Opinion

STATE OF NEW JERSEY v. CARLOS I. MENJIVAR (15-05-0762, MONMOUTH COUNTY AND STATEWIDE)

Court: New Jersey Superior Court Appellate Division
Filed: Sep 7, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 1.4%

The opinion

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3742-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

CARLOS I. MENJIVAR,

a/k/a IVAN MENJIVAR,

Defendant-Appellant.

________________________

Argued June 2, 2022 – Decided September 7, 2022

Before Judges Gilson, Gooden Brown, and Gummer.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment No. 15-05-

0762.

Stephen W. Kirsch, Designated Counsel, argued the

cause for appellant (Joseph E. Krakora, Public

Defender, attorney; Stephen W. Kirsch, on the brief).

Monica do Outeiro, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued the cause

for respondent (Lori Linskey, Acting Monmouth

County Prosecutor, attorney; Mary R. Juliano, Special

Deputy Attorney General/Acting Assistant Prosecutor,

of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a night of drinking, defendant Carlos Menjivar and two friends

went to the apartment of one of the friends where they met a woman. The men

and woman had sex together, after which one of the friends left. Later that day,

police discovered the bodies of the other friend and the woman. They had been

stabbed to death while lying in a bed.

A jury convicted defendant of both murders, and he was sentenced to life

imprisonment without parole. He appeals from his convictions and sentence.

We affirm his convictions but remand for resentencing on one of his murder

convictions.

We summarize the facts based on the evidence presented at hearings and

the trial. In 2013, defendant lived with J.H. (Jimay).1

At approximately 10:30 p.m. on Saturday, March 23, 2013, Jimay drove

his girlfriend, defendant, A.G. (Andre), and F.V. (Ferdinand) to a club called

We use initials and fictitious names to protect the privacy interests of the

witnesses and victims.

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Bogart's. The group spent several hours at the club socializing and drinking.

While at the club, Ferdinand had a confrontation with another man and that man

was ejected from the club after some pushing and shoving.

That same night, M.C-M. (Maritza) dropped her three-year-old child at a

friend's house. The friend had agreed to babysit the child overnight while

Maritza went dancing at Bogart's.

When the club closed at approximately 2:00 a.m. on March 24, 2013,

Jimay and his girlfriend drove defendant, Andre, and Ferdinand home. During

that drive, Ferdinand arranged to meet Maritza, with whom he had a dating

relationship, at his apartment. Ferdinand also invited defendant and Andre to

join him and Maritza at the apartment. Jimay then dropped defendant, Andre ,

and Ferdinand at Ferdinand's apartment, where he saw a woman waiting outside

the apartment.

Andre and defendant went into the apartment while Ferdinand and Maritza

talked outside. While they were at the apartment, Andre saw that defendant had

a knife up his sleeve. Ferdinand then came into the apartment, and the men had

some drinks. Shortly thereafter, Maritza came into the apartment and the three

men and Maritza had group sex.

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At approximately 5:30 a.m., Andre left the apartment and took a taxi

home. While he was leaving, Andre heard Maritza ask for water and saw

defendant bringing water to the bedroom for her.

When Maritza failed to pick up her child later that morning, the friend

who was watching the child notified the police that Maritza was missing.

Through inquiries, the police determined that Maritza had a dating relationship

with Ferdinand, and in the afternoon of March 24, 2013, they went to

Ferdinand's apartment to investigate. Ferdinand's apartment was in a house that

was divided into five apartments. When the police arrived outside Ferdinand's

apartment, they smelled the odor of "decomposition." After no one answered

their knocks, the police forced the apartment door open. Inside, they found

Ferdinand and Maritza dead in a bed. Both had been stabbed multiple times.

Subsequent autopsies showed that Ferdinand had been cut and stabbed

twenty-eight times and Maritza had been cut and stabbed thirty-two times. A

medical examiner testified that Ferdinand's cause of death was multiple sharp -

force injuries to his head, neck, and chest. The examiner testified that Maritza

died from bleeding and asphyxiation.

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During the investigation of the murders, law-enforcement personnel spoke

with Jimay, Andre, and defendant. In March 2013, Andre and defendant gave

statements to the police.

In a statement given on March 26, 2013, defendant told the police that he

had been at the club with Ferdinand and Andre on March 24, 2013, they had left

around 2:00 a.m. to go to Ferdinand's home, Maritza had met them there, and

the group had sex. Defendant claimed that, thereafter, Andre had left

Ferdinand's apartment, he had left approximately five to ten minutes after Andre,

and when he left Ferdinand and Maritza had been in the bedroom. Defendant

also stated that as he had walked away from Ferdinand's apartment, he had seen

four people approach the apartment house.

On December 16, 2014, defendant gave another statement to Detective

Jose Rivera at the Monmouth County Sheriff's Office. Defendant had agreed to

go to the Sheriff's Office to undergo a polygraph test. The interview was

conducted in Spanish and was videotaped and transcribed. Ultimately, a

polygraph examination was not conducted. Instead, Rivera explained how a

polygraph test would be conducted and questioned defendant for approximately

four and a half hours.

