STATE OF NEW JERSEY v. A.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3405-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.R.,

Defendant-Appellant.

______________________________

August 10, 2011

Submitted April 13, 2011 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1104.

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

Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, on the brief).

PER CURIAM

A jury convicted defendant of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); a third count of second-degree sexual assault, N.J.S.A. 2C:14-2b; and a fourth count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to serve an aggregate custodial term of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following issues for our consideration:

POINT I

BECAUSE THE STATEMENT THAT THE DEFENDANT MADE TO THE POLICE AFTER HE HAD SPENT MORE THAN TWELVE HOURS IN CUSTODY WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE, THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION TO SUPPRESS THE STATEMENT DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. Const. [a]mends. V, XIV; N.J. Const.[] [a]rt[]. I, 1 [and] 10.

POINT II

BECAUSE THE JURY WAS WRONGLY ALLOWED TO TAKE THE VIDEO RECORDINGS OF THE DEFENDANT'S INTERROGATION AND THE ALLEGED VICTIM'S INTERVIEW INTO THE JURY ROOM, AND PLAY THEM REPEATEDLY DURING DELIBERATIONS OUTSIDE THE PRESENCE OF COUNSEL AND OF THE DEFENDANT, THE JUDGE SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT III

THE DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING A LAY WITNESS TO OFFER INADMISSIBLE OPINION TESTIMONY GOING TO THE ULTIMATE QUESTION OF DEFENDANT'S GUILT OR INNOCENCE, THEREBY DENYING DEFENDANT OF A FAIR TRIAL. U.S. Const.[] [a]mends. VI, XIV; N.J. Const.[] [a]rt[]. I, 1 [and] 10 (Not Raised Below).

POINT IV

THE SENTENCE IMPOSED ON THE DEFENDANT IS EXCESSIVE AND MUST BE REDUCED.

We have considered the record in light of the arguments advanced in the briefs and the applicable legal principles, and conclude the court committed reversible error in permitting the jury to have unfettered access to the videotaped interviews of both the victim and defendant. We therefore reverse defendant's convictions and remand for a new trial.

The incident arose while defendant, his wife, Sandy, and his wife's niece, nine-year-old Tammy,1 were spending the night at the apartment of Leslie Link, Tammy's great-grandmother. Tammy and Sandy fell asleep in the living room while watching a movie. Tammy was asleep on one couch, Sandy was asleep on another couch, and defendant was lying on an air mattress on the floor. Tammy awakened to find defendant raising her nightgown and lifting her legs. He penetrated her vagina with his finger and licked her vagina. Tammy told defendant she needed to use the bathroom and entered Link's bedroom. The door slammed behind her. Sandy awakened when the door slammed and she looked for Tammy. She found Tammy with Link, and Tammy told both women that defendant hurt her. Link allowed Tammy to sleep in her room. When Sandy questioned defendant, he told her that Tammy was snoring, so he turned her over. The next day, Tammy told her aunt, Linda Nance, and her father, that defendant had licked and penetrated her vagina. Her father, along with Nance, took Tammy to the Neptune Township Police Station to file a complaint.

Police arrested defendant and transported him to police headquarters for questioning. Detective Philip Seidle, administered Miranda2 warnings to defendant, who subsequently waived his rights and confessed to sexually assaulting Tammy.

I.

Defendant argues that the trial judge failed to follow the protocol set forth in State v. Burr, 195 N.J. 119 (2008), when he permitted the jury to view the videotaped interviews of defendant and Tammy while deliberating the verdict. Defendant further asserts that in addition to "the prejudice produced through repeated viewings of the tape, the fact that the entire procedure was conducted in the jury room was reversible error." Thus, defendant contends he was denied the "right to a fair trial." Because defendant failed to object to the jury viewing the tape or to the jury viewing the tape in the jury room rather than in open court, we review the claimed error under the plain error standard. Plain error is not simply any error but an error that is capable of producing an unjust result. R. 2:10-2. An error is capable of producing an unjust result if the evidence at issue was critical to the State's case. State v. Jordan, 147 N.J. 409, 425-26 (1997).

During deliberations, the jury submitted the following question:

Your Honor, we request the DVD testimony of [A.R.] after the two detectives came back into the room. Also, [Tammy]'s interview taken at Det. Chapman's in the small room, the VHS. And can [we] view these so that we can pause and restart them for our deliberations[?] Thank you.

The trial judge asked the jury if the question meant they wanted "the machine inside there so you can play them back and forth and back and forth?" The jury indicated that was correct. Initially, the judge proposed playing the tapes in open court and expressed reluctance "to put everything in there and just leave you with it in case the thing malfunctions or whatever." The judge conducted a sidebar where he asked both counsel if there was any objection to allowing the jury to review the videos in the jury room. Neither counsel voiced objection to the court's proposal.

