State of New Jersey v. Amie Marroccelli

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5386-13T3

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 30, 2017
v. APPELLATE DIVISION

AMIE MARROCCELLI a/k/a
ANNIE M. MARROCCELLI,

Defendant-Appellant.
________________________________

Telephonically Argued January 11, 2017 –
Decided January 30, 2017

Before Judges Sabatino, Nugent and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment
No. 11-06-0380.

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Kirsch, of counsel and on the
brief).

Merrill M. Mezzacappa, Assistant Prosecutor,
argued the cause for respondent (Michael H.
Robertson, Somerset County Prosecutor,
attorney; James L. McConnell, Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.
 On June 16, 2011, a Somerset County grand jury returned an

indictment charging defendant Amie Marroccelli with one count of

second-degree vehicular homicide, N.J.S.A. 2C:11-5(b)(1).1 Prior

to trial, the State made a number of pretrial applications,

including a motion to preclude defendant from introducing

evidence that it was her habit to never drive in the left lane

of a three-lane highway or to exceed the speed limit. On July

3, 2013, the trial judge granted the State's motion and excluded

this evidence.

In March 2014, the matter proceeded to trial before a jury.

During the trial, the trial judge granted the State's motion to

preclude defendant from introducing a note in evidence that she

alleged her husband had written in which he stated that he was

driving the car at the time of the accident that caused the

victim's death.

At the conclusion of the trial, the jury found defendant

guilty of second-degree vehicular homicide. The trial judge

denied defendant's motion for a new trial. On May 23, 2014, the

judge sentenced defendant to seven years in prison, subject to

an 85% period of parole ineligibility pursuant to the No Early

1
At the time of her arrest, the police cited defendant for
driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, and making
an unsafe lane change, N.J.S.A. 39:4-88(b).

2 A-5386-13T3
Release Act, N.J.S.A. 2C:43-7.2, and three years of parole

supervision upon her release.2 This appeal followed.3

On appeal, defendant raises the following contentions:

POINT I

WHEN DEFENDANT PROFFERED A HANDWRITTEN
CONFESSION NOTE FROM HER HUSBAND, WHICH
CLAIMED THAT HE, NOT SHE, WAS THE DRIVER OF
THE CAR ON THE NIGHT IN QUESTION, THE JUDGE
IMPROPERLY EXCLUDED THAT NOTE FROM EVIDENCE.

POINT II

THE JUDGE IMPROPERLY EXCLUDED EVIDENCE THAT
DEFENDANT PROFFERED OF HER DRIVING HABITS ON
THE ERRONEOUS THEORY THAT, WHILE IT WAS
COMPETENT EVIDENCE OF HABIT, IT WAS
INADMISSIBLE BECAUSE DEFENDANT WAS DENYING
BEING THE DRIVER OF THE CAR ON THE NIGHT IN
QUESTION.

POINT III

IN BOTH CROSS-EXAMINATION OF THE DEFENDANT
AND IN HER SUMMATION, THE ASSISTANT
PROSECUTOR IMPROPERLY USED EVIDENCE OF
SPECIFIC INSTANCES OF CONDUCT TO PROVE A
CHARACTER TRAIT OF THE DEFENDANT, IN DIRECT
VIOLATION OF N.J.R.E. 608(a) AND 405(a).
(NOT RAISED BELOW).

2
At sentencing, the judge also found defendant guilty of both
motor vehicle violations and imposed appropriate fines and
penalties.
3
In September 2014, the trial court granted defendant's
application for bail pending appeal and she was released from
prison after serving approximately 100 days of her sentence.

3 A-5386-13T3
 POINT IV

EVEN IF ANY ONE OF THE COMPLAINED-OF ERRORS
WOULD BE INSUFFICIENT TO WARRANT REVERSAL,
THE CUMULATIVE EFFECT OF THOSE ERRORS WAS TO
DENY DEFENDANT DUE PROCESS AND A FAIR TRIAL.

After reviewing the record in light of the contentions

advanced on appeal, we reverse and remand for further

proceedings.

I.

The primary issue at trial was whether defendant was

driving her car on I-78 in Somerset County on the night it

struck a vehicle driven by the victim. The State presented the

following proofs during the trial.

On October 10, 2010, defendant and her husband, Jason

Bradbury, were in a white BMW registered to defendant. The

couple were returning home after attending the wedding of

defendant's employer's child. At approximately 8:00 p.m., the

only witness to the incident ("the witness") was driving a truck

in the center lane of the three-lane highway. The victim's car

was also in the center lane, about six car lengths ahead of the

witness. Although it was dark, the weather was clear,

visibility was good, and traffic was moderately heavy.

