New Jersey v. A.M.

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Justia Opinion Summary

The issue this case presented for the New Jersey Supreme Court was whether defendant A.M., who spoke limited English, waived his constitutional right against self-incrimination pursuant to the Fifth Amendment. A.M. was convicted on multiple counts of the sexual assault of his fourteen year old step-granddaughter. Because defendant spoke little English and stated that he was more comfortable
with Spanish, Detective Richard Ramos assisted in translating the interview from English to Spanish. The entire interview was video-recorded to a DVD and later transcribed in English by a clerk-typist employed by the Bergen County Prosecutor’s Office. Before the interview, Detective Ramos reviewed with defendant a Spanish-language form prepared by the Bergen County Prosecutor’s Office, which listed each of defendant’s Miranda rights and contained a waiver paragraph. Detective Ramos read defendant his Miranda rights from the Spanish-language form, pausing after reading each one to ask defendant in Spanish if he understood. Defendant replied “sí” each time and initialed each line. Detective Ramos then handed the form to defendant to review the waiver portion and asked in Spanish, “Do you understand?” Defendant replied, “Sí,” and Detective Ramos told defendant to sign in two places, which defendant did. During the course of the interrogation that followed, defendant admitted to touching his step-granddaughter inappropriately. The Appellate Division reversed, finding the State failed to prove defendant made a voluntary decision to waive his Miranda rights. Although the Supreme Court surmised the better practice would have been to read aloud the form’s waiver portion to defendant, it relied on the trial court’s "well-supported observations and factual findings" and reversed the Appellate Division’s judgment.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                            State v. A.M. (A-76-17) (080744)

Argued January 15, 2019 -- Decided April 1, 2019

SOLOMON, J., writing for the Court.

       The Court considers whether under Miranda v. Arizona,  384 U.S. 436 (1966),
defendant A.M., who speaks limited English, waived his constitutional right against self-
incrimination pursuant to the Fifth Amendment to the United States Constitution.

       Defendant was alone in his apartment with his fourteen-year-old step-
granddaughter, A.I., when he hugged her from behind, touching her breasts and vagina
over her bathing suit, and inserted at least one finger into her vagina. After learning of
the incident, A.I.’s mother contacted the Bergen County Prosecutor’s Office. Officers
went to defendant’s home and transported him to the Bergenfield Police Department.

       Because defendant spoke little English and stated that he was more comfortable
with Spanish, Detective Richard Ramos assisted in translating the interview from English
to Spanish. The entire interview was video-recorded to a DVD and later transcribed in
English by a clerk-typist employed by the Bergen County Prosecutor’s Office.

       Before the interview, Detective Ramos reviewed with defendant a Spanish-
language form prepared by the Bergen County Prosecutor’s Office, which listed each of
defendant’s Miranda rights and contained a waiver paragraph. Detective Ramos read
defendant his Miranda rights from the Spanish-language form, pausing after reading each
one to ask defendant in Spanish if he understood. Defendant replied “sí” (yes) each time
and initialed each line. Detective Ramos then handed the form to defendant to review the
waiver portion and asked in Spanish, “Do you understand?” Defendant replied, “Sí,” and
Detective Ramos told defendant to sign in two places, which defendant did.

       During the course of the interrogation that followed, defendant admitted to
touching his step-granddaughter inappropriately. A grand jury indicted defendant for
multiple counts of sexual assault and for endangering the welfare of a child.

       Defendant challenged the admission of his statement to police and Detective
Ramos’s translation of the interview. At the hearing on defendant’s suppression motion,
Detective Ramos testified that defendant “took his time reading [the form]. It appears to
                                             1
[him] that [defendant] did read it.” Detective Ramos acknowledged that he did not ask
any questions to determine defendant’s educational background or literacy level. He also
testified about discrepancies between the video recording and the transcript of
defendant’s statement and explained that he was “paraphrasing” defendant’s answers.

