT BETWEEN HIS ARREST IN MORRISTOWN AND HIS SUBSEQUENT RECORDED STATEMENT IN NEWARK, DESPITE DEFENDANT'S CLAIMS THAT HE WAS IMPROPERLY QUESTIONED AND ABUSED BY POLICE DURING THAT TIME, THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT HIS RECORDED STATEMENT WAS VOLUNTARY.

POINT II

SINCE DEFENDANT'S ARREST AND QUESTIONING OCCURRED IN THE ABSENCE OF COUNSEL, HIS RECORDED STATEMENT MUST BE SUPPRESSED PURSUANT TO [P.M.P.].

On appeal, defendant Alexander Alfaro raises the following arguments:

 

 

POINT I

THE ISSUANCE OF JUVENILE COMPLAINTS AND A JUDICIALLY APPROVED ARREST WARRANT TRIGGERED A CRITICAL STAGE IN THE PROCEEDING, IMPLICATING THE JUVENILE'S STATUTORY RIGHT TO COUNSEL, AND THEREFORE THE QUESTIONING OF THE JUVENILE IN THE ABSENCE OF COUNSEL REQUIRES THE SUPPRESSION OF HIS SUBSEQUENT STATEMENT TO INVESTIGATORS.

A. The New Jersey Supreme Court's Holding in State in the Interest of P.M.P., 200 N.J. 166 (July 29, 2009), Should Be Applied to the Case at Bar.

1. The Case at Bar is Still in the Pretrial Stage, and Therefore the Interlocutory Orders at Issue are Subject to Revision or Reconsideration at Any Time Prior to the Entry of a final Judgment.

2. The Holding in [P.M.P.] Should be Given Some Form of Retroactive Application.

B. The Holding in State in the Interest of P.M.P. Requires that Defendant-Appellant's Custodial Statement be Suppressed.

POINT II

 

THE JUVENILE DEFENDANT DID NOT WAIVE HIS MIRANDA RIGHTS KNOWINGLY AND VOLUNTARILY, BECAUSE HIS MOTHER WAS PREVENTED FROM PROVIDING HIM WITH THE ADVICE AND SUPPORT THAT HE WAS ENTITLED TO DURING THE CUSTODIAL INTERROGATION, AND THEREFORE HIS SUBSEQUENT STATEMENT TO INVESTIGATORS SHOULD BE SUPPRESSED.

 

 

 

I

 

The facts pertaining to each defendant are derived from the record of the suppression hearing and the exhibits admitted in that proceeding.

A. Shahid Baskerville.

On August 10, 2007, members of the Newark PD arrested Baskerville at his home in Morristown. He was fifteen-years old. Baskerville was taken to police headquarters in Newark and placed in a room with Detective Lydell James. At approximately 4:00 p.m., Detective Kevin Green of the Essex County Prosecutor's Office arrived at the police station. Baskerville's mother Karramah Baskerville6 and his stepfather arrived about an hour later.

Green and James advised mother and son about the investigation and explained why the police wanted to speak to the son. She gave her consent. They also advised Karramah and Baskerville that the statement would be video and tape recorded. There was no pre-interview. Baskerville was not wearing any restraints.

The statement began at 5:23 p.m. Before asking questions, James read the Miranda warnings to Baskerville and his mother and then asked both to read the form. He next asked them to read the waiver portion and, when they finished, to read it to him. Karramah read the waiver aloud, stated that she understood it, and indicated she still wanted the police to question her son. She and Baskerville wrote their initials next to each line and signed their names at the bottom of the form. Baskerville then acknowledged that he was advised of his rights, fully understood those rights, wished to provide a statement, and his mother was in the room with him.

Baskerville proceeded to admit his role in the incident at the school playground. He related that he went to the school with Alfaro and Gerardo "to get some money." They met Carranza, Jovel, and Godinez there. After a few minutes, Jovel pulled a gun. At Godinez's orders, Jovel told the victims to get out of the car and onto the ground. Carranza collected their personal belongings. Godinez then ordered three of the victims down some stairs, and he, Jovel, Alfaro, and Gerardo followed them. Godinez told Baskerville and Carranza "to stay up there and watch the other girl. . . ." Baskerville admitted "harassing her," putting his hands "in her clothes," and "fingering her." He then heard shots, and Jovel came up the stairs and shot the girl. Baskerville concluded his statement at 6:16 p.m.

Green testified that he and James left the room for ten or fifteen minutes so Karramah and her son could speak privately before taking Baskerville's statement. He described Baskerville as nervous, but forthcoming. He had no difficulty communicating with Baskerville or his mother. He described both as lucid.

Green knew of no threats or force used against Baskerville during the investigation. Although he was not present at the arrest, Green explained that Baskerville did not seem upset, under duress, or "beat up" upon his arrival at the Newark PD. He further explained that "[y]ou can look at a young man and see if he was upset. [Baskerville] just seemed a little nervous as to what was going to happen. . . ."

Baskerville testified he was handcuffed after his arrest and questioned by James. After a search of his home, he was placed in a patrol car with four officers who questioned and physically abused him during the drive to Newark. At the police station, he was placed in a room, handcuffed to a chair, questioned by Green, and asked to draw the crime scene.

Baskerville denied having any opportunity to speak alone with his mother, claiming there were other detectives in the room with them. He was afraid to tell his mother what the officers did to him because he knew she was going to leave and he would be left with the detectives. Baskerville acknowledged that he and his mother were given copies of a "preamble paper and another sheet," and the officers read him his Miranda rights. He admitted waiving his rights because he "just didn't care."

