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State v. S.S.

Supreme Court of New Jersey

June 21, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
S.S., Defendant-Appellant.

          Argued February 27, 2017

         On appeal from the Superior Court, Appellate Division.

          Joseph J. Russo, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Joseph J. Russo and Jessica L. Spencer, Assistant Deputy Public Defender, on the briefs).

          Sara M. Quigley, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General of New Jersey, attorney).

          Rebecca J. Livengood argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Rebecca J. Livengood, Edward L. Barocas, Alexander Shalom, and Jeanne M. LoCicero, on the letter brief).

          John J. O'Reilly argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; John J. O'Reilly and Andrew Gimigliano, on the brief).

          SYLLABUS

          This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.

          Albin, J., writing for the Court.

         In this interlocutory appeal, the Court determines two issues: what is the appropriate standard of appellate review of a trial court's factual findings based solely on the court's viewing of a video-recorded police interrogation, and did defendant invoke his right to remain silent during the interrogation.

         In 2011, defendant S.S. was tried before a jury and convicted of first-degree aggravated sexual assault of his six-year-old daughter and second-degree endangering the welfare of his child. The Appellate Division reversed those convictions for reasons unrelated to this appeal and ordered a new trial.

         Before the start of the second trial, defendant moved for the first time to suppress incriminating video-recorded statements he made to investigators in the Hudson County Prosecutor's Office, claiming that investigators failed to honor his invocation of his right to silence in violation of Miranda.

         Sergeant Kolich and Detective Hans interrogated defendant in the Hudson County Prosecutor's Office. For approximately forty-seven minutes, Detective Hans conducted the interrogation alone. In response to Detective Hans's questions, defendant repeatedly denied that he had abused his daughter. After Sergeant Kolich entered the interview room, the questioning became increasingly accusatory. Sergeant Kolich repeatedly made the misrepresentation that defendant's daughter told the investigators that defendant put his penis in her mouth. Sergeant Kolich, again and again, accused defendant of lying. A little more than one hour into the interrogation, Sergeant Kolich said "[T]here's something inside you you want to say, and you're fighting it. You're fighting it." Defendant replied, "No, that's all I got to say. That's it."

         The interrogation proceeded, and defendant continued to suggest that he did not want to speak. Eventually, he indicated that "it happened" when, after a shower, he was drying himself and his daughter entered the bathroom.

         In ruling on the motion, the trial court relied solely on its review of the video-recorded interrogation. Because it found that defendant invoked his right to remain silent under Miranda when he said, "No, that's all I got to say. That's it, " the court entered an order suppressing all statements made after that point in the interrogation.

         The Appellate Division granted the State's motion for leave to appeal, and a two-member panel reversed the trial court's order. The panel noted that it defers to a "trial court's findings of fact that are supported by sufficient credible evidence in the record" when the suppression hearing involves the taking of witness testimony. The panel stated, however, that such deference is not required when "the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court, " quoting State v. Diaz-Bridges, 208 N.J. 544, 566 (2011). Relying on Diaz-Bridges, the panel engaged in a de novo review of the video-recorded interrogation. The panel determined that, based on its "independent review of the video, " the State had proven beyond a reasonable doubt that defendant never revoked his initial waiver of his right to remain silent.

         The Court granted defendant's motion for leave to appeal. 226 N.J. 207 (2016).

         HELD: After a careful reappraisal of Diaz-Bridges, the Court now holds that the non-deferential standard articulated in that case is at odds with traditional principles limiting appellate review. An appellate court ordinarily should defer to a trial court's factual findings, even when those findings are based solely on its review of a video recording. Deference, however, is not required when the trial court's factual findings are clearly mistaken. Here, sufficient credible evidence in the record supports the factual finding that defendant invoked his right to silence during the interrogation.

