STATE OF NEW JERSEY v. F. S. S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

F. S. S.,

Defendant-Appellant.

____________________________________________

August 31, 2015

Submitted May 20, 2015 Decided

Before Judges Ashrafi, Kennedy and O'Connor.

On appeal from Superior Court of New Jersey,Law Division,Camden County,Indictment No. 11-04-0984.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).

MaryEva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted following a jury trial of various sexual assault offenses against two minors and sentenced to an aggregate prison term of thirteen years, subject to nine years of parole ineligibility. Defendant appeals and argues

POINT I

DEFENDANT'S STATEMENT TO THE PROSECUTOR'S INVESTIGATOR WAS THE RESULT OF A CUSTODIAL INTERROGATION WITHOUT A KNOWING WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION AND SHOULD BE SUPPRESSED.

POINT II

THE INDICTMENT CHARGED SEPARATE AND UNRELATED CRIMINAL INCIDENTS CONCERNING TWO DIFFERENT GIRLS, AND THE TRIAL COURT ERRED IN FAILING TO HOLD SEPARATE TRIALS FOR CLAIMS ON EACH GIRL.

POINT III

THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LIMITED USE OF OTHER-CRIMES EVIDENCE.

POINT IV

DEFENDANT RECEIVED AN EXCESSIVE SENTENCE FOR HIS CONDUCT AGAINST C.C. AND SHOULD BE RESENTENCED.

We agree that the trial court erred in concluding that defendant was not in custody at the time he gave a statement to police officers. Further, we cannot conclude on the basis of the record before us, that there was sufficient credible evidence to support the State's alternative argument that it nonetheless proved beyond a reasonable doubt that defendant had knowingly, voluntarily and intelligently waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and New Jersey common law. See State v. Presha, 263 N.J. 304, 313-14 (2000); see also State v. Hartley, 103 N.J. 252, 260 (1986).

Moreover, we have determined the suppression of the statement requires a re-evaluation of the issue of severance of the charges. Consequently, we reverse defendant's conviction, and we remand for further proceedings1 and a new trial in accordance with this opinion.

I.

In April 2011, a Camden County grand jury returned Indictment Number 11-04-984 charging defendant with eighteen counts of sexual offenses against two young girls, M.G. and C.C. Fifteen of those counts pertained to conduct against M.G., defendant's step-granddaughter, which allegedly occurred between April 2003 and August 2009. The remaining three counts stem from one incident with C.C., also a family relation, on May 23, 2009.2 Defendant moved to sever trial of the counts in the indictment pertaining to M.G. from those pertaining to C.C., arguing that defendant faced overwhelming prejudice from the fact he was accused of assaulting two different girls and that in such a situation a single trial on all counts could lead to an "automatic conviction." The judge denied the motion, reasoning that each alleged assault was admissible under N.J.R.E. 404(b) in a trial for the other assault, and therefore there was no basis for severance.

As we noted, defendant also moved to suppress a statement he had given to the prosecutor's investigators on June 15, 2010, and argued that he was in custody at the time and that the statement was taken in violation of his Miranda rights. The trial judge, though concerned that defendant did not provide a knowing and intelligent waiver of his Miranda rights, concluded that there was no need to inform defendant of his rights because defendant was not in custody and his statement was therefore admissible.

II.

The facts developed during the Miranda hearing follow.3

On June 15, 2010, Camden County Prosecutor's investigators Fawn Ackerman and Willie Mahan approached defendant at his place of work, identified themselves and advised him they "needed to speak to him." They asked defendant to accompany them to the prosecutor's office, and told him he was not under arrest. Thereafter defendant went un-handcuffed with the investigators in their vehicle to the prosecutor's office. Defendant was never told he could refuse the investigators' request.

Defendant was taken to an interview room at the rear of the prosecutor's office and questioned by the two officers. The officers inspected the contents of defendant's bag "for safety purposes" and told him not to "grab anything" in the bag during the interview. He was then questioned for several minutes about his identification, living arrangements and employment, and then was told "we want to talk to you about what's going on in your family." Defendant replied "OK" and the officers then advised him ". . . we have to read you your rights, ok?" Defendant said "Go ahead."

The following exchange then took place

FA: Ok hmm do you read and write and understand the English language.4

FM: Yeah

FA: So I'm going to go over this with you I'm going to give you a pen and hmm as I go through it and read this with you[--]you could read along and then you can answer this for me. Before we ask you any questions it is my duty to advise you of your rights[--]You have the right to remain silent you understand that? Circle that and put your initials on there

FM: Right here?

FA: Yes-- Ok -- Anything you say can or will be used against you in a court or any other proceeding do you understand that?

