STATE OF NEW JERSEY IN THE INTEREST OF A.W

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0244-09T2

STATE OF NEW JERSEY

IN THE INTEREST OF A.W.

_________________________________________________

February 3, 2011

 

Argued December 7, 2010 - Decided

 

Before Judges Payne and Baxter.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County, Docket No. FJ-20-1214-09.

 

Brian Plunkett, Assistant Deputy Public

Defender, argued the cause for appellant

A.W. (Yvonne Smith Segars, Public Defender, attorney; Mr. Plunkett, of counsel and on the brief).

 

Sara B. Liebman, Assistant Prosecutor,

argued the cause for respondent State of

New Jersey (Theodore J. Romankow, Union

County Prosecutor, attorney; Ms. Liebman,

on the brief).

PER CURIAM

A.W., a juvenile, appeals from an adjudication by a Family Part judge finding him delinquent, having committed acts that, if he were an adult, would constitute aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and attempted aggravated sexual assault, N.J.S.A. 2C:14-2a(1) and 2C:5-1a. On appeal, A.W. presents the following arguments:

POINT I

 

A.W.'s STATEMENT WAS TAKEN IN VIOLATION OF HIS RIGHT AGAINST SELF-INCRIMINATION AND THE SPECIFIC ADDITIONAL RIGHTS AFFORDED TO JUVENILES, NECESSITATING SUPPRESSION AND REVERSAL.

 

POINT II

 

DR. PELLICCIA's TESTIMONY REGARDING K.P.'s HEARSAY ALLEGATIONS OF SEXUAL ABUSE WAS NOT ADMISSIBLE AND IMPROPERLY BOLSTERED K.P.'s CREDIBILITY DENYING A.W. A FAIR TRIAL.

 

A.W. does not challenge the judge's determination that he is subject to Megan's Law or his sentence of three years of probation with outpatient counseling.

I.

A bench trial was conducted in this matter, at which testimony was offered by the female victim, K.P.; examining physician Dr. Francis Pelliccia; K.P.'s mother, E.R.; Assistant Prosecutor Scott Peterson; the person who interviewed K.P. and A.W., Detective Janet Lopez; and A.W.

E.R. testified that, at 10:00 p.m. on November 21, 2008, upon returning upstairs to her apartment from the laundromat where she was employed, E.R. observed her daughter, K.P., covered with a blanket with the zipper of her pants lowered. When E.R. asked K.P. what she was doing, K.P. responded that she was touching herself because that is what her cousins A.W. and J. would do. She then related that J. would touch her and, on many occasions, while clothed, would lay on top of her, and that A.W., on more than one occasion, penetrated her vagina with his finger and then licked his finger. On one occasion, A.W. had also asked K.P. to lick or suck his penis, but that she had refused. At the time of trial, in May 2009, A.W. was thirteen; K.P. was six.

K.P. confirmed that when she was four and five, A.W. would take off his pants and underwear, expose his penis, and ask her to suck it, but she had not complied. She also confirmed that A.W. had, on more than one occasion, removed her clothes, digitally penetrated her, stopping only when she said it hurt, and then removing and sucking his finger. K.P. testified that, while clothed, J. had more than once lain on top of her, grinding his pelvis into hers.1

Dr. Pelliccia, a pediatrician and consultant child abuse expert, met with and examined K.P. on December 23, 2008. At trial, the doctor testified that K.P. gave a history of having been "touched" in the genital area, but had not bled. The examination that was then conducted was normal as, Dr. Pelliccia stated, greater than ninety percent were. She testified:

That [there was] a normal exam does not mean nothing happened. It does not confirm abuse and it does not deny abuse. It's possible to be abused and be normal.

 

She then said:

[K.P.'s] history was consistent. And based on that she was believable. But based on the physical, the physical was normal.

 

During the State's case, Detective Lopez, who was assigned by the Prosecutor's Office on November 22 to investigate the allegations of sexual abuse, was called as a witness. Through her, the video-recorded interview of K.P. was introduced into evidence as a statement by a child under the age of thirteen regarding a sexual offense, pursuant to N.J.R.E. 803(c)(27), and it was played for the judge.

