On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-1061.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 20, 2010 - Decided
Before Judges R. B. Coleman and C. L. Miniman.
Defendant Christino Aquino appeals from a final judgment of conviction of one count of endangering the welfare of a child and one count of criminal sexual contact. He argues that (1) his custodial statement should have been suppressed because the State failed to prove that he voluntarily and knowingly waived his Miranda rights, and (2) that the trial court's consideration of Aquino's demeanor in its findings denied him a fair trial under both the New Jersey and United States Constitutions. Based upon our careful review of the record and applicable law, we are satisfied that neither of the arguments raised by the defendant is sufficiently meritorious to warrant a reversal.
On March 28, 2006, a Camden County Grand Jury returned Indictment No. 07-03-1061 charging defendant with third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4 (count one); fourth-degree criminal sexual conduct, in violation of N.J.S.A. 2C:14-3b (count two); and fourth-degree criminal sexual contact by attempting to have a child touch an intimate part of defendant's body, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3b (count three).
On August 31, 2006, defendant appeared before Judge Louise Direnzo Donaldson, for a Miranda hearing, based on defendant's motion to suppress his post-arrest custodial statement. On September 6, 2006, Judge Donaldson denied the motion and scheduled the matter for trial.
Defendant waived a trial by jury, and on January 23, 2008, defendant appeared before Judge John T. Kelley for a bench trial, at the conclusion of which the court found defendant guilty of count one, endangering the welfare of a child and count two, criminal sexual conduct. The court determined that the State failed to meet its burden of proof as to count three, criminal sexual contact. On May 2, 2008, defendant appeared before Judge Kelley for sentencing. The judge merged count two into count one, gave credit for seven days served, and sentenced defendant to parole supervision for life, pursuant to N.J.S.A. 2C:43-2. All mandatory fees and penalties were imposed. This appeal ensued.*fn1
The relevant facts are as follows: On August 31, 2005, Investigator Janene Bahr of the Camden County Prosecutor's Office, Child Abuse Unit, received an assignment from the Grand Jury Unit directing that she investigate a possible sexual assault of G.F., a young female, age thirteen. That same date, Bahr interviewed G.F's mother and father. Based on the information collected from these interviews, warrants were issued against defendant. G.F.'s father signed the warrants on behalf of his daughter, and on September 3, 2005, the Cherry Hill Police Department arrested defendant and transported him to the Cherry Hill police station, where he was placed in an interview room.
Defendant is blind and speaks Spanish. He does not speak English. Sergeant Aida Marcial of the Camden County Prosecutor's Office, who speaks fluent Spanish, was called by Bahr on the day of defendant's arrest to interpret during questioning. Marcial testified she left her home around 2:30 p.m., arriving at the police station at approximately 3:00 p.m. Aquino had been taken into custody at about 1:30 p.m. and, thus, was in custody without an interpreter for approximately one and one-half hours.
Bahr briefed Marcial on the circumstances of the case, after which Bahr introduced Marcial to defendant. Marcial explained to defendant that she spoke Spanish and intended to interpret the circumstances involving his arrest. She started the conversation by asking preliminary biographical information for around twenty to twenty-five minutes in an un-taped pre-interview. Marcial then presented defendant with the Spanish language Miranda card which she read to him in Spanish line by line and waited for defendant to respond. Marcial testified that for each and every line, defendant responded that he understood. Marcial then inquired whether defendant wished to waive his Miranda rights, and he replied "yes." Marcial explained that since he is blind, she placed his hand on the Miranda card and guided his hand where he needed to sign to waive his rights. Defendant signed the card at 3:25 p.m.
After defendant waived his rights, he and Marcial spoke about the incident before taping. Initially, defendant told Marcial that in August, he played hide-and-go-seek with his girlfriend's niece and his daughter at his home in Cherry Hill. He admitted he hugged G.F., then kissed her. He further admitted that he allowed G.F. to touch his penis and that he touched G.F.'s breast.
Marcial testified that after the initial interview, she explained to defendant that there was a tape recorder to record his statements. Marcial again informed defendant of his Miranda rights and defendant again waived them. Defendant's statement was recorded commencing at 4:18 p.m. and concluding at 4:35 p.m. Afterwards, defendant listened to a portion of the tape to confirm that it contained his words and then he signed the actual tape for identification purposes.
