On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 01-12-1510.
The opinion of the court was delivered by: Ariel A. Rodriguez, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Sabatino.
Following a jury trial, defendant John L. Nyhammer was convicted of first degree aggravated sexual assault on A.N., a girl, then nine years old (count one), N.J.S.A. 2C:14-2a(1); four counts of second degree sexual assault (counts two, three, four and five), N.J.S.A. 2C:14-2b; and endangering the welfare of a child (count six), N.J.S.A. 2C:24-4a. The judge merged counts two, three, four and six into count one and imposed an eighteen-year term with a nine-year parole disqualifier. On count five, the judge imposed a concurrent seven-year term. Prior to trial, the judge conducted hearings on: (1) whether defendant's confession was knowing and voluntary pursuant to the Miranda*fn1 rule; and (2) whether the videotaped statement of A.N. should be admitted at trial in addition to her testimony. The judge denied defendant's motion to suppress his confession to the police and found the videotaped statement by A.N. to be admissible. We reverse and remand for a new trial, concluding that both rulings were erroneous.
These are the salient facts. The investigation into this abuse case began with a different victim and a different defendant. M.N., a seven-year old girl, was interviewed by detectives, due to allegations that she was sexually abused by Glenn B. Green. Subsequently, Green pled guilty to second degree sexual assault. As part of this investigation, A.N. and her mother were interviewed by investigators from the Burlington County Prosecutor's Office. Investigator Dawn Cooper conducted the interview and Investigator Michael Sperry monitored and videotaped the interview from another room. A.N. confirmed the allegations of abuse by Green and reported that defendant also had sexually abused her by: forcing her to touch his penis while masturbating and ejaculating in front of her; touching her genitals and buttocks; and putting his penis on top of and inside of her genitals.
Two weeks later, Sperry called defendant and explained that he was conducting an investigation against Green and wanted to talk regarding anything he had witnessed. Sperry did not indicate to defendant that A.N. had made allegations about him. Defendant agreed and went to the Pemberton Police Station. There, Sperry gave defendant Miranda warnings. Defendant indicated that he understood them and signed a card acknowledging the same. After defendant gave a formal taped statement regarding the incident he witnessed of Green abusing A.N., Sperry expressed his concern that defendant had also been sexually abused by Green. According to Sperry, defendant became extremely and visibly upset. At first, he denied that he had been abused by Green. However, when Sperry continued confronting defendant by telling him that A.N. had made some accusations against him as well, defendant became distraught. He cried and had difficulty speaking. Defendant was not given the Miranda warnings a second time. According to Sperry, defendant said:
[I] messed up, and you know, after it happened [I] can't talk about it. [I] can't even look [A.N.] in the face.
Defendant then confessed that he had forced A.N. to touch his penis and that he had masturbated in her presence. Sperry requested that defendant give a second formal taped statement regarding the confession. Defendant agreed and complied with this request.
At a pre-trial hearing on the admissibility of defendant's taped confession, the judge found that defendant's rights had not been violated because defendant was read his Miranda rights, which he understood and acknowledged in writing. The judge also found by observing defendant during his testimony at the Miranda hearing that he "had the capacity to act knowingly and intelligently in proceeding with the questioning." Finally, the judge found that no violation occurred when the police failed to give Miranda warnings to defendant a second time prior to the confession.
At a pre-trial hearing on the admissibility of the videotaped statement by A.N., the judge found the videotape trustworthy.
At trial, A.N., then age eleven, testified. Despite many attempts by the prosecutor, she was non-responsive to many questions. She was unable to testify that defendant touched her inappropriately, despite leading questions, although she did write his name on the blackboard. The transcript of her testimony discloses many "no response" notations instead of answers to questions. When the prosecutor used anatomically correct dolls, asking A.N. to indicate where she had been touched or what part of a boy's body she had seen, A.N. made no response. Further, A.N. was unresponsive to the following questions: "has [defendant] touched you anywhere?" and "can you show us what they touched you with on your private area?"
On cross-examination, defense counsel could not elicit recollections from A.N. on questions going to the heart of the charges. She did not describe on direct or cross-examination the acts described in her videotaped statement. Neither did she corroborate her accusation that defendant engaged in sexual activity from the videotaped statement.
Officer Cooper testified regarding the circumstances under which the videotape was made. The State moved to enter A.N.'s out-of-court videotaped statement into evidence, pursuant to N.J.R.E. 803(c)(27). Defendant objected. The judge admitted the videotape into evidence.
Defendant testified and told the jury that he was adopted at age seven. At ten years old, his adoptive parents divorced. Subsequently, he was placed into foster care. He lived briefly with Green and his wife. According to defendant, Green and another man sexually abused him. Defendant also reported being sexually and physically abused at other different placements. Beginning around 1994, he reported to DYFS that Green was sexually abusing A.N. DYFS was reluctant to act on his reports and no case was ever initiated. Defendant denied sexually assaulting A.N. He ...