STATE OF NEW JERSEY IN THE INTEREST OF A.A. (FJ-09-0118-17, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4098-16T3
STATE OF NEW JERSEY APPROVED FOR PUBLICATION
IN THE INTEREST OF A.A.,
July 31, 2018
Juvenile-Appellant. APPELLATE DIVISION
______________________________
Submitted April 11, 2018 – Decided July 31, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson
County, FJ-09-118-17.
Joseph E. Krakora, Public Defender, attorney
for appellant A.A. (Alyssa Aiello, Assistant
Deputy Public Defender, of counsel and on
the briefs).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent State of New Jersey
(Luisa M. Florez, Assistant Prosecutor, on
the brief).
The opinion of the court was delivered by
MANAHAN, J.A.D.
This case presents a novel issue in the context of self-
incrimination. The issue is whether it is incongruous to
require the presence of a parent prior to a waiver of Miranda1
1
Miranda v. Arizona, 384 U.S. 436 (1966).
rights to safeguard a juvenile's right against self-
incrimination, yet allow police eavesdropping on the parent-
child communication that proves antithetical to that right.
A.A.2 appeals from an adjudication of delinquency for
conduct which, if committed by an adult, would constitute a
crime. A.A. was originally charged with attempted murder,
N.J.S.A. 2C:11-3 and 2C:5-1; possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a
firearm, N.J.S.A. 2C:39-5(b); and possession of a firearm by
minors, N.J.S.A. 2C:58-6.1. Following a hearing, A.A. was
adjudicated delinquent on two counts of second-degree aggravated
assault as lesser-included offenses of attempted murder,
possession of a weapon for an unlawful purpose, unlawful
possession of weapons, and possession of firearms by minors.
The disposition was to a two-year custodial term at the New
Jersey Training School for Boys.
We derive the following facts from the hearing record. At
approximately 9:15 p.m. on July 7, 2016, two individuals
suffered non-life-threatening gunshot wounds to the leg as the
result of a street shooting which took place on Wilkinson Avenue
in Jersey City. On that date and time, Jersey City Police
2
We use initials to protect the identity of the juvenile and
minors involved in these proceedings. R. 1:38-3(d).
2 A-4098-16T3
Officer Joseph Labarbera was on duty with another officer.
While operating an unmarked vehicle, Labarbera observed three
African American males on bicycles traveling northbound on
Bergen Avenue. Labarbera lost sight of the cyclists after they
made a right turn onto Wilkinson Avenue. Seconds later,
Labarbera heard gun shots. Labarbera reported the incident over
his police radio. The report included his observation of the
three African American males on bicycles turning down Wilkinson
Avenue just prior to the shooting.
Detective Teddy Roque of the Hudson County Prosecutor's
Office responded to the report of gunshots fired. While en
route to the scene, Roque passed two African American males
riding tandem on a bicycle. After Rogue heard the report
regarding African American males on bicycles involved in the
shooting, he drove to the area of Garfield Avenue where he again
observed the two males and conducted a stop.
Labarbera responded to the location of the stop. When
Labarbera arrived, he recognized one of the individuals as A.A.,
a juvenile whom he had arrested on prior occasions for curfew
violations. Labarbera also identified A.A. and the other
juvenile as two of the three cyclists he observed in the
Wilkinson Avenue location just prior to the shooting.
3 A-4098-16T3
After they were detained, police conducted a search of both
A.A. and the other juvenile and the area where Roque first
observed the juveniles. Neither search resulted in anything of
evidentiary value. A more extensive search was conducted by
officers with K-9 units, which recovered shell casings and a
projectile in the area where the shooting occurred.3 A.A. was
taken into custody, transported to the juvenile detention center
and placed in a holding cell.
On October 27, 2016, the court held a N.J.R.E. 104(c)
hearing on the State's motion to admit statements made by A.A.
to his mother while being held at the juvenile detention center.
During the hearing, Jersey City Detective Joseph Chidichimo
testified that he contacted A.A.'s mother relative to his
detention. Upon the mother's arrival at what Chidichimo
described as "the Jersey City Police Department, juvenile
building," Chidichimo advised her about the incident and A.A's
alleged involvement. According to Chidichimo, the mother became
very emotional and asked to speak with A.A. Chidichimo
permitted A.A. to speak to his mother from a room opposite the
3
A third suspect was eventually stopped by the police. Nothing
of evidentiary value was found on that individual.
