January 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS M. CARABALLO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-07-01360-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 19, 2008
Before Judges Waugh and Newman.
On July 19, 2005, a Bergen County Grand Jury charged defendant Luis Caraballo and co-defendant Elvis Marmolejos with two counts each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7). Following indictment, defendant moved to sever the trial from his co-defendant because of the statements, oral and written, by co-defendant. The motion judge denied the motion but required the written statement to be redacted by being "blacked out." The parties apparently agreed on the redaction. Tried without a jury, defendant and co-defendant were found guilty of the charges.*fn1
Following the denial of a motion for a new trial on June 28, 2007, the court sentenced defendant to two concurrent ten-year terms of imprisonment with an eighty-five percent NERA*fn2
period of parole ineligibility. The court imposed all appropriate fines and penalties. Defendant appeals. We reverse because of Confrontation Clause violations, conceded by the State, which we find were not harmless beyond a reasonable doubt.
The relevant trial testimony may be summarized as follows. On July 24, 2004, J.S. drove her friend V.B. to J.S's boyfriend's house in West Paterson. While at the house, both girls drank Night Train, a heavy wine. J.S. had three or four cups and V.B. had one or two cups. V.B. received a phone call from a friend.
The girls left and V.B. wanted to stop at Johnny's house to pick up a gift he bought for her from the Dominican Republic.
V.B. insisted on driving because J.S. was driving erratically.
V.B. woke J.S. in front of Johnny's home.
Johnny was waiting for V.B. outside. V.B. opened the car door for J.S. and the three walked into his house. J.S. sat on a bed. While in the house, J.S. saw both defendant and co-defendant, whom she knew from school.
J.S. declined a drink and fell asleep. When she awakened, she felt somebody on top of her and initially claimed that she observed defendant playing with himself. She started to cry and ran from the room. J.S. testified that her pants were off. She also said that she heard someone say "oh shit" and the person who was on top of her got off the bed. She was uncertain whether it was defendant or co-defendant. She took her car keys from V.B., did not want to talk and drove off. Shown her statement to refresh her recollection, she clarified that it was defendant on top of her and co-defendant was in the chair masturbating.
The next morning J.S. went to V.B.'s home to find out if there was anything that V.B. could tell her to refresh her memory as to what happened. V.B. mentioned some things that angered her. J.S. went to the police accompanied by her sister.
V.B. testified that J.S. and she went to J.S.'s boyfriend's house on July 24, 2004. En route, they stopped at a liquor store in Paterson and purchased a bottle of Night Train. The three of them finished the bottle.
After leaving, V.B. asked if it would be agreeable to stop in Garfield at Johnny's apartment to pick up a gift he had bought for her in the Dominican Republic. V.B. was concerned with J.S.'s driving, made her stop and drove the rest of the way to Johnny's house.
V.B. wakened J.S. on arrival and told her that she was going inside to get a present from Johnny. J.S. insisted on going with her. They entered Johnny's room and saw defendant and co-defendant. V.B. testified that they were in the room together for about an hour with J.S. falling in and out of sleep.
While at Johnny's apartment, V.B. had two beers and everyone else was drinking. J.S. started to drink when she first entered but stopped. Defendant and co-defendant were tickling J.S.'s feet but she told them to stop. V.B. wanted to leave after seeing this immature behavior. V.B. looked for the keys to the car and went outside with Johnny to see if they were in the car. They were outside for ten minutes. V.B. returned inside and tried to wake up J.S. by shaking her and touching her face. She turned J.S. over but did not find the keys.
V.B. and Johnny went outside again to look for the car keys and searched the bathroom upstairs, where V.B. found the keys. Approximately twenty minutes had passed.
V.B. testified that she returned downstairs to tell J.S. but the door was locked. She knocked on the door and no one responded. V.B. told Johnny to call either defendant or co-defendant to open the door. Johnny made the call on his cell phone. Ten minutes later, the door was opened and defendant and co-defendant left the room and exited the apartment. J.S. then left the room. According to V.B., J.S. appeared to have been crying. J.S. did not say anything but took her keys and left. Johnny and V.B. found open condom wrappers in the room.
Detective Brian Griefer, a detective in the Bergen County Prosecutor's Office sex assault and child abuse squad, was assigned to interview the co-defendant, Elvis Marmolejos. Detective Griefer testified about the unredacted statement of Elvis Marmolejos. Co-defendant told the detective that while at Johnny's house, J.S. had fallen asleep on the bed in Johnny's room. The detective stated that Johnny and V.B. had left defendant and co-defendant in the bedroom with J.S. The detective further testified that co-defendant related that defendant and he started to undress J.S. while she was asleep and then performed various sex acts upon her while she was asleep. After one of the two received a telephone call from Johnny, they dressed and left. According to the co-defendant, J.S. was asleep.
