NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1199-10T2 A-2942-10T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION
ANGELIQUE STUBBS a/k/a ANGELIQUE November 7, 2013 HERNANDEZ, APPELLATE DIVISION Defendants-Appellants. __________________________________
v.
JULES L. STUBBS a/k/a PEPE,
Defendants-Appellants. __________________________________
Telephonically argued February 7, 2013 (A- 1199-10) and Argued February 5, 2013 (A- 2942-10) - Decided August 15, 2013
Before Judges Lihotz, Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-07-0618.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant Angelique Stubbs (A- 1199-10) (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the briefs). G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent State of New Jersey (A-1199-10) (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant Jules L. Stubbs (A-2942-10) (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief).
Teresa A. Blair, Deputy Attorney General, argued the cause for respondent State of New Jersey (A-2942-10) (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Blair, of counsel and on the brief).
Appellant Jules Stubbs filed a pro se supplemental brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendants, Angelique and Jules Stubbs,1 husband and wife,
separately appeal from their convictions, after a jury trial, of
fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3);
second-degree possession of marijuana with intent to distribute,
N.J.S.A. 2C:35-5a(1) and -5b(10)(b); and third-degree possession
of marijuana with intent to distribute it within 1000 feet of a
school, N.J.S.A. 2C:35-7. Angelique received an aggregate
sentence of seven years, with no period of parole ineligibility.
1 We refer to defendants by their first names, or as "defendants" collectively. We mean no disrespect by this informality.
2 A-1199-10T2 Jules received an aggregate term of ten years, with a five-year
period of parole ineligibility.
We consolidate their back-to-back appeals for the purposes
of this opinion. Each defendant separately raises numerous issues
in challenging their convictions, but they both challenge the
court's denial of a motion to suppress the fruits of a search of
their home; and the court's denial of a motion for a mistrial
based on extraneous contacts with jurors. Jules also challenges
his sentence as excessive.
We affirm as to Jules. We remand for a hearing as to the
admissibility of a currency seizure form that Angelique signed.
The State argued Angelique's signature represented a claim she
owned a substantial amount of cash that officers seized, which
the State argued was connected to drugs. If the State does not
prove that the document was properly admitted as an adoptive
admission, as we discuss below, then the document shall be
suppressed, the conviction reversed, and a new trial ordered.
In all other respects, Angelique's conviction is affirmed.
I.
We summarize the trial evidence, and discuss the facts in
greater detail in our discussion of the legal issues.
On January 8, 2007, three individuals, one of them armed,
invaded defendants' home sometime after 8:00 p.m. Present were
3 A-1199-10T2 Angelique and her three children — daughters who were six and
seven, and a son who was eleven. Angelique had recently
returned home from work as a registered nurse at a hospital.
Jules had left the home after Angelique arrived.
Angelique was first confronted by one of the invaders as
she lay on her bed, watching television with her youngest
daughter. The man asked for Daniel. Angelique responded that
no one named Daniel lived at the home. The man closed the
bedroom door. Angelique dialed 911 on her cordless phone, but
the call was cut off because the battery died.
The same man, later identified as Joseph Houchens, returned
to the room with a shotgun, grabbed Angelique firmly by the arm,
and told her to come with him. Angelique told her daughter to
wait in the room. Her son was in the bathroom, and her middle
child was still in the kitchen, crying.
The man with the gun demanded to know where the drugs and
money were located. Angelique told them she did not know about
any money or drugs. Houchens grabbed Angelique by her face.
She said that he told her that she better think of her kids, and
stop lying. He repeatedly told her that she was making him
angry. Angelique continued to profess ignorance, as the
intruders forced her into the basement to continue the search.
The intruders also entered the garage, and searched a
4 A-1199-10T2 refrigerator. The three intruders were tossing personal items,
lifting seat cushions, and searching furniture and containers.
Eventually, Angelique was permitted to direct all three children
to remain in the bathroom.