FM: Yeah

FA: Ok--You have the right to talk or consult with a lawyer before making any statements or answering any questions and you may have a lawyer present with you during the questioning do you understand that?

FM: Yes

FA: If you cannot afford or otherwise obtain an attorney you may have one appointed by the court to represent do you understand that?

FM: Hmm

WM: Yes or no?

FM: Yes

WM: Thank you

FA: If you decide to answer questions now with or without a lawyer you still have the right to stop the question at any time or to stop the questioning for the purpose of consulting a lawyer do you understand that?

WM: Yes or no

FM: Yes sir

WM: Thank you

FA: However you may waive your right to remain silent and your right to consult with an attorney and you may answer questions or make a statement without consulting a lawyer if you so desire do you understand that?

FM: Hmm

WM: Yes

FM: Yes

WM: Thank you

FA: Now having you been advise of your rights and understanding them do you desire to waive those rights and answer questions or give a statement?

FM: What that mean?

FA: Would you like to speak to us or not?

FM: I speak to you

FA: Ok

FM: Yes

There followed a lengthy questioning of defendant about his living arrangements and the accusations made that he had sexually assaulted two young girls in his home.

During the course of the interrogation, defendant received a call on his cell phone and was told by Ackerman that he could not even see who the caller was and that he had to "turn [the phone] off for the interview. . ."

At one point during the interrogation, Ackerman asked defendant why he had not contacted the police if he had been wrongly accused of "molesting a little girl." When defendant replied that he had not thought to do that, Mahan interjected and said, ". . . we are here because we want to help you." Mahan then went on to tell defendant that if he lied, he would "make matters a lot worse and we are not going to be able to help you." Mahan then continued to argue with defendant, who had denied ever touching the two girls. After a lengthy period of repeatedly denying the accusations, defendant told Mahan, "I don't want to argue with you anymore." However, Mahan and Ackerman did not stop at that point, and the accusations continued on for almost another forty minutes.

The trial judge denied defendant's motion to suppress the statement and determined that defendant was not subject to a "custodial interrogation." We disagree.

When reviewing a trial court's decision on a motion to suppress, an appellate court "engage[s] in a searching and critical review of the record to ensure protection of a defendant's constitutional rights." State v. Hreha, 217 N.J. 368, 381-82 (2014) (internal quotation marks and citations omitted). The court "defer[s] to the trial court's credibility and factual findings" so long as they "are supported by sufficient credible evidence in the record." Id. at 382 (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, the court gives no deference to legal conclusions. Ibid.

Generally, a defendant's statements given during custodial interrogation are only admissible if police first read defendant his Miranda rights. A defendant may then waive these rights; however, the "waiver must be 'voluntary, knowing, and intelligent.'" Ibid. (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). The State bears the burden of proving, beyond a reasonable doubt, that a defendant's prior statements are admissible. Id. at 383.

If the State demonstrates either that the defendant was not in custody, State v. Carlucci, 217 N.J. 129, 144 (2014), or that the statements were not elicited in response to interrogation, State v. Stever, 107 N.J. 543, 552-53, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987), then the statements may be admitted without a Miranda warning.

As we have explained, Miranda warnings are not required where the defendant was not in custody at the time statements are made. State v. P.Z., 152 N.J. 86, 102 (1997). Custodial interrogation occurs when a law enforcement officer initiates questioning after a person has been taken into police custody "or otherwise deprived of his freedom of action in any significant way." State v. O'Neal, 190 N.J. 601, 615 (2007) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).

A person may be "in custody" for purposes of determining whether he is entitled to a Miranda warning without being formally arrested or physically restrained. P.Z., supra, 152 N.J. at 103. Also, custody is not dependent on whether the interrogation occurred in the suspect's home, a public place, or a police station. Ibid. "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Ibid.

Custody is an objective determination. Carlucci, supra, 217 N.J. at 144. A defendant is in custody if "a reasonable person in defendant's position, based on the nature of the police encounter, would not have believed that he [or she] was free to leave." O'Neal, supra, 190 N.J. at 616. The court considers "objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect[.]" State v. Stott, 171 N.J. 343, 365 (2002) (quoting P.Z., supra, 152 N.J. at 103). The conduct of the interrogators may also be considered. State v. Messino, 378 N.J. Super. 559, 576 (App. Div.), certif. denied, 185 N.J. 297 (2005).

In this case, while defendant was specifically told he was not under arrest when he was asked to accompany the investigators to the Camden County Prosecutor's Office and was never placed in handcuffs or similar restraints, other factors strongly support the conclusion that, viewed objectively, defendant was subjected to a custodial interrogation.

