February 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEPHEN LAMONT SCOTT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-02-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Koblitz and Newman.
After a previous trial resulted in a hung jury, defendant Stephen Lamont Scott was convicted at his second jury trial of second-degree sexual assault upon a nine-year-old girl, N.J.S.A. 2C:14-2b (count one); third-degree burglary into the home to commit the assault, N.J.S.A. 2C:18-2 (count two); and third-degree endangering the welfare of the same child, N.J.S.A. 2C:24-4a (count three). Defendant did not testify at trial and his conviction rested in part on a videotaped confession made during a police interview, which was shown to the jury in its entirety. Defendant was sentenced to six years imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the sexual assault charge and to separate concurrent four-year terms on counts two and three. Defendant argues on appeal that the court erred in failing to: suppress that portion of the confession that took place after he asked to call "his people," excise that portion of defendant's statement relating to his correspondence with another child, grant bail pending appeal and impose a lesser sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Both the victim and her mother testified at trial. Defendant, who was twenty-five-years-old, was staying with the victim, her mother, her younger sister and other members of her family when this incident occurred. On the night of the incident, the victim's mother woke up in the middle of the night, went to her daughters' bedroom, turned on the light and noticed defendant crouched down next to the victim's bed. She turned off the light, and surreptitiously watched defendant leave the room in the dark, exit the house through the back door and come around back to the living room where he was sleeping on the couch. That night the mother questioned both her daughters; the younger one said nothing happened and the victim said she did not know what happened because she was asleep. The mother told her daughters to go back to sleep and lock the bedroom door.
The next morning the younger child told her mother that defendant had entered through the bedroom window after the mother went back to sleep and the girls locked the bedroom door. At that time, the mother noticed the window was open and a bucket was turned upside down outside the window. That morning the victim indicated defendant had "touched her butt."
The mother and her brother confronted defendant, who denied the accusation. The police were called and interviewed the mother, the two children and defendant. Defendant initially denied all involvement. Eventually he admitted "play wrestling" with the victim and her sister. The police showed defendant a suggestive letter he had written to a twelve-year-old child. They read to him a line from his letter stating, "these thoughts can't happen because you are like a sister to me."*fn1 After being shown the letter, defendant asked if he was going to be arrested. When the officer responded affirmatively, defendant asked if he could call his "people." The officer said he could call later and continued questioning him.
After being confronted with the letter and refused an immediate phone call to his "people," defendant finally admitted that he purposely touched the victim's privates and her buttocks on top of her clothing in a sexual nature and that it aroused him. Defendant admitted to touching her buttocks "a couple times but none umm past twenty, none that close to twenty, probably like I said, like five or eight times," when they were playing. He said that "most of all of it what happened in the bedroom," and it happened seven times. He admitted entering her bedroom through the window for that purpose. At trial, the jury viewed the entire sixty-five minute video of defendant's interrogation. The victim testified that defendant touched her buttocks the night he climbed into her bedroom through the window. She also testified that "[a] couple days before [he] climbed in the bedroom window, [defendant] had put his private into [her] butt."
Although defendant did not testify at trial, defendant's mother testified that defendant was living with his fianceee at the time of trial. She testified that defendant was learning disabled, classified at school as "perceptionally impaired" and very immature for his age group.
On appeal, defendant raises the following arguments:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO SUPPRESS THE PORTION OF HIS STATEMENT MADE AFTER DEFENDANT REQUESTED THAT HE BE PERMITTED TO MAKE A TELEPHONE CALL.
POINT II THE TRIAL COURT ERRED IN FAILING TO EXCISE ANY REFERENCE IN DEFENDANT'S STATEMENT OF CORRESPONDENCE BETWEEN DEFENDANT AND ANOTHER JUVENILE.
POINT III THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR BAIL PENDING APPEAL.
POINT IV THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF SEXUAL ASSAULT, BURGLARY, AND ENDANGERING THE WELFARE OF A CHILD WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
Defendant contends in Point I of his brief that the trial court erred in denying his request to suppress his statements made after he asked the officer if he could make a phone call to his "people." Defendant argues that the denial of his request to make a telephone call, "presumably for legal advice clearly violated Miranda." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966).
