December 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GIBRIL BANGURA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-04-0531.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2010
Before Judges Wefing, Payne and Koblitz.
Defendant, Gibril Bangura, appeals his conviction for second-degree sexual assault on a thirteen-year-old girl, S.C., N.J.S.A. 2C:14-2c (Count One), third-degree endangering the welfare of S.C., N.J.S.A. 2C:24-4a (Count Two), fourth-degree criminal sexual contact with S.C., N.J.S.A. 2C:14-3b (Count Three), and third-degree endangering the welfare of S.C.'s nine-year-old brother, J.K., N.J.S.A. 2C:24-4a (Count Five). He was found not guilty of second-degree sexual assault on J.K., N.J.S.A. 2C:14-2b (Count Four). Defendant was also found guilty of a violation of probation (VOP) as the result of his criminal sexual acts. A sentence was imposed of seven years on Count One, a concurrent sentence of four years on Count Two, a concurrent sentence of one year on Count Three, and a consecutive sentence of five years on Count Five with a two-andone-half year period of parole ineligibility. Parole supervision for life was imposed, and defendant was found to be subject to Megan's Law. A consecutive sentence of one year was imposed on the VOP. Defendant has appealed his conviction and sentence.
On appeal, defendant raises the following issues through counsel:
DEFENDANT'S STATEMENT TO THE POLICE WAS NOT A KNOWING VOLUNTARY WAIVER OF HIS RIGHT TO REMAIN SILENT AS PROVIDED FOR IN MIRANDA v. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[J.K.'s] HEARSAY STATEMENTS SHOULD HAVE BEEN EXCLUDED.
THE TRIAL COURT ERRED IN NOT SEVERING THE INDICTMENT INTO TWO SEPARATE TRIALS.
THE VERDICT ON COUNT FIVE MUST BE REVERSED BECAUSE IT VIOLATED THE DICTATES OF STATE v. GREY, 147 N.J. 4 (1996).
DEFENDANT'S SENTENCES WERE EXCESSIVE
1. THE SENTENCE ON INDICTMENT NO. 06-04-00531-I WAS EXCESSIVE.
2. THE SENTENCE ON THE VIOLATION OF PROBATION ON A-539-12-03 WAS EXCESSIVE.
3. THE RESTITUTION ORDER VIOLATED N.J.S.A. 2C:44-2(b).
In a pro se brief, defendant additionally argues that endangering the welfare of a child, as set forth in N.J.S.A. 2C:24-4(a), requires that the actor engage in sexual conduct with the knowledge that it would impair or debauch the morals of the child victim and that he did not admit to such knowledge at the time of the offense.
The record discloses that defendant was the neighbor of S.C., age thirteen, and her brother, J.K., age nine. Defendant was twenty-five years of age at the time of the incidents, which occurred in February 2006. Shortly after S.C. and J.K. moved to Plainsboro with their mother, they came in contact with defendant, and soon became friendly with him. During the month of February 2006, defendant fondled S.C.'s breasts and vagina and attempted to penetrate her and, while the girl was at defendant's apartment, he displayed in plain sight the pornographic covers of DVDs and videos and a full-sized, blow-up sex doll named Evelyn. J.K. likewise saw the pornographic DVD and video covers and doll. Additionally, defendant told J.K. in explicit language how to use the sex doll, he demonstrated that use to the boy, he explained sexual reproduction, and he permitted the child to see defendant committing oral sex on the doll.
When, as the result of J.K.'s withdrawal, bedwetting and other disturbing behaviors, as well as his tears when asked about defendant's actions, the children's mother began to suspect that something was amiss, she contacted the police.
J.K. was interviewed and, eventually, told Investigator Paul Miller what had occurred. S.C. did not disclose sexual abuse at the time but did confirm the presence of the sex doll in defendant's apartment.