In an interview of A.W. by Detective Lopez, conducted shortly after E.R. learned of his conduct, and after A.W. had asked his father to leave the interview room, A.W. stated that, on one occasion, he had placed his hand on K.P.'s vagina. At trial, a Miranda2 hearing was conducted to determine whether the interview techniques employed by the detective had overborne A.W.'s will, thus rendering A.W.'s statement inadmissible. Both Detective Lopez and A.W. testified regarding the interview.

Detective Lopez was examined regarding the interviewing techniques in which she had been trained, and she responded by stating that her ultimate goal was to establish a rapport with the suspect and to elicit the truth from the juvenile being interviewed. The detective further stated that she believed she had elicited the truth in this case, because A.W.'s confession was "pretty much" consistent with the facts that had been related by K.P.

While being questioned on direct examination by defense counsel, A.W. confirmed that he was calm when he entered the Prosecutor's Office with his father, and that he had understood his Miranda and other rights and knowingly waived them. A.W. testified that, in retrospect, he was wrong to have excluded his father from a portion of the interview; that after his father left, Detective Lopez kept cutting off his professions of innocence and pressuring him; that he became aggravated as a result; and that he finally told Lopez "something she wanted to hear" that was not true.

The State established that A.W. and his father had appeared voluntarily at the Prosecutor's Office and at the time of the interview by Detective Lopez, A.W. was not under arrest. The interview room was designed for juveniles, had dolls in it and a picture on the wall. While questioning him, Detective Lopez was polite, and never yelled, cursed or "got physical" with him. The rights forms provided by the Detective and executed by A.W. and his father were in Spanish to accommodate A.W.'s father, who did not speak English, and were understood by A.W. He testified further that he understood that he had a right to have his father in the interview room, and that he had a right to a lawyer. Additionally, A.W. testified that he had voluntarily requested his father to leave because he thought he could handle matters on his own, and that he never requested his return. While his father was absent, A.W. never indicated that he wished to cease talking to Detective Lopez. Finally, A.W. testified that, when the interview ended, he was not arrested, and he was permitted to return home with his father.

At the conclusion of the hearing, the judge ruled in a lengthy and thoughtful oral opinion that the interrogation techniques employed by Detective Lopez on November 26, 2008 to elicit A.W.'s confession did not render that confession involuntary and unreliable, and thus suppression was not required. In doing so, the judge rejected arguments that Detective Lopez overcame A.W.'s will by unfairly 1) asserting claims regarding a confession by J. that she knew to be untrue; 2) downplaying the seriousness of the offense by redefining it as experimentation; 3) minimizing the severity of the situation by explaining that the concern was merely for A.W. to get therapy; 4) identifying A.W.'s father as a large, intimidating figure in order to suggest to A.W. that he should request that his father leave the room while the interview progressed; 5) shutting down any attempt by A.W. to deny involvement in the assault; and 6) assuring A.W. that she liked him and was pleased that the interview was progressing.

The judge concluded his ruling by stating:

The juvenile arrived at the Prosecutor's Office with a parent. And both juvenile and parent were present when the investigator administered the Miranda warnings. Both acknowledged understanding these warnings and both signed and initialed to indicate this fact.

 

Like the circumstances in [State in the Interest of ]Q.N., [ 179 N.J. 165 (2004)], the juvenile's father was present at the onset of questioning. He was given the opportunity to observe and assess the tone of the interview. It was not until the juvenile expressed his desire to discuss the matter out of the presence of the father, that his father agreed to leave the interview room.

 

There's nothing in the facts to indicate that the interviewer directly suggested that the father leave the

. . . interview room or that any other inappropriate actions took place during the interview, specifically on the part of the interviewer.

 

The interviewer admits to suggesting that the juvenile would likely not receive jail time. However, this statement alone, in light of all the circumstances, does not seem to support inadmissibility of the confession under current case law.

