NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1279-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONQUA THOMAS,
Defendant-Appellant. _______________________
Argued January 27, 2026 – Decided March 11, 2026
Before Judges Firko and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 21-05-0172.
Ethan Kisch, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Ethan Kisch, of counsel and on the brief).
Timothy P. Kerrigan Jr., Chief Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Leandra L. Cilindrello, of counsel and on the brief). Appellant filed a supplemental brief on appellant's behalf.
PER CURIAM
Defendant Donqua Thomas appeals from a judgment of conviction entered
on December 5, 2023, after he was convicted by a jury of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) or (2), and related weapons offenses. We affirm.
I.
The State alleges that on October 29, 2020, defendant shot Remy Lee four
times in the parking lot of her apartment complex on Christina Place in Paterson.
Lee was nine months pregnant with defendant's child. She died from her
injuries, but her unborn child was delivered by emergency cesarean section and
survived.
A Passaic County grand jury returned an indictment charging defendant
with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1);
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and
second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(1).
We summarize the facts developed at defendant's seven-day trial in June
2023. Lee's mother, Charlene Keeling, testified that she was in Lee's apartment
watching Lee's seven-year-old daughter while Lee went out for two routine
A-1279-23 2 medical appointments when she heard gunshots. A neighbor came to the door
and told her Lee had been shot. Keeling went outside and found Lee on the
ground next to her car.
Keeling "grabbed [Lee's] hands, and . . . started asking her what
happened, who did this? And [Lee] did[ not] say anything in the beginning.
And [Keeling] kept . . . asking . . . who did this? And [Lee] said Qua." Keeling
understood "Qua" referred to defendant. Keeling testified that Lee said "he[ is]
in a red car or he ran to a red car," and then "she said Ma, Qua shot me. The last
thing [Lee] said was, I can't breathe."
One of Lee's neighbors, Della McCall, who was chief of staff to the mayor
of Paterson, testified she heard three gunshots that "were, kind of, one after
another." She went outside and saw Lee on the ground. McCall called
Paterson's director of public safety, Jerry Speziale, for help. Before Speziale
arrived, McCall heard someone in the crowd ask Lee, "who did it?" and she
"heard [Lee] say, Qua." McCall heard Lee say "Qua . . . that first time. And
then [she] heard her say it again. And then she said it again."
McCall was with Lee for "[m]aybe, . . . five or six, seven minutes" before
Speziale arrived. McCall testified that after Speziale arrived and began
providing aid to Lee, she "kept saying, I do[ not] want to die, I do[ not] want to
A-1279-23 3 die. And then she [asked] . . . Speziale, why did . . . he do this to me? . . . [W]hy
would my baby father do this to me?"
Speziale testified that he received McCall's call at "about 1:38, 1:39" in
the afternoon. "A few minutes" later, he arrived at the scene and observed Lee
on the ground in the parking lot. Speziale "was holding her head and . . . telling
[her] to please calm down." Lee said to him "two times she sa[id] I[ am] going
to die, I can[not] breathe, I[ am] going to die, I can[not] breathe. Three times
she sa[id] why did he do this to me, my baby father, why did he do this to me,
my baby father."
Latressa Green, an off-duty law enforcement officer who lived on the
same street, testified that she heard the gunshots and ran to her window. She
"saw a lady screaming and falling, like dropping . . . in the parking lot in
between the cars next to the sidewalk." She went outside and started providing
aid to Lee. Green was asking Lee "who . . . shot her, did she see anything. And
she . . . whisper[ed] like a name, and [Green] was[ not] sure what it
was. . . . [Lee] said Qua, but [Green] was[ not] exactly sure what [she] was
hearing because [she] was[ not] familiar with him. [She] did[ not] know the
name, [she] was[ not] sure."
A-1279-23 4 Former Paterson Police Department (PPD) Detective John Scully testified
that he responded to the scene of the shooting. He testified it was "raining very
hard that day." He found two "9[-]millimeter shell casing[s]." One shell casing
was on the sidewalk, and the other was "in the dirt . . . at the edge of the
sidewalk." He also recovered three bullets at the scene. Police did not recover
a firearm.
Gerald Burkhart, an expert in the field of firearms examination employed
by the New Jersey State Police (NJSP), testified that the two shell casings were
"discharged in one firearm to a practical degree of certainty." Additionally, "the
three bullet specimens . . . were discharged from the same firearm to a practical
degree of certainty." Burkhart testified that the shell casings were not
"process[ed] for fingerprints or DNA" because the police "put in their note, no
[latent] print or DNA search [wa]s needed."
