Opinion
DOCKET NO. A-3374-13T4
06-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.P., Defendant-Appellant.
Peter J. Koulikourdis argued the cause for appellant (Koulikourdis and Associates, attorneys; Mr. Koulikourdis and Rosemary N. Gushiken, on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-03-0507. Peter J. Koulikourdis argued the cause for appellant (Koulikourdis and Associates, attorneys; Mr. Koulikourdis and Rosemary N. Gushiken, on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, on the brief). PER CURIAM
A jury found defendant guilty of four counts of second-degree sexual assault of a blood relative between the ages of sixteen and eighteen, N.J.S.A. 2C:14-2(c)(3)(a), one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). All counts derived from sexual contact that defendant perpetrated against his daughter Jane. The trial judge sentenced defendant to eight years for the first count of sexual assault, eight years for the third count of sexual assault to run consecutive to the first count, and all other sentences were to run concurrent to the first count. In aggregate, defendant was sentenced to sixteen years imprisonment. On appeal, we remanded the case to the trial court to conduct a Rule 104 hearing to determine whether defendant's statement to police was voluntary, but affirmed his conviction and sentence pending the outcome of that hearing. State v. R.P., No. A-5394-10 (App. Div. Jan. 2, 2014) (slip op. at 14-15, 24).
All names have been changed to protect the privacy of the parties involved.
On March 10, 2014, the trial judge held the Rule 104 hearing and issued an order on March 17, 2014, concluding that defendant's statement was voluntary and admissible. Defendant appeals from that order. After reviewing the record below in light of the applicable law, we affirm the trial judge's determination of the admissibility of the statement; therefore, we reaffirm defendant's conviction and sentence.
The record reveals that at the beginning of the N.J.R.E. 104 hearing, defense counsel moved for the judge, who had presided over the jury trial, to recuse himself. The judge denied this motion and continued the hearing. Only one witness, Detective Ismael Alsina from the Bergen County Prosecutor's Office, who was the lead interviewer, testified at the hearing. The judge and counsel also viewed the video of defendant's statement.
Alsina testified that defendant was a person of interest in a case involving allegations of sexual abuse by his daughter. Alsina and a police officer from the municipality went to defendant's home to inform him that he was the subject of an investigation and asked if he could come to the prosecutor's office to speak with them. Defendant agreed and the officers took him to an interview room at the prosecutor's office. Alsina offered defendant a seat, which defendant took, and Alsina told defendant that he needed to take off his gear and get some things.
After about ten minutes, Alsina returned to the room, sat down, and explained that defendant was there because his daughter accused him of inappropriate behavior with her. Alsina then read defendant his Miranda rights, and defendant acknowledged each right, either verbally or by nodding in affirmation, before signing by each right. Finally, Alsina read the Miranda waiver acknowledgement to defendant and told defendant, "If you wish to talk to us right now, I'll ask you to print your name and sign right here." Defendant signed the form and Alsina began questioning defendant.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
As the questioning began, defendant received a text message from his daughter, who remained in the prosecutor's office while defendant was being questioned. He turned over his phone to Alsina to show what his daughter had sent him, but denied the substance of her message. Alsina went over the allegations against defendant and asked him his side of the events. After initially denying the allegations, defendant eventually admitted to engaging in sexual activity with his daughter, such as lying with her in bed while in his underwear when she was not clothed, kissing her body, performing oral sex on her, and grinding against her to the point of ejaculation. He also admitted asking her to perform oral sex on him.
Throughout the interview, defendant maintained that these occurrences were the result of a mutual agreement between him and Jane, where in exchange for her participation, he permitted her to have a relationship with a boyfriend, including unsupervised visits with her boyfriend both at his house and hers, and allowed her to stay out late at night. He insisted that he never coerced her, and that if Jane had asked him to stop, he would have. He also maintained that the two had never engaged in sexual intercourse.
At the end of the hearing, the judge held that defendant gave the statement "voluntarily, knowingly and intelligently." The judge reasoned that Alsina attempted to make defendant comfortable by describing his location, defendant acknowledged his rights in writing, and defendant did not appear nervous during questioning. The judge added that defendant had sufficient command of the English language as demonstrated by the tape. He pointed out that defendant stopped and corrected the detective several times, "thus demonstrating his clear understanding of what was being said to him." Moreover, the judge found that the questioning techniques employed by the investigating officers were permissible techniques and did not overbear defendant's will. The judge rejected defense counsel's assertion of physical coercion, and found that the officers did not act unlawfully in securing defendant's confession.
Defendant appeals, alleging that the trial judge erred in finding that the statement was given voluntarily because defendant was coerced under the totality of the circumstances. Additionally, defendant argues that the trial judge should have recused himself from deciding the motion.
We begin by recognizing our standard of review. It is well-established that "in reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see also State v. Gore, 205 N.J. 363, 382 (2011). The general rule in reviewing a decision regarding the admission or exclusion of evidence is that "[c]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marreno, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)); see also State v. J.A.C., 210 N.J. 281, 295 (2012).
