STATE OF NEW JERSEY v. PAULA CICCHINELLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1768-07T41768-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

PAULA CICCHINELLI,

Defendant-Appellant.

__________________________________

 

Argued: February 24, 2010 - Decided:

Before Judges Cuff, C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-1962D.

Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the brief).

Natalie A. Schmid Drummond, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Drummond, of counsel and on the brief).

PER CURIAM

Defendant Paula Cicchinelli is serving an aggregate term of fifteen years in prison, more than nine of which must be served without parole, for vehicular homicide and leaving the scene of a fatal motor vehicle accident. Defendant struck and killed a pedestrian walking along Route 9 in Linwood, Atlantic County. She was returning home after dinner with friends. At trial, the primary issues were whether defendant was intoxicated at the time she struck the pedestrian and whether she acted recklessly.

Defendant argues she was denied a fair trial by the State's persistent references to her invocation of her right to remain silent, her right to consult an attorney, and her refusal to consent to searches of her person and her vehicle. She also complains that the State improperly elicited testimony concerning a statement she made to police officers after having twice expressed her wish to remain silent. Finally, defendant asserts she was unduly prejudiced by testimony about her use of prescription drugs and there was insufficient evidence to support the jury's finding of intoxication.

I

Around 9:00 p.m. on November 16, 2004, eighteen-year-old Nicholas Marvel was struck and killed by an automobile driven by defendant. Defendant did not stop at the scene to render aid but continued driving to her house about a mile away. Police officers apprehended her at her home about three hours later.

Douglas Woodward and his cousin, Andrew Johnson, testified they were walking with Marvel along Route 9 around 9:00 p.m. Marvel was on his way to work at a local supermarket. They were walking three abreast on the shoulder, with Marvel closest to the roadway, Woodward in the middle, and Johnson on the unpaved, grassy area. There were few cars on the road.

After passing the Linwood 7-11 store, Woodward turned to Marvel, who was slightly behind him, to suggest that they get off the road and cut across a field. When Woodward turned, he saw a car coming onto the shoulder and thought it was "somebody messing with [them]." He warned Marvel to "watch out," and Marvel responded by asking "What?" At that instant, the car struck Marvel and threw him into the air. He hit a highway sign and slid to the ground. Woodward testified that the incident happened in a matter of seconds, "like the snap of the fingers." The car that struck Marvel continued on Route 9 without stopping, slowing, or accelerating. An autopsy performed on Marvel concluded that the cause of death was "head injury with extensive comminuted skull fractures," incurred as the result of the collision with defendant's car.

Defendant is a widow, who at the time of this incident had been employed as a legal secretary for over twenty-five years. On November 16, 2004, she worked a full day at her office in Pleasantville before leaving to meet several friends for dinner. Customarily, each woman brought wine to share; defendant stopped at a liquor store to buy a bottle of Merlot. She then drove to Ginza, a Japanese hibachi restaurant in Egg Harbor Township. She arrived around 6:30 p.m. and gave her bottle of wine to a server.

Seven women met for dinner at Ginza that evening. The women met once a month or so to have dinner and share wine. Shirley Rice had known defendant for many years through their membership in a local garden club; she invited defendant to join the dinner group after the death of defendant's husband. As of November 2004, defendant had been dining with Rice and her friends for about a year.

Each of the women who attended the dinner testified at trial. Their accounts of what transpired that evening were remarkably consistent. Five of the women--Rice, Jamie Afflerbach, Roseann Amato, Maryanne D'Elia, and Donna Oechslin--brought bottles of white wine. Defendant brought a bottle of red wine. A seventh woman did not bring wine or drink any wine that evening.

Servers at the restaurant took the wine bottles from the women, put them on a cart, and poured wine throughout the meal. Only defendant drank red wine that evening. Before she left the restaurant, defendant poured the last of the red wine from her bottle into her glass. Some of the women also finished their bottles; some left unfinished bottles at the restaurant. The servers confirmed the women's testimony. One server described the women as loud and perhaps drunk.

Three of the women left to return to Ocean City about 8:30 p.m. Three women and defendant, who lived in Somers Point, stayed longer and left around 8:50 p.m. The women hugged and said goodbye in the parking lot. No one noticed defendant exhibiting any visible sign of impairment; in fact, all testified she "seemed fine."

Defendant testified she felt fine when she left the restaurant. As she drove on Route 9 in Linwood, she saw three boys on the side of the road bumping into each other. She continued to drive straight, believing she was not in their path, and then heard a thump. The area was dark and she could not see anything. When defendant drove under a street lamp, she saw her cracked windshield. She looked in her rear view mirror, but everything was totally black. At that point, she believed that the boys had thrown stones at her car. She did not stop or return to the scene because it was dark, she was alone, and she was afraid. She explained: "I thought they threw something at my car. I thought that if I approached them and said, why did you throw something at my car, I was afraid that they would have just attacked me or something." Her house was only about a mile ahead and she just wanted to get home.