        After watching the DVD of defendant’s interview, the trial court denied
defendant’s motion to suppress, finding that “defendant appeared calm during the
interview, appeared to understand the questions posed to him in both English and
Spanish, and was able to answer the questions forthrightly.” The court also explained
that defendant seemed “alert and cognizant” while the form was explained to him and
that “it [was] clear from the video tape that defendant was given an opportunity to read
the waiver paragraph and signed the waiver portion, and did in fact review the waiver
portion before signing it.” Finally, referring to defendant’s expressed preference that the
interview be conducted in Spanish, the court added that, “[i]f defendant had any problem
reading the waiver portion of the form, written in Spanish as he had requested, it is clear
to this court that he would have voiced such difficulty.” The court concluded that,
considering the totality of the circumstances, defendant knowingly, intelligently, and
voluntarily waived his Miranda rights. Defendant pled guilty to second-degree sexual
assault while reserving his right to appeal the denial of his motion to suppress.

       The Appellate Division reversed, finding the State failed to prove defendant made
a voluntary decision to waive his Miranda rights.  452 N.J. Super. 587, 590 (App. Div.
2018). The panel found that “[t]he [trial] judge’s analysis improperly shift[ed] the burden
of proof to defendant to alert the interrogating officers about any difficulty he may be
having understanding the ramifications of a legal waiver.” Id. at 599. The panel also
challenged the interrogation’s transcription. See id. at 599-600. Additionally, a
concurring opinion sets forth perceived “inherent constitutional flaws” in relying on
police officers, rather than certified neutral translators, as interpreters during custodial
interrogations. Id. at 600-04.

       The Court granted the State’s petition for certification.  234 N.J. 192 (2018).

HELD: Although the better practice would have been to read aloud the form’s waiver
portion to defendant, the Court relies on the trial court’s well-supported observations and
factual findings and reverses the Appellate Division’s judgment.

1. Generally, on appellate review, a trial court’s factual findings in support of granting or
denying a motion to suppress must be upheld when those findings are supported by
sufficient credible evidence in the record. In State v. S.S.,  229 N.J. 360, 381 (2017), the
Court extended that deferential standard of appellate review to “factual findings based on
a video recording or documentary evidence” to ensure that New Jersey’s trial courts
remain “the finder of the facts.” (pp. 11-12)


                                             2
2. To ensure that a person subject to custodial interrogation is adequately and effectively
apprised of his rights, the United States Supreme Court developed the Miranda warnings.
The administration of Miranda warnings ensures that a defendant’s right against self-
incrimination is protected in the inherently coercive atmosphere of custodial
interrogation. A waiver of a defendant’s Miranda rights must be knowing, intelligent,
and voluntary in light of all of the circumstances surrounding the custodial interrogation.
In the totality-of-the-circumstances inquiry, courts generally rely on factors such 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. (pp. 12-15)

3. The Court reviews the trial court’s factual findings in detail and concludes that the
failure of Detective Ramos to read the entire Miranda rights form aloud did not
“improperly shift[] the burden of proof to defendant to alert the interrogating officers
about any difficulty he may be having understanding the ramifications of a legal waiver.”
 452 N.J. Super. at 599. To eliminate questions about a suspect’s understanding, the
entire Miranda form should be read aloud to a suspect being interrogated, or the suspect
should be asked to read the entire form aloud. Where that is not done, the suspect should
be asked about his or her literacy and educational background. Nevertheless, in this case,
because sufficient credible evidence in the record supports the trial court’s findings, the
Court agrees with the trial court that the State proved beyond a reasonable doubt that
defendant made a knowing, intelligent, and voluntary express waiver of his Miranda
rights. See S.S.,  229 N.J. at 365. The Court therefore does not reach the issue of implicit
waiver. (pp. 15-18)

4. The Court notes that this case demonstrates plainly the importance of videotaping
custodial interrogations of suspects by police. (pp. 18-19)

5. Any defendant has the right to challenge a translation under N.J.R.E. 104(c), which
governs pretrial hearings on the admissibility of a defendant’s statement. Because a
defendant has the right to contest a translation of a custodial interrogation, as was done
here, and Rule 104(c) provides the mechanism to do so, the Court rejects the holdings of
the Appellate Division’s concurring opinion. That said, the State, as well as the
defendant, is best served by the use of a capable translator during an interview. (p. 19)

      The judgment of the Appellate Division is REVERSED, and defendant’s
conviction is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’S opinion.




