State of New Jersey v. Shannon A. McGuigan ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3224-21
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
April 9, 2024
v. APPELLATE DIVISION
SHANNON A. MCGUIGAN,
Defendant-Appellant.
________________________
Argued March 6, 2024 – Decided April 9, 2024
Before Judges Accurso, Vernoia, and Gummer.
On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Indictment Nos. 19-
07-0888 and 20-03-0306.
Samuel Clark Carrigan, Assistant Deputy Public
Defender, argued the cause for appellant (Jennifer
Nicole Sellitti, Public Defender, attorney; Samuel
Clark Carrigan, of counsel and on the briefs).
Nicole Handy, Assistant Prosecutor, argued the cause
for respondent (La Chia Lyn Bradshaw, Burlington
County Prosecutor, attorney; Nicole Handy, of counsel
and on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D.
After twice viewing a video recording of a police interrogation of
defendant Shannon McGuigan and after the trial court barred in part the
testimony of her expert witness, a jury convicted her of having committed a
first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a),
along with other drug-related crimes. Defendant appeals from those
convictions, arguing, among other things, that the interrogating detective had
engaged in deceptive tactics that rendered her Miranda1 waiver invalid and the
trial court erred in admitting her statement to police and in limiting the
testimony of her expert. Because the trial court did not conduct evidentiary
hearings pursuant to N.J.R.E. 104, its admission of defendant's statement was
plain error and its limitation of the testimony of her expert witness was an
abuse of discretion. Accordingly, we remand the case and direct the trial court
to conduct evidentiary hearings regarding the voluntariness of defendant's
statement, the qualifications of her expert witness, and the admissibility of his
opinions. As we explain in this opinion, whether defendant's convictions are
affirmed or whether she is entitled to a new trial depends on the outcomes of
those hearings.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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I.
After she woke up on the morning of May 30, 2017, Sheryl Maser went
to her daughter Emily's bedroom and found Emily dead. 2 The county medical
examiner concluded Emily had died as the result of fentanyl and heroin
toxicity. That fatal overdose was not Emily's first experience with heroin.
According to data later extracted from one of Emily's cell phones, Emily
had sent a text message to a contact labeled "Shannon J.R." on May 12, 2017,
to purchase twenty-dollars-worth of narcotics. On May 14, 2017, Emily again
texted "Shannon J.R." to arrange a purchase of thirty-dollars-worth of heroin.
Defendant testified at trial that J.R. was her friend and drug dealer. She
assisted him in his drug-dealing efforts by giving him rides; she received drugs
in return. Defendant first met Emily about three months before her death when
she drove J.R. to meet Emily so he could sell her drugs. Defendant was
involved in selling heroin to Emily approximately three times. J.R. was jailed
sometime in May 2017. Defendant admitted at trial she had sold and used the
heroin he had left behind.
On May 19, 2017, Sheryl called 9-1-1 and reported she had found drug
paraphernalia in the house she shared with Emily and that Emily was home and
2
Because of their shared last names, we use their first names when
referencing Sheryl and Emily for clarity and ease of reading. We intend no
disrespect in doing so.
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had active arrest warrants. After Sheryl allowed him to enter the house, police
patrolman Joshua Danka found Emily in her bedroom. Danka arrested Emily
and seized approximately fifty empty wax paper folds, a glass smoking pipe,
about thirty-five pills, and approximately thirty hypodermic syringes, all left
out in plain view. He did not look under the bed. Detective Sergeant Brian
Smith testified at trial wax paper packets are a common form of packaging for
narcotics sold individually or on the street.
According to Sheryl, the police took what drug paraphernalia "they
could see." After Emily's arrest, Sheryl cleaned Emily's bedroom, throwing
out other wrappers and "[a]nything else [she] could find." Sheryl did not clean
under Emily's bed, but she "moved the bed and cleaned around it." Following
her arrest on May 19, 2017, Emily remained in jail for the next eight days.
Kyle Potts, Emily's boyfriend, picked Emily up from jail on May 27,
2017, after another friend had posted her bail. They eventually went to a party
with Emily's parents at a friend's farm and then spent the night at Potts's house.
Potts did not witness Emily consume any drugs at the party or that night.
According to data extracted from Emily's cell phone, Emily texted
defendant the next day at 4:22 a.m.: "Hey, it's Emily. Sorry so early. Gotta
sneak shit. Is J.R. still locked up? Text this number now or Fa[c]ebook Emily
Maser. I need shit." Emily next texted, "But I got 40." Defendant responded,
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saying J.R. was "still locked up and no one knows when he's getting out." A
few minutes later, defendant texted Emily: "If you got a ride out here, I'll
serve you, but there's no way in hell I'm driving out to [Presidential Lakes] at 6
a.m. for $40." Emily texted her, "I need the D.," which according to Detective
Smith meant "dope," a word used interchangeably with heroin. Emily asked
defendant if she would "come serve [her]?" Throughout the day, Emily
repeatedly asked defendant to meet her, and defendant eventually agreed.
Emily confirmed she had $40, provided her home address, and asked defendant
if she could "do eight"; defendant responded that she could do "seven."
At trial, defendant admitted she and Emily had been "texting back and
forth all day" on May 28, 2017, and had agreed she would sell Emily seven
bags of heroin for $40. After taking Emily to her friend's house so she could
repay the bail money, Potts dropped Emily off at her home at about 3:00 p.m.
Defendant met Emily at about 6:00 p.m. at a park near Emily's home to sell her
the heroin. According to defendant, the bags of heroin she sold to Emily had a
gecko stamp on them.
Potts returned to Emily's house at around 7:00 p.m. After driving with
Emily to a nearby Wawa convenience store to purchase food, Potts returned
Emily to her home and left at about 2:45 a.m. on May 29, 2017. During their
time together that night, he did not see Emily take drugs.
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Sometime after 6:00 p.m. on May 29, 2017, Sheryl returned home.
When she arrived, Emily was home alone, in her room. Sheryl saw Emily at
about 11:00 p.m., when Emily came out of her room to ask for a cigarette.
That was the last time Sheryl saw Emily before finding her in her bed the next
morning.
After she saw Emily's body, Sheryl called 9-1-1. Officer Danka met
Sheryl outside the house. Sheryl pointed to an upstairs bedroom. Danka
entered the house, went to the bedroom, and saw Emily's body. Paramedics,
other patrolmen, and Detective Smith arrived on the scene. The paramedics
confirmed Emily did not have a pulse.
Smith found a Motorola cell phone in Emily's hand, an Apple iPhone on
her windowsill, and an LG cell phone – with Emily's name on the back – atop
her dresser. Sheryl confirmed she had seen her daughter use both the Motorola
and LG cell phones. Detective Smith sent the Motorola and LG to the
Burlington County Prosecutor's Office High-Tech Crimes Unit for data
extraction. From the results of a subpoena issued to Verizon, Detective Smith
determined that one number in Emily's contact list, labelled as both "J.R.
Shannon" and "Shannon J.R.," belonged to defendant.
Detective Smith found syringes on Emily's windowsill. He also found a
variety of wax paper folds scattered around Emily's room. He found one used,
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white, unstamped fold near Emily's arm; two used, white, unstamped folds
underneath Emily's body; and four white, unstamped folds on a glass tray near
her body. In a box underneath Emily's bed, he found several folds with a blue
gecko stamp, a red Snapchat stamp, or "some sort of red mark" and several
unstamped folds. Near Emily's dresser, he found one fold with a green dragon
stamp in a yellow basket and one fold with a "Grand Theft" blue stamp atop
her dresser.
Detective Smith did not send any of the wax paper folds found
underneath Emily's bed or near her dresser for testing because they "didn't
appear to contain any substance." In July 2017, he sent one of the white,
unstamped folds found near Emily's body to National Medical Services
(NMS), which tested it and found its contents positive for heroin, fentanyl, and
quinine. Two years later, in September 2019, Detective Smith sent two more
bags, also white, unstamped, and found near Emily's body; they tested positive
for heroin, fentanyl, and trace amounts of quinine.
Susan Crookham, a scientist employed by NMS, analyzed results of tests
NMS had performed on Emily's urine and confirmed it had contained
nordiazepam, morphine, fentanyl, norfentanyl, opiates, benzodiazepines,
cannabinoids, and 6-monoacetylmorphine, which is indicative of heroin use.
Dr. Ian Hood, who was the county medical examiner, concluded Emily had
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died from heroin and fentanyl toxicity likely within an hour from the time she
was last seen alive on May 29, 2017. Dr. Hood testified that it is "a very
common scenario . . . where people have just gotten out of jail . . . lost their
tolerance. That takes one to two weeks. And then they get out and they go
and take the same old dose they were used to and they immediately die."