Meanwhile, the Millville Police Department was able to
trace the dropped 911 call, and initially sent officer Jennifer
Gentile, who was familiar with the Stubbses. Houchens answered
the door, then immediately locked it. Gentile also detected
movement in the garage. She suspected foul play. She called
for backup, and Officer James Grone and Sgt. Ronald Harvey
arrived. It was shortly before 9:00 p.m. Gentile knocked at
the door again. Houchens had ordered Angelique to persuade the
police to leave. Angelique was crying and upset.
The man who initially answered the door returned with
Angelique. He had his arm around her. She appeared frightened
and shaken to Gentile. Angelique broke free of the man and
rushed to the police, telling them that there were other men in
the house, they had guns, and the children were inside. The man
at the door tried to flee, but was quickly restrained.
The three officers then entered with their guns drawn to
find and protect the children, and to arrest the intruders.
Officer Grone announced the police officers' presence. Three
5 A-1199-10T2 small children exited from a bathroom and were directed to leave
the house.
The officers then proceeded to search the house for the
intruders. In the course of searching a child's room closet for
an intruder, Grone uncovered a large bag of marijuana. During
the search of the master bedroom, one suspect was found hiding
in another closet. Another suspect, Thomas Wright, was found
hiding beside a bed. In a search incident to arrest, the police
seized $4831 from his person. Police also entered the garage,
where they found a shotgun in plain view.
After the house was secured and cleared of intruders,
police asked Angelique for consent to conduct a further search.
She refused, and police obtained a search warrant. Pursuant to
that search warrant, police removed the large bag of marijuana.
It consisted of 5.7 pounds of marijuana packaged in six gallon-
size plastic bags. Also seized were several items from the
master bedroom closet: small sandwich bags; scented dryer
sheets; empty gallon-size plastic bags; and a scale. The police
also seized $218 in a bedroom bureau drawer.
After Jules was summoned home by his wife, the police
Mirandized2 him and asked him about the seized drugs and money.
2 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6 A-1199-10T2 According to Harvey, while he questioned Jules in the master
bedroom, Jules nodded his head toward the children's bedroom and
said, "'That stuff's mine[,]" and "I'll take it." Jules
extended his arms out, as if to invite the officer to handcuff
him. On the other hand, Jules declined to specify what he meant
by the "stuff." Jules also denied any knowledge about the
seized currency. After Harvey ceased questioning Jules, Jules
volunteered that he did not want his wife in trouble and "he was
taking the blame for anything."
Angelique was taken to the police station for questioning.
In a recorded statement to Gentile, Angelique recounted the home
invasion. She stated that Houchens had removed a "handful" of
money from the bedroom closet, and then asked where the rest of
the money was. Angelique stated she had no knowledge of the
amount. After obtaining additional details of the home
invasion, Gentile administered Miranda warnings and questioned
Angelique about the marijuana and the large amount of cash found
in the home. She said she was unaware of any controlled
dangerous substance or large amounts of cash in the home.3
At some point, Det. Joseph Hoydis, the evidence officer,
asked Angelique to sign a form entitled "United States Currency
3 As we discuss below, a redacted version of Angelique's statement was introduced into evidence.
7 A-1199-10T2 Seizure Report" (CSR), which itemized the $4831 seized from
Wright. The form identified Angelique as "claimant." Jules
signed a similar form regarding the $218.
The State's witnesses were the three officers who first
responded to the home invasion — Gentile, Harvey and Grone; Det.
Sgt. Carl Heger, who searched the basement; Hoydis, the evidence
officer; and an expert in drug distribution, Det. Dominic
Patitucci. Gentile, Harvey, Heger, and Hoydis all testified
that they detected a strong odor of raw marijuana in the home.
Angelique testified that she detected an odor as well, but
insisted none was present prior to the invasion. The State
suggested that the marijuana may have been stored in the
refrigerator in the garage.
In its case against defendants, the State relied on Jules's
admissions; the presence in his home of almost six pounds of
marijuana packaged in six one-gallon bags, and a small bag of
marijuana; the presence of a scale to weigh marijuana, plastic
bags to package it, and scented dryer sheets to mask the scent
of it; and the large amount of cash found in the home, in
denominations that Patitucci stated were common in drug
transactions. Jules did not testify. Through cross-examination
and argument, he attempted to suggest that his admissions were
directed to the small amount of marijuana in the home. He also
8 A-1199-10T2 tried to suggest that the home invaders brought the cash and
marijuana with them.
In its case against Angelique, the State attempted to
discredit her claims of ignorance of the drugs in the home. The
State highlighted the implausibility of keeping kitchen items
like the plastic bags, and laundry items like the dryer sheets,
in the master bedroom closet, as opposed to the kitchen and the
basement laundry room. The State also relied substantially on
the CSR, referring to it in both its opening and closing
statement. The State argued Angelique acknowledged ownership of
the $4831 by signing the form. The State also demonstrated
inconsistencies between Angelique's statement to police and her
trial testimony.
Angelique testified in her own defense and also called two
character witnesses. Angelique recounted the events of the home
invasion. Although she did not deny she signed the CSR, she
stated she had no recollection of it, nor any explanation of its
significance, explaining that she was upset and signed it
because she believed her signature was required. In closing,
she argued, had she known of the presence of the drugs and large
amounts of money, she would have disclosed that to the intruders
rather than risk her and her children's safety. She also argued
that she did not understand the CSR form to constitute a claim
9 A-1199-10T2 of ownership of the $4831. Angelique also emphasized her
repeated denials of knowledge of the money in her formal
statement.
Before summations, the court denied a motion for acquittal,
which defendants made at the close of the State's case, but
asked that the court reserve decision until the close of all
evidence.
[At the direction of the court, the published version of
this opinion omits the discussion of the extraneous contacts
with jurors and the subsequent motion for a mistrial. See R.
1:36-3.]
The jury deliberated less than half a day and returned
guilty verdicts on all counts. Before her sentencing, and
twenty-three days after the verdict, Angelique sought a new
trial based on the court's failure to individually question each
juror about the extraneous contacts. The court denied the
motion. Angelique's sentence was based on a finding of
aggravating factor three, the risk that defendant would re-
offend; factor six, her prior criminal record and the
seriousness of the offenses of which she was convicted; and
factor nine, the need for deterrence, because it "applies in
every case of this type and is given moderate weight." See
N.J.S.A. 2C:44-1a(3), (6), (9). The court found no mitigating
10 A-1199-10T2 factors. See N.J.S.A. 2C:44-1b. Angelique was sentenced to
seven years on the possession of a CDS with intent to distribute
charge (count two); and four years concurrent for possession of
a CDS with intent to distribute within a school zone (count
three). The court declined to impose a parole ineligibility
period. The possession of a CDS charge (count one) was merged
with count two.
In his statement before sentencing, Jules apologized to the
court and his wife, and stated "[s]he had nothing at all to do
with" it; "she had no knowledge of anything that was going on."
He blamed lawyers for his failure to "take what I should have
tooken [sic]," and suggested Angelique's lawyers persuaded her
not to testify against him.
this opinion omits the discussion of Jules's sentence. See R.
II.
Both defendants challenge the search of the closet that led
to the seizure of the large amount of marijuana. Angelique
argues in Point I:
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
Jules argues in his Point II:
11 A-1199-10T2 THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE BAG OF MARIJUANA FOUND IN THE SMALLER BEDROOM WAS NOT DISCOVERED IN PLAIN VIEW.
Both defendants also argue the court erred in its response
to the report of the uniformed officer's comment to a jury.
Angelique argues in her Point V:
THE TRIAL COURT'S FAILURE TO PROPERLY INVESTIGATE THE EXPOSURE OF THE DELIBERATING JURORS TO EXTRANEOUS COMMENTS WHICH HAD THE CAPACITY TO TAINT THE JURY DENIED DEFENDANT A FAIR TRIAL.