The witness testified that a "white vehicle" driving in the

left lane passed the witness's car and came alongside the

victim's car. That vehicle was later identified as defendant's

4 A-5386-13T3
BMW. After about two seconds, the BMW suddenly swerved into the

center lane, and the passenger side of the BMW struck the

driver's side of the victim's car, forcing both vehicles off the

road. The witness stated that the BMW did not use a turn signal

when it changed lanes and was travelling approximately seventy-

five to eighty miles per hour when it passed him.

The witness did not stay at the scene, but contacted the

police three days later and gave a sworn statement concerning

his observations. At trial, the witness testified that he did

not see whether a man or woman was driving the BMW. However, he

admitted that he referred to the BMW's driver as "that guy" a

number of times in his statement to the police. He also told

the police that the accident was "bizarre," as if "something"

happened to cause the BMW to suddenly change lanes, "like a

child jerking the steering wheel, or . . . somebody dropped a

cigarette in their lap."

The victim's car crashed in a "clump of trees" just before

an entrance ramp. The BMW came to a rest down a hill in a

"wooded marshy-type area" on the other side of the entrance

ramp.

At approximately 8:06 p.m., Trooper John Mucksavage arrived

at the accident scene. The trooper found that the victim was

unconscious and called for an ambulance, which arrived at about

5 A-5386-13T3
8:14 p.m. Shortly thereafter, a helicopter was summoned to

airlift the victim to a hospital. The parties stipulated that

the victim died the next day of a brain hemorrhage caused by a

blunt-impact injury.

About ten minutes after arriving at the scene, Trooper

Mucksavage noticed defendant and Bradbury standing together on

the side of the road. Because he was assisting the victim, the

trooper did not talk to the couple for another ten minutes.

At that point, defendant told the trooper that she had been

driving the BMW in the right lane of I-78 at the time of the

crash. According to defendant, Bradbury was sleeping in the

passenger seat. Defendant told the trooper that she thought she

saw a deer that "looked like a dog" in the road ahead of her and

swerved to the right to avoid it and ended up down the hill in a

ditch. Defendant stated she did not remember seeing the

victim's car or hitting it.

Trooper Mucksavage examined both vehicles and concluded

that the damage to the passenger side of the BMW matched the

damage to the driver's side of the victim's car. Therefore, the

trooper was skeptical of defendant's account of the accident.

However, defendant continued to insist she was driving in the

right lane at the time of the accident and did not remember

striking the victim's car.

6 A-5386-13T3
 During his conversation with defendant, Trooper Mucksavage

observed that defendant smelled of alcohol, her eyelids were

droopy, and she had bloodshot eyes. The trooper also testified

that defendant's mood changed from sad to happy and from calm to

excited during the time he spent with her. Defendant told the

trooper that she had been at a wedding reception and drank "a

glass of wine and half of an apple martini." The trooper also

testified that Bradbury was "obviously intoxicated,"

"disheveled," had "trouble standing at times," and smelled of

alcohol.

Defendant was barefoot when Trooper Mucksavage spoke to

her. Defendant told the trooper that she never wore heels when

driving and had changed to flip-flops. However, she stated she

lost the flip-flops while walking in the marshy area at the

crash site. The trooper testified that a pair of high heels

were found on the passenger side floor of the BMW. Defendant

told the trooper that the driver's side door would not open

after the accident and she had to exit the BMW through the

passenger door.

Around 10:00 p.m., the trooper administered field sobriety

tests to defendant and she failed them. The trooper then

arrested defendant and took her to a hospital for a blood test.

Defendant's blood alcohol content ("BAC") was measured at .087%,

7 A-5386-13T3
which was over the legal limit. At trial, a State expert used

extrapolation analysis and estimated that defendant's BAC at the

time of the crash was 0.14%.

The State's accident-reconstruction expert opined that the

BMW moved from the left lane into the center lane, and struck

the victim's car, causing both vehicles to go "off the roadway

to the right and then down the grass embankment" after which the

victim's car hit a cluster of trees. Most of the damage to the

victim's car was caused by it striking the trees, rather than

from the BMW striking it. The expert also found a pair of

women's high-heeled shoes on the passenger side floor of the

BMW. The expert determined that the driver's side seat of the

BMW was pushed forward toward the steering wheel so far that, at

6'1" tall – about the same height as Bradbury – the expert could

not get into the seat.

The State presented three other witnesses -- defendant's

employer, an insurance adjuster, and defendant's doctor -- who

stated that defendant told them she was driving at the time of

the accident and crashed when she swerved to avoid a deer. The

State also introduced a note defendant wrote to the victim's

mother after a court appearance. In the note, defendant thanked

the mother for giving her a "kind gaze" in court, and told her

8 A-5386-13T3
that "the depth of [defendant's] guilt was immeasurable" because

defendant "saw a deer" and "jolted the wheel."