Defendant arrived at her house and parked her car on the street in front of her house. She was upset when she saw that the crack in her windshield had spread. She went inside, changed clothes, and poured a glass of wine to relax. Shortly thereafter, Rice phoned to see if defendant had arrived home all right.

Defendant told Rice that some kids were horsing around on the side of the road and they threw rocks at her car. She said her windshield was cracked and she would have to call Allstate or the police in the morning. A series of telephone calls ensued between defendant and Rice, defendant and Jamie Afflerbach and Rice and Afflerbach. At one point Afflerbach told defendant there was no point in calling the police because they would not help her get her windshield fixed. Later, Afflerbach told defendant to take a flashlight and look closely at the car. Defendant did so and noticed damage to the car's right front marker light in addition to the cracked windshield. Defendant phoned Rice and told her that the windshield was "shattered."

Rice and Afflerbach characterized their conversations with defendant as "really strange." After conferring several times, they agreed to drive to defendant's house to look at the car. They arrived at defendant's house about 11:00 p.m. All the lights were out and it appeared defendant had gone to bed. Rice and Afflerbach examined defendant's car, and noticed the damage to the windshield and the right headlight.

At that point, Afflerbach decided to drive to the location where the incident supposedly occurred. As she and Rice approached the 7-11 on Route 9, they saw police emergency vehicles blocking the roadway. Rice asked a fireman about the activity, and learned there had been a fatal hit-and-run accident. Afflerbach began to scream and cry; Rice knew that something bad had happened.

Afflerbach phoned her husband, who, in turn, phoned his friend Edward Fifield, a New Jersey State Trooper. Fifield drove to the scene, identified himself to Linwood police officers, and provided them with defendant's first name, telephone number and approximate address.

Sergeant Jason Weber of the Linwood Police Department arrived at the scene within minutes of the accident. He called for emergency medical assistance and later contacted the fatal accident investigation unit of the Atlantic County Prosecutor's Office. Based on information supplied to him by Trooper Fifield, Weber went to defendant's home in Somers Point where he found a vehicle that generally matched the description provided by one of the victim's friends. He noticed that the car had front end damage consistent with a pedestrian impact.

Weber knocked on defendant's door; defendant's daughter opened the door and invited him to enter. Defendant appeared nervous and concerned, but showed no signs of intoxication. She told Weber she owned the vehicle parked outside and had driven it that night. She said that some kids on Route 9 had thrown rocks at her car as she was driving home around 9:00 p.m. Weber asked her to accompany him to the police station. As he was driving her to the station, Weber detected the odor of alcohol on her breath.

Defendant arrived at the police station around midnight and was asked to sit in the patrol room. Shortly thereafter, she was questioned by Detective John Hamilton and Sergeant Keith Fane. Hamilton testified that defendant appeared somewhat indifferent and that he could detect the odor of alcohol on her breath. Fane testified that defendant appeared confused; he also detected the odor of alcohol. The officers advised defendant of her Miranda rights. When they asked for permission to search her vehicle, she responded, "Why?" Fane asked defendant if she was under the influence of drugs or alcohol. She replied that she was taking Altace for blood pressure, Lexapro for depression, and Cenestin for hormone replacement and she was "unaware" if she was under the influence of alcohol. At that point defendant invoked her right to an attorney and the questioning stopped.

Around 2:25 a.m., Sergeant James Olson was instructed to administer a breathalyzer test. Olson observed that defendant's speech was slow, the movement of her hands was slow, and her demeanor was indifferent, cooperative, and calm. He also detected the odor of alcohol on her breath. Olson advised defendant of her constitutional rights and also of her rights with regard to the breathalyzer test. Defendant refused to tell him when she consumed alcohol and how much she drank. Olson administered the breathalyzer test twice, once at 3:14 a.m. and once at 3:22 a.m. Both tests indicated a blood alcohol concentration of .05 percent, well below the statutory limit of .08 percent. N.J.S.A. 39:4-50(a).

Shortly after Olson finished the breathalyzer tests, Lieutenant Barry Wythe entered the room and informed defendant that the victim had died. Olson testified that defendant responded, "You mean I killed him, can I have a drink of water?" Olson recalled that defendant spoke these words without emotion; Wythe stated that she was "nonchalant." Defendant's daughter, however, who was present in the room at the time, recalled that her mother exclaimed "Oh, my God!" and was shaking.

Wythe told defendant about the results of the breathalyzer test and asked her to consent to a blood test. He explained that the police did not need her consent and that if she refused they would get a search warrant. Defendant did not immediately consent to the test, but rather asked her daughter to call a lawyer for advice. As a result of defendant's hesitation, Fane prepared an application for a search warrant and presented it to a municipal judge. Defendant was transported to the hospital and the police received permission to draw her blood shortly after 5:00 a.m. The results of the blood test showed a blood alcohol concentration of less than .015 percent.

