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State v. Nyhammer

February 3, 2009; as amended February 25, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN L. NYHAMMER, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 396 N.J. Super. 72 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must determine whether the Fifth Amendment or our state-law privilege against self-incrimination compels the suppression of a statement by a person, who has voluntarily chosen to speak to police after being fully advised of his Miranda rights, solely because the police did not inform him that he was a suspect. In addition, the Court addresses whether the admission of the out-of-court statement by a child-victim denied defendant his federal and state right of confrontation because the child was, in large part, unresponsive to questioning at trial during direct examination.

Detective Michael Sperry of the Burlington County Prosecutor's Office contacted defendant John Nyhammer by telephone on September 24, 2001 and asked him if he would be willing to come to the Pemberton Township Police Department to discuss allegations that defendant's uncle, Glenn Green, had sexually abused his grand-niece, Amanda. Nyhammer, then twenty-eight years old, agreed to come to the police station the next day. Detective Sperry did not reveal to Nyhammer that, several weeks earlier, Amanda had made statements to the police, alleging that both Green and Nyhammer had sexually abused her.

Upon arriving at the police station around 10:30 a.m., Detective Sperry read Nyhammer his Miranda rights prior to the beginning of any questioning. Nyhammer orally acknowledged that he understood each right and signed a Miranda warning card. Detective Gabriele Willets of the Pemberton Township Police Department was also present for the interview. Detective Sperry began with questions related to Green's relationship to defendant and Amanda. Detective Sperry did not mention Amanda's allegations concerning defendant. During the seventeen-minute audiotape interview, Nyhammer stated that in 1998, he observed his uncle inappropriately touching Amanda, which he reported to the Division of Youth and Family Services. After the taped interview concluded, Detective Sperry expressed his concern that Green may have sexually abused Nyhammer, which caused defendant's eyes to fill with tears. Although defendant denied being abused by his uncle, he reacted when Detective Sperry suggested that sometimes victims of sexual abuse exhibit sexually abusive behavior. It was then for the first time that the detective told defendant that Amanda had made sexual allegations against him and had described what had been done to her. Defendant then admitted to inappropriate contact with Amanda.

Nyhammer agreed to give a second audiotape statement, which began at 11:56 a.m. and ended at 12:24 p.m. During that taped statement, Nyhammer expanded on his description of the sexual encounter with Amanda. He admitted to masturbating in front of her, rubbing his fingers on her vagina, penetrating her vagina slightly with his finger, and rubbing his penis against her vagina. He claimed the encounter lasted no more than five minutes. He also admitted that Amanda had observed him masturbating between ten and twenty times.

A Burlington County grand jury returned an indictment charging Nyhammer with first-degree aggravated sexual assault, second-degree sexual assault, and third-degree endangering the welfare of a child. The victim of those crimes was Nyhammer's nine-year-old niece, referred to as "Amanda" for purposes of this appeal.

The trial court conducted a pre-trial N.J.R.E. 104(c) hearing to determine the admissibility of a confession made by Nyhammer to Detectives Sperry and Willets. The detectives and defendant each testified about the events surrounding defendant's confession. Nyhammer testified that he gave a false confession to the detectives, claiming that the abuse he said he had inflicted on Amanda actually happened to him as a child and that he merely substituted her name in order to get help for Amanda and himself. Defendant conceded that, during the questioning, the detectives were polite and respectful and did not coerce his answers. Defendant also conceded that he understood his Miranda rights when they were read to him by Detective Sperry. In admitting defendant's confession into evidence, the trial court ruled that, based on the totality of the circumstances, Detectives Sperry and Willets did not violate Nyhammer's Miranda rights and that he voluntarily and intelligently waived his rights when he consented to be interviewed. The trial court rejected defendant's contention that detectives had an obligation to re-administer the Miranda warnings before questioning Nyhammer about his sexual conduct with Amanda once he learned that he was a suspect.

The trial court also conducted a pretrial N.J.R.E. 104(a) hearing to determine the admissibility of Amanda's videotape interview with Detective Dawn Cooper of the Burlington County Prosecutor's Office on September 10, 2001. Throughout the interview, Amanda was reticent and her answers were not easily forthcoming, even to very pointed and leading questions. Amanda identified Nyhammer by writing the name "Uncle John" on a board. She described the acts of sexual abuse perpetrated by defendant, using a drawing of a female body and dolls. Without objection, the videotape and transcribed statement of Amanda's interview were admitted into evidence.

