November 26, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
BIANCA YOUNG, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2013
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-12-2248.
Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pollock, of counsel and on the brief).
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief).
Before Judges Harris and Guadagno.
By leave granted, the State appeals two paragraphs of the Law Division's April 4, 2013 interlocutory order, which granted defendant Bianca Young's motion to suppress (1) "Oral Statement #2 made at approximately 3:12 p.m. on May 9, 2011 to detectives, " and (2) "Oral Statement #2 made to [a] Division of Child Protection and Permanency employee ... on May 16, 2011." We reverse.
We summarize the facts gleaned from the motion record. On May 8, 2011, Young returned home after receiving a telephone call from her boyfriend that her five-year-old daughter was not breathing properly. At approximately 10:15 p.m., Young rushed the child to a nearby hospital where she was pronounced dead one hour later. An examination by doctors revealed numerous bruises to the girl's face and left side.
The New Jersey Division of Child Protection and Permanency (DCPP) was contacted, which commenced an investigation. A subsequent autopsy, performed the next day, indicated numerous contusions to the child's back, head, and neck, along with extensive internal bleeding. The autopsy concluded that Young's daughter died due to blunt force trauma.
Young provided an initial statement to DCPP worker Sheronda Robinson. Following this statement, Young provided three more statements to law enforcement officials during which she fully cooperated and voluntarily waived her Miranda rights.
The first statement was given at 5:54 a.m. on May 9 to Newark Police Detective Levi Holmes and Essex County Prosecutor's Office Detective Paul Ceribando. At 3:12 p.m., Young provided Ceribando and Newark Detective Lydell James with a second statement, which was videorecorded. A third statement, given at 9:55 a.m. on May 10, 2011, was provided to Captain Michael DeMaio of the Essex County Prosecutor's Office.
Those statements ultimately yielded information that, several days prior to the child's rapid decline in health, Young had physically punished her daughter for defecating in a Snapple bottle and urinating in her four-year-old sister's milk.
On May 16, 2011, DCPP worker Guilherme Janmarino served Young with an order to show cause and a 5A form (used to determine eligibility for assigned counsel) in connection with a Title Nine proceeding involving Young's other child. Janmarino testified that Young was informed that "she did not need to speak to [Janmarino] directly if she did not feel comfortable until her attorney was present." Young indicated, "it's okay[, ] I will answer whatever questions that you need. I have nothing to hide." Janmarino also told Young that "[a]nything that she would have told [Janmarino] could have been used against her." Young admitted that she did, in fact, strike her children in the past. Janmarino indicated that Young's primary concern throughout the conversation was whether the DCPP would take her then unborn child from her upon the child's birth. This interview was neither videotaped nor memorialized in contemporaneous notes.
Following a series of Miranda hearings at which the witnesses were Detectives Holmes and James, Captain DeMaio, and DCCP workers Robinson and Janmarino, the Law Division suppressed portions of Young's second videorecorded statement to Detectives Holmes and Ceribando, along with Young's final statement to Janmarino. The motion court held that the police tactics were coercive as to involuntarily motivate Young to waive her Miranda rights, and that the DCPP worker should have provided Young with full Miranda warnings again, and improperly confused her with respect to her right to counsel. This appeal followed.
Generally, an appellate court's review of a motion court's decision on a motion to suppress evidence is circumscribed. State v. Robinson, 200 N.J. 1, 15 (2009). When reviewing evidence supporting the motion to suppress, we will uphold the motion court's factual determinations, "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J, at 15). We typically afford the motion court substantial deference since that court's findings are "'substantially influenced by [the motion court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). However, when the motion court's determinations were "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis'" an abuse of discretion arises. Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App. Div. 2012) (quoting Flaqq v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
The ordinary deference afforded to a motion court's factual determinations becomes significantly modified when, as in the present matter, the challenged statement is videorecorded. The availability of a videorecording that documents a police-citizen encounter does not "extinguish the deference owed to a trial court's findings." Elders, supra, 192 N.J, at 244. However, in these circumstances,
[w]hen the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance, appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself. State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012) (citing State v. Alston, 204 N.J. 614, 626 n.2 (2011)) .]
