On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 98-9-1339.
Before Judges Kestin, Eichen and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2002
In this child sexual abuse case we are constrained to reverse defendant's conviction due to the improper admission of a highly incriminating statement made by defendant to police at the time of his arrest. We conclude that the statement, made immediately following administration of Miranda *fn1 warnings and after an assurance from an officer that defendant could make a statement "off-the-record," was not only obtained in violation of Miranda but was involuntary. We hold, as well, that a statement concerning the offense made by one of the victims to a physician who examined the victim at the request of investigating authorities was also inadmissible. Finally, we conclude that the admission of defendant's statement, either alone or in conjunction with the physician's testimony, cannot be deemed harmless in the circumstances of this case, which turned on defendant's credibility weighed against that of the victims.
On September 21, 1998, a Middlesex County grand jury returned an indictment charging defendant Wayne Pillar with two counts of first degree aggravated sexual assault of P.T. and S.A.T., N.J.S.A. 2C:14-2a (counts one and six, respectively); three counts of second degree sexual assault, two involving P.T. and one, S.A.T., N.J.S.A. 2C:14-2b (counts two, three and seven); two counts of third degree endangering the welfare of a child involving P.T. and S.A.T., N.J.S.A. 2C:24-4a (counts four and eight, respectively); and one count of second degree endangering the welfare of a child, involving P.T., N.J.S.A. 2C:24-4b(4) (count five). P.T., was born on August 23, 1983. S.A.T., P.T.'s sister, was born on May 7, 1979.
The indictment alleged that defendant engaged in various acts of sexual abuse of P.T., between January 1, 1991 and August 22, 1996. The incidents allegedly took the form of fondling, digital and genital penetration, and oral sex. With respect to S.A.T., it was alleged that defendant sexually assaulted her sometime between May and September 1991 by touching her improperly when she was under the age of thirteen.
The jury acquitted defendant of count three, involving an allegation of sexual assault by penetration with P.T. between August and September 1996 when P.T. was over thirteen, as well as count six, an allegation of aggravated sexual assault by penetration with S.A.T. between May and September 1991 when she was under thirteen. He was convicted on the remaining counts.
On October 13, 2000, defendant was sentenced to a twelve- year prison term on count one (aggravated sexual assault), a seven-year term on counts two and seven (sexual assault), a four-year term on counts four and eight (endangering), and a five-year term on count five (endangering). The terms imposed on counts two, four, five, seven and eight were to run concurrent with the sentence on count one.
In 1976, defendant, who was thirty-nine years old, befriended J.T. and M.T., the parents of P.T. and S.A.T. Shortly thereafter, M.T. and defendant began a sexual relationship. In fact, both M.T. and defendant believe that defendant is the biological father of S.A.T. Defendant was P.T.'s godfather as well. In 1982, defendant moved to Florida. However, he would call M.T. and visit the family occasionally, staying at their household during these visits. Three years later, defendant returned to New Jersey and lived with the family for another three years. In 1988, defendant moved back to Florida but continued to visit the family two or three times a year. When he did visit, he slept in P.T.'s room, while P.T. slept on the couch.
Defendant would purchase gifts for P.T., a child who had attended a special school since she was four years old and was eventually classified as emotionally disturbed. When P.T. was seven years old, however, defendant began to touch "[her] vagina and breasts . . . underneath [her] clothing." These incidents would occur when P.T.'s parents were at bingo, which was nearly every night, and mostly when S.A.T., P.T.'s older sister, was out of the house, although several instances occurred with the sister present in the house. P.T. complained to M.T. about defendant's conduct, specifically that defendant was "hurting her," but her mother did nothing. Defendant eventually forced P.T. to touch his penis. Defendant would also give alcohol to P.T. until she became intoxicated. The two would also watch pornographic movies together, during which defendant would begin masturbating himself and touching her. Defendant also forced P.T. to give him oral sex "a couple of times," gave her drugs, and also took suggestive photographs of her in her underwear; pictures which defendant had developed and kept. Eventually, when P.T. was around ten or eleven, defendant penetrated P.T. with his penis, although P.T. yelled for him to stop. There were two incidents of vaginal penetration. On more than one occasion, defendant tied P.T.'s hands and feet during the assaults.
When defendant was not in New Jersey, he would call P.T. every Friday night or send her letters, both sexual in nature. On one occasion around Christmas, defendant sent P.T. a box of CDs with a letter noting that it was to be opened only by P.T., "Confidential. For your eyes only. Top Secret." The letter stated in pertinent part: [A]nd also a gift certificate for a pair of pants to cover your sweet little ass. This way you can get the style that you like and not one that I think looks best on you. That can wait until I get there, and take you shopping if your [sic] good to me . . . . I plan on cumming up at the end of March, so you can start getting ready now. I know you finally got [S.A.T.] thrown out, and I hope that you are not to [sic] lonely without someone to fight with . . . . I'm hoping that you and D. will throw me a little tea party when I'm there. I will bring a movie for us three to watch, and maybe all 3 of us can learn something and have fun doing it together.
