State v. Roberson Burney

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office

of the Clerk for the convenience of the reader. It has been neither reviewed nor

approved by the Court and may not summarize all portions of the opinion.

State v. Roberson Burney (A-14-22) (086966)

Argued March 27, 2023 -- Decided August 2, 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.

2

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

3

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 in-

court 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 first-

time in-court identification that defendant was the intruder. The State stressed the

credibility of both pieces of evidence in summation, and Martinez’s testimony -- as

the only witness who identified defendant as the intruder -- could have had a serious

impact on the jury’s perception of defendant’s guilt or innocence in conjunction with

Special Agent David’s testimony. The due process concerns raised by the likelihood

of misidentification in Martinez’s testimony magnify the harmfulness of the trial

court’s error. Balancing the other evidence presented by the State against the force

of the improperly admitted evidence, the Court finds that the cumulative error

impacted and prejudiced the fairness of defendant’s trial. Therefore, defendant’s

conviction and sentence must be vacated and a new trial granted. At a retrial, the

State may not ask Rosette Martinez to identify defendant again. (pp. 38-41)

REVERSED and REMANDED for a new trial.

JUSTICE SOLOMON, dissenting, agrees that the trial court erred in

admitting the disputed testimony by Special Agent David and Rosette Martinez’s

first-time in court-identification but expresses the view that those errors are harmless

in light of the sheer volume of competent evidence against defendant -- most notably

his DNA on the Costco shopping bag found at the scene, the photographs of

Martinez’s unique watch on his phone, and the corresponding testimony about the

intruder’s text message alerts and the taking of photographs.

CHIEF JUSTICE RABNER; JUSTICES WAINER APTER and FASCIALE;

and JUDGE SABATINO (temporarily assigned) join in JUSTICE PIERRE-

LOUIS’s opinion. JUSTICE SOLOMON filed a dissent, in which JUSTICE

PATTERSON joins.

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SUPREME COURT OF NEW JERSEY

A-14 September Term 2022

086966

State of New Jersey,

Plaintiff-Respondent,

v.

Roberson Burney, a/k/a Robert

Burney, John Burney, Robin Burney, and

Michael Langford,

Defendant-Appellant.

On certification to the Superior Court,

Appellate Division, whose opinion is reported at

471 N.J. Super. 297 (App. Div. 2022).

Argued Decided

March 27, 2023 August 2, 2023

Cody T. Mason, Deputy Public Defender II, argued the

cause for appellant (Joseph E. Krakora, Public Defender,

attorney; Cody T. Mason, of counsel and on the briefs,

and Stephen W. Kirsch, Designated Counsel, on the

briefs).

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 briefs).

Ethan Kisch argued the cause for amici curiae American

Civil Liberties Union of New Jersey, Association of

1

Criminal Defense Lawyers of New Jersey, and The

Innocence Project, Inc. (Gibbons, attorneys; Ethan Kisch

and Lawrence S. Lustberg, on the brief).

Lauren Bonfiglio, Deputy Attorney General, argued the

cause for amicus curiae Attorney General of New Jersey

(Matthew J. Platkin, Attorney General, attorney; Lauren

Bonfiglio, of counsel and on the brief).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.

In this appeal, we must determine whether it was cumulative error for

the trial court to admit two pieces of evidence: expert testimony that

defendant’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.

Defendant Roberson Burney was convicted of robbery and assault,

among other charges, and sentenced to an extended term of life imprisonment

without parole. The charges stemmed from an armed robbery at Rosette

Martinez’s home. In the days immediately following the home invasion,

Rosette1 was shown two photo arrays, the second of which included a photo of

defendant. Rosette misidentified a filler photo in the first photo array with 90

1

Because multiple witnesses and victims share the same surname, we use

their first names to avoid confusion. We intend no disrespect in doing so.

2

percent certainty and declined to make an identification during the second

photo array. One month later, detectives invited Rosette back to the police

station and informed her that they had arrested defendant for the robbery of her

home.

At trial, the State’s expert, Federal Bureau of Investigation (FBI) Special

Agent Ajit David, used defendant’s cell phone records to create maps showing

the cell towers with which defendant’s phone made contact on the night of the

robbery. Special Agent David gave his expert opinion that the cell towers in

the area had an approximate coverage range with a radius of about one mile.

That estimated radius was based solely on Special Agent David’s “rule of

thumb” for the area -- a “good approximation” based on his training and

experience. Special Agent David relied on that approximation to place

defendant’s cell phone at or near the crime scene at the time of the robbery.

Prior to trial, defense counsel moved to exclude both Special Agent

David’s expert testimony and any first-time in-court identification of

defendant by any of the victims. Defense counsel argued that Special Agent

David’s one-mile approximation was unreliable because it was based on

nothing more than his personal experience. Defense counsel further argued

that any in-court identification by Rosette was tainted by the detectives’ highly

suggestive conduct of telling Rosette defendant’s name and sharing other

3

details of the investigation. The trial court denied both motions, thereby

allowing Special Agent David to testify as to his one-mile approximation and

Rosette to identify defendant as the intruder for the first time at trial.

The Appellate Division affirmed on both issues, holding that the trial

court did not abuse its discretion in permitting Special Agent David’s expert

testimony or Rosette’s first-time in-court identification. The court found that

Special Agent David’s estimated one-mile coverage range was well supported

by his knowledge, skill, experience, and training. And although the Appellate

Division noted that it was suggestive for police to tell Rosette defendant’s

name prior to her in-court identification, the court concluded that any

weakness in the identification was “fully presented to the jury through skillful

cross-examination” and adequate jury instructions.

For the reasons stated below, we find that the trial court erred in

admitting both pieces of evidence. Those errors, in combination, deprived

defendant of a fair trial. We therefore reverse and remand this matter for a

new trial.

I.

A.

We rely on the testimony elicited at trial for the following summary.

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On the evening of December 25, 2015, an armed robbery occurred at

Rosette’s two-family home in Bloomfield. Rosette was with her daughter,

Samantha, and Samantha’s friend, Taffy Camacho, when she heard footsteps

coming up the stairs to her door. Rosette 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. Rosette believed she recognized the

intruder as someone who had recently done contracting work on their house.

He then pulled out a “long gun” and ordered the women down the hall into

Rosette’s bedroom, following behind them.

The intruder instructed the women to lay face down and tied their hands

behind their backs with telephone cords and scarves. He asked where the

money and gold were, and Rosette responded that she “d[id]n’t have

anything.” The man then began rifling through Rosette’s drawers, jewelry,

and pocketbooks. Throughout the duration of the robbery, the man ordered:

“[h]eads down,” “eyes down,” “don’t look at me,” and “shut up.”

At some point during the robbery, the women heard the intruder’s phone

go off. Rosette heard the intruder’s phone ring and announce a “[c]all from” a

name she did not recognize. Thereafter, Rosette testified that the intruder

“talk[ed] to somebody.” Samantha testified that she heard the intruder’s phone

announce an “incoming text” message from a name she did not recognize, but

5

the message was not read aloud. Samantha also testified that the intruder

answered a call at one point. Camacho testified that she heard the intruder’s

phone announce an “incoming message.” All three women testified that they

heard clicking noises that indicated to them that the intruder was taking

pictures with his phone.