Post trial, defendant filed a motion for a new trial contending the court failed to adhere to the dictates set forth by the Supreme Court in Burr, which was decided on June 11, 2008, the second day of defendant's trial. In denying defendant's new trial motion, the judge acknowledged that neither he nor counsel were aware of the Supreme Court decision in Burr at the time the court acceded to the jury's request to view the videotaped statements of defendant's confession and Tammy's statement to investigators. The court noted, however, that even in the absence of its consideration of the request in accordance with the Supreme Court's decision, it

did inquire at that time and asked the jury why they wanted the video so that they could discuss it. And they indicated that they wanted the video so that they could discuss it as they were playing it. . . .

Also both the tape of the defendant's pretrial interview . . . and the victim's pretrial interview had been previously played in court and were in evidence.

There were no transcripts immediately available. . . .

. . . . [T]he [c]ourt was cognizant the deliberations could not take place in open court. Again, the [c]ourt inquired . . . [and] both the [p]rosecutor and defense counsel were consulted on this.

And indicated that they were also of the opinion that the [c]ourt had no alternative than to do what it did. The [c]ourt inquired as to why do you need the tape machine in the jury room. The jury said because when we want to stop it and start it[,] so we can discuss it as we look at it.

That couldn't happen in open court while they were in the jury box because then the deliberations would have been before everyone in open court. And that would impose on the jury function and not be permitted.

Under those unique circumstances and based on the fact that not only did they ask for the victim's pretrial tape, but they also asked for the defendant's pretrial tape and they had both in the jury room, same was allowed to go in. This type of deliberation technique again could only occur during the video playback inside the jury room for obvious reasons.

We agree that even without the benefit of the Court's decision in Burr, the trial judge took great pains to ensure that permitting the jury access to the videotapes was balanced against all other factors. Thus, we find no error, let alone plain error, in the court's exercise of its discretion to permit the jury to view the videotaped statements during deliberations. However, by permitting the jury to view the videotaped statements in the jury room, the jury had unfettered access to "witness statements [that] could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations." Burr, supra, 195 N.J. at 134. That the jury was provided statements from both Tammy and defendant does not cure the danger inherent in affording a jury unfettered access to videotaped statements in the jury room because the jury is not prevented from unfairly emphasizing the video statement over other testimonial evidence. Further, permitting the jury to view the videotaped statements in the jury room strips the trial judge of the ability to maintain a record of what was viewed and how often it was viewed.

We recognize that with respect to any exhibit that is introduced into evidence, there is always the possibility or even likelihood that jurors, during deliberations, may focus on particular evidence to the exclusion of other evidence. There is nothing in our jurisprudence that prohibits jurors from doing so. Engaging in such a process is all part of the jury's obligation to evaluate and weigh the evidence. Nonetheless, as the Court observed in Burr:

The videotaped pretrial statement at issue in this appeal is, however, significantly different from a demonstrative exhibit. Although it is evidence, it is also testimony. It is, in effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted. Moreover, the videotape is powerful evidence for the jury to see again, if it is not placed into context.

[195 N.J. at 134.]

We therefore conclude the trial judge erred when he permitted the jury to view the videotape in the jury room, rather than in open court. We also conclude the error was one capable of producing an unjust result. Given the absence of physical evidence, the statements of both defendant and the victim were critical pieces of evidence upon which the jury was called upon to make credibility assessments. Permitting the jury to have unfettered access to the videotaped statements in the jury room enabled the jury to unfairly emphasize the videotaped statements over other testimony presented at trial. Ibid.

Moreover, because the jury was permitted to view the videotaped statements outside of defendant's presence, he was deprived of the opportunity to be present at a critical stage of the trial, resulting in "'structural error' affecting the 'framework within which the trial proceeds'" requiring reversal without the necessity of defendant showing "specific prejudice." State v. Brown, 362 N.J. Super. 180, 189 (App. Div. 2003) (quoting State v. Cuccio, 350 N.J. Super. 248, 261 (App. Div.), certif. denied, 174 N.J. 43 (2002)).

Our reasoning expressed in Brown, where we reversed the defendant's convictions because the court conducted a readback in the jury room out of the presence of the defendant, applies with equal vigor to permitting the jury to view videotaped statements in the jury room outside of the presence of defendant and without the benefit of the court's supervision:

Although a readback introduces no new matter into the trial, we have no doubt that it is a part of the trial. We note that our court rules require defendant's presence "at every stage of the trial." R. 3:16(b). The readback is obviously critical to the jurors' deliberations. It is furnishing them with information they need to decide the case. That the procedure is conducted accurately and fairly is critical to the parties, including the defendant. The defendant has the right to be present to assure that the procedure is correctly conducted. . . . No countervailing reason whatsoever is suggested that would militate against permitting defendant's presence.

Likewise . . . the procedure must be conducted in open court, on the record, and under the supervision of the presiding judge. These requirements assure the defendant of a fair trial, of his right to be present at all critical stages of the trial, and of his right to a public trial. They also will establish a record for review and preserve the integrity of the criminal justice system.

[362 N.J. Super. at 188-189.]

We therefore are constrained to reverse defendant's conviction.

II.