Defendant also sent P.T. a letter indicating that he would give her certain things if she did certain things, such as "a lap top computer which he said he might get [her] if [she] had sexual intercourse with him." This letter, which P.T. described as a "price list," stated in part:
Just a short little letter about our phone call on Friday. You wanted to know about present values. So here is a price list. Under $5 lunch or snack money but be careful because they add up. $5 to $15 about the cost of the bra. This also should cover a CD. $15 to $30.00, this will buy a pair of pants and a shirt. Will also get dinner. $30 to $60 this is the almost everything price range. Should uncover everything and taste new experiences and one or two other small gifts over $60. This is the all the way gift, no stopping. Doing everything. It also includes a role of film for Mom's Polaroid camera.
P.S. $1300, new computer. Hey, I'd have to fuck someone every night to buy one of those.
Defendant's behavior ceased when P.T. turned fourteen. The last incident involved defendant forcing P.T. to have intercourse and stating "if [P.T.] tell[s] anybody, [she's] going to get it." Defendant allegedly fondled one of P.T.'s friends as well, although he was not charged for that offense.
In 1992, defendant also inappropriately touched P.T.'s older sister, S.A.T. on several occasions. In one instance, when S.A.T. was twelve, defendant penetrated S.A.T.'s vagina with his finger. S.A.T. told her mother, who did not believe her. Several days later, defendant began to rub her inner thigh while the two were driving to a mall. S.A.T. "pushed his hand away," told him to stop and sat in the back for the trip home. S.A.T., who was dating a man twenty years older than her (whom she later married), moved out of the house in 1998 because she did not get along with her mother.
In 1997, C.L., a friend of the T.'s, moved into the T.'s residence upon being evicted from her own home. C.L. got along well with P.T. and S.A.T., eventually becoming J.T.'s girlfriend. On March 19, 1998, while tucking P.T. in for bed, C.L. noticed a crumpled piece of paper on the floor of P.T.'s bedroom. She picked up the paper and read it, noticing that the letter was from defendant. The next day, in response to questioning about the letter, P.T. told C.L. that "[defendant] had touched her" and asked her not to tell J.T., her father. C.L. then spoke with S.A.T., who also related defendant's conduct with her. C.L. then told J.T. of the allegations. C.L. looked around the house and found other letters from defendant. On Monday, she called P.T.'s school, and J.T. called the police. A week later J.T., S.A.T., and P.T., met at P.T.'s school with Investigator Allan Bandics. Investigator Bandics took statements from both girls, in the presence of a school counselor, and Marcia Gonzalez, a representative from the Division of Youth and Family Services. Complaints were signed shortly thereafter and on July 12, 1998, the next time defendant came to New Jersey from Florida, he was arrested.
Prior to trial, the judge held an N.J.R.E. 104(a) hearing to determine the admissibility of out-of-court statements made by defendant to the police following his arrest. The judge admitted the statements, finding them to have been made voluntarily. The judge also admitted, based on stipulated facts, out-of-court statements made by P.T. and S.A.T. to C.L., concerning the sexual acts allegedly committed upon them by defendant, under the "fresh complaint" rule.
Both P.T. and S.A.T. testified at trial to the various acts of sexual abuse committed by defendant. In addition, the jury heard certain incriminating statements made by defendant, which we will discuss hereafter. The jury also reviewed the letters written by defendant to P.T.
Defendant testified in his own behalf, denying that he had ever touched P.T. or S.A.T. in an inappropriate manner. He explained that the letters written to P.T. were meant as jokes, conceding that, in hindsight, they contained inappropriate language. He acknowledged that he had a habit of making coarse sexual jokes that people might find offensive and admitted engaging in such sexual banter with P.T. and S.A.T.
We first address the admissibility of an incriminating statement made by defendant after his arrest.
On July 12, 1998, defendant was arrested as he arrived at P.T.'s home on a visit from Florida. Investigator Bandics read defendant the charges contained in complaints signed by S.A.T. and J.T., P.T.'s father, and verbally advised him of his Miranda rights. Defendant acknowledged that he understood his rights and asked no questions at that time. After transporting defendant to the police department, Bandics read the rights again, and defendant signed a Miranda warning card. Once again defendant acknowledged that he understood his rights and asked no questions.