After approximately fifteen to twenty minutes, the intruder told the

women to give him a few minutes to leave, and no one would get hurt. After

the women heard the intruder walk down the steps to the porch and leave, they

untied themselves and called 911 at approximately 8:15 p.m.

Officers Leonard Antinozzi and Anna Ruiz of the Bloomfield Police

Department responded to the 911 call and spoke with the victims, as well as

Rosette’s parents, who lived on the first floor. Rosette’s parents did not see or

hear anything related to the robbery. The victims described the intruder as a

5’8” to 5’9” tall, slender, Black man between the ages of forty and sixty.

Rosette and Samantha recalled that the man wore a black beanie and dark

clothes, and that his face was uncovered. Rosette reported that the intruder

stole jewelry, two Amazon Kindles, and credit cards.

During the 911 call, Rosette told the dispatcher that the man “worked at

our house,” and told Officer Antinozzi the same. Rosette initially told Officer

Antinozzi that upon entering the house, the intruder said, “I’m here to do work

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on the house.” In her formal statement to Bloomfield Police Detective Jeffrey

Alfonso on the evening of the robbery, Rosette reported that the intruder told

her “I am here to fix something for your father,” who had hired the contractors.

Rosette later testified that the intruder “said he’s from Tyrone” -- her father’s

caretaker who referred the contractors to him. Samantha testified that the

intruder said that he “knew Tyrone, and he was [there] for my grandpa or

something like that.” Camacho recalled the intruder saying something about

“plumbing.”

After taking the victims’ statements, Detective Alfonso re-canvassed the

scene and 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 has five brothers: defendant, John,

Cornelius, Tyrone, 2 and Christopher. Detective Alfonso contacted Mark, who

told the detective that defendant had been working with him at Rosette’s home.

Rosette testified that she had seen defendant on two prior occasions.

Rosette stated that her father hired Mark in October or November 2015 to

repair their porch roof, and defendant had assisted his brother by cleaning the

porch windows. Mark’s son had also assisted with the work at Rosette’s

2

There are two individuals in this matter named Tyrone, Tyrone Burney and

Tyrone the caretaker.

7

house. Rosette testified that she briefly spoke to defendant when she handed

him some cleaning supplies. And Rosette testified that a few weeks before the

robbery, defendant rang her doorbell and asked if her father was home.

Rosette responded that her parents were not home and to come back later.

On December 26, police showed Rosette a photo array that included a

photo of defendant’s brother Cornelius. Rosette identified a “filler” photo (a

photo of a person unrelated to the investigation) with “at least 90” percent

certainty. On December 28, police showed Rosette a second array, which

included a photograph of defendant. Rosette declined to choose a photograph

in that array. Specifically with regard to defendant, Rosette did not select his

photograph -- number five in the array -- stating, “that’s not his nose.” As the

photo array concluded, Rosette asked detectives about “the other picture the

other day” that she identified.

Police also showed Samantha two photo arrays, neither of which

included a photograph of defendant. The first photo array included a photo of

Cornelius, and Samantha declined to make an identification. The second photo

array included a photo of Tyrone Burney, and Samantha identified a filler

photo. Camacho was also shown the array with a photo of Tyrone Burney, and

she similarly identified a filler photo with 80 percent certainty.

8

The day after the robbery, Rosette noticed that among the bags in the

stairway to her apartment, there was a Costco bag she did not recognize.

Detective Alfonso returned to the residence to collect the evidence, which was

later tested. The Costco bag was found to have defendant’s DNA on it. The

bag appeared in a photograph taken by the Crime Scene Unit on the date of the

crime, but no witness could testify as to how long it had been on the stairway.

On December 29, Bloomfield police detectives visited defendant at

University Hospital in Newark. Detective Alfonso had obtained defendant’s

location and phone number from his brother Mark. Defendant was at the

hospital receiving treatment unrelated to the offense. While questioning

defendant, Detective Alfonso used his police-issued phone to send a text

message, “hello,” to defendant’s phone. Defendant’s phone gave an audible

voice announcement of a “text message received” from Detective Alfonso’s

phone number, and it read the message out loud. Detective Alfonso testified

that he sent the text message as a test based on Samantha’s report that the

intruder received a text message during the robbery and his phone announced

the incoming text.

Detective Alfonso then obtained a telephonic arrest warrant and arrested

defendant at the hospital. At the time of his arrest, defendant was 6’1”, 198

pounds, and fifty-seven years old. Upon defendant’s arrest, police collected

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defendant’s clothing -- a black knit wool hat, a winter jacket, and a maroon-

colored jacket -- which matched the victims’ description of the intruder’s

clothing.

After obtaining a communications data warrant and search warrant,

police obtained defendant’s cell phone records, which showed that defendant

received a text message at 8:02 p.m. on December 25 while the robbery was in

progress. The next “event” -- text message or phone call -- on defendant’s

phone did not occur until 8:22 p.m. that night. 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 between

December 26 and December 29, and four web search results for “Princess”

watches performed on December 26 and 28.

On January 21, 2016, Rosette returned to the police station. A detective

told Rosette that defendant had been arrested for the robbery of her home and

that police seized defendant’s cell phone, which contained pictures of jewelry

and a watch. The detective then showed Rosette one of the pictures of the

watch, and she identified it as her watch. Rosette testified that her watch had a

black band, clear rhinestones around it, and a “Princess” engraving on the

10

inside. Rosette later provided Detective Alfonso with the black box for the

watch, containing additional watch bands, to prove that the watch was hers.

The police did not find usable fingerprints on any items known to be

touched by the intruder. The items used to tie up the victims were collected

but were not submitted for DNA analysis. The police never recovered any of

the stolen items or the gun.

B.

On April 28, 2016, an Essex County grand jury charged defendant with

first-degree robbery, second-degree burglary, fourth-degree aggravated assault,

third-degree criminal restraint, third-degree unlawful possession of a weapon,

second-degree possession of a weapon for an unlawful purpose, third-degree

burglary, and third-degree theft.

Before trial, defendant moved to suppress his statements to police at

University Hospital, arguing that the police interrogators failed to properly

advise him of his Miranda3 rights. The trial court agreed and suppressed

defendant’s statements from the State’s case-in-chief; the court found,

however, that because defendant’s statements were made voluntarily, they

3

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

11

could be used for impeachment purposes if defendant chose to testify at trial.

Ultimately, defendant elected not to testify.

Defendant also moved to bar the State’s expert witness, Special Agent

David, a member of the FBI’s Cellular Analysis Survey Team (CAST), from

testifying that on December 25, 2015, at 8:02 p.m., defendant’s phone

“pinged,” or was in contact with, a cell tower with an approximate one-mile

coverage area that included the crime scene. Defendant argued that Special

Agent David’s testimony was unreliable because he presented no evidence to

support his general “rule of thumb” that the pinged cell tower had an

approximate one-mile coverage area.