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Rivera began by asking defendant to complete certain forms in connection

with the polygraph test. The forms Rivera provided to defendant were

completed in Spanish and later translated into English. One form asked

defendant what questions he would like to be asked during the polygraph exam

and whether he had any questions or concerns about the exam process. In

response, defendant listed several questions he wanted to be asked. Defendant

also completed a general truthfulness survey. Rivera also gave defendant a

notepad and asked him to write in his own words why he had agreed to take the

polygraph examination. Defendant wrote: "I came because the deceased family

is harassing my family because I don't want [sic] for my family. I'm here

because I have no option and I want peace for my family because I want to care

for them." Defendant initially stated that he did not kill Ferdinand , explaining

that he had gone to Ferdinand's apartment with Andre, they all had sex with

Maritza, Andre left, and he left shortly thereafter between approximately 6:00

a.m. and 7:00 a.m.

Following that exchange, Rivera provided defendant with a Miranda2

rights consent form. The form was in Spanish, and defendant stated that he

knew how to read it. Defendant then read and initialed each right,

Miranda v. Arizona, 384 U.S. 436 (1966).

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acknowledging that he had been advised of his constitutional rights, understood

those rights, and wished to waive the rights and give a voluntary statement.

Defendant was also given and signed a forensic psychological detection

and deception consent form (the polygraph form), which stated, in Spanish, that

he was there "of his own free will," he was "free to leave at any time," he

understood his rights, and he was willing to proceed with a polygraph

examination. When Rivera presented the polygraph form to defendant, the

following exchange took place:

[Defendant]: I can stop whenever I want to, right?

[Rivera]: What?

[Defendant]: I can also stop whenever I want to?

[Rivera]: What?

[Defendant]: Let's say I'm taking the test . . .

[Rivera]: Uh-huh.

[Defendant]: and I can . . . I can also stop talking . . .

[Rivera]: When taking the test, you have to answer yes

or no during the test. But I am going to explain all of

that to you.

During further questioning by Rivera, defendant claimed that Ferdinand

had been killed because he had snitched on people who sold drugs. Defendant

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also stated that he knew who killed Ferdinand and that they were paid

professionals from Mexico. Rivera then asked defendant if he was physically

present when Ferdinand was killed. Defendant admitted that he was present but

explained that he had been caught by a group of men outside the apartment,

taken back in, threatened, and held while they killed Ferdinand with a knife.

Rivera then reviewed defendant's Miranda rights for a second time by

reading each of the rights aloud from the form and confirming that defendant

understood and had initialed each statement on the Miranda rights consent form.

The final statement on the form stated: "Having these rights in mind, I wish to

waive them and give a voluntary statement and answer any questions." When

Rivera asked defendant if he had provided his signature on the form after that

statement and whether he understood it, defendant asked: "Does that mean I

cannot change my mind?" Rivera responded: "Huh? This, what this says is that

you understand. That having the rights in mind, you wish to waive them and

provide a voluntary statement to talk to me and answer each question. Ok, is

that right?" Defendant replied, "Uh-huh." Rivera then asked if defendant

understood everything and defendant replied, "yes."

Thereafter, the questioning continued. In response to Rivera's questions,

defendant recounted that when he had left Ferdinand's apartment, two men were

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waiting for him and six more got out of a van and they grabbed him and held a

machete-like knife against him. They then picked the lock to the apartment door

and pushed him inside against a wall. Three men stayed with him and five went

into the bedroom. Defendant claimed that he could hear the men "hacking"

Ferdinand.

When Rivera questioned whether defendant was telling him the whole

truth, defendant changed his story and ultimately claimed that the men had

threatened and forced him to stab Ferdinand with a knife that they had given

him. He explained that he had stabbed Ferdinand and then tossed the weapon

on the floor. He claimed that he did not touch Maritza. Following the interview,

defendant was arrested and charged with murder.

In 2015, defendant was indicted for two counts of first-degree murder,

N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(d). The grand jury also charged defendant with

two aggravating factors in connection with the murder of Maritza. In that

regard, the grand jury found that there was probable cause to believe that

defendant had murdered Maritza to avoid detection for, and in the course of, the

murder of Ferdinand. See N.J.S.A. 2C:11-3(b)(4)(f) and (g).

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Before trial, defendant moved to suppress the statements he had given to

law-enforcement officers. The trial court conducted a six-day evidentiary

hearing and denied defendant's motion. The trial court concluded that defendant

was not in police custody at the time he had made his statements voluntarily.

The court also found no evidence to support a conclusion that defendant was

forced to submit to either an interview or a polygraph examination. Instead, the

trial court found that defendant voluntarily had gone to make the statement, had

received the Spanish-language form telling him of his Miranda rights, and had

signed the waiver.

At trial, a redacted video recording of defendant's December 16, 2014

statement was played for the jury. The jury was also given a transcript of the

statement in English, and they had that transcript to reference while the video

recording was played. The video recording and transcript used at trial omitted

all references to the polygraph examination.

The trial was conducted over two months between October 16, 2018 and

December 18, 2018. At trial, the jury heard testimony from over twenty

witnesses, including Jimay, Andre, the medical examiner, law enforcement

officers, and experts.

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One of the experts who testified for the State was Federal Bureau of

Investigation (FBI) Special Agent John Hauger. Hauger was proffered as an

expert who would testify concerning the location of a cell phone that the State

alleged defendant had in his possession on March 23 and 24, 2013.

