STATE OF NEW JERSEY v. GUADALUPE RIZO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0550-04T10550-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GUADALUPE RIZO,

Defendant-Appellant.

__________________________________

 

Submitted November 27, 2006 - Decided December 28, 2006

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0285.

Azzmeiah R. Vazquez, attorney for appellant.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Amy Shoenfelt, Assistant Prosecutor, on the brief).

PER CURIAM

On May 6, 2004, defendant Guadalupe Rizo was convicted after a three-day trial of second-degree sexual contact with T.T., a child less than 13 years old, in violation of N.J.S.A. 2C:14-2(b). He was also found guilty of second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4. Prior to trial defendant moved for suppression of his confession and a pretrial hearing was conducted on April 27, 2004. Judge Audrey P. Blackburn determined that defendant understood his constitutional rights and that he knowingly and voluntarily waived those rights before confessing. As a consequence, she determined that defendant's confession was admissible at his trial.

Appellant raises the following issues on appeal:

THE APPELLANT'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED, WHICH REQUIRES THAT HIS CONVICTION BE OVERTURNED.

A. The Appellant was in custody and his custodial interrogation was carried out by law enforcement officers.

B. The Appellant's incriminatory statements during his interrogation were involuntary.

C. The Appellant did not waive his Fifth Amendment right against self-incrimination.

D. The Appellant's involuntary statements were used in the court below to his detriment to convict him for the alleged crime.

Because the only issues on appeal relate to the pretrial hearing, we will not discuss the facts leading up to defendant's interrogation and will discuss only the evidence presented on April 27, 2004.

Detective Robert James Mathes, Jr., a detective with the Trenton Police Department who spoke only English, was assigned to the investigation of this matter. On November 4, 2002, defendant voluntarily went to the police station and Mathes asked him if he spoke English. Defendant stated that his English was very limited. Mathes then sought the assistance of Detective Rolando Ramos, who spoke fluent Spanish. When both officers were in the interrogation room, Ramos advised defendant in Spanish of his Miranda rights. The Miranda form Ramos used was in Spanish, not English, and the form was read to defendant in Spanish as defendant read along.

First, defendant signed the part of the form that acknowledged that he understood his constitutional rights. Then, defendant attempted to give a statement to the detectives before he signed the Spanish-language Miranda waiver. Detective Ramos explained to defendant that he could not discuss the case until after he signed the waiver portion of the form. Ramos testified that it was his obligation to make certain that defendant understood exactly what the waiver form involved and he explained it further to defendant. After that discussion, defendant signed the waiver portion of the form. Ramos' testimony was corroborated by Mathes, who also testified that defendant had volunteered to talk to them. Both detectives signed the Spanish Miranda form as witnesses, although they neglected to check the box indicating that the Miranda form had been read to defendant.

Ramos also testified that, in observing defendant, Ramos concluded that defendant was not under the influence of any alcohol or drugs, he was coherent in his speech, he did understand his rights, and, after explanation, understood the waiver of those rights. Defendant did not ask to speak with an attorney at any time during the explanation of his rights and the waiver of them.

After this was completed, defendant gave a statement to Ramos. Ramos typed English-language questions into his computer and then asked each question of defendant in Spanish. When defendant answered the question, Ramos entered the answer in English into the computer. This was consistent with Ramos's ordinary practice and procedure. When the statement had been prepared in full, Ramos asked Detective David Maldonado to read the statement in Spanish to defendant outside the presence of Ramos to avoid any suggestion of duress. Ramos returned to the interrogation room when Maldonado finished.

Maldonado testified that he also was fluent in Spanish and that he had no trouble understanding defendant when defendant was speaking to him. Maldonado read the English-language statement in Spanish to defendant, who initialed each page and affixed his signature to the statement in the presence of Maldonado.

At the pretrial hearing defendant testified that he did not understand the waiver portion of the Miranda form, although he understood the rights portion; that he did not want to sign the form because he felt that he would lose his rights; and that the officers told him there were some bad people in the police station who would hurt him if he did not sign the form. Defendant also testified that Ramos had promised to give him a copy of the statement in Spanish, but that he never did so. He claimed that only a portion of the statement was read to him, but he signed it anyway. On cross-examination defendant testified that he did read the waiver portion at the bottom of the form and did fully understand the waiver of his rights. In discussing defendant's testimony the judge noted that defendant "took a tremendously long time . . . to respond to the questions that were propounded to him during the course of his offering testimony before this [c]ourt."

The judge found that the officers gave defendant his Miranda warnings in Spanish, that the Miranda warnings were reviewed with defendant by Detective Ramos, and that the form was given in Spanish. She also found that the top part of the Miranda form discussing defendant's rights was read to him in Spanish and the waiver of his rights was also read in Spanish by Detective Ramos. She found that defendant, at first, did not understand, but that, as a consequence, Ramos spent ten to twelve minutes explaining the waiver portion of defendant's rights and, ultimately, defendant signed the waiver. The judge found that the rights portion and the waiver portion were both knowingly and voluntarily signed by defendant.

