Opinion
DOCKET NO. A-4862-14T2
01-09-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.V.P., JR., Defendant-Appellant.
Jennifer L. Gottschalk, attorney for appellant. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-02-0208. Jennifer L. Gottschalk, attorney for appellant. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant J.V.P., Jr., was convicted of eight counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); seven counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and one count of fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and 2C:14-3(b). The State had dismissed other counts of the indictment prior to trial, and the jury acquitted defendant of additional counts. After certain mergers, the judge imposed a sentence of ten years' imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on one of the first-degree aggravated sexual assault convictions and concurrent sentences on the remaining counts.
Defendant raises the following points on appeal:
POINT ONE - DEFENDANT DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS CONSTITUTIONAL RIGHTS BEFORE BEING QUESTIONED BY POLICE.We have considered these arguments in light of the record and applicable legal standards. We affirm.
POINT TWO - THE GRAND JURY PRESENTATION WAS TAINTED BY MULTIPLE LEVELS OF HEARSAY THAT REINFORCED THE VERSIONS OF UNLAWFUL SEXUAL CONDUCT ALLEGED BY ONE OF THE VICTIMS AND BY MISCHARACTERIZATIONS OF DEFENDANT'S STATEMENTS TO POLICE. (Not Raised Below).
I.
S.K. and A.K. were defendant's granddaughters, fifteen- and seventeen-years old respectively at the time the offenses were first brought to the attention of law enforcement in July 2012. S.K. reported to her mother, defendant's daughter, J.S., that defendant had touched S.K.'s breasts and vagina while she was alone with him in the balcony of the family church approximately one week earlier. J.S. confronted her father, who admitted this occurred and said he was going to church to speak to his pastor, who was also the chaplain of the local police department. The following day, July 12, 2012, J.S. took her daughter to the Burlington County Prosecutor's Office where S.K. reiterated the story and told investigators of prior sexual abuse by defendant in September and November 2011. Further investigation revealed defendant had committed sexual acts with A.K. prior to 2011. Defendant later provided a statement to investigators that was videotaped.
Before trial, Judge Charles A. Delehey conducted a hearing pursuant to N.J.R.E. 104(c) to determine two issues: whether defendant's statements to his pastor were privileged; and whether defendant was properly advised of his Miranda rights and knowingly and voluntarily waived those rights prior to providing his statement to investigators. J.S., Detective Brian Miller, defendant, his wife, the pastor and two other church members testified during the hearing that stretched over two non-consecutive days.
The evidence at the hearing revealed that on July 11, 2012, after being confronted by his daughter about S.K.'s allegations and admitting they were true, defendant went to church and told his pastor that he had inappropriately touched S.K. during Sunday services. The pastor then spoke with defendant and his wife, who had no prior knowledge of the incident. The pastor contacted the local police chief and told him of defendant's admissions.
The following day, J.S. brought S.K. to the Prosecutor's Office, where she agreed to participate in a consensual intercept of text messages between herself and defendant in which defendant admitted touching S.K.'s breasts and vagina. Later, during the evening of July 12, police arrived at defendant's home and asked to speak to him at the police station. He agreed and was driven to the station by his wife. Defendant also called his pastor and asked him to come to the station for support, and he did. Defendant and his wife testified the pastor told defendant to cooperate fully. However, the pastor testified that defendant was already being interrogated when he arrived at the station.
Detectives administered Miranda rights to defendant and he indicated his understanding. They then asked if he was "comfortable speaking with [them] . . . ?" Although he immediately answered in the affirmative, defendant then said he was "not comfortable, but [he had] to." The following exchange occurred:
A: It's uncomfortable because of what's goin [sic] on, but I, it's comfortable. I have to.Defendant subsequently executed a waiver of rights form and provided a statement that comprises more than one-hundred transcribed pages in which he admitted sexually abusing both granddaughters.
Q: Okay. Well, keeping your [r]ights in mind, you don't. . .
A: I'm not talking about my [r]ights. I'm just talking about, I, it's the uncomfortability [sic] of knowing what's gotta [sic] happen.
Q: Okay. Well, like I said, you're free to go. You don't have to stay here and all that at this moment . . .
A: No sir. I know I . . .
Q: keeping your [r]ights, you know.
A: I have to stay here.
Q: Okay. Well, that's under your own will and volition. You can. . .
A: Yes.
Q: go. . . .
Following the hearing, Judge Delehey issued his decision supported by a concise written statement of reasons. The judge concluded defendant's statements to his pastor were privileged under N.J.R.E. 511 ("Any communication made in confidence to a cleric in the cleric's professional character . . . shall be privileged."). However, the judge determined defendant's statement to law enforcement "was made voluntarily with a knowing and thorough appreciation of the consequences after the proper administration of Miranda warnings."
