State v. Angelina Nicole Carlucci (A-85-11; 069183)
The admission of evidence of defendant’s other crimes, wrongs or acts was contrary to N.J.R.E. 404(b), and such admission constituted harmful error. 3-13-14 The issue in this appeal is whether inculpatory statements by defendant of other crimes, wrongs or acts were admissible pursuant toN.J.R.E. 404(b).
Defendant was arrested and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Prior to trial, defendant challenged the admissibility of her statements to Patrolman Buss. At a pretrial Jackson-Denno hearing on the admissibility of defendant’s statements, Patrolman Buss testified that he showed the clear packet to defendant and asked “what is this,” to which she replied that she “did not know.” Patrolman Buss then read defendant her Miranda rights and defendant, who was not handcuffed or otherwise restrained, indicated that she was willing to speak with him. Patrolman Buss again asked defendant if she knew what the substance was and she replied that it was “crack,” and that she knew this because she “had been in trouble for it in the past.” In addition, defendant stated that “the night prior she had drank alcohol and taken a Vicodin,” and that the Vicodin was not legally prescribed.
The judge who conducted the Jackson-Denno hearing issued a written decision determining that defendant’s statements to Patrolman Buss would be admissible at trial. The judge found that Patrolman Buss’ initial inquiries to defendant regarding the clear packet did not require prior Miranda warnings because the inquiry was merely investigatory at that stage. The judge further found that Patrolman Buss read defendant her Miranda rights as soon as he “recognized that a sustained one-on-one questioning of [d]efendant in a back office was sufficiently coercive such that her continued detention rose to the level of a de facto arrest.” The judge also determined that defendant’s post-Miranda statements were admissible: “There is nothing in the record to indicate that [d]efendant’s waiver was not knowing, intelligent, and voluntary.”
A different judge presided at defendant’s trial. Before Patrolman Buss testified, defense counsel moved to suppress defendant’s statements regarding her prior crack use. The trial judge denied the motion on the basis that the objection was precluded by “the law of the case” doctrine based on the Jackson-Denno ruling and stated that an instruction limiting the use of this evidence would be given. At the trial, Patrolman Buss’ testimony differed from his pretrial Jackson-Denno hearing testimony. At trial, he testified that defendant admitted that the substance in the clear packet that fell from her shirt was crack, before he read her the Miranda warnings. Patrolman Buss’ testimony was otherwise similar to that provided at the Jackson-Denno hearing. Immediately after Patrolman Buss’ testimony, and again prior to jury deliberations, the trial judge instructed the jury that defendant’s statements could only be used as evidence of consciousness of guilt and not as proof that she had a propensity to commit crimes.
The jury found defendant guilty of third-degree possession of cocaine. The trial judge denied defendant’s motion for a new trial and imposed a one-year probationary term, subject to service of 270 days in the Warren County Jail as a special condition of probation, pursuant to N.J.S.A. 2C:43-2b(2).
Defendant appealed. The Appellate Division affirmed, agreeing with the Jackson-Denno judge’s determination that Patrolman Buss’ initial questioning was investigatory. The appellate panel found that defendant was not in custody, that protections guaranteed by Miranda were not violated, and that defendant’s post-Miranda statements were made knowingly, voluntarily, and intelligently. The panel rejected defendant’s argument that her statements regarding her prior use of crack and Vicodin should have been excluded pursuant to N.J.R.E. 403 and 404(b). The panel concluded that the trial judge did not abuse his discretion by admitting the statements to show consciousness of guilt, along with a limiting instruction to the jury on two separate occasions.
The Supreme Court granted defendant’s petition for certification. 209 N.J. 232 (2012).
HELD: The admission of evidence of defendant’s other crimes, wrongs or acts was contrary to N.J.R.E. 404(b), and such admission constituted harmful error.
1. The admissibility of evidence of other crimes, wrongs or acts pursuant to N.J.R.E. 404(b) is subject to the four-prong test established inState v. Cofield, 127 N.J. 328, 338 (1992). The evidence must be “relevant to a material issue” that is genuinely disputed, “similar in kind and reasonably close in time to the offense charged,” “clear and convincing,” and “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” In this matter, only the first, third, and fourth Cofield prongs are applicable to the analysis.