                                             3
       SUPREME COURT OF NEW JERSEY
             A-
76 September Term 2017
                        080744


                 State of New Jersey,

                  Plaintiff-Appellant,

                           v.

                         A.M.,

                Defendant-Respondent.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
        452 N.J. Super. 587 (App. Div. 2018).

       Argued                       Decided
   January 15, 2019               April 1, 2019


Ian C. Kennedy, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for appellant
(Dennis Calo, Acting Bergen County Prosecutor,
attorney; Ian C. Kennedy, of counsel and on the briefs).

Brian J. Neary argued the cause for respondent (Law
Offices of Brian J. Neary, attorneys; Brian J. Neary, of
counsel and on the letter briefs, and Jane M. Personette,
on the letter briefs).

Jane C. Schuster, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Jane C.
Schuster, of counsel and on the briefs).



                           1
            Emma R. Moore, Assistant Deputy Public Defender,
            argued the cause for amicus curiae Public Defender of
            New Jersey (Joseph E. Krakora, Public Defender,
            attorney; Emma R. Moore, of counsel and on the brief,
            and Joseph J. Russo, Deputy Public Defender, on the
            brief).

            Alexander Shalom argued the cause for amicus curiae
            American Civil Liberties Union of New Jersey (American
            Civil Liberties Union of New Jersey Foundation,
            attorneys; Alexander Shalom and Jeanne LoCicero, on
            the brief).


           JUSTICE SOLOMON delivered the opinion of the Court.


      In this appeal, we are called upon to decide whether under Miranda v.

Arizona,  384 U.S. 436 (1966), defendant A.M., who speaks limited English,

waived his constitutional right against self-incrimination pursuant to the Fifth

Amendment to the United States Constitution.

      Before his interrogation, defendant reviewed a Spanish-language

Miranda form while a Spanish-speaking officer read aloud defendant’s rights.

The officer pointed out the waiver portion of the form and defendant then

signed it. Afterward, defendant made incriminating statements in response to

police officers’ questions. The trial court denied defendant’s motion to

suppress his statement, finding that defendant knowingly, intelligently, and

voluntarily waived his Miranda rights. The Appellate Division reversed,

concluding the State failed to meet its burden to show an express waiver.

                                        2
      Although the better practice would have been to read aloud the form’s

waiver portion to defendant, we rely on the trial court’s well-supported

observations and factual findings and reverse the Appellate Division’s

judgment. We therefore need not reach the issue of implied waiver.

                                         I.

                                        A.

      We garner the following facts from the record of proceedings before the

trial court on defendant’s motion to suppress his statement to police.

      Defendant was alone in his apartment with his fourteen-year-old step-

granddaughter, A.I., when he asked her to try on her bathing suit to see if it fit.

After she changed into the bathing suit, defendant hugged A.I. from behind,

touching her breasts and vagina over her bathing suit, and inserted at least one

finger into her vagina. A.I. told defendant to stop, pushed him away from her,

and left the apartment.

      After learning of the incident, A.I.’s mother contacted the Bergen

County Prosecutor’s Office. Officers went to defendant’s home and

transported him to the Bergenfield Police Department. One member of the

Prosecutor’s Office and two members of the Bergenfield Police Department

conducted an interview of defendant. Because defendant spoke little English

and stated that he was more comfortable with Spanish, Detective Richard


                                         3
Ramos assisted in translating the interview from English to Spanish. The

entire interview was video-recorded to a DVD and later transcribed in English

by a clerk-typist employed by the Bergen County Prosecutor’s Office.

