                                NOT FOR PUBLICATION WITHOUT THE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




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4243-17T1

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

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

          Defendant-Appellant.
______________________________

                    Argued December 11, 2019 – Decided December 23, 2019

                    Before Judges Haas, Mayer and Enright.

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

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

                    Paul Henry Heinzel, Assistant Prosecutor, argued the
                    cause for respondent (Michael H. Robertson, Somerset
            County Prosecutor, attorney; Paul Henry Heinzel, of
            counsel and on the brief).

PER CURIAM

      This matter returns to us following a remand ordered in our previous

opinion. State v. Marroccelli, 448 N.J. Super. 349, 371 (App. Div. 2017). In

that case, we reversed defendant Amie Marroccelli's conviction for second-

degree vehicular homicide because the trial judge incorrectly barred defendant

from introducing a note her husband allegedly wrote in which he admitted that

he, rather than defendant, was driving the car that struck and killed the victim.

Id. at 361, 370-71. We also held that the judge "mistakenly exercised his

discretion by preventing her from presenting evidence concerning her driving

habits to support her claims she was not driving the [car] at the time of the

accident." Id. at 371-73.

      On remand, the judge conducted a new trial before a jury, which again

convicted defendant of second-degree homicide in violation of N.J.S.A. 2C:11-

5(b)(1). The judge sentenced defendant to seven years in prison subject to an

eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2, and three years of parole supervision upon her

release. This appeal followed.

      On appeal, defendant raises the following contentions:

                                                                         A-4243-17T1
                                       2
POINT I

THE JUDGE IMPROPERLY REFUSED TO STRIKE
TESTIMONY THAT DEFENDANT'S HUSBAND
TOLD A STATE TROOPER AT THE SCENE OF THE
ACCIDENT THAT DEFENDANT WAS DRIVING
THE CAR; THAT TESTIMONIAL STATEMENT
WAS    ADMITTED    IN    VIOLATION    OF
DEFENDANT'S SIXTH AMENDMENT AND
STATE-CONSTITUTIONAL       RIGHTS     TO
CONFRONT THE WITNESSES AGAINST HER.

POINT II

THE    JUDGE     IMPROPERLY      EXCLUDED
"REVERSE" N.J.R.E. 404(b) EVIDENCE THAT, 21
HOURS AFTER THE FATAL ACCIDENT, THE
DECEDENT STILL HAD COCAINE AND
MARIJUANA METABOLITES IN HIS SYSTEM
AND,   THEREFORE,      MAY     HAVE   BEEN
INTOXICATED HIMSELF AT THE TIME OF THE
CRASH, RENDERING HIM UNABLE TO COPE
WITH WHAT MIGHT OTHERWISE HAVE BEEN
ONLY A MINOR TRAFFIC ACCIDENT.

POINT III

WHEN SUSTAINING AN OBJECTION, [THE TRIAL
JUDGE] IMPROPERLY TOLD THE JURY THAT HE
HAD ALREADY DECIDED A PRETRIAL
MIRANDA MOTION IN THE CASE, A CLEAR
VIOLATION OF CASE LAW THAT FORBIDS A
JUDGE FROM TELLING A JURY ABOUT
PRETRIAL RULINGS BECAUSE TO DO SO MIGHT
AFFECT THE JURY'S EVENTUAL CREDIBILITY
FINDINGS.

POINT IV

                                              A-4243-17T1
                     3
             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.
             (Not Raised Below).

      After reviewing the record in light of the contentions advanced on appeal,

we affirm.

                                        I.

      As was the case in defendant's first trial, the primary issue on remand "was

whether defendant was driving her car on I-78 in Somerset County on the night

it struck a vehicle driven by the victim." Marroccelli, 448 N.J. Super. at 355.

That evening, a witness was driving behind the victim's car, and saw defendant's

white BMW pass his car and pull directly alongside the victim's vehicle. The

witness could not see who was driving the BMW. The witness testified the

BMW suddenly moved to the right and struck the victim's car, sending it down

an embankment where it crashed in the woods lining the highway.