On July 6, 2017, the court held a Frye4 hearing to determine the

admissibility of Special Agent David’s testimony. Special Agent David was

qualified as an expert in historical cell site analysis, which he explained “is the

use of cell phone companies’ business records to approximate 5 where a user

may have been at a particular time of interest.”

4

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

5

According to Special Agent David’s testimony, historical cell site analysis

cannot pinpoint a cell phone user’s exact or real-time location; rather, it is

utilized to approximate the prior location of a device based on the cell towers

the device used at the time.

12

Special Agent David testified at the Frye hearing that he obtained

defendant’s phone records from Sprint, which cataloged the date and time of

calls and text messages, the cell towers and sectors 6 that the phone used, and

the locations of those towers. Based on this information, Special Agent David

created maps depicting the towers pinged by defendant’s phone on the evening

of December 25, and which sectors defendant’s phone utilized. Special Agent

David plotted the cell towers and drew two lines -- 120-degree pie-shaped

wedges -- extending from each of the cell towers’ pinged sectors. Critically,

Special Agent David testified that each of the lines had an approximate length

of one mile, with the space in between them representing his estimated

coverage area of the cell tower’s sector.

Special Agent David opined that the towers likely had this one-mile

range based on a “rule of thumb” for towers in the area. When asked how he

determined the length of the two lines or “arms” that comprised the 120-degree

coverage area for the cell towers, he explained:

So . . . the length that was used for these arms is, again,

an estimate and these are one mile, which is a rule of

thumb for this particular technology and this particular

6

Special Agent David testified that typically, cell towers are divided into

three sectors, with each sector covering around 120 degrees and overlapping

slightly to prevent dropped calls. The particular sector a phone utilized

generally reveals the cardinal direction the phone was oriented towards when it

pinged the cell tower.

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frequency in this particular area. So just based on my

training and experience, one mile is a good estimate of

the tower range for Sprint in this area. It’s also further

kind of supported by the location of the adjacent

towers. We can infer, based on how the network is laid

out and the fact that Sprint has designed this to avoid

coverage gaps, that the tower needs to extend out to a

certain distance that obviously doesn’t cross over other

towers, but that provides enough overlap between

adjacent sectors so that there’s no drops, no call drops,

no dead zones in between. So just using a one-mile

approximation, which has been a good approximation

in my experience in this area.

With this foundation, Special Agent David testified that on December 25

at 8:02 p.m., defendant’s phone used a tower in Orange, the “Parkway Tower,”

to receive a text message. Using his maps, Special Agent David gave his

opinion that the Parkway Tower’s coverage radius “would reasonably include

the crime scene.” Special Agent David acknowledged that the crime scene is

slightly less than one mile from the Parkway Tower and is at the “outer

boundary” of his estimated coverage area. Special Agent David also

acknowledged, however, that two other cell towers were closer to, and within

range of, the crime scene. 7

7

Earlier in the hearing, Special Agent David noted, “in an area like this part

of Essex [County],” where the home invasion occurred, “which is relatively

flat, [the strongest signal] will generally be the closest tower.” Special Agent

David did not map out the specific orientations of the cell towers’ sectors

closer to the crime scene, so he did not determine which cell tower had the

“clearest[,] strongest signal.” Special Agent David testified that “the cleanest

14

Special Agent David testified that he did not test the actual range of the

Parkway Tower. The agent further noted that a tower’s range and coverage

area can be affected by many factors, including the height of the antenna,

surrounding terrain and buildings, signal frequency, transmitter and phone

power ratings, and antenna direction, but he did not offer measurements or

data as to those specific factors when testifying as to his estimated range for

the Parkway Tower. Special Agent David similarly did not measure the actual

coverage area of the Parkway Tower through either “drive testing”8 or

“propagation maps.”9

Defense counsel argued that Special Agent David’s testimony regarding

the range of the cell towers in question, and the Parkway Tower specifically,

was not sufficiently reliable under Frye because Special Agent David used a

“rule of thumb” and did not “look at the specific tower data for any of these

and clearest signal propagates from” the “azimuth of the cell site,” that is, the

direct center of the 120-degree wedge.

8

“Drive testing” measures “the actual coverage area of a particular cell site”

through use of “a scanner that scans all of the radio frequencies in a particular

area.” Special Agent David testified that he had performed drive testing in the

past.

9

“Propagation maps” are used to estimate the range of a tower more precisely

“based upon things like terrain, altitude, density of interference, [and the

presence of] other towers.” Special Agent David testified that he had never

calculated or created a propagation map.

15

towers” or review the Parkway Tower’s height or power rating -- all factors

the agent testified can affect the tower’s range. Defense counsel argued that

based on Special Agent David’s “general one-mile rule of thumb,” it is

“entirely possible that the crime scene falls outside the range of [the Parkway

Tower].”

The trial court admitted Special Agent David’s testimony, concluding

that cell site analysis testimony “is sufficiently reliable based upon its general

acceptance by the courts and other jurisdictions.” The court determined that

Special Agent David’s testimony was clear that he was only approximating the

cell phone’s location and not testifying as to its specific location. The court

gave no independent consideration as to Special Agent David’s methodology.

On November 22, 2017, defendant moved in limine to preclude the State

from eliciting an in-court identification from any of the victims. Defendant

argued that Rosette could not make a reliable identification because police had

impermissibly tainted any future identification by showing her the photos of a

Princess watch, telling her they were from defendant’s phone, telling her

defendant’s name, and telling her that defendant had been arrested for the

robbery. The trial court denied the motion, reasoning that defendant’s

concerns could be addressed through cross-examination and proper jury

charges.

16

On February 7, 2018, the jury trial began. Prior to Rosette’s testimony,

defense counsel requested that a contemporaneous Henderson10 charge be

given to the jury, in the event that Rosette identified defendant in-court for the

first time. The judge reserved his decision. At the end of her direct testimony,

Rosette identified defendant as the intruder for the first time, pointing him out

in the courtroom. Defense counsel immediately renewed the request for a

Henderson charge to be given before cross-examination. The judge denied the

request, but made the following announcement to the jury:

Members of the [j]ury, before we start cross-

examination what I just want to advise you is with

regard to all matters that are before you, it’s ultimately

your determination of the evidence in the case. With

regard to identification, I’m going to give you detailed

instructions on various factors that you can consider

and identification. As you heard testimony Ms.

Martinez just identified the defendant in this case as

being the one who perpetrated the crime and you’ve

heard she previously viewed photographs where she

wasn’t able to make an identification. So with regard

to the identification process and the various factors that

you can consider, I’m going to give you detailed

instructions about that at the conclusion of the case, all

right?

On cross-examination, Rosette confirmed that she “concluded they

arrested the right guy” after detectives showed her the photograph of the watch

10

State v. Henderson, 208 N.J. 208 (2011).

17

from defendant’s phone. She also testified that she knew defendant was the

suspect based on where he was sitting in the courtroom.