      Before beginning the interview, Detective Ramos reviewed with

defendant a Spanish-language form prepared by the Bergen County

Prosecutor’s Office, which set forth defendant’s Miranda rights. The form

listed each of defendant’s Miranda rights in Spanish followed by “Entiende

Usted?” (Do you understand?), “Respuesta” (Response) and “Iniciales”

(Initials). At the bottom of the form is a waiver paragraph, which states in

Spanish, “I have read the above declaration of my rights and they have been

read aloud. I understand my rights. I am willing to answer questions without

having a lawyer present. No promise or threats have been made to me and no

pressure or coercion has been used against me.” Spaces for signatures follow

the waiver paragraph.

      Detective Ramos read defendant his Miranda rights from the Spanish-

language form, pausing after reading each one to ask defendant in Spanish if

he understood. Defendant replied “sí” (yes) each time. Thereafter, Detective

Ramos wrote “sí” after each right, turned the form to defendant and stated in

Spanish, “If you want, you can read what I told you and you only have to put

your initials on each line. That’s the same thing I read.” Defendant replied


                                       4
“Uh-huh.” Defendant initialed each line and turned the form to Detective

Ramos.

      Detective Ramos then handed the form to defendant to review the waiver

portion and asked in Spanish, “Do you understand?” Defendant replied, “Sí,”

and Detective Ramos told defendant in Spanish, “Write your name in the

line[:] complete,” pointing to a signature line. Defendant signed the form

where Detective Ramos had pointed, but Detective Ramos turned the form

back to defendant, again pointing to the bottom part of the form and stated,

“And you have to sign here, the line is not there, but you have to sign.”

Defendant signed the form before turning it back to Detective Ramos, who

then also signed it.

      Detective Lucas conducted the remainder of the interview, and Detective

Ramos translated as needed. During the course of the interrogation, defendant

admitted to touching his step-granddaughter inappropriately.

                                       B.

      Defendant was indicted by a Bergen County grand jury for first-degree

aggravated sexual assault, contrary to  N.J.S.A. 2C:14-2(a)(2)(a); second-

degree sexual assault, contrary to  N.J.S.A. 2C:14-2(c)(4); two counts of third-

degree aggravated criminal sexual contact, contrary to  N.J.S.A. 2C:14-3(a);




                                        5
and third-degree endangering the welfare of a child, contrary to  N.J.S.A.

2C:24-4(a).

      Defendant challenged the admission of his statement to police,

contending that the State failed to prove beyond a reasonable doubt that he

knowingly, intelligently, and voluntarily waived his Miranda rights and that

Detective Ramos inadequately translated the interview, denying him his rights

to due process and equal protection.

      At the hearing on defendant’s suppression motion, Detective Ramos

testified about his background and noted that, based on his personal experience

speaking with both adults and children in Spanish, defendant “took his time

reading [the form]. It appears to [him] that [defendant] did read it.” Detective

Ramos acknowledged that he did not ask defendant any questions to determine

defendant’s educational background or literacy level.

      Detective Ramos also testified about discrepancies between the video

recording and the transcript of defendant’s statement and explained that he was

“paraphrasing” defendant’s answers.

      After watching the DVD of defendant’s interview, the trial court denied

defendant’s motion to suppress in a written opinion, finding that “defendant

appeared calm during the interview, appeared to understand the questions

posed to him in both English and Spanish, and was able to answer the


                                       6
questions forthrightly.” The court also explained that defendant seemed “alert

and cognizant” while the form was explained to him and that “it [was] clear

from the video tape that defendant was given an opportunity to read the waiver

paragraph and signed the waiver portion, and did in fact review the waiver

portion before signing it.” Finally, referring to defendant’s expressed

preference that the interview be conducted in Spanish, the court added that,

“[i]f defendant had any problem reading the waiver portion of the form,

written in Spanish as he had requested, it is clear to this court that he would

have voiced such difficulty.” The trial court concluded that, considering the

totality of the circumstances, defendant knowingly, intelligently, and

voluntarily waived his Miranda rights.