PPD detective Brian Culmore responded to the scene and retrieved
surveillance video from three cameras at the apartment complex that covered
the area of the shooting. 1 At approximately 10:43 a.m. on October 29, 2020, a
red Dodge Dart sedan with tinted windows parked in a parking spot in front of
1 The surveillance video that was played for the jury is not included in the appellate record. A-1279-23 5 Lee's apartment building, where it remained until Lee was shot. At 1:33 p.m.,
Lee arrived home in her car and backed into the parking space next to the Dodge
Dart. After Lee exited her vehicle, she was between her car and the Dodge Dart
and then fell to the ground. At 1:36 p.m., the Dodge Dart drove away from the
scene.
PPD detective Jovan Candelo testified he located additional surveillance
video from "throughout the city" that allowed him to track the movements of the
Dodge Dart from Hamilton Avenue in Paterson to the scene of the shooting. On
October 30, Detective Candelo interviewed Keeling and showed her the
surveillance video he obtained of the Dodge Dart on Hamilton Avenue. Keeling
identified the driver of the vehicle as defendant. Defendant was charged with
murder and voluntarily surrendered the following day.
Detective Candelo was "able to get a partial plate" from the surveillance
video and obtained "a list of Dodge Darts that were registered in the city with
that partial plate." One of the vehicle owners identified on that list was Asasha
Thomas, who lived on Hamilton Avenue. In November 2020, Detective Candelo
contacted Thomas, who was on vacation in Florida, and she told him defendant,
who is her cousin, "had possession of the vehicle" on October 29. Law
enforcement was not immediately able to locate the vehicle. On December 12,
A-1279-23 6 the vehicle was located by the Wallington Police Department and towed to the
PPD "hangar" where it was searched pursuant to a warrant.
Detective Candelo testified that PPD received multiple 911 calls
following the shooting. At 1:54 p.m. on October 29, one caller stated they were
on Katz Avenue and "saw someone with a yellow hoodie crawling out of the
bushes and heading towards Redwood Avenue." PPD "did not follow up with
that information" because the call "did[ not] corroborate with anything the
witnesses said, any of the eyewitness statements [or] with any of the video
surveillance that [they] received."
Asasha Thomas testified that defendant is her cousin and his nickname is
"Qua." On October 29, 2020, she owned a 2013 red Dodge Dart with "really
dark" tinted windows. In September 2020, she "swap[ped] cars" with defendant
and allowed defendant to use the Dodge Dart. Thomas only had one set of keys
to the vehicle, which she gave to defendant. Thomas testified that defendant
was driving the Dodge Dart on October 29.
At that time, Thomas was living on Hamilton Avenue. On October 29,
she was preparing "[t]o move [her] girlfriend back to Florida." Defendant
helped them with the move. Thomas needed to rent a truck to make the trip. At
A-1279-23 7 approximately 5:00 a.m., defendant arrived at her residence in the Dodge Dart
and helped her move items into another vehicle.
Defendant parked the Dodge Dart in front of Thomas's residence on
Hamilton Avenue and used the other vehicle to take her and her girlfriend to
rent a truck. Defendant took them to "LaGuardia Airport first and then [they]
came back over to either Clifton or Wayne . . . where [Thomas] got the rental
from" around "9:30, 10:00 [a.m.]" Thomas and her girlfriend then left for
Florida in the rental truck.
Jessica Otzhy, an investigator employed by the NJSP, testified as an
expert in historical cell site analysis without objection. Otzhy prepared a report
using GeoTime software to "analyze [historical cell site] data and represent it in
a visual form" showing "what cell sites [defendant's] device connected to during
a specified time period." In this case, the "call detail records" she used were
provided by defendant's cell phone carrier, T-Mobile.
Otzhy testified she completed "multiple trainings" regarding historical
cell site analysis including a "GeoTime level 1 training" course. Otzhy also
completed other "more specialized" courses on "how records from one specific
carrier differ from another," how to analyze "different types of data," and
A-1279-23 8 "GeoTime's level 2 training." Otzhy prepared more than 200 historical cell site
analysis reports using GeoTime.