 

Overall, it seems that the interview was conducted within the confines of the principles set forth in [State v.] Presha, [ 163 N.J. 304 (2000)] and refined in Q.N. I find that the State has met its burden of proving the confession was voluntary and is reliable. The juvenile's motion to suppress is denied.

 

A.W.'s statement was then moved into evidence.

As stated previously, at the conclusion of the trial, the judge adjudicated A.W. delinquent, having committed and attempted to commit aggravated sexual assault on a minor of less than thirteen years of age. In doing so, the judge considered A.W.'s denial at trial that he had committed the acts for which he was charged, but rejected it, finding K.P., but not A.W., to have been credible. The judge stated:

To begin with, I find that the victim's testimony was credible. It was also consistent with her videotaped statement.

 

With or without the testimony of her mother, I, quite frankly, believe everything that she has said. Even though she is now only age six, I found her testimony to be remarkable. Again, it was consistent with her statement.

 

The fact that her mother corroborates her testimony and statement only strengthens her already credible testimony.

 

. . .

 

I am convinced that the victim did not fabricate sexually explicit stories about her cousins. I'm convinced that she knows the difference between [A.W.] and [J.] and, therefore, what conduct each engaged in. And I am sure that she was truthful when she described actual penetration.

After adjudicating A.W. a delinquent, the judge found him to be subject to Megan's Law, and sentenced him to three years of probation, assigned to a special caseload for sex offenders, with out-patient therapy.

II.

A.W. first argues on appeal that his statement was taken in violation of his right against self-incrimination and the specific additional rights accorded to juveniles, and that it should therefore have been suppressed. In particular, he argues that Detective Lopez utilized psychological tactics to induce A.W. to request that his father leave the room, and then utilized unfair techniques to elicit A.W.'s confession. Having reviewed the videotaped interview, which we find to have been remarkably non-coercive, we disagree.

In State v. Presha, 163 N.J. 304 (2000), the Supreme Court held that, for a confession to be admissible, "prosecutors must prove beyond a reasonable doubt that the suspect's waiver [of his constitutional rights] was knowing, intelligent, and voluntary in light of all the circumstances. Id. at 313 (citing State v. Burris, 145 N.J. 509, 534 (1996) and State v. Kelly, 61 N.J. 283, 294 (1972)). Whether the suspect's will has been overborne is assessed by considering the "totality of the circumstances surrounding the arrest and interrogation, including 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 was involved[,]'" as well as the suspect's previous encounters with the law. Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)).

The Court then turned to interrogations of juveniles and addressed the role of parents in this context, noting that "the parent serves as advisor to the juvenile, someone who can offer a measure of support in the unfamiliar setting of the police station." Id. at 314 (citing Gallegos v. Colorado, 370 U.S. 49, 54, 82 S. Ct. 1209, 1213, 8 L. Ed. 2d 325, 329 (1962)). When the mission of the juvenile justice system was primarily one of rehabilitation, the parent served "to protect the juvenile's interests but, as importantly, to ensure the truthfulness of any statements to the police." Ibid. (citing In re Carlo, 48 N.J. 224, 244 (1966)). Now, when punishment has joined rehabilitation as a focus, the Court held,

the parent serves as a buffer between the juvenile, who is entitled to certain protections, and the police, whose investigative function brings the officers necessarily in conflict with the juvenile's legal interests. Parents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation.

 

[Id. at 315 (citing Gallegos, supra, 370 U.S. at 54, 82 S. Ct. at 1212-13, 8 L. Ed. 2d at 329).]

 

Because of the "changing realities of the juvenile process and the important rights at stake," the Court reaffirmed the principle that a parent or legal guardian should be present during juvenile interrogations. Ibid. (citing In re S.H., 61 N.J. 108, 108 (1972)). The absence of a parent would be considered a "highly significant factor" in an evaluation of the totality of the circumstances. Ibid.