As the result of J.K.'s statement, defendant was arrested, a consent
search of his apartment was conducted, and the pornographic films in
their cases and sex doll were found. Following Miranda*fn1
warnings and interrogation by Investigator Miller, defendant
confessed to a sexual encounter with S.C. He denied any sexual conduct
in connection with J.K. and the blowup doll.
In a re-interview after defendant's confession, S.C. acknowledged the sexual assault.
At trial, defendant took the stand in his own defense. He stated initially that S.C. and J.K. had each visited the apartment he was sharing with a roommate on three occasions but then testified that they visited every other day. He contended no pornography was ever displayed before them, and no blow-up doll was present. Indeed, according to defendant, he had never seen a blow-up sex doll in his life - although at one point he mentioned the doll by name - and he did not know that his roommate possessed pornography. Defendant testified that S.C., not he, initiated sexual activity between the two of them, but that he resisted because of her age. He denied ever touching S.C. in a private area. Throughout defendant's testimony, he maintained that he could not be guilty of a crime because a DNA test conducted on semen found on the blow-up doll matched that of his roommate, not him.
On appeal, defendant argues that his confession was not knowing or voluntary, principally because, after defendant stated that he had a mental problem, Investigator Miller responded that he would try to get him help.*fn2 Thus, he claims to have been psychologically coerced into confessing. The argument raised by defendant on appeal was presented to and rejected by the trial court after a Miranda hearing, conducted on August 17, 2007. There, Investigator Miller gave the following description of defendant's interrogation:
A . . . At some point I believe the question was why he would befriend a young boy and young girl.
Q And who posed that question?
A I believe I did. And he indicated that he has - something is not right in his head, that he has mental problems. And I told him that, you know, if he had mental problems, we would try to get him help for it through some type of treatment.
Q What mental problems were you referring to?
A Whatever mental problems he had.
Q Did it involve him associating with young kids?
Q And that was the extent of that promise?
A And just that I, you know, wanted him to tell the truth.
The subject was explored further on cross examination, resulting in the following questions and answers:
Q [A]s the tape reveals and as revealed during direct, you were . . . aware that . . . there were some . . . potential issues with mental health regarding Mr. Bangura?
A Issue that he rose [sic], yes.
Q Yes. In fact, you promised to get Mr. Bangura mental health assistance if he made a statement, is that correct?
A It wasn't exactly like that. We promised to . . . try to get him mental help. Not necessarily for a statement, for this. For the truth.
It was also established at the Miranda hearing that defendant was taken into custody at some point between 9:00 and 10:00 p.m., but was not immediately interrogated. Miranda warnings were administered at 12:42 a.m., a pre-interview ensued, and defendant commenced his formal statement at 2:35 a.m. Defendant's pre-sentence investigation report discloses that, at the time of his arrest, defendant, an unemployed high school graduate, had been found guilty in separate proceedings in municipal court of loitering and drinking in public, and he had received a conditional discharge on charges of possession of marijuana and of drug paraphernalia. He had been found guilty in Superior Court of fourth-degree trespassing and resisting arrest, and was serving a two-year probationary sentence on that charge when arrested in this matter.
In claiming that he was psychologically coerced into confessing, defendant cites to the Supreme Court's decision in State v. Miller, 76 N.J. 392 (1978), a decision in which a majority of the Court found an offer of psychological assistance to the defendant to have been non-coercive in the circumstances presented. Additionally, defendant relies upon the dissent by Judge Gibbons to a majority's decision by the Third Circuit Court of Appeals that denied Miller's petition for habeas corpus and found that his confession was not coerced. Miller v. Fenton, 796 F.2d 598 (3d Cir.), cert. denied, sub nom. Miller v. Neubert, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986).
We reject defendant's arguments, noting that, in both decisions in the Miller matter, the defendant's confession was deemed voluntary and finding that the circumstances of the interrogation in Miller, as set forth in the Supreme Court's and Third Circuit's opinions, were far more coercive than those existing in the present matter.