To prepare her report, Otzhy used the "industry average" for the coverage
area of a cell site, which is "a mile and a half out from the antenna" because
"that[ is] an average that has been set by the [F]BI" and "[t]hat[ is] the standard
that [the NJSP] follow[ed] as well." She acknowledged that is "the average, but
in some cases that might differ." "For example, if you[ are] in a city, you have
a lot more people, who have a lot more demand for a connection to be made, so
there[ is] going to be more cell sites available." In that case, "the individual
coverage of some of those sites might be shorter since there[ are] more of them
around."
The call detail records Otzhy used included all voice calls and text
messages to and from defendant's cell phone. The records identified the
"switch" or "cell site that handled the" calls and texts. The records also
identified which "sector [of the cell site] handled the" call or text. The GeoTime
software "will automatically map every event that has a location data within the
call records."
Otzhy testified that on October 29, 2020, defendant's phone received an
incoming call at 5:14 a.m. that connected to a cell site in Paterson, and another
A-1279-23 9 incoming call at 6:35 a.m. "that connected to a cell site in Manhattan." His
phone then "ha[d] seven events that connected to a cell site which provided
coverage to the homicide location between 11:05 a.m. and 12:15 p.m. that day."
The "homicide location [was] well within th[e] mile and a half coverage" of that
cell site. Otzhy testified she could have requested information "about the
individual coverage of each cell site" from the carrier, but she did not have that
information in this case because the carriers "do[ not] send that . . . with the call
detail records."
Defendant did not testify. The sole defense witness was Carl Leisinger,
III, who testified as a firearms expert. He opined that because "[t]he shells were
[found] outside of" the vehicle, "the possibility of somebody shooting within the
car was very remote, possibly not at all." His "synopsis of the scene [was] that
the shooter was obviously outside their car." On cross-examination, he
conceded that "the windows" of the Dodge Dart were "tinted" and he could not
see if there was a person in the car "with a gun outside the window." He also
conceded that whether the shell casings would have remained inside the car
"depends [on] where [the shooter] had his hand."
On June 21, 2023, the jury found defendant guilty on all counts. After an
appropriate merger, he was sentenced to life in prison subject to a thirty-year
A-1279-23 10 period of parole ineligibility for first-degree murder, and concurrent sentences
of ten years in prison for the weapons offenses. A conforming judgment of
conviction was entered on December 5, 2023. This appeal followed.
II.
On appeal, defendant raises the following points for our consideration.
POINT I
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE CUMULATIVE AND PREJUDICIAL DYING DECLARATION TESTIMONY.
....
B. The dying declaration testimony was cumulative and resulted in undue prejudice.
POINT II
THE STATE'S EXPERT OFFERED INADMISSIBLE NET OPINION TESTIMONY CONCERNING THE LOCATION OF [DEFENDANT]'S CELL PHONE.
A. Expert testimony about cell phone location cannot be based on unverified distance estimates.
B. The State's expert used an unverified distance estimate to determine the range and coverage areas of cell towers, create coverage maps, and ultimately place [defendant] at the crime scene.
A-1279-23 11 POINT III
THE STATE'S REPEATED MISCONDUCT DURING SUMMATION DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
A. New Jersey courts hold prosecutors to a high bar–especially during summation.
B. The State testified about forensic facts not in evidence to fill a significant hole in its case.
C. The State shifted the burden of proof to [defendant] by incorrectly asserting that he controlled the evidence.
D. The State disparaged [defendant]'s prosaic third-party guilt defense as a "conspiracy" theory that there was another "man on a grassy knoll" who killed the victim.
E. Taken together, the State's repeated misconduct during summation deprived [defendant] of a fair trial.
POINT IV
THE TRIAL COURT FAILED TO PROVIDE PROPER JURY INSTRUCTIONS ON THREE CRUCIAL MATTERS.
B. The trial court failed to instruct the jury on third-party guilt.
A-1279-23 12 C. The trial court failed to instruct the jury on how to assess . . . Lee's purported out-of-court identifications of [defendant].
D. The trial court failed to provide the jury tailored guidance on how to evaluate dying declarations.
POINT V
THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DENIED [DEFENDANT] DUE PROCESS AND A FAIR TRIAL.
In a supplemental brief, defendant raises the following point for our
consideration.