Jules argues in his Point III:
THE TRIAL COURT FAILED TO PROPERLY INVESTIGATE PREJUDICIAL COMMENTS MADE BY A CORRECTIONS OFFICER TO JURORS AND FAILED TO GRANT DEFENDANT'S REQUEST FOR A MISTRIAL, THEREBY DENYING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND BY AN IMPARTIAL JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1 AND 10).
Angelique presents the following additional points:
POINT II – THE TRIAL COURT'S REDACTION OF DEFENDANT'S STATEMENT TO THE POLICE, WHICH SUPPRESSED DEFENDANT'S EXCULPATORY STATEMENTS IN ORDER TO PERMIT A JOINT TRIAL, DENIED DEFENDANT A FAIR TRIAL.
POINT III – THE STATE'S USE OF DEFENDANT'S SIGNATURE ON A UNIFORM CURRENCY SEIZURE REPORT FORM AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S OWNERSHIP OF SEIZED MONIES WAS PLAIN ERROR.
POINT IV – THE REPEATED REFERENCES TO THE APPROVAL OF A SEARCH WARRANT DENIED DEFENDANT A FAIR TRIAL.
12 A-1199-10T2 POINT VI – THE TRIAL COURT UTILIZED AN IMPROPER STANDARD IN CONSIDERING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
POINT VII – THE PROSECUTOR'S IMPROPER COMMENTS DURING HIS SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL.
POINT VIII – THE PROSECUTOR IMPROPERLY BOLSTERED HIS EXPERT'S TESTIMONY.
Jules presents the following additional points in support
of his appeal:
POINT I – BECAUSE THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SEVER WITHOUT CONSIDERING WHETHER THE MARITAL PRIVILEGE REQUIRED SEVERANCE, DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN HIS WIFE TESTIFIED ON HER OWN BEHALF, THEREBY MAINTAINING HER INNOCENCE AND INCRIMINATING HIM IN THE OFFENSES. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1 AND 10). (Partially Raised Below).
POINT IV – THE ADMISSION OF THE DEFENDANT'S ORAL STATEMENTS WITHOUT A LIMITING INSTRUCTION FOCUSING THE JURY'S ATTENTION AS TO THE AMBIGUOUS NATURE OF THOSE STATEMENTS, VIOLATED N.J.R.E. 403, WHICH SPECIFICALLY PROVIDES FOR THE EXCLUSION OF HIGHLY PREJUDICIAL EVIDENCE. (Not Raised Below).
POINT V – THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
PONT VI – THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.
13 A-1199-10T2 Jules raised two additional points in a supplemental pro se
brief:
POINT I – THE TRIAL COURT ERRED IN NOT SUPPRESSING DEFENDANT ORAL STATEMENT AT THE MIRANDA HEARING WHERE THE EVIDENCE SHOWED DEFENDANT WAIVER OF MIRAND RIGHT WAS NOT KNOWING AND INTELLIGENT WHERE THE ARRESTING OFFICER'S NEVER INFORMED DEFENDANT PRIOR TO GIVING THE MIRANDA WARNING OF HIS TRUE STATUS AS TO WHY HE WAS BEING DETAINED AND ARRESTED UPON ENTERING HIS WIFE HOUSE ON THE DATE THE HOME INVASION HAD OCCURRED THEREBY VIOLATING DEFENDANT CONSTITUTIONAL RIGHTS AGAINST SELF-INCRIMINATION AND A FAIR TRIAL U.S. CONST. AMEND. 5, 6 AND N.J. CONST. ART. I. PAR. 10. (Partially Raised Below).
PONT II – THE STATE FAILURE TO CORRECT SGT. HARVEY PERJURED TESTIMONY AT DEFENDANT TRIAL JURY VIOLATED DEFENDANT CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMEND. 6, 14 AND N.J. CONST. ART. I. PAR. 10. (Not Raised Below).