In view of our reversal and remand for a new trial, we need not address defendant's claim that the sentence imposed is excessive. The argument advanced in Point III is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We do, however, address defendant's argument asserted in Point I that the court erred when it denied his motion to suppress the statement he provided to police.

Prior to trial, defendant unsuccessfully moved to suppress his statement, claiming that his statement to the police officers who were administering his Miranda warnings that "I don't have an attorney," required police to ask defendant again, before questioning, whether defendant desired counsel. The trial judge noted that after defendant indicated that he did not have an attorney, Detective Seidle, the sole witness who testified at the Miranda hearing, specifically asked defendant whether he wanted an attorney. Defendant responded, "Well[,] I can listen to what you have to say first before I answer any questions." The court was satisfied that by asking defendant whether he wanted an attorney at that point, Detective Seidle complied with the dictates of State v. Chew, 150 N.J. 30 (1997), where the Court held that "[b]ecause the right to counsel is so fundamental, an equivocal request for an attorney is to be interpreted in a light most favorable to the defendant." Id. at 63 (citing State v. Reed, 133 N.J. 237, 253 (1993)).

In addition to arguing that defendant made an equivocal request for an attorney, defendant raises additional arguments for the first time in this appeal, presumably based upon his testimony during direct examination at trial. Specifically, defendant contends: (1) his statement was given only after he endured more than twelve hours of sleepless isolation in a cell; (2) he was subjected to a barrage of accusations for more than one hour during which he repeatedly denied the accusations; (3) between 1:30 a.m. and 3:30 p.m., he was given food only once; and (4) he was confused and delusional at the time he gave his statement. In addition, in the appellate brief submitted on his behalf, defendant also references his "low intelligence" as yet another basis to contest that his statement was given knowingly and voluntarily with full understanding of its consequences.

Because the additional grounds for suppressing his statement were not raised before the trial court during the suppression hearing, our scope of review on appeal is narrow. State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006). While we will consider "allegations of error not brought to the trial judge's attention, we frequently decline to consider issues that were not presented at trial. Generally, issues not raised below, even constitutional issues, will not ordinarily be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." Ibid. (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Ferraro v. Demetrakis, 167 N.J. Super. 429, 431-32 (App. Div.), certif. denied, 81 N.J. 290 (1979)).

We will consider all of defendant's contentions surrounding the admissibility of his statement because we are satisfied the "record is sufficiently complete to permit its adjudication." Ibid. In doing so, we are satisfied the trial court properly denied defendant's suppression motion.

In reviewing a trial court's ruling on a motion to suppress, the Appellate Division

must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record."

An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions."

[State v. Elders, 192 N.J. 224, 243-44 (2007) (emphasis added) (citations and quotations omitted).]

However, while we must uphold a trial court's evidentiary-based fact finding, we are "not obliged to give deference to the [trial] judge's legal conclusion[s]." State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). Our canvassing of the record here persuades us that the trial judge's findings were not clearly mistaken and the application of those facts to the law was correct.

Defendant's statement to Detective Seidle that he did not have an attorney was treated by the detective as an equivocal request for counsel and he then specifically asked defendant whether he wanted an attorney. Defendant's response to that statement was that he "first" wanted to listen to what the detective had to say before answering any questions and before deciding whether he wanted counsel. Thus, it is apparent that his statement that he did not have any attorney was more informational to the detective rather than a request for counsel. Defendant next told Detective Seidle that he would not sign the Miranda form until he knew "what is going on first and then I'll sign that last one." Detective Seidle then explained that he was told defendant had engaged in sexual activity, which he specifically described to defendant, and that he wanted to talk to defendant about the matter to "find out what happened." Defendant responded, "And if I say anything now my statement goes down on paper, right?" Detective Seidle informed defendant that his statement would be recorded and then asked defendant whether he wanted to talk to him. Defendant responded, "Yeah, I can say something about it. I ain't got nothing to hide[.] I ain't do nothing."

At the time defendant provided the statement, he was thirty-nine years old. He was not unfamiliar with the criminal justice system, having had at least eight prior arrests. Although defendant had been held in custody for more than twelve hours before he was questioned, he agreed that no one prevented him from sleeping and that he ate one meal before providing his statement. He testified that he was given his Miranda warnings, understood that he was waiving his rights, and understood that he could stop talking at any time during the questioning. He did not testify that police exerted any coercion upon him in eliciting his statement and provided an explanation for why he talked about matters unrelated to the investigation. He indicated he was scared "because I didn't know where these allegations came from[.]"

Under the totality of the circumstances, we are satisfied that defendant's waiver of his Miranda rights was knowing and voluntary, and the rights were waived with the full understanding of the nature of the allegations lodged against him and the consequences of the waiver of his rights. Therefore, we discern no basis to disturb the trial court's findings. Elders, supra, 192 N.J. at 243-44.

The judgment of conviction entered is vacated and the matter is remanded for a new trial.

Reversed.

1 Because the victim is a minor, initials are used for defendant, and fictitious names are used for all persons other than law enforcement witnesses.

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