SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Angelina Nicole Carlucci (A-85-11) (069183)
Argued January 3, 2013 -- Decided March 13, 2014
RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
The issue in this appeal is whether inculpatory statements by defendant of other crimes, wrongs or acts
were admissible pursuant to N.J.R.E. 404(b).
On October 7, 2008, defendant Angelina Nicole Carlucci was employed as an assistant manager at a
restaurant in Greenwich. According to another restaurant employee, Katie Lynn Briggs, around 2:30 p.m. a clear
packet fell out of defendant’s shirt. Patricia Barlow, another employee, kicked the packet under the counter,
retrieved it, and gave it to Briggs. Briggs took the packet to the bathroom to examine it. Finding that it contained
“chunks of something,” Briggs telephoned the general manager. The police were contacted. When Greenwich
Township Detective Richard Hummer and Patrolman Steven Buss arrived, Briggs met them in the back parking lot
and handed the packet to them. The officers conducted a field test, which revealed that the packet contained
cocaine. Briggs told the police officers that defendant had dropped the packet. Patrolman Buss then asked
defendant to come into the manager’s office located at the back of the restaurant and proceeded to question her.
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
1
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 in State 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. (pp. 13-15)
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. (pp. 15-17)
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). (pp. 17-18)
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. (pp. 19-22)
The judgment of the Appellate Division is REVERSED, defendant’s conviction is VACATED, and the
matter is REMANDED to the Law Division for new trial proceedings consistent with the Court’s opinion.
2
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-85 September Term 2011
069183
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGELINA NICOLE CARLUCCI,
Defendant-Appellant.
Argued January 3, 2013 – Decided March 13, 2014
On certification to the Superior Court,
Appellate Division.
Susan Brody, Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney).
Dit Mosco, Assistant Prosecutor, argued the
cause for respondent (Richard T. Burke,
Warren County Prosecutor, attorney).
JUDGE RODRÍGUEZ (temporarily assigned) delivered the
opinion of the Court.
An inculpatory statement made by an accused prior to
trial, and later introduced as evidence, may be very
persuasive to a jury precisely because it comes from the
mouth of the accused. In this appeal, defendant seeks
reversal of a conviction for third-degree possession of
cocaine, N.J.S.A. 2C:35-10a(1), by challenging several such
statements on various grounds. We reverse defendant’s
1
conviction on the sole basis that statements that should
have been excluded pursuant to N.J.R.E. 404(b) were
admitted in her trial.
I.
A.
On October 7, 2008, defendant Angelina Nicole Carlucci
was employed as an assistant manager at a restaurant in
Greenwich. According to another restaurant employee, Katie
Lynn Briggs, around 2:30 p.m. a clear packet fell out of
defendant’s shirt. Patricia Barlow, another employee,
kicked the packet under a counter, retrieved it, and gave
it to Briggs. Briggs took the packet to the bathroom to
examine it. Finding that it contained “chunks of
something,” Briggs telephoned the general manager (who
happened to be her sister, Erin) and hid the package in her
sweater. The police were contacted. When Greenwich
Township Detective Richard Hummer and Patrolman Steven Buss
arrived, Briggs met them in the back parking lot and handed
the packet to them. The officers conducted a field test,
which revealed that the packet contained cocaine. Briggs
told the police officers that defendant had dropped the
packet. Patrolman Buss then asked defendant to come into
the manager’s office located at the back of the restaurant.
2
Patrolman Buss, who was the sole witness at an August
2009 pretrial Jackson-Denno1 hearing on the admissibility of
defendant’s statements made to him during his questioning
of her, testified as follows:
[Assistant Prosecutor]: Okay. And at
that time did you -- when you met with her,
did you say anything to her when you first
met with her?
[Patrolman Buss]: Yes, I did.
Q. What did you say?
A. I asked her what -- I showed her the --
the substance in hand. I said what is this?
Q. Okay. What did you believe it to
be incidentally?
A. We believed it to be crack cocaine.
Q. And when you asked her that
question, what did she say?
A. She said that she did not know.
Q. Okay. Did you say anything about
whether it was hers or not?
A. No. Not at the time.
Q. At some point in time after asking
that question did you provide her with her
Miranda[2] rights?
A. Yes, I did.
1
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d
908 (1964).
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3
Q. Can you tell the Court or describe
for the Court how -- how you went about
doing that at that time?
A. After I asked her that question, I took
the Miranda card from my pocket, I read off
each warning, she stated she understood, and
stated she would speak with us.
Q. Do you have a -- an identical copy
of the Miranda card you used that day with
you today?
A. Yes, I do.
. . . .
Q. And did you ask her if she was
willing to speak with you?
A. Yes.
Q. And what did she say?
A. She stated that she was willing.
Q. Can you describe any further --
well, before I go on there, who also was in
the room at that time?
A. As I was reading it it was myself and
Ms. Carlucci, and at the end of it,
Detective Hummel was walking into the room.
Q. Now had Ms. Carlucci been
handcuffed or restrained in any way at that
point?
A. No.
Q. Okay.
. . . .
Q. While -- while they’re at Perkin’s,
officer can you describe any further
4
conversation that you had with Ms. Carlucci
about the substance of anything else?
A. I asked Ms. Carlucci what was going on.
She stated that this substance that I had
showed to her previously was found by
someone that they were trying to get her in
trouble. I then asked her what the
substance was again, and she replied that it
was crack.
Q. Did she indicate to you how --
make any statement to you regarding how she
was able to identify the substance as crack?
A. Yes, she did.
Q. What did she say?
A. She stated that she had been in trouble
for it in the past so she knew what it
looked like.
Q. Did you ask her anything regarding
when the last time she was -- that she used
crack cocaine?
A. Yes, I did.
Q. And what was her response?
A. She said it was about two days ago.
Q. Did she offer any other
information regarding any other substances
she had used prior to you arriving at the
Perkin’s?
A. Yes, she did.
Q. And what did she say?
A. She said that the night prior she had
drank alcohol and taken a Vicodin.
5
Q. Okay. Did she indicate to you
whether or not the Vicodin was legally
prescribed or not?
A. She said that it was not.
Q. At some point in time did you
place her under arrest?
A. Yes.
Q. Did she make any other statements
to you at that time prior to placing her
under arrest?
A. No.
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. The judge conducted a Jackson-Denno hearing and
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 that had fallen out of defendant’s
shirt did not require prior Miranda warnings because the inquiry
was merely investigatory at that stage. The judge commented
that for purposes of the one initial question posed to defendant
she was not in custody, noting that defendant held a managerial
position with the restaurant and “presumably was familiar with
the back office.” That impression changed when the patrolman
6
testified at trial that he stood in front of the door to prevent
defendant from attempting to leave. In a written opinion, the
judge went on to find as follows:
Initially, it seems that Patrolman Buss’
questioning was akin to an investigative
stop that was ‘not so intrusive as to become
a de facto arrest.’ Therefore, this initial
question to her did not require a Miranda
warning. However, once Patrolman Buss got
past this initial inquiry, 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. As such, Patrolman Buss
read [d]efendant her Miranda rights and had
her sign a card indicating she understood
her rights before he continued his
questioning. There is nothing in the record
to indicate that [d]efendant’s waiver was
not knowing, intelligent, and voluntary.
Therefore, her [post-Miranda] statements are
admissible.
A different judge presided at defendant’s trial. Briggs,
Barlow, Detective Hummer, and Patrolman Buss testified for the
State. 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’ January 2010 testimony
differed from his pretrial Jackson-Denno hearing testimony. The
7
sequence of events was altered in respect to when Miranda
warnings were given. His testimony was as follows:
Q. And what, if anything, did you say
to her at that time?
A. Um, I held up the suspected crack
cocaine and asked what is this.
Q. Did she respond?
A. Yes. She said that she didn’t know.
Q. Did you ask her again what it was?
A. Yes.
Q. And what did she say?
A. The second time I asked her she said
that it was crack.
Q. And after she told you that it was
crack, what if anything did you do?
A. Um, at that time I Mirandized [sic]
her. I read her her Miranda warnings.
Thus, according to Patrolman Buss’ trial testimony, 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 also testified that defendant told him that
“the substance [he] had show[n] to her previously was found by
someone and that they were trying to get her in trouble.”
According to him, she explained that she was able to identify
the substance as crack because she “had been in trouble for
[crack cocaine] in the past so she knew what it looked like.”
8
Patrolman Buss also asked her when she last used crack and she
stated “about two days ago,” adding that she also had used
Vicodin, which was not prescribed to her, and alcohol the day
before. There was no objection to this testimony.
Immediately after Patrolman Buss’ testimony, the trial
judge instructed the jury that the “proof of other crimes,
wrongs, or acts” just offered by the State could only be used as
“evidence of a consciousness of guilt on the defendant’s part
regarding the possession of CDS.” The trial judge further
instructed:
You may not draw this inference unless you
conclude that the acts alleged were an
attempt by the defendant to cover up the
crime being alleged. Whether this evidence
does, in fact, demonstrate[] the defendant’s
consciousness is for you to decide . . . .
[Y]ou may not use this evidence to decide
that defendant had a tendency to commit
crimes or that she is a bad person. That
is, you may not decide that just because
defendant has committed other wrongs or
crimes, that [she] is guilty of the present
crime. I will admit this evidence only . .
. to help you decide the specific question .
. . did she on this particular day have
possession of this CDS? Did she possess the
crack cocaine? You may not consider it for
any other purposes and may not find the
defendant guilty simply because the State
has offered evidence that she may have used
crack cocaine on other occasions.
Defendant presented no witnesses. Prior to deliberations, the
trial judge again instructed the jury that defendant’s
9
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
conviction of probation, pursuant to N.J.S.A. 2C:43-2b(2). This
sentence was to run concurrent to the sentence imposed for the
violation of probation on a 2006 conviction.
Defendant appealed. The Appellate Division affirmed,
agreeing with the Jackson-Denno judge’s determination that
Patrolman Buss’ initial questioning was investigatory, “an
attempt to dispel or confirm suspicions that justify the
detention.” Patrolman Buss’ initial question was not accusatory
in nature, and “did not call for an admission of guilt and did
not elicit any incriminating information.” Furthermore, though
defendant was “restrained” in the manager’s office, she was not
in custody. Thus, protections guaranteed by Miranda were not
violated.
The panel also agreed with the finding that defendant’s
post-Miranda statements were made knowingly, voluntarily, and
intelligently. Moreover, the panel rejected defendant’s
argument that her statements regarding her prior use of crack
10
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.
This Court granted defendant’s petition for certification.
State v. Carlucci, 209 N.J. 232 (2012).
II.
Defendant contends that her conviction must be reversed
because inadmissible statements were improperly introduced
against her at trial. Specifically, she argues that her
statement identifying the contents of the baggie as crack was
inadmissible because it was elicited by questioning in a
custodial setting without the benefit of Miranda warnings.
Defendant asserts she was not free to leave because Patrolman
Buss isolated her in the office, blocked the door with his body,
and conveyed his suspicions that she was the owner of the CDS by
asking her to identify it. She argues that her post-Miranda
statements also were inadmissible because Patrolman Buss engaged
in a “question-first, warn-later” procedure.
Further, she argues that her statements identifying the
baggie’s contents as crack and referring to her prior drug use
were inadmissible because, pursuant to N.J.R.E. 404(b), they
constituted evidence of other crimes, wrongs, or acts and were
11
introduced for no valid evidentiary purpose. Defendant argues
that her “knowledge of the baggie’s contents was not an issue in
genuine dispute” and that it was improper to admit her initial
denial of knowledge of the identity of the baggie’s contents as
evidence of consciousness of guilt. She also argues that her
reference to prior illegal drug use was sheer improper
propensity evidence that served no legitimate evidentiary
purpose pursuant to N.J.R.E. 404(b). Further, she argues that
the trial judge’s limiting instruction exacerbated the harm
because it “direct[ed] the jury to consider the evidence for the
very purpose prohibited by N.J.R.E. 404(b),” namely, her guilt
of the present possessory offense.
Finally, defendant argues that her statements should be
suppressed because they were not recorded pursuant to Rule 3:17.
The State contends that defendant’s statements were
properly admitted because (1) she was neither in custody nor
interrogated prior to being read Miranda warnings; (2) Patrolman
Buss did not utilize a “question-first, warn-later” technique;
and (3) defendant’s statements were relevant to show
consciousness of guilt.
The State argues that defendant was not in custody when
Patrolman Buss questioned her, because a single officer
interviewed her in her manager’s office with an unlocked door.
Defendant also was not restrained, yelled at, or threatened in
12
any way. The State asserts that Patrolman Buss asked defendant
only one question before giving her Miranda warnings and that
question was investigatory, not accusatory. Thus, defendant was
not subjected to custodial interrogation.
The State also argues that defendant’s admission that she
knew the substance was crack was not incriminating. Defendant
was not asked whether the cocaine belonged to her before hearing
the Miranda warnings, and after she was warned, she denied
ownership. Thus, Patrolman Buss did not use a “question-first,
warn-later” technique.
The State concedes that, although a N.J.R.E. 104(a) hearing
was not held, the Jackson-Denno hearing was an equivalent
proceeding. The State argues defendant’s statements regarding
her prior drug use were properly admitted to show that defendant
“knew, because of her prior usage, the substance was crack and
she knew it was illegal . . . and therefore, she did not possess
it by accident.” The State argues that the information revealed
her consciousness of guilt because she initially denied knowing
what the substance was, but then later admitted she knew it was
crack cocaine based on her prior usage.
III.
A.
We first address defendant’s arguments that her statements
to Patrolman Buss about her prior unrelated use of crack cocaine
13
and other substances, as well as her identification of the
baggie’s contents as appearing to be cocaine were inadmissible
pursuant to N.J.R.E. 404(b) and should have been excluded from
trial.
N.J.R.E. 404(b) provides:
[E]vidence of other crimes, wrongs, or acts
is not admissible to prove the disposition
of a person in order to show that such
person acted in conformity therewith. Such
evidence may be admitted for other purposes,
such as proof of motive, opportunity,
intent, preparation, plan, knowledge,
identity or absence of mistake or accident
when such matters are relevant to a material
issue in dispute.
The Court in State v. P.S., 202 N.J. 232, 255 (2010), noted
that “[b]ecause N.J.R.E. 404(b) is a rule of exclusion rather
than a rule of inclusion,” the proponent of evidence of other
crimes, wrongs or acts must satisfy a four-prong test. In State
v. Cofield, 127 N.J. 328, 338 (1992), this Court set forth a
four-prong test governing the admissibility of evidence pursuant
to N.J.R.E. 404(b). The Cofield test requires that:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence
must not be outweighed by its apparent
prejudice.
14
[Ibid. (citing Abraham P. Ordover, Balancing
The Presumptions of Guilt and Innocence:
Rules 404(b), 608(b), and 609(a), 38 Emory
L.J. 135, 160 (1989) (footnote omitted)).]
We have recognized that the second prong does not have
universal applicability in a N.J.R.E. 404(b) analysis. See
State v. Williams, 190 N.J. 114, 131 (2007). In this matter,
the first, third, and fourth Cofield prongs are applicable to
the analysis. We turn therefore to the application of that
test.
B.
The first prong of Cofield requires that the evidence
offered be “relevant to a material issue” that is genuinely
disputed. Cofield, supra, 127 N.J. at 338. The State argues
that defendant’s remarks that she has been in trouble for using
crack cocaine in the past, and that she used cocaine two days
before, are relevant to her consciousness of guilt because she
initially denied knowing what the substance in the baggie held
before her was. Her initial denial, the State argues, can be
construed as an attempt to cover up the current possessory
crime. However, this argument fails for the evidence is simply
not relevant to a genuine issue in dispute.
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 initial response to the
15
question “what is this” was “I don’t know.” Defendant’s
knowledge that the contents of the baggie dangled in front of
her 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.
Undoubtedly, the officer asked defendant the question “what
is this” twice, hopeful that she would acknowledge the baggie as
hers, but she simply responded to his second inquiry that it
appeared to be cocaine. That second response 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, her knowledge
that the substance appeared to be cocaine did not provide
evidence of consciousness of guilt of present possession. To
the extent that the trial court admitted her responses as
evidence of consciousness of guilt, we disagree. Clearly, a
suspect’s words or actions “subsequent to the commission of the
crime which indicate consciousness of guilt, or are inconsistent
with innocence or tend to establish intent are relevant and
admissible.” State v. Rechtschaffer, 70 N.J. 395, 413 (1976).
However, her initial denial of knowledge of the baggie’s
contents was not a crime. Furthermore, her recognition of the
substance in the baggie as cocaine, which had not yet been
attributed to her by Patrolman Buss, did not evidence her
commission of a crime. At a minimum, this evidence was
16
suggestive of defendant’s propensity to use or possess drugs.
That use was impermissible pursuant to N.J.R.E. 404(b).
Moreover, defendant’s admissions, in response to the
patrolman’s further questioning of prior use of crack cocaine,
alcohol, and Vicodin similarly are not relevant to the instant
possession charge. The State argues that defendant’s admissions
of prior use are relevant because they prove that she knew –-
because she would know as a prior user -- the substance was
crack cocaine. However, defendant did not dispute that the
substance field tested as crack cocaine. She claimed that her
statements to Patrolman Buss should have been suppressed and
that there was no proper purpose for their admission. She did
not testify in this matter or present any witnesses in defense.
The burden was on the State to prove all elements of the
possessory offense for which defendant was charged. In that
context, because the fact that the substance in the baggie was
crack cocaine was not in dispute, her statements of prior use
should not have been admitted for the proffered purpose. Nor
can they be admitted to further bootstrap an argument of
consciousness of guilt.
The third prong requires that “[t]he evidence of the other
crime must be clear and convincing.” Cofield, supra, 127 N.J.
at 338. Here, there is no evidence, other than Patrolman Buss’
17
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.” Ibid. The State has not demonstrated that
defendant’s statements were admissible for a purpose permitted
by N.J.R.E. 404(b). 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 that defendant admitted to
prior crack cocaine use and to using crack cocaine, alcohol, and
Vicodin two days prior to the incident at the restaurant 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. That is precisely the sort of reason for which
N.J.R.E. 404(b) evidence cannot be introduced.
We conclude, therefore, that the evidentiary use of these
statements by defendant transgressed the prohibition against the
use of other crime, wrongs, and bad acts evidence in N.J.R.E.
404(b).
IV.
18
Defendant also raises several arguments about the
voluntariness of incriminatory statements introduced into
evidence at trial.
The admissibility of a suspect’s statements to police is
governed by familiar principles. In order to safeguard a
suspect’s Fifth Amendment right against self-incrimination, the
United States Supreme Court in Miranda v. Arizona, established
specific warnings that must be given to the suspect. Miranda,
supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-
07. Miranda “warnings must be given before a suspect’s
statement made during custodial interrogation [may] be admitted
in evidence.” Dickerson v. United States, 530 U.S. 428, 431-32,
120 S. Ct. 2326, 2329, 147 L. Ed. 2d 405, 412 (2000). A
“custodial interrogation” is defined as “questioning initiated
by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.” Miranda, supra, 384 U.S. at 444, 86 S. Ct. at
1612, 16 L. Ed. 2d at 706. Failure to give Miranda warnings to
a suspect prior to custodial interrogation “creates a
presumption of compulsion,” warranting suppression of any
statements made. Oregon v. Elstad, 470 U.S. 298, 307, 105 S.
Ct. 1285, 1292, 84 L. Ed. 2d 222, 231 (1985).
Whether or not a person is in custody is an objective
determination, based on “how a reasonable [person] in the
19
suspect’s position would have understood his situation.”
Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151,
82 L. Ed. 2d 317, 336 (1984); see also State v. P.Z., 152 N.J.
86, 103 (1997) (explaining determination of custody is “based on
the objective circumstances”). Moreover, “‘custody in the
Miranda sense does not necessitate a formal arrest . . .’” P.Z.,
supra, 152 N.J. at 103 (quoting State v. Lutz, 165 N.J. Super.
278, 285 (App. Div. 1979)). “The critical determinant of
custody is whether there has been a significant deprivation of
the suspect's freedom of action based on the objective
circumstances, including the time and place of the
interrogation, the status of the interrogator, the status of the
suspect, and other such factors.” Ibid. Thus, a suspect may be
in custody in various environments, including one’s own home or
a public place, and with or without physical restraints. Ibid.
In light of our holding that impermissible N.J.R.E. 404(b)
evidence tainted this trial, we decline to address defendant’s
factual and legal arguments about 1) the timing of her Miranda
warnings; and 2) whether, as defendant asserts, she was
subjected to custodial interrogation throughout her questioning
by Patrolman Buss and uttered incriminating statements both
prior to receiving those warnings and afterward, implicating
concerns about question-first, warn-later situations. Suffice
it to say that this Court has spoken on the analysis to be
20
applied for the latter issue raised by defendant. See State v.
O’Neill, 193 N.J. 148, 180 (2007) (establishing standards
regarding admissibility of successive inculpatory statements in
“question-first, warn-later” instances). 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. We cannot rely on the Jackson-Denno hearing
judge’s factual findings and analysis in light of the
significant factual difference in the patrolman’s testimony at
the pre-trial hearing and at trial, and the important role that
those facts, as understood by the Jackson-Denno hearing judge,
played in that court’s scrutiny of the custodial interrogation
issue. It necessarily affects the validity of the
constitutional analysis that led to the denial of the motion to
suppress defendant’s statements. Moreover, the present status
of the record makes review of the custodial nature of the place
and manner of interrogation not possible on this appellate
record.
V.
Therefore, we hold 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. Defendant’s conviction is vacated and the matter is
21
remanded to the Law Division for new trial proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.
22
SUPREME COURT OF NEW JERSEY
NO. A-85 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGELINA NICOLE CARLUCCI,
Defendant-Appellant.
DECIDED March 13, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST VACATE AND
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1