SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0805-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHADE COOPER,

Defendant-Appellant.

________________________

Argued November 10, 2020 – Decided

Before Judges Yannotti, Haas, and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 16-12-

1211.

Jill R. Cohen argued the cause for appellant.

Alexis R. Agre, Assistant Prosecutor, argued the cause 

for respondent (Scott A. Coffina, Burlington County 

Prosecutor, attorney; Alexis R. Agre, of counsel and on

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 24, 2020
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A-0805-18T2

Defendant was tried before a jury and found guilty on two counts of 

reckless manslaughter, in violation of N.J.S.A. 2C:11-4(b)(1). She appeals from 

the judgment of conviction dated September 12, 2018. We affirm.

I.

We briefly summarize the evidence presented at trial. On the evening of 

December 2, 2015, defendant and her husband Nicholas Cooper were at their

home in North Hanover Township.1 Earlier that day, defendant was told that 

her time in the United States military was ending and she would not be able to 

re-enlist in the service. Previously, Nicholas had moved out of the house and 

he told defendant he was living in Lumberton with a colleague from work. After 

defendant and Nicholas had dinner with their children, defendant went upstairs 

to bed. 

Because Nicholas's driving privileges had been suspended, his ride came 

to the house to pick him up. Nicholas packed some of his belongings. Defendant

saw Nicholas get into a small car driven by a female who was later identified as 

Jocelyn Redding. Jocelyn was driving a blue-gray Hyundai Elantra. When 

defendant observed Nicholas leave with a woman, she left the house and got into 

1 For ease of reference, we use first names to identify Nicholas Cooper and 

others involved in this matter. 
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her black Chevrolet Cruz. The weather was cold and rainy. Defendant was 

wearing her nightgown. She did not have her coat, shoes, or cellphone. She 

asked her brother to look after the children. 

While defendant was following Jocelyn's car, she called Nicholas using 

the OnStar phone in her car. Nicholas answered and asked defendant where she 

was. Defendant told Nicholas she was at a Dollar Store picking up medication. 

Nicholas told defendant she was lying and she was being annoying. He hung 

up. Defendant realized that Nicholas knew she was behind Jocelyn's car. 

Defendant again called Nicholas. She told him to have Jocelyn pull over 

so they could talk. Nicholas asked Jocelyn to pull over, but she refused to stop. 

Defendant continued to follow Jocelyn's car. The pursuit went on for about ten 

miles and, at times, reached speeds of about fifty-eight to fifty-nine miles. 

At the intersection on Route 547, defendant and Jocelyn approached a 

traffic light, and Jocelyn hit her brakes. Defendant said she "ran right into"

Jocelyn's car because she "couldn't slow down fast enough." Jocelyn kept 

driving, however. Defendant asserted this was the only time her car struck

Jocelyn's car, and she followed Jocelyn for another "four or five miles."

Defendant stated that "the only place that [she thought she] might have 

had a little trouble [driving]" was when she approached a traffic circle on 
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Georgetown Road at the intersection with York Road. Defendant stated that 

both drivers "bumped" the circle, which caused her to slow down. She continued 

to follow Jocelyn's car. Defendant stated that a quarter-mile further on the road, 

defendant and Jocelyn approached another curve, which caused defendant to 

"significantly" slow down. She was "not sure" of the distance between the cars

as they approached the curve. She said, however, that there "was definitely a 

very good distance" between her car and Jocelyn's car. 

Defendant testified that Jocelyn "obviously" went into the curve "too 

fast." Jimmy Spears was driving a red Toyota Tundra in the opposite lane of 

travel. As he approached the curve, he observed Jocelyn's car, which was behind 

three or four cars. Jocelyn's car went sideways, entered Spears's lane of travel, 

and collided with his truck. Spears noted that there was a distance of 

approximately one-car length between Jocelyn's car and the car behind it. 

Jocelyn's car went into a ditch in the woods on the side of the road. 

Defendant did not see Jocelyn's car leave the roadway. She assumed 

Jocelyn's car collided with an oncoming truck. Defendant continued on 

Georgetown Road past the truck. She turned around after she realized "there's

no way [Jocelyn's car] could have just disappeared." Defendant made a U-turn 

and pulled over to the side of the road. 
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A-0805-18T2

Defendant got out and helped Spears out of his truck. She returned to her 

car and called 9-1-1. Defendant was calm because she thought "it was going to 

be okay." While she was on the 9-1-1 call, defendant saw that Nicholas and 

Jocelyn were seriously injured. She began to scream. She testified that she was 

not angry during the car chase. She stated she was driving within a reasonable 

range of expected behavior on the roadway. 