After the State rested, defendant took the stand and told

the jury that all of her statements about driving the car were

part of a plan she and Bradbury concocted to falsely place the

blame on her for the accident.4

Defendant explained that she met Bradbury in September

2009, and that they were engaged in April 2010 and married two

months before the October 2010 car accident. This was

defendant's first marriage, at age thirty-seven. Bradbury had

custody of a child from a prior marriage.

Defendant stated that Bradbury drove the BMW to the wedding

on the night of the accident. At the wedding reception,

defendant stated she had a glass of wine and half an apple

martini. The couple left the reception at around 7:00 p.m.

Defendant testified that Bradbury was again driving the car. On

the way home, Bradbury stopped the car and, at his behest, the

couple had sex in the car for fifteen minutes before resuming

the drive home, again with Bradbury driving.

4
The trial judge conducted a pretrial conference immediately
prior to jury selection. During that conference, Bradbury
testified that he would invoke his Fifth Amendment right against
self-incrimination if he were called by the State to testify at
trial. After hearing this testimony, the judge rejected the
State's challenge to the validity of Bradbury's invocation of
the privilege.

9 A-5386-13T3
 Defendant stated that she was in the passenger seat,

staring straight ahead, when she saw "something come in front of

the car." Defendant let out a gasp and threw out her hands,

thinking it was a dog. Later, defendant stated that Bradbury

told her that she also grabbed him. Defendant said that the

next thing she knew, the car had gone off the road, and ended up

in an area full of "deep mud," bushes and trees.

Immediately after the BMW came to a rest, defendant

testified that Bradbury became aggressive and yelled at her that

it was her fault that the car left the road. Bradbury told

defendant that he already had one DWI conviction and could not

risk getting a second because he might lose custody of his child

to his ex-wife. Therefore, Bradbury began pressuring defendant

to claim that she was driving at the time of the accident.

Believing she was not over the legal limit, and feeling

responsible for the accident because Bradbury claimed she

grabbed him, defendant agreed with Bradbury's plan. At that

time, defendant stated that neither she nor Bradbury knew that

the BMW had struck another car or that anyone had been injured.

Defendant testified that after Bradbury called 911, she and

Bradbury switched positions in the car. Before moving to the

driver's seat, defendant took off her high-heel shoes to avoid

injuring Bradbury as she climbed over him. Defendant stated

10 A-5386-13T3
that when she was in the driver's seat, she adjusted the seat

forward, and moved the mirrors to make it look like she had been

driving. Because she never drove a car while wearing heels,

defendant next asked Bradbury to get her flip-flops out of the

trunk and to put her heels there. Although Bradbury got the

flip-flops, he neglected to put the heels in the trunk. As soon

as defendant climbed out of the passenger side door, she lost

the flip-flops in the mud.

When Trooper Mucksavage arrived at the scene, defendant did

most of the talking and consistently told him that she had been

driving. When the trooper asked what lane defendant was in when

she left the road, defendant replied that she was in the right

lane because "[t]hat's where I drive" and this was "an automatic

response." At that time, defendant stated she was still not

aware that another car had been involved in the accident or that

the victim's car had been struck on its driver's side.

According to defendant, at the hospital, and in her later

conversations with her doctor, the insurance adjuster, her

employer, and her parents, she continued to stick to the false

story she and Bradbury created about the accident. However,

defendant testified that after learning in March 2011 that she

was going to be charged for causing the victim's death, she

confronted Bradbury and told him that he needed "to tell the

11 A-5386-13T3
truth." Bradbury refused and continued to insist that the

accident was defendant's fault and that he was afraid he would

lose custody of his child if he came forward. Defendant stated

that the couple's relationship deteriorated and they later

separated.

Thereafter, defendant told her family and friends that she

was not driving at the time of the accident. At trial,

defendant's father and two of defendant's friends testified that

defendant had the habit of never driving when she had consumed

alcohol, and that her character was one of cautiousness and non-

recklessness.

II.

In Point I of her brief, defendant argues that the trial

judge mistakenly exercised his discretion by barring her from

introducing a handwritten note in which Bradbury confessed to

driving the car. Prior to granting the State's motion to

exclude the note, the judge conducted a Rule 104 hearing from

which we derive the following facts.

Defendant stated that on March 29, 2011, she received a

telephone call informing her she was going to be charged and

that she needed to turn herself in. She did so the next day.

At that point, defendant told Bradbury, "[w]e need to tell the

12 A-5386-13T3
truth." Defendant asked Bradbury to "come forward," but he

refused.

In the days that followed, the couple continued to argue

and, according to defendant, things came to a head during the

early morning hours of April 5, 2011. Defendant described the

argument as follows:

I said he needs to come in with me. We
need to tell the truth. Even if he believes
that I was the cause, that's okay. Just say
I was the cause, but you have to tell the
truth that you're the driver.

