On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FJ-18-499-08.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Payne and Waugh.
A.S., a fourteen-year-old girl, was charged with one count of conduct which, if committed by an adult, would constitute first-degree aggravated sexual assault, commission of an act of sexual penetration on a victim who is less that thirteen years of age, N.J.S.A. 2C:14-2a. Following a determination that the four-year-old victim, C.J., was competent to testify, a delinquency hearing, together with a hearing to determine the admissibility of A.S.'s confession, was held in the Family Part. After denying A.S.'s motion to suppress her confession, the judge ruled that A.S. was guilty as charged. She was sentenced to the Juvenile Justice Commission for one year, but the sentence was stayed pending sex offender treatment at Haven Home and completion of two years of probation. A.S., who was found to be subject to Megan's Law, was also prohibited from contact with the victim and from unsupervised contact with children under the age of twelve. Minimum sex offender and other customary fines and penalties were imposed. A.S. has appealed.
On appeal, A.S. raises the following arguments for our consideration:
THE JUVENILE'S STATEMENT WAS TAKEN IN VIOLATION OF HER RIGHTS AGAINST SELF-INCRIMINATION, AND THE SPECIFIC ADDITIONAL RIGHTS AFFORDED TO JUVENILES, NECESSITATING SUPPRESSION AND REVERSAL. U.S. CONSTITUTION, AMENDS V, XIV; N.J. CONST. (1947), ART. 1 PAR. 10.
A. Even Under Standards Applicable to Adults, the Juvenile's Statement Was Taken in Violation of Her Right to Silence.
B. The Questioning Was Particularly Improper In Light of the Special Protections Afforded to Juveniles.
C. Suppression of the Juvenile's Statement Requires Reversal.
A.S. is the adoptive daughter of F.D., with whom A.S. has lived since the age of eleven.*fn1 A.S.'s natural mother is an active substance abuser who abandoned A.S. at the age of nine; the whereabouts of her father are unknown. A.S. and F.D. reside in a duplex residence. F.D.'s daughter, T.B., and the victim, T.B.'s four-year-old son, C.J. (F.D.'s grandson), live in the other half of the home. On November 25, 2007, while A.S. was baby-sitting for C.J., she committed fellatio on the child, paused to remove her retainer, and then continued the act for a total of approximately ten minutes. At its conclusion, A.S. cautioned the child not to tell his mother, but on the following night, after his bath, C.J. did so, telling T.B. that A.S. "was kissing on [his] balls and sucking on [his] tinky."
Upon learning of A.S.'s conduct, T.B. summoned F.D. from next door, and when she had arrived, T.B. asked C.J. to repeat his story. Believing the story to be true, F.D., by then very angry, went back to her house to get A.S., who commenced to cry and to state "I didn't do nothing" even before accusations had been leveled against her. During the next forty minutes, A.S. continued to deny that she had committed a sexual assault on C.J. Nonetheless, T.B. called the police.
On the following morning, in the presence of F.D., T.B. and an aunt, A.S. allegedly confessed to the crime and stated that she did not know why she did it. Thereafter, C.J. was interviewed by a detective with the county prosecutor's office, and later in the day, A.S. was interviewed in the presence of F.D. by Jorge Ramos, a detective in the office's sex crimes unit.
The interview with A.S. was videotaped. However, the visual and sound quality of the videotape is poor, and it is therefore difficult, at times, to discern precisely what was said. The extreme antagonism of F.D. toward A.S. and the reluctance of A.S. to speak are nonetheless clear.
Because, on appeal, A.S. has challenged the admissibility of her confession on various grounds, we describe its circumstances in some detail.*fn2 After a few preliminaries, Ramos commenced the interview by requesting that F.D. read to A.S. her Miranda*fn3 rights, which she did without elaboration, asking after reading each right whether A.S. understood, and receiving a slight nod. There then ensued a lengthy discussion between Ramos and F.D. regarding F.D.'s right to be present for the interview, together with A.S.'s analogous right to her mother's presence, both of which F.D. contended were poorly drafted in a "double-folded" fashion. At the conclusion of the discussion, F.D. asked A.S.: "So what do you want to do?" When no response was received, F.D. then asked: "Do you want to talk to the police or you don't want to talk to em?" Again, A.S. did not immediately respond, but eventually answered: "I don't know."*fn4
To this, F.D. responded: "Well you have to answer it, this is what the papers are for. He has to know, are you gonna talk to him or you're not going to talk to him?" Again there was no response from A.S. As F.D. waited for a reply, she checked off that A.S. had understood each of the Miranda warnings and she signed both the Miranda form and the parental presence form.
Eventually, F.D. asked A.S. if she wanted a lawyer. When asked by A.S. "what it is a lawyer do," F.D. responded: "Suppose to represent you."
After further delay and some inaudible comments, F.D. stated:
Well at some point in time you gonna have to talk. You ain't been saying nothing anyway. And you ain't gon do nothing but lie to him anyway. We already know you did it, what you did. And you get (inaudible) rights.
Without obtaining consent from A.S., F.D. then told Ramos: "You can question her, but I'll be present when you question her." At this point, A.S. signed the waiver form, throwing the pen down after doing so.
Although the waiver had been executed, Ramos sought a further response as to whether A.S. wanted a lawyer. In that connection, the following colloquy took place:
JR: Okay, do you want to have an attorney present while I'm asking questions?
AS: Then what would an attorney do?
JR: Well an attorney would represent you.
AS: So it would talk for me?
AS: Then what would it do?
JR: Well what, well what he would do is he would represent you legally, ...