Kathy Owens-Oliver was a passenger in a car that came upon the scene 

after the collision. Owens-Oliver testified that it was dark, raining, wet, and 

cold, and that there was debris on the road. She heard a woman screaming in a 

car. She approached the woman, who identified herself as defendant. According 

to Owens-Oliver, defendant was "hysterical." 

Defendant told Owens-Oliver that her husband had been in the car that 

crashed and she "should not have been chasing" him. She said that "[i]f he 

lives," he would never "forgive [her] for this." She asked Owens-Oliver how 

she was going to explain this to her children. Defendant also stated that she 

knew her husband was with "a woman" and she "just had to see her."

Officer Peter H. Appelman of the Bordentown Police Department (BPD) 

arrived on the scene. Appelman observed a car with two occupants in the woods 

and a red truck. He saw the driver of the truck walking around "aimlessly."
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Patrolman Jeffrey Kotora of the BPD joined Appelman at the scene. Appelman 

then approached the car in the woods. He observed blood coming from Jocelyn's 

mouth, and Nicholas was slumped over her shoulder. Appelman spoke with 

defendant, who said she was not injured and not involved with the crash. 

Appelman noted that defendant was shoeless. She was wearing a 

nightgown and kept looking at the car in the woods. Initially, defendant said 

she did not see the accident. After further questioning, defendant told Appelman 

her husband was in the car in the woods. 

Appelman asked defendant to move her car to the shoulder of the road to 

clear the scene of the accident for emergency vehicles. When she moved her 

car, Appelman and Kotora noticed a grinding noise that was coming from the 

car. Appelman also saw what appeared to be a fresh paint transfer on defendant's 

car. Defendant said the damage occurred when her husband hit a deer. The 

officers grew suspicious. Appelman placed defendant in a patrol car for 

investigative detention and informed her of her Miranda rights.2

Brian Pesce, who at the time was a captain in the BPD, arrived at the scene 

about an hour after the accident was first reported. Pesce informed defendant 

her husband was dead. He ordered Appelman to take defendant to the station 

2 Miranda v. Arizona, 384 U.S. 436 (1966). 
7

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for an interview. At the station, Pesce conducted a taped interview with 

Detective Brian Miller from the Burlington County Prosecutor's Office. 

Defendant stated that Jocelyn "turned left and hit that red truck that was right 

there." Defendant said she called her husband while she was following Jocelyn's

car and overheard him pleading with the driver to pull over. 

Defendant asserted that she "was not involved in that accident right there."

She claimed Jocelyn turned and hit Spears's vehicle. Defendant said she was a

short distance behind Jocelyn's car, and she did not know how Jocelyn lost 

control. Defendant stated that she "had complete control" of her car. 

Danielle, Jocelyn's sister, testified that on the night of the accident, 

Jocelyn called her and said defendant "was hitting her car" as she was 

approaching Route 206. She said she overheard Nicholas tell her sister to pull 

over because defendant "probably just want[ed] to talk." She heard a loud noise 

and a scream, then the call went blank. Danielle said she called 9-1-1 to report 

the accident. 

The State's investigators extracted blue paint chips from the bumper of 

defendant's car. They matched the composition of the paint from Jocelyn's car. 

In addition, black paint chips were extracted from the bumper on Jocelyn's car. 

An impression examination indicated that there were impressions from 
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defendant's license plate on the bumper of Jocelyn's car. The State contended 

this evidence showed that defendant's car struck Jocelyn's car twice. 

The jury found defendant guilty of the reckless manslaughter of Jocelyn 

and Nicholas. Thereafter, the trial judge sentenced defendant to two five-year 

terms of incarceration, each with an eighty-five percent period of parole 

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

The judge ordered that the sentences be served consecutively. The judge also 

imposed fines and penalties and ordered defendant to pay restitution in the 

amount of $6,200. 

The judge entered a judgment of conviction dated September 12, 2018. 

