NJ Supreme Court: Flawed Evidence & Identification in State v. Burney (A-24-22, Aug 2, 2023)

State of New Jersey v. Roberson Burney

Docket No. A-24-22

Decided August 2, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent published opinion, the Supreme Court of New Jersey was tasked with determining 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.

On December 25, 2015, the victim was in her home with her daughter and her daughter’s friend, when she heard footsteps coming from the stairs. The man in their home stated, “I’m here for your dad, George” in an apparent attempt to believe he was there to fix something in the home. The victim believed she recognized the intruder as someone who had done work in her home previously. The intruder then pulled out a long gun, instructed the women to lay face down, tied their hands behind their backs, and began to go through their possessions. The intruder’s phone rang and victim heard the phone announce the other caller’s name. 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.

After their ordeal ended, the women were able to give police a description of the intruder and what he was wearing. A detective spoke to the victim’s parents, who 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 the victim’s home.

The victim misidentified a filler photo in a photo array with 90 percent certainty the following day, December 26. The victim also declined to make an identification during a second photo array, which included a photo of defendant, on December 28. Also on December 26, the victim noticed a Costco bag in her home that did not belong to her. Police took the bag and the defendant’s DNA was later found on it. Police subsequently arrested defendant and seized his cellphone which contained a photo of victim’s watch.

At trial, the victim identified defendant as the intruder on the night of the robbery. 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 unlikely” 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. Defendant appealed.

On appeal, defendant contended that hat 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. The Appellate Division affirmed defendant’s conviction and sentence but remanded on the Miranda issue. 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. The Appellate Court also found that that the trial court did not abuse its discretion in allowing the victim’s first-time in-court identification. Because the record was clear that the victim 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. Thus, based on those prior interactions, the court found that Rosette’s identification could have been “based on an independent recollection of defendant. The NJ Supreme Court granted defendant’s petition for certification on the issues unrelated to the remand.

On appeal to the NJ Supreme Court, defendant argued 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. Ultimately, the New Jersey Supreme Court reversed the Appellate Court’s decision and remanded the case.

The Supreme Court determined that the identification procedure was highly suggestive because officers told the victim the defendant’s name, informed her that he had been arrested for the robbery, and showed her pictures of the watch found on his phone. All of these facts pain the picture that the detective impermissibly influenced and tainted any future identification by her. Additionally, the layout of the courtroom, as the victim 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. As a result, the Supreme Court ruled that at a retrial, the State may not ask the victim to identify defendant again due to the highly suggestive nature of her prior in-court identification, the likelihood of an irreparable misidentification at this point is substantial.

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining motions challenging the constitutionality of the admission of evidence into the official record. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.