On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-1962D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 24, 2010
Before Judges Cuff, C.L. Miniman and Waugh.
Defendant Paula Cicchinelli is serving an aggregate term of fifteen years in prison, more than nine of which must be served without parole, for vehicular homicide and leaving the scene of a fatal motor vehicle accident. Defendant struck and killed a pedestrian walking along Route 9 in Linwood, Atlantic County. She was returning home after dinner with friends. At trial, the primary issues were whether defendant was intoxicated at the time she struck the pedestrian and whether she acted recklessly.
Defendant argues she was denied a fair trial by the State's persistent references to her invocation of her right to remain silent, her right to consult an attorney, and her refusal to consent to searches of her person and her vehicle. She also complains that the State improperly elicited testimony concerning a statement she made to police officers after having twice expressed her wish to remain silent. Finally, defendant asserts she was unduly prejudiced by testimony about her use of prescription drugs and there was insufficient evidence to support the jury's finding of intoxication.
Around 9:00 p.m. on November 16, 2004, eighteen-year-old Nicholas Marvel was struck and killed by an automobile driven by defendant. Defendant did not stop at the scene to render aid but continued driving to her house about a mile away. Police officers apprehended her at her home about three hours later.
Douglas Woodward and his cousin, Andrew Johnson, testified they were walking with Marvel along Route 9 around 9:00 p.m. Marvel was on his way to work at a local supermarket. They were walking three abreast on the shoulder, with Marvel closest to the roadway, Woodward in the middle, and Johnson on the unpaved, grassy area. There were few cars on the road.
After passing the Linwood 7-11 store, Woodward turned to Marvel, who was slightly behind him, to suggest that they get off the road and cut across a field. When Woodward turned, he saw a car coming onto the shoulder and thought it was "somebody messing with [them]." He warned Marvel to "watch out," and Marvel responded by asking "What?" At that instant, the car struck Marvel and threw him into the air. He hit a highway sign and slid to the ground. Woodward testified that the incident happened in a matter of seconds, "like the snap of the fingers." The car that struck Marvel continued on Route 9 without stopping, slowing, or accelerating. An autopsy performed on Marvel concluded that the cause of death was "head injury with extensive comminuted skull fractures," incurred as the result of the collision with defendant's car.
Defendant is a widow, who at the time of this incident had been employed as a legal secretary for over twenty-five years. On November 16, 2004, she worked a full day at her office in Pleasantville before leaving to meet several friends for dinner. Customarily, each woman brought wine to share; defendant stopped at a liquor store to buy a bottle of Merlot. She then drove to Ginza, a Japanese hibachi restaurant in Egg Harbor Township. She arrived around 6:30 p.m. and gave her bottle of wine to a server.
Seven women met for dinner at Ginza that evening. The women met once a month or so to have dinner and share wine. Shirley Rice had known defendant for many years through their membership in a local garden club; she invited defendant to join the dinner group after the death of defendant's husband. As of November 2004, defendant had been dining with Rice and her friends for about a year.
Each of the women who attended the dinner testified at trial. Their accounts of what transpired that evening were remarkably consistent. Five of the women--Rice, Jamie Afflerbach, Roseann Amato, Maryanne D'Elia, and Donna Oechslin--brought bottles of white wine. Defendant brought a bottle of red wine. A seventh woman did not bring wine or drink any wine that evening.
Servers at the restaurant took the wine bottles from the women, put them on a cart, and poured wine throughout the meal. Only defendant drank red wine that evening. Before she left the restaurant, defendant poured the last of the red wine from her bottle into her glass. Some of the women also finished their bottles; some left unfinished bottles at the restaurant. The servers confirmed the women's testimony. One server described the women as loud and perhaps drunk.
Three of the women left to return to Ocean City about 8:30 p.m. Three women and defendant, who lived in Somers Point, stayed longer and left around 8:50 p.m. The women hugged and said goodbye in the parking lot. No one noticed defendant exhibiting any visible sign of impairment; in fact, all testified she "seemed fine."
Defendant testified she felt fine when she left the restaurant. As she drove on Route 9 in Linwood, she saw three boys on the side of the road bumping into each other. She continued to drive straight, believing she was not in their path, and then heard a thump. The area was dark and she could not see anything. When defendant drove under a street lamp, she saw her cracked windshield. She looked in her rear view mirror, but everything was totally black. At that point, she believed that the boys had thrown stones at her car. She did not stop or return to the scene because it was dark, she was alone, and she was afraid. She explained: "I thought they threw something at my car. I thought that if I approached them and said, why did you throw something at my car, I was afraid that they would have just attacked me or something." Her house was only about a mile ahead and she just wanted to get home.
Defendant arrived at her house and parked her car on the street in front of her house. She was upset when she saw that the crack in her windshield had spread. She went inside, changed clothes, and poured a glass of wine to relax. Shortly thereafter, Rice phoned to see if defendant had arrived home all right.
