SSRI Ed note: Woman driving after drinking wine, taking Lexapro and other meds drive impaired, kills pedestrian. State expert misses issue of SSRI/wine combination.

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STATE OF NEW JERSEY, Plaintiff-Respondent v.  PAULA CICCHINELLI, Defendant-Appellant.   No. A-1768-07T4.

Superior Court of New Jersey, Appellate Division.

Argued February 24, 2010.      Decided August 27, 2010.

Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the brief).

Natalie A. Schmid Drummond, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Drummond, of counsel and on the brief).

Before Judges Cuff, C.L. Miniman and Waugh.   PER CURIAM.

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 women­Rice, 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[ 1 ] 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 vehicle was turned over to the forensics unit.

Forensic crime scene investigators from the New Jersey State Police and the Atlantic County Prosecutor’s Office testified that the damage to the car’s windshield and front passenger light assembly was consistent with it having struck a pedestrian. A piece of black plastic taken from Marvel’s sweatshirt matched the plastic on the car’s front molding strip, fibers found in the molding strip matched fibers in Marvel’s sweatshirt, and an impression on the molding strip matched the weave pattern of Marvel’s pants.

In addition, Weber testified that when he examined the car on the night of the accident, he noticed a piece of the front, right blinker light was missing. He located the missing piece of plastic the next day at the accident scene.

With regard to physical evidence at the scene, Olson testified that he did not see any marks on the road or shoulder indicating that a vehicle had applied its brakes, accelerated, or made a quick change of direction. He also did not find any rocks or stones in the roadway. He prepared a diagram of the area, identifying the locations where Marvel’s shoes and glasses were found. Based on his examination, he was not able to establish a point of impact.

Wythe testified as an expert on accident investigation and reconstruction. His description of the scene was consistent with Olson’s. He agreed that there were no tire marks on the road and no indication that a vehicle had gone off the roadway onto the sand or gravel. Based on his analysis of the “cone of debris,” Wythe concluded that the impact between defendant’s vehicle and Marvel took place on the southbound shoulder of the road. He also concluded that defendant’s vehicle was traveling between twenty-seven and thirty-two miles per hour at the time of impact, below the posted speed limit for this section of Route 9.

Defendant presented Frank Costanzo as an accident reconstruction expert. He testified that the accident scene was “extremely dark” at night; the only available light came from vehicle headlights. In addition, he explained that he based his analysis on photographs of defendant’s automobile because the car had been vandalized while impounded. Costanzo agreed with Wythe’s conclusion that defendant’s car was traveling well below the speed limit at the time of impact. He disagreed, however, that the point of impact was in the shoulder of the road. Costanzo opined that it was not possible to accurately identify the precise location of impact. He stated that there was no physical evidence to support the conclusion that the impact occurred in the shoulder as opposed to the roadway or on the edge of the road and shoulder.

Finally, the State presented testimony from Dr. John Brick, an expert on the effect of alcohol on the human body. Brick assumed that defendant consumed an entire 25-ounce bottle of wine between 6:40 p.m. and 8:50 p.m. He also opined that the results of the breathalyzer tests could be extrapolated backwards to estimate defendant’s blood alcohol concentration at 9:00 p.m. The result of the blood test was not helpful, however, because such a low reading is “problematic” and cannot be extrapolated linearly.

Brick testified that assuming an average elimination rate of alcohol from the body, defendant’s blood alcohol concentration at the time of the accident was between .12 and.13 percent. Brick admitted, however, that her blood alcohol concentration could have been as low as .08 to .09 percent. Brick stated the margin of error for his calculations was plus or minus .01 percent.

Brick concluded that defendant had consumed a “relatively large quantity” of wine prior to driving. As a result, she became impaired and at a significant risk for a fatal crash. The nature of the incident­ defendant’s inability to maintain her lane position and to detect pedestrians in her path­ was consistent with alcohol intoxication. Brick was not surprised that defendant did not seem drunk when leaving the restaurant, because most people do not appear impaired to casual observers until their blood alcohol concentration reaches about .15 percent.

