STATE OF NEW JERSEY VS. KRYSTAL G. JAMES (17-06-1632, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5841-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

KRYSTAL G. JAMES,

Defendant-Appellant.
_______________________

Argued November 18, 2020 – Decided February 5, 2021

Before Judges Whipple, Rose, and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-06-1632.

Sean P. Fulton, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Sean P. Fulton, on the briefs).

Linda A. Shashoua, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Jill S. Mayer, Acting Camden County
Prosecutor, attorney; Linda A. Shashoua, of counsel
and on the brief).

PER CURIAM
 Tried to a jury, defendant Krystal G. James was convicted of robbery,

burglary, and conspiracy offenses for her involvement in a home invasion in

Lindenwold. Following appropriate mergers, defendant was sentenced to an

aggregate six-year term of imprisonment; she must serve eighty-five percent of

that term under the No Early Release Act, N.J.S.A. 2C:43-7.2. During the multi-

day jury trial, the State presented the testimony of seven witnesses, including

co-defendant, Hector Millan, and the victim, Antonio Banks; and introduced in

evidence numerous exhibits, including defendant's video-recorded statement.

Defendant now appeals, raising belated challenges to the admission in

evidence of her custodial statement to law enforcement. More particularly,

defendant raises the following points for our consideration:

POINT ONE

THE DETECTIVE'S MULTIPLE REFERENCES TO
DEFENDANT'S PRIOR BAD ACTS DURING HER
CUSTODIAL INTERROGATION SHOULD HAVE
BEEN EXCLUDED UNDER RULE 404(b).
(Not raised below)

POINT TWO

EVEN IF THE OTHER BAD ACTS EVIDENCE WAS
ADMISSIBLE – IT WAS NOT – THE COURT WAS
REQUIRED TO GIVE A LIMITING INSTRUCTION
BOTH WHEN THE EVIDENCE WAS FIRST

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 PRESENTED AND DURING THE FINAL JURY
CHARGE. (Not raised below)

POINT THREE

DEFENDANT'S STATEMENT TO POLICE SHOULD
HAVE BEEN SUPPRESSED BECAUSE DETECTIVE
TOMASETTI HAD REASON TO BELIEVE
[DEFENDANT] LACKED CAPACITY TO WAIVE
HER CONSTITUTIONAL RIGHTS. ([Partially] raised
below)

We reject the contentions raised in points I and III. Although we agree,

in part, with defendant's assertions raised in point II, we conclude the error was

not "clearly capable of producing an unjust result." R. 2:10-2; see also R. 1:7-

5. We therefore affirm.

I.

In the early morning hours of March 27, 2017, local police were

dispatched to Banks's ground floor apartment, following a call from the victim's

twelve-year-old daughter reporting a burglary in progress. Upon their arrival,

officers saw Millan fleeing the apartment, wearing a mask. Millan ran directly

into an officer and was arrested. Other officers entered the apartment and saw

evidence of a struggle: the apartment was in disarray; Banks was bleeding from

both his mouth and a puncture wound to his back. Police recovered a

screwdriver used by Millan during the attack.

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 Defendant, who had been staying temporarily with Banks and his

daughter, also was present in the apartment when the officers arrived. Banks

and defendant told police they could not identify the masked man who entered

the apartment and attacked Banks, but discerned by his "voice" that he was

Hispanic.

Defendant stated she had stepped outside Banks's apartment just prior to

the incident because she was anticipating the arrival of someone, whose name

she could not provide. While she was waiting, Banks saw a man smoking a

cigarette nearby. This man followed defendant into Banks's apartment,

brandished a screwdriver, and demanded money. Defendant said the perpetrator

was not the person she had been waiting for.

When police told defendant that a suspect had been arrested, she asked

whether the man had tattoos. Police answered affirmatively; defendant

exclaimed, "I knew it!" Upon further inquiry, defendant told police that just

prior to her stay with defendant, she had been living in an abandoned apartment

in the same complex "with an Hispanic guy [who] had tattoos on his neck and

arms." Defendant claimed she did not know that man's name, but became more

talkative and disclosed a potential motive for the robbery. Defendant told police

Banks sold "liquor, cigarettes, [and] condoms" to other residents of the complex.