He won't do it. He said he won't lose
his [child]. He can't do that for me, but
he'll write me a letter just to prove to me
that, to calm me down basically. He wanted
to give me something to calm me down.

Defendant testified that she watched as Bradbury wrote out

a note by hand and signed it in her presence. The note stated:

To Whom it May Concern;

I, Jason Bradbury, was driving the car at
the time of the accident on 10-10-10.
[Defendant] was not driving.

Jason Bradbury

2:32 AM 4-5-11

Defendant stated that she told Bradbury that the note "wasn't

good enough" because he needed to come forward and personally

tell the truth to the authorities.

13 A-5386-13T3
 Defendant then went to the upstairs bedroom and locked the

door. The next morning, defendant woke up and found that

Bradbury had taped the note to the bedroom door. The note she

presented at the Rule 104 hearing still had tape on it.

Defendant testified that she did not consider giving

Bradbury's note to the authorities because she "didn't think

[the note] was good enough" in light of the fact that Bradbury

was still refusing to personally go to the police or the

prosecutor. Defendant stated that she held onto the note for "a

long time." In July 2012, defendant told her attorney that she

had the note and the attorney advised the prosecutor. Thus, the

State had a copy of the note approximately eighteen months prior

to the trial. Defendant stated that after meeting with her

attorney, she put the original note in an envelope and gave it

to a friend to hold for her.

In a brief oral decision following the Rule 104 hearing,

the trial judge found that the note, if authentic, was a

statement that subjected Bradbury to criminal liability and,

therefore, fell under the hearsay exception for statements

against interest set forth in N.J.R.E. 803(c)(25). However, the

judge stated that defendant was the only witness at the Rule 104

hearing concerning the authenticity of the note and, therefore,

he did "not have the benefit of handwriting analysis, known

14 A-5386-13T3
exemplars of handwriting, signatures of . . . Bradbury from

known reliable sources, or any other means or method by which to

support the assertion that the note is authentic[] and,

therefore, trustworthy."

The judge also found that defendant never gave the note to

the police or the prosecutor's office "because it wasn't good

enough." The judge further observed that the note

was, under any application of law or logic,
better than the circumstance in which she
found herself charged with a second[-]degree
crime, and it is, and to say that it was not
produced for who knows how many months after
April [2011 until July 2012] . . . to say
that it wasn't produced, it wasn't made
known in an effort at least to begin the
exculpation process is a statement which is
simply not worthy of belief.

In denying defendant's subsequent motion for a new trial on

the ground that the note had incorrectly been excluded from

evidence, the trial judge reiterated that while the note was

"clearly exculpatory [of defendant] and clearly exposes Jason

Bradbury to penal consequence, that does not obviate the

necessity for the court to find that the statement is

sufficiently authenticated so as to be reliable as being the

product of [Bradbury's] hand." Once again, the judge observed

that defendant did not present any handwriting experts to

support her claim that Bradbury wrote the note. He also found

that based on defendant's prior statements to the police and

15 A-5386-13T3
others that she was the driver, he did not believe defendant's

claim that Bradbury wrote the note. Therefore, the judge denied

defendant's motion for a new trial.

On appeal, defendant contends that although the trial judge

correctly found that the note subjected Bradbury to criminal

liability and therefore fell under the hearsay exception set

forth in N.J.R.E. 803(c)(25), he incorrectly ruled that

defendant did not properly authenticate the note. Defendant

argues that because she observed Bradbury as he wrote the note

and was also familiar with his handwriting, this was sufficient

to establish a prima facie showing of the note's authenticity.

Thus, defendant asserts that the note should have been submitted

to the jury for a closer examination and an ultimate

determination of its authenticity. By excluding the note from

evidence, defendant contends that the judge "usurped the

credibility-determination role of the jury." We agree with

defendant's contentions.

Established precedents guide our task on appeal. We review

a trial court's evidentiary rulings for abuse of discretion.

State v. Nantambu, 221 N.J. 390, 402 (2015). Consequently,

these rulings will not be overturned unless a manifest injustice

has occurred. State v. J.D., 211 N.J. 344, 354 (2012).

However, "[t]o the extent [a] defendant's argument . . . raises

16 A-5386-13T3
a question of law, . . . our review is de novo and plenary."

Ibid.

We begin by stating our agreement with the trial judge that

the information in the note "tended to subject [Bradbury] to

. . . criminal liability," and was therefore admissible as a

statement against interest under N.J.R.E. 803(c)(25). "The

statement-against-interest exception [to the hearsay rule] is

based on the theory that, by human nature, individuals will

neither assert, concede, nor admit to facts that would affect

them unfavorably. Consequently, statements that so disserve the

declarant are deemed inherently trustworthy and reliable."

State v. Williams, 169 N.J. 349, 358-59 (2001) (quoting State v.

White, 158 N.J. 230, 238 (1999)). Thus, "[t]he law of evidence

recognizes that a statement in which a party confesses to having

committed a crime subjects the declarant to criminal liability,

and therefore constitutes a statement against interest." State

v. Cope, 224 N.J. 530, 554 (2016) (quoting White, supra, 158

N.J. at 238).

The ultimate issue of criminal liability in this case

hinged on whether defendant or Bradbury was driving the BMW at

the time it struck the victim's car. By stating in the note

that he "was driving the car at the time of the accident on"

October 10, 2010 and that defendant "was not driving[,]" and

17 A-5386-13T3
assuming the authenticity of the note, Bradbury clearly placed

himself in jeopardy of a criminal charge, including vehicular

homicide.5 Thus, Bradbury's statement in the note was not

inadmissible hearsay under N.J.R.E. 803(c)(25).

Of course, a writing must be properly authenticated before

it is admitted into evidence. State v. Hannah, ___ N.J. Super.

___ (App. Div. 2016) (slip op. at 12). However, the burden of

establishing a prima facie showing of authenticity "was not

designed to be onerous." Id. at 13 (quoting State v. Hockett,

443 N.J. Super. 605, 613 (App. Div.), certif. denied, ___ N.J.

___ (2016)). N.J.R.E. 901 states that "[t]he requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter is what its proponent claims." Thus,

"[a]uthentication 'does not require absolute certainty or

conclusive proof[.]'" Hannah, supra, (slip op. at 12-13)

(quoting State v. Tormasi, 443 N.J. Super. 145, 155 (App. Div.

2015)). Instead, "only 'a prima facie showing of authenticity'

is required." Ibid. (quoting Tormasi, supra, 443 N.J. Super. at

155).

5
Although Bradbury's BAC was not tested, Trooper Mucksavage
testified that Bradbury was "obviously intoxicated."

18 A-5386-13T3
 Here, the trial judge concluded that defendant failed to

demonstrate the authenticity of the note, in part, because

defendant did not produce a handwriting expert, "known exemplars

of [Bradbury's] handwriting, signatures of . . . Bradbury from

known reliable sources, or any other means or method by which to

support the assertion that the note is authentic[] and,

therefore, trustworthy." However, it is well-established that a

witness who has "seen the person write, or by correspondence and

other business transactions with him obtained personal knowledge

of the party's handwriting," may authenticate a document written

by that person. Storm v. Hansen, 41 N.J. Super. 249, 254 (App.

Div. 1956) (citing Wilson v. Clear, 85 N.J.L. 474, 475-76 (Sup.

Ct. 1914)).

Thus, contrary to the trial judge's finding, defendant was

not required to submit corroborating evidence or a handwriting

expert to support her direct testimony that she observed

Bradbury write and sign the note in her presence. Defendant,

who was married to Bradbury, was also familiar with his

handwriting. This testimony was sufficient to satisfy

defendant's burden of making a prima facie showing of

authenticity under N.J.R.E. 901. Therefore, we conclude that

the judge incorrectly excluded the note based upon his belief

19 A-5386-13T3
that additional corroborating evidence was necessary to

authenticate the document.

We also believe that the trial judge mistakenly barred the

note from evidence based on his finding that defendant's claim

that Bradbury authored it was not credible under all the

circumstances of this case. The judge concluded that

defendant's testimony "attributing the source of [the] note and

its authorship to . . . Bradbury [was] not worthy of belief"

because defendant did not immediately turn over the note to her

attorney, the police, or the prosecutor's office after Bradbury

allegedly wrote it. The judge also stated that defendant had an

"interest in exculpating herself from the State Prison term she

most certainly would expect if she was convicted." In addition,

the judge found that defendant's account concerning the note was

inconsistent with the State's proofs, which included defendant's

prior admissions to the police, her doctor, insurance agent,

employer, and parents that she was driving the BMW at the time

of the crash.

However, as we have stated on a number of occasions,

"'[c]ourts are inclined to assess their role in authentication

as that of a screening process[,]' and 'will admit as genuine

writings which have been proved prima facie genuine . . .

leaving to the jury more intense review of the documents.'"

20 A-5386-13T3
Hannah, supra, (slip op. at 13) (second alteration in original)

(emphasis added) (quoting Konop v. Rosen, 425 N.J. Super. 391,

411 (App. Div. 2012)). The judge departed from this well-

established rule in this case. In doing so, he made credibility

determinations concerning the ultimate fact at issue in the

trial, a determination that we have consistently held is within

the jury's, rather than the judge's, province.

Our decision in Konop is instructive on this point. In

that case, the plaintiff "suffered a perforated colon during a

colonoscopy performed by" the defendant. Supra, 425 N.J. Super.

at 397. In the medical malpractice case that followed, the

plaintiff sought to introduce a consultation report prepared by

a resident who examined the plaintiff in the emergency room.

