SYLLABUS
(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).
State of New Jersey v. John L. Nyhammer (A-85-07)
Argued October 20, 2008 -- Decided February 3, 2009 – Corrected February 25, 2009
ALBIN, J., writing for a unanimous Court.
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.
SUPREME COURT OF NEW JERSEY
A- 85 September Term 2007
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHN L. NYHAMMER,
Defendant-Respondent.
Argued October 20, 2008 – Decided February 3, 2009 – Corrected February 25, 2009
On certification to the Superior Court, Appellate Division, whose opinion is reported at 396 N.J. Super. 72 (2007).
Jeanne Screen, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney).
Sylvia M. Orenstein, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).
Lawrence S. Lustberg and Jennifer Mara submitted a brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Gibbons, attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
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,1 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.2
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.3 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 were young children. Defendant then agreed to be interviewed on audiotape.
During a seventeen-minute audiotape interview, defendant recalled that in 1998, when Amanda was six-years old, he observed Green touch and squeeze Amanda’s buttocks and rub her inner thigh. He reported the incidents to DYFS, but was told by DYFS that charges could not be brought because Amanda “refuse[d] to talk.” Additionally, defendant suspected that Green sexually abused one of his own daughters. Defendant left for Colorado in April 1998, and when he returned to this state in January 1999, Amanda would “not [say] two words to [him]” or even speak to others while he was in the room. That taped interview ended at 11:27 a.m.
Afterwards, Detective Sperry expressed his concern that “Green may have sexually abused [defendant],” at which point “[defendant’s] eyes filled up with tears.” Although defendant denied that his uncle had sexually abused him, he began to shift his eyes downward when Detective Sperry said “that sometimes victims of sexual abuse exhibit sexually abusive behavior.” It was then, for the first time, that Detective Sperry mentioned that Amanda had made sexual allegations about defendant and “described everything that he had done to her.” Crying, defendant admitted “that he messed up a few months before.” He explained that he became “sexually excited” when Amanda had given him a hug and that he put her hand on his erect penis.
Defendant agreed to give another audiotape statement, which began at 11:56 a.m. and ended at 12:24 p.m. During the taped statement, defendant expanded on his description of his sexual encounter with Amanda in a bedroom. After Amanda placed her hand on his penis for “a second or two,” he then masturbated, ejaculating in front of the child. At defendant’s request, Amanda had lowered her pants, and he had rubbed his fingers on her vagina, penetrating her slightly with a finger. Defendant described the depth of the penetration with his finger as no greater than the length of a pencil eraser. He also acknowledged that his penis might have “accident[ally]” rubbed up against Amanda’s vagina. Immediately afterwards, defendant told Amanda: “‘This is between me and you . . . this will never happen again at all.’”
Defendant claimed that this sexual episode occurred within approximately a five-minute period, and that he then left the house for two days and “wanted to kill [himself].” Nevertheless, defendant admitted that Amanda observed him masturbating between ten and twenty times. After making the confession, defendant stated, “I feel better now that it’s out.”
In his testimony, defendant stated that he gave a false confession to the detectives, that the abuse he described inflicting on Amanda had actually occurred to him as a child, and that he merely substituted their names in giving his account. He claimed that he was trying to get some help for Amanda and “asking for help for [himself] too.” He noted that he graduated from a high school for emotionally disturbed children. Defendant conceded that, during the questioning, the detectives were polite and respectful, did not raise their voices, did not threaten him, and treated him “like a human being.” The detectives did not offer and he did not ask for either a drink or a bathroom break. At 2:00 a.m. on the day of the interview, defendant had taken pain medication for an arm injury, but could not say that he was affected by the medication or that the pain was unmanageable. Detective Sperry turned off the tape recorder six to eight times, advising defendant during the intervals of what Amanda had told Detective Cooper.
Defendant stated that Detectives Sperry and Willets did not tell him that he was a suspect before he went to police headquarters to give a statement about his uncle, Glenn Green. During his testimony, however, defendant conceded that he understood his Miranda rights when those rights were read to him by Detective Sperry. Moreover, at his trial, defendant testified that he knew when he gave the second audiotape statement that he had a right to refuse to answer the questions, but nevertheless kept answering because he “would have said or done anything to help Amanda.”