III.
this opinion omits Part III-A, addressing the motion to
suppress, and Part III-B, addressing the motion for a mistrial
based on extraneous contacts with jurors. See R. 1:36-3.]
C.
We next consider Angelique's argument that the court
committed plain error when it admitted the CSR. We agree that
the court was obliged to conduct a hearing pursuant to N.J.R.E.
104(c) to determine the report's admissibility. We view the
14 A-1199-10T2 failure to do so as plain error, given the State's reliance on
the CSR in persuading the jury of Angelique's guilt.
We review additional facts relevant to the CSR. As we
noted, Angelique did not recall signing the CSR, nor did she
recall any explanation of its meaning. The form does not
indicate precisely when it was signed, although it is dated
January 9, 2007. It was apparently signed at the police
station. Hoydis testified "it might have been past midnight"
when he obtained her signature, but the date indicates it must
have been past midnight. Angelique testified she signed it in
the early morning. Consequently, she signed the form after her
Mirandized statement to Gentile, which concluded at 11:55 p.m.
on January 8, 2007.
Angelique said she did not recall meeting with Hoydis at
the police station because she was still traumatized by the
events that evening. She testified, "I don't recall signing the
forms that I did sign. They . . . provided me with forms and I
signed them. I thought it was part of the process that I was
required to sign them."
Hoydis testified that he obtained Angelique's signature,
which was witnessed by fellow officer Carl Heger. Hoydis could
not recall specifically what he told Angelique about the form,
but he stated he invariably informed persons, whom he asked to
15 A-1199-10T2 sign a CSR, that his or her signature would constitute a claim
of ownership of the seized funds.
[E]very time I fill one of them forms out, when I have the subject who the money is being seized from, I ask them, I say can you sign this? This is stating that you're claiming the money so that if court proceedings come or don't, you can get your money back.
Although Heger testified briefly at trial about his involvement
in the house search, he was not questioned about the
circumstances of Angelique's execution of the CSR.
Hoydis acknowledged that the form did not explicitly state
in plain English that it was an acknowledgment of ownership. He
also conceded that the money itemized on the CSR Angelique
signed was not seized from her. Hoydis testified he was told
the money was Angelique's, and he believed Harvey directed him
to obtain Angelique's signature on the form.
The CSR in this case is the equivalent of an adoptive
admission. Consequently, it was incumbent upon the court to
analyze it pursuant to N.J.R.E. 803(b)(2). As the CSR was a
statement of a criminal defendant, N.J.R.E. 803(b) required the
court to determine the document's admissibility in a preliminary
hearing pursuant to N.J.R.E. 104(c).
As Hoydis admitted, the document itself does not expressly
state that Angelique asserted ownership of the $4831. The
16 A-1199-10T2 inclusion of the word "claimant," unaccompanied by any other
explanation within the document, is vague in its meaning. The
word is not highlighted, and its significance could easily be
overlooked, or misconstrued. The State does not rely solely on
the wording of the document itself, and instead emphasizes the
context in which it was signed. It also argues that Angelique's
execution of the form constituted a claim of ownership because
Hoydis first informed her that her execution of the form would
constitute a claim of ownership, and she allegedly assented by
thereafter signing the form. Properly viewed, the State sought
to use the form as Hoydis explained it as an adoptive admission,
that is, "a statement whose content the party has adopted by
word or conduct[.]" N.J.R.E. 803(b)(2).
In order to introduce into evidence Angelique's adoption of
Hoydis's characterization of the form, the State was required to
satisfy two criteria. "First, the party to be charged must be
aware of and understand the content of the statement allegedly
adopted." McDevitt v. Bill Good Builders, Inc., 175 N.J. 519,
529 (2003) (citation omitted). "Second, it must be clear that
the party to be charged with the adoptive admission
'unambiguously assented' to the statement." Id. at 530 (quoting
State v. Briggs, 279 N.J. Super. 555, 563 (App. Div.), certif.
denied, 141 N.J. 99 (1995)). Moreover, the State, as the
17 A-1199-10T2 proponent of the adoptive admission, was assigned the burden of
persuasion that the out-of-court statement satisfied the
elements of an exception to the general rule of inadmissibility.