Ernesto Perdomo, a clinical psychologist, addressed whether Baskerville understood his Miranda rights and made a knowing and intelligent waiver. He reviewed the recording of Baskerville's statement, the transcript of the videotape, the Miranda form, a psychiatric evaluation, and Baskerville's school records. Perdomo also evaluated Baskerville on April 17, 2009, at which time he administered the third edition of the oral test on nonverbal intelligence, a drawing test, and a personality test called the Millon Adolescent Clinical Inventory.

Perdomo found that Baskerville was in regular education in the Newark public school system, had no difficulty reading, had no history of psychiatric treatment or psychotropic medication, and had average-to-low intelligence. He also found that Baskerville's thought processes were organized and focused and that his memory was good. Baskerville told Perdomo that he had smoked marijuana, used to drink a lot, and used cocaine at least once.

Perdomo did not consider the Miranda warnings an intellectually challenging concept. When Perdomo asked what they meant, Baskerville replied: "[T]hey read you your rights." He further explained: "it is the right to have an attorney and the right to remain silent." Baskerville told Perdomo that he did not understand his rights when they were first read to him "because he didn't care what was going on; that he didn't pay attention."

Perdomo believed Baskerville had the cognitive and emotional abilities to understand his Miranda rights, and the presence of his mother during the police questioning provided him with significant support and assistance. He concluded to a reasonable degree of medical certainty that Baskerville understood the Miranda warnings given to him at the time of his statement, and he voluntarily waived his right to counsel. Perdomo disagreed with the defense expert's opinion that Baskerville was unable to make a rational decision to waive his rights because of his age, immaturity, and impulsiveness, and his treatment by the police.

Matthew Johnson, also a clinical psychologist, interviewed Baskerville during five or six sessions from December 2008 through February 2009, reviewed various documents, and administered four psychological tests: Kaufman Brief Intelligence Test; Wide Range Achievement Test; Beck Youth Inventories; and Minnesota Multiphasic Personality Inventory Adolescent Version. He similarly determined that Baskerville had low-to-average intelligence and found no indications of any psychiatric or psychological impairment. Johnson, however, found evidence of some depression, rebelliousness, lying, school behavioral problems, and alcohol abuse. Baskerville admitted he had prior arrests and had sold crack and cocaine, which Johnson found credible.

Johnson opined that Baskerville did not knowingly or intelligently waive his rights. Johnson believed Baskerville's immaturity as a fifteen-year old prevented him from understanding the assistance an attorney could have provided to him at the time. Johnson also believed Baskerville's decision to waive his rights was shortsighted, noting impulsiveness was common among adolescents. On cross-examination, however, Johnson acknowledged that Baskerville understood his right to have an attorney but "just didn't care." He also acknowledged Baskerville thought his mother's presence meant he would be released, which was consistent with his prior juvenile justice experiences.

Johnson also credited Baskerville's version of events following his arrest and further noted the officers engaged in three common interrogation tactics by: (1) encouraging Baskerville to use particular language to describe his contact with the female victim as digital penetration, rather than fondling; (2) asking Baskerville to draw a sketch of the crime scene; and (3) catching Baskerville in a lie prior to videotaping his statement. Johnson concluded these circumstances rendered his statement involuntary. Johnson also accepted Baskerville's descriptions of being slapped and beaten by the police.

Nonetheless, Johnson acknowledged inconsistencies in Baskerville's account. He also noted Baskerville initially denied using drugs on the day of the murders, but later said he had used them earlier that day. Johnson admitted that a person facing three murder allegations had motivation to lie.

Following a review of Green's testimony from the March hearing, Judge Ravin found Green and Perdomo credible witnesses, but expressed serious reservations about the credibility of Johnson's testimony and opinions. The judge found Johnson primarily relied on Baskerville's account of his arrest and background, even though Johnson admitted Baskerville had the motivation to lie and did so more than once. He further found Johnson's opinions conflicted with Perdomo's testimony as well as Baskerville's sworn statement.

Judge Ravin also found inconsistencies in Baskerville's testimony about why he gave a statement to the police. Whereas Baskerville initially said he gave the statement because his mother was present and he believed the police would release him, he later claimed he confessed because of the threat of continued police beatings. The court did not believe either version, noting Baskerville had a strong interest in the outcome of the proceedings, there was no credible corroboration or support for his allegations of physical abuse, and his testimony was unreasonable and inconsistent.

Accordingly, Judge Ravin concluded that the State met its burden to prove beyond a reasonable doubt that the police appropriately advised Baskerville of his rights and gave the requisite warnings, he knowingly and intelligently waived each right before making his statement, he never invoked or attempted to invoke any of these rights thereafter, and his statement was voluntary based on the totality of circumstances. He also concluded that the rule announced in P.M.P., which required the presence of counsel from the time a juvenile was subject to a complaint and judicially approved warrant, did not apply retroactively.

B. Alexander Alfaro.

Near midnight on August 18, 2007, Green and officers from the Prince William (Virginia) Police Department (Prince William PD) arrested Alfaro in Woodbridge, Virginia. He was sixteen-years old. Green read Alfaro his Miranda rights. Green accompanied Alfaro to the local police station, where they waited by themselves in a small officers' cafeteria for two to three hours. During that time, Green provided Alfaro with food and, at some point, Alfaro rested his head on a table and slept. After completing the necessary paperwork, patrol officers transported Alfaro to a local juvenile detention facility.