Id. at 397-98. The resident included a notation in the report

stating that during the colonoscopy, the plaintiff was "moving

too much" and that the defendant called for a surgical consult

while "performing" the procedure. Id. at 400.

At his deposition, the resident could not recall speaking

to the defendant in the emergency room, and stated that he often

obtained the information for his reports from his supervisors.

Id. at 399. The defendant denied making the statement. Id. at

400. The plaintiff's expert exclusively relied upon the

notation in the resident's report to support his conclusion that

21 A-5386-13T3
the defendant deviated from accepted medical standards in her

treatment of the plaintiff. Id. at 397.

The trial judge granted the defendant's motion to exclude

the notation from the consultation report because the plaintiff

did not conclusively establish to the judge's satisfaction that

the defendant made the statement. Id. at 401. Therefore, the

plaintiff's expert's opinion no longer had any support in the

record and the judge granted the defendant's motion for summary

judgment. Ibid.

On appeal, we found that the question of whether the

defendant made the statement contained in the report was a

factual question for the jury, rather than the trial judge. Id.

at 421-22.6 In his comprehensive decision, our colleague Judge

Carmen Messano conducted a thorough review of the case law from

which he distilled specific procedures that a trial court should

follow in determining whether a disputed statement in a document

should be submitted to the jury for its review or excluded based

upon the judge's personal determination of its trustworthiness.

In Konop, Judge Messano concluded that where there is a

"condition precedent to admissibility," such as the authenticity

of a document, "the judicial function is limited. The judge

6
We determined that if the jury found that the defendant made
the statement, it would be admissible as a statement of a party-
opponent under N.J.R.E. 803(b)(1). Id. at 407.

22 A-5386-13T3
does not determine whether the proponent has incontrovertibly

proven the 'condition.' The exercise of judicial discretion

requires only a determination that there exists sufficient

evidence for the jury to decide the condition in favor of the

proponent of the evidence." Id. at 413. Although the

authenticity of the consultation report was not at issue in

Konop, the single issue in dispute was similar to that involved

in the present case. In Konop, the sole question was whether

the defendant made the statement that was included in the

report. Id. at 409. Here, the ultimate issue in dispute was

whether Bradbury wrote the note admitting he was driving at the

time of the accident.

Judge Messano concluded that "when the 'condition' for

admissibility is purely a factual determination as to whether

the hearsay statement was made . . . , the issue should be

submitted to the jury to determine whether the condition was

fulfilled." Id. at 420. Adherence to this rule is especially

important "when the disputed fact 'is so closely tied to an

ultimate issue in the case.'" Ibid. (quoting Forbis v.

McGinty, 292 F. Supp. 2d 160, 162 n.2 (D.Me. 2003)). The judge

further stated that

in deciding whether to submit the issue to
the jury, the exercise of judicial
discretion under N.J.R.E. 104(a) is limited
to whether the proponent adduced sufficient

23 A-5386-13T3
 evidence, direct and circumstantial, to
permit a reasonable jury to conclude by a
preponderance of the evidence that the fact
was proven. If so, the evidence should be
admitted, and the jury should be instructed
that it only may consider the evidence if it
concludes the contested fact is true.

[Ibid.]

Although Konop was a civil case, Judge Messano noted that

this standard was particularly appropriate
in a criminal case because "to deny the jury
the possibility of making a particular fact-
finding simply because the court would
determine the fact otherwise might in
criminal cases deprive a defendant of his
Sixth Amendment right to have his case tried
to a jury."

[Id. at 417 (quoting United States. v.
Barletta, 652 F.2d 218, 219 (1st Cir.
1981)).]

Accordingly, we have subsequently applied the Konop rule in

criminal cases involving the authentication of documents and

other tangible evidence.

For example, in Hockett, a trial judge excluded several

photographs from evidence because he did not believe that the

authenticating witness was credible. Supra, 443 N.J. Super. at

613. We reversed and remanded for a new trial. Id. at 609.

Citing Konop, we held that

even if there was some legitimate reason for
questioning the witness's veracity about
what the photographs depicted, the better
course was for the judge, in his gatekeeping
role, to acknowledge the photographs

24 A-5386-13T3
 appeared to be what they purported to be and
leave for the factfinder a "more intense
review" of the photographs and the
credibility of the authenticating witness.

[Id. at 614-15 (citing Konop, supra, 425
N.J. Super. at 411.]

Similarly, in Tormasi, the trial judge at a post-conviction

relief hearing precluded the defendant from introducing an

"affidavit" purportedly written by the defendant's father in

which the father confessed to committing the murder for which

the defendant was convicted. Supra, 443 N.J. Super. at 150.