The court ruled that, based on the totality of the circumstances, Detectives Sperry and Willets did not violate defendant’s Miranda rights and that defendant “voluntarily and intelligently” waived his rights when he consented to be interviewed. The court rejected defendant’s arguments that the detectives had an obligation to re-administer the Miranda warnings before questioning defendant about his sexual misconduct with Amanda and that the earlier warnings preceding the questioning about Green did not suffice because defendant did not know at that time that he was a suspect. It noted that, despite his educational background, defendant showed during the hearing that he “had the capacity to act knowingly and intelligently.” The court reasoned that it did not have to determine whether defendant was in custody because he was given his Miranda rights. In determining defendant’s statements to be voluntary, the court emphasized that the nature of the questioning was not coercive; that “the length of the questioning [was] not substantial”; and that “[defendant] testified . . . that he understood his rights.” Whether defendant’s confession was false was a matter for the jury.
Amanda’s Videotape Interview
The court also conducted a pretrial N.J.R.E. 104(a) hearing to determine the admissibility of Amanda’s eighty-two-minute videotape interview with Detective Dawn Cooper of the Burlington County Prosecutor’s Office on September 10, 2001.4 Throughout the interview, Amanda was reticent and not easily forthcoming, and Detective Cooper questioned the child, many times pointedly, with leading questions. Amanda identified defendant by writing the name “Uncle John” on a board.5 Using a drawing of a female body, Amanda indicated that defendant touched her in the vaginal area and on the buttocks and, with the assistance of dolls, indicated that defendant partially penetrated her vagina with his finger. She also responded that defendant had touched her with his fingers and penis. Amanda demonstrated, with up-and-down hand motions, how defendant stroked his penis, stating that when defendant “squeeze[d]” his penis, “white stuff” landed on the floor and that he “clean[ed] it up with a tissue paper.” When the detective asked Amanda the direction defendant’s “wee wee [was] pointing when he [squeezed it],” Amanda answered that he “[m]akes it face up . . . [t]o the sky.”
Without objection, the videotape and a transcribed statement of the interview were admitted into evidence.
Trial
A six-day jury trial began on April 2, 2003. The prosecutor called as his first witness, Amanda, then eleven years old. Amanda answered preliminary questions with some ease, giving her age and identifying her school and the family members and pets with whom she lived. The prosecutor, however, encountered great difficulty in drawing from Amanda the information contained in her videotape statement. Amanda recalled speaking to Detective Cooper “a long time ago” about what happened, but was not responsive in giving details. When asked to tell “who [she] talked about,” she did not respond. After the court allowed Amanda to write down her answer on a board, she printed the words, “Uncle John,” and then recited the name out loud.
Although the prosecutor struggled to elicit answers from Amanda, the young girl stated that she told the truth when she spoke with Detective Cooper, and that she told the detective “about certain things that happened between” her and defendant, even though it was “hard.” However, when asked “if Uncle John touched [her] anywhere,” Amanda did not respond. When that same or similar type of question was asked several different times, she remained incommunicative. Amanda also would not respond to the question of whether “anybody ever touched [her] on [her] private areas.”
On cross-examination, defense counsel asked a number of safe questions -- questions intended to elicit answers that would reveal only mundane information, rather than information that might damage or, even worse, implicate her client.6 Counsel questioned Amanda on such topics as her age, her school, and her relatives and pets. When asked whether she recalled telling Detective Cooper about what happened, Amanda could not give details. Counsel highlighted Amanda’s non-responsiveness on direct-examination with such inquiries: “[W]hen [the prosecutor] asked you did Uncle John touch you, you didn’t answer him. Do you remember that?”, and “Do you remember telling [Detective Cooper] about anybody else touching you?” To both questions, Amanda answered, no.
Following Amanda’s testimony, the trial court again heard arguments concerning the admissibility of her videotape interview with Detective Cooper. Defense counsel now objected to the videotape’s admission on the ground that it did not meet an 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 the time, content and circumstances of the statement there is a probability that the statement is trustworthy.” Counsel contended that Amanda’s inability to recall or corroborate her videotape interview rendered her out-of-court statements untrustworthy and therefore inadmissible under N.J.R.E. 803(c)(27).
The trial court, however, held that there was a probability that the statement was trustworthy based on the following factors: Amanda had no motive to lie, Amanda 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 to the detective’s questions were reasonably spontaneous despite the leading nature of the questions. The court found that N.J.R.E. 803(c)(27)’s preconditions 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.