Defendant was never told that he was free to leave or that he could refuse to accompany the investigators to the office. Moreover, defendant was transported to the office in the investigators' vehicle, and the interview occurred in an interview room located at the rear of the office. Just as in Messino, there was "no practical way for defendant to leave." See ibid. While defendant was not driven twenty miles from his place of employment like the defendant was in Messino, a reasonable person in defendant's situation would nonetheless conclude he was not free to leave at any time.

This conclusion is buttressed by the conduct of the investigators during the interview. At the beginning of the interview, the investigators took defendant's bag containing his medications from him, over his objection. Defendant's cell phone also rang twice during the interview, and he was told he could not see who was calling and that he should turn the phone off. When it rang a second time he was told, "Just turn it off." A reasonable person in this situation would feel like he could not leave and had no choice but to comply with the investigators.

The State responds that the investigators' refusal to allow defendant to answer the phone was reasonable and was done to avoid interruption. The State also claims defendant indicated that the call was trivial. However, there is no indication in the transcript that defendant knew who was calling him the first time the phone rang. Defendant also never said the second call was trivial. He indicated that he believed it was another driver from his cab company calling, and indicated that the driver was getting a new apartment. Defendant never said the call was trivial. He merely mentioned a fact about the other driver. It is not clear from the record what the call concerned. The investigators' refusal to allow defendant to answer his phone tips in favor of this interrogation being custodial because a reasonable person who is prevented from answering his phone would likely believe he is not free to leave.

At one point in the interview, defendant told the investigators his wife had told him there was "a warrant against me" pertaining to the accusations of abuse, and in response, the investigators did not disabuse defendant of this notion. It is likely a reasonable person being told by a spouse there was a warrant out for them would conclude he was not free to leave when encountered by the police soon after learning that information.

Defendant also points to an instance where he claims he attempted to end the interview. Defendant stated, "Well, you think whatever you want to think Sir but I say what I had to say and that's about it papa I'm telling you I'm sorry I can't help you." The investigators continued to interrogate defendant after he made the statement. While ambiguous, it does not appear from this statement that defendant was necessarily trying to end the interview. Instead, it appears that defendant was frustrated by the continued accusations by the investigators.

Defendant also avers he asked, "How much longer we going to be here?" This question went unanswered, and it is notable that the investigators did not respond by telling him that he was free to leave whenever he wished. This statement is much clearer than defendant's alleged attempt to end the interview. A reasonable person who asked this question and received no response could conclude that he was not free to leave.

Accepting these facts before the trial court, the interrogation of defendant was clearly custodial. A reasonable person in defendant's position would not feel he was free to stop answering questions and leave the interview whenever he wished. While the initial encounter with the investigators at defendant's place of employment does not appear custodial, once he was transported to the prosecutor's office and secluded in the interview room, the encounter clearly became custodial. The mere fact that defendant was told he was not under arrest at the beginning of the encounter does not objectively lead to the conclusion a reasonable person in his position would feel free to leave considering everything that occurred after he was told he was under arrest. The trial court erred by concluding that defendant was not in custody.

Here, as in Messino, supra, defendant voluntarily accompanied and was driven by police officers to the prosecutor's office to answer questions and was not placed under arrest. 378 N.J. Super. at 576. However, "[a]t no point was [the] defendant told he was free to leave." Ibid. The court noted, as the trial court also did, that there was "no practical way for defendant to leave" since he had been driven to the prosecutor's office by the police. Ibid. The court concluded that under these circumstances, "a reasonable person would not believe that he was free to leave." Ibid.

The State argues in the alternative that defendant knowingly, voluntarily and intelligently waived his Miranda rights. Defendant argues that the record developed before the trial judge does not support such a finding beyond a reasonable doubt. We agree, but as we note later, our role following such a determination does not include de novo fact-finding. "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (citations omitted), certif. denied, 182 N.J. 148 (2004). We are not bound by the legal conclusions of a trial court. State v. Gandhi, 201 N.J. 161, 176 (2010) (citations omitted). "[C]onclusions of law are reviewed de novo." Zaman v. Felton, 219 N.J. 199, 216 (2014).

At its core, the dispute between the parties requires the court to ascertain whether defendant's statement, "What that mean?," at the conclusion of the recitation of his rights, without an answer from the investigators, invalidates his purported Miranda waiver. Defendant argues that this statement clearly shows he did not knowingly and intelligently waive his Miranda rights. The State contends that the warnings provided "by Investigator Ackerman were sufficient to inform him of the substance of his constitutional rights," and that defendant clearly and intelligently waived his rights.

The trial court suggested, but did not explicitly find, that defendant's statement expressed confusion, and Investigator Ackerman did not answer his question sufficiently for there to be an intelligent waiver.