The New Jersey Supreme Court has held that "[a]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal citations and quotation marks omitted). An appellate court must give deference to a trial court's findings that "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 244 (citation and internal quotation marks omitted).
A reviewing court, however, owes no deference to the trial court in deciding matters of law. State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
During a custodial interrogation, law enforcement must warn a suspect (1) of his right to remain silent, (2) that any statement he makes may be used against him, (3) that he has a right to an attorney, and (4) that if he cannot afford an attorney, one will be provided to him. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. A defendant's waiver of Miranda rights must be made voluntarily, knowingly and intelligently. State v. Bey, 112 N.J. 123, 134 (1988). In determining whether a confession is voluntary, courts consider the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. State v. Knight, 183 N.J. 449, 461 (2005) Bey, supra, 112 N.J. at 134-35. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J. at 135, the defendant's "previous encounters with law enforcement[,] and the period of time between [the] administration of the [Miranda] warnings and the volunteered statement." Knight, supra, 183 N.J. at 463 (last alteration in original) (internal citation and quotation marks omitted).
A suspect may assert his Fifth Amendment right to counsel or right to remain silent at any time prior to or during questioning. Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. If a defendant invokes either one of these rights the police interrogation must cease. Ibid. "Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination." Bey, supra, 112 N.J. at 136. Police, however, "are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." Id. at 136-37. Moreover, the assertion must be considered within the context of the entire encounter. State v. Martini, 131 N.J. 176, 231-32 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995). Additionally, a defendant's request for a break in the interrogation is not necessarily an assertion of the right to remain silent. State v. Roman, 382 N.J. Super. 44, 66 (App. Div. 2005) (holding that defendant's request to speak with his father during police questioning did not amount to an invocation of his right to remain silent).
The right to counsel is so fundamental that statements by a defendant that could be construed as a request for counsel should be interpreted liberally in favor of the defendant. State v. Cardona, 268 N.J. Super. 38, 44-45 (App. Div. 1993) (citing State v. Wright, 97 N.J. 113 (1984)). The following statements have been deemed ambiguous requests for counsel and thus have been held to bar any further interrogation:
"I won't sign any more deeds without a lawyer present" Wright, supra, 97 N.J. at 113; "We have to put in the record that this statement had to stand the approval of the attorney before we can submit it as evidence" State v. Dickens, 192 N.J. Super. 290, (App. Div. 1983), certif. denied, 97 N.J. 697 (1984)); "I would like to wait for legal counsel after taking [sic], I would like him to read the statement before I answer" (State v. Fussell, 174 N.J. Super. 14 (App. Div. 1980)). In State v. Elmore, 205 N.J. Super. 373 (App. Div. 1985), this court ruled that there should have been no interrogation of the defendant after the police overheard her tell her mother over the telephone that she was being denied an attorney. [Cardona, supra, 268 N.J. Super. 38, 45 (App. Div. 1993).]
Defendant was given his Miranda rights and waived them both orally and in writing. After defendant admitted that he may have touched the victim inappropriately while playing with her and following questioning about a letter he wrote to a twelve-year-old girl, defendant asked if he was going to be arrested. When the police answered affirmatively, he asked if he could call his "people." Defendant argues that he invoked his right to counsel by requesting to make a phone call to his "people," and thus the detectives should have ceased questioning him at that point. Defendant argues that any statements made after his request were involuntary and should be suppressed.