In Miller, defendant was accused of repeatedly stabbing a female victim and then causing her death by severing her windpipe and jugular vein. At the time of his interrogation, defendant was on parole from a conviction for carnal abuse and had been arrested one month before the present incident on another morals charge. Miller, supra, 76 N.J. at 397. During the course of his interrogation, the interrogating officer, State Trooper Boyce, developed as a major theme, encompassing many questions, that whoever had committed such a heinous crime had mental problems and was desperately in need of psychological treatment, which Boyce assured defendant the perpetrator would receive. Miller, supra, 796 F.2d at 602. Thus, Boyce told defendant on multiple occasions that whoever the perpetrator was, "They don't need punishment. They need help, good medical help . . . to rectify their problem. Putting them in, in a prison isn't going to solve it, is it?" Ibid. And, focusing on defendant, Boyce asserted more than once that defendant was "not responsible," ibid., and "not a criminal," id. at 603; rather, he needed help. Ibid.
As both the Supreme Court and the Third Circuit recognized, an involuntary confession may result from psychological, as well as physical, coercion. Miller, supra, 76 N.J. at 402; 796 F.2d at 603. Further, the two courts both recognized that the voluntariness of a confession must be measured following an examination of the totality of the particular facts of the matter. Miller, supra, 76 N.J. at 402 (naming as some of the relevant factors "the suspect'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") (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)); Miller, supra, 796 F.2d at 604 (citing Schneckloth, supra).
In reaching its decision in the matter, the Supreme Court framed the issue as follows: "Does the officer have the right to tell the suspect that he must help himself first by telling the truth and then the officer will do what he can to help the suspect with his problem?" Miller, supra, 76 N.J. at 404. While conceding that such a police technique "moves into a shadowy area and if carried to excess in time and persistence, can cross that intangible line and become improper," ibid., the Court concluded that it did not in the one-hour interrogation that the Court was examining. Ibid. The Court held:
It is evident from the record in this case that the officer's remarks had no appreciable impact on defendant and certainly did not contribute to an "overbearing of his will." Defendant, as previously noted, had been arrested on previous occasions and had a prior conviction for which he had been imprisoned.
He was in no way deluded or misled into believing that the state trooper was acting in any capacity other than as an interrogating police officer in the investigation of a serious crime. Miller was fully aware that a murder had been committed which was the subject of the investigation and that he was a prime suspect in the killing. He well knew that should the investigation prove successful and were he to confess he would be charged with the commission of a crime. He was certainly cognizant of the fact that he would be handled through the criminal judicial system and, if found guilty, he would be punished accordingly. There is no basis for concluding that Miller did not have this complete understanding of his situation throughout his interrogation and confession. [Ibid.]
Similarly, after considering Miller's background, the length of his interrogation, Officer Boyce's friendly approach, a lie by Boyce about the time of death of the victim, and his promises to Miller, 796 F.2d at 606-11, the Third Circuit determined that, although "Boyce's promises of psychiatric help and statements that Miller was 'not a criminal,' in combination with his friendly manner, may have been a form of psychological trickery, we do not believe that these elements of the interrogation affected the voluntariness of the confession." Id. at 612.
Turning to the present matter, we note that defendant may not have had as serious a criminal record as did Miller. Nonetheless, he was not unfamiliar with the criminal justice system, had been subject to a criminal proceeding in Superior Court, and had served jail time. Defendant, like Miller, was given his Miranda warnings, which clearly advised him of the consequences of confessing, and he demonstrated no inability to comprehend what he had been told. Although defendant was seven years younger than Miller, he had more education, having graduated from high school, whereas Miller had not.