The matter was tried in April 2003. During Amanda's testimony, the prosecutor encountered great difficulty in eliciting from her the information contained in her videotape statement. Amanda was unresponsive to questions relating to the sexual abuse. On cross-examination, defense counsel asked a number of safe questions -- those intended to elicit answers that would reveal only mundane information -- rather than information that might damage or potentially implicate Nyhammer. The trial court then heard arguments in respect of the admissibility of Amanda's interview with Detective Cooper. Defense counsel objected to the videotape's admissibility, arguing that it did not meet the essential component of the "tender years" hearsay exception, N.J.R.E. 803(c) (27), which requires a judicial finding that on "the basis of time, content and circumstances of the statement there is a probability that the statement is trustworthy." Defense counsel contended that Amanda's inability to recall or corroborate her videotape interview rendered her out-of-court statement untrustworthy and, therefore, inadmissible under N.J.R.E. 803(c) (27). In admitting the videotape testimony, the trial court reasoned that there was a probability that the statement was trustworthy, based on the following factors: Amanda had no motive to lie, she used dolls and drawings to answer questions and had sufficient knowledge of the human body to understand and answer the detective's questions, and her answers were reasonably spontaneous despite the leading nature of the questions. The court found that the preconditions under N.J.R.E. 803(c) (27) for admission of Amanda's out-of-court statements were met -- the videotape interview was trustworthy, the defense had adequate notice that the tape would be offered as evidence, and Amanda testified.

At the conclusion of the trial, the jury found Nyhammer guilty of all charges. Nyhammer was sentenced to an aggregate term of eighteen years in prison, with a nine-year period of parole ineligibility. On appeal, the Appellate Division reversed defendant's conviction on two grounds and remanded for a new trial. First, the appellate panel concluded that defendant did not make a knowing and voluntary waiver of his right to remain silent when told by Detective Sperry of Amanda's allegations against him. When defendant acquired knowledge that he was a suspect and that his personal freedom would be affected by his discussion with Sperry, Miranda warnings should have been given again. The panel suppressed Nyhammer's confession, finding that failure to repeat the warnings at that critical point rendered the confession "involuntary" under both the Due Process Clause of the Fourteenth Amendment of the United States Constitution and New Jersey's common-law privilege against self-incrimination. Second, the panel held that the admission of Amanda's videotape interview, which constituted "the sole substantive evidence" of defendant's guilt, in light of the suppression of his confession, violated the Confrontation Clause of both the federal and state constitutions. According to the appellate panel, the video interview was erroneously admitted into evidence because Amanda's inability to testify about her prior statements effectively denied defendant "the opportunity for an adequate and meaningful cross-examination at trial."

The Supreme Court granted certification.

HELD: The trial court did not err in finding, based on the totality of the circumstances, that Nyhammer knowingly, voluntarily, and intelligently waived his Miranda rights under both federal and state law. Thus, the trial court did not abuse its discretion in admitting Nyhammer's confession into evidence. Further, a defendant cannot assert that he was denied his right of confrontation under the federal and state constitutions unless he first attempts to cross-examine the witness on the core accusations in the case. Nyhammer had the opportunity to cross-examine the child-victim at trial about her out-of-court testimony implicating him in the crime but chose not to do so; therefore, he cannot claim that he was denied his right of confrontation.

1. Miranda mandates that a person subject to custodial interrogation be adequately and effectively apprised of his rights against self-incrimination. A specific set of warnings must be given to a person in police custody before interrogation begins. Generally, barring intervening events, once a defendant has been apprised of his constitutional rights, no repetition of these rights is required. In determining the voluntariness of a defendant's confession, the Court traditionally looks to the totality of the circumstances to assess whether the waiver of rights was the product of free will or police coercion. The Court recently reaffirmed its adherence to the totality-of-the-circumstances approach. (Pp. 17-25)

2. Only in the most limited circumstances, such as when police officers knowingly fail to inform a suspect that an attorney is present or available to confer with him, has the Court applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights. There are no compelling reasons to substitute the traditional totality-of-the-circumstances test for an inflexible, per se rule. The facts in this case do not fall within the limited category of cases in which a bright-line rule has been applied. (Pp. 25-28)

3. The Court is not aware of any case in any jurisdiction that requires that a person be informed of his suspect status in addition to his Miranda warnings or that compels automatic suppression of a statement in the absence of a suspect warning. The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime. The failure to be told of one's suspect status would be only one of many factors to be considered in the totality of circumstances. Within an hour of being given his Miranda rights, Nyhammer was told of Amanda's allegations against him. The entire police interview took less than two hours, Nyhammer conceded that he understood his Miranda rights, and he conceded he was not coerced into giving his statement. The trial court applied the correct test and its findings are supported by sufficient credible evidence in the record. Nyhammer's confession was properly admitted into evidence. (Pp. 28-34)

4. The Court has independently reviewed Amanda's videotape interview and concludes that the trial court did not abuse its discretion in finding that her statements met the trustworthiness requirement of N.J.R.E. 803(c) (27). The federal and state Confrontation Clause affords a criminal defendant the right to be confronted with the witnesses against him. The Confrontation Clause does not bar admission of a statement so long as the witness is present at trial to defend or explain it. Testimonial statements from witnesses absent from trial are only admitted where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. The admission into evidence of Amanda's videotape statement did not violate either the federal or state Confrontation Clause. Defendant had the opportunity to cross-examine Amanda on the core allegations contained in her statement, but declined to do so. That strategic decision may have been for good reason - the fear that such questioning might have elicited the type of damning responses that eluded the prosecutor on direct examination. It cannot be presumed that Amanda would have remained silent or unresponsive to questions defense counsel never asked. Having chosen the strategic course of not asking Amanda questions about the core allegations in her statement, defendant cannot now claim that he was denied the opportunity for cross-examination. Thus, the trial court did not abuse its discretion in admitting Amanda's videotape statement into evidence. (Pp. 34-42)

Judgment of the Appellate Division is REVERSED, Nyhammer's convictions are REINSTATED, and the matter is REMANDED to the Appellate Division for consideration of defendant's sentencing issues.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE ALBIN'S opinion.