      About six minutes later, Trooper John Mucksavage arrived at the accident

scene. He found the unconscious victim inside his car, bleeding and gasping for

air. The trooper called for emergency medical assistance, and a helicopter




                                                                          A-4243-17T1
                                        4
arrived to transport the victim to the hospital. The victim died the next day as

the result of a brain hemorrhage.

      Trooper Mucksavage found defendant and her husband, Jason Bradbury,

walking along the road. Defendant was barefoot. The couple told the trooper

they were not injured in the crash, but defendant complained that she had gotten

thorns in her feet from walking in the woods without shoes. Defendant stated

she and Bradbury were coming from a wedding reception. The trooper testified

defendant had alcohol on her breath and that Bradbury was "obviously

intoxicated."

      Defendant told the trooper she was driving the car when she saw a deer or

a dog in the middle of the road, causing her to veer off the highway into a ditch.

She claimed she did not recall hitting the victim's car. However, Trooper

Mucksavage saw that defendant's BMW had sustained damage and had "black

rubber markings" and red paint on it from striking the victim's car. White paint

from defendant's BMW was found on the driver's side of the victim's car.

      Defendant told Trooper Mucksavage that she was barefoot because she

had taken off her high heels and put on "flip-flops" to drive. After the crash,

defendant could not open the driver's side door of her car, so she climbed out on




                                                                          A-4243-17T1
                                        5
the passenger side. She lost the flip-flops when she got out of car and walked

back up to the highway.

      Defendant was much shorter than her husband.                 Photos taken of

defendant's BMW showed that the driver's seat was positioned so far forward

that a person of Bradbury's height would not have been able to sit in it.

      Approximately two hours later, Trooper Mucksavage administered field

sobriety tests to defendant, and she failed them. He arrested defendant for

driving while intoxicated, and drove her to the hospital to obtain a blood sample.

Defendant's blood was drawn about ninety minutes later and her blood alcohol

content (BAC) was .087%. Using extrapolation analysis, the State's expert

witness testified that defendant's BAC at the time of the crash was 0.14%.

      Defendant's doctor testified that defendant came to her office two days

after the crash for treatment of foot and leg injuries. Defendant told the doctor

she was the driver of the car on the night it struck the victim.

      Defendant's employer testified that the wedding reception defendant and

Bradbury attended was for his daughter. When later describing the accident to

her employer, defendant told him that she was the driver. Defendant's insurance

agent testified that when defendant called to file an insurance claim concerning

the accident, she reported she was driving the BMW.


                                                                            A-4243-17T1
                                         6
      The parties stipulated that defendant later sent the victim's mother a letter

that stated, among other things, that "[t]he depth of [her] guilt is

immeasurable[,]" but it was "an accident" because she "saw a deer" and then

"jolted the wheel," never thinking she "had hit another vehicle." Defendant told

the victim's mother that she was "haunt[ed] . . . day in and day out" by what

happened. She also stated that she once dreamed of the victim, who "winked

and smiled and said it's all right, I'm okay. It's how it was meant to be. You

will see one day. Others were near me to live and that is why I had to go."

      Defendant did not testify, but three witnesses testified on her behalf.

Defendant's former boyfriend testified that he drove defendant to her attorney's

office sometime in 2012. When they returned to his car to drive home, the

boyfriend stated defendant handed him a letter that was allegedly signed by

Bradbury. The letter 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 a.m., April 5, 2011." The boyfriend stated he

held on to the note for an unspecified period of time before returning it to

defendant.

      Defendant also called a handwriting expert, who opined that Bradbury was

the note's author, and that defendant was not. However, the expert never saw


                                                                           A-4243-17T1
                                        7
Bradbury write the samples purporting to be his handwriting, nor did the expert

observe defendant write the samples of her handwriting that he reviewed.