On November 17, 2017, approximately five and one-half months after
Emily's death, Detective Smith conducted an interrogation of defendant at the
police department. 3 Smith testified he had read defendant her Miranda rights
before she spoke with him. In fact, he had asked defendant several questions
before he advised her of her rights, including the following questions about her
cell phone:
Det. Sgt. Smith: . . . How about a cell phone number
for you?
[Defendant]: (XXX) XXX-XXXX.
Det. Sgt. Smith: What carrier is that? Sprint? Metro?
T–
[Defendant]: . . . Verizon.
Det. Sgt. Smith: Verizon? How long have you had
that phone number?
[Defendant]: Ever since I had a cell phone.
3
The State does not dispute the custodial nature of the interrogation.
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Det. Sgt. Smith: How long is that?
[Defendant]: Years.
Once he obtained that information from her, Detective Smith advised
defendant of her Miranda rights, and she agreed to waive them. Detective
Smith told defendant he was "doing an investigation that goes all the way back
'til May" and questioned her about J.R. He initially said nothing about Emily.
Defendant denied she had "ever helped J.R. facilitate his selling in order
to get . . . free [heroin]" but admitted she had occasionally provided car rides
to him in exchange for drugs. When asked if she knew any of J.R.'s clients,
defendant stated she "knew . . . some of them" and referenced a few by name,
but not Emily. Detective Smith told defendant he did not believe she was
"being completely honest" and said he "kn[e]w a lot about" her. 4 Detective
Smith told defendant he had "done a pretty thorough investigation" and had
"gone through a lot of records . . . [and] through cell phones and stuff like
that" and suggested they "need[ed] to open up . . . an avenue of honesty."
4
Before trial, defendant moved to redact this language from the recording of
the interrogation to be shown to the jury, arguing it prejudicially suggested
Detective Smith had additional evidence regarding defendant's drug dealing.
The court granted the motion, and the detective's comments about not
believing defendant was "being completely honest" and that he "kn[e]w a lot
about" her were redacted and not played for the jury.
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Detective Smith eventually asked defendant, "Do you know a girl named
Emily?" After the detective described Emily, defendant responded, "I think I
know who you're talking about." The detective asked her, "[Do y]ou
remember where she lives?" Defendant named two towns and said, "I know of
her," indicating she knew Emily through J.R. She admitted she previously had
communicated with Emily through text messages but stated she had not been
in touch with Emily in "[a] long time, because I haven't even been dealing with
any of this stuff since May." She told the detective she "had started on
methadone" in May and "[o]nce [she] started at the clinic, [she] wasn't dealing
with anything anymore."
Detective Smith asked defendant, "[D]o you know what's up with
Emily?" Defendant confirmed she had not talked to Emily since May. In
response to the detective's direct question, defendant denied she had ever sold
anything to Emily. Detective Smith then read to her language from some of
their texts, told her that her "best bet" was to help him "figure out [her]
involvement in this," and represented to her, "I'm not holding anything back.
I'm not lying to you. I'm laying it all out . . . on the table and telling you
what's up." Defendant then admitted she had sold heroin to Emily
approximately three times and stated the last time had been before May when
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she "started at the clinic," but she also admitted selling J.R.'s heroin after he
went to jail for "a couple of weeks after [she] started at the methadone clinic."
Detective Smith did not tell defendant Emily had died, and throughout
the interrogation, he repeatedly used the present tense when referencing her.
In addition to the above questions he posed in the present tense, he asked
defendant, "How old is Emily?" He asked defendant if she thought "she's in
her 20s?" Before ending the interview, Detective Smith asked defendant,
"Does [Emily] have a boyfriend?"
In 2019, a grand jury returned an indictment charging defendant with
third-degree possession of a controlled dangerous substance with the intent to
distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); first-
degree strict liability for a drug-induced death, in violation of N.J.S.A. 2C:35-
9(a); third-degree distribution of a controlled dangerous substance, in violation
of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and third-degree possession of a
controlled dangerous substance, in violation of N.J.S.A. 2C:35-10(a)(1).
Before trial, the State moved to bar the testimony of defendant's witness,
Lawrence J. Guzzardi, M.D., who purportedly was an expert in the fields of
toxicology, drug use, and addiction. In his report, Dr. Guzzardi stated, among
other things, that he found "it very unusual that [Emily] could have obtained
drugs of some nature from [defendant] on May 28, 2018, and not used those
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drugs until after 11:30 p.m. on May 29, 2018," because "[t]he nature of opioid
addiction is that the powerful attraction of the drug does not allow hoarding."
Labelling Emily "an experienced chronic drug abuser," he also opined "[a]n
experienced chronic abuser of heroin would have utilized [the amount of
heroin defendant sold to Emily] quickly, likely within hours of receipt" and
"[d]rugs delivered on May 28, 2018, would not have been present in [Emily's]
blood if she had utilized them as expected on that date." Dr. Guzzardi
addressed the effects of fentanyl on the human body; identified other
potentially lethal substances for which NMS had not tested; and found
"[w]ithout an examination of the internal organs, no conclusion can be made as
to what other factors contributed to [Emily's] death" and "[t]he level of opioids
present may or may not have been the cause of her death."
Dr. Guzzardi asserted in his report he had "worked with many, many
substance abusers." His curriculum vitae (CV), however, did not provide any
specific information about any recent work with "substance abusers." As set
forth in his CV, Dr. Guzzardi completed a residency in emergency medicine in
1978 and the course work for a master's program in toxicology with a focus on
tricyclic antidepressants in 1980. According to the information provided in the
CV, Dr. Guzzardi served as a hospital's "Director" of "Substance Abuse
Service" from 1988 to 1993 while he worked as an attending physician in that
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hospital's emergency department from 1989 to 1998. Dr. Guzzardi served on
specialty boards relating to family practice, emergency medicine, and medical
toxicology. He held teaching positions, the last one in 1990, in emergency
medicine. He gave a lecture on antidepressant overdose in April 1982,
barbiturate poisoning in 1981, and "street drug" abuse in 1982.
The State conceded Dr. Guzzardi was an expert in toxicology but
challenged his asserted expertise in substance abuse. The State also argued Dr.
Guzzardi had issued a net opinion, with insufficient facts to support his
conclusions. After hearing argument, the motion judge granted in part and
denied in part the State's motion. The judge found Dr. Guzzardi's toxicology
opinion "to be sufficiently supported by scientific specialized knowledge as
required by the Rules of Evidence," but the doctor's "background and
knowledge . . . to be insufficient to support his opinion in any aspect of drug
use, abuse, addiction, and rehabilitation." The judge also found Dr. Guzzardi's
opinions on Emily's inability to go days without drug use and the extent of her
addiction to not be based on any facts, data, or personal interaction with
Emily. Accordingly, the judge held Dr. Guzzardi could testify regarding
toxicology but was prohibited from offering opinion testimony concerning
drug use and addiction.
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Defendant did not move to suppress the recording of the interrogation
based on any putative involuntariness of defendant's waiver of her Miranda
rights. The video recording of the interrogation was played for the jury twice:
once during the presentation of the State's case in chief and once after the jury
had requested to see it again during deliberations.
The jury found defendant guilty on all counts. The trial judge sentenced
defendant to a twelve-year term of imprisonment, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, on the drug-induced-death conviction and
concurrent to that sentence a four-year term of imprisonment on each of the
other convictions, for an aggregate term of twelve years. This appeal
followed.
On appeal, defendant makes these arguments:
POINT I
IT WAS PLAIN ERROR TO ADMIT
DEFENDANT’S STATEMENT TO LAW
ENFORCEMENT BECAUSE THE DETECTIVE
DELIBERATELY HID THAT HE WAS
INVESTIGATING A STRICT LIABILITY DRUG-
INDUCED DEATH AND DECEIVED DEFENDANT
ABOUT THE SERIOUSNESS OF THE
INVESTIGATION, THUS MAKING HER
MIRANDA WAIVER INVALID. (Not raised below.)
A. Plain error is present because the
deceptive police tactics used in the instant
case are the same kind that were
condemned by this court in [State v.]
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Diaz[, 470 N.J. Super. 495 (App. Div.),
leave to appeal denied, 251 N.J. 8 (2022)].
B. Presumptively excluding a defendant’s
statement under these circumstances
would not offend the New Jersey Supreme
Court’s guidance in [State v.] Sims[, 250
N.J. 189, cert. denied, __ U.S. __, 143 S.
Ct. 409, 214 (2022)] because of the
unique character of the strict liability
drug-induced death offense.