On appeal, defendant presents the following arguments:

POINT I

THE INSTRUCTIONAL ERRORS IN THIS CASE, 

ALONE AND IN COMBINATION, DEPRIVED THE 

JURY OF PROPER GUIDANCE AND THE 

DEFENDANT OF DUE PROCESS OF LAW AND 

THE RIGHT TO A FAIR TRIAL. (Not Raised Below).

A. THE JURY INSTRUCTION ON RECKLESS 

MANSLAUGHTER MISSTATED THE LAW 

CAUSING DEFENDANT TO BE CONVICTED OF A 

CRIME NOT CHARGED. (Not Raised Below).

B. THE COURT FAILED TO CONFORM THE 

RECKLESS MANSLAUGHTER CHARGE TO THE 
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A-0805-18T2

SPECIFIC FACTS OF THE CASE AS DIRECTED IN 

THE MODEL CHARGE. (Not Raised Below).

C. THE COURT FAILED TO INSTRUCT THE 

JURY ON THE SPECIFIC FACTS OF THE CASE, 

THE LAW IN REGARD TO CAUSATION AND THE 

SPECIFIC FACTUAL ALLEGATIONS OF EACH 

PARTY IN REGARD TO THEIR THEORY OF 

CAUSATION. (Not Raised Below).

D. THE COURT FAILED TO HELP THE JURY 

UNDERSTAND THE CRIMES CHARGED AND 

MERELY REITERATED THE CONFUSING 

CHARGE WHEN [THE JURY] HAD SEVERAL 

QUESTIONS DURING DELIBERATION[S] 

REGARDING RECKLESS MANSLAUGHTER. (Not 

Raised Below).

E. THE COURT FAILED TO PROVIDE PROPER 

JURY INSTRUCITONS WHEN ALLOWING A 

PLAYBACK OF THE EVIDENCE DURING 

DELIBERATIONS. (Not Raised Below).

POINT II

THE EVIDENCE WAS INSUFFICIENT AS A 

MATTER OF LAW TO SUSTAIN A CONVICTION, 

UNDER THE FACTS OF THIS CASE[,] AS THE 

ONLY EVIDENCE OF RECKLESSNESS WAS

[DEFENDANT'S] OPERATION OF THE MOTOR 

VEHICLE . . . . 

POINT III

THE COURT ERRED BY FAILING TO STRIKE 

404(B) EVIDENCE, WHEN THE ONLY PURPOSE 

OF ADMITTING THE EVIDENCE WAS TO 

UNDULY PREJUDICE THE JURY . . . .
10 A-0805-18T2

POINT IV

THE STATE IMPROPERLY COMMENTED ON 

[THE] LAW WHICH WAS NOT PART OF THE 

STANDARD CHARGE THAT THE PARTIES 

AGREED TO USE, AND THE COURT FAILED TO 

STRIKE THE IMPROPER REFERENCE . . . .

II. 

We turn first to defendant's contention that the trial judge erred in his 

instructions to the jury on reckless manslaughter. Defendant argues that the 

judge erred by failing to instruct the jury on death by auto or vessel under 

N.J.S.A. 2C:11-5, as an included offense. We disagree. 

"[A]ppropriate and proper charges are essential for a fair trial." State v. 

Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 

(2004)). The trial court is required to give the jury "a comprehensible 

explanation of the questions that the jury must determine, including the law of 

the case applicable to the facts that the jury may find." Id. at 159 (quoting State 

v. Green, 86 N.J. 281, 287-88 (1981)). "Erroneous instructions on matters or 

issues that are material to the jury's deliberation are presumed to be reversible 

error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997) (citing 

State v. Warren, 104 N.J. 571, 579 (1986)). 
11 A-0805-18T2

Where, as here, no objection is raised, we review the instructions for plain 

error and must determine whether the error was "clearly capable of producing 

an unjust result." State v. Alexander, 233 N.J. 132, 141-42 (2018) (citing R.

2:10-2). "The mere possibility of an unjust result is not enough." Id. at 142 

(quoting State v. Funderburg, 225 N.J. 66, 79 (2016)). "Rather, '[t]he possibility 

must be real, one sufficient to raise a reasonable doubt as to whether the error 

led the jury to a result it otherwise might not have reached." Ibid. (quoting State 

v. Macon, 57 N.J. 325, 336 (1971)).