While the State avers Investigator Ackerman had already conveyed the substance of the warning at the time defendant voiced his confusion, the question that confused defendant was different from the prior statements regarding his rights. Previously, Investigator Ackerman was asked defendant if he understood specific rights, one at a time. Then, she introduced the concept of waiver in her concluding question, asking defendant if he desired to waive the previously described rights and answer questions. This question was different from the previous ones, and could have caused confusion to defendant. Even Investigator Ackerman interpreted defendant's question as a lack of understanding of the warning. At the Miranda hearing, Investigator Ackerman was asked if defendant stopped her during the reading of his rights "to say he didn't understand something." She responded, "Yes. There was one one question on there, I think it was near the bottom."

After defendant asked, "What that mean?" Investigator Ackerman's answer was nonresponsive. Instead of going through defendant's rights again or explaining the concept of waiver, she only said, "Would you like to speak to us or not?" When presented with a situation like this, the interrogator could have inquired about the nature of the confusion and then clearly explained the rights again to allay the confusion. Investigator Ackerman's oblique response to the question could have left defendant with the impression that the waiver itself was an unimportant formality and that it was unnecessary to understand it.

Appellate courts will uphold the trial court's finding of admissibility under the "totality of the circumstances" as long as there was "sufficient credible evidence" to support it, even for statements given in police custody that amount to a confession. Knight, supra, 183 N.J. at 468; see State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div.) (based on the totality of the circumstances, the words "'I read him his rights,' or 'I advised him of his rights'" insufficient to prove the Miranda warnings were provided to and understood by the defendant), certif. denied, 187 N.J. 492 (2006).

Under this standard, an appellate court does not 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)). In State v. Hubbard, ___ N.J. ____ (2015) (slip op. p. 34), the Supreme Court explained

when the evidence consists of testimony of one or more witnesses and a videotaped recording of a statement by a witness or a suspect, an appellate court is obliged to review the entire record compiled in the trial court to determine if the factual findings are supported by substantial credible evidence in the record. Locurto,supra, 157 N.J. at 470-71. The appellate panel may reference a videotaped statement to verify a specific finding. It may not substitute its interpretation of events. An evidentiary hearing in the trial court or a trial conducted by a judge sitting without a jury is "the main event," not a "tryout on the road." See Wainright v. Sykes, 433 U.S. 72, 90, 97 S. Ct. 2497, 2508, 53 L. Ed. 2d 594, 610 (1977).

An appellate court is "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Locurto, supra, 157 N.J. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)); accord Elkwisni, supra, 384 N.J. Super. at 366. While it is true that "we affirm or reverse judgments and orders, not reasons[,]" State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002), we decline to make our own findings of fact respecting an issue not addressed by the trial court, on the basis of this record. See State v. Diaz-Bridges, 208 N.J. 544, 565-6 (2012).

Consequently, we reverse the order denying suppression of the statement and we remand the matter to the Law Division for further hearing. On remand for a rehearing of a pretrial motion to suppress, the second trial judge is not bound by the findings of fact or conclusions of law reached by the trial judge in the first instance. State v. Hale, 127 N.J. Super. 407 (App. Div. 1974)(explaining that "law of the case" doctrine most commonly applies to the binding nature of appellate decisions upon a trial court on remand for further proceedings). Accordingly, on remand, the trial court may conduct an expanded hearing to gather additional information relevant to the issue of suppression. State v. Henderson, 208 N.J. 208, 300 (2011).

Given our conclusion, it is unnecessary for us to address the remainder of defendant's arguments on appeal. Nonetheless, we observe that the trial judge will have to reassess the question of severance here, based upon the conclusions it reaches on the admissibility of the statement. We do not wish our silence on the issue to indicate our approval of the trial judge's analysis of the issue or the conclusions he reached.

If the Law Division concludes the statement is admissible, and denies the motion to sever, an adequate jury instruction must be given explaining the uses and limitations of such evidence by the jury.

Reversed and remanded. We do not retain jurisdiction.

1 See discussion infra Part II.

2 M.G. was seventeen years of age at the time of trial in 2012 and C.C. was sixteen years of age.

3 State v. Hinton, 216 N.J. 211, 220 (2013)(Evidence not before the trial judge when deciding the motion to suppress statements made to the police in violation of Miranda was not part of the record reviewed on appeal); State v. Carvajal, 202 N.J. 214, 219 n.1 (2010) (considering only stipulated facts for review of motion to suppress); State v. Mai, 202 N.J. 12, 17-18 (2010) (limiting review of facts to those "adduced before [the court] at the suppression hearing").

4 FA refers to Investigator Ackerman and FM refers to defendant. WM is Investigator Mahan.