At the close of the evidence, the trial judge dismissed the first degree aggravated manslaughter charge. The jury found her guilty of the remaining charges: first degree vehicular homicide in a school zone and third degree leaving the scene of a fatal accident. The judge imposed an eleven-year term of imprisonment subject to a No Early Release Act (NERA)[ 2 ] 85% parole ineligibility term on the vehicular homicide charge. The judge imposed a consecutive four-year term on the leaving the scene of a fatal accident charge. He also found defendant guilty of several motor vehicle charges, all of which he merged with the other offenses. The judge also ordered the forfeiture of defendant’s automobile and imposed appropriate fines, penalties and assessments.

On appeal, defendant raises the following arguments:

Point I Defendant Cicchinelli’s Multiple Invocations of Her Right to Silence and to Consult With Counsel Were Intentionally Violated by the State; Yet, the Most Incriminating Statement by the Defendant Was Admitted.
Point II On Cross-Examination Defendant’s Prior Invocation of Silence and Counsel Was Not Proper Impeachment, as it Served to Punish Defendant for the Exercise of a Constitutional Right.
Point III
The Multiple Direct References to Search Warrants Throughout the State’s Case-in-Chief Served Only to Highlight and Demonstrate Defendant Cicchinelli’s Continual Assertion of Her Constitutional Rights.
Point IV
Evidence That the Defendant Had Taken Three Prescribed Medications in Addition to the State’s Allegation of Intoxication from Wine Was so Unduly Prejudicial Under the Circumstances as to Deprive the Defendant of a Fair Trial.
Point V

The Number and Nature of Trial Errors When Considered Individually and then in Combination with the State’s Closing, Clearly and Convincingly Establish a Manifest Denial of Justice under the Law.
Point VI
Defendant’s R. 3:18-2 Motion for Acquittal on Count 2 Should Have Been Granted, as no Reasonable Jury Could Find Intoxication Beyond a Reasonable Doubt; Alternatively, the State’s Closing Erroneously Defined Intoxication and it was not Cured by the Court’s Final Instruction.


We are satisfied that several arguments presented by defendant are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). The reference to the three prescription medications taken by defendant cannot be considered unduly prejudicial (Point IV). Brick expressly stated that the mixture of these medications and the wine had no effect on her level of intoxication. Moreover, the prosecutor made no reference to these substances in her summation. There also was sufficient evidence to support the conviction (Point VI). Nevertheless, the improper use of defendant’s response when told of Marvel’s death and the repeated references to defendant’s invocation of her rights to remain silent, to seek advice from an attorney, and to refuse consent to a search of her car impermissibly burdened the invocation of these rights, and may well have contributed to the verdict in this hotly contested case.


At approximately 3:30 a.m., Wythe informed defendant that the young man she struck had died. Her response is disputed. Olson testified she said, “You mean I killed him, can I have a drink of water?” Defendant’s daughter testified her mother said, “Oh, my God” and started to shake uncontrollably. Defendant argues the real purpose in advising her that Marvel had died was to elicit an incriminating statement, that the statement was incriminatory, and that Wythe’s conduct expressly ignored defendant’s earlier invocation of her right to remain silent. The State responds that Wythe simply provided a response to repeated inquiries made by defendant and her daughter about the condition of the victim. Moreover, the State maintains that defendant’s voluntary statement was offered solely to show her demeanor and was not incriminatory.

The judge conducted a hearing in accordance with N.J.R.E. 104(c) to determine the admissibility of defendant’s alleged statement, “You mean I killed him, can I have a drink of water?” At the outset, the court was dubious of the evidential value of this statement, asking the prosecutor why Olson and Wythe could not simply testify about their impressions of defendant’s demeanor. The prosecutor argued that it was necessary to relate defendant’s exact words in order to bolster the officers’ testimony and to allow the jury to judge defendant’s credibility.

At the hearing, Olson testified that he was present when Wythe entered the room. Olson stated that defendant’s remark was not made in response to any question.