4 A-4098-16T3
holding cell.4 Chidichimo stated he was located approximately
ten-to-twelve feet away from the holding cell and overheard
A.A.'s mother ask him if he was on Wilkinson Avenue. A.A.
responded, "Yes, I was on Wilkinson." Chidichimo then overheard
A.A.'s mother ask him, "Why?" to which he responded, "Because
they jumped us last week." Chidichimo acknowledged that,
although trained to read Miranda warnings prior to questioning a
suspect, he did not read A.A. his warnings as he originally
intended prior to overhearing the statement.5
At the conclusion of the hearing, the judge held that
A.A.'s statement was admissible. The judge reasoned that the
statement was not the result of police interrogation and,
therefore, Miranda was not implicated.
The trial commenced immediately following the decision on
the motion and took place over three days. The State's proofs
included the testimony of Labarbera and Rogue, the statement of
A.A. and a surveillance video of the scene. The video depicted
three individuals riding bicycles in a single file formation.
The third cyclist pulled what appeared to be a gun from his
4
Chidichimo testified that "there are two holding cells inside
the main room of the juvenile building."
5
A.A.'s mother testified at the hearing. She stated that she
did not recall A.A. saying that he was on Wilkinson Avenue or
that he was "jumped" the previous week.
5 A-4098-16T3
waist area with his left hand which was followed by flashes of
light.6 At trial, Labarbera and Rogue provided their version of
the events consistent with their N.J.R.E. 104 hearing testimony.
At the conclusion of the trial, the judge stated that "the
video is one of the strongest items in evidence that satis[fies]
me that those three individuals that were riding together . . .
act[ed] in concert." The judge added that after careful review
of the video he "saw [] a coordinated movement[] that [was]
almost like a formation for a plan . . . of attack." The judge
further held that just before the shots were fired, the cyclists
"accelerate, they put their head down and they keep . . . the
same formation. One behind the other in this symmetry, [w]hich
indicated to me that this was planned precisely to be able to
carry out what happened." Further, the judge stated that
because the cyclists acted in concert, they acted as
"accomplices" to one another. The judge determined that A.A.
was one of the three cyclists based upon Labarbera's
identification, and that the statements made by A.A. to his
mother established a motive for the shooting. Based upon these
findings, the judge adjudicated A.A. delinquent.
On appeal, A.A. raises the following points:
6
We note parenthetically that A.A.'s mother testified that A.A.
is right-handed.
6 A-4098-16T3
POINT I
A.A.'S ADJUDICATIONS OF DELINQUENCY FOR
COMMITTING AGGRAVATED ASSAULT CANNOT STAND
BECAUSE THE STATE'S FAILURE TO PROVE THE
IDENTITY OF THE ALLEGED VICTIMS REQUIRED
ENTRY OF A JUDGMENT OF ACQUITTAL ON BOTH
COUNTS OF ATTEMPTED MURDER. (Not Raised
Below)
POINT II
THE TRIAL COURT ERRED IN FAILING TO GRANT
A.A.'S MOTION FOR JUDGMENT OF ACQUITTAL AS
TO ALL COUNTS BECAUSE THE EVIDENCE FAILED TO
ESTABLISH A.A.'S [CULPABILITY] AS EITHER A
PRINCIPAL OR ACCOMPLICE. ALTERNATIVELY,
A.A.'S ADJUDICATIONS OF DELINQUENCY CANNOT
STAND BECAUSE THE TRIAL COURT'S VERDICT OF
GUILT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
POINT III
THE TRIAL COURT ERRED IN ALLOWING THE STATE
TO INTRODUCE A.A.'S UNWARNED STATEMENTS TO
HIS MOTHER[] BECAUSE THEY WERE OBTAINED BY
POLICE IN VIOLATION OF A.A.'S FIFTH
AMENDMENT RIGHTS.
We confine our decision to the argument raised by A.A.
relative to the admission of his statement.7
I.
The Fifth Amendment of the United States Constitution
guarantees all persons with the privilege against self-
incrimination, and applies to the states through the Fourteenth
7
A.A. also raised arguments in his reply brief which we do not
need to address. See State v. Lenihan, 219 N.J. 251, 265
(2014).
7 A-4098-16T3
Amendment. U.S. Const. amend. V, XIV; Griffin v. California,
380 U.S. 609, 615 (1965). This privilege against self-
incrimination "is one of the most important protections of the
criminal law." State v. Presha, 163 N.J. 304, 312 (2000). In
New Jersey, there is a common law privilege against self-
incrimination, which has been codified in statutes and rules of
evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503; State v. Reed, 133
N.J. 237, 250 (1993). "New Jersey's privilege against self-
incrimination is so venerated and deeply rooted in this state's
common law that it has been deemed unnecessary to include the
privilege in our State Constitution." State v. O'Neill, 193
N.J. 148, 176 (2007). Significantly, our Supreme Court "has
treated 'our state privilege as though it were of constitutional
magnitude, finding that it offers broader protection than its
Fifth Amendment counterpart.'" State v. Wright, 444 N.J. Super.
347, 363 (App. Div. 2016) (quoting O'Neill, 193 N.J. at 176-77).
A confession or an incriminating statement obtained during
a custodial interrogation may not be admitted in evidence unless
a defendant has been advised of his or her constitutional
rights. Miranda, 384 U.S. at 492. As custodial interrogations
without Miranda warnings create a presumption of compulsion,
unwarned statements must be suppressed even when they are
otherwise voluntary within the meaning of the Fifth Amendment.
8 A-4098-16T3
See State v. Hubbard, 222 N.J. 249, 265-66 (2015) (citations
omitted). A defendant may waive his or her privilege against
self-incrimination; however, that defendant's waiver must be
voluntary, knowing, and intelligent. State v. Hreha, 217 N.J.
368, 382 (2014). The State bears the burden of proving beyond a
reasonable doubt that a defendant's confession is not resultant
from actions by law enforcement officers that overbore
defendant's will. Id. at 383. The State bears a similar burden
when a defendant challenges a statement procured by police
action without the benefit of Miranda warnings. See State v.
Clausell, 121 N.J. 298, 352-53 (1990).
II.
Juvenile defendants, like adults, possess the right to be
free from self-incrimination. See N.J.S.A. 2A:4A-40; see also
In re Gault, 387 U.S. 1, 13 (1967) ("[N]either the Fourteenth
Amendment nor the Bill of Rights is for adults alone.").
Juveniles are entitled to Miranda warnings before any statement
is taken in a custodial setting regardless of whether the
delinquency proceedings have begun. Presha, 163 N.J. at 312-13.
The standard used when determining the validity of Miranda
waivers by adults, the totality of the circumstances, applies to
juveniles. State ex rel. A.S., 203 N.J. 131, 146 (2010). As a
9 A-4098-16T3
practical matter, juvenile waivers receive heightened scrutiny
because of their age, experience and level of education.
Presha has been referenced as New Jersey's "seminal case
addressing the admissibility of juvenile confessions." A.S.,
203 N.J. at 146. In Presha, the Court elaborated on the Miranda
procedures that should be followed when the police are
conducting a custodial interrogation of a juvenile. 163 N.J. at
312-13. At the forefront of those procedures is the role of a
parent, in which the Court found a "special significance." Id.
at 314. "[I]n the context of a juvenile interrogation[,] . . .
the parent serves as advisor to the juvenile, someone who can
offer a measure of support in the unfamiliar setting of the
police station." Ibid. (citing Gallegos v. Colorado, 370 U.S.
49, 54 (1962)). Moreover, highlighting the "new significance"
of the parent's role due to the increased prosecution of
juveniles, the Court saliently provided:
When younger offenders are in custody, the
parent serves 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. Parents are in a position
to assist juveniles in understanding their
rights, acting intelligently in waiving
those rights, and otherwise remaining calm
in the face of an interrogation.
[Id. at 315.]
10 A-4098-16T3
Specifically, the Court held that the police must use their
best efforts to locate a juvenile's parent or legal guardian
before commencing interrogation, and that the adult's absence
should be given added weight when balancing all factors to
determine whether a waiver of rights and confession were
knowing, intelligent, and voluntary in the totality of the
circumstances. Ibid. The Court stressed in Presha that the
absence of the adult's presence was a "highly significant
factor" in evaluating waiver. Id. at 315. Other factors
include "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" and prior
experience with the criminal justice system. Presha, 163 N.J.
at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)).
III.
The State's argument on appeal, as it was before the Family
Part, is that A.A.'s statement was not the product of "police
interrogation" or its functional equivalent. For the reasons
that follow, we disagree.
We commence our discussion by noting that although the
constitutional protection afforded by our courts against self-
incrimination is precise in delineated settings, the lack of
11 A-4098-16T3
precision in this discrete setting should not compel a nuanced
resolution. The facile path is to conclude that there was no
police interrogation and thus, no violation of A.A.'s rights.
The essential problem in selecting that path is adherence to a
precept that ignores constitutional safeguards. Here, while
A.A.'s statement was not elicited by express questioning by the
police, the statement was the product of the actions of the
police.
"The United States Supreme Court has made clear that
Miranda warnings are required 'whenever a person in custody is
subjected to either express questioning or its functional
equivalent.'" Wright, 444 N.J. Super. at 363-64 (citing Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980)). In Innis, the
United States Supreme Court noted that interrogation under
Miranda also includes:
any words or actions on the part of the
police (other than those normally attendant
to arrest and custody) that the police
should know are reasonably likely to elicit
an incriminating response from the suspect.
The later position of this definition
focuses primarily upon the perceptions of
the suspect, rather than the intent of the
police.
[446 U.S. at 301.]
This court has addressed the "functional equivalent" of
interrogation in pre-Miranda warning cases where police conduct
12 A-4098-16T3
was "reasonably likely to elicit an incriminating response."
State v. Ward, 240 N.J. Super. 412, 417 (App. Div. 1990)
(quoting Innis, 446 U.S. at 303). In State v. Brown, we cited
to Ward and noted that "Miranda safeguards come into play
whenever someone is subject either to express questioning 'or
its functional equivalent.'" 282 N.J. Super. 538, 549 (App.
Div. 1995) (quoting Innis, 446 U.S. at 300-02).
The defendants in Ward and Brown each gave oral statements
that were not produced by the direct questions of the police.
The statements were made without Miranda warnings and subsequent
to the police providing Ward and Brown with proofs obtained
during the investigation relating to the crimes for which they
were suspects. In both cases, this court excluded the oral
statements in that, despite "non-police interrogation," the
process employed to obtain the statement failed to scrupulously
honor defendants' Miranda rights. Brown, 282 N.J. Super. at
550-51; Ward, 240 N.J. Super. at 419.8
We are cognizant of the distinction that can be drawn
between the police participation in the interrogation process in
Ward and Brown and the police participation here. Chidichimo
8
Although we concluded in Brown that defendant's oral statement
was excluded, we concluded that his post-Miranda warnings and
waiver rendered his written statement admissible. 282 N.J.
Super. at 551.
13 A-4098-16T3
did not present proofs to A.A. that produced the statements.
Rather, he permitted A.A.'s mother to speak to her son while he
listened. Nonetheless, in consideration of the rights at issue,
we reject that distinction. Any pre-Miranda warning process
that employs a parent as surrogate in an interrogation
reasonably likely to elicit an incriminatory statement, does not
scrupulously honor a juvenile's rights. This is so even if the
process employed by the police may not be intended to elicit the
statement.
Here, A.A. was subjected to the functional equivalent of
police interrogation. Chidichimo should have reasonably known
of the propensity for the conversation between A.A. and his
mother to produce an incriminating statement. This result was
more predictive when A.A.'s mother was informed why he was
detained.
Concerning the "interrogation" itself, we consider any
distinction between the police as interrogator or A.A.'s mother
as interrogator as a distinction without a difference. In
responding to his mother's questions in the earshot of
Chidichimo, A.A., uninformed of his Miranda rights and
uncounseled by his parent, was responding to the police.
Moreover, to conclude that there was no "police
interrogation" would be in disregard of both common sense and
14 A-4098-16T3
the safeguards for juveniles against self-incrimination first
recognized in Gault, 387 U.S. at 13. Since Gault, courts have
been mindful of the personal characteristics of an accused,
including their youthfulness. A.S., 203 N.J. at 149; Presha,
163 N.J. at 315-16 (noting "younger offenders present a special
circumstance in the context of police interrogation."). It
follows that reviewing courts should be similarly mindful of the
inherent pressure upon a child to respond to the questioning of
a parent and the corresponding risk of self-incrimination,
especially where the child has not been informed of their right
to remain silent.
A.S. involved a custodial interrogation of a juvenile in
which the police placed the juvenile's mother in the role of
their helper during the interrogation process by having the
adoptive mother read the child her rights. 203 N.J. at 136.
Thereafter, the police failed to correct the mother's
misstatements about those rights. Ibid. The child ultimately
made an incriminating statement used in evidence during the
delinquency adjudication. Id. at 136-37.