The judge found that the document was inadmissible because it

"'was not hand-written, not signed, and there is no way of

authenticating it[.]'" Ibid. However, the defendant had

presented the testimony of his siblings, who both claimed that

they spoke to their father about the affidavit in the past and

he acknowledged writing it. Id. at 154-55.

As in the cases discussed above, we noted that the

defendant had presented sufficient evidence to support a finding

that the document was authentic. Id. at 155-56. Once that

burden was met, we held that

the judge was obliged to acknowledge the
statement appeared to be what it purported
to be and leave for the factfinder "more
intense review of the document[]," . . .
and a weighing of the testimony of the

25 A-5386-13T3
 percipient witnesses.[7] Because the judge
did not apply this authentication method, we
are compelled to remand.

[Id. at 156 (alteration in original)
(quoting Konop, supra, 425 N.J. Super. at
411).]

Under those circumstances, which involved a bench trial, we

found that the judge should have admitted the document into

evidence and then, in his dual role as the factfinder,

considered whether the document and all other evidence warranted

the relief requested by the party. Id. at 157.

Applying these principles in this case, we conclude that

defendant presented sufficient evidence, through her testimony

that she saw Bradbury write the note and was familiar with his

handwriting, to meet her burden of establishing a prima facie

case of authenticity with regard to the note. Therefore, the

trial judge should have admitted the note into evidence and

7
We acknowledge that there is a brief statement in Tormasi
indicating that "a judge in his [or her] gatekeeping role . . .
may to some degree, consider the credibility of the
authenticating witnesses." Id. at 156. Although the court
cited Konop, supra, 425 N.J. Super. at 411, to buttress this
statement, we fail to discern support for this proposition in
Judge Messano's opinion in Konop which, as discussed above,
plainly held that questions of credibility are best left to the
jury, particularly in criminal cases. However, we further note
that in Tormasi, the trial judge conducted a bench trial and,
therefore, was required to make rulings as to both the
authenticity of evidence and the credibility of the witnesses.
This, we believe, explains the Tormasi court's reference to
credibility determinations quoted above.

26 A-5386-13T3
given the jury the opportunity to subject it and defendant's

testimony to "more intense review."

We reject the State's argument that the trial judge's

mistake in displacing the jury's role in determining defendant's

credibility was "harmless error" under the circumstances of this

case. As our Supreme Court recently reiterated in State v.

J.R., ___ N.J. ___ (2017),

An error will not lead to reversal unless it
is "clearly capable of producing an unjust
result." R. 2:10-2. Thus, even though an
alleged error was brought to the trial
judge's attention, it will not be grounds
for reversal if it was "harmless error."
State v. Macon, 57 N.J. 325, 337-38 (1971).

An evidentiary error will not be found
"harmless" if there is a reasonable doubt as
to whether the error contributed to the
verdict. State v. McLaughlin, 205 N.J. 185,
211-12 (2011) (citing Macon, supra, 57 N.J.
at 338). The prospect that the error gave
rise to an unjust result "must be real [and]
sufficient to raise a reasonable doubt as to
whether [it] led the jury to a verdict it
otherwise might not have reached." State v.
Lazo, 209 N.J. 9, 26 (2012) (second
alteration in original) (quoting [State v.]
R.B., . . . 183 N.J. [308,] 330 [2005]). As
the Court noted in [State v.] W.B., . . .
"[c]onvictions after a fair trial, based on
strong evidence proving guilt beyond a
reasonable doubt, should not be reversed
because of a technical or evidentiary error
that cannot have truly prejudiced the
defendant or affected the end result." 205
N.J. [588,] 614 [(2011)].

[(slip op. at 29).]

27 A-5386-13T3
 A defendant "has the right to introduce evidence that

someone else committed the crime for the purpose of raising

doubt about his [or her] own guilt." Cope, supra, 224 N.J. at

552 (citing State v. Koedatich (Koedatich II), 112 N.J. 225,

297, 299 (1988)). "A confession by another is of such probative

importance in a criminal trial that its exclusion . . . has been

held a denial of the defendant's due-process right to a fair

trial." Id. at 554 (quoting State v. Jamison, 64 N.J. 363, 378

(1974)). Thus, "[a] court cannot bar the admissibility of

third-party guilt evidence that 'has a tendency to endanger

reasonable doubt with respect to an essential feature of the

State's case.'" Id. at 552 (quoting State v. Fortin (Fortin

II), 178 N.J. 540, 591 (2004)).

Here, the trial court's erroneous evidential ruling kept

from the jury the only tangible, corroborative evidence

defendant had concerning her claim that Bradbury was driving the

car on the evening of the accident and, therefore, was

responsible for causing the victim's death. The exclusion of

the note clearly harmed defendant's defense because if the note

were found to be authentic by the jury, it would have strongly

supported defendant's testimony that she initially lied to the

police and others in order to keep her husband from being

arrested for another DWI.

