STATE OF NEW JERSEY IN THE INTEREST OF J.B., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4944-09T2

STATE OF NEW JERSEY IN THE

INTEREST OF J.B., a minor.

________________________________________________________________

June 8, 2011

 

Argued May 3, 2011 - Decided

 

Before Judges Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-2771-09.

 

James S. Friedman argued the cause for appellant J.B.

 

Catherine Healy, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Edward J. De Fazio, Hudson County Prosecutor, attorney; Ms. Healy, on the brief).

 

PER CURIAM

J.B. appeals from an April 28, 2010 adjudication of delinquency on one count of sexual assault, N.J.S.A. 2C:14-2(c), and one count of criminal sexual contact, N.J.S.A. 2C:14-3(b), for which the judge sentenced him to a three-year term of non-custodial probation and required him to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. On appeal, J.B. raises the following claims:

I. THE TRIAL COURT'S DENIAL OF THE SUPPRESSION MOTION WAS ERROR BECAUSE J.B. WAS NOT AFFORDED THE OPPORTUNITY TO CONSULT WITH COUNSEL PRIOR TO GIVING HIS STATEMENT.

 

II. THE TRIAL COURT'S DENIAL OF THE SUPPRESSION MOTION WAS ERROR BECAUSE J.B. DID NOT GIVE THE STATEMENT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY.

 

We affirm.

I.

On April 29, 2009, a psychologist from Kearny High School notified the Kearny police that one of the school's sixteen year old students, T.A., reported that on April 27, 2009, she had been sexually assaulted by a seventeen year old male student, J.B. Kearny police notified the Hudson County Prosecutor's Office of T.A.'s allegations, and Detective Mark Groninger, of the Hudson County Prosecutor's Office, interviewed T.A., her mother and her eight-year-old sister, M.A.

T.A. told police she had been friendly with J.B. for one or two years prior to the incident, but had never been romantically involved. T.A. reported that on April 27, 2009, after walking her home from school, J.B. came into her house, and sat on the couch approximately ten to twelve feet from her, while she exercised on a stationary bicycle. Shortly thereafter, T.A.'s mother left to go to the laundromat, leaving T.A., M.A. and J.B. alone in the house.

T.A. told Detective Groninger that shortly after she stepped off the exercise bicycle, J.B. pulled her onto his lap, and hugged her tightly. At the hearing on J.B.'s motion to suppress his oral statement, T.A. described what happened next:

And at first I didn't do anything, I didn't struggle because I thought at that point like okay, you know, its just a hug . . . . I didn't take it too seriously. But then when I asked him to let me go, he didn't and then he just . . . kept his grasp around me [in] . . . the middle of [my] stomach.

 

And from there I thought -- I began to think okay, like what's going on. And then he started saying something about oh, give into temptation . . . and that struck -- that appeared to be as very weird because I did not know what he was like referring to. . . .

 

He -- well, since he was already sitting behind me, he kind of like -- he penetrated me with his finger first from behind and after that I remember that he groped my left breast.

 

T.A. explained that after J.B. inserted his finger into her vagina, he forced her down to the floor and tried to pry open her legs.

T.A. explained that earlier, while J.B. was still holding her around his waist, she had told M.A. to leave the room and go into their mother's room, because T.A. was afraid M.A. might be forced to witness something that she should not see. While J.B. had T.A. down on the floor, and was trying to pry her knees open, M.A. re-entered the living room, saw what was occurring, began to cry and threw bubble soap into J.B.'s eyes. T.A. was able to escape from him, and ran into the bathroom for a few moments. She then walked J.B. out of the house and told him to leave.

Detective Groninger interviewed M.A., whose account of the events mirrored that provided by T.A. Detective Groninger also interviewed T.A.'s mother, who stated that T.A. had reported the incident to her a day or so after it occurred.

Two days later, on May 1, 2009, Detective Groninger, accompanied by Detective Evans, went to Kearny High School to look for J.B. The vice-principal told them that J.B. was absent from school that day, that he had a poor attendance record and suffered from "multiple disorders"; however, to protect J.B.'s privacy, the vice-principal would not elaborate. Next, the detectives went to J.B.'s home, and spoke with his mother, who agreed to bring her son in for an interview.