After Green executed a search warrant at the site of Alfaro's arrest, Green, James, and Detective Marquise Carter of the Essex County Prosecutor's Office went to a hotel to await the arrival of Alfaro's mother, Gloria Gomez. Green called the Prince William PD to request a Spanish translator for Gomez and a room with a video.

Meanwhile, Alfaro's brother, Godinez, who was also under arrest, requested police protection for their mother. Officers from the Newark PD went to her home between 11:30 p.m. and midnight on August 17, 2007, and brought Gomez and other family members to Newark police headquarters. At approximately 10:00 a.m. the next morning, Sergeant Darnel Henry and Detective Kevin Lassiter accompanied Gomez to Virginia.

The Prince William PD assigned Detective Felipe Cantu to serve as translator. Shortly before 5:30 p.m., Green, James, and Carter arrived at the juvenile facility simultaneously with Alfaro's mother. She was escorted by Henry and Lassiter. Cantu arrived about five minutes later and introduced himself to Gomez as her translator. At Green's request, Cantu asked if she would allow him to speak with her son. She permitted him to do so. Ten or fifteen minutes later, Cantu, Gomez, and several detectives entered a classroom where Alfaro was waiting. He was not wearing restraints.

James, Green, and Carter were present for Alfaro's statement, which began at 5:49 p.m. and ended at 7:59 p.m. Gomez sat next to her son and Cantu. Although the video recorder did not operate properly, the statement was tape-recorded. There was no pre-interview.

The detectives provided Alfaro and his mother with copies of the Miranda form in English and Spanish. Green read Alfaro his Miranda rights as Cantu read them to his mother in Spanish. After indicating that he understood his rights, Alfaro wrote his initials after each one on the English-language form, and his mother did the same on the Spanish-language form. Alfaro then read the rights aloud. Next, he read aloud the waiver portion of the form. Alfaro agreed to waive his right to an attorney, and placed his initials on the waiver form and signed it.

Gomez also indicated through the interpreter that she did not want an attorney present, but said she would like one at a later time. She read and initialed the Spanish version of the Miranda form and signed it. Cantu witnessed both forms. Alfaro then gave his statement in which he admitted that he "sliced" the female victim "a couple of times." After being shown a photo array by Lassiter, he identified some co-defendants. Alfaro did not testify on his own behalf and presented no experts.

Green testified that he did not ask Alfaro any questions during the ten-minute ride to the local police station following his arrest or during the two- or three-hour wait before Alfaro's transfer to the juvenile detention facility. He said Alfaro was happy to see his mother, they embraced, and they had an opportunity to speak before the interrogation began.

Gomez disagreed, stating she only exchanged brief words with her son, and no one asked if she wanted to talk with him alone. She did not remember being read the Miranda warnings or anything about her son's statement, claiming that at the time she felt awful because she was stressed and had not slept. She also claimed Cantu did not talk to her. Cantu, however, testified that he translated the Miranda rights aloud for Gomez, that she read the waiver and signed the Spanish-language form, and that she interrupted the interrogation several times to ask for clarification.

Based on his review of the taped statement and testimony, Judge Ravin concluded Alfaro knowingly and intelligently waived his Miranda rights and his statement was voluntary. The judge subsequently determined that P.M.P. did not apply retroactively for the same reasons cited in his decision denying Baskerville's reconsideration motion.

II

 

On July 29, 2009, almost two years after Baskerville and Alfaro were charged, arrested, and interrogated, the Supreme Court issued P.M.P., in which the Court held that when a juvenile is charged in a complaint and the prosecutor obtains an arrest warrant, the juvenile has a right to counsel. 200 N.J. at 178. The Court explained that the prosecutor has established a prima facie case against the juvenile when filing a complaint and seeks an arrest warrant. Id. at 177. This level of involvement by the prosecutor and a judicially approved arrest warrant qualifies as a "critical stage of the proceedings" and triggers the statutory requirement that a juvenile has a right to counsel at all critical states of the proceeding against him. Id. at 178; N.J.S.A. 2A:4A-39(a).

Baskerville and Alfaro argue that the court erred by failing to apply P.M.P. retroactively to suppress their statements because they were given without the presence of counsel. Alfaro also argues that the court erred by failing to certify its July 2009 order as final under Rule 4:42-2.7

Judge Ravin held that the rule announced in P.M.P. two years after the questioning of each defendant did not apply retroactively to these cases. He considered the right to counsel recognized by the Court in P.M.P. as a new rule. After weighing the competing considerations for retroactivity set forth in State v. Nash, 64 N.J. 464, 471 (1974), he concluded that Baskerville and Alfaro could waive their Miranda rights in the absence of counsel.

The Sixth Amendment of the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution guarantee a defendant's right to the assistance of counsel. State v. A.O., 198 N.J. 69, 81 (2009). Under federal law, the initiation of an adversarial judicial proceeding triggers this right. State v. Leopardi, 305 N.J. Super. 70, 76 (App. Div. 1997) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 417-18 (1972)), certif. denied, 153 N.J. 48 (1998). Such proceedings may be initiated "'by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" P.M.P., supra, 200 N.J. at 174 (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297, 81 L. Ed. 2d 146, 154 (1984)). After such proceedings have begun, "the right applies not only at trial but to any 'critical stage' of the prosecution, that is, any stage in which the substantial rights of the accused may be affected." A.O., supra, 198 N.J. at 82 (citing Estelle v. Smith, 451 U.S. 454, 470-71, 101 S. Ct. 1866, 1877, 68 L. Ed. 2d 359, 373-74 (1981)).