The opinion of the court was delivered by: Justice Albin

Argued October 20, 2008

In this appeal, we first must determine whether the Fifth Amendment or our state-law privilege against self-incrimination compels the suppression of a statement by a person, who has voluntarily chosen to speak to the police after being fully advised of his Miranda rights,*fn1 solely because the police did not inform him that he was a suspect. The trial court ruled that, based on the totality of the circumstances, defendant John Nyhammer knowingly, voluntarily, and intelligently waived his Miranda rights, even though the police did not give him advance notice that the questioning would touch on his own involvement in a sexual crime against his young niece. The Appellate Division reversed, finding that the police deprived defendant of essential information, his status as a suspect, necessary for the exercise of an informed waiver of his rights.

We now hold that the trial court properly applied the totality-of-the-circumstances test in deciding whether defendant knowingly, voluntarily, and intelligently waived his Miranda rights -- a test that we recently reaffirmed in State v. O'Neill, 193 N.J. 148 (2007), and State v. Dispoto, 189 N.J. 108 (2007). In applying that test, the trial court did not err in admitting defendant's confession. Here, defendant knew that he was a suspect as soon as the police asked him the first question about his involvement in the sexual abuse of the child-victim in this case. Moreover, one hour earlier, before defendant made his first incriminating statement, the police told him that he had a right to remain silent and that anything he said could be used against him in a court of law. Nevertheless, despite having been given his Miranda warnings, he knowingly and voluntarily chose to speak.

Next, we must decide whether the admission of the out-of-court statement by a child-victim denied defendant his federal and state right of confrontation because the child was, in large part, unresponsive to questioning on direct examination at trial. The Appellate Division reversed the trial court's admission of the child's statement on the ground that the child's silence made her, in effect, unavailable for cross-examination. Unlike the Appellate Division, we do not presume that the victim's unresponsiveness on direct-examination made her "unavailable" on cross-examination. We hold that a defendant cannot assert that he was denied his right of confrontation unless he first attempts to cross-examine the witness on the core accusations in the case. Because defendant had the opportunity to cross-examine the child at trial about her out-of-court testimony implicating him in the crime but chose not to do so, he cannot claim that he was denied his right of confrontation.

I.

A Burlington County grand jury returned an indictment charging defendant John Nyhammer with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one), second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts two to five), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six). The victim of those crimes was defendant's nine-year-old niece, Amanda.*fn2

Defendant's Confession

The trial court conducted a pretrial N.J.R.E. 104(c) hearing to determine the admissibility of a confession made by defendant to Detective Michael Sperry of the Burlington County Prosecutor's Office and Detective Gabriele Willets of the Pemberton Township Police Department.*fn3 At the hearing, Detective Sperry, Detective Willets, and defendant testified to the events --- most of which are undisputed -- surrounding the interview now in question.

On September 24, 2001, Detective Sperry telephoned defendant and asked him whether he would be willing to discuss allegations that defendant's uncle, Glenn Green, had sexually abused his grand-niece, Amanda. Defendant, then twenty-eight-years old, expressed his willingness to speak with Detective Sperry. Indeed, defendant had previously reported to the Division of Youth and Family Services (DYFS) that his uncle had sexually abused Amanda. In their telephone conversation, Detective Sperry did not reveal to defendant that, several weeks earlier, Amanda had made statements to the police, alleging that both Green and defendant, on separate occasions, had sexually abused her.

As agreed, the next day, Detectives Sperry and Willets picked up defendant at a local restaurant and drove him to the Pemberton Township Police Department. Defendant had no other means of transportation. During the drive, the only talk between defendant and the detectives was idle chit-chat. On arriving at the police station at approximately 10:30 a.m., with Detective Willets as a witness, Detective Sperry read to defendant his Miranda rights:

You have the right to remain silent, [and] refuse to answer any question. . . . Anything you say may be used against you in a court of law. . . .

You have the right to consult with an attorney at any time and have him present before and during questioning. . . .

If you cannot afford an attorney one will be provided, if you so desire, prior to any questioning. . . .

Your decision to waive these rights is not final and you may withdraw your waiver any time you wish, either before or during questioning.

Defendant orally acknowledged that he understood each right and also signed a Miranda warning card, which contained in writing each of the rights read to him. Detective Sperry began the interview with questions related to Green's relationship to defendant and Amanda. At that time, he did not mention Amanda's allegations directed at defendant.

At the beginning of the interview, defendant explained that, at about the age of ten, while he lived with Green and his wife, his uncle had physically abused him. Defendant also mentioned that during a two-year period "he had basically raised" Amanda and her cousin when they ...


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