Our description of that interview is derived from watching the digital video disc (DVD), and considering the accompanying transcript as well as the evidence presented at the suppression hearing. Prior to the interview, Detective Groninger read the Miranda1 rights form to J.B. and his mother. After J.B. and his mother reviewed it together, his mother signed it. The interview began at 4:40 p.m. and lasted an hour. J.B.'s mother was present throughout the entire interview. Neither J.B. nor his mother requested that a lawyer be present.

During the first fifteen minutes of the interview, J.B. insisted to Detective Groninger that he, T.A. and M.A. were simply fooling around and wrestling, during which M.A. poured some bubble soap onto his head. He maintained that nothing other than that had happened. At that juncture, Detective Groninger left the room for a few minutes and returned accompanied by Lieutenant Honey Spirito. As the State acknowledges, the tone of the interview became "more aggressive" once Lieutenant Spirito began to question J.B. She commented repeatedly that he was leaving out critical details, and at one point told him that if she were to compare T.A.'s account of what occurred to J.B.'s account, "you're flunking." She also commented that he had "changed the story a few times."

At that point, Detective Groninger resumed questioning J.B., and, after approximately fifteen minutes, J.B. acknowledged what he had denied earlier, namely, that he had touched T.A.'s breast under her blouse, and that he had inserted the tip of his finger into her vagina. At that point, Detective Groninger concluded the interview. After consulting with Lieutenant Spirito, Groninger prepared a complaint charging J.B. with offenses that if committed by an adult would constitute sexual assault and criminal sexual contact. Groninger served the complaint on J.B. and took him into custody.

On September 7, 2009, J.B. moved to suppress his May 1, 2009 statement to Detective Groninger and Lieutenant Spirito. The judge conducted an evidentiary hearing on January 15, 2010, during which the State played the DVD of the interview. During the evidentiary hearing, Detective Groninger testified that although the Prosecutor's Office had sufficient probable cause to file a complaint against J.B. based solely on the statements of T.A., M.A. and their mother, the Prosecutor's Office chose not to file a complaint against J.B. based on those statements, but to instead interview J.B. and "give [J.B.] a chance to give his side of the story."

When asked on cross-examination what would have happened if J.B. had denied that anything had happened, Groninger answered that "the [charging] decision was made by [his] Lieutenant," and therefore he was unable to determine what his Lieutenant would have done if the interview had proceeded in that fashion. If, however, the decision had been up to him, "[m]e personally, I don't think a complaint would have been filed at that point, right away," if J.B. had denied any wrongdoing.

At the conclusion of the hearing, the judge issued a lengthy and well-reasoned oral decision, concluding that "the establishment of a prima facie case by the State should not trigger the statutory right to counsel which then cannot be waived in the attorney's absence." Instead, the judge determined that the right to counsel attaches only when the juvenile criminal complaint is filed. The judge held that "as a matter of law, the critical stage in the proceedings necessary to trigger the statutory right to counsel had not been reached and no protection beyond those afforded to J.B. by Miranda had attached at the time he made those statements." The judge further found that even if the applicable statute and case law required him to consider the totality of the circumstances in determining whether a critical stage in the proceedings had been reached, and whether J.B. was thereby precluded from waiving his right to counsel, the facts in this case showed that the investigation had not yet reached that level.

The judge then turned to an analysis of whether J.B.'s waiver of his right to remain silent and his right to counsel was knowing, intelligent and voluntary. The judge found that J.B. was seventeen years-old at the time, his mother was present throughout the entire interview, which lasted only an hour, and J.B. was advised both orally and in writing of his Miranda rights. The judge took note of several factors that supported J.B.'s claim that his statement should be suppressed: "this was J.B.'s first charge and . . . J.B. was indeed a special education student. Additionally, the overall tone of the interview [was] somewhat coercive[.]" Balancing all of the factors, the judge ultimately concluded that although the tone adopted by the detective and the lieutenant was "somewhat coercive," it had not "cross[ed] that line, . . . to be enough in and of itself to overbear the will of the juvenile," who "was not handcuffed, [and] his questioning did not last for more than an hour."

The judge also relied upon the fact that J.B.'s "demeanor and responses during the questioning indicate a youth who . . . was lucid and capable of comprehending the situation." Furthermore, according to the judge, neither J.B. nor his mother had made any mention of his disorders during the interrogation, and, "[a]ccordingly, J.B.'s disorders alone are not enough to render his . . . confession involuntary."