      Defendant pled guilty to second-degree sexual assault while reserving

his right to appeal the denial of his motion to suppress. The court sentenced

defendant to a six-year custodial term with Parole Supervision for Life,

Megan’s Law and Nicole’s Law restrictions, and applicable fines and fees.

                                         C.

      Defendant appealed the trial court’s denial of his motion to suppress . In

a published opinion, the Appellate Division reversed the decision of the trial

court, finding the State failed to prove defendant made a voluntary decision to

waive his Miranda rights. State v. A.M.,  452 N.J. Super. 587, 590 (App. Div.


                                         7
2018). Although the panel applied the deferential standard of review we

adopted in State v. S.S.,  229 N.J. 360, 379-81 (2017), the panel found that

“[t]he [trial] judge’s analysis improperly shift[ed] the burden of proof to

defendant to alert the interrogating officers about any difficulty he may be

having understanding the ramifications of a legal waiver,” A.M.,  452 N.J.

Super. at 599.

      The panel observed that the trial court’s decision illustrated “a

fundamental misunderstanding of the legal principles governing a motion to

suppress under Miranda” because the court did not address Detective Ramos’s

failure to ask about defendant’s education or literacy level, his failure to read

the waiver aloud, or his failure to explain to defendant what a Miranda waiver

entails. Id. at 598-99.

      Observing that the record presented to the motion judge included a

transcript of defendant’s statement but did not contain any information about

the transcriber’s qualifications as a translator, the panel also challenged the

interrogation’s transcription. See id. at 599-600 (“The mere fact of having a

Hispanic last name does not create a rational basis to infer anything about a

person’s linguistic ability.”).

      Additionally, a concurring opinion sets forth perceived “inherent

constitutional flaws” in relying on police officers, rather than certified neutral


                                         8
translators, as interpreters during custodial interrogations. Id. at 600-04. The

concurrence calls upon the Attorney General to “develop appropriate

guidelines to assist county prosecutors and municipal police departments on

how to interrogate limited English proficient suspects.” Id. at 604.

      We granted the State’s petition for certification.  234 N.J. 192 (2018).

We also granted the Attorney General, the Office of the Public Defender, and

the American Civil Liberties Union of New Jersey (ACLU) leave to participate

as amici curiae.

                                        II.

                                        A.

      The State asks us to reverse the Appellate Division’s decision and to

clarify whether Miranda waivers must be obtained with the use of “impartial

participants” for non-English-speaking suspects. The State contends that the

Appellate Division erred by considering Detective Ramos’s status as a police

officer and his paraphrasing of some of defendant’s answers. The State claims

that the panel should instead have deferred to the trial court’s factual findings

in assessing whether defendant waived his Miranda rights under the totality-of-

the-circumstances. In the alternative, the State argues that defendant impliedly

waived his Miranda rights by stating that he understood his Miranda warnings

and by actively participating in the interview. Finally, the State argues that the


                                        9
panel improperly suggests that the transcriber’s status as a law enforcement

employee establishes a flaw in the translation.

      The Attorney General asserts many of the same arguments as the State

and also argues that translations of interviews by certified neutral translators

are not required under the court rules, rules of evidence, or any case law. The

Attorney General stresses that defense counsel did not challenge the interview

transcript despite the trial judge’s permission to do so.

                                        B.

      Defendant asks this Court to affirm the Appellate Division decision and

require qualified neutral interpreters in all interrogations where suspects speak

limited English. Relying on State v. Bey (II),  112 N.J. 123, 124 (1988),

defendant argues that the State failed to meet its “heavy burden” of proving his

Miranda waiver was “knowing, intelligent, and voluntary in light of all of the

circumstances.” Defendant contends that Detective Ramos’s translation

inaccuracies were prejudicial and challenges the use of law enforcement

employees for both interrogation and transcription.