Before us, defendant argues his pastor was acting in his capacity as police chaplain and used his position to coerce defendant's confession. Defendant also contends police had sufficient evidence to charge him before interrogating him, failed to advise defendant he was a suspect and, therefore, defendant did not knowingly and voluntarily waive his Miranda rights. Lastly, defendant contends the interrogation should have stopped when he stated he was "uncomfortable." We reject these arguments.
The standards governing our review of the denial of defendant's motion to suppress his statement made to law enforcement are well-known. "When faced with a trial court's admission of police-obtained statements, an appellate court should engage in a 'searching and critical' review of the record to ensure protection of a defendant's constitutional rights." State v. Hreha, 217 N.J. 368, 381-382 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)). We "must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to special deference." Id. at 263 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). We review the trial court's legal conclusions de novo. Ibid.
"A confession or incriminating statement obtained during a custodial interrogation may not be admitted in evidence unless a defendant has been advised of his or her constitutional rights." Id. at 265 (citing Miranda, supra, 384 U.S. at 492, 86 S. Ct. at 1637, 16 L. Ed. 2d at 734). "Once a defendant has been so advised, the defendant may waive his or her Miranda rights and confess, but that waiver must be 'voluntary, knowing, and intelligent.'" Hreha, supra, 217 N.J. at 382 (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). "[T]he State shoulders the burden of proving beyond a reasonable doubt that a defendant's confession was actually volunteered and that the police did not overbear the will of the defendant." Id. at 383 (citing State v. Galloway, 133 N.J. 631, 654 (1993)). "In determining the voluntariness of a defendant's confession, we traditionally look to 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) (citing State v. Presha, 163 N.J. 304, 313 (2000)).
Judge Delehey reviewed the audio and video recordings of defendant's statement, and specifically found "defendant did not appear overborne, overwhelmed or brow beaten." The judge "observed nothing that could be construed as physical or psychological intimidation." Our independent review of the record, including the video recording of defendant's statement, "leads us to conclude that [Judge Delehey's] findings are supported by the entirety of the testimonial and videotaped record." Hubbard, supra, 222 N.J. at 270.
Defendant argues his pastor's admonition to cooperate with investigators was tantamount to coercion by the State, because the pastor served as chaplain to the police department. Judge Delehey never explicitly settled the factual dispute between defendant's and his wife's version of events, and the pastor's version. Nevertheless, regardless of whether the pastor spoke to defendant before the interrogation began or not, we reject the contention.
Assuming arguendo that the chaplain did see defendant in the police station and did tell him it was best to cooperate fully, it is undisputed that police informed defendant of his Miranda rights immediately thereafter. He acknowledged his understanding of those rights and voluntarily waived them prior to speaking to police. As Judge Delehey found, defendant was not subject to any physical or psychological intimidation.
Additionally, the investigators' failure to inform defendant he was a suspect prior to inviting him to the police station and commencing the interrogation did not render the waiver of his rights any less knowing or voluntary. As the Court said in Nyhammer, supra, 197 N.J. at 406, "we are not aware of any case in any jurisdiction that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning." Instead, law enforcement's failure to advise a person of his status as a suspect is "only one of many factors to be considered in the totality of the circumstances." Id. at 407.
Finally, "[i]n the context of custodial interrogation, once a defendant clearly and unambiguously invokes his right to remain silent, interrogation must cease." State v. Maltese, 222 N.J. 525, 545 (2015) (citing State v. Diaz-Bridges, 208 N.J. 544, 564 (2012)). Contrary to defendant's contention, his statement to investigators that he was "uncomfortable" was not an invocation of his right to remain silent. As the entire colloquy quoted above makes clear, defendant's discomfort was based upon what he was about to confess, and what he knew would result. In addition to explaining the Miranda rights to defendant, the investigators repeatedly make clear that he was not required to speak to them and was free to leave.
In sum, Judge Delehey considered the totality of the circumstances surrounding defendant's statement to law enforcement and concluded it was made voluntarily and knowingly after defendant waived his Miranda rights. The statement was properly admitted into evidence at defendant's trial.
II.
Defendant's second point lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Rule 3:10-2(c) requires that, with certain limited exceptions which do not apply here, "objections based on defects in the . . . indictment . . . must be raised by motion before trial." The failure to do so is deemed a waiver, although the court may, for good cause shown, grant relief. Ibid. Here, defendant never moved to dismiss the indictment. We have reviewed the allegations he now raises and find no good cause to relieve defendant of the rule's requirements.
Moreover, "[t]he rule also allows preservation of the issue because a guilty verdict is universally considered to render error in the grand jury process harmless." State v. Simon, 421 N.J. Super. 547, 551-552 (App. Div. 2011) (citing State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987)); see also State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994) (noting a subsequent guilty jury verdict establishes the existence of probable cause to indict), certif. denied, 140 N.J. 277 (1995). Therefore, even if the alleged improprieties defendant now raises for the first time merited further consideration, they would not compel reversal of defendant's conviction.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).