TRIAL COURT ERRED TO ALLOW THE DYING DECLARATION IN TRIAL WHICH SHOULD HAVE BEEN RULED INADMISSIBLE
A. Dying [d]eclaration should have been inadmissible under N.J.R.E. 804(b)(2) because it was not made voluntarily but as a result of undue pressure.
B. Dying [d]eclaration should have been inadmissible under N.J.R.E. 403, because its probative value was substantially outweigh[ed] by undue prejudice.
C. Defendant incorporates herein . . . [the] brief, by trial counsel . . . dated July 7, 2022, in support of pre- trial motion to suppress the [d]ying [d]eclaration, with particular emphasis on sub point c [arguing admission of dying declaration testimony violates "defendant's
A-1279-23 13 right to confront witnesses and his right to [d]ue [p]rocess of [l]aw and a [f]air [t]rial."]
III.
Defendant contends the court erred by permitting the State to introduce
testimony regarding Lee's dying declarations and that the testimony was
cumulative and unduly prejudicial. We are unconvinced.
We defer to a trial court's evidentiary rulings unless the record reveals the
trial court abused its discretion. State v. Garcia, 245 N.J. 412, 430 (2021).
Deference is rooted in understanding that "the decision to admit or exclude
evidence is one firmly entrusted to the trial court's discretion." State v. Prall,
231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins.,
202 N.J. 369, 383-84 (2010)). Under this standard, to reverse a court's
evidentiary ruling, the court "must be convinced that 'the trial court's ruling is
so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting
State v. J.A.C., 210 N.J. 281, 295 (2012)).
Pursuant to N.J.R.E. 804(b)(2), a dying declaration is not excluded by the
hearsay rule. The Rule provides, "[i]n a criminal proceeding, a statement made
by a victim unavailable as a witness is admissible if it was made voluntarily and
in good faith and while the declarant believed in the imminence of declarant's
impending death." To satisfy the "belief of imminent death" requirement, the
A-1279-23 14 proponent of a dying declaration must establish the declarant had "a settled
hopeless expectation that death is near at hand, and what is said must have been
spoken in the hush of its impending presence." State v. Williamson, 246 N.J.
185, 201 (2021) (quoting Shepard v. United States, 290 U.S. 96, 100 (1933)).
Of course, even if evidence could fall under an applicable exception, the
court in its role as gatekeeper must "ensure that evidence admitted at trial is
sufficiently reliable so that it may be of use to the finder of fact who will draw
the ultimate conclusions of guilt or innocence." State v. Michaels, 136 N.J. 299,
316 (1994); see N.J.R.E. 403(a) (evidence "may be excluded if its probative
value is substantially outweighed by the risk of . . . [u]ndue prejudice, confusion
of issues, or misleading the jury").
Prior to trial, defendant moved to preclude the State from offering dying
declaration testimony from Keeling and Speziale. On October 25, 2022, the
court conducted a hearing pursuant to N.J.R.E. 104, at which Keeling and
Speziale testified. On November 1, the court denied defendant's motion in an
oral opinion.
The court found the witnesses credible and that the State met its burden to
demonstrate the dying declaration testimony was admissible pursuant to
N.J.R.E. 804(b)(2). The court found Lee's statements "were voluntarily made
A-1279-23 15 and not the product of und[ue] pressure." The court also found the statements
were made "in good faith while the victim declarant believed in the imminence
[of death]." Specifically, Lee "was aware that she was shot and was having
trouble breathing" and was "conscious, alert, and able to communicate when she
made the statements." The court concluded, "based upon a totality of the
relevant circumstances . . . the statements unquestionably satisf[ied] the
elements of [N.J.R.E.] 804(b)(2)."
The court rejected defendant's confrontation clause argument based on our
Supreme Court's decision in Williamson, "holding that dying declaration
testimony . . . do[es] not violate the . . . Confrontation Clause of the U[nited]
S[tates] Constitution or the New Jersey Constitution." The court also rejected
defendant's argument based on N.J.R.E. 403 because "the probative value of the
statements [was] not substantially outweighed by the risk of und[ue] prejudice,
confusion of the issues, or misleading the jury."
During McCall's trial testimony on June 6, 2023, defendant objected to
any additional dying declaration testimony because McCall did not testify at the
pretrial hearing and "it[ was] cumulative." The court conducted a N.J.R.E. 104
hearing outside the presence of the jury, at which McCall testified. The court
A-1279-23 16 found her testimony regarding Lee's statements met "all of the requirements of
[a] dying declaration" and permitted "the State to elicit that testimony from her."