      In addition to agreeing with defendant that qualified neutral interpreters

should be required in all suspect interrogations, the Public Defender urges the

Court to require that law enforcement have suspects read aloud the waiver

portion of Miranda forms to establish literacy and comprehension.


                                        10
      The ACLU contends that defendant’s review of the waiver paragraph did

not demonstrate his understanding of its contents and the State failed to meet

its burden to produce evidence of defendant’s literacy or comprehension. The

ACLU reiterates that the State has the burden of proving, beyond a reasonable

doubt, that defendant’s waiver was intelligent and knowing, and maintains that

the State offered no evidence beyond defendant’s failure to note any lack of

understanding.

                                       III.

                                        A.

      We begin our discussion by outlining our circumscribed review of a trial

court’s decision in a motion to suppress. “Generally, on appellate review, a

trial court’s factual findings in support of granting or denying a motion to

suppress must be upheld when 'those findings are supported by sufficient

credible evidence in the record.’” S.S.,  229 N.J. at 374 (quoting State v.

Gamble,  218 N.J. 412, 424 (2014)). Therefore, “[a] trial court’s findings

should be disturbed only if they are so clearly mistaken 'that the interests of

justice demand intervention and correction.’” State v. Elders,  192 N.J. 224,

244 (2007) (quoting State v. Johnson,  42 N.J. 146, 162 (1964)).

      In S.S., we extended that deferential standard of appellate review to

“factual findings based on a video recording or documentary evidence” to


                                        11
ensure that New Jersey’s trial courts remain “the finder of the facts.”  229 N.J.

at 381 (quoting Fed. R. Civ. P. 52(a) advisory committee’s note to 1985

amendment). We explained that “[p]ermitting appellate courts to substitute

their factual findings for equally plausible trial court findings is likely to

'undermine the legitimacy of the [trial] courts in the eyes of litigants, multiply

appeals by encouraging appellate retrial of some factual issues, and needlessly

reallocate judicial authority.’” Id. at 380-81 (second alteration in original)

(quoting Fed. R. Civ. P. 52(a) advisory committee’s note to 1985 amendment).

      An appellate court owes no deference, however, to “conclusions of law

made by lower courts in suppression decisions,” which are reviewed de novo.

State v. Boone,  232 N.J. 417, 426 (2017) (citing State v. Watts,  223 N.J. 503,

516 (2015)).

                                         B.

      Turning to the law governing a defendant’s waiver of his Miranda rights,

we first note that “[t]he right against self-incrimination is guaranteed by the
 Fifth Amendment to the United States Constitution and this state’s common

law, now embodied in statute,  N.J.S.A. 2A:84A-19, and evidence rule,

N.J.R.E. 503.” S.S.,  229 N.J. at 381-82 (quoting State v. Nyhammer,  197 N.J.
 383, 399 (2009)). To ensure that a person subject to custodial interrogation is

“adequately and effectively apprised of his rights,” the United States Supreme


                                         12
Court developed constitutional safeguards -- the Miranda warnings. Miranda,

 384 U.S.  at 467. Those warnings require that during custodial interrogation a

defendant must be informed “that he has the right to remain silent,” id. at 467-

68, that anything he says “can and will be used against [him] in court,” id. at

469, and that he has “the right to have counsel present at the interrogation,”

ibid.

        The administration of Miranda warnings ensures that a defendant’s right

against self-incrimination is protected in the inherently coercive atmosphere of

custodial interrogation. See State v. Reed,  133 N.J. 237, 255 (1993).

Likewise, a waiver of a defendant’s Miranda rights may “never be the product

of police coercion,” but must instead be “knowing, intelligent, and voluntary

in light of all of the circumstances.” State v. Presha,  163 N.J. 304, 313 (2000).

A waiver may be “established even absent formal or express statements.”