Co-defendant's written statement was admitted into evidence. Instead of a blacked out redacted version, the statement only had crossed out lines on the redacted portions. Once again, co-defendant stated that J.S. was asleep during the sexual events which took place in the bedroom.
Detective Cecilia Love of the Bergen County Prosecutor's office testified. She met with J.S. on July 25, 2004, at the Garfield Police Department. Detective Love said that J.S. told her that she had been at her boyfriend's house drinking with
V.B. and him. J.S. and V.B. then went to Johnny's house where J.S. fell asleep. When she awoke, J.S. claimed that defendant was penetrating her vagina and Elvis Marmolejos was masturbating in a chair. Detective Love testified that during this statement, J.S. was upset and crying.
Detective Love recounted the events surrounding the taking of the statement from defendant. On July 26, 2004, Detective Love received a telephone call from Captain Mati of the Garfield Police Department. As a result of the telephone call, Detective Love went to defendant's place of employment in Garfield to pick him up in order to speak with him about an on-going criminal investigation. Detective Love told defendant that she was a detective in the prosecutor's office and that his name had surfaced in connection with a criminal investigation. Defendant agreed to accompany Captain Mati and her to the prosecutor's office in Paramus. Neither law enforcement officer was in uniform. Neither officer informed defendant of his Miranda*fn3 rights while at the funeral home.
When the three arrived at the prosecutor's office, Detective Love put defendant in a room that was nine feet by ten and a half feet and contained three chairs and a table. Detective Love read all the rights contained in a prosecutor's Miranda form to defendant. Defendant acknowledged that he understood each and every right, and initialed each right after reading the form to himself. Detective Love then read the waiver portion of the form to defendant and asked if he was willing to speak to the officers without an attorney. Defendant indicated he would, printed his name on the waiver form and then signed the waiver form. Detective Love and Captain Mati witnessed defendant sign the form.
After defendant provided Detective Love with personal information, including that he was a high school graduate, she asked defendant what had occurred at the home of Johnny. Defendant told Detective Love that he and his co-defendant had gone to the home with the purpose to drink. Johnny invited his girlfriend V.B. over. V.B. arrived at Johnny's house with J.S.
V.B. and J.S. had been drinking before they entered the house. Defendant knew J.S. through her sister. V.B. and J.S. went upstairs to use the bathroom and returned. Johnny and V.B. left the room where defendant, co-defendant and J.S. were.
Co-defendant was on the bed with J.S. when defendant fell asleep. When defendant awoke, he saw co-defendant engaging in oral sex on J.S. and was pulling her pants down. Defendant stated that J.S's top was above her head. Defendant touched J.S.'s vagina and she performed oral sex on him. While J.S. performed oral sex upon him, she was moving her head. Defendant believed that J.S. was awake by her movements. Defendant then stated that co-defendant had sexual intercourse with J.S. and after he was finished, defendant had sexual intercourse with J.S. but only for ten seconds.
After Detective Love took Buccal swabs from defendant, she told him that she did not believe the story he told her. Defendant then stated that he no longer wanted to speak with Detective Love and the interview ended.
Defendant called Rita M. O'Connor, a subcontractor with the Bergen County Prosecutor's Office as a sexual assault nurse examiner. Ms. O'Connor testified that she responded to Holy Name Hospital to conduct a forensic medical examination and collect evidence from J.S. When shown the laboratory report from the New Jersey State Police Laboratory, which she had not seen until it was faxed to her by counsel, the report indicated that there was no spermicide detected. She explained, when asked by the court, that a shower would wash away any type of semen or sperm. There was no physical evidence to connect defendant to the sexual offense.
On appeal, defendant raises the following issues for our consideration.
POINT I: LUIS CARABALLO IS ENTITLED TO A NEW TRIAL BECAUSE HIS RIGHTS TO CONFRONTATION WERE VIOLATED
POINT II: MR. CARABALLO IS ENTITLED TO A NEW TRIAL BECAUSE HE DID NOT HAVE EFFECTIVE ASSISTANCE OF COUNSEL
POINT III: THE STATEMENT OF MR. CARABALLO WAS NOT ADMISSIBLE
Defendant argues that two Confrontation Clause violations require a new trial. First, defendant argues that his constitutional confrontational rights under the Sixth Amendment were violated by admission of the co-defendant's "redacted" transcribed statement which records his admission that the victim was asleep during the sexual assault, up to and including the time when "we went home." The redacted statement was not blacked-out as ordered by Judge Meehan, who heard the pre-trial severance and Miranda motions. The statement only had cross-outs and could be read, amounting to no redaction at all. Defendant claims that he and J.S. engaged in consensual sex which was irreconcilable with the co-defendant's statement that she was asleep during the sexual activities.
