STATE IN THE INTEREST OF G.C. (FJ-13-1006-18, FJ-13-1120-18, AND FJ-13-1145-18, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-1615-18T1
STATE IN THE INTEREST
OF G.C., a Juvenile.
_______________________
Submitted June 1, 2020 – Decided September 2, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket Nos. FJ-13-1006-18, FJ-13-1120-18, and FJ-
13-1145-18.
Charles Moriarty, LLC, attorneys for appellant G.C.
(Charles M. Moriarty, of counsel; Timothy C. Moriarty,
of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent State of New Jersey
(Carey J. Huff, Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Juvenile defendant G.C. (Greg)1 appeals from a final disposition order
entered following a bench trial finding he committed the following acts that
would be crimes if committed by an adult: second-degree sexual assault by force
or coercion, N.J.S.A. 2C:14-2(c)(1), and first-degree endangering the welfare of
a child through the possession of child pornography, N.J.S.A. 2C:24-4(b)(3).
Based on our review of the record, we find there was substantial credible
evidence presented at trial supporting the court's adjudications and disposition
order, but we are also convinced the trial court erred by failing to conduct a
N.J.R.E. 104 hearing on Greg's request to suppress the evidence obtained as a
result of the seizure of his cell phone and by failing to make findings of fact
supporting its denial of his request to suppress the evidence. Because the judge
who tried the case has retired, we affirm the adjudications and disposition order
and remand for a hearing and determination of the suppression of evidence
request, and a vacation of the adjudications and disposition order and a retrial
in the event the court determines the evidence seized from the cell phone should
have been suppressed.
1
We use initials and pseudonyms for clarity, to avoid confusion, and because
juvenile records are exempt from public access pursuant to Rule 1:38-3(d)(5)
and the names of alleged child victims of sexual offenses are exempt from public
disclosure pursuant to Rule 1:38-3(d)(10) and (11).
A-1615-18T1
2
I.
To provide context for our discussion of the arguments presented on
appeal, we summarize the pertinent facts. In the late afternoon on May 31, 2018,
seventeen-year-old I.B. (Ida) returned to her home and reported to her twenty-
eight-year-old sister C.B. (Claire) that Greg raped her earlier in the day. Claire
called the police, and she and Ida's mother took Ida to a local hospital, where
Ida was examined by a sexual assault nurse examiner and interviewed by
Neptune City detectives Thomas Sheehan and Richard Johnson. As a result of
their discussion with Ida, the detectives obtained her consent to take her cell
phone and examine its contents. The detectives accessed Ida's phone and took
photographs of a series of text messages she reported were exchanged between
her and Greg prior to the alleged sexual assault. Arrangements were made for
Ida to make a formal statement at the police station the following day.
After Ida provided a formal statement, and the detectives decided to
charge and arrest Greg for sexual assault. Just before 9:00 p.m. on June 1, 2018,
the detectives arrested Greg at his home and transported him to the police
station. His mother separately went to the police station, stayed in the lobby for
A-1615-18T1
3
a period of time before leaving, and informed the detectives Greg had a lawyer. 2
Greg was charged in a juvenile complaint with second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1), and third-degree criminal coercion, N.J.S.A. 2C:13-5.3
Greg was never advised of his Miranda4 rights.
At the time of Greg's arrest at his home, detectives Sheehan and Johnson
were aware Greg's cell phone might contain text messages relevant to the
investigation because they had seen purported text messages between Ida and
Greg on Ida's cell phone. They needed Greg's phone to confirm the messages
on Ida's phone were actually sent and received from Greg's phone. As the
detectives escorted Greg out of his house, detective Sheehan saw Greg give his
mother a cell phone, but the detectives took no action to seize it.
2
Greg's mother did not testify at trial. During his testimony, detective Johnson
was asked whether the detectives read Greg his rights after he was arrested.
Detective Johnson began to reply to the question, stating Greg's "mother said
that he had a lawyer," but he was interrupted by defense counsel, who asked
again whether the detectives read Greg his rights. Neither party inquired further
about Greg's mother's statement about his lawyer.
3
The record does not disclose the precise point in time the complaint was filed.
Thus, it is unclear whether Greg was formally charged before or after his arrest
and when he was formally charged.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1615-18T1
4
Detective Johnson testified he had an opportunity to obtain a search
warrant for the phone, but he did not obtain one. At around 9:30 p.m., he left
the police station and went to Greg's home to obtain the phone. When Greg's
father answered the door, detective Johnson identified himself as a police officer
and told Greg's father he "needed to retrieve the phone . . . and that [he was]
going to seize it as evidence." Greg's father invited detective Johnson inside,
suggested the phone was probably in Greg's bedroom, brought detective Johnson
upstairs to the bedroom, and searched for the cell phone while detective Johnson
stood nearby. Greg's father did not find the phone in the bedroom.
Detective Johnson testified that while Greg's father looked for the phone
in the bedroom, Greg's mother arrived at the home. At some point, she retrieved
the cell phone from a planter on the back porch and gave it to detective Johnson.5
He brought the phone to the police station and placed it into evidence.