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Police were suspicious of defendant's evolving account of the incident, but did

not arrest her at that time.

Meanwhile, after he was arrested, Millan waived his Miranda1 rights and

implicated himself and defendant in the robbery. Millan said defendant told him

Banks kept liquor, cigarettes, and money in his apartment, and their location

therein. Millan and defendant agreed that defendant would open the door to the

apartment, and Millan would enter and rob Banks. Millan acknowledged he

knew Banks was home at the time and force would be necessary to commit the

theft.

One week after the incident, members of the Lindenwold Borough Police

Department brought defendant to headquarters for questioning. After waiving

her Miranda rights, defendant signed and dated the form, and agreed to give a

statement to Detective Joseph Tomasetti. At the outset of the interview,

Tomasetti indicated defendant knew him because the detective had "talked to

[her] before."

Defendant told Tomasetti she had been waiting for someone to arrive at

Banks's apartment to deliver crack cocaine at the time of the incident. She

claimed the reason she went outside and spoke with Millan was to "make su re"

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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he was not the person who was supposed to sell her drugs. Defendant denied

she knew Millan, but acknowledged she had his cellphone number and texted

him the day before the incident.

After Tomasetti revealed he had searched defendant's cellphone and

discovered she called Millan ten minutes before the incident, she became more

forthcoming. According to defendant, Millan "said he was in need of money."

She stated the door to Banks's apartment "was locked at first. And then . . . [she]

went out there to check, because [she] was waiting on somebody to drop some

[sic] off, so [she] left it unlocked." Defendant also admitted she took Banks's

safe, containing "a few dollars," when she ultimately left his apartment.

During the course of this exchange with defendant, Tomasetti

acknowledged he did not believe she "meant [for Banks] to get . . . hurt."

Instead, Tomasetti twice said: "You have a problem." The detective also

remarked that defendant "need[ed] help" and she should "try to get clean." At

the conclusion of her statement, defendant was arrested.

Thereafter, defendant and Millan were charged in a Camden County

indictment with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count one);

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1(a)(1) (count two); second-degree burglary, N.J.S.A. 2C:18-2(a)(1)

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(count three); and second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-

2 and N.J.S.A. 2C:18-2(a)(1) (count four). 2

During a break in jury selection, the trial judge conducted an N.J.R.E.

104(c) hearing on the State's motion to admit defendant's custodial statement.

Defendant raised two specific challenges to the admission of her statement,

contending she: (1) experienced physical discomfort during the interview due

to a "sore on her buttocks" that "obviously would have affected the credibility

[sic] of the statement"; and (2) told Tomasetti "she had done too many drugs,"

which "indicated she was under the influence, and affected the voluntariness of

her statement, and her ability to waive the right to remain silent."

After considering the testimony of Tomasetti and reviewing defendant's

nearly twenty-seven-minute video-recorded statement in its entirety, the trial

judge determined defendant made a "knowing, voluntary and intelligent waiver

of her Miranda rights." The judge found defendant "appeared to understand the

[Miranda] questions"; "[s]he responded to the questions"; and "[h]er answers

were clear."

2
Millan also was charged separately in three additional counts with aggravated
assault and weapons offenses for stabbing Banks with the screwdriver.

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 Addressing defendant's argument that her will was overborne because she

was physically uncomfortable and under the influence of drugs, the judge found

defendant's demeanor established otherwise. According to the trial judge,

defendant's physical discomfort did not prohibit her from providing "an ongoing,

knowing, voluntary and intelligent waiver of her Miranda rights" and

participating in a "detailed conversation" about the present matter and other

matters in which she was involved. After defendant stated, "I don't remember.

Oh my God. I did too many drugs," the judge noted defendant "attempted to

mislead or dodge some of the early interview questions" until Tomasetti

confronted her with inculpatory evidence in this case.

The trial judge therefore rejected defendant's arguments, ultimately

concluding defendant exhibited "a level of lucid responsiveness and clarity"

suggesting defendant's "senses were not impaired at the time that she gave this

statement, and her will was not overborne." The judge therefore admitted

defendant's statement, subject to redactions that had been agreed upon by the

parties.3

3
After oral argument before us, defendant's appellate counsel provided a disc
containing defendant's redacted video-recorded statement, which is about
sixteen minutes in duration. The disc is mislabeled, indicating it is an
"unredacted" copy of the statement. We nonetheless glean from the record that

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 That same day, the judge heard argument on defendant's motion to exclude

evidence of defendant's alleged theft of the safe, as other crime evidence under

N.J.R.E. 404(b). In an oral decision, the judge denied defendant's motion,

finding the alleged theft was intrinsic to the robbery charge.4

Millan testified at trial pursuant to a cooperating plea agreement with the

prosecution. Millan's trial testimony was consistent with his post -arrest

statement and corroborated Banks's testimony. Banks further stated that during

the melee, he asked defendant to grab his bat from the other room and strike

Millan. Defendant did so, but with insufficient force to break up the melee.

Defendant did not testify or offer any evidence on her behalf.

After deliberating about half a day, the jury returned a verdict of guilty as

charged on count three; and a guilty verdict on the lesser-included offenses of

second-degree robbery on count one, and conspiracy to commit theft by

unlawful taking, a disorderly persons offense, on counts two and four.

Following defendant's sentencing, she filed this appeal.

the redactions primarily pertained to defendant's statements about another
robbery.
4
On this appeal, defendant does not challenge the denial of her N.J.R.E. 404(b)
motion.
A-5841-17T4
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 II.

Initially, we consider defendant's assertions raised in point III, which were

partially raised below. On appeal, defendant refines her challenges to the

voluntariness of her statement, now arguing Tomasetti knew she was a drug

addict from their prior dealings, but "failed to ask a single question about

whether [she] was under the influence or otherwise had the capacity to waive

her rights." Because these contentions were not raised before the trial judge, we

view defendant's arguments through the prism of the plain error standard. R.

1:7-5; R. 2:10-2.

Appellate courts "review the trial court's factual findings as to defendant's

Miranda waiver in accordance with a deferential standard." State v. Tillery, 238

N.J. 293, 314 (2019). After a testimonial hearing, we "defer to the trial court's

factual findings because the trial court has the 'opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing court cannot

enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (citations omitted).

Our deference extends to a trial court's determinations based on the review

of a video, like here, because of the court's "experience and expertise in fulfilling

the role of factfinder." Id. at 380. We must uphold the court's findings when

they "are supported by sufficient credible evidence in the record." Id. at 374

A-5841-17T4
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(citation omitted). We therefore "should not disturb a trial court's factual

findings unless those findings are 'so clearly mistaken that the interests of justice

demand intervention and correction.'" Id. at 374 (citation omitted). The trial

court's interpretation of the law and "the consequences that flow from

established facts are not entitled to any special deference." State v. Gamble, 218

N.J. 412, 425 (2014).

Although a defendant's statement is not excluded as hearsay in a criminal

trial against her, "the admissibility of a defendant's statement which is offered

against the defendant is subject to Rule 104(c)." N.J.R.E. 803(b). "It is the State

that must prove, beyond a reasonable doubt, that a defendant's statement was

voluntary and, if made while in custody, that the defendant knowingly,

voluntarily, and intelligently waived the rights afforded him [or her] und er

Miranda." State v. Gore, 205 N.J. 363, 382 (2011). In determining whether a

Miranda waiver was made knowingly, intelligently, and voluntarily, "courts

traditionally assess the totality of circumstances surrounding the arrest and

interrogation," including the "suspect's previous encounters with the law." State

v. Presha, 163 N.J. 304, 313 (2000) (citation omitted); see also State v.

Nyhammer, 197 N.J. 383, 402 (2009).

A-5841-17T4
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 As noted by the trial judge, the video recording of the statement

demonstrated defendant's responses to her Miranda warnings – and Tomasetti's

questioning throughout the less-than-thirty-minute statement – were "lucid"; her

"senses were not impaired"; and "her will was not overborne." Having

considered the judge's findings, which are supported by substantial credible

evidence in the record, see S.S., 229 N.J. at 381, we conclude defendant's newly-

minted contentions lack sufficient merit to warrant discussion in this written

opinion. R. 2:11-3(e)(2). We add only the following brief remarks.

Defendant has provided no authority to support her argument that

Tomasetti mistakenly failed to inquire whether she was impaired or lacked the

capacity to waive her rights. The credible evidence in the record supports the

trial court's findings that defendant's "senses were not impaired at the time that

she gave this statement." Moreover, more than sixty years ago, our Supreme

Court recognized "[a] confession made by a person while under the influence of

drugs is not per se involuntary." State v. Wade, 40 N.J. 27, 35 (1963); see also

State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994) (recognizing the

mere fact of intoxication is insufficient to render a confession involuntary and

inadmissible, where the defendant "was capable of communicating and . . .

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responsive in answering questions"). We therefore discern no error, let alo ne

plain error in the admission of defendant's statement. R. 1:7-5; R. 2:10-2.

III.

For the first time on appeal, defendant contends those portions of her

statement to Tomasetti that reference her previous dealings with law

enforcement and alleged drug addiction should have been excluded as prior bad

acts evidence under N.J.R.E. 404(b). In the alternative, defendant contends the

judge should have sua sponte issued a limiting instruction when defendant's

statement was admitted in evidence and during the final jury charge.

Ordinarily, the admissibility of evidence during trial rests within "the

sound discretion of the trial court," State v. Willis, 225 N.J. 85, 96 (2016), and

this court will review a trial court's evidentiary ruling for abuse of discretion,

State v. Green, 236 N.J. 71, 81 (2018). "However, that deferential approach is

inappropriate when the trial court failed to properly apply Rule 404(b) to the

evidence at trial." Ibid. Nonetheless, "if the party appealing did not make its

objection to admission known to the trial court, the reviewing court will review

for plain error, only reversing if the error is 'clearly capable of producing an

unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).

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 When a prosecutor attempts to present other-crimes evidence against a

defendant, a rigorous four-factor test of admissibility must be satisfied under the

criteria of State v. Cofield, 127 N.J. 328, 338 (1992) (establishing a four-

pronged test for evaluating the admissibility of evidence under Rule 404(b)).

Generally, evidence of "other crimes, wrongs, or acts" is not admissible, unless

used for "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." N.J.R.E. 404(b). Thus, the rule is one of "excl usion

rather than a rule of inclusion." State v. J.M., 225 N.J. 146, 161 (2016) (quoting

Willis, 225 N.J. at 100).

Accordingly, courts must exercise caution when deciding whether to

admit such evidence because it "has a unique tendency to prejudice a ju ry."

Willis, 225 N.J. at 97 (internal quotation marks omitted). Indeed, such evidence

"has the effect of suggesting to a jury that a defendant has a propensity to commit

crimes, and therefore, that it is 'more probable that he committed the crime for

which he [or she] is on trial.'" J.M., 225 N.J. at 158 (quoting Willis, 225 N.J. at

97).

But as our Supreme Court more recently explained in State v. Weaver,

219 N.J. 131, 150-51 (2014), a "more relaxed" admissibility standard governs

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so-called "reverse 404(b)" proof of a third-party's prior bad acts. Trial courts

need only determine that "the probative value of the evidence is not substantially

outweighed by any of the Rule 403 factors, which are 'undue prejudice,

confusion of issues, or misleading the jury,' and 'undue delay, waste of time, or

needless presentation of cumulative evidence.'" Id. at 151; see State v. Cook,

179 N.J. 533, 567 (2004).

In the present matter, defendant's alleged drug addiction and drug use, and

prior contact with Tomasetti were introduced in evidence through defendant's

custodial statement during the detective's direct examination. The State did not

otherwise seek to utilize defendant's "prior bad acts" in its case-in-chief.

Accordingly, a limiting instruction under N.J.R.E. 404(b) was not warranted.

See Model Jury Charges (Criminal), "Proof of Other Crimes, Wrongs, or Acts

(N.J.R.E. 404(b))" (rev. Sept. 12, 2016).

Moreover, nearly half of defendant's custodial statement was redacted on

consent of the parties, thereby removing irrelevant references to another

robbery. Notably, defendant moved pretrial to exclude evidence of the safe

under N.J.R.E. 404(b), but posed no objection – under that evidentiary rule or

any other basis – to Tomasetti's fleeting remarks that he "spoke with [defendant]

A-5841-17T4
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before" and she needed help for her "problem." Instead, defendant cited her

alleged drug use in an apparent effort to minimize her culpability.