After being photographed and fingerprinted, defendant was escorted into a conference room where he was given the criminal complaints to read for himself. At that point, Bandics asked defendant if he wished to speak. Defendant responded that he was "guilty of some of the things on here . . . but not all of them." Defendant then stated that he would like to speak to the police, but would "like to consult with an attorney first." Defendant asked what would happen to him next, and Bandics told him about the arraignment process, setting of bail and appointment of counsel, if necessary.
When asked if he had any questions, defendant paused for a moment, and asked to "say something 'off-the-record.'" Both Bandics and Detective Zebrowski, who was also in the conference room, agreed to listen to an "off-the-record" statement. At this point, defendant stated "that he fondled these girls [referring to P.T. and S.A.T.] but did not penetrate them." Bandics testified that he was not sure what "off-the-record" meant, but he was "under the impression that [defendant] wanted to tell me something." Bandics conceded that in his mind once an individual receives Miranda warnings, "there really is no such thing as off-the-record." After defendant made the "fondling" admission, Bandics asked if "he wanted to talk about anything else." Defendant responded that he "thought it would be best if he could speak to an attorney first." The conversation then ended.
Before the trial court, defense counsel argued that the police officers' consent to listen to "off-the-record" statements was misleading, which caused defendant's incriminating statements to be coerced, in violation of his Fifth Amendment rights. The State countered that defendant was well aware of his right to remain silent, and that he knew that he was entitled to confer with counsel. The State also argued that "off-the-record" was ambiguous to reasonable people such as the police officers to whom the comment was addressed.
The trial judge determined that defendant's first statement that he was guilty of some of the charges, was not a product of interrogation, and that, in any event, it was voluntarily made because defendant was cognizant of his constitutional rights when he made it. The judge also determined that the second statement, made after defendant requested to speak "off-the-record," was voluntarily made for the same reason, and because the officers' conduct was "not unreasonable." Hence, the judge denied defendant's motion to suppress the statements, both of which were subsequently heard by the jury.
On appeal defendant does not challenge the ruling with respect to his initial statement, but contends that the second, "off-the-record," statement was not admissible because "it was misleading and false." Although defendant primarily attacks the statement on the ground that it was involuntarily made, he also argues that the police conduct in obtaining the statement subverted the Miranda warnings themselves. Because the two arguments are "intertwined," Reynolds v. State, 610 A.2d 782, 785 (Md. 1992), cert. denied, 506 U.S. 1054, 113 S. Ct. 981, 122 L. Ed. 2d 134 (1993), we address the admissibility of defendant's statement both in terms of a Miranda violation, as well as on traditional grounds of voluntariness. However, we note, as did the court in Reynolds, supra, at 785-86, that appellate counsel have an obligation to carefully isolate and identify the separate legal bases of their arguments and to include them in distinct point headings. R. 2:6-2(a)(5).
As is now well known, in Miranda, the United States Supreme Court prescribed procedures that law enforcement must follow in an effort to protect a criminal suspect's Fifth Amendment privilege against self-incrimination. The Miranda rights "are ancillary to the fundamental right that is at the core of the Fifth Amendment." State v. Burris, 145 N.J. 509, 518 (1996) (citing Oregon v. Elstad, 470 U.S. 298, 304, 105 S. Ct. 1285, 1290, 84 L. Ed. 2d 222, 229 (1985)). The Miranda warnings are not themselves rights protected by the Constitution but are, rather "prophylactic measures that are necessary to safeguard the essential constitutional right against self-incrimination." Ibid.
Because the Miranda warnings are prophylactic measures designed to ensure that a suspect's decision to speak to the police is knowing and voluntary, a Miranda violation itself is not determinative of a Fifth Amendment violation of the privilege against self-incrimination. [Michigan v. Tucker, 417 U.S. 433, 444-45, 94 S. Ct. 2357, 2364, 41 L. Ed. 2d 182, 193 (1974)]. A voluntary, incriminating statement elicited without the Miranda warnings violates a defendant's ancillary rights, but does not rise to the level of a constitutional violation. Id. at 446, 94 S. Ct. at 2365, 41 L. Ed. 2d at 194. A statement that is elicited after a Miranda right has been invoked, however, becomes a violation of constitutional dimension -- a violation of the constitutional right itself. Wainwright v. Greenfield, 474 U.S. 284, 293, 106 S. Ct. 634, 639, 88 L. Ed. 2d 623, 631 (1986). [Id. at 519.] *fn2
The distinction between violation of a prophylactic rule and violation of a constitutionally guaranteed right is significant because of the consequences that flow from each. There is "a qualitative difference between a failure to administer Miranda warnings in the first place, and a failure to honor, after they have been asserted, the constitutional rights that those warnings are designed to secure." State v. Hartley, 103 N.J. 252, 272 (1986). Thus, a statement resulting from an in-custody interrogation without Miranda warnings may nevertheless be voluntary. Ibid. As a result, such a voluntary, though unwarned statement, while inadmissible in the prosecution's case-in-chief, may be used for impeachment of the accused if he testifies. State v. Burris, supra, 145 N.J. at 529. *fn3 On the other hand, an involuntary statement is inadmissible for any purpose. Id. at 534; Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S. Ct. 2408, 2416, 57 L. Ed. 2d 290, 303-04 (1978); United States v. Walton, 10 F.3d 1024, 1033 (3rd. Cir. 1993).