      One of defendant's friends testified she spoke to Bradbury sometime

before March 19, 2013, and he told her he was driving the car when it struck the

victim. The friend claimed she later confronted Bradbury about this statement,

and he confirmed he was driving, but "did not cause the accident."

                                      II.

      In Point I of her brief, defendant argues that when Trooper Mucksavage

testified on re-direct examination that Bradbury stated defendant was driving

the BMW on the night of the accident, this statement violated her Sixth

Amendment right to confront the witnesses against her. We disagree.

      From the outset of the trial, defendant's position was that she told the

police, her doctor, her employer, and her insurance agent that she was driving

the car that struck and killed the victim, and apologized to the victim's mother

for doing so, as part of a scheme to protect Bradbury from prosecution. Thus,

defense counsel's opening statement alleged that Bradbury convinced defendant

to "take the weight" for him and she agreed to do so because she believed the

only charge would be driving while intoxicated. When the couple learned that

the car had struck and killed the victim, defendant wanted Bradbury to admit he


                                                                        A-4243-17T1
                                       8
was the driver and, following an argument sometime later, Bradbury took

responsibility by writing the "confession note."

      During cross-examination, defense counsel repeatedly asked Trooper

Mucksavage why he accepted defendant's admission that she was driving the

BMW, rather than taking steps to investigate Bradbury. To address this defense

tactic, the prosecutor and the trooper had the following brief exchange during

the trooper's re-direct examination:

            Q:    You were asked questions by [defense counsel]
                  about whether you asked [defendant] whether
                  anybody else was driving the car, correct?

            A:    Yes, he asked me that.

            Q:    And you were asked questions by [defense
                  counsel] that you accepted that she said she was
                  the driver, correct?

            A:    Yes.

            Q:    Was Jason Bradbury also asked at the scene who
                  was the driver?

            A:    Yes.

            Q:    And what did he say?

            A:    He informed me she was driving.

Defendant did not object to this testimony, and the State moved on to question

the trooper about other topics.

                                                                       A-4243-17T1
                                       9
      The State called ten additional witnesses after Trooper Mucksavage

testified and then rested its case. During a charge conference conducted eight

days after the trooper completed his testimony, defense counsel for the first time

raised the trooper's statement that Bradbury said that defendant was driving for

the first time. The attorney did not ask the judge to strike the trooper's statement

as violative of defendant's confrontation rights, nor did he request a curative jury

instruction. The attorney stated he had not objected to the statement because he

did not want "to highlight it[,]" and he was concerned that if the judge now gave

the jury an instruction to disregard it, this would only draw attention to what the

trooper said. Instead, defense counsel asked the judge to bar the prosecutor from

referring to this testimony during summations.

      As it was clear that defendant was not asking for any immediate action,

the judge reserved on the issue, and stated:

            Well, had the objection been made in a timely fashion,
            I would like to think that I would have reacted as I have
            in these other circumstances, and explained to the jury
            that hearsay generally is not admissible. However,
            there are exceptions to the hearsay rule, among which
            are to explain why a witness took certain action or
            refrained from taking certain action. And so I would
            have given the jury a cautionary instruction at that time.
            Ladies and gentlemen, you can't take that hearsay as for
            the truth of what was said, you can only consider it to
            explain why the Trooper did something or didn't do
            something. Now out of context, I can still give that to

                                                                            A-4243-17T1
                                        10
            them, but they're going to look at me with a blank look,
            because they're not going to remember when that came
            in. But, we'll reserve on that give it some thought.
            Those are some possible outcomes.

      Two days later, defense counsel again asked the judge to bar the State

from referring to Trooper Mucksavage's brief statement during summation. The

judge denied the motion. In addition to finding that the testimony was only

elicited to counter defendant's argument that the trooper was somehow remiss

in failing to investigate the veracity of defendant's admission that she was the

driver, the judge found that the statement was admissible under N.J.R.E. 806.

That Rule permits a party to introduce a hearsay statement in certain

circumstances to contradict a hearsay statement introduced by the other party.

      In spite of the judge's ruling, the State never referred to Bradbury's

statement during its summation. Therefore, defendant received all the relief she

requested concerning the statement.

      Under these circumstances, we discern no reversible error due to the

admission of the statement at trial. The Confrontation Clauses of both the

United States and New Jersey Constitutions "prohibit the use of out-of-court

testimonial hearsay, untested by cross-examination, as a substitute for in-court

testimony." State ex rel. J.A., 195 N.J. 324, 342 (2008). "[A] declarant's

narrative to a law enforcement officer about a crime, which once completed has

                                                                        A-4243-17T1
                                      11
ended any 'imminent danger' to the declarant or some other identifiable person,

is testimonial." Id. at 348 (citing Davis v. Washington, 547 U.S. 813, 827-830

(2006)).

      However, "the [Confrontation] Clause . . . does not bar the use of

testimonial statements for purposes other than establishing the truth of the

matter asserted." Crawford v. Washington, 541 U.S. 36, 59 at n.9 (2004); see

Tennessee v. Street, 471 U.S. 409, 414 (1985).           Therefore, non-hearsay

statements are not subject to Confrontation Clause considerations.       State v.

Buda, 195 N.J. 278, 301 (2008).

      Furthermore, a defendant may waive his or her right to confrontation.

State v. Williams, 219 N.J. 89, 98 (2014). "Defense counsel, many times as a

matter of trial strategy, will refrain from objecting to hearsay that may inure to

the advantage of the defendant." Id. at 99. Therefore, it "makes perfect sense

that 'the defendant always has the burden of raising his Confrontation Clause

objection.'” Ibid. (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327

(2009)).   "It is the defendant's choice 'to assert (or forfeit by silence) his

Confrontation Clause right.'" Ibid. (citing Melendez-Diaz, 557 U.S. at 326).

      Strategic decisions made by defense counsel will not present grounds for

reversal on appeal, except for the most extreme cases. State v. Marshall, 123


                                                                          A-4243-17T1
                                       12
N.J. 1, 93 (1991). "The defendant cannot request the trial court to take a certain

course of action, and upon adoption by the court, take his chance on the outcome

of the trial, and if unfavorable then condemn the very procedure he sought and

urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J. 457,

471 (1955). So where counsel deliberately chooses to forego an objection or a

curative instruction in an attempt to minimize the impact of testimony, counsel

cannot later "argue that the court should have given a more immediate curative

instruction, when it was defense counsel who insisted that the court not

'highlight' the [issue] with a[n] instruction to the jury." State v. Loftin, 146 N.J.

296, 365 (1996).

      Here, defendant waived her right to object to Trooper Mucksavage's

statement. She waited eight days after he testified to bring up the issue, and then

specifically declined the opportunity to move to strike the statement or have the

judge give the jury an instruction on how to evaluate this testimony. Instead,

defendant only sought to bar the State from referring to the statement in

summation and, even though the judge did not grant defendant's request, the

State never mentioned the statement in its final argument to the jury. In short,

defendant made a strategic decision to avoid drawing attention to the statement

either by asking to strike it or by having the judge instruct the jury about it.


                                                                             A-4243-17T1
                                        13
Thus, defendant cannot now claim that the judge erred by following the course

of action she urged at trial. Loftin, 146 N.J. at 365.

      Moreover, the statement was admissible because it was not offered for its

truth, but rather to explain why Trooper Mucksavage did not challenge

defendant's admission that she was driving the car. See Tennessee v. Street, 471

U.S. 409, 414 (1985) (stating that "[t]he non-hearsay aspect of [an accomplice's]

confession – not to prove what happened at the murder scene but to prove what

happened when [defendant] confessed – raises no Confrontation Clause

concerns"). In addition, the statement was also admissible under N.J.R.E. 806

because it clearly responded to the hearsay statements contained in the note and

defendant's friend's testimony indicating that Bradbury was the driver.

