On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-11-1412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Sabatino and Simonelli.
These back-to-back appeals involve the alleged abuse of A.S. (Andrew)*fn1 by defendants C.S., his father, and T.F., his mother. A grand jury indicted defendants for second-degree conspiracy, N.J.S.A. 2C:5-2 (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b (count four) and fourth-degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j (count five).
A jury acquitted defendants on count one, and acquitted T.F. on counts three and four. The jury convicted defendants of second-degree endangering the welfare of a child (count two); and fourth-degree unlawful possession of a large capacity ammunition magazine (count five). The jury also convicted C.S. of the lesser-included disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a (count three); and third-degree aggravated assault (count four).
After denying C.S.'s motion for a new trial, the trial judge merged count three into count two and sentenced him to a six-year term of imprisonment with a three-year period of parole ineligibility on count two; to a concurrent three-year term of imprisonment with a one-year, six-month period of parole ineligibility on count four; and to a three-month term of imprisonment with no parole on count five. The judge also imposed the appropriate assessment, fine, and penalty.
The trial judge sentenced T.F. to a three-year term of imprisonment with no parole ineligibility on count two; and to a concurrent three-month term of imprisonment with no parole ineligibility on count five. The judge also imposed the appropriate assessments, fine, and penalty.
On appeal, defendants contend that the trial judge improperly charged the jury by not explaining the difference between endangering the welfare of a child and reasonable and excessive corporal punishment, and improperly failed to grant an adjournment to permit them to obtain and review records from the New Jersey Division of Youth and Family Services (DYFS). Defendants also challenge their sentences.
Separately, C.S. contends that the judge erred in failing to suppress his statement to a police officer taken in violation of his Miranda*fn2 rights, or alternatively, that he did not knowingly, intelligently, or voluntarily waive those rights. In a pro se supplemental brief, C.S. contends that:
The process was contaminated by (1) an unlicensed and unprincipled person serving as the prosecuting attorney; and (2) was rendered impossible by the errors of the trial court in (a) denying a motion to adjourn to afford adequate time to defense expert, Cook, and (b) denying a motion to all defendant opportunity to utilize his extensive preparation in psychology to, at least, educate the jury (indirectly by the manner in which he examined the state's soles witness, utilizing his experience as a doctoral level psychologist, with training in interviewing persons with psychological disabilities), all the while familiarizing the jury to the technical terms in the psychological reports and the implications of these terms for the issues before it.
Separately, T.F. contends that the judge erred in failing to charge accomplice liability, in failing to suppress her statements to DYFS taken in violation of her Miranda rights, or alternatively, that the judge improperly redacted the statement. We reject all of defendants' contentions and affirm.
We summarize the facts from the record. C.S. and T.F. married in 1991 but separated in October 2002. They are Andrew's biological parents and the biological parents of Andrew's younger brother, John. On August 16, 2003, Andrew told his older half-brother, Daniel,*fn3 that his C.S. and T.F. abused him; specifically, that they hit him with a belt or a stick when he acted up, made him sleep in the bathtub one or twice because he acted up, and made him crawl one time on all fours with a belt around his neck as a leash. On August 17, 2003, Daniel took Andrew to the Plainsboro Police Department to report the abuse.
According to Officer Scott Seitz, Andrew met with him and advised him in detail of the physical and psychological abuse his parents inflicted beginning at age three.*fn4 Seitz then contacted DYFS investigators Michael Fraser and Barbara Simmons and the Plainsboro Police Department juvenile detective, Steven Stryker to assist in the investigation. During their interview of Andrew, he told them about the abuse.
Seitz telephoned T.F., advised her that Andrew was at the police station and had made abuse allegations, and asked her to come to the police station. T.F. arrived at the station with C.S. Seitz and Stryker then advised C.S. that Andrew had made serious abuse allegations against him. C.S. left the station and later returned with T.F. Before leaving, C.S. asked Stryker about the law in New Jersey pertaining to punishing your child. When C.S. returned to the station, Seitz advised him of his Miranda rights, placed him under arrest for an unrelated outstanding traffic warrant, and placed him in the lock-up area.
Stryker testified that before interviewing C.S. in the lock-up area, he identified himself as a police officer, advised C.S. that he was going to face criminal charges and that the charges were "pretty severe." Stryker then read C.S. his Miranda rights in the presence of Sergeant Joseph Duffy. C.S. acknowledged that he understood and wrote English, and that he signed a Miranda card, indicating that he understood his rights.
Stryker also testified that he did not promise C.S. anything with respect to the interview, that he did not coerce or threaten C.S., that C.S. did not refuse to answer any questions and agreed to talk to him, that C.S. never asked to stop the questioning, and that C.S. never asked for an attorney during questioning. C.S. admitted using "hands-on" punishment with the Andrew, and using a web-type belt, a wooden stick, or a cane.*fn5 However, he denied hitting Andrew hard enough to cause any type of injury, or gagging Andrew to make him stop crying.
After Seitz arrested and removed C.S., Stryker explained to T.F. what was happening. When Stryker attempted to interview T.F., she requested that C.S. be present. After Stryker advised T.F. that this was not possible, T.F. replied that she did not want to speak with the detective without an attorney present. Stryker then said "okay, would you like to proceed with the [DYFS investigators], and... left the room[.]" T.F. agreed to proceed with the DYFS investigators. At this point, no decision had been made to file criminal charges against T.F. Stryker did not advise T.F. of her Miranda rights, and he did not know if Fraser or Simmons did so.
DYFS investigator Fraser indicated that during T.F.'s conversation with him and Simmons, referring to Andrew, T.F. said that "we have not beaten him recently." During a pre-trial conference, the State noted the potential problem with T.F.'s statement under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968), and suggested that the judge redact the statement to read, "I have not beaten him recently."
After hearing testimony, the judge redacted the statement as requested.
C.S. gave a different version of his interaction with the police. He testified that after his arrest he asked five or six times to speak to an attorney, and that after these requests, a police officer*fn6 handed him "a piece of paper with some phraseology on it" and asked him whether he understood it. C.S. told the officer that he understood but wanted an attorney. The officer responded that C.S. had to sign the paper to indicate that he understood the writing on it. C.S. stated that he again requested an attorney.
C.S. also testified that he was able to read the paper and understood his rights before he signed it. He continued that he requested an attorney by name, and had no desire to waive his rights. C.S. denied making any statements regarding Andrew's allegations, and specifically denied stating that he implemented "hands-on" punishment, or used a belt or stick. C.S. stated that two officers continued asking him questions but he continued requesting an attorney until eventually being placed in a holding cell.
DYFS removed Andrew and placed him in a group home. Thereafter, Andrew wrote several notes, indicating his confusion about the case, and that he might have exaggerated to the police. In one note, Andrew said, "I deny everything I said about me and my parents abusing me." In the final note Andrew said, "To whom it may concern, the reason I am telling the truth finally because I realize that what I done is wrong, that I am harming many people. I lied because I wanted to live with my grandparents. I deny everything I said about abuse."
At trial, Andrew testified that the notes were untrue. He explained that he wrote them because he did not want his parents to go to jail or get into trouble, and because he disliked where he lived and wanted to go home to his family. He also denied exaggerating to the police, and he insisted that what he told the police was true and that he was telling the truth at trial.
Andrew also testified that the abuse occurred in Plainsboro when he was three years old and it continued until he was twelve. The majority of the time C.S. hit him but T.F. would sometimes hit him as well. When C.S. hit him with a stick or belt, it would be over ten times across his back. The belt was a thick and black, similar to a weight lifting belt; and the stick was one that is typically used to keep windows open. Andrew continued that C.S. used the belt when he did something "not so bad," and used the stick when he did something "really bad[.]"
Andrew also testified that one time, when he was three years old, C.S. hit him in the nose, causing his face to swell and bleed. When he yelled, C.S. poured water on his face so that he could not open his mouth. Andrew continued that when he started to yell other times, C.S. placed a t-shirt in his mouth. Andrew also testified that twice he had to sleep in the bathtub with only a blanket, once for not taking a shower and once because he "mooned" his brother; and that once C.S. made him crawl around on all fours with a belt around his neck like a leash because "[C.S.] said if I acted like an animal I would be treated like an animal[.]"
Andrew further testified that T.F. hit him with a slipper, and one time hit him in the face with the metal end of a belt. He continued that T.F. was present when C.S. would hit him. Andrew testified that if he acted up or did poorly in school, he had to stand in the corner for a day or two, he would not be allowed to eat until the second day, and he had to use a cup to urinate because he was not allowed to go to the bathroom. Finally, Andrew testified that after being hit his back would swell, that he would have black marks, and that C.S. would not let him go to school the day after being hit.
On cross-examination Andrew admitted telling Dr. Gerald Cook, a forensic psychologist, that he lied all the time when he was younger. He also admitted that during the 2002-2003 school year, the school year following his parents' separation, he "was always getting into trouble" and would lie to try to get out of trouble. Andrew stated that he was not happy moving back to Plainsboro with his mother in 2003 because he would have to help with John. Finally, Andrew told the doctor that he once accused a gym teacher of punching him, and once accused a lunchroom worker of grabbing his shirt and choking him.
We first address defendants' contention that the trial judge denied them the right to a fair trial by denying their request to adjourn the trial for two weeks.
"The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971); see also State v. Bellamy, 329 N.J. Super. 371, 378 (App. Div. 2000). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (citations omitted). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citations omitted). Further, a defendant must demonstrate ...