Here, the judge instructed the jury on reckless manslaughter. The 

Criminal Code states that criminal homicide constitutes manslaughter when "[i]t 

is committed recklessly." N.J.S.A. 2C:11-4(b)(1). The Criminal Code also 

states that 

A person acts recklessly with respect to a material 

element of an offense when he [or she] consciously 

disregards a substantial and unjustifiable risk that the 

material element exists or will result from his [or her] 

conduct. The risk must be of such a nature and degree 

that, considering the nature and purpose of the actor's 

conduct and the circumstances known to him [or her], 

its disregard involves a gross deviation from the 

standard of conduct that a reasonable person would 

observe in the actor's situation.

[N.J.S.A. 2C:2-2(b)(3).] 
12 A-0805-18T2

In this case, the judge instructed the jury in accordance with the model 

jury charge. See Model Jury Charges (Criminal), "Reckless Manslaughter

(N.J.S.A. 2C:11-4b(1))" (rev. Mar. 22, 2004). The judge told the jury the State 

was required to prove beyond a reasonable doubt that defendant caused 

Nicholas's death and that she did so "recklessly." The judge explained that 

[a] person who causes another's death does so recklessly 

when she is aware of and consciously disregards a 

substantial and unjustifiable risk that death will result from 

her conduct. The risk must be of such a nature and degree 

that, considering the nature and purpose of defendant's 

conduct and the circumstances known to the defendant, 

her disregard of that risk is a gross deviation from the 

standard of conduct that a reasonable person would follow 

in the same situation.

In other words, you must find that defendant was aware of 

and consciously disregarded the risk of causing death. If 

you find that the defendant was aware of and disregarded 

the risk of causing death, you must determine whether that 

risk that she disregarded was substantial and unjustifiable. 

In doing so, you must consider the nature and purpose of 

the defendant's conduct, and the circumstances known to 

the defendant. And you must determine whether, in light 

of those factors, defendant's disregard of that risk was a 

gross deviation from the conduct a reasonable person 

would have observed in defendant's situation. 

The judge further explained that the State had to prove beyond a reasonable 

doubt that defendant caused Nicholas's death. The judge noted that "[c]ausation has 

a special meaning under the law." The judge stated that to establish causation, the 
13 A-0805-18T2

State had to prove two elements beyond a reasonable doubt, specifically, that but for 

defendant's conduct, Nicholas would not have died, and that his death was "within 

the risk of which the defendant was aware." The judge provided the same instruction 

with regard to the reckless manslaughter charge pertaining to Jocelyn's death. 

Defendant argues, however, that the instruction was erroneous because the 

judge did not also charge the jury on the included offense of death by auto. In 

support of this argument, defendant relies upon State v. Jiminez, 257 N.J. Super. 

567 (App. Div. 1992).

In Jiminez, the defendant was charged with first-degree aggravated 

manslaughter under N.J.S.A. 2C:11-4(a). Id. at 575. The trial judge instructed

the jury on that offense, as well as the lesser-included offenses of second-degree 

reckless manslaughter under N.J.S.A. 2C:11-4(b)(1) and third-degree death by 

auto under N.J.S.A. 2C:11-5. Ibid. The court held that the instructions were 

confusing and did not accurately reflect the applicable law. Ibid. 

We explained that in State v. Milligan, 202 N.J. Super. 336, 351 (App. 

Div. 1986), when a death results from reckless driving, a person may not be 

charged with reckless manslaughter and death by auto because the standard of 

conduct pertaining to both offenses was the same. The Supreme Court affirmed 

our decision. State v. Milligan, 104 N.J. 67 (1986). However, after the Supreme 
14 A-0805-18T2

Court's decision in Milligan, the Legislature amended the death by auto statute 

to provide that

[n]othing herein shall be deemed to preclude, if the 

evidence so warrants, an indictment and conviction for 

manslaughter under the provisions of N.J.S.[A.] 2C:11-

4. If an indictment for manslaughter is brought in a 

case involving the operation of a motor vehicle, death 

by auto shall be considered a lesser-included offense. 

[Jiminez, 257 N.J. Super. at 576; N.J.S.A. 2C:11-5(d), 

as amended by L. 1988, c. 75.] 

However, in 1995, the Legislature again amended N.J.S.A. 2C:11-5. The 

1995 amendments renamed the offense of death by auto or vessel as "vehicular 

homicide," upgraded the offense to a crime of the second degree, provided that 

in certain circumstances "vehicular homicide" shall be either a first-degree or 

third-degree offense, and deleted the language in N.J.S.A. 2C:11-5(d) that stated

death by auto or vessel shall be considered a lesser-included offense of reckless 

manslaughter. L. 1995, c. 285. 

