STATE OF NEW JERSEY v. SHANE SIMPSON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01697-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANE SIMPSON,

Defendant-Appellant.

_______________________________

May 12, 2014

 

Submitted April 1, 2014 Decided

 

Before Judges Espinosa, Koblitz and O'Connor.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-02352.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Shane Simpson of sexually assaulting a seven-year-old girl and creating and possessing child pornography. He appeals, arguing that the judge committed various errors and the sentence imposed was excessive. We affirm, but remand for resentencing on count six.

Defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts two, three, and four); second-degree endangering the welfare of a child by engaging in sexual conduct, N.J.S.A. 2C:24-4(a) (count five); second-degree endangering the welfare of a child by causing a child to engage in child pornography, N.J.S.A. 2C:24-4(b)(3) (count six); and first-degree endangering the welfare of a child by possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b) (count seven). Count eight, charging fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2(a), was severed and a separate trial on this count was granted. He was sentenced to an aggregate of thirty-four years in prison with eighty-five percent parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, for his seven convictions. The judge sentenced defendant in accordance with N.J.S.A. 2C:47-1 to the Adult Diagnostic and Treatment Center.

The following facts were elicited at trial. On April 21, 2010, Robert Scott, a caseworker from the Division of Youth and Family Services (Division1), received a school referral concerning seven-year-old Cassie.2 Cassie said that she wanted to kill herself and was afraid to go home because she thought she would be beaten with a belt by her father.3 Scott, working with Keyport Police Detectives, went to Cassie's mother's home to locate the child.

Defendant, who lived with Cassie and her mother, answered the door. Having learned that defendant was a prior sex offender, Scott asked defendant whether he had touched Cassie inappropriately, to which defendant responded, "not on purpose." Defendant explained that while he was carrying Cassie upstairs at the request of her mother, because Cassie was fidgeting, his hand slipped down her leg and landed on her crotch. Scott then asked defendant if he ever shared a bed with Cassie. Defendant answered he had not, but later stated that he had to ask Cassie to leave his room sometimes because she likes to "cuddle." Subsequently, defendant was arrested for failing to register as a sex offender pursuant to Megan's Law4 and taken to the police station.

Cassie was located at a pizzeria with her father. Cassie was taken to the Monmouth County Child Advocacy Center in Freehold for a forensic interview conducted over a video-feed by Detective Shawn Murphy. She denied any sexual abuse by defendant. At trial, Cassie testified that the reason she did not tell Detective Murphy that defendant had touched her was because she was afraid of what might happen.

Keyport Detectives Murphy and Hyman interviewed defendant in a room with a covertly placed video camera that recorded the interview. Detective Murphy testified that in the beginning of the first interview, defendant was informed of his Miranda5 rights and signed the standard waiver form. Defendant stated that on three different Tuesdays in April 2010 he picked up Cassie from school, "placed her on his lap facing the opposite direction and actually, physically manipulated her back and forth on his penis causing him to ejaculate." He admitted to other sexual behavior with Cassie as well. Defendant also admitted taking sexual pictures of Cassie on his cellphone, as well as downloading images containing child pornography onto a laptop computer. With defendant's consent, the detectives reviewed the photographs on defendant's cellphone.

Detective Murphy and other officers continued the interview the following morning. They received defendant's consent to search his bedroom. Cassie's mother consented to a search of the entire house including the contents of two computers.

After the search was completed, Detective Murphy spoke to defendant about pictures discovered on a cellphone located near defendant's pillow in his bedroom. Defendant identified three sexually explicit photographs as pictures that he took of Cassie and himself during one of the sexual assaults. He stated that the other sexually explicit pictures of children on the cellphone were from the internet.

On April 28, 2010, Cassie was evaluated by Dr. Linda Shaw, a pediatrician and then-Medical Director of the Dorothy B. Hersh Regional Child Protection Center. When Dr. Shaw began to examine Cassie's genital area, Cassie told Dr. Shaw that defendant had sexually assaulted her.