However, the Court held that if the juvenile were under the age of fourteen, "an evaluation of the totality of the circumstances would be insufficient to assure the knowing, intelligent, and voluntary waiver of rights." Ibid. Rather, the Court established a bright-line rule that, when a police interview was conducted of a juvenile under the age of fourteen, any statement given by that juvenile outside the presence of a parent or legal guardian would be inadmissible unless the parent or guardian were "unwilling to be present" or "truly unavailable." Id. at 316. Further, when an adult was unavailable or declined to accompany the juvenile, "the police must conduct the interrogation with 'the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'" Id at 317 (quoting In re S.H., supra, 61 N.J. at 108).

The holding of Presha as it related to interrogations of juveniles under the age of fourteen was modified in State ex rel. Q.N., 179 N.J. 165 (2004). In that case, a juvenile of the age of twelve was interrogated regarding sexual assaults on three young girls. Id. at 168. Although Q.N.'s mother was present during the administration of Miranda warnings and the initial interrogation, when Q.N. responded to questions regarding sex only by crying, the interrogating detective inquired whether Q.N. would be more comfortable if his mother were not present. Id. at 169. When both he and his mother agreed, the mother left the room and, as the interrogation proceeded, Q.N. confessed to the conduct that had been alleged. Id. at 170. Thereafter, Q.N.'s mother returned to the interview room, and a recorded statement was taken. Id. at 171.

In determining that Q.N.'s statement was admissible, the Court concluded that his mother's voluntary absence from the interview room was the functional equivalent of being unwilling to be present. The Court observed:

Due to the detective's careful explanations, R.N. [the mother] knew of her right to be present with her son and knew that, if she left Room One as she eventually did, she could return at any time or could end the interview. When asked whether she wanted to absent herself knowing of those conditions, R.N. said yes, apparently without hesitation. Thus, we are persuaded that the State has demonstrated the parent's willingness not to be present during the interrogation, consistent with Presha's strictures.

 

[Id. at 174.]

 

The Court noted that the police should have waited until Q.N.'s mother, herself, suggested that she should leave the room. Ibid. Nonetheless, the Court held

there is nothing in the record before us to suggest that R.N.'s absence was anything but knowing and voluntary. Our conclusion is supported by the fact that R.N. left Room One only after the detective meticulously had administered Miranda warnings and after actual questioning had begun. Those circumstances properly allowed the parent an opportunity to assess the tenor of the police interview and the atmosphere within the interrogation room before agreeing to exit the room.

 

[Id. at 174-75.]

 

Having determined that the absence of Q.N.'s mother from the interview room met an exception to Presha's bright-line exclusionary rule, the Court then analyzed whether Q.N.'s waiver of his rights was knowing, intelligent and voluntary by examining the totality of the circumstances. Id. at 175. In that regard, the Court evaluated the time of the interview, the detective's word usage, the number of interrogating officers present, the tone of the detective's voice, and the length of the interview. Id. at 175-76. Additionally, the Court found significant the fact that Q.N.'s mother had been present when Miranda warnings were being administered. Id. at 176. The Court then concluded that "in balancing all of the above factors against the age of Q.N., and giving special weight to the parent's eventual absence from the interrogation, we are satisfied that the State has carried its burden of demonstrating that Q.N.'s statements were the product of free will, which remains the central inquiry. Ibid.

Application of Presha's and Q.N.'s precepts to the present matter leads us to conclude, as did the trial judge, that the State demonstrated beyond a reasonable doubt that A.W.'s confession was voluntary, and that his will was not overborne. In reaching this conclusion, we do not accept A.W.'s argument that, because A.W. initiated the request for the exclusion of his father, rather than his father having done so, the absence fails to qualify as within the exceptions to parental presence set forth in Presha. Indeed, we perceive no distinction to exist between the two circumstances, since the parent need not accede to the juvenile's request. So long as the parent leaves voluntarily and is carefully instructed, as A.W.'s father was here,3 that he could return at any time, we regard the standards of Presha and Q.N. to have been met.

