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State ex rel A.S.

July 29, 2010

STATE OF NEW JERSEY IN THE INTEREST OF A.S.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 409 N.J. Super. 99 (2009).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether, under the totality of the circumstances, A.S., a juvenile, knowingly, voluntarily, and intelligently confessed to conduct that, if committed by an adult, would constitute first-degree aggravated sexual assault.

A.S. was the adoptive daughter of F.D. A.S. and F.D. lived in one-half of a duplex; the other half was inhabited by F.D.'s daughter T.B., and T.B.'s four-year-old son C.J., who was F.D.'s grandson. While A.S. was home with C.J. on the night of November 25, 2007, she allegedly performed fellatio on the boy for a period of approximately ten minutes. Although A.S. told C.J. not to tell anyone about the incident, after his bath the next night around midnight, C.J. told his mother what A.S. had done. T.B. had F.D. come over and T.B. repeated what she heard had happened the previous day. F.D. confronted A.S. Later that night, T.B. contacted the police and at some point during the following day, while still at home, A.S. apparently confessed to the act in the presence of T.B. and F.D., stating that she did not know why she did it.

C.J. and A.S. were interviewed by detectives at the Somerset County Prosecutor's Office. A detective interviewed A.S., with F.D. present. Although the interview was videotaped, a transcript or verbatim record of the tape was not admitted into evidence at trial; however, the actual VHS cassettes, though of poor quality, were introduced into evidence. At the outset of the interview the detective requested that F.D. read to A.S. her Miranda rights, which she did in less than one minute without any clarification. F.D. then read aloud the portion of the form dealing with her rights as a parent and she expressed some concerns. The detective attempted to clarify F.D.'s rights and blamed her confusion on the fact that the form was written by a lawyer. That exchange took almost three minutes.

F.D. and A.S. engaged in a conversation in which A.S., when asked if she wanted an attorney, inquired about an attorney's functions. Both F.D. and the detective explained that the attorney would represent her and, as explained by F.D., the attorney would "make sure your rights are not violated." In addition, A.S. was told that the attorney would not speak for her and that she had to answer questions and answer them truthfully because that would demonstrate that she was a "good person." Throughout, F.D. insisted that A.S. tell the detective what she did. Eventually, more than thirty minutes into the interview, A.S. confessed that she had "sucked [C.J.'s] tinky" for ten minutes and then went to sleep. After A.S. confessed, the interview continued for thirty more minutes. F.D. interjected and asked A.S. questions throughout, chastising her several times. The questions addressed to A.S. were greeted with long periods of silence on her part, some lasting over a minute, causing the detective to say "[we] can't do this all night."

Defense counsel filed a motion to suppress the videotaped interview, and that motion was argued as part of A.S.'s delinquency adjudication. Counsel contended that A.S.'s confession should be suppressed because A.S. understood neither her right to remain silent nor her right to an attorney and that her confession was not freely and voluntarily given. Counsel also argued that F.D. had acted as an interrogator and had unduly pressured A.S. to confess, abdicating her responsibility as a parent to A.S. and instead advancing the interests of her grandson. A.S. testified, acknowledging that she was not yelled at or threatened, and stating that although she was in ninth grade, she only read at a third-grade level. A.S. testified that she really didn't want to answer the questions posed to her, and that was why she remained silent so often during the questioning, but that questions kept coming and that she felt pressured.

The juvenile court denied the motion to suppress the videotaped interview. The court characterized, with understatement, the procedure by which the Miranda warnings were given as "a little unusual" and "probably not the best police practice." Nonetheless, the court was satisfied that A.S. was read and understood her rights. The court then found that A.S. had committed an act that, if performed by an adult, would constitute first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and adjudicated her delinquent. The court noted that there was ample evidence in the record to support its finding whether or not it admitted A.S.'s videotaped statement into evidence.