See State v. James, 346 N.J. Super. 441, 457 (App. Div.)
(stating proponent of hearsay must establish prerequisites of
admissibility by a preponderance of the evidence), certif.
denied, 174 N.J. 193 (2002); see also Weinstein's Federal
Evidence § 801.31[2] (2d ed. 1997) (stating proponent of
adoptive admissions has the burden of proving by a preponderance
of the evidence "that the party's conduct manifested an intent
to adopt the statement").
Had the CSR clearly stated that the signer acknowledged
ownership of the itemized currency, and if there were proof that
Angelique read the document before signing it, then Angelique's
signature would be strong evidence of her adoption. "Ordinarily
a signed statement, even if written by another in another's
words, would be adopted as the party's own if he signed it,
because signing is a manifestation of adopting the statement."
United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir.
2002). However, the CSR contained no such statement of
ownership; Hoydis allegedly imputed that meaning to the
document. Also, even if Hoydis is believed, Angelique testified
18 A-1199-10T2 she felt required to sign the document and does not recall the
meaning assigned to it.
In Orellana-Blanco, supra, the court held the trial court
erred in admitting a signed document as an adoptive admission.
Unlike here, there was no question about whether the document's
full meaning was self-contained. However, the document was
inadmissible as an adoptive admission because the government had
failed to establish that the defendant, whose English skills
were limited, actually read and understood what he signed. Id.
at 1148.
The same principle applies here. There is a significant
issue whether Hoydis provided the explanation, since he has no
specific recollection of it, and Heger did not testify about it.
There is also question whether Angelique listened to Hoydis's
explanation (assuming it was given), and understood him, since
she was traumatized and distracted. The State presented no
evidence to pinpoint when or where Angelique signed the
document, except it is clear it was after midnight after a long
and tumultuous night, and Angelique was apparently in custody in
the police station. There is no evidence regarding her demeanor
when she signed it; nor whether she appeared to study and read
it, or swiftly signed it without pause. It is also doubtful
that Angelique would have signed the form to indicate her
19 A-1199-10T2 adoption, and ownership of such a large amount of currency about
which, she had just told Gentile she was unaware.
We view the failure to conduct a hearing under N.J.R.E. 104
to be plain error. First, we cannot conclude the failure to
conduct a hearing was of no moment. The trial record does not
clearly establish that the State met its burden to support
admissibility. The State did not present sufficient proofs that
Angelique was "aware of and underst[oo]d" the form, and
"'unambiguously assented'" to it. McDevitt, supra, 175 N.J. at
530.
Second, introduction into evidence of the CSR, as Hoydis
explained it, was "clearly capable of producing an unjust
result." R. 2:10-2. "The possibility of an unjust result must
be 'sufficient to raise a reasonable doubt as to whether the
error led the jury to a result it otherwise might not have
reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting
State v. Macon, 57 N.J. 325, 336 (1971)); see also State v.
Kemp, 195 N.J. 136, 149 (2008) ("[W]e focus on 'whether in all
the circumstances there was a reasonable doubt as to whether the
error denied a fair trial and a fair decision on the
merits[.]'") (quoting Macon, supra, 57 N.J. at 338)).
The proofs against Angelique were substantially weaker than
they were against Jules. But for the CSR, she denied any
20 A-1199-10T2 connection to drugs and drug proceeds. Strong circumstantial
evidence supported her theory of the case. She tried to call
911. Had she been aware of the location of drugs and the large
amount of money, she likely would have disclosed it to the home
invaders who threatened her and her children. According to her
version of the home invasion — and there was no other version —
she repeatedly professed her ignorance. According to her
statement to Gentile, she did direct the robbers to the "handful
of cash" in the closet, but the robbers demanded the rest.