Defendant told Rice that some kids were horsing around on the side of the road and they threw rocks at her car. She said her windshield was cracked and she would have to call Allstate or the police in the morning. A series of telephone calls ensued between defendant and Rice, defendant and Jamie Afflerbach and Rice and Afflerbach. At one point Afflerbach told defendant there was no point in calling the police because they would not help her get her windshield fixed. Later, Afflerbach told defendant to take a flashlight and look closely at the car. Defendant did so and noticed damage to the car's right front marker light in addition to the cracked windshield. Defendant phoned Rice and told her that the windshield was "shattered."
Rice and Afflerbach characterized their conversations with defendant as "really strange." After conferring several times, they agreed to drive to defendant's house to look at the car. They arrived at defendant's house about 11:00 p.m. All the lights were out and it appeared defendant had gone to bed. Rice and Afflerbach examined defendant's car, and noticed the damage to the windshield and the right headlight.
At that point, Afflerbach decided to drive to the location where the incident supposedly occurred. As she and Rice approached the 7-11 on Route 9, they saw police emergency vehicles blocking the roadway. Rice asked a fireman about the activity, and learned there had been a fatal hit-and-run accident. Afflerbach began to scream and cry; Rice knew that something bad had happened.
Afflerbach phoned her husband, who, in turn, phoned his friend Edward Fifield, a New Jersey State Trooper. Fifield drove to the scene, identified himself to Linwood police officers, and provided them with defendant's first name, telephone number and approximate address.
Sergeant Jason Weber of the Linwood Police Department arrived at the scene within minutes of the accident. He called for emergency medical assistance and later contacted the fatal accident investigation unit of the Atlantic County Prosecutor's Office. Based on information supplied to him by Trooper Fifield, Weber went to defendant's home in Somers Point where he found a vehicle that generally matched the description provided by one of the victim's friends. He noticed that the car had front end damage consistent with a pedestrian impact.
Weber knocked on defendant's door; defendant's daughter opened the door and invited him to enter. Defendant appeared nervous and concerned, but showed no signs of intoxication. She told Weber she owned the vehicle parked outside and had driven it that night. She said that some kids on Route 9 had thrown rocks at her car as she was driving home around 9:00 p.m. Weber asked her to accompany him to the police station. As he was driving her to the station, Weber detected the odor of alcohol on her breath.
Defendant arrived at the police station around midnight and was asked to sit in the patrol room. Shortly thereafter, she was questioned by Detective John Hamilton and Sergeant Keith Fane. Hamilton testified that defendant appeared somewhat indifferent and that he could detect the odor of alcohol on her breath. Fane testified that defendant appeared confused; he also detected the odor of alcohol. The officers advised defendant of her Miranda*fn1 rights. When they asked for permission to search her vehicle, she responded, "Why?" Fane asked defendant if she was under the influence of drugs or alcohol.
She replied that she was taking Altace for blood pressure, Lexapro for depression, and Cenestin for hormone replacement and she was "unaware" if she was under the influence of alcohol. At that point defendant invoked her right to an attorney and the questioning stopped.
Around 2:25 a.m., Sergeant James Olson was instructed to administer a breathalyzer test. Olson observed that defendant's speech was slow, the movement of her hands was slow, and her demeanor was indifferent, cooperative, and calm. He also detected the odor of alcohol on her breath. Olson advised defendant of her constitutional rights and also of her rights with regard to the breathalyzer test. Defendant refused to tell him when she consumed alcohol and how much she drank. Olson administered the breathalyzer test twice, once at 3:14 a.m. and once at 3:22 a.m. Both tests indicated a blood alcohol concentration of .05 percent, well below the statutory limit of .08 percent. N.J.S.A. 39:4-50(a).
Shortly after Olson finished the breathalyzer tests, Lieutenant Barry Wythe entered the room and informed defendant that the victim had died. Olson testified that defendant responded, "You mean I killed him, can I have a drink of water?" Olson recalled that defendant spoke these words without emotion; Wythe stated that she was "nonchalant." Defendant's daughter, however, who was present in the room at the time, recalled that her mother exclaimed "Oh, my God!" and was shaking.
Wythe told defendant about the results of the breathalyzer test and asked her to consent to a blood test. He explained that the police did not need her consent and that if she refused they would get a search warrant. Defendant did not immediately consent to the test, but rather asked her daughter to call a lawyer for advice. As a result of defendant's hesitation, Fane prepared an application for a search warrant and presented it to a municipal judge. Defendant was transported to the hospital and the police received permission to draw her blood shortly after 5:00 a.m. The results of the blood test showed a blood alcohol concentration of less than .015 percent.
On the morning of November 17, 2004, Fane prepared an application for a warrant to search defendant's automobile. This warrant was approved by a Superior Court judge and the ...