On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-07-1010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Messano.
Defendant P.D.W. appeals from the judgment of conviction and sentence imposed following a trial at which the jury found him guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b)(a lesser-included offense of count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(b)(a lesser-included offense of count three); two other counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b)(counts four and five); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(count six).*fn1 The crimes were alleged to have occurred between August 2002 and January 2003 when the victim, J.P.G., the daughter of defendant's live-in girlfriend, was either five- or six-years old.
Defendant raises the following points for our consideration:
POINT I THE COURT REVERSIBLY ERRED IN PERMITTING J.P.G.'S HEARSAY STATEMENT OF THE EVENTS WHICH SHE COULD NOT INDEPENDENTLY RECOLLECT AT THE TIME OF THE TRIAL BUT THAT SHE TESTIFIED TO FROM HER TAPED STATEMENT PLAYED TO HER BY THE POLICE IMMEDIATELY BEFORE TRIAL INTO EVIDENCE IN VIOLATION OF [DEFENDANT'S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO CONFRONTATION AND TO A FAIR TRIAL.
POINT II THE COURT REVERSIBLY ERRED IN PERMITTING [DEFENDANT'S] RECANTED, PRIOR, INCULPATORY STATEMENT WHICH HE GAVE WHILE INTOXICATED, UNDER THE INFLUENCE OF DRUGS, AND WITHOUT A FULL UNDERSTANDING OF HIS CONSTITUTIONAL RIGHTS INTO THE RECORD IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY.
POINT III THE COURT REVERSIBLY ERRED IN REJECTING [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
POINT IV THE COURT REVERSIBLY ERRED UNDER [N.J.R.E.] 404(b) AND [N.J.R.E.] 403 IN PERMITTING THE PROSECUTOR TO GO BEYOND THE SANITIZED REFERENCE TO [DEFENDANT'S] PRIOR CONVICTION TO QUESTION HIM ON THE DETAILS OF WHETHER HE HAD RECEIVED AND UNDERSTOOD HIS MIRANDA RIGHTS IN THAT PRIOR PROCEEDING AND IN FAILING SUA SPONTE TO ORDER A MISTRIAL WHEN THE PROSECUTOR STRESSED [DEFENDANT'S] CRIMINAL DISPOSITION ON THIS POINT IN HIS CLOSING STATEMENT.
POINT V [DEFENDANT'S] TOTAL FIFTEEN-YEAR PRISON TERM RESULTING FROM CONSECUTIVE PRISON TERMS FOR HIS CONVICTIONS OF COUNTS 1 AND 2 WITH 85% PERIODS OF PAROLE INELIGIBILITY PURSUANT TO THE NO EARLY RELEASE ACT WERE ILLEGAL AND MANIFESTLY EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
At a pre-trial N.J.R.E. 104(c) Miranda*fn2 hearing held to determine the admissibility of defendant's statement to the Mount Holly police, Detective Mark Beierschmidt testified that defendant was arrested on the evening of January 27, 2003, at approximately 8:40 p.m.*fn3 Beierschmidt did not speak to defendant until Detective Robert Hageman of the Burlington County prosecutor's office arrived at police headquarters sometime after 9:00 p.m. The detectives removed defendant's handcuffs before beginning the interview.
Beierschmidt read defendant his Miranda warnings from a card, pausing after each point to make sure defendant understood. Once finished, Beierschmidt handed defendant the card; defendant signed it to acknowledge the officers had advised him of his rights. Defendant did not appear to be under the influence of alcohol, narcotics, or any medication and informed the officers he was not. After indicating that he understood his rights, defendant expressed his willingness to speak to the detectives.
Without detail, Beierschmidt told defendant that he had engaged in inappropriate conduct with J.P.G. Defendant admitted putting his penis in J.P.G.'s mouth, ejaculating on her, and digitally penetrating her. After approximately an hour of this "pre-interview," Beierschmidt retrieved a tape recorder, asked again if defendant understood his rights, to which defendant responded in the affirmative, and recorded defendant's answers to the detectives' questions. In the taped statement, defendant admitted to committing sexual acts with J.P.G. in Pemberton and Mount Holly. Beierschmidt testified that defendant never asserted his right to remain silent or requested counsel, and the detectives never coerced him or made any promises in return for him giving the statement.
Beierschmidt explained discrepancies regarding the date and time of the interview as they appeared on the Miranda card, and the date and time contained in the actual statement. The State also called Hageman, who essentially corroborated Beierschmidt's testimony.
