State v. Burney

Docket NumberA-14-22
Decision Date02 August 2023
PartiesState of New Jersey, Plaintiff-Respondent, v. Roberson Burney, a/k/a Robert Burney, John Burney, Robin Burney, and Michael Langford, Defendant-Appellant.
CourtNew Jersey Supreme Court

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State of New Jersey, Plaintiff-Respondent,
v.

Roberson Burney, a/k/a Robert Burney, John Burney, Robin Burney, and Michael Langford, Defendant-Appellant.

No. A-14-22

Supreme Court of New Jersey

August 2, 2023


Argued March 27, 2023

PIERRE-LOUIS, J., writing for the Court.

In this appeal, the Court considers whether it was cumulative error for the trial court to admit two pieces of evidence: expert testimony that defendant Roberson Burney's cell phone was likely near a crime scene based on a "rule of thumb" approximation for cell tower ranges in the area, and a first-time in-court identification of defendant by a witness who had previously identified another person as the perpetrator in a photo lineup.

On December 25, 2015, Rosette Martinez was at home with her daughter, Samantha, and Samantha's friend, when she heard footsteps coming up the stairs. She testified that a man opened the door and stated, "I'm here for your dad, George," leading her to believe he was there to fix something at the house. Martinez believed she recognized the intruder as someone who had recently done contracting work on their house. He then pulled out a "long gun," instructed the women to lay face down, tied their hands behind their backs, and began to rifle through possessions. At some point during the robbery, the women heard the intruder's phone ring and announce a "[c]all from" a name. Samantha testified that she heard the intruder's phone announce an "incoming text" message from a name she did not recognize, but the message was not read aloud. All three women testified that they heard clicking noises that indicated to them that the intruder was taking pictures with his phone. After the intruder left, the women untied themselves and called 911 at approximately 8:15 p.m.

The victims described the intruder and his clothes to the police. A detective spoke to Rosette's parents; they provided the name and business card of the contractor, Mark Burney, who had worked on their house a few weeks prior to the robbery. Mark Burney is defendant's brother, and he stated that defendant had been working with him at Rosette Martinez's home.

On December 26, Rosette Martinez misidentified a filler photo in a photo array with 90 percent certainty. She declined to make an identification during a second photo array, which included a photo of defendant, on December 28.

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The day after the robbery, Martinez noticed that among the bags in the stairway to her apartment, there was a Costco bag she did not recognize. That bag was later found to have defendant's DNA on it.

On December 29, police visited defendant. While questioning him, a detective sent a text message to defendant's phone, which gave an audible voice announcement of a "text message received" from the detective's phone number and read the message out loud. The detective then obtained a warrant and arrested defendant. Police collected his clothing, which matched the victims' description. Defendant's cell phone records showed that he received a text message while the robbery was in progress. Additionally, defendant's phone included several blurry, dark pictures taken at 8:03 p.m. on December 25. Police also found several photographs of a "Princess" brand watch on defendant's cell phone captured in the days after the robbery, and four web searches for "Princess" watches.

On January 21, 2016, Martinez returned to the police station. A detective told her that defendant had been arrested for the robbery and that police seized his cell phone, which contained pictures of jewelry and a watch. The detective showed her one of the pictures of the watch, and she identified it as hers. She later provided the box for the watch, containing additional watch bands, to prove the watch was hers.

Defendant was indicted on several counts. Prior to trial, defense counsel moved to exclude testimony by the State's expert, Federal Bureau of Investigation Special Agent Ajit David, and any first-time in-court identification of defendant by any of the victims. The trial court denied both motions.

At trial, Rosette Martinez identified defendant as the intruder for the first time, pointing him out in the courtroom. And Special Agent David gave his expert opinion that the cell towers in the area had an approximate coverage radius of about one mile -- an estimate that reflected his "rule of thumb" for the area, which he stated was a "good approximation" based on his training and experience. Based on that "rule of thumb," he placed defendant's cell phone at or near the crime scene at the time of the robbery, emphasizing that it was "highly, highly unlike[ly]" that a cell tower defendant's phone had pinged at 8:02 p.m. did not cover the crime scene. Defendant was convicted of robbery and other offenses.