Defendant moved in limine to exclude Hauger's testimony, and the trial

court conducted an evidentiary hearing outside the presence of the jury. At that

hearing, Hauger explained that he was a member of the FBI's Cellular Analysis

Survey Team and that he had special training in cell-phone technology. He

testified that he had personally tracked cell phones using Sprint per call

measurement data (PCMD) about a hundred times. He also testified that he and

other FBI agents had performed historical cell-site analysis using Sprint PCMD

thousands of times. Hauger explained that normal call detail records provide

the tower and location of the tower that the phone was using to connect to the

network. He went on to explain that PCMD "gives you a distance from the tower

based on an algorithm." Cell-phone companies use PCMD for network

optimization and troubleshooting. The FBI uses the data, which it uploads to a

mapping program developed by the FBI, to find people. Hauger stated that the

FBI found PCMD to be accurate within a tenth of a mile, "in some cases, in

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pinpointing the location of a phone." He went on to testify that he believed that

the measurements from the tower were "more than likely accurate."

Hauger acknowledged that Sprint did not vouch for the accuracy of the

latitudes and longitudes in its PCMD reports. Nevertheless, he explained that

the FBI, while finding some discrepancies with latitude and longitude, believed

the distances provided by PCMD were "accurate."

On cross-examination, Hauger acknowledged that there were no

validation studies or published articles to support his assertions that Sprint

PCMD was accurate. Instead, he explained that his accuracy claim was based

on the FBI's "practical experience of locating people with [PCMD]."

After hearing the testimony at the evidentiary hearing, the trial court

denied defendant's motion to exclude Hauger's testimony. The court found that

Hauger's cell-site analysis methodology had gained sufficient general

acceptance in courts throughout the country. The court concluded that any

concerns about the data's imprecision as "best estimates" could be adequately

addressed before the jury on cross-examination.

At trial, Hauger testified as an expert in historical cell-site analysis.

Hauger explained that he had analyzed records provided by Sprint for a cell

phone believed to be in the possession of defendant. He looked at the data for

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that cell phone between approximately 2:00 a.m. and 10:00 a.m. on March 24,

2013. According to Hauger, the data showed that the phone was "somewhere

very close" to Ferdinand's apartment between 2:14 a.m. to 7:31 a.m. By 7:54

a.m., the phone was closer to defendant's residence. Hauger also explained that

defendant's residence was about one mile from Ferdinand's apartment. He

acknowledged that there could be an error rate as much as one-tenth of a mile in

his analysis.

The jury also heard testimony from Kelly Walker, the records custodian

for Sprint Corporation. Walker testified that PCMD is mainly used internally to

make sure the network is working properly. Walker stated that Sprint has a

disclaimer that states that its PCMD data is used to estimate locations of mobile

devices, but Sprint does not guarantee the accuracy of the location information.

Walker also explained that Sprint does not use the data to track the locations of

people using their cell phones.

In his case, defendant called Spencer McInvaille as an expert in cellular

analysis. McInvaille opined that historic cell detail records cannot be used to

"precisely locate a device." He also testified that Sprint does not acknowledge

the accuracy of PCMD and that he was not aware of any scientific or engineering

studies demonstrating the accuracy of PCMD.

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One of the officers who testified at trial was a retired detective who

testified about a 2009 narcotics investigation. The retired detective explained

that the investigation involved Ferdinand and six other defendants. According

to the retired detective, Ferdinand was not a confidential informant nor a

cooperating witness in the investigation. The retired detective also stated that

he knew of no other cases involving Ferdinand and was not aware of Ferdinand

snitching on any drug dealers or other persons in Long Branch.

During his case, defendant called an investigator and during the

investigator's testimony, the 2009 judgments of conviction were admitted into

evidence. The judgments stated that Ferdinand had received a probationary

sentence, while a co-defendant named Manuel Savedra had been sentenced to

seven years in prison. In closing argument, defense counsel contended that

Ferdinand had been killed by hired professionals in retaliation for snitching on

Savedra.

After the State and the defense had put in their evidence, the trial court

instructed the jury. Before giving those instructions, the court informed counsel

that it would include a duress instruction because defendant had claimed that he

had been forced to murder Ferdinand. Defense counsel did not object to that

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instruction. Nor did defense counsel object to the verdict sheet that was given

to the jury.

After hearing closing arguments and the instructions by the court, the jury

found defendant guilty of all charges. The jury also found both aggravating

factors related to the murder of Maritza.

At sentencing, the trial court merged the weapons convictions into the

murder convictions. On the conviction for the murder of Ferdinand, defendant

was sentenced to life in prison with thirty years of parole ineligibility. On the

conviction for the murder of Maritza, defendant was sentenced to life in prison

without the possibility of parole. The sentences for the murder convictions were

ordered to be served consecutively. Defendant was also ordered to pay $5,00 0

in restitution to the Victims of Crime Compensation Office. Defendant now

appeals from his convictions and sentence.

II.

In a brief filed by his appellate counsel, defendant presented four

arguments for our consideration:

POINT I – THE DEFENDANT'S DECEMBER 2014

STATEMENT TO POLICE SHOULD HAVE BEEN

SUPPRESSED BECAUSE THE STATE DID NOT

PROVE THAT DEFENDANT KNOWINGLY AND

VOLUNTARILY WAIVED HIS RIGHTS AGAINST

SELF-INCRIMINATION. WHEN DEFENDANT

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TWICE ASKED WHETHER HE COULD STOP THE

INTERROGATION AT ANY TIME AND REFUSE

TO ANSWER QUESTIONS, A DETECTIVE TOLD

HIM THE FIRST TIME THAT HE COULD NOT DO

SO AND HAD TO ANSWER QUESTIONS, AND,

THE SECOND TIME, IGNORED THE

DEFENDANT'S QUESTION AND ANSWERED AS

IF A DIFFERENT QUESTION HAD BEEN ASKED.