We are convinced that the trial judge did not err by failing to instruct the 

jury on death by auto or vessel. The amendment to N.J.S.A. 2C:11-5 enacted in 

1995 makes clear that death by auto or vessel should no longer be considered a

lesser-included offense of reckless manslaughter. Indeed, as amended in 1995, 

the crime of reckless death by auto or vessel is, with certain exceptions, a 
15 A-0805-18T2

second-degree offense. N.J.S.A. 2C:11-5(b). Reckless manslaughter also is a 

second-degree offense. N.J.S.A. 2C:11-4(c). Thus, vehicular homicide is not a 

lesser-included offense of reckless manslaughter. 

Moreover, N.J.S.A. 2C:1-8(e) provides that a trial judge "shall not charge 

the jury with respect to an included offense unless there is a rational basis for a 

verdict convicting the defendant of the included offense." To justify the 

instruction, "a rational basis must exist in the evidence for a jury to acquit the 

defendant of the greater offense as well as to convict the defendant of the lesser, 

unindicted offense." Funderburg, 225 N.J. at 81 (quoting State v. Savage, 172 

N.J. 374, 396 (2002)). Where the parties do not request an instruction on an 

included offense, the judge should only charge the offense "where the facts in 

evidence 'clearly indicate' the appropriateness of that charge." Ibid. (quoting 

Savage, 172 N.J. at 397). 

The judge is not required to "sift through the entire record" to determine 

if "some combination of facts and inferences might rationally sustain" a 

conviction on a lesser charge. Ibid. (quoting State v. Choice, 98 N.J. 295, 299 

(1985)). The judge only is required to provide the instruction if the evidence on

the lesser charge is figuratively "jumping off the page . . . ." Id. at 81-82 (quoting 

State v. Denofa, 187 N.J. 24, 42 (2006)). 
16 A-0805-18T2

Here, the evidence presented at trial did not provide a rational basis for 

the jury to find defendant not guilty of reckless manslaughter and guilty of 

reckless death by auto. At trial, the State presented evidence showing defendant 

chased Jocelyn's car on a dark, rainy evening. The State alleged that during the 

chase, defendant's car struck Jocelyn's car twice, as shown by the damage to the 

license plate and the paint transfer, although defendant contended that she only 

struck Jocelyn's car once. 

The State asserted that defendant's car was directly behind Jocelyn's car 

when Jocelyn approached the curve, entered the oncoming lane of travel, and 

collided with the truck, causing the deaths of Jocelyn and Nicholas. The State 

maintained defendant's actions collectively caused the deaths of Jocelyn and 

Nicholas, while defendant insisted the collision that caused their deaths was 

merely an accident. 

We conclude that based on the evidence presented at trial, the judge was 

not obligated to instruct the jury sua sponte on death by auto or vessel as an 

included offense. Here, the primary focus of the State's case was upon 

defendant's actions in chasing Jocelyn's car on dark, wet roads. The evidence 

did not "clearly indicate" the need for an instruction on death by auto. Id. at 82 

(quoting Denofa, 187 N.J at 42). 
17 A-0805-18T2

III.

Defendant further argues that the trial judge erred by failing to instruct the 

jury that she could not be found guilty of reckless manslaughter unless she 

engaged in additional acts of recklessness independent of her reckless operation 

of her vehicle. Again, we disagree. 

In Jiminez, we held that the amendments to N.J.S.A. 2C:11-5 enacted in 

1995 required the trial judge to explain to the jury "the subtle and sophisticated 

distinctions between the concept of recklessness envisioned by the Legislature 

in death by auto as distinguished from the recklessness envisioned in the 

manslaughter statute." 257 N.J. Super. at 583. We suggested that when a 

defendant is charged with both offenses, the jury charge should include the 

following:

Let me differentiate between the reckless manslaughter 

statute and the death by auto statute. Standing alone, 

the reckless driving of an automobile which results in 

the death of another satisfies all of the requirements for 

violation of the death by auto statute provided you are 

so convinced beyond a reasonable doubt.