Wythe testified that he was aware that defendant had invoked her Fifth Amendment rights during the initial questioning by Hamilton and Fane. The record is not clear that he knew she invoked her Fifth Amendment rights prior to the administration of the breathalyzer test when she refused to state when and how much she drank. Wythe testified he first met her around 3:45 a.m., when he decided to tell her that Marvel was dead. Concerned that defendant might have an “over-emotional” response to the news, Wythe asked defendant’s daughter to accompany him into the room. When he told defendant about Marvel she made a comment in response. Wythe then informed defendant of the results of her breathalyzer tests and asked for her continued cooperation by consenting to blood and urine testing. Defendant refused to consent to these tests.

Wythe testified that he wanted to tell defendant about the fate of the victim so she would understand the seriousness of her situation. He did not recall why he chose that particular time to advise defendant; he simply stated that it was his decision to tell her then. He admitted he knew that he did not need defendant’s consent in order to draw blood, but explained he sought a court order to ensure the admissibility of the test results at trial.

Based on this testimony, the judge found Wythe approached defendant in order to report the results of the breathalyzer tests and to tell her that the victim had died. He found that Wythe’s statement was not the functional equivalent of interrogation. The judge stated, “There was no scheme, there was no trickery, there was no purposeful enticement or encouragement for her to say something.” Because the judge found defendant’s comments to be voluntary and not in response to a question posed to her, the judge concluded that it was admissible.[ 3 ]

Defendant renewed her objection to the admission of this statement in her motion for a new trial. In rendering his decision on defendant’s motion, the judge, once again, opined, “I think that we are all making a lot more out of that response than needs to be made.” He also incorporated his previous rulings and supplemented them by finding that Wythe had no sinister motive in informing defendant that Marvel had died. The judge concluded that any questions posed by Wythe were ministerial in nature and defendant’s responses to those questions were admissible.

The findings of a trial judge on a motion to suppress a defendant’s statements to the police will ordinarily “not be disturbed if they could reasonably have been reached on sufficient credible evidence in the record.” State v. Godfrey, 131 N.J. Super. 168, 174 (App. Div. 1974) (citing State v. Johnson, 42 N.J. 146, 162 (1964)), aff’d, 67 N.J. 267 (1975). This court may only intervene if it is convinced that the finding is clearly mistaken and “`so plainly unwarranted that the interests of justice demand intervention and correction.'” State v. Wakefield, 190 N.J. 397, 495 (2007) (quoting Johnson, supra, 42 N.J. at 162). Thus, we should defer to the trial judge’s “credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.” State v. Locurto, 157 N.J. 463, 474 (1999).

It is well-established that prior to any custodial interrogation, an individual must be informed of his or her right to remain silent. Miranda, supra, 384 U.S. at 467-68, 86 S. Ct. at 1624, 16 L. Ed. 2d at 720; State v. Williams, 59 N.J. 493, 50 (1971); State v. Burno-Taylor, 400 N.J. Super. 581, 587 (App. Div. 2008). “Once the right to remain silent has been asserted, it must be `scrupulously honored.'” State v. Bohuk, 269 N.J. Super. 581, 592 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994). See also Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975).

“`Scrupulously honoring’ a defendant’s right to silence requires a cessation of questioning once the defendant asserts his [or her] Fifth Amendment right.” State v. Harvey, 151 N.J. 117, 221 (1997). Moreover, the police must administer a fresh set of Miranda warnings before any interrogation may resume. State v. Fuller, 118 N.J. 75, 83-84 (1990); State v. Hartley, 103 N.J. 252, 267 (1986). “When the police fail to scrupulously honor the right to remain silent, that failure `renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation [and] there can be no question of waiver.'” Burno-Taylor, supra, 400 N.J. Super. at 589 (quoting Hartley, supra, 103 N.J. at 261).

The Miranda protections, however, do not extend to voluntary statements not elicited through police-initiated interrogation. Fuller, supra, 118 N.J. at 87; Bohuk, supra, 269 N.J. Super. at 594; State v. Mallozzi, 246 N.J. Super. 509, 516-17 (App. Div.), certif. denied, 126 N.J. 331 (1991). As explained by the United States Supreme Court:

Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

[Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980) (footnotes omitted).]