For example, as defendant acknowledges on appeal: "Tomasetti

confirmed during cross-examination that he believed the source of [defendant's]

problems was her drug addiction." In that regard, defense counsel elicited the

following testimony from Tomasetti at trial:

DEFENSE COUNSEL: You indicated that when you
were speaking to [defendant] . . . that you believed she
needed to get help, right?

TOMASETTI: Yes.

DEFENSE COUNSEL: And that was because it was
your understanding that she had a drug addiction, right?

TOMASETTI: Yes. Yes.

DEFENSE COUNSEL: That she had been using drugs
for some time, is that correct?

DETECTIVE: Yes ma'am.

DEFENSE COUNSEL: And . . . you expressed this to
[defendant], that that was the source of her problems,
right?

DETECTIVE: Yes.

Further, defense counsel attempted to elicit similar responses from Banks:

DEFENSE COUNSEL: I'm going to ask you a question
. . . that's maybe a little awkward, but you knew that

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 [defendant] was using drugs at th[e] time [of the
incident], correct?

BANKS: Correct.

DEFENSE COUNSEL: Okay. And you knew that she
had had an ongoing problem with drugs perhaps, right?

BANKS: Correct?

DEFENSE COUNSEL: And you understood that she
was having someone come to the house to bring her
drugs; is that what you recall?

BANKS: No, I didn't know that's what it was about. It
was money.

And during summation, defense counsel argued: "Now, we heard . . . that

[defendant] was experiencing some issues at that time. We know that she was

using drugs at the time." Counsel reminded the jury that defendant was visibly

upset when she spoke with Tomasetti, "very cooperative" during his

questioning, and did not "set up Antonio Banks to get hurt." Notably, defendant

neither raised before the trial court – nor this court – that her comment, "I did

too many drugs" should have been redacted from her statement.

Defendant now argues "those prior bad acts were entirely irrelevant to the

case and served no purpose other than to improperly show [defendant]'s claimed

disposition towards criminal activity." She belatedly argues the judge failed to

"sanitize the evidence" and should have issued a limiting instruction explaining

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the evidence "could not be used to show that [defendant] was generally a bad

person and deserving of punishment."

Initially, we agree that the trial judge – although not requested by the

parties to do so – should have issued a brief cautionary instruction when

defendant's statement was admitted in evidence and during the final charge.

That instruction simply should have informed the jury that it could not consider

defendant's alleged drug use or contact with Tomasetti as evidence of guilt in

this case. We are not convinced, however, that the omission of a curative

instruction constitutes plain error that compels reversal under the circumstances

of this case. R. 2:10-2.

Rather, as evidenced by defense counsel's strategic cross-examination and

comments during summation, defendant's "prior bad acts" were utilized to

portray defendant as a sympathetic, drug-addicted individual, who was

incapable of injuring her friend. Defendant acquiesced in the admission of those

references, while redacting copious portions of her statement that pertained to

another crime. In that context, defendant "invited" the error of which she now

complains. See State v. Santamaria, 236 N.J. 390, 409 (2019) (holding a

defendant "cannot strategically withhold its objection to risky or unsavory

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evidence at trial only to raise the issue on appeal when the tactic does not pan

out").

In any event, the "more relaxed" admissibility standard applies here,

where defendant utilized her alleged prior bad acts in her defense. Weaver, 219

N.J. at 150-51. See also Model Jury Charges (Criminal), "Proof of Other

Crimes, Wrongs, or Acts — Defensive Use (N.J.R.E. 404(b))," at 1 n.3

(approved May 22, 2000) (recognizing the "lower standard of admissibility –

simple relevance – is required for defensive use of the evidence than for its use

against the defendant"). Clearly, the probative value of the fleeting remarks

referenced in defendant's custodial statement were "not substantially

outweighed by any of the Rule 403 factors," such as, "undue prejudice,

confusion of issues, or misleading the jury," and "undue delay, waste of time, or

needless presentation of cumulative evidence." Weaver, 219 N.J. at 151

We conclude defendant's alleged prior bad acts were "simpl[y] relevant"

to her defense. Accordingly, we discern no error, let alone plain error in the

admission of her custodial statement that contained those references.

Affirmed.

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