State v. Carrera, DOCKET NO. A-5486-16T2

STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD CARRERA, Defendant-Appellant.

DOCKET NO. A-5486-16T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 21, 2018

August 26, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges O'Connor and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 17-04-0908.

Stefan Van Jura, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).

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

PER CURIAM

Defendant Richard Carrera appeals from a December 9, 2016 order of the Law Division denying his motion to preclude the anticipated testimony of an expert witness who used historical cell site data analysis to opine defendant's cell phone was used in the general area of a homicide at the approximate time of the crime. After the trial court denied the motion, defendant entered a guilty plea to manslaughter and a weapons offense, reserving the right to challenge the court's decision. We affirm in part, reverse in part, and remand for further proceedings.

I.

This appeal arises from the February 8, 2014 shooting death of Reylin Torres in a car on a Newark street. The details of the shooting are not relevant to the issues before the court. A grand jury indicted defendant and co-defendant Mark Hoskins for the shooting, charging them with: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1); first-degree murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(1); first-degree robbery,N.J.S.A. 2C:15-1(a)(1); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendant entered a plea of not guilty.

During discovery, the State notified defendant of its intention to call FBI Special Agent John Hauger, a member of the FBI's Cellular Analysis Survey Team (CAST), as an expert in historical cell site data analysis. Hauger was prepared to offer the opinion that, based on his analysis of historical cell site data, cell phones belonging to defendant and Hoskins exchanged transmissions in the general area of the crime scene at about the time of the shooting.

Defendant moved pursuant to N.J.R.E. 104 to preclude Hauger's testimony. Although he did not object to Hauger's qualifications as an expert or claim that the proposed testimony was within the ken of the average juror, defendant argued the process Hauger used to reach his opinion is not a generally accepted method in the scientific community, rendering his opinion and exhibits inadmissible. Defendant also challenged the admission of the illustrative exhibits the expert created to assist the jury to understand his opinion.

The following facts are derived from the record of the hearing on defendant's motion, at which Hauger and Sprint radio frequency engineer Michael Zahra, who was qualified at the hearing as an expert intelecommunications, and cell tower and cell phone operations, testified. Historical cell site data analysis relies on the fact that a cell phone uses radio frequencies to connect to nearby cell phone towers. A typical cell tower has three 120 degree sectors, covering the full 360 degrees surrounding the tower with antennae tilted downward for the purpose of providing blanket connectivity near the tower. The area covered by a tower is not a perfect circle and the coverage areas of nearby towers may overlap, particularly in urban areas.

From the moment a cell phone is turned on it constantly scans the radio frequency environment for the strongest signal from a cell tower. The cell phone's scanning takes place whether or not the cell phone is moving. When a cell phone "sees" a tower, it identifies itself, provides its location to the tower, and receives acknowledgment from the tower. The tower with the "strongest, clearest" signal is the one to which the cell phone will "more than likely" connect. This is known as the "serving cell" and is not necessarily the closet in proximity to the cell phone, as the closest tower may not be operative, or its signal may be blocked by an obstruction, such as a building or natural feature. The cell phone surveys other towers around the serving cell, measuring the signal strength of those towers. If a cell phone is in an area of overlapping coverage, it may switch back and forth between serving cells.

The cell phone idles on the serving cell until the user initiates a call. At that point, the cell phone communicates with the tower, indicating that it is trying to make a call. The tower thereafter authorizes the call. If the tower is operating at capacity, it will reroute the cell phone to another nearby tower, provided the cell phone's connection to that tower is sufficient to support the call. A cell phone can communicate with a tower only if the cell phone is within the tower's range. An at-capacity tower, therefore, will never reroute a cell phone to a tower to which the cell phone cannot connect. Towers in the Newark area reach capacity an average of less than two percent of the time. A call placed in an area of overlapping coverage could be routed to either tower providing coverage.

A record is generated when a cell phone connects to a tower to make a call. The record contains the calling number, the number dialed, the date and time that a call was placed, the end time of the call, the duration of the call, and the last tower to which the phone was connected during the call. No record is created if the cell phone is unable to connect to a tower when attempting a call. An ongoing call may be transferred from tower to tower, particularly if the cell phone is moving, but may also be transferred when a tower approaches capacity. Only the towers at which a call originates and ends are recorded.

Hauger explained that historical cell site data analysis provides "the approximate area . . . of where a cell phone was when it connected" to an identified sector of a tower at a particular date and time. When Hauger examines a call to a particular sector of a tower, he depicts on a map a "footprint" that roughly reflects a 120-degree, open-ended pie-wedge shape of intended coverage for that sector. The depiction does not have "a nice crisp line" showing the outer bound of a tower's signal. In addition, the actual coverage area may extend beyond the depicted coverage area.

Hauger specified that although he can show a phone communicated within the footprint of the sector of a tower on a particular date and time, he is not able to place the phone at any specific location within the footprint. As he explained, "[a]ll I can do is say the phone utilized this particular tower or this particular sector for this particular call, and that sector most likely covers this area." He admitted "there's no way to measure how far away . . . a phone was from a particular tower" and his analysis would "never be able to tell you where a phone was down to the address or to the corner[.]"

The State introduced maps created by Hauger depicting his opinion of the roughly pie-wedge shaped area covered by a sector of T-Mobile Tower 3397 (Tower 3397) and Sprint Tower 41-2 (Tower 41-2), both of which are near thesite of the shooting. Data from the communications companies identified these towers as having hosted three transmissions between cell phones belonging to defendant and Hoskins on February 8, 2014, between 7:30 p.m. and 7:34 p.m., the date and approximate time of the shooting. The calls involved a cell phone assigned a T-Mobile number and a cell phone assigned a Sprint number. The murder site was near the coverage areas depicted on the maps.

The T-Mobile number called the Sprint number first, using Tower 3397 near the intersection of Orange and Seventh Streets in Newark, about a block from the crime scene. The data indicated that the call used an antenna serving sector seven of the tower. Using a chart depicting the pie-wedge shaped area covered by the sector seven antenna overlaid on a map of Newark, Hauger opined the cell phone with the T-Mobile number was in the pie-wedge shaped area near the murder scene. He also opined that the T-Mobile phone number the received two calls from Tower 3397's sector seven in the next two minutes.

Based on the historical cell phone data from the cell phone assigned the Sprint phone number, Hauger opined that the Sprint cell phone communicated with Tower 41-2, which was close to Tower 3397 and also near the intersection of Orange and Seventh Streets, for four calls during the approximate time of theshooting: the three calls from the T-Mobile phone number and a fourth incoming call from a phone number in the 862 area code.

Although he relied on the map depicting the 120-degree intended service area of the towers, Hauger testified that "there is no way to tell without doing drive tests what the actual . . . limit of the sector is" for the towers. He conducted a drive test for the two towers on December 22, 2015, twenty-two months after the shooting. He described the process of conducting a drive test as follows:

[I u]se a device called . . . [a] gladiator autonomous receiver, it's a scanner, built by Venture Designs which is a scanning company that builds scanners for the cell phone industry.

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