In State v. McGuigan, ___ N.J. Super ___ (App. Div. 2024) (slip op. at 3),[1] after waking early on May 30, 2017, Sheryl Maser went to her daughter Emily’s bedroom and found that Emily had died.  The county medical examiner concluded Emily died as the result of fentanyl and heroin toxicity on May 29, 2017, likely within an hour of when she was last seen alive at 11:00 p.m.  Ibid.   Data extracted from one of Emily’s cell phones revealed text messages to a contact, later identified as the defendant, to arrange the purchase of forty-dollars-worth of heroin.  Id. at ___ (slip op. at 5).  By text message, Emily repeatedly asked the defendant to meet her.  Id. at ___ (slip op. at 5).  The defendant met Emily at about 6:00 p.m. on May 28, 2017, the day before Emily died, to sell her the heroin.  Id. at ___ (slip op. at 5).

Approximately five and one-half months after Emily’s death, Detective Smith conducted an interrogation of the defendant at the police department.  Id. at ___ (slip op. at 8).   Detective Smith read the defendant her Miranda rights, which she waived, but did not tell her that Emily had died, and repeatedly used the present tense throughout the interrogation when referencing Emily.  Id. at ___ (slip op. at 11).  The defendant, who did not know that Emily had died, admitted that she had sold heroin to Emily approximately three times.  Id. at ___ (slip op. at 10).

Before trial, the State moved to bar the testimony of the defendant’s purported expert witness in the fields of toxicology, drug use, and addiction. Id. at ___ (slip op. at 11).  In his report, the expert stated that he found “it very unusual” that Emily would have obtained heroin from the defendant on May 28, 2018, and not used it until after 11:30 p.m. on the following day, because “[t]he nature of opioid addiction is that the powerful attraction of the drug does not allow hoarding.”  Id. at ___ (slip op. at 12).  Additionally, he opined that Emily, who was a chronic abuser of heroin, would have utilized the drugs the defendant sold her on May 28, 2018, quickly, likely within hours of receipt, and thus those drugs would not have been in Emily’s blood if she had used them as expected.  Id. at ___ (slip op. at 12).  Further, the expert identified other potentially lethal substances for which the National Medical Services had not tested and found that without a more thorough autopsy no conclusion can be made as to what other factors contributed to Emily’s death.  Id. at ___ (slip op. at 12).  The trial judge did not hold a N.J.R.E. 104 hearing.  Id. at ___ (slip op at 13).  At the conclusion of oral argument, the judge concluded that the expert could testify regarding toxicology but was prohibited from offering opinion testimony concerning drug use and addiction.  Id. at ___ (slip op at 13).

The Appellate Division held that “[b]ecause 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 qualifications and the admissibility of his opinions, we remand and direct the trial court to conduct the appropriate evidentiary hearings.”  Id. at ___ (slip op. at 15-6).  The Appellate Division explained that “[i]f 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 statement shall be excluded.”  Id. at ___ (slip op. at 21-22).  Further, if on remand, the trial court finds that the defense expert 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 the expert may testify as an expert in those areas.  Id. at ___ (slip op. at 28).

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[1] I included page citations to this recent Appellate Division decision from the official slip opinion located at