Berghuis v. Thompkins,  560 U.S. 370, 383 (2010). An “explicit statement” is

not necessary as “[a]ny clear manifestation of a desire to waive is sufficient,”

and instead we look for a “showing of a knowing intent.” State v. Hartley,  103 N.J. 252, 313 (1986) (quoting State v. Kremens,  52 N.J. 303, 311 (1968)).

        Although federal law requires only that waiver be proven “by a

preponderance of the evidence,” Colorado v. Connelly,  479 U.S. 157, 168

(1986), New Jersey law requires that the prosecution “prove beyond a


                                       13
reasonable doubt that the suspect’s waiver was knowing, intelligent, and

voluntary in light of all the circumstances.” Presha,  163 N.J. at 313. When

applying that standard, “'knowledge’ is always a relevant factor” but, “because

the right is against compelled self-incrimination, 'knowledge’ can be best

understood as a condition of 'voluntariness,’ which itself denotes the absence

of 'compulsion.’” Reed,  133 N.J. at 255-56.

      In other words, when “determining the validity of a Miranda waiver,”

trial courts must decide “whether the suspect understood that he did not have

to speak, the consequences of speaking, and that he had the right to counsel

before doing so if he wished.” Nyhammer,  197 N.J. at 402 (quoting State v.

Magee,  52 N.J. 352, 374 (1968)). Our decision in Nyhammer relied on the

United States Supreme Court’s further explanation that

            Miranda does not require that “the police supply a
            suspect with a flow of information to help him calibrate
            his self-interest in deciding whether to speak or stand
            by his rights” because “the additional information could
            affect only the wisdom of a Miranda waiver, not its
            essentially voluntary and knowing nature.”

            [Id. at 407 (quoting Colorado v. Spring,  479 U.S. 564,
            576-77 (1987)).]

Accordingly, “a valid waiver does not require that an individual be informed

of all information useful in making his decision.” Ibid. (quoting Spring,  479 U.S.  at 576 (internal quotation marks omitted)). Instead, a knowing,


                                      14
intelligent, and voluntary waiver is determined by the totality of the

circumstances surrounding the custodial interrogation based on the fact -based

assessments of the trial court. See Presha,  163 N.J. at 313.

      In the totality-of-the-circumstances inquiry, courts generally rely on

factors such 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.” State v. Miller,  76 N.J. 392, 402 (1978). For

example, in Bey (II), we considered the totality of the circumstances, including

the defendant’s youth -- defendant turned eighteen two weeks before the

interrogation -- and his “extensive record of delinquency.”  112 N.J. at 135. In

that instance, we found that the trial court properly ruled that the defendant’s

oral and written confessions -- obtained after just over three hours of

interrogation and nine hours at the police station, during which the defendant

asked to “lie down” and “was offered food, beverages, cigarettes, and the

opportunity to rest” -- was voluntary. Id. at 134-35.

                                        IV.

                                        A.

      We apply the above principles to decide whether the “trial court’s

factual findings in . . . denying [defendant’s] motion to suppress . . . 'are


                                        15
supported by sufficient credible evidence in the record.’” S.S.,  229 N.J. at 374

(quoting Gamble,  218 N.J. at 424). In doing so, we first observe that

defendant does not contend that his questioning was repeated or prolonged, or

that he was subjected to physical coercion or mental exhaustion. Rather,

defendant claims that the State has failed to meet its burden to prove beyond a

reasonable doubt that defendant understood his rights and understood that he

was waiving them.

      Here, the trial court denied defendant’s motion to suppress based on its

fact-based assessment of the video-recorded interview of defendant’s custodial

interrogation. Specifically, the trial court observed that defendant appeared

calm, appeared to appreciate the questions posed to him in both English and

Spanish, and “was able to answer the questions forthrightly.” The trial court

also found that it was clear from the video record that the officers gave

defendant an opportunity to read the waiver paragraph of the Miranda form

presented to him and that defendant signed the waiver portion after reviewing

it. Finally, the trial court found as a fact, based on defendant’s calm demeanor

and his request to have a Spanish translator present, that defendant would have

expressed any difficulty he may have had in reading the waiver portion of the

form. We must uphold those factual findings of the trial court if they are

adequately supported. S.S.,  229 N.J. at 374.