A.S. appealed and a "troubled" Appellate Division affirmed. The Appellate Division applied the totality of the circumstances test that the Supreme Court annunciated in State v. Presha, 163 N.J. 304 (2000), and determined that "the State has failed to meet its burden of demonstrating beyond a reasonable doubt that A.S.'s confession was knowingly, intelligently and voluntarily given." The Appellate Division found that A.S. did not understand her Miranda rights and that the efforts made to help her understand those rights were not only ineffectual, but actually misinformed her. Additionally, the Appellate Division was concerned by F.D.'s conflict of interest because of her relationship to both A.S. and the victim, her grandson C.J., characterizing F.D.'s role not as a parent, but rather as an "interrogator." In order to avoid such problems in future cases in which the parental figure has a close relationship with both the victim and the accused, the Appellate Division posited that "the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability, a procedure adopted elsewhere." Despite those concerns, the Appellate Division affirmed A.S.'s delinquency adjudication based on the other evidence in the record in light of the trial court's statement that A.S.'s confession was not absolutely necessary to its ruling.

Both parties appealed and the Supreme Court granted the State's petition for certification and A.S.'s cross-petition for certification. The Court also granted the Attorney General of New Jersey and the Office of the Child Advocate of New Jersey status to appear as amici curiae.

HELD: Upon consideration of the totality of the circumstances, A.S.'s confession was not knowingly, intelligently, and voluntarily given. In addition, the confession by far was the most damning piece of evidence against A.S. and thus the Court cannot say that there was no reasonable possibility that its introduction into evidence contributed to the delinquency adjudication, and so, in the particular circumstances presented in this case, the Court is constrained to reverse A.S.'s conviction and remand for new proceedings.

1. The Court begins, as did the Appellate Division, with the decision in Presha, its seminal case addressing the admissibility of juvenile confessions. In order for a juvenile's confession to be admissible into evidence it must satisfy the same standard that applies to adult confessions: that is, it must be made knowingly, intelligently, and voluntarily. The Court looks to the totality of the circumstances in making that determination. In Presha, the Court also noted the increased emphasis being placed on punishment as a rationale underlying the juvenile justice system, as opposed to its traditional rehabilitative purposes. In light of that paradigm shift, the Court instructed courts to consider the parent's role as a "highly significant factor" in the totality of the circumstances analysis used to assess whether a juvenile's confession was knowing, intelligent, and voluntary. However, the mere presence of a parent is insufficient to protect a juvenile's rights, because presence alone cannot be said to provide the buffer between police and the juvenile that the Court was contemplating in its decision in Presha. In order to serve as a buffer, the parent must be acting with the interests of the juvenile in mind. (Pp. 19-22)

2. The factors relevant when making the totality of the circumstances determination include the child's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved, prior experience with the legal system, and the "highly significant factor" of parental involvement. A.S. was fourteen years old at the time of the interrogation. That age put her on the cusp for heightened protections because a fourteen-year-old is still of tender sensibilities and may have great difficulty withstanding the rigors of a police interrogation. Furthermore, although A.S. was in ninth grade at school, she was not intellectually sophisticated. She read at a third-grade level and had a "low-average" I.Q. of 83. In addition, she had no prior experience with the legal system. In light of those facts, the actual efforts employed to inform A.S. of her constitutional rights were woefully inadequate. Indeed, the detective abdicated his responsibility in that regard by having F.D. read A.S. her rights, a procedure which tainted the interview from its outset and must not be utilized in the future. In addition, telling a juvenile who does not understand her rights that an attorney would "make sure your rights aren't violated" is an empty gesture. Moreover, the attempts to inform A.S. of her rights contained actual misinformation. An impartial review of the videotaped interview yields convincing evidence that the "greatest care" was not taken to protect A.S.'s constitutional rights in this case. The Court therefore concludes, upon consideration of the totality of the circumstances, that A.S.'s confession was not knowingly, intelligently, and voluntarily given. (Pp. 22-28)