A reckless manslaughter conviction, on the other hand, 

must be based upon proof beyond a reasonable doubt 

that the defendant engaged in additional acts of 

recklessness beyond the mere driving of an automobile 

in a reckless manner and that these additional acts of 

recklessness were also a cause of the victim's death. 

That is, causative acts of recklessness different in kind 
18 A-0805-18T2

from, although not necessarily worse than, that 

involved in reckless driving. 

[Id. at 583-84.]

Defendant also cites the model jury charge on reckless manslaughter, 

which includes a footnote stating that when the State alleges "that the defendant 

caused the death of another by operating a motor vehicle or vessel, death by auto 

or vessel 'shall be considered a lesser-included offense' under N.J.S.A. 2C:11-

5d." Model Jury Charges (Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-

4b(1))" n.2 (rev. Mar. 22, 2004). According to the model charge, the judge 

should explain that reckless manslaughter

requires proof beyond a reasonable doubt that the 

defendant drove his/her vehicle (or vessel) recklessly, 

and also that he/she engaged in additional acts of 

recklessness, independent of his/her operation of the 

vehicle (or vessel), that contributed to the victim's 

death. Death by auto (or vessel), on the other hand, 

only requires proof beyond a reasonable doubt that the 

defendant recklessly drove his/her vehicle (or vessel), 

causing the death of another, and it requires no 

additional acts of recklessness.

[Ibid.]

However, as stated previously, the 1995 amendments to N.J.S.A. 2C:11-5

provide that death by auto or vessel shall no longer be considered a lesserincluded offense of reckless manslaughter, and the evidence in this case did not 
19 A-0805-18T2

"clearly indicate" that a charge on death by auto or vessel was appropriate. 

Funderburg, 225 N.J. at 82 (quoting Denofa, 187 N.J at 42). Thus, the judge 

was not required to explain to the jury the differences between reckless 

manslaughter and death by auto or vessel. 

Moreover, the judge was not required to instruct the jury that she could 

not be found guilty of reckless manslaughter unless the State proved defendant

drove her vehicle recklessly and engaged in additional acts of recklessness 

independent of her operation of her vehicle. The 1995 amendments to N.J.S.A. 

2C:11-5 eliminated the need to distinguish between the sort of recklessness 

required to find a person guilty of reckless manslaughter and reckless death by 

auto. 

We note that in State v. Jamerson, the Court stated that

[t]he recklessness required for manslaughter is not the 

same as that required for death by auto. For reckless 

manslaughter, the State must prove beyond a 

reasonable doubt causative acts of recklessness that are 

different in kind from the acts involved in reckless 

driving that support a conviction for death by auto. 

[153 N.J. 318, 334 (1998) (citing Jiminez, 257 N.J. 

Super. at 584).] 
20 A-0805-18T2

Jamerson did not, however, discuss the 1995 amendments to N.J.S.A. 2C:11-5

and its decision pertained to pre-1995 events. See Cannel, New Jersey Criminal 

Code Annotated, cmt. 3 on N.J.S.A. 2C:11-5 (2020).

We also note that in State v. Pigueiras, 344 N.J. Super. 297, 306-13 (App. 

Div. 2001), we considered the adequacy of a jury charge on the degree of 

recklessness required for aggravated assault. We cited Jamerson and Jiminez

and observed that "where there are two offenses each with recklessness alone 

and a quantitative difference is required, the jury must be given sufficient 

instructions as to those additional acts which would make clear the quantitative 

distinction." Id. at 312. 

However, the reasoning in Pigueiras does not apply here. Since reckless 

manslaughter is a second-degree crime and death by auto is generally a crime of 

the same degree, there is no "quantitative distinction" between the two offenses. 

Thus, the judge was not required to instruct the jury that the State had to prove 

defendant drove her vehicle recklessly and engaged in additional acts of 

recklessness independent of her operation of her vehicle. 

Furthermore, defendant did not object to the instruction on reckless 

manslaughter, and she has not shown that the alleged error in the instruction 

constituted an error "clearly capable of producing an unjust result." Alexander, 
21 A-0805-18T2

233 N.J. at 141-42 (citing R. 2:10-2). At trial, the State presented more than 

enough evidence to show that in chasing Jocelyn and Nicholas on the evening 

of December 2, 2015, defendant engaged in additional acts of recklessness 

independent of her reckless operation of her vehicle. Defendant has not shown

that the jury was likely to reach a different verdict on reckless manslaughter if 

the judge had provided the instruction defendant contends was required. 

