State v. Burney

255 N.J. 1

298 A.3d 1080

STATE of New Jersey, Plaintiff-Respondent,

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

A-14 September Term 2022

086966

Supreme Court of New Jersey.

Argued March 27, 2023

Decided 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, Maplewood, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the briefs).

Ethan Kisch , Newark, argued the cause for amici curiae American Civil Liberties Union of New Jersey, Association of Criminal Defense Lawyers of New Jersey, and The Innocence Project, Inc. (Gibbons, attorneys; Ethan Kisch and Lawrence S. Lustberg, Newark, 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 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 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.

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 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 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 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...