The court "counsel[ed] the State . . . three witnesses is giving the jury the
benefit of all the information that they need on this particular point." The court
added, "if there are four, five, or six witnesses that the State is going to attempt
to elicit this information from then the defense's point that this is cumulative
would have a lot more bearing on this [c]ourt's decision."
After a break in the proceedings, the State informed the court that "in light
of [the court's] ruling[,] [the State] did get some clarification from . . . Green."
Green "said [she] heard something and it did[ not] sound like a real name and
then she said Quay." The State then advised the court when Green testified "it
might take a delicate touch to make sure we do[ not] do anything that would
constitute error."
Green testified several days later, on June 13. During her direct
examination, she testified:
[THE STATE:] [W]ere you talking to [Lee]?
[GREEN:] Yes. I was asking her questions. I was asking her who . . . shot her, did she see anything. And she did . . . whisper like a name, and I was[ not] sure what it was. By that time . . . her mom had [come] outside and started to attend to her and she put her ear to her . . . face and then her mom repeated the name.
A-1279-23 17 [THE STATE:] So you did[ not] hear the victim say anything[?]
[GREEN:] . . . I did hear [her] say. . . . [S]he said Qua, but I was[ not] exactly sure what I was hearing because I was[ not] familiar with him. I did[ not] know the name, I was[ not] sure. And I asked again. And by that time her mother had come out and she spoke[] to her.
Defendant did not object to Green's trial testimony.
We are satisfied the court did not misapply its discretion by permitting
Keeling, Speziale, and McCall to testify regarding Lee's dying declarations.
There is no basis for us to disturb the court's determination that their testimony
regarding Lee's dying declarations was admissible pursuant to N.J.R.E.
804(b)(2). The court's finding that Lee's statements were "made voluntarily and
in good faith . . . while [she] believed in the imminence of [her] impending
death" is amply supported by the record.
We are also persuaded the court properly applied N.J.R.E. 403 and
determined the probative value of the testimony was not substantially
outweighed by the risk of undue prejudice, confusing the issues, or misleading
the jury. There is no reason for us to disturb the court's decision to admit the
dying declaration testimony.
Because defendant did not object to Green's testimony, we review for
plain error. Plain error is one "clearly capable of producing an unjust result."
A-1279-23 18 State v. Singh, 245 N.J. 1, 13 (2021) (quoting R. 2:10-2). The "error will be
disregarded unless a reasonable doubt has been raised whether the jury came to
a result that it otherwise might not have reached." Ibid. (quoting State v. R.K.,
220 N.J. 444, 456 (2015)).
There is no basis to find plain error here. Green's testimony amounted to
little more than a brief reference to her recollection that Lee said "Qua." The
State did not elicit any other dying declaration testimony from Green beyond
that single reference, which did not add anything the jury had not already heard
from the other witnesses. Under the circumstances, we are satisfied Green's
testimony was not "clearly capable of producing an unjust result." Id. at 13.
IV.
Defendant contends the trial court erred in admitting inadmissible net
opinion testimony concerning the location of his cell phone. Specifically, he
argues Otzhy based her opinions on a one-and-a-half-mile industry average "set
by the [F]BI" without "consider[ing] any facts or reliable data from which the
actual range and coverage areas of the cell towers in Paterson could be
calculated," resulting in a net opinion. We are not persuaded.
We review a trial court's determination that a witness is qualified to
present expert testimony pursuant to N.J.R.E. 702 and review for abuse of
A-1279-23 19 discretion. Garcia, 245 N.J. at 430. Such a determination "will only be reversed
for manifest error and injustice." State v. Rosales, 202 N.J. 549, 562-63 (2010)
(quoting State v. Jenewicz, 193 N.J. 440, 455 (2008)).
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. v. New Cmty. Corp., 207 N.J. 344, 372 (2011).]
"[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)).
A-1279-23 20 Defendant argues that Otzhy's expert testimony constituted improper "net
opinion" under our Supreme Court's decision in State v. Burney, 255 N.J. 1
(2023), which was issued after this trial. In Burney, the Court noted that
"[h]istorical 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." 255 N.J. at 21 (quoting United States v. Hill, 818 F.3d 289, 295 (7th Cir.