POINT II
THE LEAD INVESTIGATOR IMPROPERLY
ELICITED INCULPATORY INFORMATION FROM
DEFENDANT WHEN HE ASKED ABOUT HER
CELL PHONE NUMBER, PROVIDER, AND
HISTORY BEFORE MIRANDA WARNINGS,
REQUIRING SUPPRESSION OF THE
UNMIRANDIZED STATEMENT. (Not raised
below.)
POINT III
THE TRIAL COURT ERRED BY EXCLUDING THE
DEFENSE EXPERT AND ADMITTING THE
STATE’S EXPERT TO OFFER OPINION
TESTIMONY ON THE SAME TOPICS.
Because it was plain error for the trial court to admit the recording of the
interrogation without conducting a Rule 104 hearing to determine the
voluntariness of defendant's statement and an abuse of discretion to limit her
expert witness's testimony without conducting a hearing regarding his
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qualifications and the admissibility of his opinions, we remand and direct the
trial court to conduct the appropriate evidentiary hearings.
II.
We review under the plain-error standard the admission of defendant's
statement into evidence because defendant did not argue before the trial court
that her Miranda waiver was invalid or the admission of her statement had
violated her Miranda rights. State v. Gonzalez, 249 N.J. 612, 633 (2022)
(quoting State v. Singh, 245 N.J. 1, 13 (2021)); see also Sims, 250 N.J. at 210
(reviewing the admission of the defendant's statement to police under the
plain-error standard when the defendant asserted for the first time on appeal
that its admission had violated his Miranda rights); R. 2:10-2. "Under that
standard, an unchallenged error constitutes plain error if it was 'clearly capable
of producing an unjust result.'" State v. Clark, 251 N.J. 266, 287 (2022)
(quoting R. 2:10-2). "To determine whether an alleged error rises to the level
of plain error, it 'must be evaluated in light of the overall strength of the State's
case.'" Ibid. (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).
Our Supreme Court recently described the cornerstone importance of an
individual's right against self-incrimination.
"The privilege against self-incrimination, as set forth
in the Fifth Amendment to the United States
Constitution, is one of the most important protections
of the criminal law." State v. Presha, 163 N.J. 304,
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312 (2000) (citing U.S. Const. amend. V; State v.
Hartley, 103 N.J. 252, 262 (1986)). Although New
Jersey has no constitutional provision addressing the
privilege against self-incrimination, our "common law
has granted individuals the 'right against self-
incrimination since colonial times.'" [State v.]
Vincenty, 237 N.J. [122,] 132 [(2019)] (quoting [State
v.] A.G.D., 178 N.J. [56,] 66 [(2003)]). Our law
maintains "an unyielding commitment to ensure the
proper admissibility of confessions." Ibid. (quoting
State v. Reed, 133 N.J. 237, 252 (1993)).
[Sims, 250 N.J. at 211.]
The State, accordingly, bears "the burden to prove beyond a reasonable
doubt that a suspect's waiver of his privilege against self-incrimination prior to
an inculpatory statement 'was knowing, intelligent, and voluntary in light of all
the circumstances.'" Ibid. (quoting Presha, 163 N.J. at 313). In determining
whether a defendant knowingly, voluntarily, and intelligently waived the right
against self-incrimination, courts consider the totality of the circumstances.
Ibid.; see also State v. Nyhammer, 197 N.J. 383, 402-03 (2009) ("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."); State v. Hahn, 473 N.J.
Super. 349, 371 (App. Div. 2022) (affirming a decision to admit a defendant's
statement rendered after the judge had considered the evidence presented
during a Rule 104 hearing and concluded based on a totality-of-the-
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circumstances analysis the defendant's statement was the product of free will
and not police coercion), certif. denied, 252 N.J. 530 (2023). When assessing
the totality of the circumstances, a trial court "should consider" evidence of
"bad-faith conduct on the part of law enforcement officers." Sims, 250 N.J. at
216.
The trial court in this case did not engage in any such consideration. We
recognize neither party raised before the trial court the issue of the
admissibility of defendant's statement or the validity of her Miranda waiver.
The State, which had a duty to prove the knowing and voluntary nature of
defendant's waiver, did not move to admit the statement, and defendant did not
move to exclude it. The trial court, nevertheless, had an obligation to conduct
a Rule 104 hearing to determine, based on the totality of the circumstances,
whether defendant had knowingly, voluntarily, and intelligently waived her
right against self-incrimination. See State v. Miller, 76 N.J. 392, 404-05
(1978) (finding "[b]efore it can be admitted into evidence and submitted to a
jury, a defendant's confession must be proven by the State to be voluntary
beyond a reasonable doubt"); State v. Scott, 398 N.J. Super. 142, 153 (App.