We may also consider the videorecording to assist us in our "evaluation of the motion court's application of legal principles to the essentially undisputed facts . . . ." State v. Baum, 199 N.J. 407, 423 n.4 (2009). We also owe no deference to a court's fact-findings that depend on an "obvious overlooking or under-evaluation of crucial evidence." State v. Johnson, 42 N.J. 146, 162 (1964). Finally, we exercise plenary review of a motion court's application of the law to undisputed facts on a motion to suppress. State v. Cryan, 320 N.J.Super. 325, 328 (App. Div. 1999).
It is clear that the motion judge's assessment of the videorecording was the single determining factor in her decisionmaking. As such, we "need not, and will not, close our eyes to the evidence that we can observe in the form of the videotaped interrogation itself." Diaz-Bridges, supra, 208 N.J, at 566. Freed from our otherwise-constrained scope of review, we now evaluate the evidence with our eyes wide open.
Although the motion court, observing the same videorecording that we have reviewed, concluded that Young was "subjected to taunting, belittling, and intimidation, " the videorecording contains no such conduct. The finding that the "two men verbally pound and demean [Young]" is unsupported by the record. Finally, the conclusion that Young's "will was overborne by her lack of sleep" is belied by Young's engagement with the officers, her direct and responsive answering of their questions, and her appearance and demeanor, which do not suggest somnolence. Moreover, there is simply no indication in the record that Young was actually sleep-deprived. Approximately nine hours elapsed between the conclusion of Young's first statement at 6:19 a.m., and the beginning of her videorecorded interrogation at 3:10 P.M. on May 9, 2011. Cf. State v. Timmendequas, 161 N.J. 515, 617-18 (1999) (a fragmented series of interrogations spanning forty hours did not demonstrate an involuntary or coercive environment warranting suppression of the defendant's statements).
An interrogation, no matter how conscientiously conducted, is naturally bound to be a tense occasion and to evoke apprehension, nervousness and a sense of pressure, no matter what the situation, which will be heightened in a person who knows he is guilty by consciousness of guilt and fear of the legal penalty. It must be recognized that it is not this kind of normal stress, fear and pressure which can make the questioning unfair and a confession involuntary.
state v. Miller, 76 N.J. 392, 403 (1978) (quoting State v. Smith, 32 N.J. 501, 550 (1960), cert, denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961)).]
Furthermore, a natural reluctance exists on an accused's part to admit involvement in illegality. Smith, supra, 32 N.J, at 550. "Efforts by an interrogating officer to dissipate this reluctance and persuade the person to talk are proper as long as the will of the suspect is not overborne." Miller, supra, 76 N.J, at 403.
New Jersey courts have consistently recognized the importance of this function, and have provided law enforcement officers with considerable latitude to coax suspected individuals to be forthright with their involvement in, or information related to, the crime. State v. Galloway, 133 N.J. 631, 654-55 (1993). "An interrogating police officer is not limited to asking a suspect if he committed the crime, and if he receives a negative answer, that must be the end of the inquiry." Miller, supra, 7 6 N.J, at 403. In fact, we have explicitly recognized that "interrogating officers are given leeway in their efforts to dispel that reluctance and obtain a statement." State v. Johnson, 309 N.J.Super. 2 37, 261 (App. Div. 1998).
The motion court determined that Young's will was overborne in the present action. Its rationale was based on
The tag-team approach adopted by the two detectives who were interrogating [Young], the urging of [Young] — the fact that [Young] by this point had had little or no sleep. The imploring by each detective for [Young] to come clean, to be concerned about the welfare of her daughter who is now no longer with us.
Simply stated, the tactics observed by us in the videorecording fall within the latitude provided to law enforcement officials to persuade an individual to be more forthcoming with information related to their involvement in an ongoing criminal investigation.
The totality of the circumstances analysis does not explicitly prohibit the use of multiple interrogators. State v. Presha, 163 N.J. 304, 313 (2000). While courts evaluate whether the questioning was repeated or prolonged, no specific provision exists that automatically renders an interrogation as overcoming a suspect's will simply due to the presence of multiple law enforcement officials. Moreover, the evidence shows that for substantial periods, Young was questioned by a single officer, while the other officer was outside of the room. The majority of interplay was with one detective engaging in questioning while the other remained silent, and the times where both detectives engaged in a successive series of questions were isolated.