We first address the impact of an agreed to request to speak "off-the-record" following administration of Miranda warnings. There are two bases upon which such an agreement renders the resulting statement inadmissible. First, such a misrepresentation directly contradicts and thereby neutralizes the entire purpose of the Miranda warnings. Second, such misrepresentation, may, and in this case did, render the statement involuntary. We deal with the Miranda issue first.
In People v. Braeseke, 602 P.2d 384 (Cal. 1979) *fn4 , the defendant was taken to a police station to be interviewed concerning the killings of his mother, father and grandfather. After an initial period of questioning, the police decided to reinterview defendant concerning inconsistencies between his story and that of another witness. Miranda warnings were administered and defendant indicated his willingness to speak with the officers. However, after some further inconsistency developed, the police told defendant that they believed he had committed the homicides. "At this point defendant said he did not want to discuss the matter further without an attorney present." Id. at 386. Nevertheless, during subsequent booking procedure defendant asked if he could speak with one of the original interrogating officers alone and "off-the-record." The officer agreed and defendant made certain incriminating statements, which led to a tape-recorded confession. Id. at 386-87. The court held that a request to speak "off-the-record" cannot constitute a knowing and intelligent waiver of Miranda rights, specifically the advice that anything a suspect says can be used against him in a court of law. Id. at 391. "Indeed, defendant's request revealed a marked lack of understanding of the Miranda warnings. [The officers] then contributed to defendant's lack of understanding by agreeing to the request rather than informing defendant there could be no such thing as an 'off- the-record' discussion." Ibid. (citations omitted) *fn5 .
Similarly, in United States v. Walton, supra, 10 F.3d at 1027, the court was also faced with a defendant who sought an off-the-record interview with federal agents the day following administration of Miranda warnings and the providing of a written statement. The officer, who defendant knew from high school, assured defendant that they could talk "off the cuff," following which defendant provided inculpatory information. No Miranda warnings were given before this conversation.
At the outset, the court acknowledged that "[t]his is not a Miranda case," since Walton was not in custody when his statement was made. As a result, the admissibility of the statement was to be evaluated under a voluntariness standard judged by the totality of the circumstances. Walton, supra, at 1028. Although we shall discuss the voluntariness of defendant's statement later in this opinion, it is of significance that in finding the statement involuntary the Third Circuit noted that "there was no reason for Walton to disbelieve [the officer] that nothing he said would be used against him, and to rely instead upon the Miranda warnings he had been given the previous day. Indeed the Miranda warnings of the previous day and [the officer's] assurances during the park bench meeting appear exclusive of, and inconsistent with, one another." Id. at 1030. The officer's "assurances that Walton could speak 'off the cuff' created a situation in which Walton was deprived of the ability to understand the consequences of foregoing his privilege [against self- incrimination]. A fortiorari, he was deprived of the ability to make an intelligent choice between exercising and waiving that privilege." Id. at 1031.
The same reasoning applies in the present case. Indeed, the infirmity here runs deeper. A police officer cannot directly contradict, out of one side of his mouth, the Miranda warnings just given out of the other. An acquiescence to hear an "off-the-record" statement from a suspect, which the officer ought to know cannot be "off-the-record," totally undermines and eviscerates the Miranda warnings, at least with respect to a statement made, as here, in immediate and direct response to the misleading assurance. As the Pennsylvania Supreme Court said in Commonwealth v. Gibbs, 553 A.2d 409, 411 (Pa.), cert. denied, 493 U.S. 963, 110 S. Ct. 403, 107 L. Ed. 2d 369 (1989), "[m]isleading statements and promises by the police choke off the legal process at the very moment which Miranda was designed to protect." We agree.
Even if we accept the trial judge's conclusion that the officer did not know what defendant meant by "off-the-record," a conclusion we consider implausible in light of the common usage of the expression, it was the officer's obligation to clarify what the statement did mean, especially in light of the officer's acknowledgment that in his mind there was no such thing as an "off-the-record" conversation. In the face of the Miranda warning just administered, there could not be a valid waiver of the right to remain silent without such a clarification. See United States v. Anderson, 929 F.2d 96, 100 (2nd Cir. 1991) ("affirmative misrepresentations by the police may be sufficiently coercive to ...