                                       16
      Moreover, the record before this Court is “devoid” of any implication

that defendant “was confused or did not fully appreciate his rights,” nor was he

“coerced, intimidated, or tricked” by police into giving a statement. State v.

Mejia,  141 N.J. 475, 503 (1995) (superseded by statutory amendment and

overruled on separate grounds). Instead, “[o]ur reading of the record” in this

case “persuades us that the police, confronted with the practical problem of

advising a Spanish-speaking suspect, adequately administered the Miranda

warnings.” Ibid.

      Ultimately, in response to the “critical issue” of whether defendant

knowingly, intelligently, and voluntarily waived his Miranda rights, the trial

court relied upon Detective Ramos’s testimony at the hearing on defendant’s

motion to suppress his statement, and defendant’s actions and appearance on

the video record of his interrogation. The trial court found that the video

showed defendant reviewing the waiver portion of the form, signing his name

to indicate that he read and attested to the waiver portion, appearing alert and

cognizant while the form was explained to him and while he signed it, and

responding to questions. The court found that these actions supported the

State’s contention that defendant adequately understood his rights and that he

was waiving his rights. Therefore, defendant’s signature constituted a

knowing, intelligent, and voluntary express waiver. In addition, when


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Detective Ramos asked whether defendant understood the waiver he had just

read, defendant responded that he did.

      While the better practice is to read the entire Miranda rights form aloud

to a suspect being interrogated, based upon the trial court’s factual findings we

determine, however, the failure of Detective Ramos to do so here did not

“improperly shift[] the burden of proof to defendant to alert the interrogating

officers about any difficulty he may be having understanding the ramifications

of a legal waiver.” A.M.,  452 N.J. Super. at 599. To eliminate questions

about a suspect’s understanding, the entire Miranda form should be read aloud

to a suspect being interrogated, or the suspect should be asked to read the

entire form aloud. Where that is not done, the suspect should be asked about

his or her literacy and educational background. Nevertheless, in this case ,

because sufficient credible evidence in the record supports the trial court’s

findings, we agree with the trial court that the State proved beyond a

reasonable doubt that defendant made a knowing, intelligent, and voluntary

express waiver of his Miranda rights. See S.S.,  229 N.J. at 365. We therefore

need not reach the issue of implicit waiver.

      We note here that by videotaping their questioning of defendant, police

permitted the trial court to review the interview, and assess defendant’s overall

deportment and conduct as well as the officers’ demeanor and conduct


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throughout the custodial interrogation. This demonstrates plainly the

importance of videotaping custodial interrogations of suspects by police.

                                         B.

      Finally, with respect to the accuracy of both Detective Ramos’s

translation and the English transcript of the interrogation, any defendant has the

right to challenge a translation under N.J.R.E. 104(c), which governs pretrial

hearings on the admissibility of a defendant’s statement. Where defense

counsel and the prosecutor cannot agree on words, phrases, or redactions in a

translated or other statement by a defendant, and a hearing under Rule 104(c) is

required, the Rule specifically provides, “In such a hearing the rules of

evidence shall apply and the burden of persuasion as to the admissibility of the

statement is on the prosecution.” Because a defendant has the right to contest a

translation of his or her custodial interrogation, as was done here, and Rule

104(c) provides the mechanism to do so, we reject the holdings of the Appellate

Division’s concurring opinion. That said, the State, as well as the defendant, is

best served by the use of a capable translator during an interview. If an

unskilled person translates instead, errors in translation can throw off the

question-and-answer session, be exposed to the jury later on, and possibly

result in the transcript being barred.




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                                      V.

      For the reasons set forth above, we reverse the judgment of the

Appellate Division and reinstate defendant’s conviction.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE
SOLOMON’S opinion.




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