      Even if the statement should have been stricken from the record, however,

any error in failing to do so was clearly harmless under the circumstances of this

case. State v. J.R., 227 N.J. 393, 417 (2017) (stating that "[a]n error will not

lead to reversal unless it is 'clearly capable of producing an unjust result'")

(quoting R. 2:10-2). The brief statement was never referred to again by the

State. It was also consistent with defendant's repeated contention throughout

the trial that she and Bradbury agreed to lie at the accident scene and say that

defendant was driving the car. Moreover, the evidence that defendant was the


                                                                          A-4243-17T1
                                       14
driver was overwhelming. Defendant admitted she drove the BMW to the

police, her doctor, her insurance agent, and her employer. Defendant also sent

a letter to the victim's mother expressing her guilt after the victim allegedly

appeared to her in a dream. In addition, the driver seat of the car was also

positioned in a way that only defendant could have driven it.

      Therefore, we reject defendant's contention on this point.

                                       III.

      In Point II, defendant next argues that under N.J.R.E. 404(b), the judge

should have allowed her to introduce a toxicology report stating that the victim

had metabolites of cocaine and marijuana in his system at the time of the

accident. Again, we disagree.

      Before the trial began, the State filed a motion to bar defendant from

introducing the report unless she presented an expert witness to explain its

significance to the jury. Defendant argued that the presence of metabolites of

cocaine and marijuana in the victim's system would permit the jury to infer that

the victim was under the influence of these substances at the time of the accident,

and that his reckless driving caused the accident.

      Defendant did not retain an expert witness to make this causal connection

or to otherwise explain the significance of the report. Accordingly, the judge


                                                                           A-4243-17T1
                                       15
denied defendant's motion. In doing so, the judge noted that "defendant assumes

that the mere presence of these metabolites in the victim's blood inhibited his

ability to drive carefully and that, therefore, it may be inferred that it was the

victim's own reckless conduct which caused the accident and his death[.]"

However, "[c]riminal defendants are not permitted to suggest inferences to be

drawn from evidence where expert testimony is required to support such

inferences . . . That is the case here."

      The judge also stated that "we don't know that [the victim] was under the

influence of these substances, and cannot know it from the toxicology report[.]"

Thus, the court found that the toxicology report was not relevant, because:

             the evidence proposed does not have a tendency in
             reason to aid the trier of fact in the determination of an
             issue before it. Without expert testimony the jury
             would not know any more than this court knows what
             to make of the toxicology report. And to permit the jury
             to speculate as to what this toxicology report might
             indicate in terms of operation under the influence,
             impairment is so confusing and speculative as to form
             and the basis to grant the State's motion… Clearly
             expert testimony as to the issues presented in this case
             is necessary to explain the significance of the
             toxicology report because its significance, that is, what
             does it mean? It is beyond the ken of the average juror.
             Such an interpretation would require scientific,
             medical, or forensic knowledge outside that possessed
             by the ordinary juror.



                                                                          A-4243-17T1
                                           16
      During the trial, defendant raised the issue again, and the judge conducted

two hearings at which two State experts testified that the toxicology report

required expert interpretation.   This was so because, in the uncontradicted

opinion of the State's experts, metabolites are "not active." Thus, while the

presence of a metabolite in a victim suggests past use of a drug, it does not mean

that the victim was affected in any way by the drug at the time of an accident.

Accordingly, the judge again denied defendant's motion to introduce the report

in the absence of any expert testimony to explain it to the jury.

      N.J.R.E. 404(b) states:

            [e]xcept as otherwise provided by Rule 608(b),
            evidence of other crimes, wrongs, or acts is not
            admissible to prove the disposition of a person in order
            to show that such person acted in conformity therewith.
            Such evidence may be admitted for other purposes,
            such as proof of motive, opportunity, intent,
            preparation, plan, knowledge, identity or absence of
            mistake or accident when such matters are relevant to a
            material issue in dispute.