Next, the judge considered whether three instances in which J.B.'s mother had attempted to interject, but had been silenced by either Groninger or Spirito because they wanted to keep the interview "flowing," were sufficient to negate J.B.'s waiver of his right to remain silent. The judge concluded that at no time did J.B.'s mother advise her son to remain silent, or express a desire for her son to be represented by counsel. The judge ultimately found that "[i]n their totality, the circumstances surrounding this confession [did] not indicate to this court the type of situation in which J.B.'s will was overborne."

II.

We turn to Point I, in which J.B. maintains that because the State conceded that it had probable cause to arrest him before the interrogation began, the investigation had reached a "critical stage" within the meaning of N.J.S.A. 2A:4A-39(a), and therefore he could not waive his right to counsel at the interrogation absent prior consultation with an attorney. He maintains that because no such consultation had occurred before he provided his statement, the judge's denial of his suppression motion was error, and his adjudication of delinquency must be therefore reversed.

The Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -49, affords a juvenile the right to have "counsel at every critical stage in the proceeding which, in the opinion of the court may result in the institutional commitment of the juvenile." N.J.S.A. 2A:4A-39(a). At any critical stage in the proceeding, a juvenile "may not waive any rights except in the presence of and after consultation with counsel, and unless a parent has first been afforded a reasonable opportunity to consult with the juvenile and the juvenile's counsel regarding [the] decision." N.J.S.A. 2A:4A-39(b)(1). Thus, the question before us is whether the investigation by the Hudson County Prosecutor's Office, which had yielded sufficient incriminating information against J.B. to constitute probable cause for an arrest, constituted a "critical stage" such that the statutory right to counsel was triggered. As the Supreme Court observed in State ex rel. P.M.P., 200 N.J. 166, 178 (2009), "just as adult defendants following indictment may not waive their Miranda rights absent counsel, at every critical stage of the proceedings juveniles may not waive their Miranda rights 'except in the presence of and after consultation with counsel.'" (citing N.J.S.A. 2A:4A-39(b)(1) (internal citation omitted)). Thus, if the Prosecutor's Office having established probable cause for J.B.'s arrest was a "critical stage" within the meaning of N.J.S.A. 2A:4A-39(a), his statement should have been suppressed.

In P.M.P., supra, the Cape May Prosecutor's Office received information on behalf of T.B., who was then 12 years old, alleging that six or seven years earlier, the defendant2 had sexually assaulted her. 200 N.J. at 169. At the time of the sexual assault, the defendant would have been thirteen or fourteen years of age. Ibid. A female detective, pretending to be T.B., telephoned the defendant. Ibid. Believing he was talking with T.B., the defendant apologized for his conduct. Ibid. Following that conversation, the Cape May County Prosecutor's Office prepared a juvenile delinquency complaint against the defendant, and appeared before a judge in the Family Part, who, after listening to a detective's description of the allegations in the delinquency complaint, authorized the prosecutor to apprehend the defendant on an arrest warrant and bring him before the court the next morning. Id. at 169-70. The next morning, detectives arrested the defendant and read him his Miranda rights, id. at 170, after which he waived his rights and agreed to speak to the detectives. Ibid. During the interview, the defendant admitted that he had sex with T.B., as she had alleged. Ibid.

The Supreme Court suppressed the defendant's statement:

[T]he filing of the complaint and obtaining of a judicially approved arrest warrant by the Prosecutor's Office was a critical stage in the proceedings, and pursuant to N.J.S.A. 2A:4A-39(b)(1), defendant had the right to counsel and could not waive that right "except in the presence of and after consultation with counsel."

 

[Id. at 169.]

 

In reaching that conclusion, the Court noted that the Prosecutor's Office had "investigated the victim's complaint, and based on its investigation, filed a juvenile complaint and sought an arrest warrant. The State had developed a prima facie case . . . and was clearly an adversary to defendant. Certainly, any further questioning of defendant was for the purpose of buttressing the State's case[.]" Id. at 177. For that reason, the Court "conclude[d] that under those circumstances, the significant level of involvement by the Prosecutor's Office and the judicially approved arrest warrant satisfied the 'critical stage in the proceeding' necessary to trigger defendant's statutory right to counsel[.]" Id. at 178.