On the morning of November 17, 2004, Fane prepared an application for a warrant to search defendant's automobile. This warrant was approved by a Superior Court judge and the vehicle was turned over to the forensics unit.

Forensic crime scene investigators from the New Jersey State Police and the Atlantic County Prosecutor's Office testified that the damage to the car's windshield and front passenger light assembly was consistent with it having struck a pedestrian. A piece of black plastic taken from Marvel's sweatshirt matched the plastic on the car's front molding strip, fibers found in the molding strip matched fibers in Marvel's sweatshirt, and an impression on the molding strip matched the weave pattern of Marvel's pants.

In addition, Weber testified that when he examined the car on the night of the accident, he noticed a piece of the front, right blinker light was missing. He located the missing piece of plastic the next day at the accident scene.

With regard to physical evidence at the scene, Olson testified that he did not see any marks on the road or shoulder indicating that a vehicle had applied its brakes, accelerated, or made a quick change of direction. He also did not find any rocks or stones in the roadway. He prepared a diagram of the area, identifying the locations where Marvel's shoes and glasses were found. Based on his examination, he was not able to establish a point of impact.

Wythe testified as an expert on accident investigation and reconstruction. His description of the scene was consistent with Olson's. He agreed that there were no tire marks on the road and no indication that a vehicle had gone off the roadway onto the sand or gravel. Based on his analysis of the "cone of debris," Wythe concluded that the impact between defendant's vehicle and Marvel took place on the southbound shoulder of the road. He also concluded that defendant's vehicle was traveling between twenty-seven and thirty-two miles per hour at the time of impact, below the posted speed limit for this section of Route 9.

Defendant presented Frank Costanzo as an accident reconstruction expert. He testified that the accident scene was "extremely dark" at night; the only available light came from vehicle headlights. In addition, he explained that he based his analysis on photographs of defendant's automobile because the car had been vandalized while impounded. Costanzo agreed with Wythe's conclusion that defendant's car was traveling well below the speed limit at the time of impact. He disagreed, however, that the point of impact was in the shoulder of the road. Costanzo opined that it was not possible to accurately identify the precise location of impact. He stated that there was no physical evidence to support the conclusion that the impact occurred in the shoulder as opposed to the roadway or on the edge of the road and shoulder.

Finally, the State presented testimony from Dr. John Brick, an expert on the effect of alcohol on the human body. Brick assumed that defendant consumed an entire 25-ounce bottle of wine between 6:40 p.m. and 8:50 p.m. He also opined that the results of the breathalyzer tests could be extrapolated backwards to estimate defendant's blood alcohol concentration at 9:00 p.m. The result of the blood test was not helpful, however, because such a low reading is "problematic" and cannot be extrapolated linearly.

Brick testified that assuming an average elimination rate of alcohol from the body, defendant's blood alcohol concentration at the time of the accident was between .12 and .13 percent. Brick admitted, however, that her blood alcohol concentration could have been as low as .08 to .09 percent. Brick stated the margin of error for his calculations was plus or minus .01 percent.

Brick concluded that defendant had consumed a "relatively large quantity" of wine prior to driving. As a result, she became impaired and at a significant risk for a fatal crash. The nature of the incident--defendant's inability to maintain her lane position and to detect pedestrians in her path--was consistent with alcohol intoxication. Brick was not surprised that defendant did not seem drunk when leaving the restaurant, because most people do not appear impaired to casual observers until their blood alcohol concentration reaches about .15 percent.

At the close of the evidence, the trial judge dismissed the first degree aggravated manslaughter charge. The jury found her guilty of the remaining charges: first degree vehicular homicide in a school zone and third degree leaving the scene of a fatal accident. The judge imposed an eleven-year term of imprisonment subject to a No Early Release Act (NERA) 85% parole ineligibility term on the vehicular homicide charge. The judge imposed a consecutive four-year term on the leaving the scene of a fatal accident charge. He also found defendant guilty of several motor vehicle charges, all of which he merged with the other offenses. The judge also ordered the forfeiture of defendant's automobile and imposed appropriate fines, penalties and assessments.

On appeal, defendant raises the following arguments:

Point I

Defendant Cicchinelli's Multiple Invocations of Her Right to Silence and to Consult With Counsel Were Intentionally Violated by the State; Yet, the Most Incriminating Statement by the Defendant Was Admitted.

Point II

On Cross-Examination Defendant's Prior Invocation of Silence and Counsel Was Not Proper Impeachment, as it Served to Punish Defendant for the Exercise of a Constitutional Right.

Point III

The Multiple Direct References to Search Warrants Throughout the State's Case-in-Chief Served Only to Highlight and Demonstrate Defendant Cicchinelli's Continual Assertion of Her Constitutional Rights.

Point IV

Evidence That the Defendant Had Taken Three Prescribed Medications in Addition to the State's Allegation of Intoxication from Wine Was so Unduly Prejudicial Under the Circumstances as to Deprive the Defendant of a Fair Trial.