For the defense, defendant’s sister-in-law and fiancée both testified that defendant enjoyed a healthy and normal relationship with children. Carol Price, defendant’s former principal at a residential treatment center and self-described “adopted mother,” explained that she had observed defendant, in stressful situations, admit his guilt to authorities for acts he did not commit or for which he was not entirely culpable.
Last, in his testimony, defendant repeated, in large part, what he had said at the pretrial hearing, averring that he falsely implicated himself “trying to get Amanda help” from the abuse inflicted on her by Glenn Green and was “willing to even say or do anything” to achieve that goal. Significantly, for purposes of this appeal, defendant admitted on direct examination that he understood his constitutional rights when he spoke to the police concerning Amanda’s allegations about him:
Defendant: I was informed from Detective Sperry that there [were] accusations from Amanda towards me.
Defense counsel: Did you know that you had a right to refuse to answer any questions?
Defendant: Yes, I do -- did.
. . . .
Defense counsel: Did you know that you had a right to refuse to answer any questions at the time of the second tape?
Defendant: Yeah.
Defense counsel: But you kept answering questions?
Defendant: Correct.
On April 11, 2003, the jury returned a verdict of guilty on all six counts of the indictment. The trial court sentenced defendant to a term of eighteen years in state prison, with a nine-year period of parole ineligibility, for aggravated sexual assault (count one) and to a concurrent term of seven years imprisonment for sexual assault (count five). All the remaining counts were merged into the aggravated-assault conviction. Additionally, the court advised defendant that, under Megan’s Law, he was subject to community supervision for life, N.J.S.A. 2C:43-6.4, and required to register as a sex offender, N.J.S.A. 2C:7-2, and to submit DNA samples for the sex offender registry.
Appeal
The Appellate Division reversed defendant’s conviction on two grounds. State v. Nyhammer, 396 N.J. Super. 72, 78 (App. Div. 2007). First, the panel determined that “defendant did not make a knowing and voluntary waiver of his right to remain silent” when confronted by Detective Sperry with Amanda’s allegations. Id. at 85. The panel acknowledged that ordinarily a valid waiver of Miranda rights continues until revoked, and therefore the police have no duty to repeat the required warnings. Id. at 83. The panel also acknowledged that “the contents of [the Miranda warnings] inherently may suggest that the recipient of the warning could be a criminal suspect.” Id. at 84. Nevertheless, because Detective Sperry “initially [led] defendant to think that his interview was about Green’s culpability, [and] not his own,” the panel concluded that when defendant acquired knowledge that he was a suspect “and that his personal liberty would be affected by his conversation with Sperry, the Miranda warnings should have been given again.” Ibid. Detective Sperry’s failure to repeat those warnings at that critical point rendered defendant’s confession “involuntary” under both the Due Process Clause of the Fourteenth Amendment of the United States Constitution and this state’s common-law privilege against self-incrimination. Id. at 84-85. Therefore, the panel suppressed defendant’s confession. Id. at 85.
Second, the appellate 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. Id. at 86-90. The panel reasoned that because Amanda’s out-of-court statements to the police were “testimonial” in nature, those statements were inadmissible unless Amanda was available for cross-examination at trial or “‘unless [Amanda] was unavailable to testify and the defendant had had a prior opportunity for cross-examination.’” Id. at 87-89 (quoting Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 194 (2004)). The panel determined that “[Amanda’s] complete inability to present current beliefs about any of the material facts, or to testify about her prior statements,” id. at 89, effectively denied defendant the “opportunity for an adequate and meaningful cross-examination at trial,” id. at 90. For that reason, and because defendant had no prior opportunity to cross-examine Amanda, the panel found that the trial court erroneously admitted the videotape interview into evidence. Id. at 90. The panel therefore ordered a new trial. Ibid.
We granted the State’s petition for certification, 193 N.J. 586 (2008), and the motion of the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
II.
We first address whether the Appellate Division erroneously suppressed defendant’s confession. The State submits that the only true issue is whether defendant knowingly and voluntarily waived his Miranda rights. Because the trial court made findings that defendant did so, after a consideration of the totality of the circumstances, the State urges that the appellate panel should have deferred to those findings. The State notes that this Court in Dispoto, supra, rejected a per se rule that pre-custodial Miranda warnings must be read again when a suspect is placed in custody. The State also relies on United States Supreme Court precedent to support its position that nothing in Miranda intimates that the police are required to inform a person under interrogation of his status as a suspect. The State therefore urges that we reverse the Appellate Division.