MOREOVER, THE DETECTIVE COERCED THE

DEFENDANT INTO CONFESSING BY PROMISING

TO "HELP" DEFENDANT.

POINT II – THE EXPERT OPINION OF AN FBI

AGENT REGARDING THE COVERAGE RANGE OF

SPRINT CELL-PHONE TOWERS AND

DEFENDANT'S LIKELY LOCATION AT THE

CRIME SCENE AT A PARTICULAR TIME WAS

IMPERMISSIBLY UNRELIABLE AND A "NET

OPINION" BECAUSE IT WAS NOT BASED UPON

RELIABLE EVIDENCE OF THAT RANGE BUT,

RATHER, ON DATA THAT SPRINT ITSELF

REFUSED TO CERTIFY AS ACCURATE TO

DETERMINE A PHONE'S LOCATION.

POINT III – THE MANNER IN WHICH DURESS

WAS PRESENTED TO THE JURY ON THE

VERDICT SHEET, AND IN THE INSTRUCTION,

DEPRIVED DEFENDANT OF DUE PROCESS AND

A FAIR TRIAL ON THE COUNT OF THE

INDICTMENT CHARGING DEFENDANT WITH

THE MURDER OF [FERDINAND].

POINT IV – THIS COURT SHOULD REJECT STATE

V. TROXELL, AND HOLD THAT IT IS IMPROPER

TO INSTRUCT THE JURY TO BE UNANIMOUS IN

ORDER TO REJECT AN AGGRAVATING FACTOR

REGARDING A LIFE-WITHOUT-PAROLE (LWOP)

SENTENCE, WHEN, IN FACT, AS IN DEATH-

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PENALTY JURISPRUDENCE -- WHICH IS THE

BASIS FOR THE LWOP PROCEDURE -- THE ONLY

UNANIMITY REQUIREMENT IS TO FIND SUCH A

FACTOR, NOT TO REJECT IT; MOREOVER, THE

AGGREGATE SENTENCE IMPOSED IS

MANIFESTLY EXCESSIVE AND THE

RESTITUTION ORDER IS UNACCOMPANIED BY

A FINDING OF AN ABILITY TO PAY.

Defendant also filed his own supplemental brief where he presented the

following arguments:

POINT I: THE COURT MUST "MODIFY" THE

SENTENCE IN ACCORDANCE WITH N.J.S.A.

2C:44-7 TOWARDS ACCORD AND

SATISFACTION OF THE CONVICTION AS A

WHOLE. BECAUSE AN ILLEGAL SENTENCE

WAS IMPOSED, DEFENDANT HAS NO HISTORY

OF PRIOR CRIMINAL DELINQUENCY OR

CRIMINAL ACTIVITY [] CAUSING A WRONGFUL

CONVICTION.

A. During Sentencing, the court did not comply with

Rule 3:21-4(b) since the court did not address the

defendant personally and ask the defendant if he wished

to make a statement in his own behalf and to present

any information in mitigation of punishment.

B. When defendant was initially arrested and detained

back on 12/17/2014 defendant was 22 years old[,] a

young offender, the Judgment of conviction denotes

that defendant's date of birth is 10/29/1992 [], was only

eligible for a sentence pursuant to N.J.S.A. 2C:43-5,

which is consistent with Assembly Bill No. 4373.

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C. Instant convictions for Count 1 to Count 2 are

offences closely related, which the court below

[discretionally] decided to adjudicate split sentences.

D. The Sentencing Court violated Rule 3:21-4(f).

E. Mitigating Factors outweigh Aggravating factor to

lower the Count 1 and Count 2 [] one degree Lower

pursuant to N.J.S.A. 2C:44-1f.(2).

F. Cruel And Unusual Punishment When the Court

imposed 'natural life'.

POINT II: SUPPLEMENTING COUNSELED BRIEF

ARGUMENT [] TO ALERT THIS COURT OF THE

PUBLISHED OPINION OF THE APPELLATE

DIVISION IN STATE V. ANTHONY SIMS, JR.,

DOCKET NO. A-2641-17T2, DECIDED JANUARY 4,

2021; ET AL.

In summary, defendant makes five arguments, contending that (1) his

December 2014 statement should have been suppressed; (2) Agent Hauger

should not have been allowed to testify; (3) the trial court erred in instructing

the jury on the defense of duress; (4) the trial court erred in instructing the jury

on the aggravating factors related to the murder of Maritza; and (5) his sentence

was illegal or had other problems that require a resentencing. We reject all these

arguments, except for two matters concerning defendant's sentence.

Accordingly, we affirm his convictions and remand for resentencing on the

conviction for the murder of Ferdinand.

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A. Defendant's December 2014 Statement.

The Fifth Amendment of the United States Constitution guarantees all

persons with the privilege against self-incrimination. U.S. Const. amend. V.

This privilege applies to the states through the Fourteenth Amendment. U.S.