The judge found that Ramos memorialized each of the questions and answers in the statement in English, although they were all spoken in Spanish, and that, in order to protect the integrity of the statement, Ramos left the room while the statement was read back to defendant by Maldonado in Spanish. The last question in the statement asked was: "Guadalupe Rizo, after this statement has been translated to you and it is exactly as you have told us, will you sign in your own handwriting, acknowledging it to be a true, free and a voluntary statement?" Defendant responded yes on the form.

The judge rejected defendant's testimony and found that defendant understood and signed the Miranda waiver and that his confession was freely, voluntarily and knowingly given. As a consequence, she determined that the confession was admissible in evidence. In doing so, she tacitly concluded that defendant was not credible and the detectives were credible.

Our scope of review of a trial court's determinations of the credibility of witnesses is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We are not in a good position to judge credibility and should not make new credibility findings. Id. at 472-73.

Clearly, the judge concluded that the testimony of the detectives was credible, whereas the testimony of defendant was not credible. Because she was able to observe the character and demeanor of the witnesses, she was in a better position to determine their credibility and we must defer to her conclusions in that regard. Id. at 474.

As to the judge's other fact-findings, they rest upon substantial credible evidence in the record and may not be revisited on appeal so long as they could reasonably have been reached based upon that evidence. Locurto, supra, 157 N.J. at 471-72; State v. Johnson, 42 N.J. 146, 161-63 (1964). The question of whether the trial court was correct in the standard it applied is a question of law and our review is plenary. State v. Reddish, 181 N.J. 553, 609 (2004); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "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.), certif. denied, 182 N.J. 148 (2004).

It is undisputed that defendant was subject to a custodial interrogation, which automatically triggers his Fifth Amendment privilege against self-incrimination. State v. P.Z., 152 N.J. 86, 102 (1997). Defendant contends that his statement was not voluntary because the detectives acknowledged that they had not properly completed the Miranda form. In deciding whether a self-incriminating statement is admissible, the following test applies:

To determine whether a statement was made voluntarily, . . . courts consider whether it was "the product of an essentially free and unconstrained choice by its maker," in which case the statement may be used against the defendant, or whether the defendant's "will has been overborne and his capacity for self-determination critically impaired," in which case use of the statement "offends due process." This issue can be resolved only after an assessment of the "totality of the circumstances" surrounding the statement.

[Id. at 113 (citations omitted).]

There is no question that the judge applied this standard; the question raised by defendant is whether she applied it correctly. With respect to the improper completion of the Miranda form, defendant argues that:

This clearly establishes that proper procedure was not followed by the law enforcement officers while giving the [defendant] his Miranda warning. This, coupled with the fact that the [defendant] knew very little English, leads to the conclusion that the [defendant] did not properly understand his Miranda rights. Therefore, he did not voluntarily and knowingly waive his Fifth Amendment right against self-incrimination.

We are not persuaded by this argument. Although the detectives should have fully completed the Miranda form, they testified that everything was read and explained to defendant in Spanish and the judge found this testimony to be credible. Thus, the proper interrogation procedure was followed, although it was not properly documented. That clerical failure, alone, will not preclude the admission of defendant's confession into evidence. Although defendant apparently was not fluent in English, the communications made during the interrogation were in Spanish, as was the Miranda form. Therefore, defendant's comprehension of English was irrelevant to determining whether his statement followed a knowing and voluntary waiver of his constitutional rights.

Neither is there any evidence that his will was overborne. The record is bereft of any evidence of acts of violence against defendant; lengthy and continuous incommunicado interrogation; or deprivation of sleep, food or water, all hallmarks of coercive police conduct. See State v. Patton, 362 N.J. Super. 16, 44-45 (App. Div.), certif. denied, 178 N.J. 35 (2003). The judge clearly considered the totality of the circumstances, including defendant's education and intelligence, the advice concerning his constitutional rights, the length of detention, the nature and length of questioning, and the absence of physical punishment and mental exhaustion, as required by State v. Johnson, 309 N.J. Super. 237, 260 (App. Div.), certif. denied, 156 N.J. 387 (1998), and State v. Jones, 308 N.J. Super. 15, 24 (App. Div. 1998).

Defendant next contends that the interrogation subsequent to the allegedly defective Miranda waiver was itself defective because the interrogation was not typed in Spanish and was not videotaped or sound recorded. He also contends that Ramos should have remained in the interrogation room when Maldonado read the confession to him. No authority for these requirements has been called to our attention and we find none. The interrogation was conducted in Spanish, memorialized in English, and translated back to defendant in Spanish by a different officer to ensure the integrity of the translation. Apparently, the statement was accurately translated because there is no record evidence that even hints at any claim by defendant that there was an error in the English translation of defendant's confession.

We find no error in the judge's well reasoned conclusion that defendant knowingly and voluntarily waived his constitutional rights against self-incrimination and confessed to the crimes for which he was subsequently prosecuted and convicted. The State proved beyond a reasonable doubt that defendant's waiver of the privilege against self-incrimination was knowing, intelligent, and voluntary in light of all the circumstances. See Patton, supra, 362 N.J. Super. at 41-42.

 
Affirmed.

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

(continued)

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11

A-0550-04T1

RECORD IMPOUNDED

December 28, 2006