The trial court properly found that defendant's inquiry as to whether he was going to be arrested followed by his request to contact his "people" was "not even a vague reference . . . to exercise his right to counsel." The trial court found that defendant was "merely asking that his people be notified that he was going to jail." The trial court, which viewed the videotape of the interview, noted that "defendant understood the questions he was being asked . . . and the answers that he was giving." The court noted that defendant "was calm, alert, and attentive to the questions . . . and answers throughout the interview, . . . and when he didn't understand the question, he said to the detective, I don't understand it. So, it would be repeated in different language." The court also noted that "when the questioning began . . . defendant was leaning forward in his chair in the interview room. He appeared to the court to be eager to tell his side of the story." Based on defendant's behavior during the video, "[t]here is no evidence on the record that the statement was anything but voluntary. This was not an intense, or high pressure interview of a defendant." Defendant never mentioned anything about contacting a lawyer or obtaining legal advice. Additionally, given the totality of the circumstances and defendant's behavior during the interview, the detectives had no reason to believe defendant wished to obtain legal advice or stop answering their questions. Accordingly, the trial court properly did not suppress defendant's statement.
Defendant argues in Point II of his brief that the trial court erred by admitting the portion of his statement concerning correspondence with a twelve-year-old girl, due to its highly prejudicial nature. Defendant argues that this series of questions "comports to be evidence of other potential assaultive behavior by defendant that was not available for the jury to consider." Defendant argues that "[t]his prejudicial discourse could easily be excised from defendant's statement without any associated confusion to the jury."
Defendant's mother testified that he was currently living with an age-appropriate fianceee and had a learning disability. The implication of that testimony is defendant was not sexually interested in children and could have been easily tricked into making an incriminating statement.
In his summation, defense counsel argued that the children were not truthful when making allegations against defendant. He also argued that due to defendant's limited intellectual ability the police were able to pressure him to confess to a crime he did not commit. Defense counsel stated:
But it wasn't fair, and there was an agenda to get him to say that he touched her, and he was easy pickin's, a person with limited intellectual ability. They could have gotten him to say he was the 20th highjacker.
He argued that defendant wrote to the young girl only because defendant was immature.
The court deemed the evidence presented in the police interview of defendant's correspondence with the twelve-year-old girl not to be encompassed by N.J.R.E. 404(b) as it was not evidence of a crime. Although the court admitted this portion of the interview under N.J.R.E. 403, the court excluded any mention of the correspondence other than what was contained in the videotaped confession. The court permitted the entire tape of the police interview into evidence for the sake of completeness, with a cautionary instruction as follows:
There's no allegation of any criminal conduct between [the twelve-year-old girl] and the defendant Stephen Lamont Scott. In fact, there is nothing improper or illegal about the defendant exchanging letters with her. The reason why the court allowed you to hear about the letters is so that you will be able to assess the credibility of the defendant's statement and determine what weight, if any, you believe is appropriate to give to the defendant's statement. In other words, the reference to these letters [was] part of how the questioning progressed, and I decided you were entitled to hear the references to the letters so that you may properly assess the questioning in its entirety, and that's what you need to do in deciding the credibility of the defendant's statement.
It would be improper for you to speculate about the letters or use the evidence of the letters for any other purpose. So, you may not consider the letters to show that Mr. Scott is a bad person or has a general disposition to commit bad acts, nor may you consider it to determine it is likely that he committed the charges that you are considering in this case.
Again, as I told you, there's nothing improper or illegal about the defendant exchanging letters with [the twelve-year-old girl]. It was only admitted - - that reference in the tape was only admitted for the very limited and specific purpose of having the defendant's full statement before you, so that you can determine the credibility of the statement and weight, if any, to give to it. It would not be in evidence for you to use for any other purpose. So, you must follow this instruction and only consider that evidence, the reference to those letters, for the purpose for which I admitted it.
We agree with the court's decision to admit the entirety of the videotaped statement, which included a limited reference to defendant's correspondence with a twelve-year-old girl. Although his defense was a general denial of the criminal charges, defendant's motive in entering the bedroom was clearly in question. Even if this discussion of defendant's letter was not necessary for purposes of completeness, it is admissible pursuant to N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992), which sets forth the appropriate admissibility test pursuant to this rule.