5
In his brief on appeal, Greg asserts his mother retrieved the cell phone after
detective Johnson threatened to charge her with obstruction if she failed to turn
the phone over. In support of his factual assertion, Greg cites to a police report
that was not admitted in evidence and is not part of the trial record. We do not
consider the report or Greg's factual allegations because they are not based on
evidence presented to the trial court. See State v. Harvey, 151 N.J. 117, 201-02
(1997) ("An appellate court, when reviewing trial errors, generally confines
itself to the record."). Detective Johnson was the only witness who testified
about the manner in which he obtained the phone, and we limit our summary of
the pertinent facts to the evidentiary record.
A-1615-18T1
5
The detectives advised Greg his cell phone had been seized as evidence
and they would seek a search warrant for it and search the phone using Cellebrite
technology.6 Greg was given a piece of paper and a pen, and the detectives
asked him to write down his cell phone passcode. Detective Sheehan testified
that, even if Greg did not give them the passcode, they would still attempt to
search the cell phone when they obtained a warrant. The detectives did not use
a consent to search form, explaining they had no intention of searching the phone
without a warrant.
Greg was permitted to call his mother. After the call, he was left alone
and wrote down the passcode to his phone on a piece of paper, which he gave to
detective Johnson. At trial, Greg testified the detectives did not threaten him
and he wrote down the passcode voluntarily, but he also claimed he was unaware
he could have chosen not to supply the passcode.
The detectives used the passcode to unlock the phone, and they put it in
"airplane mode" to protect the data from being deleted remotely. The detectives
did not otherwise search the phone to review any data it contained. The phone
6
Detective Sheehan testified a Cellebrite machine can
"[s]ometimes . . . penetrate and breach the passcode; sometimes they can't."
A-1615-18T1
6
was then turned off and placed into evidence, and nothing further was done with
it until a search warrant for the phone was obtained three weeks later.
The search of the phone consisted of an extraction of its data that, in
pertinent part, confirmed the May 31, 2018 exchange of the text messages
between Ida and Greg that were on Ida's phone. In addition, the phone contained
a video recording of a male vaginally penetrating the vagina of a female with
his penis from behind. The faces of the male and female are not shown on the
recording, but Ida testified she is the female in the video and Greg is the male,
and the video shows Greg sexually assaulting her. During his trial testimony,
Greg admitted he is the male in the recording, Ida is the female, and he made
the recording on his phone.
Based on the discovery of the recording, the State added two additional
charges against Greg prior to trial. The State charged Greg with the following
additional offenses that would be crimes if committed by an adult: first-degree
endangering the welfare of a child through the possession of child pornography,
N.J.S.A 2C:24-4(b)(3), and third-degree invasion of privacy, N.J.S.A. 2C:14-
9(b)(1).
At trial, Ida detailed the events she claimed led to the sexual assault. She
spent the morning of May 31, 2018, with her friend, Z.J. (Zack). He received a
A-1615-18T1
7
call from Greg, who invited Zack and Ida to his house. Greg and Ida knew each
other. They had gone to school together for a few months three years earlier,
and, during that time, they exchanged text messages and partially naked
photographs of each other. Ida denied she and Greg had any type of physical
relationship during that time.7 She also testified she had no contact with Greg
after leaving the school in May 2015 and prior to her visit to Greg's house with
Zack on May 31, 2018.
After Zack and Ida entered Greg's house, they went to Greg's bedroom
where Zack and Greg played video games while Ida sat on the edge of the bed
on her cell phone. While she was on her cell phone, Ida received text messages
from Greg requesting she engage in various sex acts with him. 8 Ida uniformly
rebuffed Greg's suggestions, directly responded "No" or "Nope" to a number of
his requests, and otherwise clearly stated she had no interest in his proposals.
At some point, Zack said he was going to get something to eat and left the
room. According to Ida, after Zack departed, Greg grabbed her around the waist,
7
Ida testified that during the time she attended school with Greg, on one
occasion he placed his hand over her clothes in the area of her vagina while they
were on a school bus.
8
Ida testified that when she arrived at Greg's house, he asked for her cell phone
number and she gave it to him.
A-1615-18T1
8
forced his hand down her pants, inserted his fingers in her vagina, and put his
penis in front of her face. Ida testified Greg pulled her hair and forced her down
onto the bed. She physically resisted and repeatedly told him to stop. Ida
explained Greg overpowered her, turned her onto stomach, and inserted his penis
into her vagina from behind.
Ida testified Greg stopped vaginally penetrating her only when Zack re-
entered the room. She then immediately left the room and Greg's house and
returned to Zack's car, which was parked outside. Zack left the house and drove
Ida home, where she told her sister she had been raped and was transported to
the hospital, where she reported what occurred to the detectives.
Greg testified at trial and admitted he exchanged the texts recovered from
his and Ida's phones. He also acknowledged Ida said "no" repeatedly and
exclusively to his requests that she engage in sexual acts with him. However,
he testified that Ida willingly participated in their physical interactions after
Zack left the room, and that he had consensual sexual intercourse with Ida,
which he recorded in part on his phone.
Following the presentation of the evidence and counsels' closing
arguments, the court found that the text messages demonstrated Greg attempted
to persuade Ida to have sex with him, and that she told him "no" repeatedly and
A-1615-18T1
9
unequivocally. The court further found Ida was a credible witness and Greg was
not.9 The court found "[t]he testimony . . . clear and concise as to what [Greg]
did," and the court determined there was no credible evidence supporting Greg's
claim his vaginal penetration of Ida was consensual.
