State v. Herbert, DOCKET NO. A-5556-17T4
| Decision Date | 18 December 2020 |
| Docket Number | DOCKET NO. A-5556-17T4 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY J. HERBERT, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 15-01-0065.
Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the briefs).
Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Meredith L. Balo, of counsel and on the brief).
Defendant Gregory J. Herbert appeals an October 27, 2016 order that granted the State's motion to admit his custodial statement to police in evidence at trial, and an October 3, 2017 judgment of conviction and sentence for conspiracy to commit first-degree robbery, third-degree possession of a weapon for an unlawful purpose, and the lesser-included offenses of fourth-degree aggravated assault by pointing a firearm and disorderly persons theft. We reverse defendant's convictions and remand for a pretrial hearing and retrial.
We discern the following facts from the evidence presented at the joint trial of Herbert and co-defendant Kadeem I. Charles.1 Herbert, Charles, and Michael Onyeagoro met at Charles's house for a party on December 19, 2013. Onyeagoro testified at trial that the trio left Charles's shortly after midnight to "discuss[] locations or persons that [they could] rob" and eventually decided to rob a gas station.2
The three went forward with the plan. At approximately 2:30 a.m., Onyeagoro distracted the gas station attendant by driving into the gas station and asking for gas. As the attendant pumped gas, Charles pointed a BB gun at him while Herbert stole computer equipment. The trio fled the scene.
Hillside Police Department received a "holdup alarm" from the BP gas station on Route 22 at 2:30 a.m. Police found Onyeagoro waiting for Herbert and Charles in his car nearby, which matched the description given by the gas station attendant. They observed a knife under the seat of the car and arrested Onyeagoro for possession of a weapon.
Information obtained from Onyeagoro led to the arrests of Charles in July 2014 and Herbert in August 2014. Police searched Charles's home in Irvington and seized two BB guns, a ski mask, a knife, clothing, and gloves.
Following his arrest in Vermont and return to New Jersey, Herbert was interviewed by Hillside Police Detective Sergeant Cosimo Tripoli after Herbert was read his Miranda3 rights and waived those rights. Herbert denied being in Hillside at the time of the crimes or ever being in Onyeagoro's car.
After an already lengthy interrogation, police asked defendant: To which defendant answered:
No, I already cleared my head already. If you got the, you say you have the evidence, you say you have all the answers, then I guess only thing left for you to do I guess is go to court and we'll figure it out from there. I guess, I get a lawyer and then figure it out from there.
At this point, police did not stop the interview, ask for Herbert to clarify his statement, or leave the room. Similarly, Herbert stated, "[y]ou want me to say certain things and[] I wish I had the answers for you." Once again, police did not stop the interview or seek to clarify Herbert's statement. Herbert repeated that he wanted "to leave it up to the court" several more times during the interview.
In addition, police asked Herbert: Herbert responded: "No, I don't have anything."
In January 2015, a Union County grand jury returned an indictment charging Herbert and Charles with the following offenses: first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1 (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three);and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four).
The State moved to admit Herbert's custodial statement at trial. The trial court conducted a Miranda hearing on October 25, 2016.
The court found Herbert to be "calm and cooperative" and "appeared to be educated, articulate, and intelligent." During the interview, Herbert was questioned for over three hours. The court noted that "while persistent, the officers did not raise their voice, threaten Mr. Herbert, or try to trick him." The court described Herbert's demeanor as "extremely comfortable" and "almost was poised in the interview."
The court similarly determined that when Herbert described getting a lawyer and going to court on several occasions, the reasonable inference is that he intended to describe his expectations for the future, not a present invocation of the right to counsel. In addition, the court determined that Herbert's statement, "I don't have anything else," is reasonably interpreted as him saying he did not have anything more to say about the robbery specifically, not that he wanted to terminate the interrogation altogether. The court explained that Herbert could instead have stated, However, Herbert did not do so and thus did not actually intend for the interview to end. As evidence of his intention to continue the interview, the court noted that Herbert proceeded to answer all the of the detectives' questions without objection.
The court stated it was "convinced beyond a reasonable doubt that [Herbert] knowingly, voluntarily, and intelligently waived his rights under [Miranda] . . . and voluntarily answered all of the detectives' questions without ever invoking any of his constitutional rights." Accordingly, the court granted the State's motion to introduce portions of Herbert's statement at trial.
The State proffered Adam Durando as an expert in cellular telephone records, cellular mapping programs, and cell-site analysis. The court conducted aN.J.R.E. 104 hearing on the admissibility of Durando's testimony. During the hearing, Durando testified that, as part of his job, he makes sure that all Sprint customers have cellular service when they attempt make a call. This requires a customer's phone to remain in constant contact with a cell tower, which reveals the general location of the customer's phone. Durando testified that there may be occasion when a cell phone does not connect to the nearest cell-site because a different tower might provide a better signal to the customer due to nearby buildings, terrain, and local topology. Durando explained, however, that Sprint takes into consideration the local terrain, topology of a tower location, and cell-site traffic when designing tower sites.
Durando further testified that he reviewed the cell phone numbers registered to Herbert and Charles and used repoll numbers to identify the relevant cell tower sites to map the calls at issue in this case. He explained that he reviewed the cell phone numbers with Map Info, a commercially accepted mapping tool used throughout the industry that graphically represents where Sprint's sites are located relative to the streets. Durando testified that although he could not determine the exact location of a cell phone during a call, he could confirm that a call was placed somewhere within the site's coverage area, which is usually around seven miles. Durando also testified that a "drive test" is sometimes performed to cure acustomer's complaint about poor service, but he was unable to conduct a drive test for this case because he did not have all the information necessary.
The court granted the State's motion to permit Durando to testify as an expert, determining that Durando was highly qualified and "ha[d] sufficient expertise" in the fields of cellular telephone records, cellular mapping program, and cell-site analysis. It noted that Durando had twenty-five years of experience and received forty hours of training annually.
The court found the State met its burden of proving that Durando's proffered testimony was "generally accepted among those in the profession." It pointed to case law specifically addressing the reliability and general acceptance of cell-site analysis to determine the general location of a cell phone. The court noted that the State sought to introduce evidence of defendants' general location based on the use of specific cell towers and sectors rather than to pinpoint the exact location of the cell phone user. It thus concluded that "[t]estimony concerning the location of cell towers, the sectors used for each call, and the general location" of cell phones when connected to each tower "[a]re the product of reliable principles and methods." Lastly, the court...
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