Under the four-prong Cofield admissibility test, the evidence of the correspondence is admissible under N.J.R.E. 404(b). In State v. Covell, 157 N.J. 554, 570 (1999), the Court applied the four-part Cofield test when determining that defendant's statement that he liked "young girls" was admissible in a prosecution for child luring. Id. at 564-71. Here, the correspondence is relevant to the material issue of intent or motive and thus satisfies prong one of the Cofield test. Defendant expressed his sexual interest in a young girl, which provided a motive for the acts charged.*fn2 Defendant admitted to making the statements in the letter, which satisfies the third prong, requiring the act be proven by clear and convincing evidence. The evidence of the correspondence would have been properly admitted under Cofield because its probative value, that defendant was sexually attracted to underage girls, was not out-weighed by its prejudice, given that the correspondence was referred to only briefly and did not demonstrate criminal behavior.
Indeed, the trial court's limiting instruction was significantly more restrictive than the standard model jury charge that would be given if the court had admitted the discussion about the letter under N.J.R.E. 404(b). The standard charge for evidence admitted pursuant to N.J.R.E. 404(b) is:
Whether this evidence does in fact demonstrate [that defendant had the motive or intent to have sexual contact with the victim] is for you to decide. You may decide that the evidence does not demonstrate [this motive or intent] and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate [this motive or intent] and use it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person.
That is, you may not decide that, just because the defendant has committed other crimes, wrongs, or acts, he must be guilty of the present crimes. I have admitted the evidence only to help you decide the specific question of [whether defendant intended to have sexual contact with the victim]. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs, or acts.
The trial court, out of caution, charged the jury on the limited use of the correspondence to the twelve-year-old girl, focusing the jury on the credibility of defendant's statement to the police. To be sure, defendant benefited from a charge that forbade the jury from using the evidence of his letter for any purpose other than "the very limited and specific purpose of having the defendant's full statement before you, so that you can determine the credibility of the statement and weight, if any, to give to it." Defendant's argument that the court erred by admitting discussions recounting a small portion of his suggestive correspondence with a young girl under a severely limiting instruction is not persuasive given the fairly benign and non-specific nature of this discussion.
Defendant argues in Point III of his brief that the trial court erred in denying his request for bail pending appeal. R. 2:9-4. Defendant was convicted of sexually assaulting a child. The nature of the conviction indicates a risk to the community. The matter is moot, in any event, given our affirmance of his convictions.
Finally, defendant argues in Point IV of his brief that the six-year sentence imposed by the trial judge for his convictions of second-degree assault, third-degree burglary and third-degree endangering the welfare of a child was "manifestly excessive."
In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), the Supreme Court fortified the authority of sentencing judges, reminding appellate judges to avoid substituting their preferences for legally compliant sentencing actions by the trial court:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.
[Id. at 612.]
In sentencing defendant, the judge properly noted defendant's prior juvenile record, State v. Marzolf, 79 N.J. 167, 177-78 (1979), which included a prior adjudication as a delinquent and placement on probation for burglary. Additionally, the court noted that defendant violated probation as a juvenile. Defendant had two municipal court convictions as an adult. Based on defendant's prior record, the court found aggravating factor three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3), and aggravating factor nine, the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). The court gave only "partial weight" to aggravating factor two, harm to the victim based on his particular vulnerability, N.J.S.A. 2C:44-1a(2). Although the victim must be under thirteen years old for a defendant to be guilty of second-degree sexual assault, the court was permitted to consider the victim's age of nine. See State v. Taylor, 227 N.J. Super. 441, 453 (1988) (noting when sentencing a defendant convicted of sexually assaulting a four-year old that although "the statutory element would have been present had the victim been a 12-year old with some sophistication . . . . [t]he extreme youth of the victim was a proper aggravating factor to have been considered by the court."). In rejecting mitigating factor ten, defendant is particularly likely to respond to probationary treatment, N.J.S.A. 2C:44-1b(10), the court noted that defendant committed the current offense despite his prior probationary terms as a juvenile and as an adult. The court found that imprisonment would result in an excessive hardship on defendant, mitigating factor eleven, N.J.S.A. 2C:44-1b(11), and balanced this mitigating factor against the aggravating factors. The court properly found the appropriate factors based upon credible evidence and balanced them pursuant to the statutory scheme.
The court sentenced defendant below the mid-point for a second-degree crime. The sentence does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.