At trial, Detective Robert Angelini testified that he found approximately 140 images of child pornography on two cellphones and two laptops found in the search. Most of the images were obtained from a peer-to-peer file-sharing program called Limewire.

Cassie testified that defendant did "something that you should do only when you're all grown up and you feel right to do it." She stated that he touched "her girl private part" with "his boy private part." She explained that she said she wanted to kill herself because of stress from what was going on with defendant and because she wanted her parents back together.

Defendant testified that he never sexually assaulted Cassie. He claimed various reasons for why he provided a false confession to the police, including that: he suffers from ADHD;6 he sustained a brain injury when he was young; on the day of the arrest, he had taken a half-pill of Melatonin that put him in a "sleep-like trance" during the interrogation; and when he was a teenager, he pleaded guilty to sexually molesting his five-year-old foster niece in Florida and was "channeling" the facts of the prior assault, tailoring them to relate to Cassie. He thought giving the police the information about his prior sexual assault would lead to therapy. He admitted that he downloaded child pornography using Limewire, and then took back-up photographs of the images on his cellphone, purportedly for the purpose of "self-therapy" to determine why it made him sexually aroused. The jury found defendant guilty on all seven counts. The judge merged count two into count one prior to sentencing.

Defendant raises the following issues on appeal:

POINT I: THE DEFENDANT WAS DENIED DUE PROCESS BY THE TRIAL COURT'S REFUSAL TO ORDER A COMPETENCY EVALUATION UPON DEFENSE COUNSEL'S REQUEST.

 

POINT II: DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO THE POLICE SHOULD HAVE BEEN GRANTED.

 

POINT III: THE COURT ERRED IN DENYING THE DEFENSE REQUEST TO ADMIT EVIDENCE OF THE VICTIM'S PRIOR ALLEGATIONS OF CHILD ABUSE BY OTHERS.

POINT IV: THE DENIAL OF DEFENDANT'S MOTION TO RECUSE THE JUDGE FROM PRESIDING OVER THE TRIAL WAS ERROR.

 

POINT V: IT WAS ERROR FOR THE COURT TO DENY DEFENDANT'S APPLICATION TO ADMIT THE VICTIM'S PRIOR EXCULPATORY STATEMENT AS SUBSTANTIVE EVIDENCE.

 

POINT VI: THE CONSECUTIVE SENTENCES IMPOSED UPON MR. SIMPSON WHICH TOTALED 34 YEARS WITH 28 YEARS WITHOUT PAROLE WERE EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (NOT RAISED BELOW).

 

POINT VII: THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

 

I

 

In Point I of his brief, defendant argues that the trial court's denial of his request for a competency evaluation was erroneous because (1) he had a history of mental illness, including a "closed head" injury,7 special education, and previous treatment for psychiatric issues; (2) his responses during the Miranda hearing and in a colloquy with the judge demonstrated problems with his thought processes; (3) he ignored the advice of his attorney and took the stand in his own defense at the Miranda hearing and at trial; (4) he refused to communicate with his attorney except by letters; (5) he failed to comprehend that by his testimony at the Miranda hearing he brought out his juvenile adjudication for sexual contact in Florida; and (6) his defense counsel felt that he was incompetent to stand trial because he would not communicate or assist in his defense. The record, however, does not reflect that defendant requested a competency evaluation. Rather, he expressed dissatisfaction with the psychiatric evaluation arranged by his attorney. There is ample evidence in the record to support the judge's finding that there was no bona fide doubt as to defendant's competence to stand trial.

An incompetent defendant should not be forced to stand trial and to do so constitutes a deprivation of his due process rights. State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) (citing Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815, 818 (1966)). The test for determining whether a defendant is competent to stand trial is "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960). New Jersey has codified the test for determining competency, requiring, in part, that a defendant "has the ability to participate in an adequate presentation of his defense." N.J.S.A. 2C:4-4(b)(2)(g).