Of greatest significance, however, is the difference between the interrogations in the two matters. In Miller, defendant was subjected to a lengthy interrogation focusing on his psychological condition, he was specifically offered treatment, and it was suggested that he might avoid criminal prosecution by telling the truth and then submitting to psychiatric care. In contrast, in the present case, it was defendant who raised the subject of his mental condition, to which the interrogating officer responded only that he would "try" to get defendant help. The officer did not utilize defendant's claimed mental condition as a means to extract a confession, he did not explicitly promise treatment, and he did not suggest that criminal prosecution could be avoided if defendant confessed and his mental state were recognized. Thus, while noting that the factual circumstances of the interrogation in Miller were deemed insufficient to render his confession involuntary, we regard the circumstances of the present matter as offering far fewer grounds than existed in Miller for a finding that defendant's will was overborne. The "shadowy area" of improper conduct alluded to in Miller is not present in this case. Nor was there any other evidence of police misconduct that would render the confession inadmissible at trial. We thus reject defendant's first argument.
During the investigation of the matter, J.K.'s mother stated that toward the end of February 2006, she began to notice behavioral changes in her son, J.K. Among other things, he commenced to wet his bed and to wash his own clothes. On the day after President's Day 2006, she learned that J.K. had not attended school, and that he had spent the day at defendant's apartment. She assumed that J.K. was playing with defendant's children, but when she learned that he had none, she became alarmed and asked J.K. what he was doing at defendant's residence. J.K. said nothing, but only cried. Similarly, he only cried when his mother told him that little boys, just like little girls, could be raped. Suspicious, she called 9-1-1.
Prior to trial, the prosecutor informed defense counsel that she would be eliciting this testimony from the mother. Additionally, she would be eliciting testimony from J.K.'s sister, S.C., that J.K. had told her that defendant and his roommate were nasty because they had a blow-up doll, and she planned to show to the jury J.K.'s videotaped interview by Investigator Miller. A Rule 104(a) hearing was held to determine the admissibility of the three pieces of evidence, at which the mother, S.C. and Investigator Miller testified. Following the hearing, the prosecutor stipulated to her intention to call J.K. as a witness at trial, and she in fact did so. Defense counsel objected to the evidence proffered through the testimony of the mother and S.C., characterizing it as inadmissible hearsay. She did not object on the record to the introduction of J.K.'s interview.
Following the hearing, the trial judge determined that testimony by J.K.'s mother that J.K. cried when asked what he had done while with defendant was not hearsay, because it did not constitute a statement offered for its truth. See N.J.R.E. 801(c). The judge therefore rejected defense counsel's hearsay objection to the admissibility of the evidence. In contrast to the evidence of J.K.'s crying, the judge found that his statement to his sister that defendant and his roommate were nasty because they had the blow-up doll did constitute hearsay, but that the statement was admissible pursuant to N.J.R.E. 803(c)(27). The judge found that the statement had been made by J.K. to S.C. as a spontaneous description of what he had seen when S.C. came to pick up her brother at defendant's apartment and that it was both relevant to the charge of endangering the welfare of a minor and trustworthy. The judge then addressed the videotape of the interview of J.K. by Investigator Miller and, after finding the child to have been mentally alert, his use of sexual terminology unexpected in a child of his age, and his recitation of the events matter-of-fact and non-coerced, the judge held J.K.'s statements were reliable, trustworthy and admissible pursuant to N.J.R.E. 803(c)(27).
On appeal, defendant claims that the "statement" by J.K. to the mother lacked any indicia of spontaneity, and it therefore was not admissible under N.J.R.E. 803(c)(27). Defendant does not address the fact that the conduct was non-verbal, it was not introduced for its truth, and was not introduced as a statement by a child relating to a sexual offense. We therefore reject defendant's position. We similarly reject defendant's argument that J.K.'s statement to his sister was not spontaneous, finding that argument to lack support in the record.
As a final matter, we reject defendant's position that the interview of J.K. by Investigator Miller was "fraught with over reaching conduct" because Miller "consistently told J.K. he was looking for the 'truth' when J.K. would not implicate Defendant" and only did so after he "caught on." Defendant does not cite any precedent to support his claim that frequent requests that an interviewee give a true statement, standing alone, taint the interview process.
