State of New Jersey v. John L. Nyhammer

09-06-07 A-5672-04T4

We reverse a conviction for aggravated sexual assault on a
girl, then nine years old, concluding that each of two rulings
constituted reversible error. First, the judge should not have
admitted defendant's confession. An investigator called
defendant and explained that he was conducting an investigation
against another man in connection with the abuse of another
child as well as the victim in this case. The investigator did
not indicate to defendant that the victim in this case had made
allegations of abuse by defendants. Defendant went to the
police station. The investigator gave defendant the Miranda
warnings. After defendant gave a formal statement regarding the
incident of abuse by the other man, the investigator told him
that the victim had made accusations against defendant as well.
Defendant became distraught. Miranda warnings were not given a
second time. Defendant confessed. We conclude that defendant
did not make a knowing and voluntary waiver of his right to
remain silent. Therefore, his confession was inadmissible.
Second, we conclude that the victim's hearsay videotape,
which was the sole substantive evidence proving defendant's
conduct, should have been excluded from evidence, pursuant to
the Confrontation Clause. The videotaped statement was
"testimonial," there was no prior opportunity for defendant to
cross-examine the victim, and there was no opportunity for an
adequate and meaningful cross-examination at trial because the
victim was unresponsive to many questions. At trial, she did
not recollect questions going to the heart of the charges.
Therefore, the videotape was the sole substantive evidence at
trial.