28 A-5386-13T3
 While the State correctly points out that defendant

consistently claimed she was driving the BMW prior to giving the

note to her attorney and the prosecution eighteen months before

the trial, the State's evidence was likewise totally dependent

on whether the jury found defendant's earlier admissions to be

credible. Because the note clearly went to the ultimate issue

of whether defendant or Bradbury was driving the BMW, we

conclude that the judge's error in excluding this evidence was

"clearly capable of producing an unjust result." Ibid.

Therefore, we reverse defendant's conviction and remand for

further proceedings.

III.

Although we have determined that this matter must be

remanded for a new trial or other proceeding, we briefly address

defendant's remaining contentions on appeal. In Point II of her

brief, defendant asserts that the trial judge mistakenly

exercised his discretion by preventing her from presenting

evidence concerning her driving habits to support her claim that

she was not driving the BMW at the time of the accident. Again,

we agree.

N.J.R.E. 406(a) states: "Evidence, whether corroborated or

not, of habit or routine practice is admissible to prove that on

a specific occasion a person . . . acted in conformity with the

29 A-5386-13T3
habit or routine practice." Before trial, defendant proffered

three witnesses -- defendant's father and two of her friends --

to demonstrate three aspects of her driving habits: (1) that

she never drives in the left lane of a three-lane highway; (2)

does not drive in excess of the speed limit; and (3) never

drives after drinking alcohol. The State objected and filed a

pre-trial motion to bar defendant's witnesses from providing

this testimony.

In granting the State's motion to preclude the admission of

testimony concerning defendant's habits of never driving in the

left lane of a three-lane highway or over the speed limit, the

judge focused on the "acted in conformity with" language of

N.J.R.E. 406(a). Because defendant now denied that she was the

driver of the BMW, the judge concluded that the proffered

testimony would not demonstrate that she "acted in conformity

with" her driving habits on the night of the accident. In

further explaining his reasoning, the judge stated:

It seems to this [c]ourt that one
cannot act in conformity with a habit if one
is not engaged in the activity to which the
habit applies: that is to say, that it
cannot be said, at least as to [defendant's]
habit of not driving in the left lane on a
three-lane highway and never exceeding the
speed limit, that she acted in conformity
with those habits on October 10, 2010, if
she wasn't engaged in the conduct to which
the habits apply; that is, she was not
driving the automobile.

30 A-5386-13T3
Somewhat contradictorily, however, the judge permitted defendant

to present evidence at trial concerning her habit of never

driving if she has been drinking.

We are satisfied that the trial judge took too restrictive

a view of N.J.R.E. 406(a) by reading it to mean that habit

evidence cannot be used to "prove a negative," i.e., that

defendant was not driving. The purpose of habit evidence is to

show the "person's regular practice of responding to a

particular kind of situation with a specific type of conduct."

State v. Kately, 270 N.J. Super. 356, 362 (App. Div. 1994). In

this case, defendant sought to establish her regular practice

that if she is in a car that is speeding in the left lane of a

three-lane highway, she is never the driver because she never

drives in that lane and never exceeds the speed limit. Thus,

defendant's proffer was clearly within the intendment of the

rule and the judge erred by barring the jury from considering

this testimony.

In Point III of her brief, defendant argues for the first

time on appeal that the assistant prosecutor improperly referred

to "evidence of specific instances of conduct" by defendant that

were "not the subject of a conviction" to attempt "to prove a

character trait of . . . defendant" in violation of N.J.R.E.

608(a) and N.J.R.E. 405(a). Specifically, the prosecutor

31 A-5386-13T3
asserted that because defendant demonstrated that she could be

"assertive" on other occasions, this disproved her contention

that she meekly acceded to Bradbury's request that she take the

blame for the accident. Defendant did not object when the

prosecutor introduced this subject during her cross-examination

of defendant and during her closing summation to the jury.

We generally "decline to consider questions or issues not

properly presented to the trial court . . . unless the questions

so raised on appeal go to the jurisdiction of the trial court or

concern matters of great public interest." State v. Robinson,

200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indemn. Ins. Co.,

62 N.J. 229, 234 (1973). Because we are remanding this matter,

defendant will have the opportunity to raise an appropriate,

timely objection should this issue arise in a new trial or other

proceeding. Therefore, it is not necessary to consider

defendant's argument at this time. Ibid.

Finally, in Point IV, defendant argues that if any of the

trial judge's errors are insufficient by themselves to warrant a

reversal, the cumulative effect of those errors casts sufficient

doubt on the verdict to require reversal. As discussed above,

we have determined that defendant's conviction must be reversed

and the matter remanded for further proceedings, including a new

trial if necessary. Therefore, defendant's contention is moot.

32 A-5386-13T3
Reversed and remanded. We do not retain jurisdiction.

33 A-5386-13T3