Div. 2006) (finding the "[v]oluntariness of a confession or other inculpatory
statement by an accused must always be established at a N.J.R.E. 104(c)
hearing before it can be introduced into evidence at trial") (quoting Biunno,
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Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 104
(2006)), aff'd o.b., 193 N.J. 227 (2008).
That obligation becomes particularly clear when considering even the
limited record before us. The record is devoid of any evidence defendant
knew, before she waived her rights and admitted selling heroin to Emily, that
Emily had died; it contains evidence Detective Smith – by initially focusing
the interrogation on defendant's dealings with J.R., expressly misrepresenting
facts to defendant by telling her he was "not holding anything back" and was
"laying it all out . . . on the table," and repeatedly using the present tense when
referencing Emily – may have attempted to conceal Emily's death from
defendant and mislead her into thinking she was answering questions about
and confessing to a drug deal and not a strict liability drug-induced death. In
fact, at trial, Detective Smith acknowledged he had not told defendant about
Emily's death and testified that, as far as he knew, defendant had thought he
was talking to her about her and J.R. selling drugs.
Whether Detective Smith's actions and omissions constituted acceptable
interrogation techniques that did not violate defendant's rights or bad -faith
conduct designed to induce defendant to make incriminating statements she
otherwise would not have made should have been examined by the trial court
as part of a totality-of-the-circumstances consideration following the
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development of a full record in a Rule 104 hearing. Cf. Sims, 250 N.J. at 200,
217-18 (holding sufficient credible evidence in the record supported the trial
court's finding, which was made after the court had conducted a Rule 104
hearing, that the totality of the circumstances warranted the denial of the
defendant's motion to suppress his statement to police); Diaz, 470 N.J. Super.
at 509 (finding, based on a record developed at a plenary suppression hearing,
interrogating detectives had executed a "planned investigative strategy to elicit
incriminating statements linking defendant to the overdose death before
defendant became aware that someone had died"). In failing to conduct the
Rule 104 hearing and to apply the totality-of-the-circumstances test to
determine the admissibility of defendant's statement, the trial court erred. And
we conclude that error was plain error.
As the Court found in State v. L.H., 239 N.J. 22, 27 (2019), "[n]o piece
of evidence may have greater sway over a jury than a defendant's confession."
Here, "the centrality of defendant’s incriminating statements" – in which she
confessed to selling heroin to a person who subsequently died of a heroin and
fentanyl overdose – to the prosecution’s case cannot be reasonably debated.
State v. O'Neill, 193 N.J. 148, 184 (2007). The trial court's failure to conduct
a Rule 104 hearing and failure to engage in a totality-of-the-circumstances
analysis concerning the admissibility of defendant's statement was "clearly
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capable of producing an unjust result," R. 2:10-2, and, thus, constitutes plain
error.
Defendant asks this court to create a rule preventing the State from using
in a strict liability drug-induced death case the statement of a defendant who
waived Miranda rights and admitted to selling drugs without being informed of
the death of the victim or the potential strict-liability charges. We respectfully
decline that request. See Sims, 250 N.J. at 211-12 ("Only in the most limited
circumstances have we applied a per se rule to decide whether a defendant
knowingly and voluntarily waived Miranda rights" (quoting Nyhammer, 197
N.J. at 402-03)). Given the application of the totality-of-the-circumstances
test, which the Court reaffirmed in Sims, 250 N.J. at 217, we see no reason to
establish a bright-line rule.
Instead, we are satisfied the remedy here is to remand the case with
instructions the trial court engage in a totality-of-the-circumstances analysis
after first conducting a Rule 104 hearing – the proper setting to develop the
record regarding the State's ability or inability to prove the voluntariness of
defendant's statement. If the trial court on remand finds the State failed to
prove the voluntariness of defendant's statement beyond a reasonable doubt,
defendant's convictions will be vacated and, if necessary following vacatur of
the convictions, the court shall conduct a new trial at which defendant's
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statement shall be excluded. See State v. Kelly, 61 N.J. 283, 294 (1972)
(finding "the interests of justice will best be served by . . . having the trial
judge conduct the hearing on voluntariness" of the defendant's statement and,
if State failed to prove voluntariness of statement, defendant was entitled to a
new trial at which the statement would be excluded); State v. Stubbs, 433 N.J.