          1. Generally, on appellate review, a trial court's factual findings in support of granting or denying a motion to suppress must be upheld when those findings are supported by sufficient credible evidence in the record. The issue here, however, concerns the level of deference owed to a trial court's factual findings based solely on its review of a video recording or documentary evidence. That issue arose in Diaz-Bridges, supra, where the Court expressed its view that a reviewing court need not give deference to another court's factual findings based solely on a video-recorded interrogation, stating: "When the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required." 208 N.J. at 566. (pp. 16-19)

         2. Federal courts, and a number of state courts, have adopted a standard of appellate review that requires deference to a trial court's factual findings when those findings are based on viewing a video-recorded interrogation or search. The policy reasons for a deferential approach are set forth in Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985): "The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources." The Anderson Court adopted a clearly erroneous standard of review. Federal Rule of Civil Procedure 52(a)(6) was amended the same year that the United States Supreme Court released its decision in Anderson. The Advisory Committee rejected "a more searching appellate review" in favor of a "clearly erroneous" standard for "documentary evidence." Several United States Courts of Appeals have applied a deferential standard in reviewing factual findings based on video evidence. Several state jurisdictions also utilize a deferential standard in reviewing a trial court's factual findings based on video evidence. In contrast, a number of jurisdictions favor a de novo approach. (pp 19-24)

         3. The Court now concludes that a standard of deference to a trial court's factfindings, even factfindings based solely on video or documentary evidence, best advances the interests of justice in a judicial system that assigns different roles to trial courts and appellate courts. The Court rejects the de novo standard introduced in Diaz-Bridges. A policy of deferring to findings of fact of a trial court based on its review of video and documentary evidence has certain tangible benefits. When more than one reasonable inference can be drawn from the review of a video recording, a trial court's factual conclusions reached by drawing permissible inferences cannot be clearly mistaken, and the mere substitution of an appellate court's judgment for that of the trial court's advances no greater good. Permitting appellate courts to substitute their factual findings for equally plausible trial court findings is likely to "undermine the legitimacy of the [trial] courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority." See Fed. R. Civ. P. 52(a) advisory committee's note to 1985 amendment. Acknowledging that a trial court's factual findings are entitled to deference does not mean that appellate courts must give blind deference to those findings. Deference ends when a trial court's factual findings are not supported by sufficient credible evidence in the record. (pp. 24-28)

         4. Under the United States Supreme Court's interpretation of the Fifth Amendment, the police are required to stop a custodial interrogation when a suspect unambiguously asserts his right to remain silent. In contrast, under New Jersey's privilege against self-incrimination, a request, however ambiguous, to terminate questioning must be diligently honored. If the police are uncertain whether a suspect has invoked his right to remain silent, two alternatives are presented: (1) terminate the interrogation or (2) ask only those questions necessary to clarify whether the defendant intended to invoke his right to silence. Words similar to those used by defendant here have been considered sufficient to invoke the right to silence. (pp. 28-32)

         5. The trial court concluded that, based on its review of the entire video-recorded interrogation, "defendant unambiguously invoked his right to silence" from the point he stated, "that's all I got to say." The Appellate Division followed the guidance given in Diaz-Bridges and substituted its interpretation of the video in place of the trial court's reasoned analysis. The trial court's factual conclusions are supported by sufficient credible evidence in the record and therefore are not clearly mistaken. The Court affirms the trial court's suppression order. After defendant said, "No, that's all I got to say. That's it, " his statements are inadmissible. (p. 32-34)

         The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for proceedings consisted with this opinion.

          OPINION

          JUSTICE ALBIN

          In this interlocutory appeal, we must determine two issues: what is the appropriate standard of appellate review of a trial court's factual findings based solely on the court's viewing of a video-recorded police interrogation, and did defendant invoke his right to remain silent during the interrogation.

         Relying solely on a review of the video-recorded interrogation, the trial court found that defendant asserted his right to silence when he said, "that's all I got to say. That's it." The trial court suppressed all statements made after that utterance because the investigators failed to honor defendant's invocation of his right to remain silent in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

         A panel of the Appellate Division engaged in a de novo review of the video-recorded interrogation and reversed. The panel made its own factual findings based on defendant's tone of voice and the flow of the interview, concluding that defendant did not assert his right to remain silent. In applying the de novo standard of review, the panel relied on language in State v. Diaz-Bridges, 208 N.J. 544, 566 (2011), which stated that when "the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court . . . deference to the trial court's interpretation is not required."

          After a careful reappraisal of Diaz-Bridges, we now hold that the non-deferential standard articulated in that case is at odds with traditional principles limiting appellate review. We have reached this conclusion for several reasons.