New Jersey follows the same approach on the issue of when the right to counsel is triggered. Ibid. The state constitutional right attaches "'upon the return of an indictment or like process[.]'" Id. at 82 (quoting State v. P.Z., 152 N.J. 86, 110 (1997)). After an indictment, the State should not converse with defendants without the consent of their counsel. State v. Sanchez, 129 N.J. 261, 277 (1992). As the Sanchez Court explained, an indictment indicates that the State has sufficient evidence to establish a prima facie case and is committed to prosecuting the defendant. Id. at 276. In such cases, the mere recitation of the Miranda rights would not explain "the nature of the charges, the dangers of self-representation, or the steps counsel might take to protect the defendant's interests." Id. at 277. Our Court, however, has declined to extend the holding in Sanchez to an earlier stage in criminal proceedings. P.M.P., supra, 200 N.J. at 175; see State v. A.G.D., 178 N.J. 56, 66 (2003) (addressing the period before an indictment has been obtained, but after the filing or issuance of a criminal complaint or arrest warrant); State v. Tucker, 137 N.J. 259, 290-91 (1994) (addressing the defendant's first court appearance), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed. 2d 651 (1995).

P.M.P. does not rest on constitutional grounds. P.M.P., supra, 200 N.J. at 177. Rather, the Court confined its analysis to a statute, N.J.S.A. 2A:4A-39(a), adopted in 1982, effective December 31, 1983, as part of the Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -49. The Legislature adopted the Code following In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451, 18 L. Ed. 2d 527, 554 (1967), which requires the juvenile and his parents to be notified of his right to counsel. Section 39(a) of the Code provides that a juvenile is entitled to counsel at every critical stage of the proceeding. In P.M.P., the Court addressed the application of this statutory mandate in the context of juvenile proceedings.8

The threshold retroactivity question is whether the Court announced a new rule of law. State v. Feal, 194 N.J. 293, 307 (2008); State v. Burstein, 85 N.J. 394, 403 (1981). "A case announces a new rule of law for retroactivity purposes if there is a 'sudden and generally unanticipated repudiation of a long-standing practice.'" Feal, supra, 194 N.J. at 308 (quoting State v. Purnell, 161 N.J. 44, 53 (1999)). A new rule exists if it breaks new ground, imposes a new obligation on the States or Federal Government, or "'if the result was not dictated by precedent existing at the time the defendant's conviction became final.'" Ibid. (quoting State v. Lark, 117 N.J. 331, 339 (1989)).

Although the Legislature adopted 39(a) in 1982, no court had addressed whether a complaint issued by the county prosecutor, acting alone or in conjunction with local police officials, and an application for and execution of a judicially approved arrest warrant are analogous to an indictment in the adult context and a critical stage in the proceedings. The P.M.P. Court imposed a new obligation on the State by holding that the initiation of a juvenile complaint and issuance of a judicially approved arrest warrant triggered a "critical stage" in the proceeding, after which the juvenile has the statutory right to have counsel present before a valid waiver can be obtained. P.M.P., supra, 200 N.J. at 178. Before P.M.P., the existing law required the presence of a juvenile's parent or legal guardian in the interrogation room, whenever possible, to assist the juvenile in understanding his or her Miranda rights, and in intelligently waiving them. State v. Presha, 163 N.J. 304, 315 (2000); State ex rel. J.F., 286 N.J. Super. 89, 97 (App. Div. 1995). The P.M.P. Court interpreted an existing statute, but its interpretation created a new rule for questioning juvenile suspects in custody. This ruling is much more than a mere clarification of an existing statute or rule of law.

When determining whether to apply a new rule retroactively, a court considers and weighs three factors: "(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice." Nash, supra, 64 N.J. at 471; see Feal, supra, 194 N.J. at 308 (same). Our case law, however, suggests a retroactivity decision "often turns more generally on 'the court's view of what is just and consonant with public policy in the particular situation presented.'" State v. Knight, 145 N.J. 233, 251 (1996) (quoting Nash, supra, 64 N.J. at 469).

The purpose factor is often the pivotal consideration. Burstein, supra, 86 N.J. at 406. If the purpose is solely to deter illegal police conduct, the new rule is rarely given retroactive effect. Ibid.; State v. J.A., 398 N.J. Super. 511, 520 (App. Div.), certif. denied, 196 N.J. 462 (2008). Conversely, where the purpose of a new rule "'is to overcome an aspect of the criminal trial that substantially impairs the truth-finding function' and raises 'serious question[s] about the accuracy of guilty verdicts in past trials' the first factor points to a complete retroactive application." Feal, supra, 194 N.J. at 308-09 (quoting Burstein, supra, 85 N.J. at 406-07). A court will balance the first factor against the other two in cases where the new rule enhances reliability but the old rule did not substantially impair the accuracy of the process. Id. at 309.

The new rule in P.M.P. protects the rights of juveniles during a critical stage in the guilt-finding process by affording them counsel before waiving their rights. While this rule, like the one announced in Sanchez, is intended in part to discourage police interrogation of unrepresented defendants, it is not solely an exclusionary rule. Knight, supra, 145 N.J. at 256. While the new rule reduces the inherent coercion of custodial interrogations by protecting juvenile defendants from making statements without fully understanding the charges against them, it does not replace an old rule that substantially impaired the truth-finding process. Ibid. Although Baskerville and Alfaro gave their statements without counsel, their mothers were present throughout the interviews to provide assistance and a jury will have an opportunity to weigh all the evidence in evaluating their confessions.