The court found that Greg vaginally penetrated Ida by force or coercion,
and that Greg recorded a prohibited sexual act of a minor on his cell phone.
Accordingly, the court adjudicated Greg a delinquent by finding he committed
the following acts that would be crimes if committed by an adult: sexual assault
by force or coercion as alleged in count one and endangering the welfare of a
child through the possession of child pornography as alleged in count three.
The court did not adjudicate Greg a delinquent on count two, which
charged criminal coercion, "not because the factors were not met . . . but simply
because [the court did not] believe at this point that [the] second count should
be pursued." The court also found the State failed to prove Greg committed the
invasion of privacy offense charged in count four because it was "duplicative."
At the disposition hearing, the court found six aggravating factors and no
mitigating factors. The court imposed concurrent thirty-six-month terms of
9
The court also found Zack, who testified on Greg's behalf concerning the May
31, 2018 events, was not a credible witness.
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10
incarceration at the Training School of Boys as its disposition on counts one and
three. The court further required Greg comply with the requirements of Megan's
Law, N.J.S.A. 2C:7-1 to -23.
Greg appealed from the court's final order of disposition. He presents the
following arguments for our consideration:
POINT I
THE TRIAL COURT ERRED IN NOT
SUPPRESSING EVIDENCE GATHERED FROM
[GREG'S] PHONE BECAUSE THE EVIDENCE
SEIZED RESULTED FROM MULTIPLE
CONSTITUTIONAL VIOLATIONS BY THE STATE.
A. STANDARD OF REVIEW OF A TRIAL
COURT'S EVIDENTIARY RULINGS.
B. THE POLICE ENTERED [GREG'S]
PARENT'S HOME WITHOUT A
WARRANT AND SEIZED THE PHONE IN
VIOLATION OF [GREG'S]
CONSTITUTIONAL RIGHTS.
C. POLICE VIOLATED [GREG'S] RIGHTS BY
QUESTIONING [GREG] WITHOUT
OBTAINING CONSENT TO SEARCH[.]
D. THE STATE QUESTIONED [GREG] IN
VIOLATION OF HIS CONSTITUTIONAL
RIGHTS AND FAILED TO HONOR HIS
REQUEST FOR COUNSEL.
A-1615-18T1
11
POINT II
THE VICTIM IN THIS MATTER HAD MADE
SIMILAR ALLEGATIONS AGAINST OTHERS
PRIOR TO THE ONE AGAINST [GREG] AND THE
DEFENSE SHOULD HAVE BEEN ALLOWED TO
CROSS EXAMINE THE VICTIM ON THESE PRIOR
CLAIMS, AND ALSO TO CALL WITNESSES WHO
WERE THE SUBJECT TO THE PRIOR CLAIMS BY
THE VICTIM.
POINT III
THE COURT SHOULD HAVE DENIED FRESH
COMPLAINT TESTIMONY FROM THE VICTIM'S
SISTER AS [IDA'S] STATEMENT WERE THE
PRODUCT OF [CLAIRE'S] COERCIVE
INTERROGATION.
II.
"We deferentially review the trial judge's factual findings, crediting those
'which are substantially influenced by [the] opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" State v. Alessi, 240 N.J. 501, 517 (2020) (quoting State v. Elders, 192
N.J. 224, 244 (2007)). "Deference is especially appropriate 'when the evidence
is largely testimonial and involves questions of credibility.'" Balducci v. Cige,
240 N.J. 574, 594-95 (2020) (quoting Cesare v. Cesare, 154 N.J. 394, 412
(1998)). We will only disturb those findings "if they are so clearly mistaken
that the interests of justice demand intervention and correction." State v.
A-1615-18T1
12
Williams, 461 N.J. Super. 80, 94 (App. Div. 2019) (quoting State v. Robinson,
200 N.J. 1, 15 (2009)). However, "we owe no deference to the trial judge's legal
conclusions, which we review de novo." Alessi, 240 N.J. at 517 (citing State v.
Hinton, 216 N.J. 211, 228 (2013)).
Greg does not challenge the court's credibility determinations or its
findings he sexually assaulted Ida by knowingly penetrating her vagina by force
or coercion, see N.J.S.A. 2C:14-2(c)(1), and he knowingly caused or permitted
a child, Ida, to engage in a prohibited sexual act that he knew, had reason to
know, or intended was to be photographed, filmed or reproduced, see N.J.S.A.
2C:24-4(b)(3). Instead, he claims the adjudications should be reversed because
the court erred by: denying his request to suppress evidence recovered from his
phone; barring cross-examination of Ida concerning her alleged false accusation
of sexual assault in an unrelated criminal proceeding; and allowing Ida's sister
Claire to testify about Ida's alleged fresh complaint about the sexual assault Ida
alleged Greg committed. We consider the arguments in turn.
A.