Defendant also argues that the judge erred by failing to respond 

appropriately to questions presented by the jury during deliberations. The 

record shows that the jury asked the judge to explain an element of reckless 

manslaughter, specifically causation. After discussing the matter with counsel, 

the judge referred the jury back to his initial instructions. The judge added that 

when you're talking about the kind of injury or harm 

that's the probable result of the defendant's conduct, 

whether something is too remote, too accidental or too 

dependent on another's volitional act, the [c]ourt is 

going to ask you to look into your experience, your 

knowledge and common sense to analyze those factors.

The jury apparently was satisfied with the court's clarification of the 

instruction and asked no additional questions regarding this aspect of the 

instruction. Therefore, we reject defendant's contention that the jury had a 

difficulty with the charge as a whole and with the issue of whether she caused 

the deaths of Nicholas and Jocelyn. 
22 A-0805-18T2

IV.

Defendant further argues that the judge erred by failing to provide an

instruction to the jury after the judge granted the jury's requests for playbacks

of the audio recording of defendant's OnStar calls and the video recording of her 

police interview. Defendant contends that because an instruction was not given, 

there was "an extreme likelihood" the jury placed "greater significance" and 

gave "greater weight" to these playbacks as evidence. 

A trial judge "should ordinarily grant a jury's request to play back 

testimony." State v. Miller, 205 N.J. 109, 122 (2011) (citing State v. Wilkerson, 

60 N.J. 452, 460 (1972); State v. Wolf, 44 N.J. 176, 185 (1965)). However, 

"[j]udges should take precautions to prevent juries from placing undue emphasis 

on the particular testimony that is replayed." Id. at 123 (citing State v. Michaels,

264 N.J. Super. 579, 644-45 (App. Div. 1993)). 

When the evidence is replayed, the trial judge "should instruct jurors to 

consider all of the evidence presented and not give undue weight to the 

testimony played back." Ibid. The model jury charge states that

[m]embers of the jury you have requested a playback of 

testimony of [name of witness(es)]. The recorded 

testimony has been played for you. In your 

deliberations, you are instructed to consider all of the 

evidence presented, and not give undue weight to the 

testimony you have heard [and seen] played back. 
23 A-0805-18T2

[Model Jury Charges (Criminal), "Playback of 

Testimony" (approved Apr. 16, 2012).]

Defendant does not argue that the judge erred by playing back the 

recordings of her OnStar calls and her police interview. She contends, however,

that the judge erred by failing to instruct the jury that it must not give "undue 

weight" to this evidence. There is nothing in the record which supports the 

conclusion that the jury may have given "undue weight" to the evidence played 

back. 

Here, the judge should have provided the instruction required by Miller, 

even though defendant did not request it. However, based on our review of the 

record, we are convinced that the judge's failure to instruct the jury on the 

playbacks was not an error "clearly capable of producing an unjust result." R.

2:10-2. 

V.

Defendant further argues that the State failed to present sufficient 

evidence to sustain her convictions for reckless manslaughter. She contends the 

State failed to present any evidence that she engaged in acts of recklessness 

other than recklessness related to her operation of her motor vehicle. 

At trial, the State presented sufficient evidence to establish beyond a 

reasonable doubt all of the elements of both counts of reckless manslaughter. 
24 A-0805-18T2

As we have explained, the evidence shows that after defendant saw Nicholas

enter the car with a woman, she dashed out of her house in her nightgown, got 

into her car, and began to pursue Jocelyn's car. Defendant admitted that she 

pursued Jocelyn's car to see whom Nicholas was riding with. She acknowledged 

that she should not have been pursuing Nicholas and Jocelyn. 

Defendant chased Jocelyn's car on wet roads for about ten miles, traveling 

at times at speeds of up to fifty-nine miles per hour. There was evidence that

defendant's car may have struck Jocelyn's car twice. Using the OnStar device 

in her car, defendant phoned Nicholas and asked him to have Jocelyn stop so 

that she could speak with him. 

Jocelyn continued to drive on and according to defendant, was driving 

too fast when she entered a curve. Jocelyn lost control of her car, entered the 

lane of oncoming travel, and collided with the truck. The car left the roadway, 

entered the woods, and landed in a ditch. Jocelyn and Nicholas suffered fatal 

injuries in the crash. 