The Appellate Division affirmed as to both Special Agent David's testimony and the first-time in-court identification. 471 N.J.Super. 297, 304-05 (App. Div. 2022). The Court granted certification. 252 N.J. 134 (2022).

HELD: The trial court erred in admitting both the testimony placing defendant's phone at or near the crime scene and the first-time in-court identification. Those errors, in combination, deprived defendant of a fair trial.

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1. Across the nation, state and federal courts have accepted expert testimony about cell site analysis for the purpose of placing a cell phone within a "general area" at a particular time. Unlike the more precise location data provided by a Global Positioning System (GPS), cell site analysis simply confirms that the phone was somewhere within the coverage radius of the cell tower during the recorded activity. The Seventh Circuit, concerned that a "jury may overestimate the quality of the information provided by" cell site analysis, has admonished that "[t]he admission of historical cell-site evidence that overpromises on the technique's precision -- or fails to account adequately for its potential flaws -- may well be an abuse of discretion." United States v. Hill, 818 F.3d 289, 299 (7th Cir. 2016). Under New Jersey case law, when an expert grounds testimony in personal views, rather than objective facts, the net opinion rule requires the exclusion of such unsupported views. In circumstances similar to this case, the Northern District of Illinois held that the testifying expert's estimates of the ranges of different cell towers were unreliable because they were based solely on the expert's training and experience. United States v. Evans, 892 F.Supp.2d 949, 956 (N.D. Ill. 2012). (pp. 27-31)

2. Special Agent David testified that a one-mile radius was a "good approximation" as to the coverage area for the relevant cell tower. He did not testify that such approximation is common practice in cell tower analysis. And he candidly admitted that he did not consider any of the factors that can affect coverage listed in the Court's opinion. By Special Agent David's own admission, he determined the tower range "just based on [his] training and experience." And the State offered no outside evidence to support the range. That "rule of thumb" testimony constitutes an improper net opinion because it was unsupported by any factual evidence or other data. The Court does not suggest that, to be admissible, expert testimony must consider all of the factors listed. However, the testimony here was based on nothing more than personal experience, and the trial court erred in allowing it. (pp. 31-33)

3. The admissibility of Rosette Martinez's first-time in-court identification is controlled by the Court's holding today in State v. Watson, __N.J._(2023). Although the dictates of Watson were not in effect at the time of the present trial, "[w]ith or without the benefit" of the ruling in Watson, "the nature of the identification in this case raises concerns." See id. at(slip op. at 33). The identification procedure here was highly suggestive. By telling Martinez defendant's name, informing her that he had been arrested for the robbery, and showing her pictures of the watch found on his phone, the detective impermissibly influenced and tainted any future identification by her. Additionally, the layout of the courtroom, as Martinez admitted, tipped her off as to where defendant was seated. Furthermore, there was no "good reason" to allow the first-time in-court identification here. Martinez did not know defendant well prior to the robbery, see id. at_(slip op. at 29-30), and she was unable to identify defendant -- and indeed identified a different person in a filler photograph with 90 percent certainty -- when

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she viewed the photo arrays. There was no basis for an in-court identification under the circumstances. In Watson, the Court directed that prosecutors must disclose "anything discussed with a witness during trial preparation that relates to an upcoming in-court identification" under Rule 3:11. Id. at__(slip op. at 31). Because comments like those made in this case about the defendant's identity and evidence that purportedly links the defendant to the crime could well make an incourt identification highly suggestive, the Court directs that such information be disclosed under Rule 3:11 as well. The Court also explains that, in situations like what occurred here, the State must complete a photo display witness statement form. The circumstances of Rosette Martinez's in-court identification were highly suggestive, and therefore, the identification should have been excluded. (pp. 33-38)

4. An appellate court may reverse a trial court's judgment if the cumulative effect of a series of errors is so great as to deprive a defendant of a fair trial. Here, the trial court allowed the jury to hear two significant pieces of unreliable evidence that purportedly connected defendant to the robbery: Special Agent David's testimony placing defendant's phone at or near the crime scene and Rosette Martinez's firsttime in-court identification that defendant was...

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