Point V

The Number and Nature of Trial Errors When Considered Individually and then in Combination with the State's Closing, Clearly and Convincingly Establish a Manifest Denial of Justice under the Law.

Point VI

Defendant's R. 3:18-2 Motion for Acquittal on Count 2 Should Have Been Granted, as no Reasonable Jury Could Find Intoxication Beyond a Reasonable Doubt; Alternatively, the State's Closing Erroneously Defined Intoxication and it was not Cured by the Court's Final Instruction.

II

We are satisfied that several arguments presented by defendant are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). The reference to the three prescription medications taken by defendant cannot be considered unduly prejudicial (Point IV). Brick expressly stated that the mixture of these medications and the wine had no effect on her level of intoxication. Moreover, the prosecutor made no reference to these substances in her summation. There also was sufficient evidence to support the conviction (Point VI). Nevertheless, the improper use of defendant's response when told of Marvel's death and the repeated references to defendant's invocation of her rights to remain silent, to seek advice from an attorney, and to refuse consent to a search of her car impermissibly burdened the invocation of these rights, and may well have contributed to the verdict in this hotly contested case.

III

At approximately 3:30 a.m., Wythe informed defendant that the young man she struck had died. Her response is disputed. Olson testified she said, "You mean I killed him, can I have a drink of water?" Defendant's daughter testified her mother said, "Oh, my God" and started to shake uncontrollably. Defendant argues the real purpose in advising her that Marvel had died was to elicit an incriminating statement, that the statement was incriminatory, and that Wythe's conduct expressly ignored defendant's earlier invocation of her right to remain silent. The State responds that Wythe simply provided a response to repeated inquiries made by defendant and her daughter about the condition of the victim. Moreover, the State maintains that defendant's voluntary statement was offered solely to show her demeanor and was not incriminatory.

The judge conducted a hearing in accordance with N.J.R.E. 104(c) to determine the admissibility of defendant's alleged statement, "You mean I killed him, can I have a drink of water?" At the outset, the court was dubious of the evidential value of this statement, asking the prosecutor why Olson and Wythe could not simply testify about their impressions of defendant's demeanor. The prosecutor argued that it was necessary to relate defendant's exact words in order to bolster the officers' testimony and to allow the jury to judge defendant's credibility.

At the hearing, Olson testified that he was present when Wythe entered the room. Olson stated that defendant's remark was not made in response to any question.

Wythe testified that he was aware that defendant had invoked her Fifth Amendment rights during the initial questioning by Hamilton and Fane. The record is not clear that he knew she invoked her Fifth Amendment rights prior to the administration of the breathalyzer test when she refused to state when and how much she drank. Wythe testified he first met her around 3:45 a.m., when he decided to tell her that Marvel was dead. Concerned that defendant might have an "over-emotional" response to the news, Wythe asked defendant's daughter to accompany him into the room. When he told defendant about Marvel she made a comment in response. Wythe then informed defendant of the results of her breathalyzer tests and asked for her continued cooperation by consenting to blood and urine testing. Defendant refused to consent to these tests.

Wythe testified that he wanted to tell defendant about the fate of the victim so she would understand the seriousness of her situation. He did not recall why he chose that particular time to advise defendant; he simply stated that it was his decision to tell her then. He admitted he knew that he did not need defendant's consent in order to draw blood, but explained he sought a court order to ensure the admissibility of the test results at trial.

Based on this testimony, the judge found Wythe approached defendant in order to report the results of the breathalyzer tests and to tell her that the victim had died. He found that Wythe's statement was not the functional equivalent of interrogation. The judge stated, "There was no scheme, there was no trickery, there was no purposeful enticement or encouragement for her to say something." Because the judge found defendant's comments to be voluntary and not in response to a question posed to her, the judge concluded that it was admissible.

Defendant renewed her objection to the admission of this statement in her motion for a new trial. In rendering his decision on defendant's motion, the judge, once again, opined, "I think that we are all making a lot more out of that response than needs to be made." He also incorporated his previous rulings and supplemented them by finding that Wythe had no sinister motive in informing defendant that Marvel had died. The judge concluded that any questions posed by Wythe were ministerial in nature and defendant's responses to those questions were admissible.

The findings of a trial judge on a motion to suppress a defendant's statements to the police will ordinarily "not be disturbed if they could reasonably have been reached on sufficient credible evidence in the record." State v. Godfrey, 131 N.J. Super. 168, 174 (App. Div. 1974) (citing State v. Johnson, 42 N.J. 146, 162 (1964)), aff'd, 67 N.J. 267 (1975). This court may only intervene if it is convinced that the finding is clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction.'" State v. Wakefield, 190 N.J. 397, 495 (2007) (quoting Johnson, supra, 42 N.J. at 162). Thus, we should defer to the trial judge's "credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

It is well-established that prior to any custodial interrogation, an individual must be informed of his or her right to remain silent. Miranda, supra, 384 U.S. at 467-68, 86 S. Ct. at 1624, 16 L. Ed. 2d at 720; State v. Williams, 59 N.J. 493, 50 (1971); State v. Burno-Taylor, 400 N.J. Super. 581, 587 (App. Div. 2008). "Once the right to remain silent has been asserted, it must be 'scrupulously honored.'" State v. Bohuk, 269 N.J. Super. 581, 592 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994). See also Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975).