Special Agent David’s trial testimony was consistent with his pretrial

testimony. He emphasized to the jury that it was “highly, highly unlike[ly]”

that the Parkway Tower did not cover the crime scene based on the tower’s

approximated coverage distance. On cross-examination, Special Agent David

testified for the first time that the Parkway Tower “is mounted on the top of a

high-rise apartment building with a clear line of sight to [the crime scene]” --

but again did not provide measurements as to the height of the tower, nor did

he provide data as to the other factors that could have influenced the estimated

coverage area and range of the Parkway Tower.

After Special Agent David’s trial testimony, defense counsel raised a

separate objection, arguing that Special Agent David’s one-mile “rule of

thumb” opinion was an impermissible “net opinion” -- an opinion without an

underlying justification. The court disagreed, finding that Special Agent

David “gave an approximation based upon his training, expertise, and

experience.”

After the State rested, defense counsel proposed three additions to the

model jury instruction on in-court identifications. The court offered a

“compromise,” and read the charge to the jury as follows:

18

The State has presented testimony of Rosette Martinez,

who identified Roberson Burney. You will recall that

this witness identified the defendant in court on

February 12th, 2018 as the person who committed the

crimes charged in the indictment.

....

You may also consider that Rosette Martinez did not

identify Roberson Burney during the photo array

procedure that was conducted on December 28th, 2015.

The charge otherwise followed the model jury instruction.

On March 1, 2018, the jury acquitted defendant on the third-degree

unlawful possession of a weapon charge and convicted him of the remaining

charges. On August 31, 2018, defendant was sentenced to an extended term of

life without parole pursuant to N.J.S.A. 2C:43-7.1 (the persistent offenders

statute) on the first-degree robbery and second-degree possession charges, and

concurrent terms on the remaining charges.

C.

Defendant appealed his conviction, arguing that the trial court erred in

permitting: (1) Special Agent David’s expert testimony on the Parkway

Tower’s approximate one-mile coverage range; (2) Rosette’s first-time in-

court identification; and (3) defendant’s hospital-bed statements for

impeachment purposes. State v. Burney, 471 N.J. Super. 297, 304 (App. Div.

19

2022). The Appellate Division affirmed defendant’s conviction and sentence

but remanded on the Miranda issue. Id. at 304-05.

The Appellate Division held that the trial court did not abuse its

discretion in permitting Special Agent David’s expert testimony, reasoning

that the “estimate of a one-mile range of coverage was well-supported by his

knowledge, skill, experience, and training, as well as by the Relevant

Locations maps included in his expert report.” Id. at 320. The court

determined that Special Agent David’s maps “clearly indicate that most towers

in that area were approximately one mile or further apart,” so the one-mile

range was therefore “well-supported by factual evidence in the record.” Id. at

322. The court explained that “[i]t was for the jury to decide whether [Special

Agent David’s] testimony was credible and how much weight to give it.” Id.

at 320.

The Appellate Division also held that the trial court did not abuse its

discretion in allowing Rosette’s first-time in-court identification. Id. at 329-

30. First, the court asserted “[t]he record is clear that Rosette had interacted

with defendant on two occasions prior to the robbery” and that she recognized

defendant during the course of the robbery as someone who had done repair

work on her house. Id. at 329. Based on those prior interactions, the court

found that Rosette’s identification could have been “based on an independent

20

recollection of defendant.” Ibid. The appellate court next found that the

officers’ conduct -- telling Rosette defendant’s name, informing her that he

had been arrested for the robbery, and asking her to view photos extracted

from his phone -- was suggestive and could have impacted her in-court

identification, but it ultimately concluded that any unreliability in her

identification was “fully presented to the jury through skillful cross-

examination” and appropriate jury instructions. Id. at 329-30. Thus, the court

held that defendant failed to meet the high standard required for suppression.

Id. at 330.

The Appellate Division added that, alternatively, any theoretical error

resulting from admitting Rosette’s in-court identification was harmless in light

“of the overwhelming evidence that defendant was the robber.” Ibid. The

court determined “that even if the in-court identification had been suppressed,

Rosette would still have identified her watch from the photographs stored on

defendant’s cell phone.” 11 Ibid.

11

We note that the Appellate Division’s decision incorrectly stated that the

photos of the Princess watch found on defendant’s phone were taken at the

time of the robbery. The trial record makes clear that the pictures of the

Princess watch were not taken the night of the robbery; rather, they were taken

in the days after the robbery. The pictures found on defendant’s phone taken

on the night of the robbery were dark and blurry.

21

On the Miranda issue, which is not before this Court, the Appellate

Division held that the trial court’s findings, without the benefit of an expert

medical witness, were inadequate to support its conclusion that defendant’s

hospital-bed statements were made voluntarily and thus could be used for

impeachment purposes. Id. at 305, 316. The Appellate Division remanded for

a new suppression hearing and directed the State to present expert testimony

concerning defendant’s medical condition at the time of the interrogation and

the impact his medical condition had on the voluntariness of his statements to

police. Id. at 318. If, on remand, the State failed to prove beyond a reasonable

doubt that defendant’s admissions were voluntary, the Appellate Division

ordered that defendant’s convictions be reversed, and he must be granted a

new trial. Id. at 318-19.

We granted defendant’s petition for certification on the issues unrelated

to the remand. 252 N.J. 134 (2022). We also granted the joint application of

the American Civil Liberties Union of New Jersey, the Association of Criminal

Defense Lawyers of New Jersey, and the Innocence Project, Inc. (collectively,

defense amici) and the application of the Attorney General to appear as amici

curiae.

22

II.

A.

Defendant argues that the decisions of the trial court and the Appellate

Division should be reversed because the trial court permitted the jury to hear

two key pieces of unreliable evidence: (1) Special Agent David’s expert

testimony that the Parkway Tower’s range would likely “include the crime

scene” based on his one-mile “rule of thumb,” and (2) Rosette’s first-time in-

court identification. Defendant contends those errors were clearly capable of

affecting the jury’s verdict because the State placed substantial weight on that

unreliable evidence during trial.

Defendant argues the State failed to prove that Special Agent David’s

testimony has a clearly reliable scientific basis, particularly because the expert

did not explain his methodology in arriving at the one-mile range. Defendant

further argues that the agent’s testimony, and the conclusions drawn from it,

constitute an improper net opinion.

Defendant next argues that Rosette’s in-court identification should have

been excluded because it was the result of unduly suggestive procedures by the

police and because Rosette did not have a sufficiently reliable basis for her

identification independent of the detectives’ suggestive conduct, given that her

two prior interactions with defendant were very brief.

23

The defense amici support defendant’s position and argue that both the

cell tower and the identification testimony were improperly admitted, each

requiring reversal. The defense amici submit that Special Agent David’s one-

mile “rule of thumb” range is unreliable because the State did not prove his

approach is an accepted method in the relevant scientific community. The

defense amici argue that Rosette’s first-time in-court identification should

have been excluded given the substantial likelihood that the detectives’ highly

suggestive out-of-court conduct would result in irreparable misidentification.

Defense amici also ask this Court to apply the Henderson framework to this

context to bar all first-time in-court identifications, arguing that such

identifications are extremely suggestive and unreliable.

B.

The State argues that the decisions of the trial court and Appellate

Division to admit the expert and identification testimony should be affirmed.

The State contends that Special Agent David’s expert testimony regarding the

approximate one-mile range of the Parkway Tower is sufficiently reliable, and

thus not an improper net opinion, because using cell site analysis to determine

an approximate location of a cell phone is generally accepted in the scientific

community and Special Agent David’s opinion was based on his “training and

expertise.” Alternatively, the State argues that if there was error in admitting

24

this testimony, any “error was harmless considering the State’s overwhelming

evidence establishing defendant’s presence in the house during the robbery.”

The State also argues that Rosette’s first-time in-court identification of

defendant as the perpetrator was sufficiently reliable because she had two prior

face-to-face interactions with defendant shortly before the robbery. The State

asserts that defendant’s allegation of suggestiveness fails to meet the high

standard required for suppression.

The Attorney General echoes the State’s arguments and asks this Court

to affirm the Appellate Division’s decision. The Attorney General adds that

most in-court identifications should be admitted because instances of

suggestiveness can be effectively addressed by cross-examination and proper

jury instructions, as was done here.

III.

A.

Appellate courts generally “defer to a trial court’s evidentiary ruling

absent an abuse of discretion.” State v. Garcia, 245 N.J. 412, 430 (2021). “A

court abuses its discretion when its ‘decision is made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.’” State v. Chavies, 247 N.J. 245, 257 (2021) (quoting

State v. R.Y., 242 N.J. 48, 65 (2020) (internal quotation omitted)). “[A]

25

functional approach to abuse of discretion examines whether there are good

reasons for an appellate court to defer to the particular decision at issue.”

R.Y., 242 N.J. at 65 (alteration in original) (quoting Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002)).

The abuse of discretion standard governs the evidentiary issues before

us, which we will consider in turn. See Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (2011) (reviewing admissibility of expert testimony

on net opinion grounds for abuse of discretion).

B.

We first address whether the trial court erred in permitting Special Agent

David to testify that the Parkway Tower had an approximate one-mile

coverage radius based on a “rule of thumb” for towers in the area.

1.

We briefly discuss the manner in which cell phones function and the

relationship between cell phones, cell towers, and cell site analysis. Basic cell

phones “operate[] like a scanning radio” and “use radio waves to communicate

between a user’s handset and a telephone network.” State v. Earls, 214 N.J.

564, 576 (2013). “To connect with the local telephone network, the Internet,

or other wireless networks, cell-phone providers maintain an extensive

network of cell sites, or radio base stations, in the geographic areas they

26

serve.” Ibid. When a cell phone user places a call or sends a text message, the

phone generally “connects to the cell site with the strongest signal.” Aaron

Blank, The Limitations and Admissibility of Using Historical Cellular Site

Data to Track the Location of a Cellular Phone, 18 Rich. J.L. & Tech. 3, 6

(2011). The proximity of the user to the cell site is a significant factor in

determining which cell tower has the strongest signal; however, other relevant

“factors include the towers’ technical aspects, including geography and

topography, the angle, number, and directions of the antennas on the sites, the

technical characteristics of the relevant phone, and ‘environmental and

geographical factors.’” United States v. Hill, 818 F.3d 289, 295-96 (7th Cir.

2016) (quoting Blank, 18 Rich. J.L. & Tech. at 5, 7).

“Historical cell-site analysis uses cell phone records and cell tower

locations to determine, within some range of error, a cell phone’s location at a

particular time.” Id. at 295. 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. See, e.g., id. at 298;

United States v. Baker, 58 F.4th 1109, 1125 (9th Cir. 2023); United States v.

Jones, 918 F. Supp. 2d 1, 4 (D.D.C. 2013); United States v. Medley, 312 F.

Supp. 3d 493, 499-502 (D. Md. 2018), aff’d 34 F.4th 326, 337-38 (4th Cir.

2022); Holbrook v. Commonwealth, 525 S.W.3d 73, 80-82 (Ky. 2017). Unlike

27

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. See James Beck

et al., The Use of Global Positioning (GPS) and Cell Tower Evidence to

Establish a Person’s Location -- Part II, 49 Crim. L. Bull. 637 (2013).

In Hill, the Seventh Circuit, concerned that a “jury may overestimate the

quality of the information provided by” cell site analysis, 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.” 818 F.3d at 299. In that case, the

testifying expert used cell site analysis to trace the whereabouts of the

defendant’s phone over the span of two days, with the implication that the

phone was in the general area of the Credit Union the day it was robbed. Id. at

297-98. The agent did not testify as to the cell tower’s specific range, and he

admitted on cross that he did not know any of the particular characteristics of

the tower. Id. at 298. The Seventh Circuit found that because the agent

“emphasized that [the defendant]’s cell phone’s use of a cell site did not mean

that [the defendant] was right at that tower or at any particular spot near that

tower,” “[t]his disclaimer saves his testimony” that the phone was in the

general area of the cell site. Ibid.

28

2.

N.J.R.E. 702 and N.J.R.E. 703 govern the admissibility of expert

testimony. Townsend v. Pierre, 221 N.J. 36, 53 (2015).

Expert testimony must be offered by one who is

“qualified as an expert by knowledge, skill, experience,

training, or education” to offer a “scientific, technical,

or . . . specialized” opinion that will assist the trier of

fact, see N.J.R.E. 702, and the opinion must be based

on facts or data of the type identified by and found

acceptable under N.J.R.E. 703.

[Pomerantz Paper Corp., 207 N.J. at 372 (omission in

original).]

“[A] court must ensure that the proffered expert does not offer a mere

net opinion.” Ibid. The net opinion rule, a corollary of N.J.R.E. 703, “forbids

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

by factual evidence or other data.” Townsend, 221 N.J. at 53-54 (quoting

Polzo v. County of Essex, 196 N.J. 569, 583 (2008)). “The rule requires that

an expert ‘give the why and wherefore’ that supports the opinion, ‘rather than

a mere conclusion.’” Id. at 54 (quoting Borough of Saddle River v. 66 E.

Allendale, LLC, 216 N.J. 115, 144 (2013)); see also Pomerantz Paper Corp.,

207 N.J. at 372.

This Court has previously held that when an expert grounds testimony in

personal views, rather than objective facts, the net opinion rule requires the

29

exclusion of such unsupported views. Pomerantz Paper Corp., 207 N.J. at 372-

74; see also Alpine Country Club v. Borough of Demarest, 354 N.J. Super.

387, 395-96 (App. Div. 2002) (rejecting an expert’s personal “rule of thumb”

approach to fair market value). In Pomerantz Paper Corp., we concluded that

although the expert “opined at some length about his experiences and his

impressions” at trial, his essential testimony as to “acceptable markups in

sales” was based on his personal views. 207 N.J. at 373-74. We found that,

because his testimony “lack[ed] any suggestion about the expert’s support for

the conclusions that he intended to offer,” the trial court erred in permitting the

expert to testify. Ibid.; see also Townsend, 221 N.J. at 57 (holding an expert’s

testimony was inadmissible net opinion, noting the expert “took no

measurements” and “did not apply his engineering expertise to present

empirical evidence” supporting his contentions).