A competency hearing becomes necessary "[w]here evidence raises a bona fide doubt as to a defendant's competence . . . ." Purnell, supra, 394 N.J. Super. at 47. "Whether the evidence raises a bona fide doubt as to a defendant's competence is often a difficult question as there are no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed." State v. Cecil, 260 N.J. Super. 475, 480 (App. Div. 1992), certif. denied, 133 N.J. 431 (1993) (citations omitted). "Whenever there is reason to doubt the defendant's fitness to proceed, the court may . . . appoint at least one qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant." N.J.S.A. 2C:4-5(a).

Here, defendant argues that a competency evaluation should have been ordered by the judge because defendant has a history of mental illness based on his head injury, placement in special education during high school, and his previously diagnosed PTSD and bipolar disorder. "Evidence that a defendant may be suffering from mental illness does not necessarily raise a bona fide doubt as to his competence to stand trial." Cecil, supra, 260 N.J. Super. at 485 (citations omitted).

The judge questioned defendant during a hearing after his counsel raised a concern about his competence to stand trial. The judge found no bona fide doubt as to defendant's competence. See Purnell, supra, 394 N.J. Super. at 49 (noting that "the judge was not bound by counsel's representations, which, even if made in good faith, might be unfounded or unpersuasive").

When asked why he was not cooperating with his counsel, defendant answered, "It's hard to cooperate when there's nothing going on in my mind, no thoughts, no thought process on what is going on" because he tends to "draw blanks." He further stated that he has "trouble answering questions at times" and "thinking of what to say or how to say it." The judge noted that defendant did not "draw blanks" or have any difficulty understanding or answering her questions during the Miranda hearing and the competency hearing, and found defendant incredible. Defendant's testimony, as well as his conversation with the judge, revealed that defendant fully understood the facets of the State's case against him and the advice of his defense counsel.

When asked why he wanted to fire his attorney, defendant testified, "I feel she . . . does not have my best interest at heart. . . . I feel that she's actually against me instead of in my defense. . . . [b]ecause she shows that she's doing the bare minimum of work from what I see." As an example, defendant stated, "I was asking for . . . eight months for a psych evaluation, and the psych evaluation I get is some guy come in and ask me about my interrogation, which is not the psych evaluation I was requesting."8 This dissatisfaction with counsel is why defendant wanted to communicate with her only by letter.

Defense counsel presented two psychological reports relating to defendant's juvenile charges in 2004, which the judge considered. The judge found nothing in the reports to suggest that defendant was not competent.

The judge concluded that defendant had the ability to participate in an adequate presentation of his defense, but was unwilling to follow his attorney's advice. Further, the judge noted that defendant "oftentimes used very sophisticated language" such as "a jury of my peers" and "a pool attorney," which showed that he understood the criminal justice system and process. Although taking the stand in his own defense in the Miranda hearing against the advice of defense counsel and rejecting a favorable plea deal were "probably not a wise thing to do under the circumstances," the judge emphasized that only the defendant can make such decisions and found defendant "very competent" to stand trial based on the applicable law. Giving appropriate deference to the trial judge's factual findings and credibility determinations, we affirm based on the judge's thorough analysis. See State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div. 2004), ("[R]eviewing the decisions of a trial judge respecting competence [is] typically, and properly, highly deferential."), (internal quotation marks omitted), app. dis., 187 N.J. 74 (2005).

II

Defendant argues in Point II of his brief that the trial court should have suppressed his videotaped confession to the police because he was "tired, groggy and short of sleep" at the time of the interview, he did not realize he was arrested for sexually assaulting Cassie, he was not informed of his rights when first asked if he touched Cassie and he asked for an attorney.

In reviewing a trial judge's denial of a Miranda motion, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, 178 N.J. 35 (2003). We should not, however, engage in an independent assessment of the evidence as if we were the court of first instance, State v. Locurto, 157 N.J. 463, 471 (1999), or make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997). Instead, we defer to the trial judge's credibility findings. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A trial court admits a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of rights was knowing, intelligent and voluntary. Patton, supra, 362 N.J. Super. at 42.