Next we consider the applicable legal principles that guide our analysis here. While a statement of a criminal defendant is not excluded as hearsay in a criminal trial against that defendant, "the admissibility of a defendant's statement which is offered against the defendant is subject to Rule 104(c)." N.J.R.E. 803(b). In order to admit a statement as evidence, the State must establish that a confession is trustworthy. See State v. Cook, 179 N.J. 533, 560 (2004). If a confession is obtained through compulsion or coercion, it is considered unreliable, ibid. (citing State v. Jordan, 147 N.J. 409, 425-28 (1997)), and may not be admitted against a defendant because to do so "'would offend the community's sense of decency and fairness.'" Ibid. (quoting State v. Kelly, 61 N.J. 283, 292 (1972)).
To be admissible, the State must show beyond a reasonable doubt that a confession was made voluntarily. Gore, supra, 2 05 N.J. at 382; Cook, supra, 179 N.J. at 562. "Voluntariness of a confession or other inculpatory statement by an accused must always be established by the State at a N.J.R.E. 104(c) hearing before it can be introduced into evidence at trial." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 104 (2014) (citing, among other cases, State v. Miller, 76 N.J. 392, 404-05 (1978)). "To leave determination of the issue solely to the jury [is] a cession of the trial court's gatekeeping responsibility." State v. Marczak, 344 N.J. Super. 388, 397 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
In evaluating whether a statement was voluntary, courts consider "the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion." State v. Nyhammer, 197 N.J. 383, 402 (2009). In considering the totality of the circumstances, the court specifically will consider factors such as "the defendant's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Ibid. (quoting State v. Presha, 163 N.J. 304, 313 (2000)) (internal quotations omitted).
The use of psychological tactics is not prohibited. State v. Galloway, 133 N.J. 631, 654 (1993); see also Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986). "Unlike the use of physical coercion, . . . use of a psychologically-oriented technique during questioning is not inherently coercive." Galloway, supra, 133 N.J. at 654. Such "ploys may play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary." Miller, supra, 796 F.2d at 605; cf. State v. Patton, 362 N.J. Super. 16, 28-32 (App. Div.), certif. denied, 178 N.J. 35 (2003).
Defendant alleges that psychological tactics used by the officers, such as sending him a text message through his daughter and repeatedly using leading questions in the face of defendant's denials, coupled with the overall circumstances to overbear his will, rendered his confession involuntary. The record fully supports the judge's findings to the contrary. It demonstrates that defendant voluntarily returned to the station with the officers, was read his rights, acknowledged them, and made a voluntary decision to waive his rights to speak with the officers. While the officers may have engaged in psychological tactics to elicit the ultimate confession from defendant, there was no presence of physical coercion or threats to defendant. The detective repeatedly stated only that he wanted defendant's side of the story, and candidly told defendant when he believed that defendant was being dishonest. At no point did defendant indicate that he wanted to discontinue the discussion or did not want to give a statement.
Defendant's further contention that his confession was not voluntary because English is not his first language and no interpreter was provided is similarly not supported by the record. The record shows that defendant comfortably engaged in informal discussions with the non-interviewing officer during the break in time when Alsina was retrieving the Miranda waiver. It similarly demonstrated that defendant acknowledged each of his rights verbally or through body language before initialing and signing the waiver. Moreover, Alsina advised defendant to ask for clarification if he ever had trouble understanding a question, which defendant never did. In considering the totality of the circumstances, we conclude that the record supports the judge's determination that defendant's statement was voluntary and not the product of coercion. See Nyhammer, supra, 197 N.J. at 402. The judge's decision that defendant's statements were voluntary, and therefore admissible in evidence, was reasonable and comported with the applicable law. Consequently, we will not substitute our judgment for that of the trial judge.
Separately, defendant alleges that the trial judge erred in failing to recuse himself. "Judges are to act at all times in a manner that promotes public confidence, and must avoid all impropriety and appearance of impropriety." DeNike v. Cupo, 196 N.J. 502, 514 (2008) (quoting Code of Judicial Conduct, Canon 2(A)) (internal quotations and emphasis omitted). Judges are to "refrain from sitting in any causes where their objectivity and impartiality may fairly be brought into question." Ibid. (quoting State v. Deutsch, 34 N.J. 190, 206 (1961)) (internal quotations omitted). Rule 1:12-1 directs that a trial judge should, on the court's own motion, recuse him or herself under certain conditions. R. 1:12-1.
The primary question in considering whether recusal is appropriate is whether there is any "reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(g). A court must ask itself "[w]ould a reasonable, fully informed person have doubts about the judge's impartiality?" State v. McCabe, 201 N.J. 34, 44 (2010) (quoting DeNike, supra, 196 N.J. at 517) (internal quotations omitted). Motions for disqualification are "entrusted to the sound discretion of the judge and are subject to review for abuse of discretion." Id. at 45 (citing Panitch v. Panitch, 339 N.J. Super. 63, 66, 71 (App. Div. 2001)). Moreover, judges are not free to err on the side of caution; it is improper for a court to recuse itself unless the factual bases for its disqualification are shown by the movant to be true or are already known by the court." State v. Marshall, 148 N.J. 89, 276 (1997).
In the present case, the trial judge did not abuse his discretion in denying defendant's motion. We note that defendant does not point to any appearance of impropriety by the trial judge aside from the fact that the judge presided over the jury trial and had made rulings subject to the initial appeal. While defendant may have had a subjective view that the trial judge was biased against him, such wholly unsupported skepticism does not comport with the view of a "reasonable, fully informed person[,]" particularly when the substance of those rulings were affirmed on the initial appeal. See McCabe, supra, 201 N.J. at 44.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION