NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3224-21

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

SHANNON A. MCGUIGAN, 

 Defendant-Appellant. 

________________________

Argued March 6, 2024 – Decided April 9, 2024

Before Judges Accurso, Vernoia, and Gummer. 

On appeal from the Superior Court of New Jersey, 

Law Division, Burlington County, Indictment Nos. 19-

07-0888 and 20-03-0306.

Samuel Clark Carrigan, Assistant Deputy Public 

Defender, argued the cause for appellant (Jennifer 

Nicole Sellitti, Public Defender, attorney; Samuel 

Clark Carrigan, of counsel and on the briefs). 

Nicole Handy, Assistant Prosecutor, argued the cause 

for respondent (La Chia Lyn Bradshaw, Burlington 

County Prosecutor, attorney; Nicole Handy, of counsel 

and on the brief). 

 The opinion of the court was delivered by 

GUMMER, J.A.D. 

APPROVED FOR PUBLICATION 

April 9, 2024 

APPELLATE DIVISION 
A-3224-21 2 

 After twice viewing a video recording of a police interrogation of 

defendant Shannon McGuigan and after the trial court barred in part the 

testimony of her expert witness, a jury convicted her of having committed a 

first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a), 

along with other drug-related crimes. Defendant appeals from those 

convictions, arguing, among other things, that the interrogating detective had 

engaged in deceptive tactics that rendered her Miranda1 waiver invalid and the 

trial court erred in admitting her statement to police and in limiting the 

testimony of her expert. Because the trial court did not conduct evidentiary 

hearings pursuant to N.J.R.E. 104, its admission of defendant's statement was 

plain error and its limitation of the testimony of her expert witness was an 

abuse of discretion. Accordingly, we remand the case and direct the trial court 

to conduct evidentiary hearings regarding the voluntariness of defendant's 

statement, the qualifications of her expert witness, and the admissibility of his 

opinions. As we explain in this opinion, whether defendant's convictions are 

affirmed or whether she is entitled to a new trial depends on the outcomes of 

those hearings. 

1

 Miranda v. Arizona, 384 U.S. 436 (1966). 
A-3224-21 3 

I.

 After she woke up on the morning of May 30, 2017, Sheryl Maser went 

to her daughter Emily's bedroom and found Emily dead.2 The county medical 

examiner concluded Emily had died as the result of fentanyl and heroin 

toxicity. That fatal overdose was not Emily's first experience with heroin. 

 According to data later extracted from one of Emily's cell phones, Emily 

had sent a text message to a contact labeled "Shannon J.R." on May 12, 2017, 

to purchase twenty-dollars-worth of narcotics. On May 14, 2017, Emily again 

texted "Shannon J.R." to arrange a purchase of thirty-dollars-worth of heroin. 

Defendant testified at trial that J.R. was her friend and drug dealer. She 

assisted him in his drug-dealing efforts by giving him rides; she received drugs 

in return. Defendant first met Emily about three months before her death when 

she drove J.R. to meet Emily so he could sell her drugs. Defendant was 

involved in selling heroin to Emily approximately three times. J.R. was jailed 

sometime in May 2017. Defendant admitted at trial she had sold and used the 

heroin he had left behind. 

On May 19, 2017, Sheryl called 9-1-1 and reported she had found drug 

paraphernalia in the house she shared with Emily and that Emily was home and 

2

 Because of their shared last names, we use their first names when 

referencing Sheryl and Emily for clarity and ease of reading. We intend no 

disrespect in doing so. 
A-3224-21 4 

had active arrest warrants. After Sheryl allowed him to enter the house, police 

patrolman Joshua Danka found Emily in her bedroom. Danka arrested Emily 

and seized approximately fifty empty wax paper folds, a glass smoking pipe, 

about thirty-five pills, and approximately thirty hypodermic syringes, all left 

out in plain view. He did not look under the bed. Detective Sergeant Brian 

Smith testified at trial wax paper packets are a common form of packaging for 

narcotics sold individually or on the street. 

According to Sheryl, the police took what drug paraphernalia "they 

could see." After Emily's arrest, Sheryl cleaned Emily's bedroom, throwing 

out other wrappers and "[a]nything else [she] could find." Sheryl did not clean 

under Emily's bed, but she "moved the bed and cleaned around it." Following 

her arrest on May 19, 2017, Emily remained in jail for the next eight days. 

Kyle Potts, Emily's boyfriend, picked Emily up from jail on May 27, 

2017, after another friend had posted her bail. They eventually went to a party 

with Emily's parents at a friend's farm and then spent the night at Potts's house. 

Potts did not witness Emily consume any drugs at the party or that night. 

 According to data extracted from Emily's cell phone, Emily texted 

defendant the next day at 4:22 a.m.: "Hey, it's Emily. Sorry so early. Gotta 

sneak shit. Is J.R. still locked up? Text this number now or Fa[c]ebook Emily 

Maser. I need shit." Emily next texted, "But I got 40." Defendant responded, 
A-3224-21 5 

saying J.R. was "still locked up and no one knows when he's getting out." A 

few minutes later, defendant texted Emily: "If you got a ride out here, I'll 

serve you, but there's no way in hell I'm driving out to [Presidential Lakes] at 6 

a.m. for $40." Emily texted her, "I need the D.," which according to Detective 

Smith meant "dope," a word used interchangeably with heroin. Emily asked 

defendant if she would "come serve [her]?" Throughout the day, Emily 

repeatedly asked defendant to meet her, and defendant eventually agreed. 

Emily confirmed she had $40, provided her home address, and asked defendant 

if she could "do eight"; defendant responded that she could do "seven." 

At trial, defendant admitted she and Emily had been "texting back and 

forth all day" on May 28, 2017, and had agreed she would sell Emily seven 

bags of heroin for $40. After taking Emily to her friend's house so she could 

repay the bail money, Potts dropped Emily off at her home at about 3:00 p.m. 

Defendant met Emily at about 6:00 p.m. at a park near Emily's home to sell her 

the heroin. According to defendant, the bags of heroin she sold to Emily had a 

gecko stamp on them. 

Potts returned to Emily's house at around 7:00 p.m. After driving with 

Emily to a nearby Wawa convenience store to purchase food, Potts returned 

Emily to her home and left at about 2:45 a.m. on May 29, 2017. During their 

time together that night, he did not see Emily take drugs. 
A-3224-21 6 

Sometime after 6:00 p.m. on May 29, 2017, Sheryl returned home. 

When she arrived, Emily was home alone, in her room. Sheryl saw Emily at 

about 11:00 p.m., when Emily came out of her room to ask for a cigarette. 

That was the last time Sheryl saw Emily before finding her in her bed the next 

morning. 

After she saw Emily's body, Sheryl called 9-1-1. Officer Danka met 

Sheryl outside the house. Sheryl pointed to an upstairs bedroom. Danka 

entered the house, went to the bedroom, and saw Emily's body. Paramedics, 

other patrolmen, and Detective Smith arrived on the scene. The paramedics 

confirmed Emily did not have a pulse. 

Smith found a Motorola cell phone in Emily's hand, an Apple iPhone on 

her windowsill, and an LG cell phone – with Emily's name on the back – atop 

her dresser. Sheryl confirmed she had seen her daughter use both the Motorola 

and LG cell phones. Detective Smith sent the Motorola and LG to the 

Burlington County Prosecutor's Office High-Tech Crimes Unit for data 

extraction. From the results of a subpoena issued to Verizon, Detective Smith 

determined that one number in Emily's contact list, labelled as both "J.R. 

Shannon" and "Shannon J.R.," belonged to defendant. 

Detective Smith found syringes on Emily's windowsill. He also found a 

variety of wax paper folds scattered around Emily's room. He found one used, 
A-3224-21 7 

white, unstamped fold near Emily's arm; two used, white, unstamped folds 

underneath Emily's body; and four white, unstamped folds on a glass tray near 

her body. In a box underneath Emily's bed, he found several folds with a blue 

gecko stamp, a red Snapchat stamp, or "some sort of red mark" and several 

unstamped folds. Near Emily's dresser, he found one fold with a green dragon 

stamp in a yellow basket and one fold with a "Grand Theft" blue stamp atop 

her dresser. 

Detective Smith did not send any of the wax paper folds found 

underneath Emily's bed or near her dresser for testing because they "didn't 

appear to contain any substance." In July 2017, he sent one of the white, 

unstamped folds found near Emily's body to National Medical Services 

(NMS), which tested it and found its contents positive for heroin, fentanyl, and 

quinine. Two years later, in September 2019, Detective Smith sent two more 

bags, also white, unstamped, and found near Emily's body; they tested positive 

for heroin, fentanyl, and trace amounts of quinine. 

Susan Crookham, a scientist employed by NMS, analyzed results of tests 

NMS had performed on Emily's urine and confirmed it had contained 

nordiazepam, morphine, fentanyl, norfentanyl, opiates, benzodiazepines, 

cannabinoids, and 6-monoacetylmorphine, which is indicative of heroin use. 

Dr. Ian Hood, who was the county medical examiner, concluded Emily had 
A-3224-21 8 

died from heroin and fentanyl toxicity likely within an hour from the time she 

was last seen alive on May 29, 2017. Dr. Hood testified that it is "a very 

common scenario . . . where people have just gotten out of jail . . . lost their 

tolerance. That takes one to two weeks. And then they get out and they go 

and take the same old dose they were used to and they immediately die." 

On November 17, 2017, approximately five and one-half months after 

Emily's death, Detective Smith conducted an interrogation of defendant at the 

police department.3 Smith testified he had read defendant her Miranda rights 

before she spoke with him. In fact, he had asked defendant several questions 

before he advised her of her rights, including the following questions about her 

cell phone: 

Det. Sgt. Smith: . . . How about a cell phone number 

for you? 

[Defendant]: (XXX) XXX-XXXX.

Det. Sgt. Smith: What carrier is that? Sprint? Metro? 

T –

[Defendant]: . . . Verizon. 

Det. Sgt. Smith: Verizon? How long have you had 

that phone number? 

[Defendant]: Ever since I had a cell phone. 

3

 The State does not dispute the custodial nature of the interrogation. 
A-3224-21 9 

Det. Sgt. Smith: How long is that? 

[Defendant]: Years. 

Once he obtained that information from her, Detective Smith advised 

defendant of her Miranda rights, and she agreed to waive them. Detective 

Smith told defendant he was "doing an investigation that goes all the way back 

'til May" and questioned her about J.R. He initially said nothing about Emily. 

Defendant denied she had "ever helped J.R. facilitate his selling in order 

to get . . . free [heroin]" but admitted she had occasionally provided car rides 

to him in exchange for drugs. When asked if she knew any of J.R.'s clients, 

defendant stated she "knew . . . some of them" and referenced a few by name, 

but not Emily. Detective Smith told defendant he did not believe she was 

"being completely honest" and said he "kn[e]w a lot about" her. 4 Detective 

Smith told defendant he had "done a pretty thorough investigation" and had 

"gone through a lot of records . . . [and] through cell phones and stuff like 

that" and suggested they "need[ed] to open up . . . an avenue of honesty." 

4

 Before trial, defendant moved to redact this language from the recording of 

the interrogation to be shown to the jury, arguing it prejudicially suggested 

Detective Smith had additional evidence regarding defendant's drug dealing. 

The court granted the motion, and the detective's comments about not 

believing defendant was "being completely honest" and that he "kn[e]w a lot 

about" her were redacted and not played for the jury. 
A-3224-21 10

Detective Smith eventually asked defendant, "Do you know a girl named 

Emily?" After the detective described Emily, defendant responded, "I think I 

know who you're talking about." The detective asked her, "[Do y]ou 

remember where she lives?" Defendant named two towns and said, "I know of 

her," indicating she knew Emily through J.R. She admitted she previously had 

communicated with Emily through text messages but stated she had not been 

in touch with Emily in "[a] long time, because I haven't even been dealing with 

any of this stuff since May." She told the detective she "had started on 

methadone" in May and "[o]nce [she] started at the clinic, [she] wasn't dealing 

with anything anymore." 

 Detective Smith asked defendant, "[D]o you know what's up with 

Emily?" Defendant confirmed she had not talked to Emily since May. In 

response to the detective's direct question, defendant denied she had ever sold 

anything to Emily. Detective Smith then read to her language from some of 

their texts, told her that her "best bet" was to help him "figure out [her] 

involvement in this," and represented to her, "I'm not holding anything back. 

I'm not lying to you. I'm laying it all out . . . on the table and telling you 

what's up." Defendant then admitted she had sold heroin to Emily 

approximately three times and stated the last time had been before May when 
A-3224-21 11

she "started at the clinic," but she also admitted selling J.R.'s heroin after he 

went to jail for "a couple of weeks after [she] started at the methadone clinic." 

Detective Smith did not tell defendant Emily had died, and throughout 

the interrogation, he repeatedly used the present tense when referencing her. 

In addition to the above questions he posed in the present tense, he asked 

defendant, "How old is Emily?" He asked defendant if she thought "she's in 

her 20s?" Before ending the interview, Detective Smith asked defendant, 

"Does [Emily] have a boyfriend?" 

In 2019, a grand jury returned an indictment charging defendant with 

third-degree possession of a controlled dangerous substance with the intent to 

distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); firstdegree strict liability for a drug-induced death, in violation of N.J.S.A. 2C:35-

9(a); third-degree distribution of a controlled dangerous substance, in violation 

of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and third-degree possession of a 

controlled dangerous substance, in violation of N.J.S.A. 2C:35-10(a)(1). 

Before trial, the State moved to bar the testimony of defendant's witness, 

Lawrence J. Guzzardi, M.D., who purportedly was an expert in the fields of 

toxicology, drug use, and addiction. In his report, Dr. Guzzardi stated, among 

other things, that he found "it very unusual that [Emily] could have obtained 

drugs of some nature from [defendant] on May 28, 2018, and not used those 
A-3224-21 12

drugs until after 11:30 p.m. on May 29, 2018," because "[t]he nature of opioid 

addiction is that the powerful attraction of the drug does not allow hoarding." 

Labelling Emily "an experienced chronic drug abuser," he also opined "[a]n 

experienced chronic abuser of heroin would have utilized [the amount of 

heroin defendant sold to Emily] quickly, likely within hours of receipt" and 

"[d]rugs delivered on May 28, 2018, would not have been present in [Emily's] 

blood if she had utilized them as expected on that date." Dr. Guzzardi 

addressed the effects of fentanyl on the human body; identified other 

potentially lethal substances for which NMS had not tested; and found 

"[w]ithout an examination of the internal organs, no conclusion can be made as 

to what other factors contributed to [Emily's] death" and "[t]he level of opioids 

present may or may not have been the cause of her death." 

Dr. Guzzardi asserted in his report he had "worked with many, many 

substance abusers." His curriculum vitae (CV), however, did not provide any 

specific information about any recent work with "substance abusers." As set 

forth in his CV, Dr. Guzzardi completed a residency in emergency medicine in 

1978 and the course work for a master's program in toxicology with a focus on 

tricyclic antidepressants in 1980. According to the information provided in the 

CV, Dr. Guzzardi served as a hospital's "Director" of "Substance Abuse 

Service" from 1988 to 1993 while he worked as an attending physician in that 
A-3224-21 13

hospital's emergency department from 1989 to 1998. Dr. Guzzardi served on 

specialty boards relating to family practice, emergency medicine, and medical 

toxicology. He held teaching positions, the last one in 1990, in emergency 

medicine. He gave a lecture on antidepressant overdose in April 1982, 

barbiturate poisoning in 1981, and "street drug" abuse in 1982. 

The State conceded Dr. Guzzardi was an expert in toxicology but 

challenged his asserted expertise in substance abuse. The State also argued Dr. 

Guzzardi had issued a net opinion, with insufficient facts to support his 

conclusions. After hearing argument, the motion judge granted in part and 

denied in part the State's motion. The judge found Dr. Guzzardi's toxicology 

opinion "to be sufficiently supported by scientific specialized knowledge as 

required by the Rules of Evidence," but the doctor's "background and 

knowledge . . . to be insufficient to support his opinion in any aspect of drug 

use, abuse, addiction, and rehabilitation." The judge also found Dr. Guzzardi's 

opinions on Emily's inability to go days without drug use and the extent of her 

addiction to not be based on any facts, data, or personal interaction with 

Emily. Accordingly, the judge held Dr. Guzzardi could testify regarding 

toxicology but was prohibited from offering opinion testimony concerning 

drug use and addiction. 
A-3224-21 14

Defendant did not move to suppress the recording of the interrogation 

based on any putative involuntariness of defendant's waiver of her Miranda 

rights. The video recording of the interrogation was played for the jury twice: 

once during the presentation of the State's case in chief and once after the jury 

had requested to see it again during deliberations. 

 The jury found defendant guilty on all counts. The trial judge sentenced 

defendant to a twelve-year term of imprisonment, subject to the No Early 

Release Act, N.J.S.A. 2C:43-7.2, on the drug-induced-death conviction and 

concurrent to that sentence a four-year term of imprisonment on each of the 

other convictions, for an aggregate term of twelve years. This appeal 

followed. 

 On appeal, defendant makes these arguments: 

POINT I 

IT WAS PLAIN ERROR TO ADMIT 

DEFENDANT’S STATEMENT TO LAW 

ENFORCEMENT BECAUSE THE DETECTIVE 

DELIBERATELY HID THAT HE WAS 

INVESTIGATING A STRICT LIABILITY DRUGINDUCED DEATH AND DECEIVED DEFENDANT 

ABOUT THE SERIOUSNESS OF THE 

INVESTIGATION, THUS MAKING HER 

MIRANDA WAIVER INVALID. (Not raised below.) 

A. Plain error is present because the 

deceptive police tactics used in the instant 

case are the same kind that were 

condemned by this court in [State v.] 
A-3224-21 15

Diaz[, 470 N.J. Super. 495 (App. Div.), 

leave to appeal denied, 251 N.J. 8 (2022)]. 

B. Presumptively excluding a defendant’s 

statement under these circumstances 

would not offend the New Jersey Supreme 

Court’s guidance in [State v.] Sims[, 250 

N.J. 189, cert. denied, __ U.S. __, 143 S. 

Ct. 409, 214 (2022)] because of the 

unique character of the strict liability 

drug-induced death offense. 

POINT II 

THE LEAD INVESTIGATOR IMPROPERLY 

ELICITED INCULPATORY INFORMATION FROM 

DEFENDANT WHEN HE ASKED ABOUT HER 

CELL PHONE NUMBER, PROVIDER, AND 

HISTORY BEFORE MIRANDA WARNINGS, 

REQUIRING SUPPRESSION OF THE 

UNMIRANDIZED STATEMENT. (Not raised 

below.) 

POINT III 

THE TRIAL COURT ERRED BY EXCLUDING THE 

DEFENSE EXPERT AND ADMITTING THE 

STATE’S EXPERT TO OFFER OPINION 

TESTIMONY ON THE SAME TOPICS. 

Because it was plain error for the trial court to admit the recording of the 

interrogation without conducting a Rule 104 hearing to determine the 

voluntariness of defendant's statement and an abuse of discretion to limit her 

expert witness's testimony without conducting a hearing regarding his 
A-3224-21 16

qualifications and the admissibility of his opinions, we remand and direct the 

trial court to conduct the appropriate evidentiary hearings. 

II. 

We review under the plain-error standard the admission of defendant's 

statement into evidence because defendant did not argue before the trial court 

that her Miranda waiver was invalid or the admission of her statement had 

violated her Miranda rights. State v. Gonzalez, 249 N.J. 612, 633 (2022) 

(quoting State v. Singh, 245 N.J. 1, 13 (2021)); see also Sims, 250 N.J. at 210 

(reviewing the admission of the defendant's statement to police under the 

plain-error standard when the defendant asserted for the first time on appeal 

that its admission had violated his Miranda rights); R. 2:10-2. "Under that 

standard, an unchallenged error constitutes plain error if it was 'clearly capable 

of producing an unjust result.'" State v. Clark, 251 N.J. 266, 287 (2022) 

(quoting R. 2:10-2). "To determine whether an alleged error rises to the level 

of plain error, it 'must be evaluated in light of the overall strength of the State's 

case.'" Ibid. (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)). 

 Our Supreme Court recently described the cornerstone importance of an 

individual's right against self-incrimination. 

"The privilege against self-incrimination, as set forth 

in the Fifth Amendment to the United States 

Constitution, is one of the most important protections 

of the criminal law." State v. Presha, 163 N.J. 304, 
A-3224-21 17

312 (2000) (citing U.S. Const. amend. V; State v. 

Hartley, 103 N.J. 252, 262 (1986)). Although New 

Jersey has no constitutional provision addressing the 

privilege against self-incrimination, our "common law 

has granted individuals the 'right against selfincrimination since colonial times.'" [State v.] 

Vincenty, 237 N.J. [122,] 132 [(2019)] (quoting [State 

v.] A.G.D., 178 N.J. [56,] 66 [(2003)]). Our law 

maintains "an unyielding commitment to ensure the 

proper admissibility of confessions." Ibid. (quoting 

State v. Reed, 133 N.J. 237, 252 (1993)). 

[Sims, 250 N.J. at 211.] 

The State, accordingly, bears "the burden to prove beyond a reasonable 

doubt that a suspect's waiver of his privilege against self-incrimination prior to 

an inculpatory statement 'was knowing, intelligent, and voluntary in light of all 

the circumstances.'" Ibid. (quoting Presha, 163 N.J. at 313). In determining 

whether a defendant knowingly, voluntarily, and intelligently waived the right 

against self-incrimination, courts consider the totality of the circumstances. 

Ibid.; see also State v. Nyhammer, 197 N.J. 383, 402-03 (2009) ("In 

determining the voluntariness of a defendant's confession, we traditionally 

look to the totality of the circumstances to assess whether the waiver of rights 

was the product of a free will or police coercion."); State v. Hahn, 473 N.J. 

Super. 349, 371 (App. Div. 2022) (affirming a decision to admit a defendant's 

statement rendered after the judge had considered the evidence presented 

during a Rule 104 hearing and concluded based on a totality-of-the-
A-3224-21 18

circumstances analysis the defendant's statement was the product of free will 

and not police coercion), certif. denied, 252 N.J. 530 (2023). When assessing 

the totality of the circumstances, a trial court "should consider" evidence of 

"bad-faith conduct on the part of law enforcement officers." Sims, 250 N.J. at 

216.

 The trial court in this case did not engage in any such consideration. We 

recognize neither party raised before the trial court the issue of the 

admissibility of defendant's statement or the validity of her Miranda waiver. 

The State, which had a duty to prove the knowing and voluntary nature of 

defendant's waiver, did not move to admit the statement, and defendant did not 

move to exclude it. The trial court, nevertheless, had an obligation to conduct 

a Rule 104 hearing to determine, based on the totality of the circumstances, 

whether defendant had knowingly, voluntarily, and intelligently waived her 

right against self-incrimination. See State v. Miller, 76 N.J. 392, 404-05 

(1978) (finding "[b]efore it can be admitted into evidence and submitted to a 

jury, a defendant's confession must be proven by the State to be voluntary 

beyond a reasonable doubt"); State v. Scott, 398 N.J. Super. 142, 153 (App. 

Div. 2006) (finding the "[v]oluntariness of a confession or other inculpatory 

statement by an accused must always be established at a N.J.R.E. 104(c) 

hearing before it can be introduced into evidence at trial") (quoting Biunno, 
A-3224-21 19

Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 104 

(2006)), aff'd o.b., 193 N.J. 227 (2008). 

That obligation becomes particularly clear when considering even the 

limited record before us. The record is devoid of any evidence defendant 

knew, before she waived her rights and admitted selling heroin to Emily, that 

Emily had died; it contains evidence Detective Smith – by initially focusing 

the interrogation on defendant's dealings with J.R., expressly misrepresenting 

facts to defendant by telling her he was "not holding anything back" and was 

"laying it all out . . . on the table," and repeatedly using the present tense when 

referencing Emily – may have attempted to conceal Emily's death from 

defendant and mislead her into thinking she was answering questions about 

and confessing to a drug deal and not a strict liability drug-induced death. In 

fact, at trial, Detective Smith acknowledged he had not told defendant about 

Emily's death and testified that, as far as he knew, defendant had thought he 

was talking to her about her and J.R. selling drugs. 

Whether Detective Smith's actions and omissions constituted acceptable 

interrogation techniques that did not violate defendant's rights or bad-faith 

conduct designed to induce defendant to make incriminating statements she 

otherwise would not have made should have been examined by the trial court 

as part of a totality-of-the-circumstances consideration following the 
A-3224-21 20

development of a full record in a Rule 104 hearing. Cf. Sims, 250 N.J. at 200, 

217-18 (holding sufficient credible evidence in the record supported the trial 

court's finding, which was made after the court had conducted a Rule 104 

hearing, that the totality of the circumstances warranted the denial of the 

defendant's motion to suppress his statement to police); Diaz, 470 N.J. Super. 

at 509 (finding, based on a record developed at a plenary suppression hearing, 

interrogating detectives had executed a "planned investigative strategy to elicit 

incriminating statements linking defendant to the overdose death before 

defendant became aware that someone had died"). In failing to conduct the 

Rule 104 hearing and to apply the totality-of-the-circumstances test to 

determine the admissibility of defendant's statement, the trial court erred. And 

we conclude that error was plain error. 

As the Court found in State v. L.H., 239 N.J. 22, 27 (2019), "[n]o piece 

of evidence may have greater sway over a jury than a defendant's confession." 

Here, "the centrality of defendant’s incriminating statements" – in which she 

confessed to selling heroin to a person who subsequently died of a heroin and 

fentanyl overdose – to the prosecution’s case cannot be reasonably debated. 

State v. O'Neill, 193 N.J. 148, 184 (2007). The trial court's failure to conduct 

a Rule 104 hearing and failure to engage in a totality-of-the-circumstances 

analysis concerning the admissibility of defendant's statement was "clearly 
A-3224-21 21

capable of producing an unjust result," R. 2:10-2, and, thus, constitutes plain 

error. 

 Defendant asks this court to create a rule preventing the State from using 

in a strict liability drug-induced death case the statement of a defendant who 

waived Miranda rights and admitted to selling drugs without being informed of 

the death of the victim or the potential strict-liability charges. We respectfully 

decline that request. See Sims, 250 N.J. at 211-12 ("Only in the most limited 

circumstances have we applied a per se rule to decide whether a defendant 

knowingly and voluntarily waived Miranda rights" (quoting Nyhammer, 197 

N.J. at 402-03)). Given the application of the totality-of-the-circumstances 

test, which the Court reaffirmed in Sims, 250 N.J. at 217, we see no reason to 

establish a bright-line rule. 

Instead, we are satisfied the remedy here is to remand the case with 

instructions the trial court engage in a totality-of-the-circumstances analysis 

after first conducting a Rule 104 hearing – the proper setting to develop the 

record regarding the State's ability or inability to prove the voluntariness of 

defendant's statement. If the trial court on remand finds the State failed to 

prove the voluntariness of defendant's statement beyond a reasonable doubt, 

defendant's convictions will be vacated and, if necessary following vacatur of 

the convictions, the court shall conduct a new trial at which defendant's 
A-3224-21 22

statement shall be excluded. See State v. Kelly, 61 N.J. 283, 294 (1972) 

(finding "the interests of justice will best be served by . . . having the trial 

judge conduct the hearing on voluntariness" of the defendant's statement and, 

if State failed to prove voluntariness of statement, defendant was entitled to a 

new trial at which the statement would be excluded); State v. Stubbs, 433 N.J. 

Super. 273, 289 (App. Div. 2013) (remanding for a Rule 104 hearing regarding 

admissibility of defendant's purported adoptive admission and ordering a new 

trial if the State failed to meet its burden on admissibility); Scott, 398 N.J. 

Super. at 153-54 (remanding for a "voluntariness hearing" regarding the 

defendant's statement and holding the defendant would receive a new trial if 

the court on remand found his statement was not voluntary); State v. Marczak, 

344 N.J. Super. 388, 398-99 (App. Div. 2001) (remanding for a hearing on the 

voluntariness of the defendant's statements and directing, if the State failed to 

prove the voluntariness of the statements, conviction would be vacated and a 

new trial held in which the statements would be excluded). 

Defendant also complains about some questions Detective Smith asked 

her before advising her of her rights under Miranda, specifically requests for 

her cell phone number, the name of the provider of her cell phone service, and 

how long she had had her cell phone and cell phone number. "[T]he term 

'interrogation' under Miranda refers not only to express questioning, but also to 
A-3224-21 23

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." State v. Hubbard, 

222 N.J. 249, 267 (2015) (quoting R.I. v. Innis, 446 U.S. 291, 301 (1980)). 

Police are not required to administer Miranda warnings before asking a 

defendant for "routine pedigree information, including his name and address, 

for purposes of completing [an] arrest report." State v. Melendez, 454 N.J. 

Super. 445, 457 (App. Div. 2018). 

To determine whether a police officer's questions, posed before the 

officer administered the Miranda warnings, violated a defendant's rights, "we 

consider whether, under the circumstances, a police officer's questioning . . . 

was 'particularly evocative' or 'reasonably likely to elicit an incriminating 

response.'" State v. Tiwana, 256 N.J. 33, 42 (2023) (quoting R.I., 446 U.S. at 

303). Although questions about a person's cell phone might generally be 

permissible as a routine request for pedigree information, that is not what 

occurred here. The questions posed about defendant's cell phone were clearly 

for the purpose of obtaining incriminating evidence tying defendant to the drug 

transactions – negotiated over defendant's cell phone – that the State argued 

resulted in the delivery of the drugs that killed the victim. The detective 

violated defendant's rights by asking those questions before issuing the 
A-3224-21 24

Miranda warnings, and the trial court erred in admitting the questions and 

defendant's answers to them. 

But because of other evidence in the record, that error was not plain 

error requiring, on its own, a reversal or vacation of the conviction. Without 

referencing the information defendant provided in response to the questions he 

had asked her before advising her of her Miranda rights, Detective Smith 

testified at trial he had determined by way of a subpoena issued to Verizon that 

the telephone number associated with the name "Shannon J.R." in Emily's 

Motorola cell phone – the number Emily texted when she was seeking drugs

on May 12, May 14, and May 28, 2017, and from which she received 

responsive texts – belonged to defendant. A senior analyst from Verizon 

Wireless also testified at trial and confirmed defendant was the subscriber for 

the number involved in the text exchange. 

 "The admission or exclusion of expert testimony is committed to the 

sound discretion of the trial court." State v. Cotto, 471 N.J. Super. 489, 531 

(App. Div. 2022) (quoting Townsend v. Pierre, 221 N.J. 36, 52 (2015)), certif. 

denied, 252 N.J. 166 (2022). "Absent a clear abuse of discretion, an appellate 

court will not interfere with the exercise of that discretion." Nicholas v. 

Hackensack Univ. Med. Ctr., 456 N.J. Super. 110, 117 (App. Div. 2018) 

(quoting Carey v. Lovett, 132 N.J. 44, 64 (1993)). 
A-3224-21 25

N.J.R.E. 702 requires a witness to qualify as an expert by "knowledge, 

skill, experience, training, or education." State v. Olenowski, 255 N.J. 529, 

583 n. 26 (2023) (quoting N.J.R.E. 702). An expert witness must "be suitably 

qualified and possessed of sufficient specialized knowledge to be able to 

express [an expert opinion] and to explain the basis of that opinion." Cotto, 

471 N.J. Super. at 530 (quoting State v. Odom, 116 N.J. 65, 71 (1989)). 

However, the requirements for the admission of expert testimony admissibility 

"are construed liberally in light of [N.J.R.E.] 702's tilt in favor of [] 

admissibility." Id. at 530 (quoting State v. Jenewicz, 193 N.J. 440, 454 

(2008)). 

"[W]hile the trial judge must determine whether the expert's training and 

experience are sufficient to permit the expert to state an opinion, it remains the 

jury's function to determine the worth of that opinion." State v. Canfield, 470 

N.J. Super. 234, 327 (App. Div. 2022) (quoting Espinal v. Arias, 391 N.J. 

Super. 49, 58 (App. Div. 2007)), aff'd as modified, 252 N.J. 497 (2023); see 

also Jenewicz, 193 N.J. at 455 ("[T]he strength of an individual's qualifications 

may be undermined through cross-examination" and should not be used "as a 

reason to exclude a party's choice of expert witness to advance a claim or 

defense."). Lack of formal clinical training in a given area will not necessarily 

disqualify the expert from testifying if some other foundation for the expert's 
A-3224-21 26

opinion exists. Jenewicz, 193 N.J. at 455-56. "[A]n expert may be qualified 

by study without practice or practice without study[.]" State v. Smith, 21 N.J. 

326, 334 (1956); see also Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App. 

Div. 2013). "Deficiencies in the qualification of an expert is a matter to be 

weighed by the jury." Koseoglu, 431 N.J. Super. at 161 (quoting Espinal, 391 

N.J. Super. at 59). 

"If a party challenges an expert opinion pursuant to N.J.R.E. 702, the 

'trial court should conduct a hearing under [N.J.R.E. 104] concerning the 

admissibility of the proposed expert testimony.'" State v. J.R., 227 N.J. 393, 

409 (2017) (quoting State v. Torres, 183 N.J. 554, 567 (2005)). A hearing 

pursuant to N.J.R.E. 104 "is a favored means to create a record for appellate 

review of a disputed decision." Ibid. (quoting Torres, 183 N.J. at 554). 

At trial, expert witnesses may not testify as to their net opinions. 

N.J.R.E. 703. The net opinion rule "forbids the admission into evidence of an 

expert's conclusions that are not supported by factual evidence or other data." 

State v. Burney, 255 N.J. 1, 23 (2023) (quoting Townsend, 221 N.J. at 53-54). 

"Courts 'may not rely on expert testimony that lacks an appropriate factual 

foundation and fails to establish the existence of any standard about which the 

expert testified.'" In re Civil Commitment of A.Y., 458 N.J. Super. 147, 169 
A-3224-21 27

(App. Div. 2019) (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 

410 (2014) (internal quotation marks omitted)). 

 The court erred in failing to conduct a Rule 104 hearing regarding Dr. 

Guzzardi's qualifications and the admissibility of his opinions and abused its 

discretion in barring in part his testimony. We recognize the limited support in 

Dr. Guzzardi's CV for an expertise in drug abuse and addiction. However, his 

experience as a director of a hospital's "Substance Abuse Service," albeit long 

ago, the lectures he gave regarding drug abuse and overdose, and his assertion 

he had "worked with many, many substance abusers" merited, at a minimum, 

further exploration in a Rule 104 hearing and may have been sufficient, given 

the liberality with which we view the requirements of N.J.R.E. 702, to permit 

his testimony, leaving the jury to determine its worth. The Rule 104 hearing 

also would have provided the parties an opportunity to question Dr. Guzzardi 

regarding the bases for his conclusory statement that Emily was "an 

experienced chronic drug abuser" – a description that appears to be undisputed 

by anyone and supported by other evidence in the record – and the opinions 

premised on that statement. 

 In sum, we remand the case for a Rule 104 hearing on the voluntariness 

of defendant's statement to Detective Smith. If the State does not prove 

beyond a reasonable doubt that the statement was voluntary, the convictions 
A-3224-21 28

must be vacated and a new trial held, at which the statement will be excluded. 

The questions about defendant's cell phone, cell phone carrier, and cell phone 

number Detective Smith asked defendant before reading her the Miranda rights 

and the answers she gave shall be excluded from any testimony and redacted 

from any recording played for a jury at a new trial. We also remand the case 

for a Rule 104 hearing regarding Dr. Guzzardi's qualifications and the 

admissibility of his opinions. If the court on remand finds Dr. Guzzardi is 

qualified to testify as an expert in the fields of drug use and addiction and 

finds that his opinions are admissible, the convictions must be vacated and a 

new trial held, at which Dr. Guzzardi may testify as an expert in toxicology, 

drug use, and addiction. If, on the other hand, the court on remand determines 

defendant's statement was voluntary and Dr. Guzzardi was not qualified in 

those fields and his opinions are inadmissible, the convictions are affirmed, 

subject to defendant's right to seek review of the court's remand decisions 

through a separate appeal of the orders issued by the trial court on remand. 

Remanded for proceedings consistent with this opinion. We do not 

retain jurisdiction.