Greg argues his adjudications should be reversed because the court erred
by denying his request to suppress the text messages, video recording, and other
data, seized from his cell phone. More particularly, Greg claims the seizure of
A-1615-18T1
13
the phone was the result of an unconstitutional search of his home without the
knowing and voluntary consent of his parents, see generally State v. Domicz,
188 N.J. 285, 305 (2006); State v. Johnson, 68 N.J. 349, 353-54 (1975); his
mother's turnover of the phone was in response to a deceptive threat made by
detective Johnson, see generally State v. Hagans, 233 N.J. 30, 42 (2018); and
the detectives obtained the passcode to the phone from him without advising
him of his Miranda rights, see generally State v. Andrews, __ N.J. __, __ (2020)
(slip op. at 29-30), and in violation of his right to counsel, see generally, State
ex rel. P.M.P., 200 N.J. 166, 177-78 (2009).
The State contends the phone was not obtained as a result of a search, but
instead was voluntarily turned over by Greg's mother. See generally In re J.A.,
233 N.J. 432, 438 (2018). The State also argues that even if the phone was
seized during a search, the search was properly conducted under the exigency
exception to the warrant requirement. See generally State v. Manning, 240 N.J.
308, 333 (2020). The State further claims Greg's turnover of the passcode to his
cell phone did not violate his Miranda rights because his provision of the
passcode was of minimal testimonial value and conveyed information that was
a foregone conclusion. See generally Andrews, __ N.J. __ (slip op. at 31-39).
A-1615-18T1
14
"The Fourth Amendment of the United States Constitution and Article 1,
Paragraph 7 of the New Jersey Constitution both safeguard the right to privacy
and forbid warrantless entry into a home except under certain circumstances."
J.A., 233 N.J. at 446 (citing State v. Davila, 203 N.J. 97, 111-12 (2010)). A
warrantless entry into a home "is presumptively invalid unless the State can
show that it falls within one of the specific, delineated exceptions to the general
warrant requirement." Ibid.
"A warrantless search [or seizure] is presumed invalid unless it falls
within one of the recognized exceptions to the warrant requirement." State v.
Cooke, 163 N.J. 657, 664 (2000), overruled on other grounds, State v. Witt, 223
N.J. 409, 450 (2015). Any evidence found pursuant to a warrantless search that
does not fall under an exception, "is subject to suppression . . . under the
exclusionary rule." J.A., 233 N.J. at 446 (quoting State v. Williams, 192 N.J. 1,
14 (2007)). The exclusionary rule "prohibits the State from 'introducing into
evidence the "fruits" of' unlawful police conduct, and thus denies 'the
prosecution the spoils of constitutional violations.'" Ibid. (quoting State v.
Badessa, 185 N.J. 303, 310-11 (2005)) (internal citations omitted).
The State has the burden of proving by a preponderance of the evidence a
warrantless search falls within an exception to the warrant requirement. State
A-1615-18T1
15
v. Shaw, 213 N.J. 398, 409 (2012). Here, detective Johnson entered Greg's home
and seized his phone without a warrant. As such, it was incumbent upon the
State to prove the search was valid under an exception to the warrant
requirement. Ibid.; see also State v. Moore, 181 N.J. 40, 44-45 (2004).
Prior to commencement of trial, Greg's counsel raised issues concerning
the admission of the evidence extracted from Greg's phone. Defense counsel
challenged "the surrender[] of the phone itself, allowing the police into the house
without a warrant." Further, Greg claimed he was compelled to
"surrender[] . . . the [phone's] passcode without" having been advised of his
Miranda rights.
The court properly understood defense counsel's arguments as a request
for a suppression hearing, noting "there are a number of matters . . . which
clearly, according to the Rules, . . . talk about having pretrial hearings, such as
the issue of . . . whether or not [Greg] gave a passcode voluntarily or not."
Nonetheless, the court found that a suppression hearing was unwarranted
because its "policy has always been . . . that [it was] more than capable of
listening to testimony during the course of a trial that has to do with issues,
procedural issues, [c]onstitutional issues," and that a N.J.R.E. 104 hearing on
Greg's request to suppress the evidence was unnecessary because there was no
A-1615-18T1
16
jury. Thus, the court did not conduct a N.J.R.E. 104 hearing on the
constitutionality of the seizure of the phone, or the subsequent extraction of
information from it, and instead the court made clear it would consider and
decide those issues during the bench trial.
"Our courts generally disfavor in limine rulings on evidence questions,"
State v. Cordero, 438 N.J. Super. 472, 484 (App. Div. 2014), because "[most]
evidence problems are best and most expeditiously settled in the atmosphere and
context of the trial[,]" ibid. (quoting State v. Hawthorne, 49 N.J. 130, 143
(1967)). However, "our criminal practice rules expressly direct courts to
conduct pretrial hearings 'to resolve issues relating to . . . motions to suppress'"
evidence. Id. at 485 (quoting R. 3:9-1(d)); see also Biunno, Weissbard & Zegas,
Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 104 (2019) (explaining
N.J.R.E. 104(a) "provides for determinations at a '104 hearing,' of preliminary
evidence questions that are the exclusive province of the court,
including . . . the . . . admissibility" of evidence).
In State v. Gibson, the Court considered a municipal court practice of
incorporating the record of a suppression motion into the trial record. 219 N.J.