Under circumstances more similar to the case before us, 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). The court determined that “[e]stimating the coverage

area of radio frequency waves [of a cell tower] requires more than just training

and experience, . . . it requires scientific calculations that take into account

30

factors that can affect coverage.” Ibid. Because the expert in that case

“presented no scientific calculations,” “did not consider a variety of relevant

factors,” and did not have his methodology assessed by the relevant scientific

community, the court found the expert testimony inadmissible. Id. at 956-57.

3.

In the present case, defendant maintains that the State failed to prove

Special Agent David’s “rule of thumb” opinion is reliable and argues it is

therefore an improper net opinion. Defendant does not challenge all forms of

cell site analysis, nor does he challenge Special Agent David’s qualifications.

Rather, defendant asserts that Special Agent David failed to offer factual

evidence or data to support his conclusion that the Parkway Tower has an

approximate coverage area of one mile, which just barely places Rosette’s

home within the tower’s estimated range.

At trial, Special Agent David testified that, based on his training and

experience, a one-mile radius for the Parkway Tower was a “good

approximation” as to its coverage area. Special Agent David did not testify

that such approximation is common practice in cell tower analysis, or that his

one-mile “rule of thumb” had been used by any other agent or radio frequency

engineer. Additionally, Special Agent David candidly admitted that he did not

review the height of the Parkway Tower, did not review its rated power, did

31

not calculate the estimated absorption of radio energy by nearby buildings or

hills, did not review the specific angle of the tower’s antenna, and did not

review any diagnostic data from the tower on December 25. Special Agent

David similarly did not perform any tests of the Parkway Tower’s area of

signal coverage. 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 of the Parkway Tower.

With his rule of thumb, Special Agent David created a map to illustrate

the coverage area for the Parkway Tower. When asked on cross-examination

whether it was possible that Rosette’s home could fall outside the Parkway

Tower’s actual coverage area, Special Agent David responded that though

possible, it was “highly, highly unlike[ly].” Given the lack of data to support

the agent’s approximation of the cell tower’s coverage area, Special Agent

David’s testimony failed to account adequately for the potential flaws in his

“rule of thumb” opinion. ---

See ----

Hill, 818 F.3d at 299.

We agree with defendant that Special Agent David’s “rule of thumb”

testimony constitutes an improper net opinion because it was unsupported by

any factual evidence or other data. We do not suggest that, to be admissible,

expert testimony must consider all of the factors listed above. However,

because the testimony was based on nothing more than Special Agent David’s

32

personal experience, the trial court erred in allowing the jury to hear this

testimony.

C.

We now turn to the admissibility of Rosette’s first-time in-court

identification. Our holding today in State v. Watson, ___ N.J. ___ (2023) (slip

op. at 1) controls in this matter.

In Watson, the witness, who previously misidentified another person’s

photograph as the perpetrator in a pretrial photo array, learned from the

prosecutor prior to trial that the defendant was going to be seated at the

defense table. Id. at ___ (slip op. at 7-8). At trial, the witness identified the

defendant for the first time, in court, with 80 percent certainty. Id. at ___ (slip

op. at 7).

In reversing defendant’s conviction, we held that “first-time in-court

identifications can be conducted only when there is ‘good reason’ for them,” in

order “[t]o avoid unduly suggestive identifications of defendants in court that

may trigger serious due process concerns under the State Constitution.” Id. at

___ (slip op. at 29). We delineated several examples that could constitute

“good reasons” to permit a first-time in-court identification, including when an

eyewitness is familiar with the defendant from before the crime occurred,

when domestic violence victims seek to identify their assailants, when

33

“[f]riends or associates, among others,” seek to identify a defendant that “they

have known for some time,” and when an officer, who arrested the individual,

is called to confirm the defendant is that same person. Id. at ___ (slip op. at

29-30).

This Court held, however, that the better practice is for the State to

conduct appropriate identification procedures prior to trial to avoid the unduly

suggestive nature of in-court identifications. Id. at ___ (slip op. at 30).

Additionally, “if a witness fails to make a positive identification at an earlier

procedure, the State must show that the proposed, upcoming in-court

identification would be more reliable and would ‘pose[] little risk of

misidentification despite its suggestiveness.’” Id. at ___ (slip op. at 30)

(alteration in original) (quoting Commonwealth v. Collins, 21 N.E.3d 528,

536-37 (Mass. 2014)).

To ensure orderly proceedings, we outlined in Watson the required

procedures for first-time in-court identifications going forward. Id. at ___

(slip op. at 30-31). First, “the State must file a motion in limine if it intends to

conduct a first-time in-court identification,” which will give the defendant

advance notice and the opportunity to oppose the identification procedure prior

to trial. Id. at ___ (slip op. at 30). At the hearing on the motion, the court will

determine whether “good reason” exists to allow the first-time in-court

34

identification. Id. at ___ (slip op. at 31). Second, prosecutors must disclose in

writing any comments made to a witness during trial preparation that

potentially relate to the in-court identification, including whether prosecutors

told the witness that the defendant would be in the courtroom or where the

defendant would be seated. Id. at ___ (slip op. at 31). Lastly, any hearing on

the admissibility of an in-court identification should be held and the issue

should be resolved before the start of trial. Id. at ___ (slip op. at 31).

In the present matter, one day after the crime occurred, Rosette

misidentified a filler photograph with 90 percent certainty during the

December 26 identification procedure. Two days later, during the December

28 identification procedure -- in which Rosette reviewed an array that included

a photograph of defendant -- she did not identify anyone. On January 21, a

detective told Rosette defendant’s name; showed her photos of a watch she

identified as hers and said that the photos were from defendant’s phone; and

informed her that defendant had been arrested for the robbery of her home. On

cross-examination at trial, Rosette even testified that she “concluded they

arrested the right guy” after detectives showed her the photograph of the watch

and she stated that she knew defendant was the suspect based on where he was

sitting in the courtroom.

35

Although the dictates of Watson were not in effect at the time of the

present trial, “[w]ith or without the benefit” of this Court’s ruling in Watson

today, “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 Rosette defendant’s name, informing her that defendant had been

arrested for the robbery, and showing her pictures of the watch found on

defendant’s phone, the detective impermissibly influenced and tainted any

future identification by Rosette. Additionally, the layout of the courtroom, as

Rosette admitted, tipped her off as to where defendant was seated in the

courtroom.

Furthermore, there was no “good reason” to allow the first-time in-court

identification here. Rosette did not know defendant well prior to the robbery.

See id. at ___ (slip op. at 29-30). She testified that she briefly interacted with

defendant on two prior occasions, and she was unable to identify defendant --

and indeed identified a different person in a filler photograph with 90 percent

certainty -- when she viewed the photo arrays. There was no basis for an in-

court identification under the circumstances.

For reasons unexplained in the record, a photo display witness statement

form was not filled out regarding Rosette’s misidentification. Based on the

absence of a photo display form, the State and the Attorney General contend

36

that Rosette did not identify anyone in this photo array, notwithstanding her

video-recorded statement during the photo lineup that she was 90 percent

certain the perpetrator was the person in the filler photo. Their argument is

unavailing; if Rosette had identified defendant -- instead of a filler photo --

with 90 percent certainty, the State would certainly treat that as an

identification regardless of whether the photo display form was filled out. In

situations like what occurred here, the State must complete a photo display

form.

In this case, investigators revealed certain evidence to Rosette. In particular,

they told her defendant’s name and showed her photos from defendant’s phone of a

watch she said was hers. In Watson, we directed that prosecutors must disclose

“anything discussed with a witness during trial preparation that relates to an

upcoming in-court identification” -- for example, whether the defendant will

be in the courtroom or where the defendant will be seated -- under Rule

3:11. Id. at ___ (slip op. at 31). Because comments about the defendant’s

identity and about evidence that purportedly links the defendant to the crime

could well make an in-court identification highly suggestive, we direct that

such information be disclosed under Rule 3:11 as well.

As we articulated in Watson, going forward, if a witness fails to make a

positive identification prior to trial, the State must show that an in-court

37

identification would be more reliable than the failed pretrial identification,

taking into consideration the suggestiveness of being in the courtroom. Id. at

___ (slip op. at 30). As this Court noted in Henderson, “[m]emory decay ‘is

irreversible’; memories never improve” with time. 208 N.J. at 267. There is

no reason to think that Rosette’s memory had improved such that she could

give a reliable first-time identification in court, over two years after the crime

occurred, despite failing to identify defendant as the perpetrator three days

after the home invasion.

The circumstances of Rosette’s in-court identification were highly

suggestive, and therefore, the identification should have been excluded.

IV.

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.

Pellicer v. Saint Barnabas Hosp., 200 N.J. 22, 53 (2009). Cumulative error

analysis does not “simply entail[] counting mistakes, because even a large

number of errors, if inconsequential, may not operate to create an injustice.”

Id. at 55. Rather, “the predicate for relief for cumulative error must be that the

probable effect of the cumulative error was to render the underlying trial

unfair.” State v. Wakefield, 190 N.J. 397, 538 (2007). “[I]f the combined

effect of multiple errors deprives a party of a fair trial, an appellate court

38

should order a new trial.” Torres v. Pabon, 225 N.J. 167, 191 (2016)

(discussing Pellicer, 200 N.J. at 55-57).

In the present matter, 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’s first-time in-court identification that

defendant was the intruder. During closing arguments, the prosecutor

encouraged the jury to rely on Special Agent David’s testimony, stating it was

“the most credible” testimony of the witnesses, as he was a qualified expert

and certified FBI CAST agent. The State again showed the jury Special Agent

David’s maps during summation -- including the illustration of the 8:02 p.m.

pinged Parkway Tower, with the tower’s arms extending approximately one

mile each -- which placed the marked crime scene within the tower’s estimated

coverage area. The State emphasized, with the maps on display, that Special

Agent David’s testimony reliably confirmed that defendant’s phone pinged the

approximate area of the crime scene at the time of the invasion.

The State also articulated during summation that Rosette’s in-person

identification was credible, because “a picture is a lot different than seeing

someone in person.” Rosette was the only witness who identified defendant as

the intruder. In conjunction with Special Agent David’s testimony, her

39

identification could have had a serious impact on the jury’s perception of

defendant’s guilt or innocence. See Watkins v. Sowders, 449 U.S. 341, 352

(1981) (Brennan, J., dissenting) (“There is almost nothing more convincing [to

a jury] than a live human being who takes the stand, points a finger at the

defendant, and says ‘That’s the one!’” (footnote omitted)). Her testimony, of

course, also raises serious due process concerns because of the likelihood of

misidentification. See Henderson, 208 N.J. at 285 (announcing a new rule of

law based on the recognition that “suggestive police procedures may ‘so

irreparably “taint[]” . . . out-of-court and in-court identifications’ that a

defendant is denied due process”) (alteration in original) (quoting State v.

Madison, 109 N.J. 223, 239 (1988)); see also Neil v. Biggers, 409 U.S. 188,

198 (1972) (“It is the likelihood of misidentification which violates a

defendant’s right to due process.”). These constitutional ramifications, which

we underscored in Watson, ___ N.J. at ___ (slip op. at 22-24, 29), magnify the

harmfulness of the trial court’s error.

It is true that the State relied on other evidence throughout trial and

during summation, namely defendant’s DNA on the Costco bag, the pictures of

the Princess watch on defendant’s phone, and the similarity of the voice

announcements from the intruder’s cell phone and defendant’s cell phone.

Balancing that evidence against the force of the improperly admitted evidence

40

that was stressed by the prosecutor in summation, however, we cannot

conclude that the evidentiary errors in this case, considered in tandem, were

inconsequential or harmless. See R. 2:10-2. Rather, we find the cumulative

error impacted and prejudiced the fairness of defendant’s trial. Therefore,

defendant’s conviction and sentence of life without the possibility of parole

must be vacated and a new trial granted.

At a retrial, the State may not ask Rosette to identify defendant again.

Given the highly suggestive nature of Rosette’s prior in-court identification,

the likelihood of an irreparable misidentification at this point is substantial.

See Watson, ___ N.J. at ___ (slip op. at 34-35).

V.

For the foregoing reasons, we reverse the judgment of the Appellate

Division and remand the matter for a new trial consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES WAINER APTER and

FASCIALE; and JUDGE SABATINO (temporarily assigned) join in JUSTICE

PIERRE-LOUIS’s opinion. JUSTICE SOLOMON filed a dissent, in which

JUSTICE PATTERSON joins.

41

State of New Jersey,

Plaintiff-Respondent,

v.

Roberson Burney, a/k/a Robert

Burney, John Burney, Robin Burney, and

Michael Langford,

Defendant-Appellant.

JUSTICE SOLOMON, dissenting.

I concur with the majority that the trial court should not have admitted

Special Agent David’s testimony that the cell towers near the crime scene had

a coverage area of an approximate one-mile radius, based on his “rule of

thumb” policy. Ante at ___ (slip op. at 26-33). I also agree that the court

should not have permitted Rosette Martinez to identify defendant for the first

time in court. Ante at ___ (slip op. at 33-37). I part company with the

majority, however, in its assessment that despite the overwhelming evidence

establishing defendant’s guilt, those errors were not harmless. Ante at ___

(slip op. at 37-39).

Indeed, the sheer volume of competent evidence against defendant --

most notably his DNA on the Costco shopping bag found at the scene, the

photographs of Martinez’s unique watch on his phone, and the corresponding

1

testimony about the intruder’s text message alerts and the taking of

photographs -- leads to the inescapable conclusion that defendant was

convicted in a fair trial, and any error was harmless. Accordingly, I

respectfully dissent from the majority’s judgment.

I.

A.

Whether the errors defendant complains of deprived him of a fair trial,

and therefore warrant a reversal of his conviction, is governed by Rule 2:10-2,

which provides that

[a]ny error or omission shall be disregarded by the

appellate court unless it is of such a nature as to have

been clearly capable of producing an unjust result, but

the appellate court may, in the interests of justice,

notice plain error not brought to the attention of the trial

or appellate court.

An error during a jury trial is therefore harmless unless there is a reasonable

doubt that it contributed to the verdict. State v. Jackson, 243 N.J. 52, 72-73

(2020).

That determination requires consideration of the record as a whole, State

v. Sowell, 213 N.J. 89, 108 (2013), and of the strength of the prosecution’s

case, see, e.g., State v. Derry, 250 N.J. 611, 634 (2022) (“[W]e rely on the

overwhelming evidence against defendants to conclude that the error in

admitting [disputed] testimony as lay opinion testimony was harmless.”); State

2

v. J.L.G., 234 N.J. 265, 306 (2018) (holding that the error in admitting

unreliable medical-related expert testimony was “harmless in light of the

overwhelming evidence of [the] defendant’s guilt”); State v. Rochat, 470 N.J.

Super. 392, 442 (App. Div. 2022) (remanding for a new trial after finding that

DNA evidence was unreliable because the court “d[id] not find [the remaining]

evidence to be overwhelming”).

Thus, the issue is “whether in all the circumstances there was a

reasonable doubt as to whether the error denied a fair trial and a fair decision

on the merits.” State v. Macon, 57 N.J. 325, 337-38 (1971); see also State v.

Lazo, 209 N.J. 9, 26 (2012). When, as here, the error is the improper

admission of evidence, an error is harmless “if the untainted evidence . . . is so

overwhelming that in the judgment of the reviewing court conviction was

inevitable.” State v. Pillar, 359 N.J. Super. 249, 276 (App. Div. 2003)

(citation omitted).

B.

In this matter, the State presented overwhelming evidence of defendant’s

guilt that did not rely on Agent David’s improperly admitted comment about

his one-mile radius “rule of thumb” policy or on Martinez’s in-court

identification of defendant.

3

The Appellate Division held that the trial court did not abuse its

discretion in permitting Agent David’s expert testimony because “[i]t was for

the jury to decide whether his testimony was credible and how much weight to

give it.” State v. Burney, 471 N.J. Super. 297, 320 (App. Div. 2022). The

Appellate Division also concluded that although the conduct was “suggestive,”

any theoretical error in admitting Martinez’s first-time in-court identification

of defendant was harmless because of “the overwhelming evidence that

defendant was the robber.” Id. at 329-30. Although I disagree with the

Appellate Division’s evidentiary rulings, I agree that any potential error in

admitting the evidence was harmless.

First, Martinez testified that when she answered the door at her home on

December 25, 2015, and was confronted with an armed intruder, she believed

that she recognized the perpetrator as a person who had recently worked in her

home. Her testimony about that identification was corroborated by evidence

of the 9-1-1 call that she made immediately after the robbery, in which she told

the dispatcher that the intruder had “worked at our house.” This is also

consistent with her statement to police. Moreover, defendant admitted that he

had indeed participated in contracting work at Martinez’s home, and his

brother Mark, a contractor, confirmed that to be true.

4

Second, Martinez reported to the police that the intruder stole jewelry.

When police searched defendant’s cell phone, they found photographs of a

watch engraved with the word “Princess.” Detective Alfonso testified that the

manufacturer of the watch was “Princess.” Defendant’s metadata revealed that

the photos were taken with his cellphone just days after the robbery, between

December 26 and December 29. Defendant also searched online for “Princess”

watches during that time. Thus, defendant’s cellphone was used to document

the specific type of watch and his research regarding that watch in the

immediate aftermath of the robbery.

Martinez not only identified the watch by viewing the photographs, but

also testified to its details -- that it had a black band, was adorned with clear

rhinestones, and had the word “Princess” engraved on the inside. She also

provided Detective Alfonso with the watch’s packaging and additional bands

as further proof that the watch was hers. In short, if accepted by the jury,

Martinez’s testimony, the packaging, and bands demonstrate that the

perpetrator stole the precise type of watch that defendant’s cell phone had

photographed and researched just days after the robbery.

Third, defendant’s DNA was found on a Costco bag hanging in the

stairwell leading to Martinez’s apartment. Martinez testified that the day after

the robbery, she noticed the bag, which she did not recognize. She

5

additionally testified that neither she nor her daughter, Samantha, had a Costco

membership. She identified the bag as one of several that appeared in a

photograph taken after the robbery. There was no definitive testimony about

how long the Costco bag had been in the stairwell, but Martinez’s testimony

that she did not recognize the bag and noticed it for the first time the day after

the robbery supports the State’s contention that it was brought to the apartment

at the time of the robbery. Additionally, the presence of defendant’s DNA on

that bag is compelling evidence that he was the intruder.

Fourth, the victims testified that they heard the intruder’s phone sound

during the home invasion. Martinez recalled hearing an automated voice

assistant announce an incoming call or text message from a name that she

could not recognize. Her daughter, Samantha, testified that she heard the

phone announce an incoming text message and recalled the man answering a

call at one point. A third victim, Samantha’s friend, also testified that she

heard an “incoming message” announcement from the phone’s automated

voice. The victims’ testimony about the intruder’s cellphone -- signaling its

receipt of a text message -- directly matched evidence derived from the search

of defendant’s phone. Indeed, the search of defendant’s phone confirmed that

he had received a single text message at 8:02 p.m. on December 25, while the

robbery was in progress. This is consistent with the victims’ testimony that

6

the intruder’s cellphone had received a single text, audibly announced by his

cell phone’s automated voice during the robbery.

Fifth, all three victims testified that, while they were bound, they heard

“click” noises, signaling that the robber was taking photos with his phone.

The search of defendant’s phone revealed several blurry, dark photographs,

taken at 8:03 p.m. on December 25, while the robbery was in progress. Also

found on defendant’s phone were photographs taken after the robbery,

identified by Martinez as photographs of her “Princess” watch.

As the appellate court explicitly noted, “even if the in-court

identification had been suppressed, Rosette [Martinez] would still have

identified her watch from the photographs stored on defendant’s cell phone.”

Id. at 330.

--

Sixth, while questioning defendant at the hospital, Detective Alfonso

texted defendant the word “hello.” Defendant’s phone then made an audible

voice announcement of “message received” from Detective Alfonso’s phone

number and read the message aloud -- just as the victims described the

intruder’s phone did.

Seventh, the clothing that defendant was wearing when he was

questioned at the hospital, described as a black knit wool hat, a winter jacket,

7

and a maroon jacket, matched the victims’ description of the intruder: a tall,

thin black male wearing a hat and dark clothing.

II.

I concur with the Appellate Division’s determination that the evidence

against defendant, independent of the expert’s improper comment and

Martinez’s in-court identification, is overwhelming.

I would affirm as modified the Appellate Division’s determination

affirming defendant’s conviction. I respectfully dissent.

8