Super. 273, 289 (App. Div. 2013) (remanding for a Rule 104 hearing regarding
admissibility of defendant's purported adoptive admission and ordering a new
trial if the State failed to meet its burden on admissibility); Scott, 398 N.J.
Super. at 153-54 (remanding for a "voluntariness hearing" regarding the
defendant's statement and holding the defendant would receive a new trial if
the court on remand found his statement was not voluntary); State v. Marczak,
344 N.J. Super. 388, 398-99 (App. Div. 2001) (remanding for a hearing on the
voluntariness of the defendant's statements and directing, if the State failed to
prove the voluntariness of the statements, conviction would be vacated and a
new trial held in which the statements would be excluded).
Defendant also complains about some questions Detective Smith asked
her before advising her of her rights under Miranda, specifically requests for
her cell phone number, the name of the provider of her cell phone service, and
how long she had had her cell phone and cell phone number. "[T]he term
'interrogation' under Miranda refers not only to express questioning, but also to
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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." State v. Hubbard,
222 N.J. 249, 267 (2015) (quoting R.I. v. Innis, 446 U.S. 291, 301 (1980)).
Police are not required to administer Miranda warnings before asking a
defendant for "routine pedigree information, including his name and address,
for purposes of completing [an] arrest report." State v. Melendez, 454 N.J.
Super. 445, 457 (App. Div. 2018).
To determine whether a police officer's questions, posed before the
officer administered the Miranda warnings, violated a defendant's rights, "we
consider whether, under the circumstances, a police officer's questioning . . .
was 'particularly evocative' or 'reasonably likely to elicit an incriminating
response.'" State v. Tiwana, 256 N.J. 33, 42 (2023) (quoting R.I., 446 U.S. at
303). Although questions about a person's cell phone might generally be
permissible as a routine request for pedigree information, that is not what
occurred here. The questions posed about defendant's cell phone were clearly
for the purpose of obtaining incriminating evidence tying defendant to the drug
transactions – negotiated over defendant's cell phone – that the State argued
resulted in the delivery of the drugs that killed the victim. The detective
violated defendant's rights by asking those questions before issuing the
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Miranda warnings, and the trial court erred in admitting the questions and
defendant's answers to them.
But because of other evidence in the record, that error was not plain
error requiring, on its own, a reversal or vacation of the conviction. Without
referencing the information defendant provided in response to the questions he
had asked her before advising her of her Miranda rights, Detective Smith
testified at trial he had determined by way of a subpoena issued to Verizon that
the telephone number associated with the name "Shannon J.R." in Emily's
Motorola cell phone – the number Emily texted when she was seeking drugs
on May 12, May 14, and May 28, 2017, and from which she received
responsive texts – belonged to defendant. A senior analyst from Verizon
Wireless also testified at trial and confirmed defendant was the subscriber for
the number involved in the text exchange.
"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." State v. Cotto, 471 N.J. Super. 489, 531
(App. Div. 2022) (quoting Townsend v. Pierre, 221 N.J. 36, 52 (2015)), certif.
denied, 252 N.J. 166 (2022). "Absent a clear abuse of discretion, an appellate
court will not interfere with the exercise of that discretion." Nicholas v.
Hackensack Univ. Med. Ctr., 456 N.J. Super. 110, 117 (App. Div. 2018)
(quoting Carey v. Lovett, 132 N.J. 44, 64 (1993)).
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N.J.R.E. 702 requires a witness to qualify as an expert by "knowledge,
skill, experience, training, or education." State v. Olenowski, 255 N.J. 529,
583 n. 26 (2023) (quoting N.J.R.E. 702). An expert witness must "be suitably
qualified and possessed of sufficient specialized knowledge to be able to
express [an expert opinion] and to explain the basis of that opinion." Cotto,
471 N.J. Super. at 530 (quoting State v. Odom, 116 N.J. 65, 71 (1989)).
However, the requirements for the admission of expert testimony admissibility
"are construed liberally in light of [N.J.R.E.] 702's tilt in favor of []
admissibility." Id. at 530 (quoting State v. Jenewicz, 193 N.J. 440, 454
(2008)).