In this respect, we distinguish the present matter from State v. D.G., 157 N.J. 112 (1999), in which the child victim had allegedly confessed to her aunt that her father had sexually assaulted her and the interviewer knew of that confession, but was unable to elicit a similar statement from the victim, despite the fact that the victim told the interviewer that her aunt had promised her a surprise if she told the truth. As a consequence, the interviewer stopped the interview for seven minutes, during which time both the aunt and the interviewer spoke to the victim off the record and the aunt, among other things, instructed the victim to tell the truth. It was only then that she described her father's conduct to the interviewer. Id. at 117-18, 131-32. In those circumstances, the Court held that the statements made by the victim after the break in the interview were not trustworthy. Id. at 133-34.
In contrast, in the present matter, Investigator Miller had no preconceived notion of what had occurred prior to the commencement of the interview, since J.K. had not disclosed anything to his mother. No reward for telling the truth was offered, and no interference by a parent or relative with the interview process occurred. The interview was not confrontational, and Investigator Miller's questions were not leading in nature. Although his questioning was persistent, we find that persistence was warranted, given J.K.'s inconsistent utterances and very gradual disclosure of what had taken place. In short, we find no basis for concluding that the trial judge erred, let alone committed plain error, in admitting J.K.'s statement. Further, we do not find introduction of the statement to have constituted bolstering, particularly since J.K.'s statements to Investigator Miller, while consistent with his trial testimony, provided additional details as to what had occurred.
Defendant next asserts that the trial judge erred in denying his motion to sever claims arising from his contact with S.C. from those arising from his contact with J.K. However, defendant's counsel did not bring the motion until the jury had been sworn and after it had been told that two victims were involved in the prosecution. Indeed, defense counsel conceded that the motion should have been brought "like two years ago." Further, defendant's conduct with the two children was intertwined and his acts with respect to each provided evidence of a common scheme or plan. See N.J.R.E. 404(b). Severance would have required considerable duplication of evidence. In these circumstances, the judge did not abuse her discretion in denying defendant's motion. State v. Morton, 155 N.J. 383, 451 (1998); State v. Urcinoli, 321 N.J. Super. 519, 541 (App. Div.), certif. denied, 162 N.J. 132 (1999); R. 3:7-6 (permitting joinder of offenses if they "are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.").
Defendant also argues that the jury's acquittal on the charge of sexual assault on J.K. was fatally inconsistent with its determination of guilt on the charge of J.K.'s moral endangerment. We disagree. In support of its claim that defendant endangered the morals of J.K., the State introduced evidence that defendant exposed him to the pornographic pictures found on the DVD covers strewn throughout the apartment and to the blow-up doll. In support of its claim that defendant committed a sexual assault on J.K., the State argued, in accordance with N.J.S.A. 2C:14-2b (providing that an actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than thirteen) and N.J.S.A. 2C:14-1d (defining sexual contact to include sexual contact by the actor with himself in the presence of the victim), that defendant engaged in sexual contact with himself in J.K.'s presence when he simulated sex with the blow-up doll while J.K. was watching. The prosecutor thus stated in her closing argument after discussing the claims involving S.C.:
Mr. Bangura is charged with sexual assault and endangering the welfare of a child also for the acts that he committed with [J.K.] Now, sexual assault, it's . . . a different theory I really should say than what he's charged with concerning that happened with [S.C.] This sexual assault is for committing an act of sexual contact with a child under the age of 13 when [defendant] is at least four years older.
. . . It's committing an act of sexual contact with himself in view of a nine year old. And obviously the contact is simulating the sex with the doll, pulling his pants down and underneath a blanket having sex with that doll.
These children were endangered. They were exposed to this doll. They were exposed to this pornography. . . . This pornography is all over the place.