         First, our system of justice assigns to our trial courts the primary role of factfinder. That role is especially suited to our trial judges, who have ongoing experience and expertise in making factual rulings. Trial judges routinely make factual determinations not only in assessing the credibility of witnesses but also in assessing documentary evidence, which oftentimes is susceptible to alternative inferences.

         Second, the customary role of an appellate court is not to make factual findings but rather to decide whether those made by the trial court are supported by sufficient credible evidence in the record. That limited standard of review is consistent with the belief that appellate courts should not replicate the work of our trial courts or reverse their factfindings based on a mere difference of opinion.

         Third, notions of judicial economy and finality call for a standard of review where appellate courts defer to a trial court's factual findings in the absence of clear error.

         Applying these principles, we find that the trial court's factual determination, based solely on its review of the video-recorded interrogation, is supported by sufficient credible evidence in the record. Although the Appellate Division and trial court drew different inferences from the record, we conclude that the inferences drawn by the trial court were reasonable and that the trial court's ultimate determination was not clearly mistaken.

         We therefore reverse the judgment of the Appellate Division and remand to the trial court for proceedings consistent with this opinion.

         I.

         A.

         In 2011, defendant S.S. was tried before a jury and convicted of first-degree aggravated sexual assault of his six-year-old daughter, N.J.S.A. 2C:14-2(a)(1), and second-degree endangering the welfare of his child, N.J.S.A. 2C:24-4(a). The trial court sentenced defendant to a fifteen-year prison term on the sexual-assault charge, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent five-year term on the endangering charge. The Appellate Division reversed those convictions for reasons unrelated to this appeal and ordered a new trial. This Court denied the State's petition for certification, State v. S.S., 220 N.J. 573 (2015), and defendant's cross-petition, State v. S.S., 220 N.J. 574 (2015).

         Before the start of the second trial, defendant moved for the first time to suppress incriminating statements he made to investigators in the Hudson County Prosecutor's Office, claiming that investigators failed to honor his invocation of his right to silence in violation of Miranda.[1]

         The Honorable Sheila A. Venable, P.J.Cr., conducted a Miranda hearing pursuant to N.J.R.E. 104(c)[2] at which the State introduced one piece of evidence -- the video-recorded interrogation. Neither the State nor the defense called any witnesses. From her review of that video, Judge Venable made her ultimate findings of fact.

         To give context to defendant's interrogation and the factual conclusions reached by the trial court, we begin with the events that led to the interrogation.[3]

         B.

         In August 2009, defendant and "Jane" had been married for five years and were the parents of two daughters, "Marilyn, " age six, and "Lois, " age four.[4] While defendant and Jane worked during the week, Lois was in daycare, and a babysitter looked after Marilyn. On August 21, 2009, Marilyn was at the babysitter's house. While the babysitter was changing her infant son's diaper, Marilyn began asking questions about the infant's penis. During the conversation, Marilyn told the babysitter that defendant put his penis in her mouth.

         Later, the babysitter told Jane about her daughter's claim. In response to an anonymous call alleging that defendant had abused Marilyn, a representative of the Division of Youth and Family Services[5] (DYFS) visited defendant's home and interviewed each family member. On August 25, 2009, defendant, Marilyn, the babysitter, and Jane each gave video-recorded statements to Sergeant Kenneth Kolich and Detective Polly Hans of the Hudson County Prosecutor's Special Victims Unit.

         During her interview, Marilyn denied that her father abused her or put his penis in her mouth. She also denied making the comment that the babysitter attributed to her. In speaking with the investigators, the babysitter stood by her recollection of Marilyn uttering that one remark. The babysitter noted, however, that Marilyn never repeated the statement. Jane told the investigators that she did not believe that an act of abuse had occurred.

         C.

         After those interviews, Sergeant Kolich and Detective Hans interrogated defendant in the Hudson County Prosecutor's Office.[6]Defendant waited for several hours in a room in the Prosecutor's Office before the interrogation started at about 6:17 p.m. For approximately forty-seven minutes, Detective Hans conducted the interrogation alone. She began by reading defendant his Miranda rights, which included advising him that he had "the right to remain silent" and that anything he said would "be used against ...


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