J.B. maintains here that the Supreme Court's reference in P.M.P. to the State having "developed a prima facie case against defendant" and the Prosecutor's status as "clearly an adversary to [the] defendant" and conducting "further questioning . . . for the purpose of buttressing the State's case against him," id. at 177, signify an intention by the Court to reject the bright line rule that requires the presence of counsel only after the juvenile has been charged in a formal complaint. J.B. maintains that rather than establish a bright line rule, the Court in P.M.P. required judges to determine, by analyzing the totality of the circumstances, whether a "critical stage" had been reached. We do not agree. As is evident, the Court in P.M.P. recognized that the State had developed a prima facie case even before the Cape May County Prosecutor's Office filed the complaint and charged the defendant. Ibid. The defendant's telephone conversation with an investigator posing as the victim, in which the defendant admitted his wrongdoing and apologized for it, when combined with the victim's account of what had transpired, established a prima facie case. Ibid.

Under such circumstances, the Court certainly had the opportunity to hold that at the moment the State establishes probable cause or a prima facie case, an interview of the juvenile without counsel being provided is impermissible, whether or not the complaint has yet been filed. Yet, the Court chose not to do so. Instead, the Court held that it is only when the complaint has been filed a critical stage in the proceedings has been reached under which the absence of counsel invalidates any incriminating statement given by the juvenile. Id. at 178.

We have been presented with no meritorious reason to establish a standard different from the one the Court adopted in P.M.P., especially when the Court had the opportunity to do so, but did not. We therefore reject J.B.'s claim in Point I that a "critical stage" had been reached at the time he was interviewed by Groninger and Spirito, and that therefore his waiver of the right to counsel was ineffective.

III.

We turn to Point II, in which J.B. argues, in the alternative, that his waiver of his right to counsel and of his right to remain silent was not knowing, intelligent and voluntary and therefore the judge erred by refusing to suppress his statement. In support of that argument, he points to several tactics used by Detective Groninger and Lieutenant Spirito. As our Supreme Court observed in State v. Presha, 163 N.J. 304, 312-13 (2000):

The privilege against self-incrimination . . . is one of the most important protections of the criminal law . . . [and] waiver must never be the product of police coercion. Accordingly, for a confession to be admissible as evidence, prosecutors must prove beyond a reasonable doubt that the suspect's waiver was knowing, intelligent and voluntary in light of all the circumstances.

 

At the root of the inquiry is whether a suspect's will has been overborne by police conduct.

The Court in Presha also set forth a non-exclusive list of factors to be applied when determining whether the confession satisfied that standard. Id. at 313. The list includes the suspect's age, education level, intelligence, any prior encounters with the law, and the extent to which the juvenile's parent was present. Ibid.

We turn now to an analysis of each of the factors to which J.B. points. First, relying upon our decision in State in the Interest of J.F., 286 N.J. Super. 89, 98 (App. Div. 1995), he maintains that Groninger's silencing of his mother on the three occasions that she sought to intervene impermissibly denied him the opportunity to have his mother serve as a buffer between him and the officers conducting the investigation. As the State argues, and as the judge correctly found, J.B. consulted with his mother before signing the Miranda rights form, and his mother was present throughout the entire proceeding.

While it is true that J.B.'s mother did interrupt the questioning on three occasions when her son was making incriminating statements, she did not indicate in any way that she wanted her son to remain silent or that she wanted to obtain counsel for him. On the three occasions when Detective Groninger asked J.B.'s mother not to interrupt his questioning of her son, because he wanted to maintain the "flow" of the questioning, J.B.'s mother did not assert herself in response to that request. We will not speculate as to what she would have said or requested. Consequently, J.B.'s contention that he was denied the opportunity to have his mother act as a buffer is, as the State argues, "speculative at best." We therefore reject J.B.'s contention that his right under J.F., supra, 286 N.J. Super. at 98, and State in the Interest of A.S., 203 N.J. 131 (2010), to have his mother act as a buffer, was violated.

Second, J.B. maintains that his confession was involuntary and was the result of the "efforts of overbearing investigators who aggressively interrogated [him] in a highly coercive and intimidating atmosphere" knowing that he "was classified and had severe mental health issues," and also knowing that this "interrogation represented J.B.'s first encounter with the justice system."

As examples of Spirito's aggressive questioning techniques, J.B. points to her remark that "if [she] had to look at [J.B.'s] story and [T.A.'s] story, you're flunking" and "no, no, stop the 'confused,' stop the 'I'm tired'"; "you've left holes in this story already"; "is [sleeping late] a good reason not to go to school? . . . You're going to wind up putting your mother in jail for that because . . . when you don't go [to school] they call your mother and so far the reason you give me is 'I'm tired.' I think you say that a lot to get over on mom, that's not working here."