"'Scrupulously honoring' a defendant's right to silence requires a cessation of questioning once the defendant asserts his [or her] Fifth Amendment right." State v. Harvey, 151 N.J. 117, 221 (1997). Moreover, the police must administer a fresh set of Miranda warnings before any interrogation may resume. State v. Fuller, 118 N.J. 75, 83-84 (1990); State v. Hartley, 103 N.J. 252, 267 (1986). "When the police fail to scrupulously honor the right to remain silent, that failure 'renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation [and] there can be no question of waiver.'" Burno-Taylor, supra, 400 N.J. Super. at 589 (quoting Hartley, supra, 103 N.J. at 261).

The Miranda protections, however, do not extend to voluntary statements not elicited through police-initiated interrogation. Fuller, supra, 118 N.J. at 87; Bohuk, supra, 269 N.J. Super. at 594; State v. Mallozzi, 246 N.J. Super. 509, 516-17 (App. Div.), certif. denied, 126 N.J. 331 (1991). As explained by the United States Supreme Court:

Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

[Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980) (footnotes omitted).]

"Thus, the appropriate test [under Innis] is whether the investigator should have known that his conversation would move defendant to make a self-incriminating response." State v. Lozada, 257 N.J. Super. 260, 268 (App. Div.), certif. denied, 130 N.J. 595 (1992). In making this determination, the court must examine each individual set of circumstances in context. Fuller, supra, 118 N.J. at 87; United States v. Mesa, 638 F.2d 582, 584 (3d Cir. 1980). Whether an officer's words or actions are likely to elicit an incriminating response from the suspect "'focuses primarily upon the perceptions of the suspect, rather than the intent of the police.'" State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990) (quoting Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308). In other words, "'[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect'" amounts to interrogation. Ibid. (quoting Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308). The determination is hence an objective one, resting on a review of the record; "the subjective intent of the participants is immaterial." Burno-Taylor, supra, 400 N.J. Super. at 606.

The supplemental finding by the trial judge that Wythe lacked sinister motive suggests the judge did not apply such an objective test. Nevertheless, we concur with his ultimate finding that Wythe did not intend to interrogate defendant and a reasonable officer would not believe that this information would evoke an incriminatory response.

There is no question that defendant invoked her right to silence during her initial interrogation by Hamilton and Fane and her subsequent interrogation by Olson. See Bohuk, supra, 269 N.J. Super. at 593 (holding that a defendant's refusal to respond to questions propounded in association with a breathalyzer test constituted an assertion of the Fifth Amendment privilege). Neither Olson nor Wythe administered a fresh set of Miranda warnings to defendant before Wythe began speaking to her. However, the record is replete with testimony from defendant and her daughter that they had asked repeatedly about the victim's condition. Defendant's daughter, who had been sequestered, described joining her mother after administration of the breathalyzer tests and the exchange with Wythe as follows:

We were asking about the individual in the hit and run, and we asked if they were okay, and, uhm, we asked several times throughout that period of time when I was in that room with her and, uhm, finally one of them shook their head and they said, No, that there was a fatality.

Under the totality of these circumstances, the judge's finding that the statement by Wythe about the victim's death was not designed to elicit an incriminatory response is fully supported by the record. Therefore, we hold that defendant's response to Wythe's informational statement that the victim had died did not violate defendant's Fifth Amendment rights.

Furthermore, many of the questions posed by Olson and Wythe were ministerial in nature and hence did not constitute interrogation for purposes of Miranda. "In order to constitute interrogation, police conduct 'must reflect a measure of compulsion above and beyond that inherent in the custody itself.'" Mallozzi, supra, 246 N.J. Super. at 515 (quoting Innis, supra, 446 U.S. at 300, 100 S. Ct. at 1689, 64 L. Ed. 2d at 307). "Thus, booking procedures and the routine questions associated therewith are ministerial in nature and beyond the right to remain silent." Ibid. More specifically, police requests for a suspect to take a breathalyzer or blood-alcohol test and the routine questions attendant to those tests are not interrogation within the meaning of Miranda. State v. Stever, 107 N.J. 543, 553, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987); State v. DeLorenzo, 210 N.J. Super. 100, 104-05 (App. Div.), certif. denied, 105 N.J. 507 (1986). For that reason, Wythe's request that defendant consent to blood and urine tests did not violate her Fifth Amendment rights.

This disposition does not, however, end the inquiry. Implicit in defendant's argument about the admission of this statement is her contention that the statement was irrelevant and, if relevant, unduly prejudicial. This argument invokes N.J.R.E. 401 and 403, which, respectively, define relevance and allows a court to exclude relevant evidence if its probative value is substantially outweighed by the risk of undue prejudice.