Holding the statement was involuntary and thus inadmissible
due to the totality of the circumstances, Justice LaVecchia
aptly wrote that "[o]ur purpose in establishing in Presha a
preference for parental presence for a child facing questioning
15 A-4098-16T3
by police was to assist the child in the exercise of his or her
constitutional rights; it was not to provide the police with an
assistant." Id. at 137 (emphasis added).9
Thus, since A.A. was in custody and subjected to the
functional equivalent of police interrogation, he was entitled
to Miranda warnings. The failure to provide the warnings to
A.A. prior to obtaining the statements requires suppression.
IV.
In addition to the concerns engendered by utilizing a
parent as an assistant in the interrogation, we further note with
disfavor the lack of privacy afforded to the parent-child
communication. In this vein, we are informed by decisions of
other states requiring police to provide a juvenile and a parent
an unsolicited opportunity to confer in private. See D.M. v.
State, 949 N.E.2d 327 (Ind. 2011); J.L. v. State, 5 N.E.3d 431,
437 (Ind. Ct. App. 2014) ("Consultation can be meaningful only in
9
Courts have held in certain circumstances that parents may
serve as surrogates or assistants to an interrogation. However,
in those cases Miranda warnings were given in the presence of
the parent and the child prior to the statements. See State v.
Q.N., 179 N.J. 165, 176-77 (2004) (after the administration of
Miranda warnings in the presence of the mother and the juvenile,
the mother took an "active role in directing her son to 'answer
the officer's questions.'"); see also State v. Belliard, 415
N.J. Super. 51, 80-81 (2010) (after the administration of
Miranda warnings in the presence of the mother and the juvenile,
the mother "unequivocally supported the police officer's
questioning of her son.").
16 A-4098-16T3
the absence of police pressure. . . . Privacy is essential to a
meaningful consultation."); Commonwealth v. Roe, 329 A.2d 286,
289 (Pa. 1974) (suppressing an incriminating statement by a
juvenile as not knowing or intelligent because the juvenile's
mother was not permitted to speak to him privately and advise him
of his constitutional rights); In re E.T.C., 449 A.2d 937, 940
(Vt. 1982) (suppressing a statement by a juvenile as "[t]here was
no meaningful consultation by the [interested adult] with the
juvenile as [a meaningful consultation] could only occur in the
absence of police pressures."). Notably, Indiana has codified a
juvenile's right to a "meaningful consultation" with a parent
before their constitutional rights may be waived. See Ind. Code
§ 31-32-5-1(2)(C).
The rationale for private communication referenced in other
state's decisions is equally applicable in scenarios such as that
presented in this matter. Suffice it to state that were there a
similar requirement of a meaningful private conversation with a
parent, there may have been no statements available for use by
the State. Furthermore, the ability of a parent to engage in a
private communication with a juvenile serves the purpose of the
17 A-4098-16T3
parent's presence, i.e., to provide the advice and guidance
envisioned by Presha.10
V.
Having determined that it was erroneous to allow the State
to use A.A.'s statements, we next turn to whether the error
requires a new hearing. On that score, the judge's consideration
of and reliance upon A.A.'s statements as proof of motive
demonstrates the statements' significant role in the hearing's
outcome. As such, the error was "clearly capable of producing an
unjust result[.]" R. 2:10-2; State v. Ross, 218 N.J. 130, 143
(2014). Therefore, we reverse the adjudication of delinquency
and remand the matter for a new hearing.
In closing, we add that a contrary holding to the one
reached today would be in derogation of the safeguards afforded
under the Fifth Amendment and the broader protection afforded
under our state law privilege. O'Neill, 193 N.J. at 176-77. In
sum, we are satisfied that the process by which incriminating
statements were secured from A.A. presented an unconstitutional
intrusion upon those afforded safeguards. We are further
10
Notwithstanding our reference to other jurisdictions that have
addressed the issue of private communications, we do not suggest
or comment on the wisdom of an amendment to the Juvenile Code.
We leave that determination to the Legislature. Rather, in
reaching our decision, we have again confirmed a juvenile's right
against self-incrimination and highlighted the critical role of a
parent in the protection of that right.
18 A-4098-16T3
satisfied that the excuse of that process as "non-police
interrogation" would promote an impermissible practice.
Reversed and remanded. We do not retain jurisdiction.
19 A-4098-16T3