227, 245 (2014). The Court explained that where a defendant moves to suppress
evidence based on an alleged constitutional violation, "[t]he better practice is to
A-1615-18T1
17
conduct two separate proceedings": a N.J.R.E. 104 hearing on the motion to
suppress evidence and, following disposition of the suppression motion, a trial
on the merits. Ibid. The Court noted that conducting two separate proceedings
"underscores the separate nature of each proceeding, the limited scope of a
suppression motion, and the different standards of proof governing each
proceeding." Ibid.
Although not at issue in Gibson, we also observe that a N.J.R.E. 104
suppression hearing and a trial on the merits are governed by different
procedural rules. That is, with limited exceptions not applicable here, the Rules
of Evidence do not apply in a N.J.R.E. 104 hearing, see N.J.R.E. 104(a)(1), but
they do apply at a trial on the merits, see State v. Coder, 198 N.J. 451, 466 n.7
(2009) (explaining that at a N.J.R.E. 104 hearing to determine the admissibility
of evidence, "the judge shall not apply the rules of evidence except for [N.J.R.E.]
403 or a valid claim of privilege"); see also State v. Allan, 283 N.J. Super. 622,
630 (Law Div. 1995) ("[I]t's generally a good practice, given the different
standards of proof which are required in these cases, that [courts] separate out
the motion to suppress and the issues on the motion to suppress from the issues
on the trial." (citation omitted)).
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18
In Gibson, the municipal court's decision to incorporate into the trial
record the testimony presented at the suppression hearing "deprived [the]
defendant of his right to complete cross-examination of the arresting officer."
219 N.J.at 242. The same issue is not presented here, but in our view the trial
court's decision not to follow the preferred practice of holding a suppression
hearing separate from the trial, even in cases heard by a judge without a jury,
resulted in an inadequate record upon which the trial court could, and this court
can, properly consider the constitutionality of the seizure of the cell phone and
the extraction of its content.
Detective Johnson obtained the cell phone from Greg's mother, and the
circumstances surrounding Greg's mother's production of the phone are essential
to a determination of the constitutionality of the seizure of the phone and the
subsequent extraction of information from it. However, when the State, which
had the burden of proving the validity of the search and seizure of the phone in
the absence of a warrant, State v. Atwood, 232 N.J. 433, 444-45 (2018),
questioned detective Johnson about his interactions with Greg's mother prior to
her turnover of the phone, defense counsel interposed a hearsay objection. The
court properly sustained the objection because hearsay is inadmissible at trial,
N.J.R.E. 802, but the court ignored it had advised the parties it would also
A-1615-18T1
19
consider the suppression issues at trial, and it did not consider the rules
prohibiting admission of hearsay do not apply during a hearing on a motion to
suppress physical evidence, see N.J.R.E. 104(a)(1). Thus, as a result of the
court's decision to hear the suppression motion and conduct the merits trial
concurrently, the State was incorrectly barred from introducing evidence
pertinent to the suppression motion and, concomitantly, defense counsel was
required to object to testimony that was inadmissible at trial but which was
relevant and admissible on Greg's claim his mother retrieved the phone
involuntarily as detective Johnson's agent based on their interactions in the
home.
In any event, the court's decision to combine the two proceedings, and
subsequent failure to create a proper record as to each in accordance with the
applicable rules, resulted in a less than fulsome record upon which it could
properly decide the pertinent suppression issues. For example, if, in assessing
whether Greg's mother's turnover of the phone constituted an unlawful search
and seizure, it was determined Greg's mother turned over the phone "completely
independent of the officer's investigation," J.A., 233 N.J. at 453, then detective
Johnson's seizure of the phone from her would not violate any constitutional
protections, ibid. On the other hand, if the evidence established Greg's mother
A-1615-18T1
20
"act[ed] as an agent of the State when [s]he searched," ibid., for and retrieved
the phone, it may be that her turnover of the phone resulted in seizure in
violation of Greg's constitutional rights, compare ibid. (upholding a police
seizure of a cell phone turned over by the defendant's brother in part because the
"brother was clearly not acting as an agent of the State when he searched the
house for the phone," his "actions were completely independent of the officer's
investigation," and he "decided to search the house without solicitation or even
encouragement from the officers present") with State v. Scrotsky, 39 N.J. 410,
415-16 (1963) (finding unconstitutional a warrantless search of the defendant 's
apartment where the victim of the crime, the defendant's landlord, let the
detective into the apartment because the victim "acted as an arm of the police").
We do not suggest the correct resolution of any of the myriad of legal
issues pertinent to the seizure of the phone and the extraction of the evidence
from it, or that detective Johnson's interactions with Greg's mother resulting in
the turnover of the phone is dipositive of the suppression issue. 10 Those issues,
10
The other issues pertinent to the requested suppression of the phone and the
evidence extracted from it include, but may not be limited to, the
constitutionality of detective Johnson's entry into Greg's home, detective
Johnson's interactions with Greg's father and mother prior to the turnover of the
phone, and the constitutionality of Greg's delivery of the passcode without the
provision of any Miranda warnings and following his mother's statement he had
an attorney.
A-1615-18T1
21
and all other issues pertaining to the seizure of the phone and the evidence,
should be decided based on a fulsome trial court record.
We provide the example of the court's evidentiary ruling on the exchange
between detective Johnson and Greg's mother preceding the turnover of the
phone to illustrate the court's attempt to concurrently conduct a hearing on the
suppression issues and a trial on the merits resulted in an inadequate and
incomplete record upon which the suppression motion could be properly
decided. To be sure, Greg and the State should have done more to bring to the
court's attention its failure to recognize the difference in rules applicable to the
concurrent proceedings, but we consider the issue because the court's error was
clearly capable of producing an unjust result in its disposition of the suppression
motion. R. 2:10-2. For that reason, we remand for a hearing on Greg's request
to suppress evidence of the phone and the data and information extracted from
it.
The court also did not deliver what it indicated it would at the outset of
the trial and what it was obligated to provide at the conclusion of a bench trial
under Rule 1:7-4(a): findings of fact and conclusions of law on Greg's request
to suppress evidence seized based on constitutional grounds. See R. 1:7-4(a);
see also Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301 (App. Div.
A-1615-18T1
22
2018); State ex rel. L.W., 333 N.J. Super. 492, 497-98 (App. Div. 2000)
(remanding a trial court's decision adjudicating a juvenile delinquent for second-
degree robbery because the court failed to make proper findings of fact and
explain how the juvenile's actions satisfied the elements of the offense).
During the concurrent trial and suppression hearing, there was testimony
concerning detective Johnson's purpose in going to Greg's home, his entry to the
home, what occurred while he was in the home, and the seizure of the phone
following Greg's mother's production of it. There was also testimony
concerning Greg's arrest; the detectives' decision not to inform Greg of his
Miranda rights; Greg's transportation to the police station; his mother's arrival
at the police station, her statement Greg had a lawyer, and her departure from
the station; the detectives' requests that Greg provide the passcode to his phone;
and Greg's production of the passcode. In addition to requesting suppression of
the evidence from the phone prior to trial, during trial defense counsel objected
to the introduction of evidence – including the video recording – seized from
Greg's cell phone based on the claim it was obtained in violation of his
constitutional rights.
In its final decision, the court made no findings of fact related to the
constitutional issues presented and Greg's request to suppress the phone and the
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evidence extracted from it. Instead, the court confusingly found it was required
"to determine whether or not there was some motivation for the finding of the
cell phone where it was located, which was in a planter outside of the house."
The court added it "believe[d] when the officer came back to the house to get
the cell phone, he made it clear . . . that the cell phone is evidence and [he]
want[ed] the cell phone and at that point, the cell phone . . . was found or located
and given to the officer[]."
The court also found the detectives subsequently told Greg they needed
the passcode "to put this cell phone into airplane mode in order to preserve
what's in it" and further told Greg he was "either going to give [them] the
passcode or [they were] going to get into it anyway." The court also determined
Greg called his mother and subsequently gave the detectives the passcode, at
which time the detectives gained access to the phone and put it in airplane mode
to preserve its contents.
The court acknowledged Greg's claim the detectives' failure to provide
Miranda warnings rendered their access to the phone unconstitutional, but the
court did not make any factual findings related to the issue. Instead, the court
concluded it did not "really . . . place the type of weight on the video that would
warrant [its] consideration . . . that by getting this video off of [Greg's] . . . cell
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24
phone that it really was a violation of his constitutional rights." The court also
opined the constitutional issue raised by Greg "is really blown out of . . .
proportion" because the police would have gained access to the phone even
without Greg's provision of the passcode. 11 The court, however, added a
conclusory finding that "under the totality of the circumstances, in any
event, . . . the police conducted themselves clearly fairly and constitutionally in
doing what they did with regard to the phone."
The court's terse conclusory statements do not constitute the requisite
findings of fact, and do not include any credibility determinations, pertinent to
addressing the constitutionality of detective Johnson's entry into Greg's home,
the seizure of the phone, and the detectives' interactions with Greg in the absence
of Miranda warnings and following his mother's statement Greg had a lawyer.
And, other than generally denying the suppression motion, the court did not
11
The court also noted Greg made use of evidence extracted from the phone.
We reject that reasoning as a basis for affirming the court's determination on the
constitutionality of the seizure of the phone and the extraction of information
from it. Greg did not waive his right to challenge the constitutionality of the
seizure of the evidence by relying on the evidence based on the court's
potentially erroneous admission of it. See Saldana v. Michael Weinig, Inc., 337
N.J. Super. 35, 47-48 (App. Div. 2001) (rejecting a claim the plaintiff's request
to admit a photograph at trial constituted a waiver of the plaintiff's right to
challenge the court's rejection of the plaintiff's motion to crop the photograph
because its admission "did not represent a waiver of [the plaintiff's] initial
objection" to the uncropped photograph's admission).
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make any findings of fact supporting its denial of Greg's request to suppress the
evidence. The court's failure to make those findings renders it impossible for
this court to conduct an appropriate review of the court's denial of Greg's request
to suppress the evidence. See Salch v. Salch, 240 N.J. Super. 441, 443 (App.
Div. 1990) ("Meaningful appellate review is inhibited unless the judge sets forth
the reasons for his or her opinion.").
We would otherwise remand for the court to make the necessary findings,
but the judge who tried the matter and denied the request to suppress the
evidence retired. We therefore remand for the court to conduct a suppression
hearing in accordance with N.J.R.E. 104(a)(1), and to make findings and
conclusions of law supporting its decision following the hearing. In the event
the court determines evidence from Greg's cell phone should be suppressed, the
court shall vacate the adjudications and disposition order and conduct a new trial
on the two remaining charges. In the event evidence from the phone is not
suppressed, the court shall take no action concerning the adjudications and
disposition, which we otherwise affirm subject to the results of the remand
hearing. As noted, nothing in this opinion should be construed as an opinion on
the merits of any issues related to the requested suppression of the evidence
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26
obtained from the phone. The issues shall be addressed and decided by the trial
court based on the evidence presented at the remand hearing.
B.
Greg also argues the court improperly barred him from cross-examining
Ida regarding "false allegations during a previous grand jury presentation
involving similar and [contemporaneous] allegations." Greg claims the
indictment in a previous case in which Ida was an alleged victim of a sexual
assault was dismissed after the State failed to present an exculpatory video to
the grand jury showing Ida "was not credible and/or truthful." Greg argues the
trial court erred by refusing to allow cross-examination of Ida about the previous
case based on a "narrow exception" to N.J.R.E. 608. We disagree.
"Traditional rules of appellate review require substantial deference to a
trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We
will reverse an evidentiary ruling only if it "was so wide [of] the mark that a
manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480,
492 (1999). N.J.R.E. 608 precludes evidence of specific instances of conduct,
other than by a prior conviction, to prove a witness's character for truthfulness
or untruthfulness. This rule "was designed to prevent unfair foraging into [a]
witness's past" and to prevent "wide-ranging collateral attacks on the general
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credibility of a witness [that] would cause confusion of the true issues in the
case." State v. Guenther, 181 N.J. 129, 141-42 (2004). Our Supreme Court
created a narrow exception to this rule, "in limited circumstances and under very
strict controls," permitting a defendant to show a victim-witness made a prior
false criminal accusation for the purpose of challenging the witness's credibility.
Id. at 154.
In deciding whether to admit evidence of a prior false accusation, the trial
court should conduct a N.J.R.E. 104 hearing and determine whether the
defendant has proven by a preponderance of the evidence that the victim-witness
made a prior accusation charging criminal conduct and whether that accusation
was false. Id. at 157. The trial court may consider the following factors in
making its determination whether questioning about the false accusation should
be allowed:
1. whether the credibility of the victim-witness is the
central issue in the case;
2. the similarity of the prior false criminal accusation
to the crime charged;
3. the proximity of the prior false accusation to the
allegation that is the basis of the crime charged;
4. the number of witnesses, the items of extrinsic
evidence, and the amount of time required for
presentation of the issue at trial; and
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5. whether the probative value of the false accusation
evidence will be outweighed by undue prejudice,
confusion of the issues, and waste of time.
[Ibid.]
Here, Greg claimed Ida falsely accused a defendant in a prior criminal
proceeding, but Greg did not present evidence establishing in the first instance
Ida made a false accusation. Instead, he argued the dismissal of the indictment
in the prior criminal proceeding was based on a court's finding Ida made a false
accusation. In denying Greg's request to cross-examine Ida about the alleged
false statement, the trial court considered the other court's decision dismissing
the indictment and the materials in support of Greg's application, and it
concluded Greg failed to present any evidence demonstrating Ida made a false
accusation about which she could be properly cross-examined under N.J.R.E.
608.
On appeal, Greg does not supply any of the materials submitted to the trial
court and upon which the court denied his application. 12 We are therefore left
without any basis in the record to consider, analyze, or reverse the court's
12
It appears the court was provided with, and considered, transcripts of the
grand jury proceeding, Ida's statements to the police and prosecutor's office, and
a court reporter's notes transcribing the other court's decision dismissing the
indictment.
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determination there was no evidence Ida made a false accusation in the criminal
proceeding. See R. 2:6-1(a) (stating the appendix "shall contain . . . such other
parts of the record . . . as are essential to the proper consideration of the issues");
see also Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried
& Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are we obliged
to attempt review of an issue when the relevant portions of the record are not
included."). Greg fails to sustain his burden of demonstrating the court abused
its discretion in barring the cross-examination of Ida on the purported false
accusation, see Morton, 155 N.J. at 453, and, for that reason, we reject Greg's
argument the court committed any error requiring the reversal of the
adjudications.
C.
Greg next argues the court erred by allowing Ida's sister Claire to testify
about Ida's initial report of the sexual assault on May 31, 2018, at Ida's home.
Greg claims Claire's testimony was inadmissible as fresh complaint evidence
because the court "abrogated its duty to examine the circumstances" surrounding
the conversation between Ida and Claire to determine whether the "line between
coercive and benign questioning was crossed." Greg contends Claire's
testimony should have been excluded as inadmissible hearsay.
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The fresh complaint doctrine allows "evidence of a victim's complaint of
sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the
victim's initial silence or delay indicates that the charge is fabricated." State v.
R.K., 220 N.J. 444, 455 (2015); see also State v. Hill, 121 N.J. 150, 163 (1990).