Other than a reference in J.B.'s pre-sentence social investigation to him taking the medication Abilify "to help him cope with his mental health issues," the only other statement in the social investigation that bears any mental health issues that were reasonably contemporaneous with the incident in question, was his October 11, 2009 individualized education plan (IEP). The IEP describes J.B. as "multiply handicapped," but does not elaborate further. An October 19, 2007 psychiatric assessment provides only one diagnosis: "bipolar disorder NOS, provisional." J.B. has made no showing as to any connection between his diagnosed disorders and his capacity to waive his rights, and we are unwilling to assume that any such connection exists. There are certainly disorders that lead to a student being classified that have no bearing on the student's capacity to make a knowing, voluntary and intelligent waiver of his rights.

Having viewed the entire DVD, we are in agreement with the trial judge's conclusion that J.B. was articulate throughout the entire interview and, with the exception of the moment at the beginning of the interview when he was briefly unable to recall his cell phone telephone number, his ability to understand the questions, to react, and to express himself revealed a level of functioning within the average range.

For example, when asked by Spirito how he could have become fatigued after "fighting" with a one-hundred pound T.A. for five minutes, J.B. answered, "she's actually pretty strong for a girl her size and stature." On another occasion, when discussing the two of them wrestling, J.B. commented that T.A.'s "primary objective was to get away from me." Later, when discussing the insertion of his finger into the victim's vagina, J.B. commented that T.A.'s vaginal canal "won't be wet or anything different because she wasn't sexually excited." On other occasions he said, "I probably got confused that her squirming and rejection was, you know, just like a trick and such" and "I probably touched the lip of the vagina by accident between I don't know how far down I went with the pants, that's probably what she's talking about, the lip part of it, that's it." At the end of the interview, he commented that it was when T.A. went in the bathroom, and M.A. "made that sad little face," that "the conscience in me turned my reality back to -- my fiction to reality."

These comments strike us as those of a young man who possessed a keen understanding of what he was being asked, and of the significance of the answers he was providing. Thus, we agree with the judge's conclusion that whatever classification J.B. may have had for purposes of his schooling was irrelevant to his ability to understand the questions being asked, and to knowingly, intelligently and voluntarily waive his right to remain silent and his right to counsel.

Third, J.B. maintains that his confession was not voluntary due to Groninger and Spirito's use of "double-teaming" and "two against one" tactics that "bullied [him] into making damaging admissions." The State maintains that the detectives' "ordinary interrogation of the almost 18 year old suspect in the presence of his parent was completely voluntary." The State also maintains that the use of the "good cop/bad cop" technique did not overbear J.B.'s will. As the Supreme Court observed in State v. Miller, 76 N.J. 392, 403 (1978), law enforcement officers questioning a suspect are entitled to use verbally aggressive techniques to "dissipate" the "reluctance" of the suspect to speak "as long as the will of the suspect is not overborne." We agree with the judge's conclusion that although the overall tone of the interview was at times accusatory, it was not "enough in and of itself to overbear the will of the juvenile." J.B. was not handcuffed, the questioning occurred during the afternoon, lasted but one hour, contained two breaks, J.B. was nearly eighteen years old, and his mother was present throughout the entire interview. Under such circumstances, the use of two questioners, and the employment of an aggressive questioning technique by Spirito, do not render involuntary J.B.'s waiver of his right to remain silent.

Fourth, J.B. maintains that Spirito mocked and ridiculed him throughout the interview, thereby rendering his statement involuntary. He points to her skeptical tone when he insisted that he became fatigued after wrestling with T.A. for five minutes, and to her comment that for someone who had been in "special education a long time" he "certainly [didn't] come off [as] slow." Having carefully reviewed the entire record, we agree with the State's contention, and the judge's conclusion, that the above comments by Spirito, while confrontational, and mocking in tone, did not cross the line established by Miller, supra, 76 N.J. at 403.

Considering all of the claims raised by J.B., we are satisfied, as was the judge, that based on the totality of the circumstances, J.B.'s waiver of his rights was knowing, intelligent and voluntary. There is nothing to indicate that his will was overborne or that he did not understand the rights he was surrendering. We thus reject the claim J.B. advances in Point II.

Affirmed.

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

2 Although P.M.P. was prosecuted as a juvenile, we refer to him as "the defendant" rather than as "the juvenile" because he was twenty years old at the time of his arrest. The Supreme Court did so as well.