Defendant was arrested for failing to register as a sex offender on April 21, 2010. Around 10:30 p.m., Detectives Murphy and Hymen began an interview with defendant, which lasted about five and one-half hours. Defendant signed a waiver of his Miranda rights. In the morning of April 22, 2010, before another interview, defendant was again provided with his Miranda warnings and again signed a Miranda waiver form waiving his rights.

Defendant argues that he was too tired and short of sleep to have knowingly and voluntarily waived his rights after being kept in a cell over a two-day period. The judge found defendant's testimony incredible, and explained her disbelief as to defendant's claims that he was not truly awake during the interrogation,

He claimed that he did not sleep the night before, but admitted that he slept from about 8 or 9 a.m. on April 21, 2010, the day he was arrested, until about 5, when the officers came to his residence. Obviously, at the time he was arrested, he was just up after about nine hours of rest, after he had taken a sleep aid.

The judge also described defendant's appearance during the interrogation in the video as "alert." She observed that "[h]is head never snapped backward or forward, as would be indicative of someone who is falling asleep. His speech was not slurred. He never spoke gibberish or [was] incoherent, as would be evidenced from someone who is falling asleep."

Defendant also argues that he was not advised that he was "the focus of an investigation of sexual abuse." Defendant was arrested for failure to register as a sex offender. The police are not obligated to tell an individual the nature of the crime they are investigating. See State v. Nyhammer, 197 N.J. 383, 407 (2009) (Knowledge of one's status as a suspect of a crime is ordinarily unimportant for Miranda purposes, and even where such knowledge might be useful, "failure to be told of one's suspect status still would only be one of many factors to be considered in the totality of the circumstances."), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).

Defendant claims that he requested an attorney, but was ignored. The recording of the entire interrogation demonstrates that defendant never requested a lawyer. At the Miranda hearing, defendant testified,

I do vaguely remember early on being asked if I wanted a lawyer and I, I believe I definitely would have said yes. I'm not too certain on answering the question, but I do remember hearing that question asked to me, and then hearing the question, Can you afford a lawyer? But from what I see in the video, I'm starting to doubt . . . myself, because I don't see it anywhere in the video.

 

The judge found defendant to be incredible. Moreover, defendant never testified unequivocally that he requested an attorney, only speculating that he "would have." This is insufficient to cast doubt on his two explicit written waivers of counsel.

Fourth, defendant argues that he should have been given Miranda warnings before the Division caseworker asked him if he had ever touched Cassie inappropriately. Because he was not in custody at the time, but rather was in his house answering the door to the police and Division caseworker, his argument fails. Nyhammer, supra, 197 N.J. at 406 ("The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime."); see also State v. P.Z., 152 N.J. 86, 102-05 (1997) (holding the defendant's statement was not constitutionally protected where his interview by a Division caseworker was noncustodial and non-coercive).

The evidence presented by the State supported the judge's finding beyond a reasonable doubt that defendant waived his Miranda rights prior to making admissions to the police. His statements to the police and Division worker were properly admitted into evidence.

III

At trial, defense counsel filed a motion to present to the jury evidence that when Cassie was three or four years old, a "14 year old boy stuck his finger into her anus." Defense counsel argued that it was relevant to show that Cassie "had another source of knowledge of sexual matters." Distinguishing the facts here from State v. Schnabel, 196 N.J. 116 (2008), and State v. Budis, 243 N.J. Super. 498 (App. Div. 1990), aff'd, 125 N.J. 519 (1991), the trial judge determined that there was no clear and convincing proof that a prior sexual assault had occurred and therefore the proffered evidence was not relevant. On appeal, defendant argues that because the assault never happened, it should have been admitted to attack Cassie's credibility under State v. Guenther, 181 N.J. 129, 150 (2004).

Because the Division determined the prior report of sexual abuse was "unfounded," defendant argues on appeal that Cassie falsely accused the fourteen-year old boy when she was three or four years old and therefore the evidence of a false allegation should have been admitted to attack Cassie's credibility. However, the Division records indicate that Cassie's mother is the one who alleged that the sexual assault occurred.