Defendant agrees with the Appellate Division that he could not effectively waive his Miranda rights until he was informed that he was a suspect. That is so, he argues, because until he knew of his status as a suspect, he could not appreciate the significance of the Miranda warnings or the consequences of the waiver of his rights. Accordingly, defendant submits that the police were obliged to read to him again the required warnings at the critical moment when they would have been meaningful to him.
In support of defendant’s arguments, the Association of Criminal Defense Lawyers of New Jersey, amicus curiae, cites several of this Court’s cases as authority for the proposition that the police withheld from defendant essential information -- his status as a suspect –- and therefore rendered defendant incapable of making a valid waiver of his rights.
III.
The issue before this Court is whether federal and state law requires that, in addition to being advised of his Miranda rights, a person under police interrogation be informed that he is a suspect or that he be re-read his rights when the subject of the questioning may incriminate him. We begin with a discussion of the rationale underlying Miranda and the federal constitutional and state common-law right against self-incrimination.
A.
The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this state’s common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503. See U.S. Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”);7 N.J.S.A. 2A:84A-19 (“[E]very natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate . . . .”); N.J.R.E. 503 (same as N.J.S.A. 2A:84A-19).
In the landmark case of Miranda v. Arizona, the United States Supreme Court imposed safeguards to ensure that an individual would have a meaningful opportunity to exercise his right against self-incrimination when subject to police interrogation, whether in custody at the stationhouse or any other place where he is “deprived of his freedom of action in any significant way.” 384 U.S. 436, 477, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725 (1966). To counteract the inherent psychological pressures in a police-dominated atmosphere that might compel a person “to speak where he would not otherwise do so freely,” the Court mandated that a person subject to a custodial interrogation “must be adequately and effectively apprised of his rights.” Id. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719. The Court prescribed a set of warnings that must be given to a person in police custody before interrogation begins. The person must be told
[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
[Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.]
The fifth requirement is that a person must be told that he can exercise his rights at any time during the interrogation.8 Ibid.
The burden is on the prosecution to demonstrate not only that the individual was informed of his rights, but also that he has knowingly, voluntarily, and intelligently waived those rights, before any evidence acquired through the “interrogation can be used against him.”9 Ibid.
B.
The crux of this case is whether defendant knowingly, voluntarily, and intelligently waived his right against self-incrimination when he confessed to sexually abusing Amanda. Defendant contends that his confession should be deemed involuntary because, in addition to giving the Miranda warnings, the police must inform a person, at the outset of any questioning, that he is a suspect (if indeed he is a suspect) or read again the Miranda warnings after questioning begins when he becomes a suspect. Here, Detective Sperry informed defendant of his Miranda rights, but not that he was a suspect when the questioning began, and did not repeat the Miranda warnings when the questioning focused on defendant’s sexual abuse of Amanda.
Generally, barring intervening events, “[o]nce a defendant has been apprised of his constitutional rights, no repetition of these rights is required.” State v. Melvin, 65 N.J. 1, 14 (1974). In Melvin, the police issued Miranda warnings to the defendant before administering an unstipulated polygraph test to him. Id. at 6. After the test, the defendant made incriminating statements. Ibid. We explained that in those circumstances the police were not required to repeat the warnings. Id. at 14. We applied the same principle in State v. Magee, in which the police gave Miranda warnings to an interrogated defendant, but did not repeat the warnings two-and-a-half days later when the defendant, while in custody, voluntarily came forward to make inculpatory statements. 52 N.J. 352, 372-74 (1968). In those circumstances, we refused to “adopt an automatic second-warning system,” explaining that “the important factors” in determining the validity of a Miranda waiver are “whether the suspect understood that he did not have to speak, the consequences of speaking, and that he had the right to counsel before doing so if he wished.” Id. at 374 (citation and internal quotation marks omitted).
In determining the voluntariness of a defendant’s confession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion. See State v. Presha, 163 N.J. 304, 313 (2000). In the totality-of-the-circumstances analysis, we consider such factors as the defendant’s “age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.” Ibid. (citation and internal quotation marks omitted).
We recently reaffirmed our adherence to the totality-of-the-circumstances approach in State v. Dispoto, 189 N.J. 108 (2007), and State v. O’Neill, 193 N.J. 148 (2007). In Dispoto, the police served a domestic violence temporary restraining order and search warrant on the defendant, who was read his Miranda warnings even though he was not in custody at that time. 189 N.J. at 116. More than an hour later, defendant was arrested when he surrendered to the police a .38 caliber Colt revolver, which he claimed to have won in a poker game. Ibid. The police did not repeat the Miranda warnings to the defendant immediately after he was taken into custody, and he continued to make other incriminating statements. Id. at 117.