Defendant did not testify during the Miranda hearing, and he did not present any evidence. The motion judge reviewed the evidence presented through the testimony of Marcial, and she denied defendant's motion to suppress. The judge found that defendant "made a statement, I believe, freely, after having been given his appropriate Miranda warnings, and I don't think anything was improperly done. I think the Sergeant [Marcial] followed exactly what she was supposed to do."
At the bench trial on January 23, 2008, during the State's case-in-chief, the State presented testimony from Bahr, Marcial, G.F. and G.F.'s mother, M.M. The State also played the tape recording of defendant's statement for the court. Because the tape recording was almost entirely in Spanish, an English language transcription of the recorded statement was also verified and admitted into evidence.
Defendant's tape recorded post-Miranda statement to Bahr and Marcial disclosed that he was playing hide and seek with his niece and daughter, that he and G.F. bumped into each other and then hugged. He stated they kissed and G.F. put her tongue inside his mouth, that he placed his hand on top of her blouse on her breast, and then underneath her blouse. He went on to disclose that G.F. grabbed his penis inside of his pants with one of her hands. Defendant also revealed that he told G.F. not to tell anybody since "she also took part in it . . . ."
G.F. testified that she was playing hide and seek with her uncle and her cousin, and while her cousin was counting from the kitchen, she went to hide in the cousin's room. G.F. explained that while in the room, it was dark and that defendant "started to do stuff that I didn't know." She said he told her to take her tongue out, and she did; he started touching her breasts; opened his pants and took out his "balls" and told her to touch it. G.F. stated that when defendant stopped what he was doing he told her not to tell anyone.
G.F.'s mother, M.M. testified that in August 2005, she noticed a change in G.F.'s behavior and "started suspecting that something happened, so I asked her what happened, if something happened." According to M.M., her daughter told her that during a game of hide and seek, defendant had her up against the wall, started touching her, and asked her to touch his genitals.
After considering the trial testimony and the recorded and documentary evidence, including the English language transcript of defendant's tape-recorded statement, the trial judge determined that the State had established beyond a reasonable doubt that the victim was under sixteen years of age, defendant knowingly engaged in sexual conduct with the victim, and defendant engaged in this conduct knowing it would impair or debauch her morals. As to count two, the court found that the State met its burden that defendant did touch G.F., G.F. was at least thirteen-years old but less than sixteen, and defendant acted knowingly. The court determined that the State did not meet its burden of proof as to count three, and accordingly, found defendant not guilty on that charge.
Defendant now appeals the determinations made below and raises two points of argument in his appellate brief:
POINT I: THE DEFENDANT'S CUSTODIAL STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO PROVE THAT HE VOLUNTARILY AND KNOWINGLY WAIVED HIS MIRANDA RIGHTS THEREFORE ESTABLISHING THAT HIS STATEMENTS WERE VOLUNTARY. U.S. CONST. AMENDS. V, XIV.
POINT II: AS DEFENDANT DID NOT TESTIFY, THE TRIAL JUDGE'S CONSIDERATION OF HIS DEMEANOR, DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART. I & 1, 9, 10.
We shall consider each argument in turn.
First, we acknowledge the well-settled standards governing the use of statements elicited from persons in custody. Custodial interrogatories by law enforcement officers are deemed inherently coercive, automatically triggering the privilege against self-incrimination and requiring that Miranda warnings be given. Miranda v. Arizona, 384 U.S. 436, 444-45, 467-79, 86 S. Ct. 1602, 1612, 1658-60, 16 L. Ed. 2d 694, 706-07, 719-26 (1966); State v. P.Z., 152 N.J. 86, 102 (1997). For statements made to the police in custodial interrogations to be admissible, the State must prove beyond a reasonable doubt that the defendant waived his right against self-incrimination and that his decision to do so was knowing, intelligent, and voluntary in light of all circumstances. State v. A.G.D., 178 N.J. 56, 67 (2003); State v. Presha, 163 N.J. 304, 313 (2000); State v. Timmendeguas, 161 N.J. 515, 613 (1999), certif. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Reed, 133 N.J. 237, 250-51 (1993). In determining the voluntariness of a defendant's statement, courts consider whether the statement was "'the product of an essentially free and unconstrained choice by its maker,' in which case the statement may be used against the defendant, or whether the defendant's 'will has been overborne and his capacity for self-determination critically impaired.'" P.Z., supra, 152 N.J. at ...