State v. Burney

• Decision Date: 31 March 2022
• Docket Number: DOCKET NO. A-1342-18
• Citation: 471 N.J.Super. 297,272 A.3d 1244
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Roberson BURNEY, a/k/a Robert Burney, John Burney, Robin Burney, and Michael Langford, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

471 N.J.Super. 297

272 A.3d 1244

STATE of New Jersey, Plaintiff-Respondent,

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

DOCKET NO. A-1342-18

Superior Court of New Jersey, Appellate Division.

Argued January 26, 2022

Decided March 31, 2022

Stephen W. Kirsch, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephen W. Kirsch, on the brief).

Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).

Before Judges Hoffman, Geiger, and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

Defendant appeals from his jury trial convictions for first-degree robbery, second-degree possession of a weapon for an unlawful purpose, second-degree burglary, multiple counts of fourth-degree aggravated assault with a firearm, and multiple counts of third-degree criminal restraint. He was sentenced to a mandatory term of life imprisonment without possibility of parole pursuant to New Jersey's "three strikes" law, N.J.S.A. 2C:43-7.1.

On appeal, defendant argues: (1) the trial court erred in permitting the State to use defendant's hospital-bed statements for impeachment purposes after ruling that the interrogating detectives had failed to properly administer Miranda ¹ warnings; (2) the trial court erred in permitting expert testimony by an FBI agent certified in the field of historical cell phone data analysis for the purpose of establishing the approximate location of defendant's phone at the time of the armed robbery; and (3) the trial court erred in permitting a victim to make an in-court identification of defendant even though she had been unable to identify defendant in two photo array procedures and was later told that photographs of her stolen watch had been extracted from defendant's cell phone.

After carefully reviewing the record in light of the applicable principles of law, we believe that the trial court did not abuse its discretion in permitting the FBI agent to testify as an expert regarding historical cell phone data analysis. Nor did the trial court abuse its discretion or otherwise commit reversible error in allowing one of the victims to make an in-court identification, or in instructing the jury on how to evaluate that identification testimony.

However, we believe the trial court's findings with respect to the trustworthiness of statements defendant made to police during his hospital-bed interrogation are inadequate to support the conclusion that those statements were made voluntarily and thus could be used for impeachment purposes if defendant elected to testify at trial. In response to police questioning, defendant offered a specific alibi that, as it turns out, would have been discredited by the historical cell phone data analysis. Defendant at the time of the interrogation was in an intensive care unit awaiting overdue dialysis. A notation in his medical chart shows that he was suffering from "toxic/metabolic derangement." Defendant's medical condition at the time of the interrogation is an important circumstance that must be carefully considered as part of the totality of relevant circumstances in determining whether his statements to police were given voluntarily. The detectives were not qualified to make a medical judgment as to defendant's cognitive capacity. Because the hospital-bed interrogation was not electronically recorded, the trial court could not independently assess defendant's outward condition. Furthermore, the trial court candidly acknowledged in its ruling that it did not fully understand the meaning of some of the terms used in defendant's hospital chart to describe his medical condition at the time of the police interrogation. We therefore deem it necessary to remand the case for the State to present expert testimony concerning defendant's medical condition. Additionally, the trial court should make specific findings of fact and law as to the impact of that condition on the voluntariness of defendant's statements to police.

I.

We discern the following facts from the trial record. On Christmas night, 2015, a man armed with a shotgun entered the house of Rosette Martinez in Bloomfield. Rosette² was with her daughter, Samantha Martinez, and her daughter's friend, Taffy Camacho. Rosette's father, who also resided in the house but was not present at the time of the home invasion, had hired a contractor to repair the porch roof in October or November. Rosette recognized the intruder as one of the contractor's brothers, who had also worked on the house. Rosette testified that about two weeks prior to the home invasion, the intruder had come to the house asking for her father. Rosette also testified regarding another interaction she had with the intruder when she had spoken with him and handed him some cleaning supplies.

When Rosette answered the door on the night of the robbery, she recognized the man and asked, "what is [he] here for to fix?" The man stated, "I'm here for your dad," pulled out a gun, and ordered the three women into a bedroom while instructing them to look down and away from him. The intruder tied up the three women face down on the ground, demanded their valuables, and rifled through the house.

While the man was searching through their belongings, Rosette heard a cell phone ring; the automated voice assistant announced an incoming call or text message from a name she could not recognize. She also heard clicking noises that she inferred to be defendant taking pictures with his phone. Samantha testified that she too heard the sound of defendant taking several pictures with his phone, then heard defendant's phone audibly announce a text message from a name she did not recognize. Taffy likewise testified she heard the cell phone announce an "incoming message." Taffy also claimed she heard "clicking sounds" which she interpreted to be the robber taking pictures with his cell phone. Taffy further testified that when she tried to look up, she saw the intruder standing near Samantha taking photographs.

The robber told them "ten minutes [was] all he need[ed]," and left shortly thereafter. The women freed each other from their bonds and immediately called 9-1-1. The 9-1-1 call was placed at around 8:15 p.m. The women testified that the home invasion took about fifteen to twenty minutes from start to finish.

In the 9-1-1 call and their trial testimony, the victims described the man as a "tall, slender," dark-skinned African American man wearing dark clothes, a black knit beanie hat, and a gold watch. Later that night, the victims were transported to the Bloomfield police station where they gave formal statements. Rosette told police that one of the items that had been stolen was a watch she had received as a gift from her mother. She described the watch as having a black band, "clear beveled rhinestones," and an inscription "Princess."

Following an investigation, in April 2016, an Essex County grand jury returned an indictment charging defendant with first-degree armed robbery, N.J.S.A. 2C:15-1 ; second-degree armed burglary, N.J.S.A. 2C:18-2 ; three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) ; three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2 ; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(2) ; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) ; third-degree burglary, N.J.S.A. 2C:18-2 ; and third-degree theft, N.J.S.A. 2C:20-3(a).

On June 15 and July 6, 2017, the court held hearings on defendant's pretrial motions to suppress his statements to police and to bar the testimony of the State's expert witness, Federal Bureau of Investigation (FBI) Special Agent Ajit David. With respect to defendant's suppression motion, the trial court ruled that the State failed to prove that police interrogators properly advised defendant of his Miranda rights. The court therefore suppressed defendant's statements from the State's case-in-chief. The court nonetheless found that defendant's statements were made voluntarily and thus could be used for impeachment purposes if defendant exercised his right to testify at trial.

With respect to the Frye ³ hearing, the trial court ruled that Special Agent David would be permitted to testify as an expert and that his historical cell site data analysis would be admissible for the limited purpose of providing a general approximation of defendant's geographical location at the time of the robbery.

On September 19, 2017, the judge denied the State's motion for reconsideration of the ruling that the State had not met its burden of proving that that Miranda warnings had been properly administered. The judge also granted defense counsel's motion to sever the counts for third-degree burglary and third-degree theft.

In early 2018, defendant was tried by a jury and found guilty of all counts except third-degree unlawful possession of a weapon. Defendant was sentenced on August 31, 2018. The trial judge merged the conviction for second-degree possession of a weapon for an unlawful purpose into the first-degree armed robbery conviction. On the first-degree robbery conviction, the court imposed an extended term of life imprisonment without the possibility of parole as required by N.J.S.A. 2C:43-7.1. On the second-degree armed burglary conviction, the judge imposed a ten-year prison sentence subject both to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act,⁴ N.J.S.A. 2C:43-6(c). Defendant also received eighteen-month prison sentences with eighteen-month periods of parole ineligibility under the Graves Act for each of his three convictions for aggravated assault with a firearm. The court also imposed five-year prison sentences with two-and-a-half-year periods of parole ineligibility for...