Our review of the trial judge's jury instructions discloses them to be consistent with the State's theories of liability. In connection with the charge of endangering the morals of a minor, the judge instructed the jury that it must find beyond a reasonable doubt that defendant knowingly engaged in sexual conduct "knowing that it would impair or debauch the morals of the child"*fn3 regardless of whether it actually impaired or debauched J.K.'s morals. In connection with the charge of sexual assault on J.K., the judge charged that the jury must find that defendant committed an act of sexual contact with J.K., and that act of sexual contact consisted of "using the blow up doll to sexually gratify himself in view of [J.K.], whom the defendant knew to be present."
As a consequence, the jury's verdict was not inconsistent, because its finding that defendant was guilty of endangering the morals of J.K. was premised on facts different from those supporting the charge of sexual assault on J.K., as to which the jury found defendant not guilty.
As a final matter, defendant challenges as excessive his sentence of seven years for the second-degree sexual assault on S.C., his consecutive sentence of five years with a two and one-half year period of parole ineligibility for third-degree endangering the morals of J.K. and his consecutive one-year sentence for violation of probation. In sentencing on the crimes committed against S.C. and J.K., the trial judge found aggravating factors one and two, chiefly with respect to J.K. who manifested severe behavioral changes following the incidents at issue, and aggravating factors three and nine. The latter two factors were premised on defendant's prior record, his denial of responsibility for the crimes against S.C. and J.K., and the need to deter defendant and others from committing crimes against child victims. See N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense), (2) (the gravity and seriousness of harm inflicted on the victim), (3) (the risk of reoffense), and (9) (the need for deterrence). In connection with imposition of the one-year consecutive sentence for the VOP, the judge noted that the present violation was defendant's second, the first having occurred on January 24, 2005. In setting the sentence, the judge determined that aggravating factors three and nine, found at the time of the initial sentencing, remained applicable; the judge eliminated mitigating factor ten. See N.J.S.A. 2C:44-1b(10) (favorable response to probationary treatment).
Following a careful review of the sentences imposed, we are satisfied that they were neither excessive nor unduly punitive and did not constitute an abuse of the judge's sentencing discretion. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984). The sentence imposed for crimes committed against S.C. was appropriately set at the middle of the sentencing range for a second-degree crime. Similarly, the sentence for the VOP was mid-range for a fourth-degree crime. Although the sentence imposed for crimes committed against J.K. was at the top of the third-degree range, we find that sentence to have been justified in light of the severe effect of defendant's crime upon his youthful victim. State v. Carey, 168 N.J. 413, 425-26 (2001).
Further, in light of the fact that there were two victims, and the crimes committed against each were different in nature and occurred at different times, we find no error in the judge's determination to impose consecutive sentences for the crimes committed against S.C. and J.K. State v. Molina, 168 N.J. 436, 442 (2001); Carey, supra, 168 N.J. at 429-30; State v. Ghertler, 114 N.J. 383, 390-92 (1989); State v. Yarbough, 100 N.J. 627, 643, cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Our review of the sentencing transcript discloses that the judge gave no reason for the imposition of a consecutive term for the VOP. Although a presumption of consecutive terms has been established by N.J.S.A. 2C:44-5f(3), nonetheless, the judge was required to consider the factors set forth in Yarbough, supra, 100 N.J. at 643-44, in determining whether this sentence should be imposed consecutively or concurrently. State v. Sutton, 132 N.J. 471, 484-85 (1993). We remand to permit that analysis to occur. At the same time, a hearing can be held to establish an evidentiary basis for the judge's requirement that defendant pay restitution of $3,553.04 to the mother of the victims and defendant's foreseeable ability to pay. See N.J.S.A. 2C:44-2; State v. Martinez, 392 N.J. Super. 307, 319 (App. Div. 2007).
Affirmed in part; reversed in part and remanded for resentencing as it relates to defendant's violation of probation and the requirement of restitution.