We rejected a bright-line rule that would have required the suppression of a defendant’s statements whenever the police do not repeat Miranda rights -- initially given in the pre-custodial stage -- to a defendant after he is taken into custody. Id. at 124. Instead, we held that “fact-based assessments” under a totality-of-the-circumstances approach was the proper way to decide whether a defendant voluntarily waived his rights. Id. at 124-25. We concluded that when
pre-custodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warning that had been given, then there would appear to be no need to require that another warning be given.
[Ibid.]
In O’Neill, we applied the totality-of-the-circumstances approach to the “‘question-first, warn-later’ interrogation procedure,” in which the police first question a suspect in custody without the benefit of Miranda warnings and, after eliciting incriminating statements, then issue Miranda warnings and resume questioning for the purpose of eliciting incriminating statements admissible at trial. 193 N.J. at 154-55, 179-80. We held “that when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination.” Id. at 180-81. In O’Neill, we specifically eschewed a bright-line rule and instead followed a traditional multi-prong test requiring a consideration of all relevant factors. Id. at 181.
Only in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights. In State v. Reed, we held that Miranda waivers are invalid under our state-law privilege against self-incrimination when police officers knowingly fail to inform a suspect that an attorney is present or available to confer with him. 133 N.J. 237, 261-62, 269 (1993). Withholding information that an attorney is outside the interrogation room, we reasoned, directly denies the suspect his right to counsel, which, in turn, diminishes his capacity to exercise his privilege against self-incrimination. Id. at 262. Because of the important role counsel plays in protecting the rights of the accused, deterring law enforcement officers who would keep an attorney from his client did not lend itself to a multi-factor test. We highlighted the limited extent of the bright-line rule in Reed by noting that “[t]he duty to inform, that we place upon the State, is narrow and specific.” Id. at 263-64.
In State v. A.G.D., we also held, again under our state-law privilege against self-incrimination, a Miranda waiver per se invalid when the police who were questioning the defendant withheld from him the fact that they had in hand a criminal complaint and warrant for his arrest.10 178 N.J. 56, 68 (2003). We noted that “[w]ithout advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden . . . that the suspect has exercised an informed waiver of rights.” Ibid.
In determining whether defendant voluntarily waived his Miranda rights, there are no compelling reasons for us to substitute the traditional totality-of-the-circumstances test for an inflexible, per se rule. The facts in this case are in no way comparable to those in Reed, in which the police were involved in a purposeful effort to deny the defendant his right to the assistance of counsel, patently undermining one of the essential Miranda rights.
This case also is easily distinguishable from A.G.D. The issuance of a criminal complaint and arrest warrant by a judge is an objectively verifiable and distinctive step, a bright line, when the forces of the state stand arrayed against the individual. The defendant in A.G.D. was purposely kept in the dark by his interlocutors of this indispensable information.
Unlike the issuance of a criminal complaint or arrest warrant, suspect status is not an objectively verifiable and discrete fact, but rather an elusive concept that will vary depending on subjective considerations of different police officers. A suspect to one police officer may be a person of interest to another officer. Moreover, we emphasized that “[o]ur holding [in A.G.D.] is not to be construed as altering existing case law . . . other than imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued.” 178 N.J. at 68-69.
Most closely on point is State v. Roach, 146 N.J. 208 (1996). There, we upheld a trial court’s finding that, based on the totality of the circumstances, the defendant made a knowing, voluntary, and intelligent waiver of his Miranda rights despite his apparently mistaken belief that he was giving an exculpatory statement as a witness. Id. at 226. The defendant in that case claimed that the police “deceiv[ed] him into believing that they sought his statement only as a witness and not as a defendant.” Ibid. In ultimately concluding that the defendant’s statement was the product of an essentially free and unconstrained will, we reiterated that “[a] determination of voluntariness depends on an evaluation of the totality of all the surrounding circumstances.”11 Id. at 227 (citation and internal quotations omitted).
Accordingly, we do not find that the facts here fall within the limited category of cases in which we have applied a bright-line rule. Having said that, however, we still must determine whether the failure to advise an individual that he is a suspect at the time he is read his Miranda warnings should be a factor in the totality-of-the-circumstances test.
C.
Significantly, we are not aware of any case in any jurisdiction that commands that a