Opinion
DOCKET NO. A-4685-12T4
10-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN KATSIGIANNIS, Defendant-Appellant.
John J. Bruno, Jr., argued the cause for appellant (Bruno & Ferraro and Steven E. Braun, attorneys; Mr. Bruno, on the brief; Mr. Braun, of counsel and on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-06-1066. John J. Bruno, Jr., argued the cause for appellant (Bruno & Ferraro and Steven E. Braun, attorneys; Mr. Bruno, on the brief; Mr. Braun, of counsel and on the brief). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). PER CURIAM
After a jury trial, defendant John Katsigiannis was convicted of one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). The charges arose out of defendant's digital penetration of the fifteen-month-old infant daughter of his girlfriend. The trial court sentenced defendant to a custodial term of fifteen years, subject to the parole ineligibility period required by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following arguments for our consideration:
POINT IHaving considered those arguments, we affirm defendant's conviction but remand for clarification or reconsideration of the trial judge's sentencing analysis as to aggravating factor one.
THE PRE-TRIAL MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED IN FULL, AND MR. KATSIGIANNIS WAS DENIED FUNDAMENTAL FAIRNESS AND DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 1 OF THE NEW JERSEY CONSTITUTION.
POINT II
MR. KATSIGIANNIS WAS IN CUSTODY WHEN HE PROVIDED HIS INITIAL STATEMENT TO THE POLICE AND HIS SUBSEQUENT STATEMENTS SHOULD HAVE BEEN SUPPRESSED.
POINT III
DESPITE THE PROVIDING OF MIRANDA WARNINGS, THE STATEMENTS PROVIDED BY MR. KATSIGIANNIS AT THE POLICE STATION WERE INVOLUNTARY AS HE PROVIDED THEM AFTER HAVING SPENT MANY HOURS IN POLICE CUSTODY, WHILE IN A STATE OF EXHAUSTION, AFTER HE HAD BEEN DENIED THE OPPORTUNITY TO TALK TO HIS FATHER, AND AFTER ASKING WHETHER HE NEEDED A LAWYER.
POINT IV
THE TRIAL COURT ERRED BY FAILING TO PROVIDE LESSER INCLUDED OFFENSE INSTRUCTIONS TO THE JURY.
POINT V
THE MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AND THE CHARGE AGAINST MR. KATSIGIANNIS DISMISSED.
POINT VI
THE COURT SHOULD HAVE GRANTED THE MOTION FOR A NEW TRIAL.
POINT VII
THE SENTENCE IMPOSED WAS EXCESSIVE.
I.
The State's proofs at trial adduced the following relevant facts.
Background
At the time of the incident in question, defendant was a twenty-four-year-old male who resided in his father's home. He had attended some college courses, and was then employed in a sales position at a business supply company. At the time, he was involved in a relationship with L.R., the mother of K.P., the infant victim in this case. Defendant has no biological relationship with the infant.
We use initials for the child and her mother to protect the child's privacy.
L.R. and defendant had dated for about a month and a half up to that point. She and her infant daughter would often stay with defendant. L.R. entrusted defendant in taking on certain caretaking responsibilities for K.P., such as babysitting and caring for the infant while L.R. was away.
Events At the Barbecue and at the Pool
Defendant, L.R., and K.P. arose at around 10:00 a.m. on the morning of Saturday, June 30, 2007, to prepare for a barbecue they planned to host for a small group of defendant's friends. Friends arrived at defendant's home later that afternoon, and the group continued their gathering in defendant's backyard through to the late afternoon. Both defendant and L.R. consumed alcohol and smoked small amounts of marijuana during that time and while in K.P.'s presence. At the time, K.P. was fifteen months old.
At one point during the gathering, around 2:30 p.m., defendant offered to take K.P. inside the house for a nap. L.R. obliged, as defendant had cared for K.P. numerous times in the past. As L.R. recounted, "[she] didn't think there was anything odd about it at the time." Defendant left the group with K.P. and apparently brought the infant to an upstairs bedroom.
After a period of time that defendant was inside with K.P., L.R. and one of defendant's guests also went into the home to look for him because, according to L.R., "he had been apart from the rest of the group and inside the home, so we were wondering where he was." The two went to the upstairs bedroom, where the friend cracked open the door. Defendant immediately pushed the door closed, telling both L.R. and the friend that they should go back outside to the barbecue because his grandmother was napping upstairs, and that he would meet them outside. Thereafter, defendant rejoined the group outside, and told L.R. that he had changed the infant's diaper and had put her to sleep.
Later, at about 7:00 p.m., the group began to end the barbecue and prepare to go to a nearby public pool. Defendant returned upstairs to K.P. While alone with her, he changed her into "swimmie" diapers and a swimming suit, and brought the infant downstairs to leave. When the group reconvened at the pool, defendant, L.R., and K.P. stayed together in the shallow portion, away from the rest of the group.
L.R. then observed that K.P. seemed cold, and asked defendant to hand her the infant to dry off. Defendant eventually got out of the pool with K.P., and brought her over to her mother. L.R. then took K.P. to a nearby pool bench and changed the infant out of her wet swimmies and into dry diapers and clothes. L.R. did not "notice anything odd" about K.P.'s diaper at that time, apparently because she was rushing to change the infant while in public. L.R. also did not notice anything odd in the way K.P. was acting at the time, and instead observed that the baby seemed "more calm than usual," likely because "she had been tired from a long day."
Eventually, the group left the pool at about 8:30 p.m., and returned to defendant's home. Later that evening, at around 10:00 p.m. and after the group had left defendant's home, L.R. suggested that she clean K.P. and give her a bath. However, defendant insisted that he do it instead. He took K.P. into the bathroom with him, and closed the door behind them. L.R. nevertheless followed defendant to the bathroom moments later and opened the door. She saw K.P., who defendant had undressed, as well as K.P.'s diaper, open on the floor. The mother observed that K.P.'s diaper contained significant blood stains. She immediately took K.P. from defendant, brought the infant to the bedroom across the hallway, and laid her down upon the bed. L.R. saw that the K.P. had an "open tear" in her vagina that was bleeding profusely. The infant was not crying, but instead seemed quiet and subdued as she had been at the pool.
Events At the Hospital
L.R. demanded that defendant call the police and rush them to the hospital. At first, defendant resisted, insisting that the infant's apparent injuries were not that serious. L.R. insisted that they were to go to the hospital, or that she would phone her own mother about K.P.'s injuries. Defendant relented, and soon thereafter he drove the three to a local hospital.
Defendant, L.R., and K.P. arrived at the hospital at about 10:30 p.m. later that evening, June 30, 2007. Dr. Leah Ragundin, the pediatric emergency doctor on call that evening, conducted an intake review of the child, including a physical examination and medical documentation of K.P's injuries. After determining that K.P. had sustained lacerations to her hymenial tissue and vaginal canal, Dr. Ragundin made further referrals to Dr. Victor Valda, a pediatric surgeon, and Dr. Julia Debellis, a pediatrician and expert in child sexual abuse.
Dr. Debellis interviewed defendant and L.R. about what had happened to the child. She then conducted an evaluation using a medical tool, known as a colposcope, that is similar to a microscope, which allowed her to inspect K.P.'s injuries. The doctor photographed her observations as documentation. Dr. Ragundin then directed the infant to Dr. Valda for emergency surgery. On the basis of medical observations, Dr. Debellis also contacted the Division of Youth and Family Services ("DYFS") as well as the Bergen County Prosecutor's Office.
Following Dr. Debellis' examination, about thirty to forty-five minutes after arriving at the hospital, defendant left to search for his friends from earlier that day. According to defendant, he sought to gather information on what would have caused K.P.'s injuries. His friends, who were by this time at a bar, were intoxicated. They did not know whether or how K.P. had been injured. Defendant thereafter returned to the hospital.
The Police Involvement
Within about a half hour to forty-five minutes of defendant's return to the hospital, at about 3:30 a.m. in the early morning of July 1, 2007, Sean Macys, a uniformed police officer, arrived at the hospital. The officer was able to speak with defendant and L.R. only briefly until the arrival of a plainclothes officer, Detective Michael Guzman, of the Prosecutor's Office's Sex Crimes and Child Abuse Unit.
In accordance with police protocol, the officers separated defendant and L.R. by asking defendant to step into an adjacent unoccupied hospital room with Officer Macys, while L.R. stayed beside her infant daughter in her daughter's hospital room. Officer Macys walked with defendant to the next door room, and did not place his hands on defendant. Detective Guzman then spoke with each of the adults individually and asked if they were able to provide a written statement of their respective accounts of the events from earlier that day. Both agreed to do so.
Officer Macys provided defendant with a form on which defendant confirmed that he understood he was not under arrest, and that he was providing his statement voluntarily. The form was four pages in length. The bottom of each page of the form contained language confirming that the writer provided the statements truthfully, and that he did not request the advice of a lawyer. Defendant appended his signature on the bottom of each page, immediately after that language.
Although this form has not been furnished on appeal, the record contains details of its contents.
As defendant was writing his statement, he asked Officer Macys, "[D]oes this mean I'm under arrest?" The officer responded, "[D]id anyone read you your rights, you didn't get your rights read, right[?]" To which defendant said "[n]o." Defendant later indicated, "I think that was the extent of the conversation I may have had."
Officer Macys stayed in the hospital room with defendant as he completed the written statement, although the officer sat "off to the corner of the room just . . . sitting there waiting." The door to defendant's hospital room was never closed during the time he provided his written statement, nor did any officer obstruct defendant's ability to leave the room. When defendant completed his statement, Officer Macys co-signed and dated the witness line on the last page of the form. Defendant was not allowed back in the room with L.R. or the infant, although the officers did not otherwise restrict his movement.
Shortly after defendant and L.R. completed their written statements, local police detectives James Corcoran and Jeff Welsh arrived at the hospital, after having received a report from police dispatch of a potential child sexual assault. Neither detective was uniformed. Upon their arrival, the detectives spoke with Officer Macys and Detective Guzman, as well as to a DYFS worker. The officers also reviewed the respective written statements.
The Searches of the Pool, Defendant's Residence, and Defendant's Car
The detectives decided to investigate the pool and defendant's home. Defendant agreed to allow the local police detectives and Detective Guzman to search his home to retrieve the bloody diapers and wipes, along with written consent to photograph his home. Soon thereafter, the local police dispatched an officer to observe defendant's residence.
Defendant agreed to accompany the officers to the pool. Before they left the hospital, the officers asked defendant whether he had any weapons on him, to which he replied in the negative. One of the detectives patted defendant's legs and retrieved his cell phone from his person. Defendant, Detective Welsh, and Detective Corcoran together drove in a car to the pool. Once there, defendant led the detectives to the area where he, L.R., and the infant had been earlier the previous afternoon. The detectives retrieved K.P.'s diaper in a trash can near where L.R. had changed the infant. After about ten to fifteen minutes, the three men left the pool and headed to defendant's residence.
Police officers arrived at defendant's residence in the early morning hours of July 1, 2007. Defendant's father allowed the police to enter. The other occupants of the home had awoken by this time. Defendant, Detective Corcoran, and Detective Welsh entered the home and walked upstairs to the bedroom. Defendant spoke briefly with his father as he entered, but the officers interrupted their conversation, and instead directed defendant towards the second floor.
Once upstairs, defendant was not permitted to speak with his family members. Officers instructed defendant to remain in the upstairs bedroom, and he was accompanied by one or more uniformed officers at all times.
Defendant's family members were congregated on couches in the family room, with a police officer stationed there. The police declined to allow defendant's father to join defendant upstairs, and they also did not allow defendant's grandmother to speak to him in Greek.
About two or three hours later, defendant and several of the officers left his residence and headed to the hospital and defendant's car which was parked there. Defendant consented to a search of his car. The officers removed a laptop from the trunk. The officers then escorted defendant to the local police headquarters.
Interrogation of Defendant at Police Headquarters
Upon arriving at headquarters, the police provided Miranda warnings to defendant. He signed an acknowledgment form indicating that he understood his right to remain silent and waived it. Defendant was asked to provide another written statement recounting his version of the events. He completed that second written statement at around 11:02 a.m.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The form has not been furnished on appeal, but its contents are reflected verbatim in the record.
The activities in the interrogation room while defendant was in there were videotaped. We have reviewed the pertinent portions of that videotape as part of the appellate record.
Defendant then waited in the interrogation room for the next two hours. During that time, defendant was able to leave the room to use the restroom, while escorted by one of the officers. The officers also offered him food, which defendant declined. A detective did hand defendant a pull-over sweatshirt when he indicated that he was cold. The videotape shows that defendant placed his head down on the table for about fifteen minutes, from 11:58 a.m. to 12:13 p.m.
The interview began at 1:06 p.m. The dimensions of the interrogation room were about twelve feet by twelve feet. Detective Corcoran primarily conducted the interview, with Detectives Guzman and Welsh flanking his sides. On the other end of the table sat defendant, facing the detectives and the door.
At the outset of the interview, Detective Corcoran formally introduced himself and the other two detectives, and reviewed with defendant the various consent forms and defendant's two written statements. Notably, Detective Corcoran went over defendant's Miranda rights with him again and defendant agreed to be interviewed without an attorney present.
Detective Corcoran then reviewed in detail with defendant his version of the events. The detective challenged defendant on aspects of his narrative that seemed to be inconsistent. The detective repeatedly encouraged defendant to be truthful in his responses, telling him that honesty was "the best bet." The following critical exchange then occurred, resulting in defendant admitting that his finger did enter the infant's vagina although, as defendant claimed, accidentally:
DETECTIVE CORCORAN: . . . Tell me exactly what happened because that's the only way — think about this. Think about what's gonna happen from this point forward if you're not honest. Okay.
DEFENDANT: Do I need a lawyer?
DETECTIVE CORCORAN: Do you need a lawyer? You can have a lawyer present if you want one. Okay. That's up to you. If you'd like, you can have one. That's a decision that you have to make and we provided you with a form indicating that you wished to talk to us. Now, you can have that lawyer come here if you want, but it's your call. Okay. Honesty is the best bet. Okay, honesty, okay. Tell us —
DEFENDANT: When, I did clean her.
DETECTIVE CORCORAN: Okay.
DEFENDANT: My finger did go in by accident. It wasn't intentional. As soon as it went in, I pulled out.
DETECTIVE CORCORAN: Okay.
DEFENDANT: She, she didn't cry. She kinda squirmed.
DETECTIVE CORCORAN: Don't you feel better now? John, look at me. I know you wanna cry and I don't blame you. Okay. If I was in your situation, I would feel the same way. All right, but you gotta feel better that it's off your chest, right? Am I right? So, so —
DETECTIVE WELSH: Was there blood, there must have been blood at that time, John?
DEFENDANT: Yeah, a little, a little bit of blood came off my finger. Nothing came out from her like I, and I, and I —
DETECTIVE WELSH: You know why I say that because she's okay. We got a call from the doctor a little while ago. She's gonna be okay.
DETECTIVE CORCORAN: Can I get you some water or tissues, John?
DETECTIVE WELSH: I'll get him a glass of water.
DETECTIVE CORCORAN: It's all right, John. Listen, listen to me. All right. It'll be all right. You'll get through this, okay. Look at me. All right? Honesty's the best policy, man. Okay.
DEFENDANT: I didn't say anything [previously] because I was scared.
[Emphasis added.]
Following defendant's admission, the detective asked him, twice, if he felt that the officers had treated him properly and fairly. Defendant agreed that they had. The officers then obtained defendant's written consent to photograph his hands and take a buccal DNA swab from his mouth.
The parties stipulated at trial that the DNA analysis confirmed the presence of blood in the infant's diaper, but was inconclusive as to whether defendant's DNA was present in the anal and vaginal swabs taken from the infant.
The Indictment and Defendant's Motion to Dismiss It
Defendant was subsequently charged by a grand jury in a two-count indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (Count One) and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Count Two). Defendant moved to dismiss the indictment, arguing that the assistant prosecutor had failed to instruct the grand jurors that the State must prove that defendant engaged in the sexual conduct "knowingly" rather than, as he contended, accidentally. The motion judge denied the request to dismiss Count One of the indictment. However, the judge did grant dismissal of Count Two because the State had not proved that defendant had a legal duty to care for the infant and had not assumed such responsibility.
A different judge ("the suppression judge") ruled on defendant's subsequent motion to suppress defendant's statements to the police, and a third judge ("the trial judge") presided over the jury trial.
Neither the State nor defendant sought interlocutory review of the motion judge's rulings.
Defendant's Suppression Motion
Defendant next moved to suppress his various statements to the police that he made at the hospital, the pool, his residence, and in his interrogation at police headquarters. He argued that he was effectively in police custody from the time that he initially was with them at the hospital and that he was not free to leave. He further concluded that the officers exercised undue influence over him that invalidated his consent forms. In addition, he argued that the officers who interrogated him used coercive tactics and that he was too exhausted to have provided a knowing and voluntary waiver of his Fifth Amendment rights.
After six intermittent days of evidentiary hearings and a review of the videotape of the interrogation room, the suppression judge denied defendant's application. The judge rejected defendant's claim that he had been in custody while he was in the company of the officers before they arrived at the stationhouse. The judge also rejected defendant's claims of invalid consent to search and a coerced confession. Further, the judge disagreed with defendant's claim that he had unambiguously invoked his right to counsel during the interview. Instead, the judge concluded that the State had proven beyond a reasonable doubt that defendant had provided his incriminating statements "knowingly, voluntarily, and intelligently after a waiver of rights."
The Trial, the Charge Conference and the Jury's Verdict
The case was tried before a jury over eight intermittent days in October and November 2012. The State presented various written and other exhibits, including photographs, medical documentation, and defendant's written statements. In addition, the State played defendant's videotaped statement, including his admission of penetrating the infant's vagina with his finger. The State also presented testimony from L.R., Detectives Corcoran and Guzman, and one of the hospital's treating physicians. The physician described the injury to the infant as an aggressive penetrating trauma, inconsistent with the mere act of wiping a baby while changing a diaper.
Defendant testified on his own behalf. He also presented testimony from his grandmother, and two of the other treating doctors. In essence, defendant maintained that his contact with the child's vagina was accidental. One of defendant's physician witnesses, Dr. Ragundin, acknowledged on cross-examination that the infant did, in fact, exhibit signs of sexual abuse, agreeing that although there were no external injuries observed, there were lacerations and inflammation within the infant's labia.
At the charge conference, defense counsel requested the court to instruct the jury on several alleged lesser-included offenses, specifically third-degree aggravated assault with significant bodily injury, N.J.S.A. 2C:12-1(b)(7), and simple assault, N.J.S.A. 2C:12-1(a), a disorderly persons offense. The prosecutor opposed that request, and the trial judge denied it, finding the requested instructions inappropriate in this case.
The jury returned a guilty verdict on the sole count of the indictment twenty-four minutes after it retired for deliberations. Defendant moved for a new trial, arguing, among other things, that the jurors' short period of deliberations signified that they did not fairly and impartially consider the case. The trial judge rejected that claim, noting that the jury had been appropriately instructed on the law, and that the short time interval before the verdict was returned did not mean that the jurors failed to "give careful thought to this case."
The Sentencing
As we have already noted, the trial judge sentenced defendant to a fifteen-year custodial term, subject to NERA, rejecting the State's request for a harsher twenty-year maximum term. The judge invoked aggravating sentencing factors one, N.J.S.A. 2C:44-1(a)(1) (whether the nature of the defendant's conduct was "especially heinous, cruel, or depraved"); two, N.J.S.A. 2C:44-1(a)(2) (gravity of the offense); three, N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). Conversely, the judge found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant's lack of criminal history), applied. The judge candidly noted in his oral remarks at sentencing that, after initially considering the matter, he had been inclined to impose an eighteen-year term for this first-degree crime, but that he had subsequently been persuaded to impose a lesser term of fifteen years because of defense counsel's presentation and defendant's lack of a prior criminal record. The judge also made a specific finding that defendant's sexual conduct was neither repetitive nor compulsive, based on his diagnostic evaluation in a report from Avenel.
This appeal ensued. We address defendant's arguments in turn.
II.
Defendant's first point is that the trial court erred in denying his motion to dismiss the indictment due to the prosecutor's omission of the requisite state-of-mind element in advising the grand jurors on the law. We conclude that this argument provides no legal or persuasive basis to reverse defendant's conviction, because he was found guilty by a properly-instructed petit jury.
Several well-established principles guide our analysis of this issue. "A prosecutor is obligated to charge the grand jury as to the elements of specific offenses and specific exculpatory defenses." State v. Triestman, 416 N.J. Super. 195, 205 (App. Div. 2010) (citing Pressler, Current N.J. Court Rules, comment 1.2 on R. 3:6-3 (2010)). "Because of the non-adversarial nature of grand jury proceedings, however, incomplete or imprecise legal interpretations will not warrant dismissal of the indictment." State v. Laws, 262 N.J. Super. 551, 562 (App. Div. 1993) (citing State v. Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev'd on other grounds, 110 N.J. 258 (1988)). Rather, the prosecutor's instructions to the grand jury must be "blatantly wrong," State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001), such that they were "misleading or an incorrect statement of law." Triestman, supra, 416 N.J. Super. at 205 (citing State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996)); see also Laws, supra, 262 N.J. Super. at 562-63.
"Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and internal quotation marks omitted). "[T]he decision whether to dismiss an indictment lies within the discretion of the trial court . . . and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Id. at 229 (citation omitted). Such a decision will constitute an abuse of discretion only "where 'the "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.Triestman, supra, 416 N.J. Super. at 202 (alteration in original) (quoting United States v. Scurry, 193 N.J. 492, 504 (2008)).
The State, to its credit, conceded at the oral argument on appeal that the assistant prosecutor should have advised the grand jurors that the law requires a demonstration that a defendant acted "knowingly" in order to commit aggravated sexual assault in violation of N.J.S.A. 2C:14-2(a)(1). See N.J.S.A. 2C:2-2(c)(3) (clarifying that the State may be required to prove a culpable mental state with respect to some or all of the material elements of an offense, despite the absence of an express reference to that culpable state of mind in the statute defining the offense, "if the proscribed conduct necessarily involves such culpable mental state"). See also State v. G.V., 162 N.J. 252, 270 (2000) (noting that the mental culpability for aggravated sexual assault of a minor under the age of thirteen "requires the actor to act knowingly"); State v. Zeidell, 154 N.J. 417, 428 (1998) (same). As a matter of law, however, the absence of such an instruction to the grand jurors is rendered inconsequential by the petit jury's ultimate guilty verdict.
The United States Supreme Court has held that, notwithstanding identified deficiencies in the grand jury process, such deficiencies are rendered harmless upon the return of a guilty verdict from a properly-instructed petit jury. United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941-42, 89 L. Ed. 2d 50, 56 (1986). As the Court reasoned in Mechanik, "the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." Ibid.
We have repeatedly applied these harmless error principles set forth in Mechanik. See, e.g., State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011) ("[A] guilty verdict is universally considered to render error in the grand jury process harmless."); Ball, supra, 268 N.J. Super. at 120 ("Here, the jury's verdict, after appropriate instruction, represents a finding beyond reasonable doubt that defendants were guilty of the offense. Thus, even if the grand jury instructions were erroneous, the error was rendered harmless by the subsequent guilty verdict."); State v. Lee, 211 N.J. Super. 590, 599-600 (App. Div. 1986) (concluding that the lack of timeliness of defendant's motion had rendered the error "harmless" and that defendant's contentions had not been "persuasive" because defendant had been found guilty beyond a reasonable doubt in a presumably error-free trial and defendant had claimed no errors), certif. denied, 108 N.J. 648 (1987).
The New Jersey Supreme Court has not ruled explicitly on this issue, but it has cited favorably in dicta to Lee, supra, 211 N.J. Super. at 599, for the proposition that a deficiency in the grand jury process specifically would ultimately be "rendered harmless or moot by a subsequent fair trial." See State v. Allah, 170 N.J. 269, 289 (2002).
It is manifestly clear that the petit jurors at trial were properly charged that the State was obligated to prove that defendant "knowingly" engaged in conduct satisfying the elements of aggravated sexual assault. The trial judge issued the detailed, multi-paragraph model instruction defining the term "knowingly." See Model Jury Charge (Criminal) "Aggravated Sexual Assault-Victim Less Than 13" (rev. Jan. 24, 2005). The petit jurors found defendant guilty of the offense, as it was properly charged to them, beyond a reasonable doubt. That rendered harmless any error in the grand jury proceedings, which are guided by a lesser proof standard of probable cause showing that the State has simply presented a prima facie case. Hogan, supra, 144 N.J. at 227.
Applying the controlling precedent of Mechanik and our own state courts' applications of that decision, defendant has no sound legal basis to set aside his conviction because of the inadequacies of the legal instructions provided to the grand jurors. We therefore sustain his conviction as to this argument, which obviates any need to address whether the motion judge should have granted his motion to dismiss at the pretrial stage.
III.
Defendant next argues that the trial court should have granted his motion to suppress. We reject his contentions, mainly for the reasons expressed in the September 22, 2011 oral opinion of the suppression judge, except for one discrete aspect of the judge's analysis.
To begin with, we are satisfied that defendant was not in custody, for purposes of the constitutional principles respecting custodial interrogation, until he was brought to his residence by the detectives. In this context, the concept of custody is an "objective determination," State v. Carlucci, 217 N.J. 129, 144 (2014), based on "how a reasonable [person] in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984). "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." State v. P.Z., 152 N.J. 86, 103 (1997). In doing so, courts must consider the "totality of the circumstances." State v. Cook, 179 N.J. 533, 563 (2004). The suppression judge soundly applied these concepts, with one exception.
Chronologically, defendant's interactions with the police on the day in question essentially relate to three phases: (1) his interactions with the police at the hospital and the community pool; (2) the interactions at defendant's residence; and (3) the interactions at police headquarters. We agree with the State that defendant was not in custody at either the hospital or the pool. Defendant's interactions with the police at those locations were voluntary and without any prohibition on his ability to leave. In fact, defendant acted at those locations as if he was eager to assist in the investigation. There were no physical restraints imposed, and the officers did not tell defendant that he was required to accompany or remain with them.
Turning to the next phase of the events, we concur with defendant that his freedom of movement was curtailed while the police searched his residence. Four to six officers were inside the house or within its curtilage. During a substantial portion of that time, the officers kept defendant in the upstairs portion of the residence, where the family's bedrooms were located. A police officer continually stood guard beside him during this time, while other police officers roamed throughout the home in search of evidence. A separate police officer stood guard at the stairwell, preventing defendant from going downstairs, or any of defendant's family members from joining him upstairs. Defendant was not allowed to speak with any of his family members. Given these circumstances and the officers' explicit prohibition on defendant's ability to speak with or see his family members within the house, we conclude that he was in custody, for purposes of self-incrimination analysis at that point.
On this subsidiary point, we part company with the suppression judge, who concluded that defendant was not in custody until he arrived at the police station.
However, the police did not engage in custodial questioning of defendant at the residence that triggered a duty to provide him with Miranda warnings at that point. There is no proof in the record that the officers directed questions at defendant at the residence that were used at trial to incriminate him.
At the third phase of the chronology — when defendant was at the police station — he was clearly (as the State acknowledges and the suppression judge found) in custody, and was subjected to interrogation. However, the detectives appropriately provided oral and written Miranda warnings to defendant, and he executed an acknowledgment form confirming that he understood his right to remain silent. The trial court correctly deemed that waiver to be valid. Defendant is an educated, employed individual. He obviously has the cognitive ability to function in society and communicate with others. The record manifestly shows that he was not tricked into or coerced to sign the Miranda waivers.
We likewise reject, as did the suppression judge, defendant's claim that the methods used by the interrogating officers were coercive, or that his admissions to the officers were involuntary and should have been suppressed. Although defendant emphasizes that he had been awake for many hours by the time he was questioned, there is substantial and adequate support for the suppression judge's finding that he was sufficiently alert and lucid to understand what was occurring. The videotape confirms that defendant's responses to the officers were coherent and interactive. Although defendant had put his head down for a short period before the interrogation began, he was alert throughout the questioning itself.
The suppression judge did not err in rejecting defendant's claim that he had unambiguously invoked his right to counsel by interposing the question "Do I need a lawyer?" Detective Corcoran appropriately responded to defendant that he would be provided with an attorney if he wanted one. Although the detective gratuitously reminded defendant that he had already signed a waiver form agreeing to speak with the officers, that stray reminder did not alter the overall non-coercive nature of the discussion. The detective's repetition of his admonition that "honest[y] is the best policy," while perhaps out of place in his response to defendant's question, did not manifestly cause defendant to decide to speak with the officers without counsel present. Detective Corcoran properly responded to defendant's question concerning whether he needed counsel. Defendant did not raise the topic again, and instead proceeded to admit to having penetrated the infant's vagina with his finger.
The circumstances here do not bespeak an unambiguous and valid invocation of defendant's right to counsel. As we ruled in State v. Messino, 378 N.J. Super. 559, 573 (App. Div.), certif. denied, 185 N.J. 297 (2005), the mere question "Do you think I need a lawyer?" does not, in and of itself, connote a request for counsel. See also State v. Alston, 204 N.J. 614, 620, 625-26 (2001) (similarly treating a suspect's query of "Should I not have a lawyer?").
In sum, we affirm the trial court's denial of defendant's motion to suppress. The totality of circumstances supports the court's finding that defendant's rights against self-incrimination were not violated and that his statements were properly admitted against him at trial.
IV.
Although he did not request them below, defendant argues for the first time on appeal that the trial judge should have charged the jurors with the elements of several provisions that he characterizes as "lesser-included" offenses. In particular, he maintains that the judge should have given the jury the option of considering whether, instead of the first-degree crime of aggravated sexual assault, he committed: (1) second-degree sexual assault under N.J.S.A. 2C:14-2(b); (2) third-degree aggravated criminal sexual contact under N.J.S.A. 2C:14-3(a); or fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). We reject this argument because it is neither supported by the law nor by the actual proofs adduced at trial.
Count One of the indictment, the sole count remaining after Count Two was dismissed before trial, charged defendant with aggravated sexual assault upon a minor under the age of thirteen. N.J.S.A. 2C:14-2(a)(1). That offense requires proof that defendant knowingly committed an act of sexual penetration of a victim less than thirteen years old. Ibid. Here, the record contains no genuine dispute that the infant victim was digitally penetrated by defendant. Her age under thirteen is equally beyond dispute.
There was no sound basis for the trial judge to have charged second-degree sexual assault, N.J.S.A. 2C:14-2(b), in this case, even if such a charge had been requested. That second-degree statute pertains to when a defendant commits an act of "sexual contact" with a minor victim who is less than the age of thirteen and at least four years younger than the defendant. Ibid. "Sexual contact," as defined in N.J.S.A. 2C:14-1(d) in pertinent part as "an intentional touching . . . of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." Ibid. By contrast, the first-degree offense of aggravated sexual assault requires proof of penetration, irrespective of whether there is a motive of degradation, humiliation, sexual arousal or sexual gratification. See N.J.S.A. 2C:14-2(a).
Although defendant's brief assumes, as a matter of law, that sexual assault under N.J.S.A. 2C:14-2(b) is a lesser-included offense of aggravated sexual assault under N.J.S.A. 2C:14-2(a), he cites no precedent for that proposition. Nor does the State's brief cite to any authority treating a subsection (b) violation under the statute as a lesser-included offense of subsection (a). Our own research has not identified a published opinion analyzing and conclusively resolving whether N.J.S.A. 2C:14-2(b) is a lesser-included offense of N.J.S.A. 2C:14-2(a), or whether, alternatively, it is merely a lesser-related offense. For the sake of completeness, we shall consider both possibilities. In either event, defendant's argument for reversal fails.
If, hypothetically, N.J.S.A. 2C:14-2(b) is classified as a lesser-included offense, the trial court would only be obligated to charge the jury with the elements of that offense where the proofs "clearly indicate" a factual basis for finding guilt of that offense. See State v. Jenkins, 178 N.J. 347, 361 (2004). The present case was tried over the central issue of defendant's state of mind, focusing on whether he had penetrated the child accidentally, as he asserted, or, knowingly, as the State contended. The proofs and arguments at trial did not focus on whether defendant had acted for sexual gratification. Given this context, a jury instruction for second-degree sexual assault was not "clearly indicated," and there was no obligation for the trial judge to instruct the jurors on that offense, sua sponte.
Alternatively, if sexual assault, as defined in N.J.S.A. 2C:14-2(b), is regarded as a lesser-related offense relative to aggravated sexual assault under N.J.S.A. 2C:14-2(a), the trial court would lack the authority to charge the elements of subsection (b) in the absence of consent or a request by defendant of such a lesser-related charge and a corresponding waiver of his right to be indicted for that offense. See State v. Thomas, 187 N.J. 119, 132-33 (2006) (explaining this key distinction between lesser-included offenses and lesser-related offenses, the latter comprising "offenses that share a common factual ground, but not a commonality in statutory elements, with the crimes charges in the indictment"). Here, defendant provided no such consent and made no such request at trial. Hence, the trial judge did not err in failing to charge the elements of N.J.S.A. 2C:14-2(b), sua sponte.
The other two potential offenses hypothesized by defendant on appeal, N.J.S.A. 2C:14-3(a) and N.J.S.A. 2C:14-3(b), did not mandate a jury instruction because they are not truly lesser-included offenses of aggravated sexual assault. Both of those offenses specifically refer to other elements that are not present in N.J.S.A. 2C:14-2(a)(1). Tn particular, N.J.S.A. 2C:14-3(a) requires, as elements of the offense, that the actor commit a "sexual contact" under circumstances set forth in N.J.S.A. 2C:14-2(a)(2) to -2(a)(7). Likewise, N.J.S.A. 2C:14-3(b) requires, as elements of the offense, that the actor commit a sexual contact under circumstances set forth in N.J.S.A. 2C:14-2(c)(1) to -2(c)(4). Because defendant was charged with N.J.S.A. 2C:14-2(a)(1), neither of these two purported lesser-included offense pertain. Accordingly, it cannot be said that there is "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 115-17 (1994).
V.
Defendant's contention that the trial court improperly denied his motion for judgment of acquittal -- because the State's proofs of knowing penetration were allegedly inadequate -- requires little comment. "[T]he relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)); see also State v. Reyes, 50 N.J. 454, 458-59 (1967). Viewing the record, as we must, in that deferential manner, we conclude that there certainly is a rational basis in the record to conclude beyond a reasonable doubt that defendant knowingly engaged in digital penetration of the minor victim. The forensic and lay evidence, coupled with defendant's own admissions and his reluctance to take the infant to the hospital when the mother discovered the bleeding, amply support his guilt, and a circumstantial inference that his wrongful acts were committed knowingly, rather than accidentally.
Similarly, defendant's new trial motion was appropriately denied. No "miscarriage of justice" occurred here, as the jurors rationally could have found beyond a reasonable doubt that all elements of the offense were proven. State v. Afanador, 134 N.J. 162, 178 (1993); R. 4:49-1(a). The fact that the jury deliberated for less than a half hour does not necessarily signify that they failed to consider the evidence fairly and abide by the judge's instructions. As the trial judge noted, it would not necessarily take a long time for the jurors to reach agreement on a verdict in this one-count case.
VI.
We lastly address, without much need for elaboration, defendant's arguments that his sentence was improper. Our standard of review is limited, as the discretion of sentencing judges generally "should be immune from second guessing." State v. Bieniek, 200 N.J. 601, 612 (2010). If a sentencing judge properly identifies and balances the statutory aggravating and mitigating factors, and each factor is supported by substantial evidence in the record, the sentence should be affirmed on appeal. State v. Carey, 168 N.J. 413, 426-27 (2001).
Defendant argues that the trial court erred because it did not begin its sentencing analysis in the mid-range of the ten-to-twenty years for a first-degree offense; that it double-counted in finding aggravating factor one; and that it did not consider appropriate additional mitigating factors. In a supplemental brief, defendant argues that the sentencing judge violated the Supreme Court's recent decision in State v, Fuentes, 217 N.J. 57 (2014), in which the Court reiterated the care needed to be exercised by the trial judges in applying the statutory sentencing factors.
We discern no impropriety in the manner in which the judge approached his sentencing decision. The judge frankly acknowledged that his initial review of all of the sentencing considerations made him inclined to impose a sentence above the fifteen-year midpoint of the first-degree range. The judge did not apply any preordained presumption to impose a sentence above the midpoint. Instead, the judge independently evaluated the sentencing factors based on the written submissions, and then he listened to the sentencing colloquy of defense counsel. That colloquy persuaded the judge to impose a lower sentence than the one that he had first contemplated. There is nothing wrong with that. In fact, defendant benefited to some extent from the court's deliberative process, receiving a custodial term five years less than what the State was recommending.
We do have some concerns about whether the sentencing judge expressed a sufficient basis for finding the presence of aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (requiring a heightened character of the nature and circumstances of defendant's offense, including whether or not it was committed in an "especially heinous, cruel, or depraved manner"). Defendant argues that the court's reliance on aggravating factor one represents improper "double-counting," because the nature of a first-degree aggravated sexual assault is inherently severe. In Fuentes, supra, 217 N.J. at 75, the Supreme Court recently cautioned sentencing courts to "scrupulously avoid double-counting" of the elements of the offense when it also considered aggravating factor one. Ibid. (internal quotation marks omitted). The Court also reiterated the well-established principle that a sentencing court's "clear and detailed statement of reasons is . . . a crucial component of the process conducted by the sentencing court, and a prerequisite to effective appellate review." Id. at 74.
Here, the trial court did not adequately articulate on the record why aggravating factor one applies here and what special aspects of this first-degree offense warranted reliance on that factor. Although we have been furnished with the State's sentencing memo explaining why it thought that first factor was applicable, the sentencing judge himself did not expressly adopt those reasons.
The sentencing transcript reflects that the judge said, "[t]he nature and circumstances of [defendant's] offense and [his] reaction to what it is that [he] knowingly did in the jury's eyes [sic] exist as aggravating factor one."
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In light of the Court's recent guidance in Fuentes, we conclude that the best course of action is to remand this matter to the trial judge in order for him to either clarify his reasons for relying upon aggravating factor one or, in the alternative, reconsider the overall sentence without reliance on that particular factor.
VII.
The balance of defendant's arguments concerning his conviction and sentence, to the extent we have not already explicitly addressed them, lack sufficient merit to be addressed in this written opinion. R. 2:11-3(e)(2).
Affirmed as to the conviction; remanded for clarification or reconsideration of the sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION