State in the Interest of A.W., A-1 September Term 201; Supreme Court; majority opinion by Hoens, J.; dissent by Albin, J.; decided September 25, 2012. On certification to the Appellate Division.[Sat below: Judges in the Appellate Division; Judge in the Law Division.] D.D.S. No. 14-1-7768 [57 pp.]

After five-year-old K.P. gave her mother a graphic account indicating sexual assault by A.W., her 13-year-old cousin, and J., her 10-year-old cousin, Detective Janet Lopez of the Union County Prosecutor’s Office contacted A.W.’s parents. His father voluntarily brought him to the Union County Child Advocacy Center for an interview.

Because A.W.’s father speaks very little English, the interview was conducted initially entirely in Spanish. Lopez used a preprinted juvenile rights form, written in Spanish, to advise A.W. and his father of A.W.’s rights. Both signed it. During the interview, A.W. initially denied touching K.P. in a sexual way. Speaking in English, he implicated J. The questioning then continued in Spanish. Lopez commented on the fact that A.W.’s father was there, that he was a big man and that he was worried. She opined that if the allegations were true, A.W. would not go to jail or a juvenile facility but would likely received therapy. She said, “I know it’s hard because your dad is here beside you . . . it’s something really painful . . . and that maybe you don’t want to talk about.” A.W., in English, said “Yeah I know,” and he and Lopez then spoke again briefly in English. In Spanish, she told A.W. that J. had already confessed and had implicated him.

A.W., in English, then said he would tell Lopez everything but without his father there. In Spanish, Lopez explained to A.W.’s father what A.W. had said. The father immediately stood up to leave. Before Lopez agreed to speak with A.W. without his father present, she advised the father that he would need to waive his right to be present during the interview, that he was free to change his mind at any time, and could return to the interview room if he wanted. A.W.’s father signed the waiver form without objection and left the interview room.

A.W. eventually admitted that he had touched K.P.’s vagina once. His father re-entered the room and Lopez summarized A.W.’s statements for him. A.W. was thereafter charged as a juvenile with aggravated sexual assault.

The trial court denied A.W.’s motion to suppress the videotape of his interview, concluding that his father had not been excluded improperly from the interview room and that A.W.’s will had not been overborne by coercive interrogation techniques. A.W. was adjudicated delinquent on the sexual assault charges.

The Appellate Division affirmed, rejecting A.W.’s contention that Lopez had used unfair psychological techniques to induce him to request that his father leave the room and finding that his confession was voluntary.

Held: Under the totality of the circumstances, A.W.’s father willingly and voluntarily left the interview room, the questioning was conducted in accordance with the utmost fairness and with the highest standards of due process and fundamental fairness, and A.W.’s confession was knowing, intelligent and voluntary. The confession is, therefore, admissible.

State v. Presha, 163 N.J. 304 (2000), created specific guidelines for courts to follow when considering challenges to the voluntariness of juveniles’ confessions. A court must consider the totality of circumstances, including such factors as the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, and whether physical punishment or mental exhaustion was involved. Enhanced weight must be given to the absence of a parent or legal guardian. For juveniles under 14, there is a presumption that if a parent is not present, a confession should be deemed inadmissible unless the adult was unwilling to be present or truly unavailable. Police must conduct the interrogation with the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.

State ex rel. Q.N., 179 N.J. 165(2004), directed police to wait for the parent to offer to leave the room rather than suggesting it themselves, and to inform the juvenile that the parent remained available even after leaving the room.

Applying these principals, the court rejects A.W.’s claim that his father’s absence was inappropriately procured by Lopez’s use of English at critical points to marginalize his father. It says her use of English was brief and A.W.’s father did not request that she translate. Moreover, the vast majority of the English statements were also spoken in Spanish. Nothing in the substance of those comments served to marginalize A.W.’s father. Nor is there support for A.W.’s claim that Lopez’s reference to the size of his father was a suggestion that he would be in danger unless the father left the room. Further, A.W., who concedes that the idea that his father should leave was first voiced by him, admitted that the choice was the product of his decision that he could handle the situation himself. His statement that his choice was wrong does not equate with one that was the product of coercion.

The court says that, having been carefully apprised of his and of his son’s rights and having participated in nearly half of the interview, A.W.’s father willingly and voluntarily left the room. Nothing in that record calls into question his willingness to be absent.

As to A.W.’s challenge to the voluntariness of his confession, using a totality of the circumstances approach and considering the factors identified in Presha and Q.N., the court concludes that A.W.’s confession was made knowingly, intelligently, and voluntarily, and that the questioning comported with the highest standards of fundamental fairness and due process.

It notes that A.W. and his father came in voluntarily for an interview that took place during the day and that was relatively brief, lasting approximately 45 minutes. The setting was not intimidating, Lopez was the only law enforcement figure present and she was in plain clothes, and she addressed A.W. respectfully using a calm, even-toned voice. His father was present for the first half of the interview and was involved in the review of A.W.’s rights. He had an ample opportunity to assess the subject matter and the tone of the questioning, to which he made no objection, before agreeing to leave at his son’s request. A.W. was not restrained, threatened with arrest or otherwise intimidated.

The dissent says the interrogation methods used had the clear capacity to overbear A.W.’s will, did not comport with the highest standards of due process and fundamental fairness, violated his guarantee of due process under the federal constitution, and that his confession should have been suppressed.

Chief Justice Rabner and Justices LaVecchia and Patterson join in Justice Hoens’ opinion. Justice Albin filed a dissent. Judge Wefing (temporarily assigned) did not participate.

For appellant — Brian F. Plunkett, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — Frank J. Ducoat, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General). For amicus curiae American Civil Liberties Union of New Jersey Foundation — Laura A. Cohen (Rutgers Urban Legal Clinic Center for Law & Justice and Rutgers Constitutional Litigation Clinic Center for Law & Justice; Cohen, Ronald K. Chen, Edward L. Barocas, Jeanne M. Locicero, Alexander R. Shalom on the brief).