2. The first prong of Cofield requires that the evidence offered be “relevant to a material issue” that is genuinely disputed. Here the field test already had determined that the substance was cocaine. The identity of the substance as cocaine was not in dispute. Defendant’s knowledge that the contents of the baggie was crack cocaine was not an issue necessary for the jury to resolve. Thus, this first response by defendant does not satisfy prong one of the Cofield test. Defendant’s second response to the same question, that it appeared to be cocaine, was not admissible for any proper purpose under N.J.R.E. 404(b). It did not address a material issue in dispute and, further, defendant’s knowledge that the substance appeared to be cocaine did not provide evidence of consciousness of guilt of present possession. Moreover, defendant’s initial denial of knowledge of the baggie’s contents was not a crime, and her recognition of the substance in the baggie as cocaine did not evidence her commission of a crime. At a minimum, this evidence was suggestive of defendant’s propensity to use or possess drugs. That use was impermissible pursuant to N.J.R.E. 404(b). Similarly, defendant’s admissions, in response to the patrolman’s further questioning of prior use of crack cocaine, alcohol, and Vicodin are not relevant to the instant possession charge.
2. The first prong of Cofield requires that the evidence offered be “relevant to a material issue” that is genuinely disputed. Here the field test already had determined that the substance was cocaine. The identity of the substance as cocaine was not in dispute. Defendant’s knowledge that the contents of the baggie was crack cocaine was not an issue necessary for the jury to resolve. Thus, this first response by defendant does not satisfy prong one of the Cofield test. Defendant’s second response to the same question, that it appeared to be cocaine, was not admissible for any proper purpose under N.J.R.E. 404(b). It did not address a material issue in dispute and, further, defendant’s knowledge that the substance appeared to be cocaine did not provide evidence of consciousness of guilt of present possession. Moreover, defendant’s initial denial of knowledge of the baggie’s contents was not a crime, and her recognition of the substance in the baggie as cocaine did not evidence her commission of a crime. At a minimum, this evidence was suggestive of defendant’s propensity to use or possess drugs. That use was impermissible pursuant to N.J.R.E. 404(b). Similarly, defendant’s admissions, in response to the patrolman’s further questioning of prior use of crack cocaine, alcohol, and Vicodin are not relevant to the instant possession charge.
3. The third prong of the Cofield test requires that “[t]he evidence of the other crime must be clear and convincing.” Here, there is no evidence, other than Patrolman Buss’ testimony about defendant’s statement, that she last used crack cocaine two days before her arrest. This prong is not met here. Finally, the important fourth prong requires that “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” Defendant’s prior admissions of drug use are not relevant to any material issue in dispute. Even if they were, the minimal relevance would be substantially outweighed by the unfair prejudice. The statements may lead jurors to the conclusion that defendant must have possessed crack cocaine on this occasion because she has a propensity for having and using illegal substances generally and cocaine specifically. The evidentiary use of defendant’s statements transgressed the prohibition against the use of other crime, wrongs, and bad acts evidence in N.J.R.E. 404(b).
4. Defendant also raises several arguments about the voluntariness of incriminatory statements introduced into evidence at trial. In light of its holding that impermissible N.J.R.E. 404(b) evidence tainted this trial, the Court declines to address defendant’s factual and legal arguments about 1) the timing of her Miranda warnings; and 2) whether she was subjected to custodial interrogation throughout her questioning by Patrolman Buss. However, when this matter is retried and if the prosecutor seeks to elicit defendant’s response to Patrolman Buss’ simple “What is this?” question, defendant may renew her request for a new Jackson-Denno hearing. Moreover, the record before the Court does not permit a proper review of the custodial nature of the place and manner of interrogation. In conclusion, the Court holds that the admission of evidence of defendant’s other crimes, wrongs or acts was contrary to N.J.R.E. 404(b), and that such admission constituted harmful error.
