On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-06-1117.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2012
Before Judges Fisher and Waugh.
Defendant G.L.W., to whom we refer using the pseudonym Gloria, appeals her conviction for two counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1), and one count of sexual assault, contrary to N.J.S.A. 2C:14-2(b). We affirm.
We discern the following facts and procedural history from the record on appeal.
Gloria was born in Jamaica in 1985. She came to the United States to attend college in Georgia, and graduated in 2007. She then moved to Teaneck to live with her father, his wife, and their two children.
Because her half-sister was at college, Gloria used her bedroom. Her half-brother, G.W., to whom we refer using the pseudonym Greg, was sharing his bedroom with his maternal grandfather, who was visiting the family. Greg, who was twelve years old at the time, slept on the floor and his grandfather slept in Greg's bed.
After a few weeks, Greg started sharing Gloria's bedroom, sleeping in the double bed with her. She agreed to let him do so and, according to Greg, his parents were aware of the arrangement and allowed it to continue.
One night in June 2007, Greg touched Gloria by tickling or stroking her back. The participants' versions of what happened next differ significantly. According to Greg, the activity became sexual and included his fondling Gloria, her touching his penis, and his engaging in oral sex at her urging. Although Gloria admitted to touching Greg's penis in her subsequent statement to the prosecutor's office, she had originally maintained that Greg had engaged in the sexual conduct against her will. Both Gloria and Greg agree that she put a stop to the encounter and told him that their conduct was wrong.
On the following day or soon after, Gloria reported the incident to her father, who then told his wife. The couple discussed the incident with Gloria and Greg. Greg told his father that he had initiated the sexual conduct. The father and Greg's mother established specific ground rules for Gloria's continued residence at their house, including prohibiting Greg from sleeping in the same room with Gloria.
Approximately eighteen months later, Greg's mother discussed the incident with a counselor, whose supervisor reported it to Division of Youth and Family Services (DYFS). After interviewing Greg and his mother, DYFS reported the matter to the Bergen County Prosecutor.
Gloria was interviewed by Prosecutor's Detective Ismael Alsina and Teaneck Police Sergeant Christopher Kurschner on December 26, 2008. Prior to questioning, Alsina informed Gloria of her Miranda*fn1 rights and told her "[y]ou don't have to answer my questions." He also asked Gloria to sign a Miranda form, summarizing in clear language that she possessed the "right to remain silent and refuse to answer any questions," "the right to talk to an attorney at any time and have him present with you while you are being questioned," the right to have an attorney "appointed to represent you" should "you [be unable to] afford to hire" one, and the right to "stop answering questions or request an attorney at any time." The form additionally reminded Gloria that anything she said "can and will be used against you in a court of law." Gloria initialed each point and signed the portion of the form indicating she had read and understood "the above statement of my rights and they have also been read aloud to me."
Throughout the interrogation, Gloria was reluctant to admit that the sexual encounter with Greg was consensual. In responding to the detectives' questions, she initially characterized herself as the victim and Greg as the aggressor in the sexual incident. Expressing his belief that she was not being truthful, Alsina repeatedly implored Gloria to tell the truth and "be honest." Gloria replied that she had "blocked out so much of this stuff, because it's painful." Alsina also recounted Greg's version of the event, which was that the sexual conduct was consensual, and explained that "we don't want to make a bigger story out of this than what it is. We don't want -- you coming to say [Greg] raped me, because I don't think that's what happened."
Approximately midway through the interrogation, Alsina told Gloria:
There [are] a lot of people that come in here and they tell me something, they said they were raped. And, you know what, I know they're full of shit, they're lying -- right away, they're lying. I had no reason to believe [Greg] was lying. Because his story is very consistent and it makes sense. I have reason to believe you're lying.
He also told Gloria, "You recall [what happened]. You just don't want to tell us." He continued, "Because maybe you're afraid of what's going to happen. And what I'm telling you is, that there is nothing that can't be resolved." Soon after, he insisted "you can't come here and -- and lie right in my face. A jury is not going to buy it." Minutes later, Alsina added,
I don't want to charge you today, okay, and put a $200,000 bail on you and sit [you] in the county jail, and go in as somebody that sexually assaulted her brother, because she wanted to do that. That's not what I'm looking for . . . . But I'm looking for the truth.
Alsina subsequently explained to Gloria that his role was to "find out the truth [and] . . . . present it to whatever system I have to, and they can decide from there." Alsina consistently told Gloria that he did not think she was a "bad person" and that she may have acted in "an hour of weakness."
When Gloria asked Alsina whether she had "a choice" about making a "stenographic statement," he responded, "[y]ou always have a choice. I mean, I read you your rights, you have a choice. I just want to let you know, those rights that I read to you before, they still apply. . . . You understand those rights, right?" Gloria gave no indication that she had not understood the detective's clarifying statements. She eventually admitted that her sexual encounter with Greg was consensual.
Gloria was indicted on June 17, 2009. In addition to the charges for which she was convicted, she was charged with one count of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a).
Gloria moved to suppress her statement. The trial judge held a hearing on the motion on November 9, 10, and 15, 2010. Defense counsel presented testimony from Alsina, Gloria's father, and an attorney whom Gloria's father had contacted but not retained prior to Alsina's interview of Gloria. Based upon the testimony adduced at the hearing and his review of the video, the judge denied the motion to suppress. He found that Gloria had waived her rights to remain silent and to have an attorney, and that her statement was given voluntarily. He further concluded that, under the totality of the circumstances, there was no "deception or trickery" and that Gloria's intermittent reluctance to answer questions was not the sort of "prolonged silence" that would necessitate the provision of fresh Miranda warnings.
The trial took place before a jury over five consecutive days, beginning November 15, 2010. Prior to opening statements, the prosecutor told the judge and defense counsel that he was inclined not to use Gloria's statement because, in part, he did not think he would need it and wanted to eliminate "a significant issue on appeal, should there be a conviction." It was his inclination "to proceed without admitting that statement in my case in chief[, although] I certainly reserve the right during the trial to change strategy and admit it later." The trial judge asked the prosecutor to clarify "that at this point you seem to be, again, leaning towards the fact that you don't want to use that statement, but you're not sure?" The prosecutor answered in the affirmative, but noted that "things [could] change after [Greg's] testimony."
On the following day, after both sides had presented their opening arguments without reference to the video statement and after Greg had begun his testimony, the prosecutor announced his intention to use Gloria's statement in his case in chief. In response, the judge said: "You said you weren't using it." Defense counsel objected to the prosecutor's change in position, arguing that the consequent "unfairness . . . [would be] insurmountable." He moved for a mistrial. After hearing each party's argument, the judge "denied the mistrial [motion]" and stated he was "not going to exclude the statement" or provide the jury with a potentially confusing curative instruction concerning defense counsel's failure to mention it during his opening statements. The video recording of Gloria's interrogation was played for the jury during the trial and again when the jury asked to see it during deliberations. The written statement was also marked into evidence.
The jury found Gloria guilty of two counts of aggravated sexual assault and one count of sexual assault, but not guilty of endangering the welfare of a child.
On June 10, 2011, the trial judge denied Gloria's motion for a new trial. He sentenced her to three concurrent terms of imprisonment for five years, subject to an eighty-five percent period of parole ineligibility, as well as five years parole supervision following release. In addition to imposing the required fines and penalties, the judge required Gloria to register as a sex offender pursuant to N.J.S.A. 2C:7-2 and imposed a special sentence of parole supervision for life pursuant to N.J.S.A. 2C:43-6.4(a). This appeal followed.
Gloria raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ...