STATE IN THE INTEREST OF A.F. (FJ-11-0116-18, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1858-17T1
STATE IN THE INTEREST OF A.F.
______________________________
Submitted March 19, 2018 – Decided June 8, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FJ-11-0116-18.
Angelo J. Onofri, Mercer County Prosecutor,
attorney for appellant State of New Jersey
(Daniel Opatut, Assistant Prosecutor, of
counsel and on the brief).
Davis Law Firm, LLC, attorney for respondent
A.F. (Mark G. Davis, on the brief).
PER CURIAM
We granted the State's motion for leave to appeal from an
order suppressing statements made by fourteen-year-old A.F. during
a police interrogation conducted in the presence of his step-
mother, R.F.1 Because we are satisfied the court's findings of
fact are supported by substantial credible evidence in the record,
1
We employ initials to identify the juvenile and his step-mother
to protect the juvenile's privacy.
and discern no basis to conclude the court erred in finding the
State did not prove beyond a reasonable doubt A.F. knowingly,
voluntarily and intelligently waived his Miranda 2 rights, we
affirm.
I.
On August 8, 2017, A.F. was interrogated by Trenton Police
Department Detective Tamika Sommers and Detective Anthony
Petracca.3 The following day, A.F. was charged with delinquency
for conduct that would constitute a second-degree sexual assault,
N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of
a child by sexual contact, N.J.S.A. 2C:24-4(a)(1), if committed
by an adult. The complaint alleged A.F. sexually assaulted the
victim, a five-year-old female, on or about July 12, 2017, at her
Trenton home.
A.F. moved to suppress the statements made during the
interrogation. The court held an evidentiary hearing at which the
State presented Detective Sommers as a witness. The court also
reviewed a video and audio recording of the interrogation that was
admitted in evidence.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Detective Sommers testified Detective Petracca was "from the
county," but did not identify the law enforcement agency by which
he was employed.
2 A-1858-17T1
The court rendered an oral opinion and made detailed findings
of fact. The court found R.F. is married to A.F.'s biological
father. A.F. resided with his father and R.F. for two to three
years prior to the alleged July 12, 2017 incident. The court
found A.F. "looked to" R.F. "as his mother or stepmother and that
was apparent during the" interrogation.
The court further found R.F. had close to a familial
relationship with the mother and grandmother of the alleged five-
year-old victim. R.F. and the victim's mother had been good
friends when they lived in West Africa, and their relationship
continued following their respective moves to New Jersey. The
victim's mother considered R.F. a sister.4 The court determined
4
The mother of the alleged five-year-old victim did not testify
at the suppression hearing. The evidence concerning the
relationship between R.F., the victim, and the victim's family was
provided by Detective Sommers who recounted the victim's mother's
statements describing R.F.'s relationship with her, her daughter,
and her family. The "rules of evidence" applied during the
suppression hearing, N.J.R.E. 104(c), but the State did not object
to Detective Sommers's testimony concerning the victim's mother's
statements. The motion court implicitly found the victim's
mother's statements credible because the court based many of its
factual findings on what Detective Sommers testified the victim's
mother said. On appeal, the State does not challenge the
admissibility of Detective Sommers's testimony or the court's
reliance on it. An issue not briefed on appeal is deemed waived.
Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App.
Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div.
2001). Moreover, we would not consider any challenge to the
admissibility of the testimony because an objection to the
testimony was not "properly presented to the trial court" and the
admissibility of the testimony does not "go to the jurisdiction
3 A-1858-17T1
that although R.F. and the victim's mother were not blood relatives,
based on their close relationship R.F. could be viewed as the
victim's aunt.
The court found Detective Sommers was a credible witness who
described her efforts to contact A.F.'s family to arrange the
interrogation. She contacted A.F.'s father, but he was out-of-
state. A.F.'s father told Detective Sommers to contact R.F. to
arrange A.F.'s interrogation at which R.F. would be present.
The court further found A.F.'s father gave Detective Sommers
contact information for A.F.'s maternal grandfather with whom A.F.
began living following the victim's report of the alleged July 12,
2017 assault. The court found A.F. began residing with his
grandfather because A.F. could not return to R.F.'s home where
R.F. and A.F.'s father's two young children also resided.
R.F. scheduled the interrogation with Detective Sommers for
5:30 p.m. on August 8, 2017. Arrangements were made for A.F.'s
grandfather to transport A.F. to the interrogation.
R.F. arrived for the interrogation at the scheduled time.
A.F.'s father contacted Detective Sommers and said A.F. would be
of the trial court or concern matters of great public interest."
State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
4 A-1858-17T1
late because A.F.'s grandfather was in traffic. Prior to A.F.'s
arrival, R.F. reviewed and signed a form consenting to an interview
regarding "an alleged sexual assault that occurred at" the five-
year-old victim's home on July 12, 2017. The consent form included
a statement that R.F. "realize[d]" A.F. could "stop answering
questions at any time" and that she "advised [A.F.] of this fact."
The court determined that upon A.F.'s arrival, there was no
consultation between A.F. and R.F. "to go over consent or to go
over what the interest of the juvenile was or what he wanted to
do." Instead, A.F., R.F., Detective Sommers and Detective Petracca
immediately entered the interrogation room. The court found
Detective Sommers read A.F. his Miranda rights, and A.F. provided
one-word answers indicating he understood each of his rights.
The court found there was no interaction between A.F. and
R.F. during Detective Sommers's administration of the Miranda
warnings. Detective Sommers did not ask any follow-up questions
to assess whether A.F. actually understood his rights or wanted
to consult with R.F. concerning them.
The court also found the interview was A.F.'s first
involvement with the juvenile justice system, and there was no
evidence A.F. otherwise had familiarity with the proceedings. The
State did not present any evidence concerning A.F.'s level of
intelligence or education. The court found that following the
5 A-1858-17T1
administration of his Miranda rights, A.F. was questioned by the
officers concerning the alleged assault of the five-year-old
victim.
The court found "troubling" that the interview was conducted
without A.F. having had the opportunity to consult with R.F. about
his rights and whether R.F. would act in his best interest. The
court also determined the interview went beyond the scope of R.F.'s
written consent because the questioning was not limited to the
alleged assault of the five-year-old victim as indicated on the
consent form R.F. signed.
The detectives also questioned A.F. about whether he had
sexually assaulted his younger half-sister,5 who is the biological
daughter of A.F.'s father and R.F. The court found that prior to
the interrogation, A.F's father and R.F. told Detective Sommers
A.F. may have inappropriately touched their daughter. The court
further found that although the consent form was limited to the
alleged July 12, 2017 incident involving the five-year-old girl,
when the detective questioned A.F. about whether he assaulted his
half-sister, R.F. did not act to end the questioning, direct A.F.
5
The motion court and A.F. refer to the sister as a step-sister.
We refer to her as A.F.'s half-sister because we understand that
she and A.F. share the same father.
6 A-1858-17T1
not to answer, or otherwise act as a buffer between A.F. and the
detectives.
The court concluded R.F. had a clear conflict of interest in
her role as A.F.'s parent during the interview because she was
like an aunt to the alleged five-year-old victim, and she was the
biological mother of A.F.'s half-sister. The court found Detective
Sommers was aware R.F. had a conflict because the detective knew
about R.F.'s close relationship with the alleged five-year-old
victim and, prior to the interrogation, R.F. and A.F.'s father
reported A.F. may have assaulted their biological daughter. The
court found no action was taken to address the conflict or ensure
A.F. received the support and counsel of an independent adult.
The court determined that because R.F. and A.F.'s father
advised Detective Sommers they were concerned A.F. may have
assaulted their daughter, neither R.F. nor A.F.'s father was
completely independent and disassociated from the prosecution.
The court found that because R.F. had a conflict, she was not
suitable to consent to the interview or act as an independent
adult under the circumstances presented. The court also found
A.F.'s maternal grandfather was immediately available to act as
an independent adult on A.F.'s behalf, and he did not have the
conflicts of R.F. and A.F.'s father.
7 A-1858-17T1
The court concluded that based on the totality of the
circumstances presented, the State failed to prove beyond a
reasonable doubt A.F. made a knowing, voluntary, and intelligent
waiver of his rights. The court entered an order granting
defendant's suppression motion, and we granted the State's motion
for leave to appeal.
6
The State presents the following arguments for our
consideration:
POINT I
THE TRIAL COURT ERRONEOUSLY SUPPRESSED THE
JUVENILE'S STATEMENT TO POLICE.
A. Lack of Consultation.
B. Conflict of Interest.
C. Scope of Consent.
D. Intelligence of the Juvenile.
II.
We conduct a limited review of a motion court's factual
findings supporting a decision granting a motion to suppress
statements given during a police interrogation. State v. S.S.,
6
In Point I of its brief, the State argues we should grant its
motion for leave to appeal. We granted the motion and therefore
it is unnecessary to address the arguments concerning the request
for leave to appeal. We address only the arguments supporting the
State's claim the court erred by granting A.F.'s suppression
motion.
8 A-1858-17T1
229 N.J. 360, 374 (2017). We determine whether the court's factual
findings "are supported by sufficient credible evidence in the
record." Ibid. (quoting State v. Gamble, 218 N.J. 412, 424
(2014)). We recognize a motion judge has the opportunity to hear
live testimony, observe demeanor, and acquire a "'feel' of the
case, which a reviewing court cannot enjoy." Ibid. (quoting State
v. Elders, 192 N.J. 224, 244 (2007)).
The same deferential standard is applied to factual findings
made by the motion court based on its review of video recordings
of a juvenile defendant's interrogation, because this approach
"best advances the interests of justice in a judicial system that
assigns different roles to trial courts and appellate courts."
Id. at 379. We owe no deference to the court's legal conclusions
"[b]ecause legal issues do not implicate the fact-finding
expertise of the trial courts." Id. at 380. We "construe the
Constitution, statutes, and common law 'de novo - with fresh eyes
- owing no deference to the interpretive conclusions' of trial
courts . . . ." Ibid. (quoting State v. Morrison, 227 N.J. 295,
308 (2016)).
"[F]or a juvenile's confession to be admissible into evidence
it must satisfy the same standard that applies to adult confessions
. . . ." State ex. rel. A.S., 203 N.J. 131, 146 (2010). "All
rights guaranteed to criminal defendants by the Constitution of
9 A-1858-17T1
the United States and the Constitution of this State . . . shall
be applicable to cases arising under the [New Jersey Code of
Juvenile Justice]." N.J.S.A. 2A:4A-40. Juveniles enjoy the
privilege against self-incrimination during a custodial
interrogation that is guaranteed by the Fifth Amendment to the
United States Constitution, and as "'is firmly established as part
of the common law of New Jersey and . . . our Rules of Evidence.'"
State v. Presha, 163 N.J. 304, 312-13 (2000) (quoting State v.
Hartley, 103 N.J. 252, 260 (1986)).
A juvenile may waive the privilege against self-incrimination
but, "for a confession to be admissible as evidence, [the State]
must prove beyond a reasonable doubt that the [juvenile's] waiver
was knowing, intelligent, and voluntary in light of all the
circumstances." Id. at 313. The primary inquiry is whether the
suspect's will was overborne by police conduct. Ibid.In Presha, the Court explained that to determine if a
juvenile's confession was the "product of free will" and therefore
admissible as evidence, courts must consider the totality of the
circumstances "surrounding the arrest and interrogation, including
such factors as 'the suspect'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.10 A-1858-17T1
(quoting State v. Miller, 76 N.J. 392, 402 (1978)), and the
juvenile's previous encounters with law enforcement, ibid.The Court also instructed that the juvenile justice system's
increased emphasis on punishment over rehabilitation placed a "new
significance" on a parent's role in a juvenile's interrogation.
Id. at 315. "The role of the parent in the context of juvenile
interrogation takes on special significance" because "the parent
serves as an advisor to the juvenile, someone who can offer a
measure of support in the unfamiliar setting of the police
station." Id. at 314. A parent's role is to "serve[] as a buffer
between the juvenile, who is entitled to certain protections, and
the police, whose investigative function brings the officers
necessarily in conflict with the juvenile's legal interests." Id.
at 315.
In A.S., the Court again addressed the role of a parent during
a juvenile's interrogation, explaining that "the mere presence of
a parent is insufficient to protect a juvenile's rights, because
presence alone cannot be said to provide the buffer between the
police and the juvenile" contemplated in Presha. 203 N.J. at 148.
To fulfill the role of the buffer contemplated by the Court's
decision in Presha, "the parent must be acting with the interests
of the juvenile in mind." Ibid. The Court determined the parent
did not fulfill that role where she effectively functioned as an
11 A-1858-17T1
agent of the police and the juvenile was provided incorrect and
conflicting information about her constitutional rights. Id. at
151-52.
Applying these principles, we consider the State's argument
the court erred by finding it failed to prove beyond a reasonable
doubt A.F. waived his right against self-incrimination knowingly,
intelligently and voluntarily. The State contends the court
incorrectly relied on its findings that: (a) A.F. was not afforded
an opportunity to consult with R.F.; (b) the questioning exceeded
the scope of R.F.'s consent; (c) R.F. had a conflict of interest
based on her close relationship with the five-year-old victim and
because she was the biological mother of A.F.'s half-sister about
whom he was questioned; and (d) the lack of evidence establishing
A.F.'s level of intelligence. The State does not demonstrate the
court's fact-findings lack support in the substantial credible
record evidence.7 Instead, the State argues a reversal is required
because the court did not correctly apply the facts under the
applicable legal standards. We disagree.
7
The State asserts in conclusory fashion that the court's fact-
findings are not supported by sufficient credible evidence in the
record. However, it does not cite to any particular findings of
fact that lack evidentiary support, and our review of the record
shows the court's findings are adequately supported.
12 A-1858-17T1
In its brief, the State segregates the factors the court
considered in making its determination, and argues each could not
properly support the court's conclusion the State failed to meet
its burden. The State ignores that the court's determination
whether the State proved beyond a reasonable doubt that A.F.
knowingly, intelligently and voluntarily waived his right against
self-incrimination requires an assessment of the totality of the
circumstances. See Presha, 163 N.J. at 313; see also State ex
rel. A.W., 212 N.J. 114, 137-38 (2012) ("[u]sing a totality of the
circumstances approach" in determining the admissibility of a
juvenile's statements made during a police interrogation). The
record shows that is precisely what the motion court did here.
The court properly considered the State's failure to present
direct evidence concerning A.F.'s intelligence and education
because a juvenile's intelligence and education is a relevant
factor in determining whether there was a knowing, intelligent and
voluntary waiver of the right against self-incrimination. See
Presha, 163 N.J. at 313. The State argues A.F.'s statements and
actions during the interrogation demonstrated A.F. possessed the
intelligence and education required to knowingly, intelligently
and voluntarily waive his rights. However, we defer to the court's
implicit rejection of that evidence based on its review of the
recording of the interrogation, see S.S., 229 N.J. at 379, and the
13 A-1858-17T1
court's determination the State's failure to present direct
evidence left a void in the State's proofs as to the admissibility
of A.F.'s statements, see State v. Locurto, 157 N.J. 463, 474
(1999) (finding on appeal we do not second guess a court's
determination finding a lack of evidence persuasive).
A.F. was fourteen years old when he was interrogated. A
fourteen-year-old child "is still of tender sensibilities and may
have great difficulty withstanding the rigors of a police
interrogation." A.S., 203 N.J. at 149. We therefore find no
error in the court's reliance on the lack of evidence directly
showing A.F.'s level of education and education as a significant
factor, among the totality of circumstances, supporting its
conclusion the State failed to satisfy its burden.
The State also claims the court erred by finding A.F. did not
have a "realistic opportunity" to consult with R.F. about the
interrogation, his rights and R.F.'s role during the
interrogation, and by relying on the lack of such an opportunity
as a factor supporting its determination the State failed to
satisfy its burden. The State contends there is no common law or
statutory requirement that a juvenile be provided an opportunity
for consultation with a parent prior to an interrogation, and the
motion court erred by interpreting the Court's citation in Presha,
163 N.J. at 314, to Garrett v. State, 351 N.E.2d 30 (1976), as
14 A-1858-17T1
requiring such a consultation. The State also asserts that, in
any event, a consultation was not required because A.F. was advised
of his Miranda rights in R.F.'s presence, and said he understood
and agreed to waive those rights.
In Garrett, the Supreme Court of Indiana explained that its
standard for the admissibility of a juvenile's statements during
a police interrogation requires that "the child . . . be given an
opportunity to consult with his parents, guardian or an attorney
. . . as to whether or not he wishes to waive" his Miranda rights.
351 N.E.2d at 33 (quoting Lewis v. State, 288 N.E.2d 138, 142
(1972)). In Presha, the Court cited Garrett in its discussion of
a parent or guardian's role in the interrogation of a juvenile.
163 N.J. at 314.
Here, the motion court did not determine that the absence of
an opportunity for R.F. to consult with A.F. required suppression
of his statements. The court instead relied on the absence of
that opportunity as one of the many circumstances it considered
in assessing whether R.F filled her role to "act [] with the
interests of [A.F.] in mind," A.S., 203 N.J. at 148, and A.F.
knowingly, intelligently and voluntarily waived his rights.
In Presha, the Court did not hold that consultation between
a parent or guardian and a juvenile is a prerequisite to a finding
a juvenile knowingly, intelligently and voluntarily waived Miranda
15 A-1858-17T1
rights during, and we agree the Court's citation to Garrett does
not constitute an adoption of the Indiana standard. See In re
Pelvic Mesh/Gynecare Lit., 426 N.J. Super. 167, 186 (App. Div.
2012) (finding that if the Court intended to adopt a new rule of
law it would do so directly). However, we find no error in the
motion court's reliance on the absence of an opportunity for a
consultation as one of the many circumstances it considered in
determining if R.F. "acted[ed] with [A.F.'s] interests . . . in
mind," A.S., 203 N.J. at 148, and whether A.F. knowingly,
intelligently and voluntarily waived his Miranda rights, see A.S.,
203 N.J. at 155 n.6 (quoting State v. Mears, 170 Vt. 336, 749 A.2d
600, 604 (2000)) ("not[ing] the practical approach" taken by the
Supreme Court of Vermont requiring that a juvenile "be given the
opportunity to consult with an adult" as one criteria in
determining whether a juvenile's statement was given knowingly,
intelligently and voluntarily).
The court was required to assess the totality of the
circumstances "surrounding the . . . interrogation," Presha, 163
N.J. at 313, including the "highly significant factor" of R.F.'s
role in A.F.'s waiver of his Miranda rights, id. at 315. A.F. had
been living with his grandfather, arrived late to the
interrogation, and did not have an opportunity to consult with
R.F. following her execution of the consent form and prior to the
16 A-1858-17T1
interrogation. R.F.'s mere presence at the interrogation is not
dispositive of whether she filled the significant role of serving
as a buffer between A.F. and the police during the interrogation.
A.S., 203 N.J. at 148. We therefore discern no error in the
court's reliance upon the lack of an opportunity for consultation,
and the concomitant lack of a consultation itself, between A.F.
and R.F. as a factor in its assessment of whether R.F. filled her
parental role and if A.F. knowingly, intelligently and voluntarily
waived his Miranda rights.
For the same reason, we reject the State's contention the
court erred by relying on what it determined were R.F.'s conflicts
of interest. The court considered R.F.'s close relationship with
the alleged five-year-old victim, and R.F. and A.F.'s father's
report they suspected A.F. may have assaulted their young daughter
as circumstances showing R.F. could not properly fill the
significant role required to insure A.F. knowingly, intelligently
and voluntarily waived his Miranda rights.
In A.S. the juvenile's adoptive mother, who was present on
the juvenile's behalf during an interrogation, was also the
grandmother of the alleged victim. Id. at 137. In reaffirming
that "the presence of a parent is a 'highly significant factor'
in the totality of the circumstances analysis contemplated in
Presha," the Court expressed "concerns" about the mother's
17 A-1858-17T1
conflict of interest because she was also the grandmother of the
alleged victim. Id. at 154 (emphasis in original). Although the
Court rejected "a categorical rule that an attorney must be present
any time there is a perceived clash in the interests of the parent
based on a familial relationship with the victim," and recognized
that "[e]ven in cases of such apparent clashing interests, a parent
may be able to fulfill the role envisioned in Presha[,]" the Court
cautioned that where the interrogating officers are aware of
"competing and clashing interests," they should "strongly consider
ceasing the interview when another adult, who is without a conflict
of interest, can be made available to the child."8 Id. at 154-55.
The Court recognized that a conflict of interest may interfere
with a parent's fulfillment of the role as a buffer between a
juvenile and the police. Id. at 154.
Here, the motion judge determined R.F. "clearly" had a
conflict that did not allow a finding she acted with A.F.'s best
interests in mind. See id. at 154-55. R.F. was like an aunt to
the alleged five-year-old victim and, prior to the interrogation,
she and A.F.'s father reported to the police they suspected A.F.
may have assaulted their daughter. They then arranged for A.F.'s
8
The Court also warned that where a parent has conflicting
interests, the police should also not permit the parent to "assume
the role of interrogator" during the interrogation. Id. at 155.
R.F. did not assume such a role here.
18 A-1858-17T1
interrogation with only R.F. present. The police knew R.F. had a
conflict; she and A.F.'s father reported their suspicions and, as
a result, the police questioned A.F. about his half-sister. Yet,
there is no evidence the police considered delaying or interrupting
the interrogation until an adult without a conflict, such as A.F.'s
maternal grandfather, was made available. See A.S., 203 N.J. at
155.
R.F. did not directly participate in A.F.'s interrogation
like the mother in A.S., but she and A.F.'s father cooperated with
the police investigation by reporting their suspicions A.F.
assaulted their daughter, and then arranging the interrogation
during which A.F. was questioned about their suspicions. To be
sure, R.F. was present during the interrogation, but that was not
enough. See id. at 148. The motion court determined that R.F.'s
clear conflicts of interest did not permit a determination she was
acting, as required, with A.F.'s best interests in mind during the
interrogation. We discern no basis to reject the court's
conclusion. Thus, R.F.'s failure to fulfill her role as an
independent adult with A.F.'s best interests in mind was properly
given "great weight" by the motion court in its assessment of the
totality of the circumstances. Presha, 163 N.J. at 315.
In sum, we are convinced the court properly considered various
factors in its assessment of the totality of the circumstances
19 A-1858-17T1
relevant to a determination of whether the State satisfied its
burden of proving beyond a reasonable doubt that A.F.'s statements
were made knowingly, intelligently and voluntarily. The court's
findings are supported by the evidence and we are convinced the
record provides no basis to reverse the court's conclusion the
State failed to meet is burden.
Affirmed.
20 A-1858-17T1