"[W]hile the trial judge must determine whether the expert's training and
experience are sufficient to permit the expert to state an opinion, it remains the
jury's function to determine the worth of that opinion." State v. Canfield, 470
N.J. Super. 234, 327 (App. Div. 2022) (quoting Espinal v. Arias, 391 N.J.
Super. 49, 58 (App. Div. 2007)), aff'd as modified, 252 N.J. 497 (2023); see
also Jenewicz, 193 N.J. at 455 ("[T]he strength of an individual's qualifications
may be undermined through cross-examination" and should not be used "as a
reason to exclude a party's choice of expert witness to advance a claim or
defense."). Lack of formal clinical training in a given area will not necessarily
disqualify the expert from testifying if some other foundation for the expert's
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opinion exists. Jenewicz, 193 N.J. at 455-56. "[A]n expert may be qualified
by study without practice or practice without study[.]" State v. Smith, 21 N.J.
326, 334 (1956); see also Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App.
Div. 2013). "Deficiencies in the qualification of an expert is a matter to be
weighed by the jury." Koseoglu, 431 N.J. Super. at 161 (quoting Espinal, 391
N.J. Super. at 59).
"If a party challenges an expert opinion pursuant to N.J.R.E. 702, the
'trial court should conduct a hearing under [N.J.R.E. 104] concerning the
admissibility of the proposed expert testimony.'" State v. J.R., 227 N.J. 393,
409 (2017) (quoting State v. Torres, 183 N.J. 554, 567 (2005)). A hearing
pursuant to N.J.R.E. 104 "is a favored means to create a record for appellate
review of a disputed decision." Ibid. (quoting Torres, 183 N.J. at 554).
At trial, expert witnesses may not testify as to their net opinions.
N.J.R.E. 703. The net opinion rule "forbids the admission into evidence of an
expert's conclusions that are not supported by factual evidence or other data."
State v. Burney, 255 N.J. 1, 23 (2023) (quoting Townsend, 221 N.J. at 53-54).
"Courts 'may not rely on expert testimony that lacks an appropriate factual
foundation and fails to establish the existence of any standard about which the
expert testified.'" In re Civil Commitment of A.Y., 458 N.J. Super. 147, 169
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(App. Div. 2019) (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
410 (2014) (internal quotation marks omitted)).
The court erred in failing to conduct a Rule 104 hearing regarding Dr.
Guzzardi's qualifications and the admissibility of his opinions and abused its
discretion in barring in part his testimony. We recognize the limited support in
Dr. Guzzardi's CV for an expertise in drug abuse and addiction. However, his
experience as a director of a hospital's "Substance Abuse Service," albeit long
ago, the lectures he gave regarding drug abuse and overdose, and his assertion
he had "worked with many, many substance abusers" merited, at a minimum,
further exploration in a Rule 104 hearing and may have been sufficient, given
the liberality with which we view the requirements of N.J.R.E. 702, to permit
his testimony, leaving the jury to determine its worth. The Rule 104 hearing
also would have provided the parties an opportunity to question Dr. Guzzardi
regarding the bases for his conclusory statement that Emily was "an
experienced chronic drug abuser" – a description that appears to be undisputed
by anyone and supported by other evidence in the record – and the opinions
premised on that statement.
In sum, we remand the case for a Rule 104 hearing on the voluntariness
of defendant's statement to Detective Smith. If the State does not prove
beyond a reasonable doubt that the statement was voluntary, the convictions
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must be vacated and a new trial held, at which the statement will be excluded.
The questions about defendant's cell phone, cell phone carrier, and cell phone
number Detective Smith asked defendant before reading her the Miranda rights
and the answers she gave shall be excluded from any testimony and redacted
from any recording played for a jury at a new trial. We also remand the case
for a Rule 104 hearing regarding Dr. Guzzardi's qualifications and the
admissibility of his opinions. If the court on remand finds Dr. Guzzardi is
qualified to testify as an expert in the fields of drug use and addiction and
finds that his opinions are admissible, the convictions must be vacated and a
new trial held, at which Dr. Guzzardi may testify as an expert in toxicology,
drug use, and addiction. If, on the other hand, the court on remand determines
defendant's statement was voluntary and Dr. Guzzardi was not qualified in
those fields and his opinions are inadmissible, the convictions are affirmed,
subject to defendant's right to seek review of the court's remand decisions
through a separate appeal of the orders issued by the trial court on remand.
Remanded for proceedings consistent with this opinion. We do not
retain jurisdiction.
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