In her testimony, Cassie admitted making a false allegation of abuse against her father in order to get attention. She admitted making this false claim around the same time that she denied defendant sexually assaulted her to the police. The jurors thus had an opportunity to see that Cassie was not always truthful when speaking to authority figures.

IV

Defendant argues in Point IV of his brief that the judge erred by denying his request to recuse herself from the case. On the third day of trial, the judge said that she had seen caseworker Robert Scott about thirty years ago when Scott was a child because his mother's first husband was the judge's cousin. Because of this brief contact, defendant claims that "there was an appearance of impropriety."

The question of whether a judge should recuse herself from a case is within her discretion. Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Rule 1:12-1(f) provides that a judge "shall be disqualified . . . when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so."

Although proving actual prejudice on the part of the court is not necessary, in considering the basis for the alleged "disqualif[ication] on the ground of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 2001) (citations omitted).

The judge did not abuse her discretion by refusing to recuse herself when she realized mid-trial that she had met one of the State's witnesses many years before.

V

Defendant argues in Point V of his brief that the judge erred in denying his application to admit Cassie's prior inconsistent statement as substantive evidence that she initially denied defendant had sexually abused her to the police, hospital personnel, and Division caseworker. In fact, the judge did instruct the jury that Cassie's prior inconsistent statements could be used as substantive evidence, telling the jury:

Evidence, including a witness' statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial, may be considered by you for the purpose of judging the witness' credibility. It may also be considered by you as substantive evidence. That is as proof of the truth of what is stated in the prior contradictory statement.

 

The judge specifically stated, "In regard to the testimony of [Cassie], on cross-examination inconsistencies were shown between the prior statements and those given on the stand. . . . To the extent to which such inconsistencies or omissions reflect the truth is for you to determine." This defense argument is therefore meritless.

VI

Defendant argues in Point VI of his brief that his sentence was excessive. Our review of sentencing is limited. See State v. Roth, 95 N.J. 334, 365 (1984) (Appellate courts may not substitute their judgment for that of the sentencing court, unless the application of the sentencing guidelines to the facts makes the sentence "clearly unreasonable so as to shock the judicial conscience."). As our Supreme Court reaffirmed, "'when [trial judges] exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . . they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384-85 (1989)). Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1a and -1b, it "may impose a term within the permissible range for the offense." Id. at 608. If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, we should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

We note that in finding aggravating factor two, that "the victim was particularly vulnerable because of extreme youth," the judge's consideration that Cassie was substantially below the age of thirteen did not constitute an impermissible double-counting of an element of the offense as an aggravating factor. State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988).

The judge appropriately rejected the mitigating factors urged by defendant, as he had a prior history of delinquency for a similar offense and had not registered as a sex offender. His mental health issues did not excuse his conduct and the judge properly considered the Yarbough factors when sentencing defendant to consecutive terms. State v. Yarbough, 100 N.J. 627, 643-44 (1985).

Although not raised by either party, we note that the State amended count six to charge a second-degree crime prior to the start of trial. The judge charged count six to the jury as a second-degree crime and thus defendant was convicted of that charge. The sentencing judge, who was not the trial judge, incorrectly sentenced defendant to a concurrent first-degree sentence of fifteen years on count six. We thus remand for resentencing as to count six only.

Because we find no trial error, defendant's final argument that the aggregate of trial errors deprived him of a fair trial is without merit.

Affirmed. Remanded for resentencing on count six only. We do not retain jurisdiction.

 

1 The Division has been renamed as the Division of Child Protection and Permanency as part of the reorganization of the Department of Children and Families pursuant to L. , 2012, c. 16, eff. July 2, 2012.

2 We use a fictional name to protect the identity of the child.

3 The allegation of physical abuse by Cassie's father was deemed "unfounded."

4 N.J.S.A. 2C:7-2.

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

6 Attention deficit hyperactivity disorder.

7 According to the June 27, 2004 report from Allan Ribbler, Ph.D., defendant suffered a fall when he was two years old and sustained trauma to his head.

8 The record reflects that this evaluation was not introduced by defense counsel.