The degree-of-reliance factor focuses on whether the State administered the old rule in "'good faith reliance [on] then-prevailing constitutional norms.'" Feal, supra, 194 N.J. at 311 (quoting Purnell, supra, 161 N.J. at 55). "[W]here prior judicial decisions gave state officials reason to question the continued validity of the old rule, the significance of the reliance factor correspondingly decreases." Knight, supra, 145 N.J. at 252. Here, law enforcement agents justifiably relied on the pre-P.M.P. rule in administering the Miranda warnings. The records at both hearings demonstrate that the law enforcement personnel fully and faithfully complied with and relied on prevailing norms. They should not be penalized by a new rule announced two years later. Ibid.; see Purnell, supra, 161 N.J. at 55 (finding reliability of old rule was enhanced by numerous precedents and augmented by its codification in the Code of Criminal Justice); State v. Catania, 85 N.J. 418, 447 (1981) (finding second factor disfavored retroactive application because the police justifiably relied on an old practice sanctioned by statute and prior law); Burstein, supra, 85 N.J. at 410 (finding the clear preponderance of case law gave the State a reasonable expectation that its conduct would be upheld). There also is no indication that the State acted in bad faith. Burstein, supra, 85 N.J. at 410. Thus, the State's reliance on the old rule should not be punished by the retroactive application of P.M.P.

Lastly, courts generally try to avoid retroactive application of laws that would impact many cases, Feal, supra, 194 N.J. at 311, and undermine the validity of large numbers of convictions, Knight, supra, 145 N.J. 252. Here, neither the State nor defendants provided data relating to past and pending criminal cases involving juvenile interrogations which could be affected by the holding in P.M.P. Typically,

the absence of data concerning "the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement."

 

[Feal, supra, 194 N.J. at 311-12 (quoting State v. Bellamy, 178 N.J. 127, 142-43 (2003)).]

 

Courts favor limited retroactive application, or pipeline retroactivity, where cases in which the new rule is implicated arise infrequently, and where retroactivity would not be chaotic or overwhelm our courts. Knight, supra, 145 N.J. at 257.

We conclude that pipeline retroactivity is not appropriate. It is unlikely that the number of cases affected by retroactive application of P.M.P. would be minimal given the ten years elapsed since Presha. Cf. State v. Afanador, 151 N.J. 41, 59 (1997) (concluding that retroactive application of new rule would require fewer than a dozen new trials and, therefore, the administration-of-justice factor did not outweigh the rule's important purpose of protecting society from invidious drug conspiracies and the accused from unjust punishment). Even limited retroactive application of P.M.P. on a statewide basis may burden our courts by requiring retrials. See Purnell, supra, 161 N.J. at 56 (holding new law requiring jury, not judge, to decide issue of materiality in perjury prosecutions had the potential to affect an "unknown and potentially a very large number of convictions"); State v. Abronski, 281 N.J. Super. 390, 401 (App. Div. 1995) (inferring that retroactive application of a new rule requiring police to notify suspects undergoing custodial interrogation if an attorney had communicated a desire to speak with him or her would be "somewhat disruptive" even though the court did not know the number of pending and unresolved cases), aff'd, 145 N.J. 265 (1996).

Moreover, after weighing all three factors, it would be "just and consonant with public policy" to find that P.M.P. should not apply retroactively. See Knight, supra, 145 N.J. at 251. The old rule did not substantially impair the truth-finding process, the State justifiably relied on prior case law and the juvenile code, and, although retroactivity might not drastically burden the administration of justice, its limited application would impose additional burdens on the courts. We, therefore, hold that P.M.P. should be applied only prospectively.

III

Defendants Baskerville and Alfaro contend the court should have granted their motions to suppress the statements made during custodial interrogations. They contend that they did not knowingly, intelligently, and voluntarily waive their rights to remain silent and to consult counsel. Alfaro also argues that the translation services provided to his mother were inadequate and compromised her ability to counsel and support him. We disagree.

The Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, guarantees that no person in a criminal case shall be compelled to be a witness against himself or herself. U.S. Const. amend. V. In New Jersey, this privilege derives from the common law and is codified in our statutes and rules. State v. Knight, 183 N.J. 449, 461 (2005); State v. Burno-Taylor, 400 N.J. Super. 581, 588 (App. Div. 2008). A court, therefore, may not admit into evidence a confession obtained by the police during a custodial interrogation unless the defendant was advised of his constitutional rights. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. The police must warn a suspect "(1) of the right to remain silent; (2) that any statement made may be used against him or her; (3) that the person has a right to an attorney; and (4) that if the person cannot afford an attorney, one will be provided." Knight, supra, 183 N.J. at 462.

To be admissible, a defendant's confession must be made voluntarily, knowingly, and intelligently. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 86 L. Ed. 2d at 707; State v. Bey, 112 N.J. 123, 134 (1988). This standard applies to the confessions of adults and juveniles. State ex rel. A.S., 203 N.J. 131, 146 (2010); Presha, supra, 163 N.J. at 313. The State has the burden of proof beyond a reasonable doubt. State v. Burris, 145 N.J. 509, 534 (1996).