Here, the trial judge considered the statement "inconsequential." At first blush, that impression appears accurate. Measured against the entire record, however, this statement was used to devastating effect by the State against defendant.

This was a hotly contested case, but it was not disputed that defendant was the driver of the car that hit Marvel. The State was required to establish that defendant recklessly caused death under circumstances manifesting extreme indifference to human life to support the aggravated manslaughter charge, or that she acted with conscious disregard of a substantial, unjustifiable risk to support the vehicular homicide charge. Other than the fact that defendant had consumed a bottle of wine at dinner, the State had little, if any, evidence to support these charges. Defendant was not driving at a high rate of speed; in fact, she drove below the speed limit. There is no evidence that she weaved or could not maintain the travel lane. Woodward testified that he noticed her car in the distance in the travel lane once before it hit Marvel. There were no signs of skid marks or evidence of rapid acceleration. Two tests to detect alcohol reported results well below the statutory limit to establish intoxication without any further evidence.

Faced with the dearth of physical evidence to support its evidentiary burden, the State used this statement, "You mean I killed somebody, can I have a glass of water?" to portray defendant as indifferent to the fate of the young man she had struck. The prosecutor argued at trial and argues on appeal that defendant's demeanor was critical information for the jury to assess. Yet, the Court has held prior and subsequent conduct on other occasions or conduct following an incident indicative of reckless behavior are not admissible unless the evidence is identical or similar to the conduct that generated the present charges. State v. Bakka, 176 N.J. 533, 547 (2003). The focus is on the conduct that caused the death of the victim not the defendant's state of mind, and certainly not the defendant's state of mind after the accident. See State v. Wilder, 193 N.J. 398, 409 (2008) (explaining that aggravated manslaughter focuses on the conduct and not the state of mind of the defendant). In short, defendant's demeanor after the accident was not evidential of her conduct at the time of the accident. Yet, this is precisely the argument advanced by the State and presented to the jury in the following statement in the summation:

[A]nd how does she react? She reacts by not reacting at all. No crying, no tears, no emotion, nothing, kind of like the way she was when she testified here in court: no emotion.

This statement may not have violated defendant's Fifth Amendment rights, but this "inconsequential" and irrelevant statement was misused to portray defendant as a cold and uncaring person and to provide evidential support to the remaining vehicular homicide charge. In addition, the State repeatedly asked questions and made comments about the need for search warrants and the invocation of her Fifth Amendment rights to portray defendant as uncooperative and an obstructionist. It is those questions and comments that we now address.

IV

Defendant argues that the trial judge erred in allowing the prosecutor to impeach her testimony with the fact that she had invoked her right to counsel on more than one occasion. Claiming that the State used this evidence for purposes of general impeachment only, she asserts that such a direct comment on her silence violated the fundamental constitutional principle that no inference of guilt may be drawn from a defendant's exercise of his or her Fifth Amendment rights.

The State responds that defendant misrepresented the facts by testifying that she was waiting patiently at the police station until 4:00 a.m. when she finally asked for the assistance of an attorney, and it was in response to these misrepresentations that the prosecutor was permitted to question defendant about her previous requests for counsel. The State maintains that the prosecutor was entitled to introduce extrinsic evidence to impeach defendant's testimony because the Constitution does not grant defendants a license to testify falsely. Finally, it contends that any prejudice caused by the brief questioning concerning defendant's invocation of Miranda rights was cured by the court's thorough limiting instruction.

Defendant testified that she remained at the police station from midnight until about 4:30 a.m. when she was driven to the hospital to give a blood sample. She said that for most of that time she was sitting in a room alone with a matron wondering why the police were keeping her there and why they would not let her see her daughter. She said that officers came in and out of the room, asked her questions, and gave her a breathalyzer test. She recalled that the officers repeatedly asked her about the incident and kept "pressing" her about what she thought the boys had thrown at her car. When her daughter finally joined her, defendant asked the officers why she had been there so long, and one of the officers responded that someone was killed. Defendant described her reaction as follows:

I just looked at him like this, What? Are you telling me I killed someone? And I just started shaking, and I was just shaking and started--and I was crying, and I--I just was in shock, I guess, I don't know how to describe it other than I couldn't believe it that they are thinking that it was me.

Defendant then testified that shortly after this exchange, the officers said that they wanted to take a blood test, and if she did not consent, they would talk to a judge and make her do it. Defendant told her daughter, "Call our lawyer and see if this is okay."

During cross-examination, the prosecutor informed the trial judge that she intended to question defendant about her prior invocations of Miranda rights in order to impeach defendant's representation that she had been at the station for over four hours cooperating and answering questions before invoking her right to counsel. Defense counsel objected, arguing that everything defendant had said was consistent with evidence presented in the State's case.

The trial judge ruled that the prosecution could cross-examine defendant about her prior invocations in order to explain the gap in time at the station and to impeach the credibility of defendant's claim that the first time she requested a lawyer was when the police asked her to consent to a blood test.

In accordance with this ruling, the prosecutor questioned defendant about her refusal to consent to the blood test and followed up by inquiring, "That wasn't the first time you asked for an attorney, was it?" When defendant replied, "No," the prosecutor asked, "In fact, when you were speaking with Sergeant Fane and . . . Detective Hamilton, you had told them at that point you wanted an attorney, correct?" Defense counsel objected before defendant could respond.

In further explanation of his ruling, the trial judge found that defendant had opened the door by indicating in her direct testimony that she was at the station for two or three hours and nothing was going on. He reasoned that it was only fair to allow the prosecutor to impeach defendant's credibility because "she did say in her direct that . . . she didn't invoke or anything until she was asked for the blood."

The trial judge issued a limiting instruction to the jury before questioning continued. The prosecutor then asked defendant if she first requested an attorney around 1:00 a.m. during her interview with Hamilton and Fane. Defendant replied, "Yes."

In his decision on the motion for a new trial, the trial judge admitted that defense counsel's contention that defendant never said anything inconsistent about invoking her right to counsel "technically may be right." Nevertheless, he found that under the totality of the circumstances, defendant opened the door for questioning about the "timing factor" and thus made her prior invocations "fair game." He reasoned that defendant's evidence concerning delay at the police station made it necessary they ensure that the jury not be left with the impression that defendant's 4:00 a.m. call for an attorney was the first time she made such a request. The judge reviewed cases involving the prosecution's use of a defendant's pre- or post-arrest silence and found that none were applicable here because defendant testified at trial. Finally, he concluded that any problems caused by the admission of this evidence were cured by his limiting instruction.

Decisions concerning the admissibility of evidence at trial are reviewed under an abuse of discretion standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

The right of a suspect to remain silent when under interrogation has always been a fundamental aspect of New Jersey's privilege against self-incrimination. State v. Muhammad, 182 N.J. 551, 567 (2005). For that reason, a suspect in police custody is under no duty to give a statement. Ibid. "If a defendant remains silent after being arrested and given Miranda warnings, both state and federal law prohibit a prosecutor from using that silence against him." Id. at 568 (footnote omitted); see also Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976) (holding that it would be fundamentally unfair to allow the prosecution to undertake impeachment on the basis of an arrested person's exercise of Miranda rights); State v. Taffaro, 195 N.J. 442, 456 (2008) (observing that "[i]t is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him"); State v. Deatore, 70 N.J. 100, 114-16 (1976) (holding that a defendant's silence in police custody is an inappropriate subject of cross-examination).

"'[T]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.'" State v. Burris, 145 N.J. 509, 522 (1996) (quoting Harris v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 646, 28 L. Ed. 2d 1, 5 (1971)). The record, however, must clearly demonstrate prior inconsistent statements before a defendant may be impeached regarding if, when, and how many times she invoked her right to remain silent or to consult an attorney or declined to consent to a search of a car.

We conclude that the trial judge abused his discretion in allowing the prosecutor to cross-examine defendant about her invocation of Miranda rights. The judge's ruling was based largely on his misconception that defendant had testified that her 4:00 a.m. request to speak to an attorney was the first time she had invoked this right. As he later recognized, defendant never said or even implied that this was the first time she asked for an attorney; she merely testified that is what she did in response to Wythe's request that she consent to a blood test. Further, defendant never stated that she was "cooperating" with the police. Indeed, her account of what transpired at the station was consistent with testimony already elicited from Hamilton, Fane, Olson, and Wythe.

The State presented no proof that defendant's first request to remain silent, which was made around 1:00 a.m., caused any delay in the police investigation. There was no testimony that critical questions remained unanswered or that officers refrained from speaking to defendant because they were waiting for an attorney to arrive. In fact, Hamilton testified that during the time between defendant's first invocation and administration of the breathalyzer test, he and other officers were occupied by meetings and telephone conferences with individuals from the sheriff's department and the prosecutor's office. This testimony was corroborated by Wythe, who recalled that between 1:00 a.m. and 3:00 a.m., he participated in several telephone conferences with investigating officers and prosecutors concerning how to proceed.

The problem created by this effort to impeach defendant was compounded during the summation. The State argued the reason for the delay was because Linwood was a small police department, officers had to call in numerous outside agencies for assistance and advice, and defendant contributed to the delay because she had invoked her right to an attorney not once but twice, and police had to obtain a search warrant to obtain a blood sample. The prosecutor said:

Now, during this entire time period from midnight till about 4:30 she's taken to the hospital for blood, she's trying to give you the impression that she's there, she's cooperating, she's cut off from her daughter, she doesn't know what is happening, she doesn't know about this kid and what happened, and that's what she wants you to believe, and she says that it's at this point when Lieutenant Wythe asks for her blood that she says, ["]Oh, they're accusing me? They're accusing me of doing this?["] She turns to her daughter, ["]Maybe we should call a lawyer.["] But it turns out that's not when she first decided to call a lawyer. She first decided to call a lawyer at 1:00 when she is talking to Fane and Hamilton, and I mention this not because it means she's guilty, . . . but the reason I mention it and highlight it to you is because it's just one more piece that goes to her credibility. . . . She tries to give you a sense of what was going on, and now we know that that impression she tried to give you is completely false; it's just not true.

Now, . . . Lieutenant Wythe then directs Investigator Fane to get a search warrant for her blood. And again it takes more time. They have to go and wake up a judge, this takes time.

Thus, in the guise of a credibility argument, the State emphasized the time it took to continue the investigation and the delay caused by defendant's lack of cooperation. Yet nothing in the State's evidence suggested that defendant's prolonged detainment and the delay in administration of the breathalyzer were caused by her invocation of the right to counsel. More importantly, the State's suggestion that defendant's lack of cooperation caused the extended detention and delayed the investigation is founded on the exercise of her constitutional rights.

Finally, the State further compounded the problem occasioned by its impermissible comment on the exercise of defendant's constitutional rights when the prosecutor clearly suggested that the delay occasioned by defendant's purported lack of cooperation was part of her plan to exonerate herself. The prosecutor stated:

She knew she shouldn't have been drinking and driving. She tried to come up with a plan to cover it up. . . . She thought she'd get away with it until the next morning when there was no alcohol left in her blood and she almost did. She almost did.

Moreover, assuming defendant's direct testimony had created the impression that nothing had occurred between midnight and 4:00 a.m., the prosecutor could have readily referred to the time police first administered the Miranda rights and administered the breathalyzer examination. These questions could have readily corrected any misimpression created by defendant with no reference at all to the invocation of her rights to remain silent and to consult with counsel.

Considered in their entirety, these questions and comments about the invocation of defendant's rights and the need to obtain warrants were designed to do more than to test defendant's credibility. The cumulative effect of these questions was to portray defendant as uncooperative, devious and an obstructionist. Viewed cumulatively, these comments became an integral part of the theme advanced by the State that defendant had hatched and implemented a scheme to delay and thwart the investigation. This theme created an impression that the invocation of defendant's constitutional rights was a dodge. Defendant, of course, had no duty to cooperate with the police investigation. Brown, supra, 190 N.J. at 153; Muhammad, supra, 182 N.J. at 567; N.J.S.A. 2A:84A-19; N.J.R.E. 503. Moreover, "[n]o adverse inference may properly be drawn from invocation of the privilege against self-incrimination." Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 503 (2010). The prosecutor turned the exercise by defendant of her constitutional rights against her and in doing so impermissibly burdened the exercise of those rights.

The admission of this evidence prejudiced defendant because it portrayed her as an uncooperative individual with something to hide. The trial judge's finding that this instruction was sufficient to cure any prejudice caused by the admission of this evidence is not supportable. Rather than cure the prejudice caused by the admission of this evidence, these instructions compounded it. First, the court implied that defendant may have invoked her right to silence even more than the two times already before the jury. Second, by saying that the evidence could be used to impeach defendant's credibility, but not saying how, the court directly implied that there was something in defendant's testimony that was inconsistent with her prior statements or conduct. As already discussed, this was not the case. Finally, the instruction was awkwardly worded and confusing.

In summary, we hold that the State's use of defendant's response to the information about the victim's death to characterize her as cold and indifferent, coupled with the impermissible questions and comments about her invocation of her Fourth and Fifth Amendment rights cannot be considered harmless. Defendant never disputed she struck and killed Marvel. The circumstances of that collision, however, were disputed, and the State turned the exercise of defendant's constitutional rights against her. We have no confidence that the verdict is not a product of the impermissibly admitted statement, impermissible comments by the State witnesses, and questions posed by the prosecutor to defendant and comments made in her summation about the exercise of defendant's constitutional rights. Accordingly, we must reverse and remand for a new trial on the vehicular homicide and leaving the scene of a fatal accident convictions.

 
Reversed and remanded.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

N.J.S.A. 2C:43-7.2.

The judge excluded, however, any testimony concerning defendant's failure to answer Olson's questions about what she drank.

Defendant did, however, refuse to tell Olson when and what she drank that evening.

Deatore and its progeny should not be confused with cases holding that a defendant's pre-arrest conduct or silence may be used to impeach his or her credibility at trial. See, e.g., Taffaro, supra, 195 N.J. at 455; State v. Brown, 190 N.J. 144, 158-159 (2007); Muhammad, supra, 182 N.J. at 568-69.

Likewise, they should not be confused with cases holding that a defendant's voluntary statements made after Miranda warnings are issued may be used for impeachment purposes. See, e.g., Anderson v. Charles, 447 U.S. 404, 407-08, 100 S. Ct. 2180, 2181-82, 65 L. Ed. 2d 222, 226 (1980); State v. Marks, 201 N.J. Super. 514, 531 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986).

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A-1768-07T4

August 27, 2010