Const. amend. XIV; Griffin v. California, 380 U.S. 609, 615 (1965); State v.

Clark, 251 N.J. 266, 291 (June 29, 2022). Moreover, in New Jersey, there is a

common-law privilege against self-incrimination, which has been codified in

statutes and rules of evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503; State v.

O.D.A-C., 250 N.J. 408, 420 (2022).

If a person is not in custody, the privilege against self-incrimination must

generally be invoked. See State v. Ahmad, 246 N.J. 592, 610 (2021) (explaining

that "Miranda is triggered only when a person is in custody and subject to

questioning by law enforcement"). When an individual is subject to custodial

interrogation, that person is entitled to certain warnings in accordance with

Miranda. O.D.A.-C., 250 N.J. at 420 (citing State v. Hreha, 217 N.J. 368, 382

(2014)).

After receiving Miranda warnings, a person may knowingly and

intelligently waive those rights and agree to answer questions or make

statements. To admit the statement into evidence, the State must establish

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beyond a reasonable doubt that the waiver of the Miranda rights was given

intelligently, knowingly, and voluntarily in light of the totality of the

circumstances. State v. Sims, 250 N.J. 189, 211 (2022); State v. Nyhammer,

197 N.J. 383, 402-03 (2009). "Under the totality-of-the-circumstances test,

courts commonly consider a number of factors to determine if a Miranda waiver

is valid." O.D.A.-C., 250 N.J. at 421. "Those factors include the suspect's

'education and intelligence, age, familiarity with the criminal justice system,

physical and mental condition, . . . drug and alcohol problems,' how explicit the

waiver was, and the amount of time between the reading of the rights and any

admissions." Ibid. (quoting 49 Geo. L.J. Ann. Rev. Crim. Proc., 233-36 (2020)).

"Beyond the issue of waiver, there are separate due process concerns

related to the voluntariness of a confession." Ibid. The State must "prove

beyond a reasonable doubt that a defendant's confession was voluntary and was

not made because the defendant's will was overborne." Ibid. (quoting State v.

L.H., 239 N.J. 22, 42 (2019)). In assessing voluntariness, the totality-of-the-

circumstances test also applies and "[t]here is a substantial overlap [with] the

factors that" apply to a waiver analysis. Ibid. (citing State v. Tillery, 238 N.J.

293, 316-17 (2019)).

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When Miranda warnings are given, they must be given properly. O.D.A.-

C., 250 N.J. at 424. Accordingly, a law-enforcement officer cannot directly

contradict the warnings. Ibid.; see also L.H., 239 N.J. at 44 (explaining that "[a]

police officer cannot directly contradict, out of one side of his mouth, the

Miranda warnings just given out of the other" (quoting State ex rel. A.S., 203

N.J. 131, 151 (2010))).

In reviewing a trial court's decision on a motion to suppress a statement,

appellate courts generally defer to the factual findings of the trial court when

they are supported by sufficient credible evidence in the record. Sims, 250 N.J.

at 210; Nyhammer, 197 N.J. at 409 (citing State v. Elders, 192 N.J. 224, 243-44

(2007)). Moreover, appellate courts defer to a trial judge's findings "which are

substantially influenced by [the judge's] opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing court cannot

enjoy[.]" State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson,

42 N.J. 146, 161-62 (1964)). Legal determinations are reviewed de novo. Sims,

250 N.J. at 218.

Defendant argues that he did not knowingly or voluntarily give his

December 2014 statement to Detective Rivera because Rivera provided

deceptive answers when defendant twice asked if he could stop answering

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questions. Defendant also contends that Rivera improperly promised to help

him.

Before the trial court, defendant moved to exclude all his statements and

consequently his arguments were not focused on the specific issues he raises on

this appeal concerning the December 2014 statement. Addressing the December

2014 statement, the trial court found that defendant had appeared voluntarily, in

an effort to eliminate himself as a suspect and because he and his family were

being harassed by Ferdinand's family. In addition, the trial court found that

defendant had been given Miranda warnings twice during his statement and

defendant had stated that he understood and waived those warnings.

Accordingly, the trial court also found that defendant had knowingly,

voluntarily, and intelligently waived his Miranda rights.

Initially, we hold that whether defendant was in custody when he gave the

statement in December 2014 is not the determinative issue. We agree with the

trial court that when defendant first appeared, he appeared voluntarily, and he

was not in custody. Early in the questioning, however, Detective Rivera gave

defendant Miranda warnings. After defendant admitted he was present when

Ferdinand was murdered, Rivera again reviewed the Miranda warnings with

defendant to confirm that he understood and was waiving his rights.

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Consequently, the determinative issue is whether any comment made by Rivera

rendered defendant's statement involuntary or unknowing.

Reviewed in the totality of the circumstances, there was substantial

credible evidence supporting the trial court's finding that the defendant's

statement was given knowingly, voluntarily, and intelligently. Moreover, when

we focus on the specific challenges raised by defendant on this appeal, we hold

that Rivera's comments did not undercut defendant's waiver of his Miranda

rights.

On this appeal, defendant first challenges the response Rivera made to

defendant while defendant was reviewing the polygraph form. In reviewing that

form, defendant asked: "I can stop whenever I want to, right?" After twice

asking "What?," Rivera responded: "When taking a test, you have to answer yes

or no during the test. But I am going to explain all of that to you." Considered

in the totality of the circumstances, Rivera's response did not undercut the

Miranda warnings. Just prior to the challenged exchange, Rivera had presented

defendant with a Miranda waiver form, defendant had reviewed all his Miranda

rights, initialed all those rights, and agreed to speak with Rivera. Accordingly,

defendant's question related to the polygraph form and Rivera's answers was not

misleading relative to the Miranda rights. Considered in context, the response

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by Rivera did not undercut defendant's understanding of his Miranda rights and,

in particular, his right to stop answering questions at any time he chose.

Defendant's second challenge is to a response Rivera gave when Rivera

readministered defendant's Miranda rights. After defendant admitted that he

was present when Ferdinand was murdered, Rivera reviewed defendant's

Miranda rights a second time. Specifically, Rivera read each statement on the

form aloud to defendant and defendant confirmed that he had initialed and

understood each statement. When Rivera got to the last part of the Miranda

waiver form, the following exchange took place:

[Rivera]: Having these . . . these rights in mind, I wish

to give up these rights and make a voluntary statement

and answer any question. Is that your signature? Do

you understand?

[Defendant]: Does that mean I cannot change my

mind? Right?

[Rivera]: Uh? This, what this says is that you

understand. That having the rights in mind, you wish

to waive them and provide a voluntary statement to talk

to me and answer each question. Ok, is that right?

[Defendant]: Uh-huh.

[Rivera]: Ok, and that is your signature, right? Today's

date and the time when you signed it. Do you

understand everything?

[Defendant]: Yes.

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Rivera's comment was not directly responsive to defendant's question of

whether defendant could change his mind. Nevertheless, considered in the

totality of the circumstances, Rivera's response did not undermine defendant's

waiver of his Miranda rights and make the statement inadmissible. Rivera

expressly explained that defendant was agreeing to waive his rights and to

provide a voluntary statement. Rivera's comment was made after he had already

reviewed each of defendant's constitutional Miranda rights and had confirmed

with defendant that he understood those rights.

Finally, defendant contends that Rivera's comments that he would help

defendant rendered defendant's statement involuntary and inadmissible. The

specific comment defendant objects to was made after defendant admitted to

being present in the apartment with eight intruders when the murders occurred.

Rivera told defendant that he did not believe defendant was telling the whole

truth and Rivera then commented that "I also promised I am going to do

everything, everything I can to help you out; everything I can to help you out

today. But what I need from you is the truth, the truth." Shortly thereafter,

defendant admitted to stabbing Ferdinand but claimed he was forced to do it.

Rivera's comment to help defendant did not include any specific promise

of the type of help Rivera would provide. Moreover, we note that at other times

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during the questioning in December 2014, Rivera made other references to

helping defendant. Those comments were also not specific promises of help.

Rivera's comments were qualitatively different from a false promise of leniency

or a promise that defendant's statement would not be used against him.

Consequently, the comments were not like the statements or promises that have

been held to undermine Miranda warnings. See O.D.A.-C., 250 N.J. at 423.

Instead, Rivera's comment is more analogous to an appeal "to [the suspect's]

sense of decency and urging him to tell the truth for his own sake." L.H., 239

N.J. at 44 (alteration in original) (quoting State v. Miller, 76 N.J. 392, 405

(1978)). In short, Rivera's comments to help defendant were not of a nature to

cause defendant's will to be overborne and induce an involuntary statement.

We also reject defendant's argument raised in his pro se brief concerning

this court's decision in State v. Sims, 466 N.J. Super. 346 (App. Div. 2021). In

Sims, this court held that to make a knowing and intelligent waiver of his or her

Miranda rights, a suspect who is under arrest must be informed of the crime for

which he or she was arrested, even if no formal complaint had yet been issued.

466 N.J. Super. at 354. The New Jersey Supreme Court, however, reversed our

decision in Sims and held that a suspect needs to be advised about pending

charges but not that he or she might or likely will be charged with a crime. Sims,

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250 N.J. at 214-16. It is undisputable that defendant had no pending charges

when he initially appeared on December 16, 2014, to give a statement and take

a polygraph exam. Consequently, during defendant's December 2014 statement

there was no violation of the rule identified by the Supreme Court in Sims.

In summary, defendant was advised of his Miranda rights, he

acknowledged that he understood those rights, and he knowingly, intelligently,

and voluntarily waived those rights and provided a statement. Accordingly, the

trial court did not err in admitting the redacted videotape and transcript of

defendant's December 2014 statement.

B. Agent Hauger's Testimony.

Defendant argues that the trial court erred by admitting Agent Hauger's

expert testimony, which relied on PCMD to place the cell phone defendant was

alleged to possess within one-tenth of a mile of Ferdinand's apartment for nearly

two hours after Andre left the apartment on March 24, 2013. Defendant

contends that Hauger's testimony was not sufficiently reliable to be admitted

under N.J.R.E. 702.

Expert testimony is admissible when "scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or

to determine a fact in issue" and the proposed expert has the requisite

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"knowledge, skill, experience, training or education" to form an expert opinion.

N.J.R.E. 702. There are three requirements for the admission of expert

testimony:

(1) the intended testimony must concern a subject

matter that is beyond the ken of the average juror; (2)

the field testified to must be at a state of the art such

that an expert's testimony could be sufficiently reliable;

and (3) the witness must have sufficient expertise to

offer the intended testimony.

[State v. Kelly, 97 N.J. 178, 208 (1984).]

In criminal cases, New Jersey applies the Frye test to determine whether

the field testified to is generally accepted within the relevant scientific

community. State v. Cassidy, 235 N.J. 482, 491-92 (2018) (citing State v.

J.L.G., 234 N.J. 265, 280 (2008)); see also Frye v. United States, 293 F. 1013

(D.C. Cir. 1923).

Our Supreme Court has explained:

"Proof of general acceptance within a scientific

community can be elusive," and "[s]atisfying the test

involves more than simply counting how many

scientists accept the reliability of the proffered

[technique]." General acceptance "entails the strict

application of the scientific method, which requires an

extraordinarily high level of proof based on prolonged,

controlled, consistent, and validated experience." The

proponent of the technique has the burden to "clearly

establish" general acceptance and may do so using "(1)

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expert testimony, (2) scientific and legal writings, and

(3) judicial opinions."

[Cassidy, 235 N.J. at 492 (alterations in original)

(citations omitted).]

"Whether expert testimony is sufficiently reliable to be admissible under

N.J.R.E. 702 is a legal question [that appellate courts] review de novo." J.L.G.,

234 N.J. at 301. "When reviewing a decision on the admission of scientific

evidence, an appellate court should scrutinize the record and independently

review the relevant authorities, including judicial opinions and scientific

literature." State v. Harvey, 151 N.J. 117, 167 (1997). The determination of

whether the witnesses qualify to present expert testimony is reviewed for an

abuse of discretion. State v. Rosales, 202 N.J. 549, 562-63 (2010).

Initially, we reject defendant's argument that Hauger's testimony was a net

opinion. "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)

(quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "An expert must

'give the why and wherefore' that supports the opinion, 'rather than a mere

conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,

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144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,

372 (2011)).

Hauger testified as an expert in the field of historical cell-site analysis.

He identified the factual basis for his conclusions, explaining that he relied on

Sprint PCMD. We have held that the field of historical cell-site analysis is at a

state of the art that is sufficiently reliable to allow a qualified expert's testimony.

State v. Burney, 471 N.J. Super. 297, 321-23 (App. Div. 2022). In that regard,

numerous federal and other state courts have allowed the admission of expert

testimony regarding historical cell-site data analysis. See United States v. Hill,

818 F.3d 289, 298 (7th Cir. 2016); United States v. Schaffer, 439 Fed. App'x

344, 347 (5th Cir. 2011); United States v. Jones, 918 F. Supp. 2d, 1, 5 (D.D.C.

2013); United States v. Evans, 892 F. Supp. 2d 949, 956 (N.D. Ill. 2012); State

v. Johnson, 797 S.E.2d 557, 563 (W.Va. 2017); Pullin v. State, 534 S.E.2d 69,

71 (Ga. 2000); Wilson v. State, 195 S.W.3d 193, 200-02 (Tex. Crim. App. 2006).

Defendant does not challenge that historical cell-site analysis is at a state

of the art that is sufficiently reliable. Instead, defendant challenges the

reliability of the Sprint PCMD on which Hauger relied in giving his expert

opinion.

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Hauger testified that he is an FBI agent with special training and

experience as part of the FBI's Cellular Analysis Survey Team. Hauger

explained that historical call detail record analysis determines "a general

geographic area of where the phone was when it did something" and is not used

to precisely locate a phone. Hauger also acknowledged, as confirmed by the

testimony of a Sprint representative, that Sprint uses its PCMD for system

optimization and not for locating phones. Moreover, Sprint disclaims the

accuracy of PCMD in locating phones. Hauger also acknowledged that there

were no underlying validation studies for using PCMD to locate a phone.

Instead, Hauger explained that his opinion was based on his experience of using

PCMD to locate Sprint phones about 100 times throughout his career. He also

relied on the FBI's general experience where it has used PCMD to locate phones

in thousands of situations.

This case does not require us to determine whether Hauger's testimony

and his reliance on Sprint's PCMD was sufficiently reliable. Instead, we

determine that the admission of Hauger's expert testimony was not reversible

error. Any error in admitting Hauger's testimony was harmless given

defendant's own admissions. In his statement, defendant acknowledged he was

present when Ferdinand and Maritza were murdered. Hauger's opinion went to

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that very issue in that it placed a cell phone in defendant's possession in

Ferdinand's apartment when only defendant, Ferdinand, and Maritza were

present in the apartment. Consequently, Hauger's expert testimony only helped

to confirm defendant's own admission.

C. The Jury Charge and Verdict Sheet Concerning the Defense of

Duress.

Defendant contends that the jury instructions and verdict sheet failed to

properly inform the jury concerning the possible defense of duress related to the

murder of Ferdinand. We disagree and reject this argument.

"Appropriate and proper charges to a jury are essential for a fair trial."

State v. Lora, 465 N.J. Super. 477, 501 (App. Div. 2020) (quoting State v. Green,

86 N.J. 281, 287 (1981)). "Jury charges must provide a 'comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find.'" State v. Singleton, 211

N.J. 157, 181-82 (2012) (quoting Green, 86 N.J. at 287-88).

If a defendant does not object when a charge is given, "there is a

presumption that the charge was not error and was unlikely to prejudice the

defendant's case." State v. Montalvo, 229 N.J. 300, 320 (2017) (quoting

Singleton, 211 N.J. at 182). When there is no objection, we review for plain

error and "disregard any alleged error 'unless it is of such a nature as to have

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been clearly capable of producing an unjust result.'" State v. Funderburg, 225

N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error in a jury charge is "[l]egal

impropriety in the charge prejudicially affecting the substantial rights of the

defendant and sufficiently grievous to justify notice by the reviewing court and

to convince the court that of itself the error possessed a clear capacity to bring

about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alternation

in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).

In reviewing a claim of error related to a jury charge, "[t]he charge must

be read as a whole in determining whether there was any error." State v. Torres,

183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). In

addition, the error "must be evaluated in light 'of the overall strength of the

State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)).

"A verdict sheet is intended for recordation of the jury's verdict and is not

designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161,

196 (2010). When the defendant does not object to an interrogatory on the

verdict sheet, appellate courts review for plain error. State v. Vasquez, 265 N.J.

Super. 528, 547 (App. Div. 1993). The "inquiry focuses on whether the jury

understood the elements [of the offense] as instructed by the judge, and was not

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misled by the verdict sheet." Gandhi, 201 N.J. at 197. "When there is an error

in a verdict sheet but the trial court's charge has clarified the legal standard for

the jury to follow, the error may be deemed harmless." State v. Galicia, 210

N.J. 364, 387 (2012).

At the end of the presentation of evidence at defendant's trial, the trial

court determined that it would instruct the jury on the defense of duress

concerning the murder charge related to Ferdinand. The trial court reasoned that

the defense of duress had effectively been presented in defendant's statements

because during those statements defendant contended that he had been coerced

and threatened into stabbing Ferdinand. The court then instructed the jury on

duress using the Model Jury Charge for Duress and modifying it to the facts of

defendant's case. In that regard, the trial court instructed the jury:

The State has the burden to pro[ve] beyond a reasonable

doubt each element of the offense of murder. [The]

State also has the burden to disprove, beyond a

reasonable doubt, the defense of duress.

If you find the State has proven beyond a reasonable

doubt each element of the offense charged and that the

State has disproved beyond a reasonable doubt the

defense of duress, you must find the defendant guilty of

murder, and answer no to question [1a.] on the verdict

sheet.

If, however, you determine that the State has proven

beyond a reasonable doubt each element of the offense

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of murder of [Ferdinand], but has failed to disprove the

defense of duress, then you must find the defendant

guilty of manslaughter, and answer yes to question [1a.]

on the verdict sheet.

Finally, as I previously instructed, if you determine that

[the] State has failed to prove beyond a reasonable

doubt one or more of the elements of murder of

[Ferdinand], you must find the defendant not guilty of

murder.

Question one on the verdict sheet asked the jury how it found as to whether

defendant committed the murder of Ferdinand. The jury then had the option of

answering not guilty or guilty. Question 1a. of the verdict sheet asked the jury

whether it found that defendant had committed the murder of Ferdinand

"because he was coerced to do so by the use of, or a threat to use, unlawful force

against his person or the person of another, which a person of reasonable

firmness in his situation would have been unable to overcome?" The jury then

had the option of answering no or yes.

Defendant did not object to the jury charge or the verdict sheet concerning

the defense of duress. On appeal, however, defendant now argues that " [t]he

manner in which duress was presented to the jury on the verdict sheet, and in

the instruction" deprived him of a fair trial. In that regard, defendant contends

that duress works like passion/provocation and that the defense of duress should

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have been presented to the jury in the same way that passion/provocation would

have been presented.

We reject defendant's argument and hold that the trial court properly

instructed the jury that the State had the burden to disprove duress beyond a

reasonable doubt. We also hold that the jury instructions concerning duress,

which were both read to and given to the jury, were correct. The instructions

clearly explained that duress acted as a defense, which would have reduced the

charge of murder to manslaughter. See N.J.S.A 2C:2-9(b) (explaining that "[i]n

a prosecution for murder, the defense [of duress] is only available to reduce the

degree of the crime to manslaughter").

Likewise, there was no plain error on the verdict sheet. The verdict sheet

was crafted to ensure that the jury did not find defendant guilty of murder

without considering the defense of duress. In addition, while the verdict sheet

itself did not mention manslaughter, the instructions clearly did. Accordingly,

we find no plain error in the jury instructions or verdict sheet concerning the

defense of duress.

D. The Instructions Concerning the Triggering and Aggravating

Factors Related to the Murder of Maritza.

In instructing the jury concerning the charge of the murder of Maritza, the

trial court explained that the jurors had to unanimously find defendant guilty of

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purposely or knowingly causing the death of Maritza. The trial court also

instructed the jury that they were to consider the triggering and aggravating

factors that, if found, would require defendant to be sentenced to life without

the possibility of parole. Accordingly, the trial court instructed the jury that

they must unanimously determine whether defendant had acted by his own

conduct in causing the death of Maritza. The court also instructed the jury that

they were to unanimously determine whether defendant had committed the

murder of Maritza for the purpose of escaping detection of or apprehension for

the murder of Ferdinand and whether defendant had committed the murder of

Maritza while he was engaged in the commission of, or an attempt to commit,

the murder of Ferdinand. Defendant did not object to those instructions or the