Defendant testified for the limited purpose of the Miranda hearing, N.J.R.E. 104(d), and claimed he attended special classes for slow learners while in the third grade, could not read and write well, and had psychiatric problems. Defendant further testified that the detectives read him his Miranda warnings only after the pre-interview and before the taped formal statement. He also testified that he had smoked six marijuana joints on the day of his arrest and that he was "high" when questioned by the police, though he admitted that during the questioning he told the detectives he had not consumed any alcohol or drugs. On cross-examination, defendant claimed that he invoked his right to remain silent "the whole time [he] was down there at the police station."
Following summations, the judge began his oral decision by finding both officers had testified in a "very credible, straightforward manner" and consistent with one and other. He concluded the detectives read defendant his Miranda warnings and defendant, who the judge determined could read and write English, understood them. The judge found that defendant never indicated he lacked an understanding of his rights, that he wanted to speak to an attorney, or that he did not want to speak to the detectives. The judge found defendant's testimony about being "high" incredible.
The judge concluded "beyond a reasonable doubt that [defendant] did knowingly, intelligently, and voluntarily waive his Miranda rights" and denied the motion to suppress the statements. The judge then noted that in the future law enforcement agencies should "fully Mirandize defendants on the record," "correctly note" the time, and record all interviews, including the "pre-interview with any suspect."*fn4
The matter was not reached for trial for another five months. Immediately before jury selection, the State informed the judge of its intent to introduce a videotape of J.P.G.'s interview by detectives pursuant to N.J.R.E. 803(c)(27), the "tender years" exception to the hearsay rule. Defense counsel acknowledged his prior receipt of the videotape and accompanying transcript, but claimed he "didn't know [the prosecutor] was going to introduce the tape ." The judge agreed to conduct the necessary N.J.R.E. 104 hearing before ruling on the admissibility of J.P.G.'s statement.
The hearing was held two days later after jury selection. Defendant objected to the statement's introduction because the State had failed to give proper notice. The prosecutor countered by arguing that defense counsel "ha[d] the tape and a transcript . . . for months and months and months," and that J.G.P. was "on the witness list." The judge found any late notice caused no prejudice to defendant because if indeed the tape were admitted, the testimony accompanying its introduction was not scheduled to occur for another week, thus giving defendant ample time to prepare.
The State subsequently called Beierschmidt and Hageman to testify regarding their videotaped interview of J.P.G. on January 27, 2003. Following the testimony, defendant argued the videotape was untrustworthy and inadmissible because of the potential influence exerted over the child by her family members and the two detectives prior to the interview. The State argued that the totality of the circumstances--including a lack of subjective questioning, lack of motive to fabricate, J.P.G.'s choice of words, the close temporal proximity between the interview and the incidents--made her statements trustworthy.
The judge concluded that "there was nothing suggestive about the questioning" of J.P.G. by the officers and that the child's version of events was "very, very consistent." She found that the statement was made to the police "within the hour, within two hours," of J.P.G. reporting defendant's assault to her mother. The judge found that based on all these circumstances, there was "a probability that" the videotaped statement was "trustworthy," and ruled it could be admitted in evidence. The judge also determined that she need not conduct a further competency hearing pursuant to N.J.R.E. 601 in order to permit J.P.G. to testify before the jury.
The State's first witness before the jury was Beirschmidt who testified that on January 27, 2003, his department received information of a "past tense sexual assault." After learning "the suspect resided in the home of the minor," Beierschmidt contacted the Burlington County Prosecutor's office to interview the child at the Child Advocacy Center. He interviewed J.P.G. and Hageman monitored the videotaping from an adjacent room. At this point, the prosecutor played for the jury the videotape in which J.P.G. told Beierschmidt that defendant had sexually assaulted her.
Beierschmidt testified that he and Hageman then interviewed J.P.G.'s mother, spoke to an assistant prosecutor, and prepared an arrest warrant for defendant's arrest. Unable to locate defendant at that time, Beierschmidt testified other officers ultimately arrested defendant that evening, and he described the interview he conducted and the statement he obtained from defendant in a manner consistent with the testimony he gave during the N.J.R.E. 104 hearing. The audiotape of defendant's statement was played for the jury.
Hageman also testified before the jury in a manner that was consistent with his earlier testimony, and the State then called J.P.G.'s mother, A.P., as a witness. She and defendant began dating approximately one and a half years earlier and, within a couple of months of beginning their relationship, decided to live together. Defendant was the father of two of A.P.'s five children, ...