In State v. Roberson Burney (A-14-22/086966) (Decided August 2, 2023), the Supreme Court of New Jersey held 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.
Facts of State v. Burney
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, Rosette 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, and the Appellate Division affirmed. It held 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. While 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.
NJ Supreme Court Decision in State v. Burney
The New Jersey Supreme Court reversed. “[W]e find that the trial court erred in admitting both pieces of evidence,” the Court wrote. “Those errors, in combination, deprived defendant of a fair trial.”
In reaching its decision, the New Jersey Supreme Court first addressed the admissibility of Special Agent David’s testimony. As the Court explained, 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.
Here, Special Agent David testified that a one-mile radius was a “good approximation” as to the coverage area for the relevant cell tower. By Special Agent David’s own admission, he determined the tower range “just based on [his] training and experience.” Additionally, the State offered no outside evidence to support the range.
“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,” the Court found. “[B]ecause the testimony was based on nothing more than Special Agent David’s personal experience, the trial court erred in allowing the jury to hear this testimony.”
The New jersey Supreme Court also found that the trial court erred in admitting Rosette Martinez’s first-time in court-identification. According to the Court, 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,” the Court wrote.
The New Jersey Supreme Court also found that there was no ‘good reason’ to allow the first-time in-court identification here. “Rosette did not know defendant well prior to the robbery. 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,” the Court wrote. “There was no basis for an in- court identification under the circumstances.”
Balancing the other evidence presented by the State against the force of the improperly admitted evidence, the Court determined that the cumulative error impacted and prejudiced the fairness of defendant’s trial. Accordingly, it held that the defendant’s conviction and sentence must be vacated and a new trial granted.