Importuning Young to admit her involvement in the circumstances that resulted in the child's death did not constitute such sufficient psychological overbearing that would warrant suppression of Young's statement. See State v. Burris, 145 N.J. 509 (1996) (holding that a statement provided by the defendant suspected of murdering her mother made during a six-hour interrogation did not result from law enforcement coercion that overcame the defendant's will); Galloway, supra, 133 N.J. at 631 (holding that the defendant's retraction of an initial exculpatory statement followed by an inculpatory statement related to an infant's death following multiple hours of interrogation was voluntary); State v. Bey, 112 N.J. 123 (1988) (determining that the criminal defendant's confession following three hours of interrogation was not the result of law enforcement overcoming the defendant's will). The suppression of Young's videorecorded statement made at approximately 3:12 p.m. on May 9, 2011, was clearly unwarranted.
The motion court also mistakenly suppressed Young's statement given on May 16 to Janmarino. In ruling against the State, the court relied upon three issues of law: a Rule 3:17 violation (failure to electronically record a statement in a place of detention); a failure to otherwise memorialize Young's statement; and an absence of proper Miranda warnings. We are not bound by the motion court's application of law to the facts or its evaluation of the legal implications of facts where credibility is not in issue. State v. Harris, 211 N.J. 566, 578-79 (2012) (citing State v. Handy, 206 N.J. 39, 45 (2011)).
Our Court has rejected the application of a bright-line rule that would require the suppression of a defendant's statement whenever the police do not repeat a defendant's Miranda rights. State v. Nyhammer, 197 N.J. 383, 401 (2009). Instead, the Court has explicitly counseled trial courts to apply "fact-based assessments" under a totality of the circumstances framework that undergirds the entirety of an involuntary waiver analysis. State v. Dispoto, 189 N.J. 108, 124-25 (2007).
In the present case, Janmarino did not need to re-Mirandize Young. In her three interviews with detectives, Young was given her rights at the outset of each questioning session. She clearly understood the essence of these rights by the time Janmarino visited Young in jail a few days later. During the Miranda hearing, Janmarino explained the purpose for being at the jail, particularly focusing on the Title Nine proceeding and the 5A Form associated therewith. Janmarino then testified as follows:
Q: What, if anything else, did you discuss in the beginning of your conversation?
A: I did tell [Young] that . . . she did not need to speak to me directly if she did not feel comfortable until her attorney was present. At that point she stated to me it's okay I will answer whatever questions you need. I have nothing to hide.
Q: Did you . . . offer her an opportunity to get her attorney when she spoke?
A: Yes, sir, I did.
Q: Is there anything else you told her in relation to her rights?
A: As far as after I served her the [5A] form?
A: Anything that she would have told me could have been used against her, yes.
Q: Now, after you told her that she continued to have a conversation with you, correct?
A: Yes, sir.
We are completely satisfied that Young's interaction with Janmarino was unambiguous, and that she fully appreciated her right to say nothing, or at least await her attorney's presence before speaking. Instead, Young volunteered information that she thought was helpful to her cause. These actions demonstrate that the motion court's determination that Young appeared confused related to her right to counsel was incorrect. Young understood that she possessed the right to cease answering questions at any point and invoke her right to counsel. She elected not to do so, and the motion court abused its discretion by determining, based on a lack of evidentiary support, that Young was confused about this right and her ability to invoke it.
We further discern no support in Rule 3:17 for the motion court's suppression order. The rule provides, in pertinent part, the following:
Unless one of the exceptions set forth in paragraph (b) are present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with murder .... For purposes of this rule, a "place of detention" means a building or a police station or barracks that is a place of operation for municipal or state police department, county prosecutor, sheriff or other law enforcement agency, that is owned or operated by a law enforcement agency at which persons are or may be detained in connection with criminal charges against those persons. Place of detention shall also include a county jail, county workhouse, county penitentiary, state prison or institution of involuntary confinement where a custodial interrogation occurred.
Despite the mandate that all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with murder, failure to record a custodial interrogation alone does not automatically require suppression of a defendant's statement. State v. Cook, 179 N.J. 533, 559-60 (2004). Instead, failure to record a custodial interrogation "shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any to give to the statement." R. 3:17(d). The motion court's automatic suppression was a mistaken exercise of discretion.