3. The Court must determine whether the admission of A.S.'s confession into evidence was harmful: that is, whether it was "clearly capable of producing an unjust result." R. 2:10-2. The Appellate Division, although "troubled," affirmed A.S.'s delinquency adjudication in large part due to the juvenile court's assessment that even if the videotaped statement had not been introduced into evidence, the court still would have adjudicated A.S. delinquent. The confession by far was the most damning piece of evidence against A.S. and thus the Court cannot say that there was no reasonable possibility that its introduction into evidence contributed to the delinquency adjudication, and so, in the particular circumstances presented in this case, the Court is constrained to reverse A.S.'s conviction and remand for new proceedings. (Pp. 28-30)

4. Because the Court finds that A.S.'s confession was not voluntarily given under the totality of the circumstances test as described in Presha, its decision does not hinge on whether F.D. had a conflict of interest that rendered her unable to fulfill the parental role contemplated by Presha. The Court, however, declines to embrace a categorical rule that an attorney must be present any time that there is perceived clash in the interests of a parent based on a familial relationship with the victim or another involved in the investigation. Even in cases of such apparent clashing interests, a parent may be able to fulfill the role envisioned in Presha. And in those cases where a parent is truly conflicted, another adult -- not necessarily an attorney -- may be able to fulfill the parental assistance role envisioned by Presha. (Pp. 30-33)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for new proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LaVECCHIA's opinion.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued April 27, 2010

A.S., a fourteen year old with an I.Q. of 83 and who could read only at a third-grade level, was adjudicated delinquent for conduct that, if committed by an adult, would constitute first-degree aggravated sexual assault. On appeal, she challenged the circumstances under which she was provided her constitutional warnings and then was subjected to police interrogation. The Appellate Division found that although A.S.'s adoptive mother was present for the interrogation, the mother's presence did not provide any buffer of protection and assistance to A.S. in the exercise of the juvenile's rights due to the mother's conflicted interest and concern for the victim, her four-year-old biological grandson. The Appellate Division nevertheless held that the admission of A.S.'s confession was harmless due to the trial court's statements about the quantum of other evidence in the record. However, the panel expressed the view that, in the future, when such conflicts of interest occur due to close family relationships among juvenile-offense suspects and victims, legal counsel should be brought in for the juvenile. Based on that pronouncement, the State petitioned for certification, which we granted, and A.S. cross-petitioned, which we also granted.

We hold that that A.S.'s confession was secured under circumstances that, in their totality, rendered her statement involuntary. In State v. Presha, 163 N.J. 304, 315 (2000), we said that a parent should be present, if at all possible, during the interrogation of a juvenile and, further, we said that that presence would be considered a significant factor in an assessment of the totality of the circumstances when determining the voluntariness of a child's confession. We agree with the Appellate Division that A.S.'s confession cannot be safely regarded as a voluntary waiver of her constitutional rights. The police placed A.S.'s mother in the role of their helper from the outset of the interrogation process by making her read the child her rights. The police also failed to correct the mother's later misstatements about those rights, and failed to stop the inquiry when A.S. was making imperfect, child-like efforts to assert her right to silence that were overcome by her mother's badgering of her in the police presence. Under a totality of circumstances analysis, a confession secured by such means must be suppressed. However, with that shared finding we part company with the Appellate Division.

Although the trial court stated that the evidence was sufficient to sustain the delinquency adjudication with or without consideration of A.S.'s statement, the nature of the constitutional deprivation here --- where the adult present to protect the juvenile became a de facto agent of the police --demands a prophylactic remedy. In the limited circumstances presented, there must be a new delinquency hearing, before another judge who will not have been exposed to the tainted statement by A.S. Only by resort to that less-than-desirable remedy can we be assured that the State does not benefit from the inappropriate police practice followed in this matter. We also reject the practice of having a child's parent be responsible for reading to the child his or her constitutional warnings. That practice set A.S.'s interrogation down a wrong and problematic path -- one that was exacerbated by her mother's aggressive interactions with her. Our purpose in establishing in Presha a preference for parental presence for a child facing questioning by police was to assist the child in the exercise of his or her constitutional rights; it was not to provide the police with an assistant.

That said, we see no need to embrace the bright-line, and broad, new legal representation requirement proposed by the appellate panel below. It does not appear practical or necessary always to replace parents with legal counsel in a particular category of circumstances. Rather, we caution police interrogators to use common sense, to remember their duty to ensure that a child being interrogated understands his or her right to terminate an interrogation by exercise of the right to silence and, further, to adhere to the duty to scrupulously enforce that right, even when exercised imperfectly, as a child, understandably, might express such a desire.

I.

A.

A.S. was the adoptive daughter of F.D.*fn1 A.S. and F.D. lived in one-half of a duplex; the other half was inhabited by F.D.'s daughter T.B., and T.B.'s four-year-old son C.J., who was F.D.'s grandson. While A.S. was home with C.J. on the night of November 25, 2007, she allegedly performed fellatio on the boy for a period of approximately ten minutes. Although A.S. told C.J. not to tell anyone about the incident, after his bath the next night around midnight, C.J. told his mother that A.S. was "kissing on my balls and sucking on my tinky."

T.B. had her mother, F.D., come over and T.B. repeated what she heard had happened the previous day. F.D. confronted A.S., who became upset, denied the allegations, and claimed that C.J. had been saying similar things earlier that day and that he had learned it from someone in school. F.D. accused A.S. of lying and said, "I don't believe you. You need to tell the truth."

F.D. grew so angry with A.S. that T.B. felt the need to have a friend present to ensure that there was not an altercation between F.D. and A.S. Later that night, T.B. contacted the police and at some point during the following day, while still at home, A.S. apparently confessed to the act in the presence of T.B. and F.D., stating that she did not know why she did it.

That day, C.J. and A.S. were interviewed by detectives at the Somerset County Prosecutor's Office. A detective interviewed A.S., with F.D. present. Although the interview was videotaped, a transcript or verbatim record of the tape was not admitted into evidence at trial; however, the actual VHS cassettes were introduced into evidence.*fn2 Thus, our recitation of the interview is based on our own transcription of the videotapes, but we must acknowledge that the poor quality of the tapes complicates that task.

At the outset of the interview the detective requested that F.D. read to A.S. her Miranda*fn3 rights. F.D. read the Miranda form in its entirety, without any clarification, and asked A.S. if she understood her rights. A.S. nodded and said "umm hmm." That entire exchange took less than one minute. F.D. then read aloud the portion of the form dealing with her rights as a parent, calling it "double-talk" and a "two-folded question" because of the way that it was worded.*fn4 The detective attempted to clarify F.D.'s rights as a parent, and blamed her confusion on the fact that the form was written by a lawyer. That exchange took almost three minutes. At that point, the following conversation occurred:

F.D.: So what do you want to do?

A.S.: Hmm.

F.D.: Do you want to talk to the police or you don't want to talk to them?

A.S.: Um. I don't know.

F.D.: Hmm?

A.S.: I don't know.

F.D.: You are going to have to answer. This is what the papers are for. He wants to know are you going to talk to him or are you not going to talk to him.

Detective: (Inaudible).

F.D.: Do you want a lawyer?

A.S.: Mmmmmm. What does a lawyer do?

F.D.: Supposed to represent you.

A.S.: Mmhmm.

F.D.: Well, what do you want? Hmm?

A.S.: Hmm?

F.D.: What do you want? Hmm?

A.S.: If I have a lawyer I don't have to talk? Or I do have to talk?

F.D.: Well at some point in time, you going to have to talk. You ain't been sayin' nothing anyway. And you ain't gonna do nothing but lie to him anyway. We already know you did it, what you did. You didn't give him any rights. You can question her but I want to be present. You can question her.

Shortly thereafter, the discussion continued:

Detective: Now we're going to have to be, cause she, uh, she was unclear whether she wanted an attorney present or not. So I ...


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