State ex rel. A.W.

51 A.3d 793, 212 N.J. 114, 2012 WL 4350942, 2012 N.J. LEXIS 955
CourtSupreme Court of New Jersey
DecidedSeptember 25, 2012
StatusPublished
Cited by7 cases

This text of 51 A.3d 793 (State ex rel. A.W.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. A.W., 51 A.3d 793, 212 N.J. 114, 2012 WL 4350942, 2012 N.J. LEXIS 955 (N.J. 2012).

Opinions

Justice HOENS

delivered the opinion of the Court.

More than a decade ago, this Court established the framework for our trial courts to use when deciding whether a confession given by a juvenile in a custodial setting was voluntary and therefore admissible in a delinquency proceeding. See State v. Presha, 163 N.J. 304, 312-17, 748 A.2d 1108 (2000). Among the wide variety of factors that bear on an evaluation of voluntariness, we considered the role played by a juvenile’s parent during questioning and we addressed the implications of the parent’s absence from an interrogation. Id. at 314-17, 748 A.2d 1108. In establishing the analytical framework for courts to use in their evaluation of the voluntariness of a juvenile’s confession, we drew an age-based distinction. We found that there are special circumstances involved for a juvenile who is less than fourteen years old and we created a presumption for such juveniles when their statements are taken when a parent or guardian is absent. Id. at 315, 748 A.2d 1108. The test that we devised required an analysis of whether the parent was either truly unavailable or was unwilling to be present for the interrogation and we conditioned admissi[117]*117bility on a finding that the absent parent satisfied one of those two criteria. Ibid.

Thereafter, we addressed in further detail the meaning of the “unwilling to be present or truly unavailable” exception to Presha’s otherwise bright-line approach to juveniles younger than fourteen years old. See State ex rel. Q.N., 179 N.J. 165, 843 A.2d 1140 (2004). We concluded that a parent who had been advised of her right to remain during the interrogation, who had urged her son to answer truthfully, who left the room and who observed the interrogation from a nearby vantage point had sufficiently demonstrated her unwillingness to be present to satisfy the Presha test. Id. at 173-78, 843 A.2d 1140. At the same time, we observed that the parent had not initiated the decision to leave, but had left following the suggestion of the interrogating detective. Id. at 174, 843 A.2d 1140. Although that fact was insufficient to demonstrate involuntariness, we commented that in the future, “to remove all doubt about an adult’s willingness to be present” the police should wait for the suggestion about leaving the interrogation room to come from the parent. Ibid.

The appeal now before the Court requires us to consider whether, under the circumstances, the questioning detective failed to comply with these protections and whether, therefore, the statement that the juvenile A.W. gave to the interrogating detective should have been suppressed. More specifically, we consider whether the detective’s, comments during the course of the interview constituted an impermissible suggestion that the parent leave and whether the detective used interrogation techniques that were unduly coercive and therefore inappropriate for questioning a juvenile.

I.

The essential facts may be summarized briefly. On November 21, 2008, E.R. came home from work to find her five-year-old daughter K.P. watching television in her room. When the child, who was covered with a blanket, got up, her mother noticed that [118]*118the child’s pants were unzipped. When E.R. asked K.P. to explain why her pants were unzipped,, the child said that she was touching herself because that is what her cousins A.W. and J. did. Upon further inquiry, the child gave her mother a graphic account of the acts that A.W., the juvenile defendant in this matter, performed on her and asked her to perform on him. She also told her mother about acts that her cousin J. performed on her. At the time of the events, A.W. was thirteen years old and J. was ten years old.

E.R. took the child to the emergency room for an examination, which led to an investigation by the Union County Prosecutor’s Office. The next day, K.P. described for Detective Janet Lopez the same series of acts that she had reported to her mother. K.P. was subsequently examined by a physician who found no physical evidence of sexual abuse, but who opined that such a finding is consistent with the acts that the child had described.

A.

Because the focus of the appeal is on the interrogation of A.W., we describe it in detail. Detective Lopez contacted AW.’s parents, and his father voluntarily brought him to the Union County Child Advocacy Center for an interview on November 26, 2008, shortly after 10:00 a.m. A.W. was not under arrest when he made his statement and the interview lasted for approximately forty-five minutes. A.W. is bilingual, but because his father speaks very little English, the interview was conducted initially entirely in Spanish.

At the start of the interview, Detective Lopez used a preprinted juvenile rights form,1 written in Spanish, to advise A.W. [119]*119and his father of A.W.’s rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Detective Lopez read the form aloud to them and then she had A.W. read portions of the form aloud as well. After reviewing the waiver form, both A.W. and his father signed it, placing their initials after each individual question.

The interview began with general questions about A.W.’s visits to the victim’s home. When Detective Lopez first brought up K.P.’s allegations, A.W. denied touching her in a sexual way, stating instead that their other cousin J. had inappropriately touched K.P. When Detective Lopez asked A.W. to repeat what J. had said about touching the child, A.W. switched from Spanish to English and asked the detective if he could say it to her in English. Detective Lopez permitted him to do so and A.W. then told her in English that J. had said he had been touching K.P. and did not want A.W. or anyone else to find out. Detective Lopez then resumed speaking in Spanish, repeating only that J. did not want anyone to find out but not translating into Spanish for A.W.’s father what A.W. claimed J. had revealed. As the questioning continued in Spanish, the Detective again turned the questioning to K.P.’s allegations against A.W., who repeated his denial of any wrongdoing. The English translation of what A.W. said is “I didn’t touch her, because she is family and all, and I don’t touch younger girls and all that.”

In response to that statement, Detective Lopez, still speaking in Spanish, made further comments to A.W., the English translation of which is as follows:

Det.: Okay, X know that your dad is here.
A.W.: Yes.
Dot.: And he’s a big man, and you can tell that he is worried and it is a sad thing and it’s also a very serious thing.
A.W.: Huh.
[120]*120Det.: I want to tell you that I interviewed a boy in the same position as you are in and he denied it, denied it and denied it in the beginning, then at the end he finally told me, and they tell me because they don’t want to do it again, they also want help.
A.W.: Uh-huh.

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Bluebook (online)
51 A.3d 793, 212 N.J. 114, 2012 WL 4350942, 2012 N.J. LEXIS 955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-aw-nj-2012.