The voluntariness of a statement "depends on whether the suspect's will was overborne and whether the confession was the product of a rational intellect and a free will." Ibid. To make this determination, courts consider the totality of the circumstances including both the defendant's characteristics and the nature of the interrogation. A.S., supra, 203 N.J. at 146; State v. Smith, 307 N.J. Super. 1, 10 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). This inquiry focuses on such factors as "'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion were involved,' as well as the 'suspect's previous encounters with the law.'" A.S., supra, 203 N.J. at 146 (quoting Presha, supra, 163 N.J. at 313). Another relevant factor involves consideration of the time elapsed between the administration of the Miranda warnings and the statement. Knight, supra, 183 N.J. at 463.

Our courts also consider the role of parents as a "highly significant factor" in the totality of the circumstances analysis used to determine whether a juvenile's confession was knowing, intelligent, and voluntary. Presha, supra, 163 N.J. at 315. The Court explained that

[b]y "highly significant factor" we mean that courts should give that factor added weight when balancing it against all other factors. By elevating the significance of the adult's role in the overall balance, we are satisfied that the rights of juveniles will be protected in a manner consistent with constitutional guarantees and modern realities.

 

[Ibid.]

 

Parents play an important role in interrogation settings by assisting juveniles in understanding their rights, acting intelligently to waive them, and otherwise remaining calm. Id. at 314-15. They also serve as a buffer between police and the juvenile by acting with the interests of the juvenile in mind. A.S., supra, 203 N.J. at 148; Presha, supra, 163 N.J. at 315. The right to advise a child, however, does not prevent a parent from urging the child "to cooperate with the police or even to confess to the crime if the parent believes that the child in fact committed the criminal act." A.S., supra, 203 N.J. at 148, 152 (holding, upon consideration of the totality of circumstances, that the juvenile's confession was not knowingly, intelligently, and voluntarily given where attempts by detective and adoptive parent to inform juvenile of her constitutional rights were incomplete and incorrect). Likewise, the police may not deny a parent or guardian the opportunity to speak to the juvenile in police custody. J.F., supra, 286 N.J. Super. at 98. On the other hand, when the parent is unable or unwilling to serve as an advisor or when the parent's interaction with their child is hostile, intimidating, and clearly dominated by concerns for others, any confession will likely be set aside. A.S., supra, 203 N.J. at 139-41, 152.

An appellate court will uphold a trial court's findings as to the admissibility of a defendant's confession if they are supported by sufficient credible evidence. Knight, supra, 183 N.J. at 468; State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div. 2006), aff'd, 190 N.J. 169 (2007). Under this standard, "it is 'improper for [this court] to engage in an independent assessment of the evidence as if it were the court of first instance.'" Elkwisni, supra, 384 N.J. Super. at 366 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We, therefore, may not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Ibid. (quoting Locurto, supra, 157 N.J. at 472).

Applying these principles to the cases before us, we discern no basis to disturb the findings that each juvenile knowingly, intelligently, and voluntarily waived his right to remain silent and to representation by an attorney. We discuss the disposition of Baskerville's motion to suppress first.

A. Shahid Baskerville

Baskerville contends his statement was not voluntary because it was the product of police coercion. He argues that the investigators improperly questioned and abused him between the time of his arrest in Morristown and the taking of his statement at the Newark PD and that the State failed to produce any evidence to the contrary. Alternatively, he argues that the matter should be remanded to a different judge for a rehearing on police actions during the "custodial period" prior to his statement. As previously noted, Judge Ravin found that Baskerville knowingly and intelligently waived his rights to remain silent and to have counsel and provided a voluntary statement.

Under the totality of circumstances, the judge was permitted to find Baskerville's confession voluntary. According to Judge Ravin, at the time of his statement, defendant was fifteen-years old, no stranger to the criminal justice system, a student in regular education placement and able to read, and of average intelligence. Police brought his mother to the police station, he was given the Miranda warnings in his mother's presence, and he and his mother understood them. There also is no evidence to suggest Baskerville's will was overborne. The fifty-three minute interview is not lengthy and only two investigators were in the room. There is no evidence in the record of fraud, deception, or trickery. In fact, at the end of the statement, when James asked if any officers had used "pressures, threats or promises of any kind" to coerce him into making a statement, Baskerville replied "no."

Contrary to Baskerville's assertions, the State did rebut his claim about police coercion. It is clear from Judge Ravin's opinion that he did not believe Baskerville's testimony about police abuse prior to the taking of his statement. The judge had the benefit of observing Baskerville as he testified and also found Green's testimony credible. The judge also considered credible Perdomo's opinion that Baskerville had the cognitive ability to understand his Miranda rights, had no intellectual deficiency that might have interfered with that ability, and understood the warnings at the time they were given to him.

An appellate court should grant deference to a trial court's credibility findings given its ability to observe the character and demeanor of the witnesses. Locurto, supra, 157 N.J. at 474. We defer to Judge Ravin's findings as long as they are supported by sufficient credible evidence in the record. Id. at 470-74. We are satisfied that the findings meet this standard and affirm.

B. Alexander Alfaro

Alfaro challenges the admissibility of his custodial statement on two grounds. He argues that his waiver was not knowing because the Spanish translation was deficient and not voluntary because it was the product of police coercion. Specifically, he argues that he was not told the reason for his arrest prior to giving his statement and the police prevented his mother from providing advice and support.

1. Spanish Translation

Our Court recognizes that "[t]he problem of communicating Miranda rights to non-English-speaking defendants is important, particularly in a state with so diverse a population." State v. Mejia, 141 N.J. 475, 503 (1995), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997). Miranda requires "'meaningful advice to the unlettered and unlearned in language which he [or she] can comprehend and on which he [or she] can knowingly act.'" State v. Bode, 108 N.J. Super. 363, 367 (App. Div. 1970) (quoting Coyote v. United States, 380 F.2d 305, 308 (10th Cir.), cert. denied, 389 U.S. 992, 88 S. Ct. 489, 19 L. Ed. 2d 484 (1967)); see State v. Guzman, 313 N.J. Super. 363, 378 (App. Div.) ("[A] criminal defendant has a constitutional right to the assistance of an interpreter at trial."), certif. denied, 156 N.J. 424 (1998).

Miranda, however, does not require the use of any specific language to inform an accused of his or her rights. State v. Melvin, 65 N.J. 1, 14 (1974); State v. Godfrey, 131 N.J. Super. 168, 180 (App. Div. 1974), aff'd, 67 N.J. 267 (1975). In determining the adequacy of the warnings, it is sufficient to consider substance rather than form. Godfrey, supra, 131 N.J. Super. at 180 (holding warnings were inadequate, where portion of consent form failed to inform the defendant in clear, unequivocal language that anything he said could be used against him).

In Mejia, supra, 141 N.J. at 501, a police sergeant raised in a Spanish-speaking home read the Spanish-speaking defendant his Miranda rights from a Spanish-language card used by the local police department. The defendant was later interviewed by an investigator who had studied Spanish in high school and had acted as a translator for the Prosecutor's Office. Ibid. The investigator read the defendant his rights from a bilingual Miranda card, which had a different translation from that on the card used by the local police department. Id. at 501-02. In particular, the bilingual card contained some confusing language regarding the defendant's right to a court-appointed attorney, and did not expressly advise him that the court would appoint an attorney if he could not afford one. Id. at 503. Nonetheless, the Court found there was no suggestion in the record that the defendant was confused or did not fully appreciate his rights. Ibid. Under these circumstances, it concluded that the defendant knowingly and intelligently waived his Miranda rights. Ibid.; see also J.F., supra, 286 N.J. Super. at 100-01 (declining to find a juvenile's confession per se inadmissible where he was interviewed in the presence of his Spanish-speaking legal guardian without a translator).

At the hearing, Gomez testified, through an interpreter, that she did not speak English except for basic phrases such as "thank you, how are you?" Alfaro confirmed during his statement that his mother could speak Spanish very well, but not English. Gomez acknowledged knowing how to read and write in Spanish.

Cantu testified he was raised in a Spanish-speaking household, he spoke Spanish at home among family and friends, and he took Spanish in high school. He did not study Spanish in college, but received sixteen hours of college credits in Spanish for passing an examination when he was "in the military." He also attended a basic Spanish course at the police academy. At the time of the hearing, he was attending a Spanish congregation church.

An outside agency had certified Cantu as a Spanish-language translator for the Prince William PD. The certification was renewable every three years and Cantu had renewed it twice. As of August 2007, he had provided translation services about 250 times.

Cantu testified he was asked to translate verbatim. He admitted he did not provide a word-for-word translation, but translated to the best of his ability. He explained that all English words do not directly translate into Spanish, and he sometimes added words to a translation where necessary for context. Although his review of the transcript of Alfaro's statement found some examples where the translation was not verbatim, Cantu considered the differences minor.

Cantu also admitted referring to a Spanish-English dictionary to look up the translations for the words "conspiracy, murder, and firearm." Gomez, however, testified that Cantu referred to the dictionary "some five or six times."

Cantu had no difficulty understanding Gomez and said she never indicated any difficulty in understanding him. As Green read Alfaro his Miranda rights, Cantu simultaneously read the rights aloud to Gomez. She wrote her initial "G" after each right, and did not express any concern to Cantu about any of them. Gomez read the waiver to herself, signed her name "Gloria" on her own, and wrote her signature at the bottom. She never told Cantu she did not want her son to give a statement.

Cantu said Gomez stopped the interview on several occasions to ask for clarification. One time, she wanted Cantu to clarify a statement made by her son. Another time, she told her son to make sure he understood a document before he signed it. She also wanted to know the facts of the evening of the murders.

The record fully supports Cantu's testimony. For example, the transcript reflects that at one point Gomez was crying and speaking with Cantu, who translated: "She said the whole truth . . . swear to God that your [sic] telling the truth." Later, she asked the officers: "Now that my son has declared all this is he in danger? If he told the truth then I feel fine."

During direct examination, Cantu was asked to translate the waiver on the Spanish-language Miranda form into English, which he did. In his brief, Alfaro points out the inconsistencies between this translation and the English version which he signed. Cantu admitted that the translation from Spanish to English was difficult for him, explaining that English was his first language.

Based on his review of the transcripts and testimony, Judge Ravin found that the police provided Gomez with the Miranda warnings in Spanish, she expressed no concern or confusion about the written form or verbal translation, she never asked for counsel, and she had no trouble communicating with Cantu. While recognizing the lack of a verbatim interpretation, as well as Cantu's difficulty in translating legal terminology, the judge was satisfied Gomez understood the translations as evidenced by her questions and acknowledgment of the answers and the fact that she never exhibited a lack of understanding. Judge Ravin, therefore, concluded that the interpretation was fair and accurate and conveyed the substance of the warnings, the waiver, and the right to counsel.

It is undisputed that Gomez is Spanish-speaking, and that Cantu's translation was not verbatim. Although the record below did not include the tape, the testimony and the transcript of Alfaro's statement established that Gomez received a copy of the Miranda form in Spanish and had the opportunity to review it prior to any questioning of her son. She admittedly read Spanish, and there is no evidence to suggest that she did not understand the legal rights or waiver.

The transcript does not reflect any unfair procedures. Gomez had the opportunity to observe the tone and demeanor of the detectives during the statement, which would have alerted her to the possibility of coercive tactics. She never voiced any concern about the interrogation and, instead, interrupted several times to ask questions, indicating that she understood the proceedings and her son's responses and that she wanted him to tell the truth. In short, she received the information she needed to provide the counsel and support to her son contemplated by Presha and A.S.

2. The Waiver

Alfaro contends his waiver was not given knowingly or voluntarily because the investigators kept him confused and unprepared and prevented his mother from providing him with advice and support. He argues that his will was overborne by the length of his detention prior to the custodial interrogation, the failure of investigators to tell him why he was under arrest or the charges against him until the questioning began, and the investigators' refusal to allow him to consult with his mother outside their presence. He also argues that his mother was treated "very poorly" by the police.

Reviewing the totality of circumstances, Judge Ravin found that the State scrupulously honored the principles of Miranda, that it afforded Alfaro the necessary safeguards, and that the will of neither Alfaro nor his mother was overborne. The judge considered Alfaro's age of sixteen, the approximate two-hour length of the interview, the presence of his mother, the interpretation, and the statement. Although he viewed the time between Alfaro's arrest and his statement as an important factor, the judge noted that he was given a chance to eat and drink at the police station, and he was transported to a juvenile facility where he had the opportunity again to eat and sleep until his mother arrived. The judge also considered the fact that mother and son embraced and the absence of any complaints uttered by either one to any officers. Judge Ravin, therefore, concluded that the State proved beyond a reasonable doubt that the statement was made voluntarily.

It is clear that the court implicitly found Green and Cantu credible, but not Gomez. Because the court was able to observe the character and demeanor of these three witnesses, its credibility conclusions are entitled to deference. Locurto, supra, 157 N.J. at 474. Moreover, the record amply supports his factual findings. There is no evidence to indicate improper treatment or prolonged and improper questioning. See State v. Johnson, 309 N.J. Super. 237, 261 (App. Div.) (finding no evidence of improper treatment or questioning where the defendant was not questioned during the two and one-half hours he was in police custody, his interrogation lasted one and one-half hours, his taped statement did not indicate mistreatment or abuse, he was unmanacled in a conference room, he was offered food and drink, and he was familiar with police investigations from his prior criminal history), certif. denied, 156 N.J. 387 (1998). There were no acts of violence against Alfaro, no suggestion of police trickery, no lengthy periods of confinement without food or drink, and no deprivation of sleep.

To the contrary, Alfaro was not questioned during the time he was in police custody prior to his statement. The statement itself lasted slightly over two hours, and a review of the transcript does not reveal any suggestion of mistreatment or abusive police conduct. See ibid. Alfaro also denied, under oath, that any officer used "pressures, threats or promises" to get him to make a statement. Thus, under the totality of circumstances, there is no indication that Alfaro's will was overborne or that any psychological pressure affected the voluntariness of his statement. See State v. Galloway, 133 N.J. 631, 656 (1993) ("Cases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant."); Bey, supra, 112 N.J. at 135 (finding no evidence of physical or mental coercion where the defendant was interrogated for three hours and five minutes, during which time he was offered food, beverages, cigarettes and the opportunity to rest).

There also is no credible evidence in the record to suggest that Alfaro was confused and unprepared at the time he gave his statement. There is no suggestion that he did not understand his rights or the waiver or that he did not want to speak with the investigators. To the contrary, he asked for the opportunity to tell his version of events when he first arrived at the Prince William PD. Green advised him that must await the arrival of his mother. Based on the record developed at the hearing, Alfaro received the required information under Miranda, indicated that he understood his rights and the waiver, and voluntarily agreed to speak to the police without an attorney. Thus, the judge was permitted to find that the State proved beyond a reasonable doubt that Alfaro made a knowing and voluntary statement.

Affirmed.

1 Defendants filed separate motions for leave to appeal, and we issued separate orders granting leave to appeal. We consolidate these appeals for the purpose of rendering an opinion because each presents similar issues.

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

3 Defendants are being tried separately. A jury found Godinez guilty of all seventeen counts. He has been sentenced to three consecutive life sentences on the murder convictions, plus a consecutive twenty-year term of imprisonment on the attempted murder conviction.

4 Jovel pled guilty and is awaiting sentencing. Guilty Plea in Killings, N.Y Times, Sept. 22, 2010, at A20.

5 Gerardo Gomez has the same last name as Alfaro's mother; we will refer to him as "Gerardo."

6 His mother's name also appears in the record as "Karana."

7 We consider this latter argument without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

8 Notably, unlike P.M.P., the Newark PD, not the Prosecutor's Office, filed the juvenile complaints against Baskerville and Alfaro, and evidently obtained the judicially approved warrants. See P.M.P., supra, 200 N.J. at 169-70. However, Green, a member of the prosecutor's staff, testified he was the lead detective in both cases from their inception and that he worked alongside the "Newark detective." The State has not sought to distinguish P.M.P. on the basis that local police rather than prosecutor's personnel filed the complaint. The State appears to recognize the insignificant distinction between the prosecutor-signed complaint in P.M.P. and the police-signed complaints in these cases due to the joint work by both agencies in this matter.