We also reject A.W.'s argument that Detective Lopez used unfair psychological tactics to induce him to request his father's absence. At most, the detective suggested to A.W. that he might have difficulty telling the truth with his father present. We see nothing untoward in her having acknowledged in passing this undeniable proposition. We also regard the detective's occasional use of English, rather than Spanish, while A.W.'s father was present, to have been immaterial, since the passages in English contained nothing that had not earlier been stated in Spanish. And although Detective Lopez at one point characterized A.W.'s father as "a big guy," A.W. stated in response to a question by the detective that he did not think his father was going to "do something" to him.

A.W. also challenges the psychological methods utilized by Detective Lopez in getting him to confess, claiming that she did not act with "'the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'" Presha, supra, 163 N.J. at 317 (quoting In re S.H., supra, 61 N.J. at 115). In this regard, we note that Detective Lopez told A.W. that she had spoken to J. and that he had both confessed to his own conduct and implicated A.W. But Detective Lopez had not, in fact, spoken to J. However, the record is unclear whether others had spoken to him and had communicated the information that he had given to the detective. In any case, if a misrepresentation of the sort alleged occurred, we conclude that was not enough, by itself, to have rendered A.W.'s confession involuntary. See State v. Cooper, 151 N.J. 325 (1997). There, the Court held that "a misrepresentation by the police does not render a confession . . . involuntary unless the misrepresentation actually induced the confession." Id. at 355. Here, A.W. was aware that K.P. had given a detailed and very specific statement regarding the nature of his conduct and that the detective regarded the statement as credible. Thus, significant evidence of his guilt existed other than J.'s purported accusation.

A.W. states that Detective Lopez used both "maximization" and "minimization" techniques to overcome his resistance to questioning, including refusing to accept denials of culpability; providing excuses for the alleged behavior such as "experimentation"; claiming that she already knew what had occurred; and linking A.W.'s admission of misconduct to receipt of treatment.4 While the record reflects that such techniques were, in fact, employed, we do not find them to have been sufficient to have overborne A.W.'s will or rendered his confession involuntary. In reaching this conclusion, we note that A.W. was not wholly unfamiliar with the interview process. As he said, "I'm used [to] it, because, because I was already in the Prosecutor's Office" on three occasions, two involving graffiti and one in some fashion involving his phone. On the present occasion, he went voluntarily to the Prosecutor's Office accompanied by his father. He was interviewed mid-morning in an attractive, non-institutional room that appeared to have been specially designed for such juvenile interviews. The interview, in total, took forty-five minutes; A.W.'s father was absent for twenty to twenty-five minutes of that period. Significantly, A.W.'s father was present during the administration of Miranda warnings and a portion of the interview. Thus, he had the opportunity "to assess the tenor of the police interview and the atmosphere within the interview room," Q.N., supra, 179 N.J. at 175, before agreeing to leave. Detective Lopez, who was not dressed in uniform, was not joined by other officers while interviewing A.W. Her manner was wholly non-threatening throughout the interview's course and her language was age-appropriate.

Even after giving added weight to the fact that A.W.'s father was absent for approximately one-half of the interview, we do not find in this case the "substantial" psychological pressure that would have rendered A.W.'s confession involuntary. Compare cases discussed in State v. Galloway, 133 N.J. 631, 656 (1993).

III.

A.W. also contends that Dr. Pelliccia was improperly permitted to repeat K.P.'s hearsay allegations of sexual abuse and to bolster her credibility, thereby denying A.W. his right to a fair trial. However, we find K.P.'s rather vague statement to the doctor to have been admissible pursuant to the tender years exception of the hearsay rule. N.J.R.E. 803(c)(27). We find no plain error in the fact that the doctor testified that because the statements given by K.P. were consistent, she was "believable." State v. Macon, 57 N.J. 325, 336 (1971).

Affirmed.

1 Assistant Prosecutor Peterson testified that his office had determined not to file a complaint against J., who at the time of the abuse, was ten years of age, and was regarded as too young to have formed a criminal intent.

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

3 We note that Detective Lopez also told A.W. that he could request the return of his father.

4 We note that, consistent with Detective Lopez's statements, A.W. was not placed in custody, but rather on probation conditioned on treatment.