Angelique claims she said she did not know where it was.
We recognize the weakness in Angelique's explanation about
the drug paraphernalia in the master bedroom closet. If the
bags and dryer sheets were used as designed — for food storage
and laundry — they presumably would have been kept elsewhere.
Angelique's trial recitation of the events of the home invasion
also differed in various respects from her version given to
police almost two years earlier. In her direct testimony, she
omitted mention of the robbers' demand for drugs, and insisted
she did not enter the garage with the robbers. Yet, a jury may
have concluded that Angelique knew her husband was dealing
drugs, but personally took no part in his activities and was
ignorant of the details.
21 A-1199-10T2 The CSR was a critical element of the State's case that
Angelique was an active participant. Once she allegedly claimed
as her own the $4831, which Patittucci opined were drug
proceeds, she became a partner in the drug business. The State
argued in opening:
Angelique, who you're going to see in this case, who denied on several occasions really knowing anything about the drugs or the money, signed a receipt for those monies. Even though — you're going to see her statement.
Even though in her statement she tells police, I really don't know anything about the money. I don't know how much money was there or anything like that. But she signed a very particular, itemized statement as the claimant for that money.
In summation, the State again relied on the CSR and
recalled Hoydis's interpretation of the agreement, to rebut the
defense's argument that Angelique, who was a registered nurse,
was an innocent spouse.
Does that mean she can't be a drug dealer? . . .
She's smart enough to know better but she engaged in this and why? That brings us to our next point; the third admission, if you will. Two from Jules; one from Angelique.
. . . .
Both Detective Hoydis and Harvey explained what this form was for. As you can imagine, when you seize money, cash, it
22 A-1199-10T2 gets to be a little sticky so you have to make sure the i's are dotted and t's are crossed.
The suggestion is that it was not explained to her when everything else was? No. Ask yourselves this and I'm sure you have.
It's called greed, ladies and gentlemen. The lure o[f] money. I don't know anything but if you're putting this in my face, I'm going to sign it. $5,000 worth of cash. It's greed.
That money was broken down and Detective Patitucci went through all that[.]
The State returned to the form later in summation, arguing that
the money she admitted in her statement was removed from the
closet, was the money itemized in her CSR, and not the $218 in
the CSR Jules signed. In sum, absent the CSR, there is
reasonable doubt whether the jury would have reached the same
result.
However, it would be premature for us to reverse
Angelique's conviction. Rather, we remand to the trial court to
conduct a Rule 104(c) hearing in accord with our decision. If
the trial court determines that the State has not met its burden
to establish the CSR was admissible as an adoptive admission,
then a new trial shall be ordered. On the other hand, if the
court is persuaded that Angelique adopted Hoydis's explanation
23 A-1199-10T2 of the form, then the evidence was properly presented to the
jury, and reversal would not be warranted. See State v. Kelly,
61 N.J. 283, 294-95 (1972) (where there was insufficient proof
that defendant's confession was voluntary, the Court remanded
for a hearing regarding voluntariness, and required reversal and
a new trial only if the trial court determined the confession
was not voluntary); State v. Herrera, 385 N.J. Super. 486, 500
(App. Div. 2006) (remanding for a hearing, but requiring
reversal and a new trial only if the trial court determined that
defendant was denied his right to appear in appropriate civilian
clothing).
D.
We have carefully reviewed Angelique's and Jules's
remaining points in light of the applicable law and facts, and
conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
this opinion omits the court's discussion of the trial court's
denial of Jules's severance motion, and Jules's sentence. See
R. 1:36-3.]
Affirmed as to Jules, Docket No. A-2942-10. Remanded for
further proceedings consistent with this opinion as to
Angelique, Docket No. A-1199-10.
24 A-1199-10T2