Second, defendant argues that Detective Griefer testified without objection to co-defendant's oral admissions which included co-defendant's version of how defendant sexually assaulted the sleeping victim.
Defendant contends it was erroneous to conclude that the confessions were interlocking and therefore admissible when both the United States and New Jersey courts have rejected the "interlocking confession doctrine." Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed. 2d 162 (1987); State v. Haskell, 100 N.J. 469 (1985). Defendant points out that his statement shows that J.S. was a willing participant in the sexual encounter, but co-defendant's statement indicates that both he and defendant took advantage of the sleeping or passed out victim.
We need not dwell on the merits of defendant's contentions because the State agrees with defendant that his confrontation rights were violated. We quote from the State's forthright position as explained in its brief:
The State does not disagree with the defense's legal conclusion that defendant's confrontation clause rights were implicated by the admission of co-defendant's improperly redacted transcribed statement and unredacted oral statement. Unquestionably, these hearsay statements were damaging to defendant and their use by the fact-finder runs afoul of both State v. Young, 46 N.J. 152 (1965), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968). Similarly, we recognize that legally the "interlocking confession" doctrine provides no safe harbor for our case. That said, the State hastens to add that any errors here were harmless.
In a footnote, the State acknowledged that the factfinder failed to segregate the evidence admissible against defendant from the evidence admissible against the co-defendant. Had this been done, no error would have occurred and State in Interest of R.B., 200 N.J. Super. 573 (App. Div. 1985) would be controlling. There, no Confrontation Clause error occurred where the judge, sitting as factfinder, "was expressly conscious of the dangers and took care to avoid improper use of the co-conspirator's unsworn answers and unchallenged extra-judicial statements". Id. at 577. Here, the State acknowledges that the trial judge's actual decision evidenced that he used the statements of co-defendant in assessing defendant's guilt. Thus, the holding in State in the Interest of R.B. was deemed inapplicable.
The test for determining whether an error is harmless "'is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'" Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed. 2d 705, 710 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed. 2d 171, 173 (1963)). In our reviewing capacity, we have to be certain whether the error may have contributed to defendant's conviction. State v. Sanchez, 129 N.J. 261, 278 (1991). The trial judge in analyzing the testimony of J.S. and the other witnesses who were not police officers stated, "the case if it stops there at that particular moment applying the law as I would have to do, would be lacking in its, in my opinion, ability to openly come to conclusions about whether or not the State proved beyond a reasonable doubt the allegations but there is more to this case." Following this comment, the court analyzed the statements of both defendants and did not segregate the evidence admissible to each defendant alone. Thus, it is clear that the statement of the co-defendant influenced the trial court's decision in reaching a determination that the error of constitutional dimensions in the co-defendant's oral and readable redacted statement led the judge to find defendant guilty beyond a reasonable doubt.
We are also mindful that none of the witnesses in the case, except for J.S., were present in the bedroom where the sexual activity took place. Thus, defendant and co-defendant were the participants and what they had to say was crucial to making a determination of whether the sexual encounter between defendant and J.S. was or was not consensual. Under these circumstances, we are uncertain whether the constitutional errors involving the confrontation clause may have contributed to defendant's conviction. We therefore conclude that the admissions of the co-defendant's oral statement through Detective Griefer's testimony and the purported redacted, but readable, written statement of co-defendant was not harmless error. A new trial is warranted.
Defendant contends in Point II that his trial attorney was ineffective in his representation under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987) and he is therefore entitled to a new trial. The major points raised includes the failure to object to the admission of the unredacted oral statement of co-defendant. Since we have already granted a new trial we need not address the effectiveness of trial counsel which is an issue usually reserved for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). Some of the examples of defense counsel's failure may involve trial strategy. Those allegations are better addressed on post-conviction relief because they involve assertions and evidence beyond the trial record. State v. Abdullah, 372 N.J. Super. 252, 276-77 (App. Div. 2004), aff'd in part, rev'd in part on other grounds, 184 N.J. 497 (2005).
Because we have granted a new trial, it would be appropriate to address the admissibility of defendant's statement so that the issue need not be relitigated. Defendant contends that he, as a Dominican citizen, was not advised of his consular rights under the Vienna Convention on Consular Relations and therefore the remedy should be to bar the admissibility of the statement. He also contends that the record did not establish whether defendant knowingly and intelligently waived his Miranda rights and a remand for a voluntariness hearing is mandated. We reject both contentions.
In Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 2674-82, 165 L.Ed. 2d 557 (2006), the United States Supreme Court concluded that a violation of Article 36, the consular notification and communication provision of the Vienna Convention on Consular Relations (VCCR), does not require suppression of any statement or evidence as a remedy. Id. at 337, 126 S.Ct. at 2674, 165 L.Ed. 2d at 570-71. For one, the treaty did not provide for any application of the exclusionary rule. Accordingly, to "read in" such a remedy would be to rewrite the treaty, a power the Court lacks. Id. at 346, 126 S.Ct. at 2679-82, 165 L.Ed. 2d at 576. Second, the overwhelming number of nations, who are parties to the treaty, do not employ the exclusionary rule, thereby making it extremely unlikely that such a remedy was even contemplated by the parties. Id. at 343-44, 126 S.Ct. at 2678-79, 165 L.Ed. 2d at 574-75. Third, the employment of the exclusionary rule would also be unwarranted given that a foreign national detained in the United States already enjoys the rights protected by the Due Process Clause; i.e., protection against compelled self-incrimination, the right to counsel, and the right against unreasonable search and seizures. Id. at 350, 126 S.Ct. at 2681-82, 165 L.Ed. 2d at 578. In fact, defendant received his Miranda rights on the spot before police questioning and well before the arresting authority even is required to notify the consular post upon a request to do so. Id. at 362, 126 S.Ct. at 2689, 165 L.Ed. 2d at 586 (Ginsburg, J., concurring).
As a state court, we are bound by the United States Supreme Court's interpretation of federal law and treaties. U.S. Const. art. VI, cl. 2. According to the United States Supreme Court, the VCCR provides arrested foreign nationals with no greater rights than any other citizens or individuals so situated. We do not have the authority to ignore this construction of a federal treaty. Significantly, defendant here was accorded the same rights as any other citizen in being given his Miranda warnings before the police interview. Thus, the VCCR provides no basis to suppress defendant's oral statement made to Detective Love.
Defendant contends that the oral statement he made to Detective Love was not voluntary and that the matter should be remanded for a voluntariness hearing. The trial court heard the testimony from Detective Love when she recounted the events that led up to defendant accompanying her and Captain Mati to the prosecutor's office in Paramus. Defendant rode in the back of an unmarked car and was not handcuffed. At the prosecutor's office facility, defendant was in an interview room which was approximately nine feet by ten and one-half with a table, three chairs and a glass window through which an observation can be made. At 4:45 p.m., Detective Love advised defendant of his Miranda rights. She testified as follows:
I read each right out loud to Luis Caraballo He answered out loud that he understood each right. I then put the form [out] and asked him to read the rights that I have just finished reading out loud to him and if he understood the right to put the answer yes and his initials, which he did. Luis Caraballo put the answer yes and--as well as his initials after each right.
After he was completed with the five, the constitutional rights, I then read aloud the waiver portion of the rights form to Luis Caraballo I asked him if he was willing to speak to us without an attorney, if he could print his name in the waiver form and then also to sign the bottom of the form showing that he understood each of his constitutional rights, which he did sign.
Defendant then provided the police with his exculpatory version of what occurred. While he acknowledged he had sex with J.S., defendant believed she was awake as she was moving her head when performing oral sex on him.
When he concluded his oral statement at 5:20 p.m., defendant agreed to give the police a Buccal sample. After securing defendant's DNA sample, Detective Love told defendant that she did not believe he was being truthful. At this juncture, defendant said he did not want to speak to the police any further. Judge Meehan found that the statement given "... was done freely, voluntarily and the defendant knowingly, intelligently waived his right not to make a statement. He gave a statement and Buccal samples freely and voluntarily."
It is also apparent that defendant had no objection to the Miranda warnings that were given. Indeed, defendant was interested in having the statement introduced at trial because it constituted the entirety of his consensual sex defense.
With regard to whether the statement was voluntary, defendant did not challenge admissibility on the ground of involuntariness even though Judge Meehan found the statement to be voluntary and freely given. Moreover, we discern nothing under the totality of the circumstances that would render this statement involuntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 2047, 36 L.Ed. 2d 854 (1973). Here, the length of the detention, the nature of the interview, the advice of constitutional rights, defendant's age and his education level, the absence of any physical punishment, combine to militate against a finding that the oral statement was involuntary. State v. Miller, 76 N.J. 392, 402 (1978). This brief, midday questioning of defendant where he was apprized of each of his rights and voluntarily signed a waiver form contains none of the indicia of involuntariness to render his statement inadmissible.
Reversed and remanded for a new trial.