Thus, the State presented sufficient evidence to establish the elements of 

reckless manslaughter in N.J.S.A. 2C:11-4(b)(1). In this case, the State was not 

required to prove defendant "engaged in additional acts of recklessness beyond 

the mere driving of an automobile in a reckless manner and that these additional 
25 A-0805-18T2

acts of recklessness were also a cause of the victim's death." Jiminez, 257 N.J. 

Super. at 584. There was, however, sufficient evidence to support the 

conclusion that defendant drove her vehicle recklessly and also engaged in 

additional acts of recklessness in her relentless pursuit of Jocelyn's car. 

VI.

Defendant argues the judge erred by failing to strike evidence of certain 

bad acts or wrongs that was elicited by the State during her cross examination. 

She contends the evidence was not admissible under N.J.R.E. 404(b) and the 

sole purpose for its admission was to unduly prejudice the jury. 

N.J.R.E. 404(b)(1) does not permit the admission of evidence of other 

crimes, wrongs, or acts "to prove a person's disposition in order to show that on 

a particular occasion the person acted in accordance with such disposition. " 

Such evidence may, however, "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." N.J.RE. 404(b)(2). In determining whether to admit evidence of
26 A-0805-18T2

another crime, wrong or act, the trial court must apply the analysis established 

in State v. Cofield, 127 N.J. 328, 338 (1992).3 

At trial, defendant testified on direct examination that she had been in the 

United States Air Force. She said she had a physical condition which was part 

of the reason she was no longer in the military. Defendant testified that she had 

received a "military disability determination." She acknowledged that she could 

not return to the military even if she wanted to do so. 

On cross-examination, the prosecutor asked defendant if on the day of the 

accident, she had signed a document indicating that her commanding officer 

informed her she was going to receive a "nonjudicial punishment." Defense 

counsel objected to the question. After hearing argument outside the presence 

of the jury, the judge sustained defendant's objection. The prosecutor then 

continued his cross examination. 

We reject defendant's contention that the judge erred by failing to strike

this "evidence." Defendant contends evidence regarding the "military disability 

determination" was not admissible under N.J.R.E. 404(b). However, defendant 

never answered the question and the question was not evidence. Although the 

3

 The usefulness of the second Cofield prong "is limited to cases that replicate 

the circumstances in Cofield[,]" which related to the possession of drugs. State 

v. Williams, 190 N.J 114, 131 (2007).
27 A-0805-18T2

judge probably should have instructed the jury to disregard the question, 

defendant has not shown she was unduly prejudiced by the question. We 

conclude the error was not "clearly capable of producing an unjust result." R.

2:10-2. 

VII.

Defendant further argues that the assistant prosecutor improperly 

commented on the law in his closing argument. Defendant cites the following 

remarks: 

[W]hen we talk about the word risk, I want to point one 

thing out. Risk that death will result from her 

conduct[.] She doesn't need to think that it's certainly 

going to result or it's probably going to result. A New 

Jersey Supreme Court case talks about the possibility 

of death. I don't need to prove to you that she thought 

that her actions that night, the risks she [was] taking 

would certainly or probably result in those peoples'

death, those victims' death. But merely that she 

disregarded only a possibility of causing that.

Defendant contends the prosecutor misstated the law by using the word 

"possibility" rather than "probability." See Jamerson, 153 N.J. at 336 (citing 

N.J.S.A. 2C:2-3(c)). 

"[P]rosecutorial misconduct is not grounds for reversal of a criminal 

conviction unless the conduct was so egregious as to deprive [the] defendant of 

a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v. 
28 A-0805-18T2

Chew, 150 N.J. 30, 84 (1997)). "To justify reversal, the prosecutor's conduct 

must have been clearly and unmistakably improper, and must have substantially 

prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the 

merits of his [or her] defense." State v. Nelson, 173 N.J. 417, 460 (2002) 

(alterations in original) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). 

We are convinced the prosecutor's statements regarding the law were not 

"clearly and unmistakably improper" and did not "substantially prejudice"

defendant's right to a fair trial. As noted, the judge told the members of the jury 

he would instruct them on the legal principles they must apply in reaching their 

verdict. We have no reason to assume "the jury did not faithfully follow" the 

court's instruction. Nelson, 173 N.J. at 447 (quoting State v. Manley, 54 N.J. 

259, 271 (1969)). 

 Affirmed.