In accordance with that limited purpose, "the fresh-complaint testimony is not
to be used 'to corroborate the victim's allegations concerning the crime.'" R.K.,
220 N.J. at 456 (quoting State v. Bethune, 121 N.J. 137, 146 (1990)). Indeed, a
jury, or a court sitting without a jury, may not consider fresh complaint
testimony "as substantive evidence of guilt, or as bolstering the credibility of
the victim; it may only be considered for the limited purpose of confirming that
a complaint was made." Ibid.
To qualify as "fresh-complaint evidence," "the victim's statement must
have been made spontaneously and voluntarily, within a reasonable time a fter
the alleged assault, to a person the victim would ordinarily turn to for support. "
Id. at 455. Additionally, "not all questioning preceding a complaint deprives an
utterance of the spontaneity and voluntariness needed for it to be admissible
under the fresh complaint rule." Bethune, 121 N.J. at 144. Rather, "general,
non-coercive questions do not rob a complaint of its admissibility under the
fresh-complaint rule." Ibid.
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Our Court recognizes a distinction between questioning that merely
precedes a complaint of sexual abuse and coercive questioning. Id. at 145. The
Court left it "to the trial court to determine when that line is crossed." Ibid.
Indeed, "[i]n each case the trial court must examine the degree of coercion
involved in the questioning of the child and determine whether the child's
complaint was spontaneous or directly in response to the interrogation." Ibid.
"Among the factors the court should consider . . . are the age of the child, the
child's relationship with the interviewer, the circumstances under which the
interrogation takes place, whether the child initiated the discussion, the type of
questions asked, whether they were leading, and their specificity regarding the
alleged abuser and the acts alleged." Ibid.
Here, Ida was a seventeen-year-old juvenile and her "interviewer" was her
older sister. Ida was crying when Claire first saw her, and Claire simply asked
Ida why she was crying. Although Ida did not immediately respond, Claire
persisted only in attempting to determine the reason Ida was crying. Claire's
questioning was not coercive, and Ida's disclosure of the assault was made
spontaneously, voluntarily, and shortly after the assault occurred. See generally
Hill, 121 N.J. at 167 (noting courts have allowed complaints made in response
to "general non-coercive questioning"); see also State v. L.P., 352 N.J. Super.
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369, 382 (App. Div. 2002) (determining that while a friend's mother's question
to the juvenile victim asking, "what happened" "could perhaps be characterized
as 'interrogation,' it was not in any sense suggestive or coercive"). We therefore
find no basis to conclude the court abused its discretion by admitting Claire 's
testimony as fresh complaint evidence. See Bethune, 121 N.J. at 145 (explaining
a reviewing court considers a challenge to the admission of fresh complaint
evidence for an abuse of discretion).
We also consider the court's use of Claire's testimony. In its opinion, the
court erred by stating there are "different uses" for fresh complaint testimony,
including "the use of it as substantive evidence." The court further stated fresh
complaint testimony "can be used either substantially or could be used . . .
towards [Ida's] credibility." The court's statements are incorrect as a matter of
law because fresh complaint testimony may do no "more than rebut a charge of
fabrication based on silence." R.K., 220 N.J. at 460.
Nonetheless, the court's reliance on the testimony as substantive evidence
was harmless error. "Any error or omission shall be disregarded . . . unless it is
of such a nature as to have been clearly capable of producing an unjust
result . . . ." R. 2:10-2. "The possibility must be real, one sufficient to raise a
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reasonable doubt as to whether [it] led the [fact-finder] to a result it otherwise
might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973).
Here, the record does not support a reasonable doubt that the court, as the
factfinder, would have reached a different result if it had not considered Ida's
initial report to Claire as substantive evidence. The recording established Greg
penetrated Ida's vagina, and, thus, the primary issue at trial was whether Greg
acted with consent or force or coercion. The court based its credibility
determinations primarily on Ida's demeanor in the courtroom and what the court
determined was her lack of any motivation to fabricate a version of the events.
In accepting Ida's version, the court also found Greg, who admitted penetrating
Ida's vagina while recording it, was wholly incredible in asserting Ida consented.
Based on the totality of the court's findings, we are not convinced the
court's fleeting reference to Claire's testimony raises a reasonable doubt about
the testimony capable of resulting in an adjudication the judge would not
otherwise have reached. Bankston, 63 N.J. at 273; R. 2:10-2. Nor does Greg
provide any argument or support for such an inference on appeal.
D.
We affirm the court's adjudications and dispositions subject to the court's
decisions on the issues presented at the remand hearing. Based on the record
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presented, the court's credibility determinations, findings of fact, and
conclusions of law supporting the adjudications are amply supported, and we
discern no basis to reverse them. We remand, however, for the court to conduct
a N.J.R.E. 104 hearing on Greg's request to suppress his phone and the evidence,
including the text messages, data, and video recording, extracted from the
phone.
We do not offer any opinion on the merits of those issues, and, as noted,
we remand for the separate hearing on those issues the court did not conduct in
the first instance and for the court to make the required findings of fact and
conclusions of law supporting its decision on those issues. See R. 1:7-4(a). If
the court concludes either the phone or its contents should have been suppressed,
the court shall vacate the adjudications and dispositions and order a new trial on
the remaining two charges. In all other respects, we affirm Greg's adjudications
and the court's final disposition order.
Any of Greg's arguments we have not expressly addressed are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
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