July 18, 2011
STATE OF NEW JERSEY, IN THE INTEREST OF L.L., A JUVENILE.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FJ-02-0751-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2011
Before Judges Lisa and Alvarez.
L.L. was adjudicated delinquent on five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), two counts of third-degree child endangering, N.J.S.A. 2C:24-4(a), and two counts of second-degree child endangering, N.J.S.A. 2C:24-4(b)(4). He was committed to the New Jersey Training School at Jamesburg for an indeterminate term not to exceed four years concurrent on each aggravated sexual assault, three years concurrent on each second-degree child endangering, two years concurrent on each third-degree child endangering, and a consecutive three-year term as a result of his violation of probation on an earlier adjudication. Appropriate fines and penalties were imposed. He appeals and we affirm.
L.L., whose birth date is August 20, 1994, has an I.Q. of 76. He has had problems with his schooling, and been diagnosed as suffering from attention deficit hyperactive disorder (ADHD). He has been charged many times with aggravated assaults, and was adjudicated delinquent on fifteen separate occasions. L.L. has been on probation continuously from June 2004 to the date of these incidents resulting in the charges for assaultive conduct, terroristic threats, and similar offenses.
The events behind the adjudications can be briefly described. L.L. told two twelve-year-old neighborhood boys that one of the boys' older brothers had stolen marijuana from a neighborhood gang and that, in retribution, the gang wanted L.L. to sexually assault them, have them sexually assault each other, and submit to being photographed during these activities. If they did not go along with this scheme, or told anyone about it, they and their families would be injured or killed. Accordingly, on September 10 and 11, 2008, L.L. sodomized the boys and photographed them as they performed fellatio upon each other. The following day, one of the children disclosed the assault to a teacher. Once the second child was asked about the incidents, he too fully disclosed them.
On that same date, September 12, 2008, the matter was brought to the attention of the Bergen County Prosecutor's Office. Detective Barbara Stio*fn1 began her interview of L.L., in the presence of his mother, M.L., at approximately 6:30 p.m. The questioning took place in the prosecutor's office in a small room containing an oblong table and several side chairs. Sergeant Cora Taylor and Detective Robert Boria were also present. Stio explained the reason for the interview to M.L., and reviewed L.L.'s Miranda*fn2 rights and the corresponding waiver form with M.L. and L.L. Every moment that L.L. was in the interview room with detectives was recorded on video.
Although M.L. mistakenly signed the portion of the form indicating she waived her right to be present during L.L.'s interview, L.L. wanted her to remain and she did so. M.L. went in and out of the interview room on several occasions at L.L.'s request. When L.L. asked if he could speak to his mother privately, he was freely able to do so and the recording equipment was shut off while the investigators waited outside.
After L.L. and his mother signed the documents evidencing their understanding of L.L.'s right to remain silent, he spoke with detectives, telling them initially that an individual by the name of "J-Crack," from a neighborhood gang, demanded he assault the boys in retaliation for the alleged theft of marijuana. L.L. explained that because the gang could not get to the person who stole the marijuana, and because L.L. owed J-Crack a favor, he was asked to exact retribution on the gang's behalf. At first, L.L. explained, this meant merely fighting with the boys, but as time passed, the plan changed. L.L. stated his own failure to comply would result in him getting "jumped."
L.L. said that J-Crack supervised him carrying out these directives, although this changed over the five hours of the interview. First, L.L. claimed J-Crack was waiting in L.L.'s grandmother's house, where the assaults occurred, having gained entry through the use of a key hidden in the back of L.L.'s cell phone. Next, L.L. claimed J-Crack entered his grandmother's house by climbing through a window. Then, L.L. claimed J-Crack was in the back yard and, lastly, L.L. claimed J-Crack walked into the house while the assaults were taking place. L.L. also said that J-Crack installed recording or camera devices in the house so that he could personally verify the assaults, although no such mechanisms were ever discovered.
At one point during the interview, Detective Stio and L.L. became loud with each other. Sergeant Taylor, observing the interview from an adjoining room, interceded and pulled Stio outside. She asked her to confirm whether or not L.L. wanted an attorney, because Taylor thought she may have heard him ask for one. Stio returned to the interview room and asked L.L. point blank, in front of M.L., if he wanted counsel. L.L. responded that he did not, and the questioning continued.
At approximately 8:20 p.m., L.L. asked to speak to his mother privately. About ten minutes later, M.L. left the interview room, told Stio she needed some air, and collapsed from an asthma attack. An ambulance was called and L.L. was removed from the interview room while paramedics treated his mother. As M.L. was being taken out of the prosecutor's office on a stretcher, Taylor asked her to provide the name and number of someone else in whose presence the interview could continue. Accordingly, M.L. gave Taylor the number of L.L.'s great aunt, M.B., who, when contacted, agreed to come down to the station.
M.B. was shown the Miranda rights form, which she too signed after noting M.L.'s signature. L.L. was allowed to speak privately with M.B., after which she left the room. L.L. said he wanted to continue the interview in her absence. M.B. was seated in an adjoining room, where she could watch through a two-way mirror. She was told that she could re-enter the interview room at any time.
When L.L. finally admitted to sodomizing the children and forcing them to engage in fellatio, insisting this was done at the direction of J-Crack, he described the location where he disposed of the condoms and wrappers he used when he sodomized the boys. Police found the items at these locations in and near his grandmother's home. He also admitted telling the boys that their families would be "killed and threatened" if they reported the incident to anyone.
Prior to trial, the judge conducted a Miranda hearing and, as a result, determined that L.L.'s statements were admissible. He observed L.L. was over the age of fourteen and, like the seventeen-year-old juvenile in State v. Presha, 163 N.J. 304 (2000), the leading case upon which he relied in rendering his decision, was "very familiar with the criminal justice system and the processes and procedures" involved. The judge noted that M.L. was present during the greater part of the interrogation, coming and going as she wished, and was able to speak to her son in private when he requested it.
The court also observed that although M.B. was not a legal guardian, the State had made reasonable efforts to substitute another adult family member to serve in M.L.'s absence. The trial judge characterized the length of the interview - five hours - including a break of over an hour while police waited for M.B.'s arrival, as not "overbearing . . . or oppressive." The trial court concluded that "under the totality of the circumstances the juvenile's waiver of his rights was voluntary, and  his confession was not the product of police coercion[.]"
Prior to the interrogation, Stio obtained M.L. and L.L.'s permission to retain and analyze L.L.'s cell phone. When later examined, authorities discovered that the phone had one picture of the twelve-year-old boys engaged in fellatio in its "unallotted memory"; that is, the photograph was deleted by L.L., but remained on the phone's memory in a backup capacity. The picture was time stamped 5:30 p.m. on September 11, 2008.
When the trial judge sentenced L.L., he found the following aggravating factors pursuant to N.J.S.A. 2A:4A-44(a)(1): (a) the nature and circumstances of the conduct were particularly heinous, cruel, or depraved; (c) the risk of reoffense; (d) the juvenile's prior history of delinquency; (g) the need to deter; (i) the juvenile's more than two prior adjudications of delinquency for conduct which would constitute crimes if committed by an adult; (j) the effect of the offense upon the victim; and (k) the impact of the offense on the community. There were no factors found in mitigation.
On appeal, L.L. raises the following issues:
THE TRIAL COURT'S ADJUDICATION OF DELINQUENCY MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN DENYING THE JUVENILE'S MOTION TO SUPPRESS STATEMENTS TO POLICE PURSUANT TO MIRANDA V. ARIZONA, 384 U.S. 436
A. The State did not meet its burden of proving that the within statement was voluntarily made due to the circumstances surrounding the interrogation
B. Defendant's statements must be suppressed since L.L.'s mother did not voluntarily waive her presence at the taking of the statement and it was not proven that L.L.'s great-aunt voluntarily waived her presence during the interrogation and/or wasn't mis[led] into waiving her presence in the interrogation room or acted properly in protecting L.L.'s interests
C. L.L.'s statement must be suppressed after he stated he "wanted a lawyer," since the State failed to re-Mirandize him after his request for counsel
THE DEFENDANT'S ADJUDICATION MUST BE REVERSED, SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONSTITUTION, AMEND. VI
THE SENTENCE IMPOSED ON DEFENDANT IS EXCESSIVE
A. The trial court failed to appropriately consider aggravating and mitigating factors when sentencing L.L.
B. The trial court erred in imposing consecutive sentences "'Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). Absent a manifest denial of justice, this court will not disturb a trial judge's reasoned exercise of his or her broad discretion in making relevance and admissibility determinations. Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom. Lydon v. Silverman, 196 N.J. 466 (2008).
L.L. first contends that the admission of his statement was prejudicial error. To the contrary, we conclude the judge's well-reasoned exercise of his broad discretion was amply supported by the record. L.L. and his mother were presented with the Miranda rights form, read out loud to them by Stio.
L.L. also read it aloud to himself, pronounced his understanding of all of its provisions, and signed the form. M.L. was also given a Miranda rights form and signed it, admittedly in the portion waiving her right to be present, which was never enforced. Neither M.L. nor L.L. expressed any concern about the form, neither asked any question about their rights, or appeared in any regard to be confused.
M.B. similarly signed the portion of the form waiving her right to be present. Despite this mistake, she entered and left the interview room at will and, when not physically present, watched through a two-way mirror. Both spoke privately with L.L. outside the presence of the authorities.
Officers made the best of M.L.'s unexpected absence by securing the services of M.B., an adult presence, as required by Presha. See Presha, supra, 163 N.J. at 314-15. By providing M.B.'s name and phone number, M.L. unequivocally authorized the interrogation to continue in M.B.'s presence. "All of these facts - defendant's age and familiarity with the criminal process, his clear desire to be interviewed without a parent present, the presence of a parent at the outset of questioning, and his fair treatment by police" - compel the conclusion L.L.'s will was not overborne nor any desire for parental involvement thwarted. See id. at 318.
Moreover, we see no constitutional violation in the failure to re-Mirandize L.L. after Taylor heard something that caused her to be concerned L.L. had requested counsel. When Taylor pulled Stio out of the interview room to verify that L.L. was willing to continue without counsel, Stio did so in direct language. L.L.'s response was equally unequivocal: he did not want an attorney to represent him. Therefore, L.L. did not need to be re-Mirandized. A direct and clear inquiry sufficed to clear up Taylor's concern. See State v. Johnson, 120 N.J. 263, 283 (1990). No additional Miranda warnings were required once investigators confirmed that L.L. did not want a lawyer and wanted the interrogation to continue. See State v. Wright, 97 N.J. 113, 120 n.4 (1984) (internal citations omitted). The trial judge did not err by admitting the confession.
Second, L.L. contends that his counsel's ineffective assistance constitutes separate grounds for reversal. Such claims are "particularly suited" for review on an application for post-conviction relief (PCR). State v. Preciose, 129 N.J. 451, 460 (1992). Typically, the proofs necessary for a reasoned and fair consideration of these assertions require "allegations and evidence that lie outside the trial record." Ibid. Therefore, we will not address the issue on direct appeal without prejudice to L.L.'s right to do so on PCR. Ibid.
Finally, L.L. advances the argument that his sentence was excessive. We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid.
L.L. received an aggregate sentence of seven years, despite having been adjudicated delinquent of five first-degree, two second-degree, and two third-degree offenses committed against two victims over the course of two separate days. L.L. had an extensive prior history, had been afforded probationary opportunities on numerous occasions, and for years prior been unable to remain offense-free. In light of the numerous aggravating factors found by the trial judge, the sentence, if anything, appears lenient.