      When the State proffers 404(b) evidence, a four-pronged analysis,

outlined in State v. Cofield, must take place.       127 N.J. 328, 338 (1992).

However, "[w]hen a person charged with a criminal offense seeks to use other -

crimes evidence defensively, the Cofield standard does not govern because 'an

accused is entitled to advance in his defense any evidence which may rationally


                                                                          A-4243-17T1
                                       17
tend to refute his guilt or buttress his innocence of the charge made.'" State v.

Weaver, 219 N.J. 131, 150 (2014) (citing State v. Garfole, 76 N.J. 445, 453

(1978)).

      Therefore, when it is the defendant "who 'offers that kind of proof

exculpatorily . . . simple relevance to guilt or innocence" is the deciding factor

for admissibility. Ibid. (citing Garfole, 76 N.J. at 452-53). Evidence is relevant

where there is a "logical connection between the proffered evidence and a fact

in issue, i.e., whether the thing sought to be established is more logical with the

evidence than without it." State v. Hutchins, 241 N.J. Super. 353, 358 (App.

Div. 1990).

      Despite this more relaxed standard, however, "trial courts must still

determine that the probative value of the evidence is not substantially

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

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

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

determination is highly discretionary." Ibid.; see State v. Cook, 179 N.J. 533,

568-69 (2004) (where the court found that although the other-crimes evidence

was relevant, its probative value was "minimal" because there was "nothing

distinctive to tie" a sexual assault with a non-sexual abduction).


                                                                           A-4243-17T1
                                       18
      Applying these principles, we discern no basis for disturbing the judge's

decision to bar the admission of the victim's toxicology report. It is well

established that "[a]lthough jurors may draw rational inferences from the

evidence, they are not permitted to speculate or connect the dots on mere

surmise." State v. Fortin, 189 N.J. 579, 596 (2007). Thus, "New Jersey courts

have required expert testimony to explain complex matters that would fall

beyond the ken of the ordinary juror." Ibid.

      Here, the uncontradicted expert testimony presented on the science

surrounding metabolites clearly established that the mere presence of

metabolites of marijuana and cocaine in the victim's system simply indicated

that the victim had consumed these substances at some unknown point prior to

the accident. Therefore, without an expert available to "connect the dots," the

admission of the toxicology report in evidence would not make it more or less

likely that the victim was under the influence of either drug when the accident

occurred. Thus, there was an ample basis in the record to support the judge's

determination that the relevance of the report was "beyond the ken of the

ordinary juror" in the absence of any explanatory expert testimony.

Accordingly, the judge did not abuse his discretion by granting the State's

motion to bar the admission of the report at trial.


                                                                       A-4243-17T1
                                       19
                                       IV.

       In Point III, defendant argues that the trial judge improperly informed the

jury that he had previously ruled on a Miranda1 issue. However, we conclude

that any error in doing so was harmless under the circumstances of this case

because the judge never told the jury how he ruled on that application, and he

immediately provided the jury with a strong cautionary instruction not to

speculate about what the ruling might have been.

       In response to defendant's cross-examination, Trooper Mucksavage

acknowledged that defendant and Bradbury were not free to leave while they

were on the highway waiting for the emergency medical helicopter to arrive, and

that the trooper continued to speak to them during that period. Defense counsel

followed up by stating, "[a]nd that's before you read them their Miranda,

correct?" The State objected to this question and the judge held a sidebar

conference outside the presence of the jury. The judge sustained the State's

objection after determining that the roadside questioning did not trigger the need

to provide defendant and her husband with Miranda warnings.

       Before going back on the record before the jury, the parties and the judge

discussed how best to inform the jury that the State's objection had been


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-4243-17T1
                                       20
sustained. After taking a recess, the judge stated he would simply tell the jury

that the objection had been sustained without any further explanation.

      When the jury returned, the judge told defense counsel he could resume

questioning the trooper and added that the State's objection had been sustained.

A juror then interjected and asked, "[c]ould you remind me what the State's

objection was?" The judge responded:

            The [S]tate objected to the question that [defense
            counsel] posed as to the timing of the so-called Miranda
            warnings.

                  ....

            Now you've heard Trooper Mucksavage testify that he's
            testified on a couple other occasions, all right? This
            case has been the subject of pretrial hearings and
            pretrial motions before this Court, and other
            proceedings, okay? And things like Miranda have been
            adjudicated by me. Thus, I sustained the objection.

            But I tell you that about the other proceedings so that
            you don't speculate about that and say, wait a minute,
            what do you mean you've testified before? What's
            going on here? What happened with the – this, like
            many, many criminal cases, is subject to what we call
            pretrial motion practice. And in many instances, in
            order for the [j]udge to decide legal issues in pretrial
            motion practice, I have to have testimonial hearings and
            other proceedings, and I do.

            Okay, so this is tabula rasa, a blank slate, it's a brand
            new case, okay? So you're not to speculate as to when,
            why, what the result was, or anything else that

                                                                         A-4243-17T1
                                      21
             happened in this matter except on December 10th –
             December 21, 2010, as presented to you in this
             courtroom in this trial.

      The judge then asked the parties if they had any objections to that

explanation. Defense counsel did not object to the instruction and, at sidebar,

proceeded to address an unrelated matter.

      In State v. Hampton, the Court held that once a trial judge makes a

determination that a statement is admissible under Miranda, the jury must then

determine if the statement is true without being informed of the court's prior

decision. 61 N.J. 250, 272 (1972). The Hampton rule was codified in N.J.R.E.

104(c)(2), which states that:

             Where by virtue of any rule of law a judge is required
             in a criminal action to make a preliminary
             determination as to the admissibility of a statement by
             the defendant, the judge shall hear and determine the
             question of its admissibility out of the presence of the
             jury . . . If the judge admits the statement the jury shall
             not be informed of the finding that the statement is
             admissible but shall be instructed to disregard the
             statement if it finds that it is not credible.

      "[T]he judge cannot tell the jury anything that would preempt its fact -

finding function." State v. Ridout, 299 N.J. Super. 233, 239 (App. Div. 1997).

If the trial court is permitted to tell the jury about its holdings on pretrial motions

regarding the admissibility of evidence, "such an advisory obviously influences,


                                                                               A-4243-17T1
                                         22
and improperly so, the jury's independent consideration of the same

circumstances for purposes of making its credibility finding." Id. at 240.

      Here, the judge did not need to mention the fact that a pre-trial motion

was filed concerning a Miranda issue in responding to the juror's question.

However, the judge never told the jury how he decided that issue and, therefore,

never divulged whether the statement was determined to be admissible or

inadmissible.

      Moreover, even if the judge made a mistake in referring to a prior Miranda

motion, he immediately corrected that misstep by giving the jury a very forceful

curative instruction that they were not to speculate about "when, why, what the

result was, or anything else that happened in this matter except for" what

happened on the date of the accident.         Defendant did not object to this

instruction. "If the defendant does not object to the [curative instruction] at the

time it is given, there is a presumption that the [instruction] was not error and

was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157,

182 (2012). In addition, we must presume that the jurors followed the judge's

clear instruction "without cavil or question." State v. Manley, 54 N.J. 259, 270

(1969); see also Loftin, 146 N.J. 367.




                                                                           A-4243-17T1
                                         23
         Under these circumstances, we reject defendant's contentions on this

point.

                                         V.

         Finally, defendant argues in Point IV that the cumulative prejudice of the

errors she raises deprived her of a fair trial.      Having rejected defendant's

argument that any reversible error occurred during her trial, we also reject her

cumulative error argument.

                                         VI.

         In sum, we affirm defendant's conviction and sentence. 2

         Affirmed.




2
  As for the balance of any of defendant's arguments not expressly discussed
above, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
                                                                           A-4243-17T1
                                         24