2016)). "[C]ell site analysis simply confirms that the phone was somewhere
within the coverage radius of the cell tower during the recorded activity." Id. at
22. "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." Id. at 21-22.
In Burney, an FBI agent serving as an expert for the State testified that
cell towers in the area in question "had an approximate coverage range with a
radius of about one mile" and "[t]hat estimated radius was based solely on [the
special agent's] 'rule of thumb' for the area—a 'good approximation' based on
his training and experience." Id. at 5. The agent "relied on that approximation
to place defendant's cell phone at or near the crime scene at the time of the
robbery" that the defendant was accused of committing. Ibid.
A-1279-23 21 The Court concluded the agent's testimony was "an improper net opinion"
"because the testimony was based on nothing more than [the agent's] personal
experience. . . ." Id. at 25. It observed the agent had not substantiated that his
one-mile-radius approximation of the cell tower range "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." Id. at 24. The Court further noted the
agent "did not review the height of the [pertinent tower], did not review its rated
power, did 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" or "perform any tests of the
[tower's] area of signal coverage." Id. at 24-25.
However, the Court did not suggest that, "to be admissible, expert
testimony must consider all of the factors listed above." Id. at 25. At its core,
Burney clarified that "our 'net opinion' doctrine under New Jersey evidence law
weeds out experts who base their opinions on purely personal standards or 'rules
of thumb.'" State v. Olenowski, 255 N.J. 529, 586 n.28 (2023).
In this case, unlike in Burney, the State's expert did not attest to any
personal "rules of thumb." Instead, she based her opinions on the "industry
average" that the coverage area of a cell site is "a mile and a half out from the
A-1279-23 22 antenna" because "that[ is] an average that has been set by the [F]BI" and "that
[ is] the standard that [the NJSP] follow[ed] as well." Thus, she established the
average coverage area she used was "common practice in cell tower analysis"
and "had been used by any other agent or radio frequency engineer" as required
by Burney, 225 N.J. at 24.
In addition, Otzhy acknowledged that is "the average, but in some cases
that might differ." She testified, "[f]or example, if you[ are] in a city, you have
a lot more people, who have a lot more demand for a connection to be made, so
there[ is] going to be more cell sites available." In that case, "the individual
coverage of some of those sites might be shorter since there[ are] more of them
More importantly, contrary to defendant's argument, Otzhy did not testify
that his phone was at the location of the shooting. Rather, she testified
defendant's phone connected to a cell site in Paterson that was "well within" one
and a half miles from the "homicide location" seven times between 11:05 a.m.
and 12:15 p.m. on October 29, 2022. Effectively, she testified only that
defendant's phone was in the general area of the shooting more than one hour
before the shooting occurred. As the Court recognized in Burney, state and
federal courts across the nation "have accepted expert testimony about cell site
A-1279-23 23 analysis for the purpose of placing a cell phone within a 'general area' at a
particular time." Id. at 21-22.
We are satisfied Otzhy's testimony was not net opinion and did not run
afoul of our Supreme Court's decision in Burney. The court properly admitted
her testimony and opinions.
Even if we were to find otherwise, defendant did not object to Otzhy's
testimony and cannot establish plain error. The evidence of defendant's guilt
independent of the historical cell site analysis is strong. Thomas's testimony
established defendant was driving the Dodge Dart on the day of the shooting,
surveillance video showed defendant driving the vehicle from Thomas's
residence on Hamilton Avenue to the scene and showed the vehicle waiting at
Lee's residence for over two hours then driving away after she was shot, and
Lee's dying declarations identified defendant as the shooter. Given the
abundance of incriminating evidence, the admission of any net opinion
testimony from Otzhy was not "clearly capable of producing an unjust result."
Singh, 245 N.J. at 13.
We are unpersuaded by defendant's claims, raised for the first time on
appeal, of prosecutorial misconduct during the State's summation. Specifically,
A-1279-23 24 defendant argues the State: (1) improperly responded to defendant's argument
that the State failed to test the shell casings for fingerprints or DNA by claiming
such testing would have been futile without facts or evidence to support the
claim; (2) shifted the burden of proof to defendant by asserting he controlled the
evidence after the shooting; and (3) disparaged his third-party guilt defense.
When, as here, the defendant does not raise a timely objection, we review
for plain error. R. 2:10-2. Generally, when the defendant fails to object to the
prosecutor's comments at trial, the allegedly "improper remarks . . . will not be
deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert.
denied, 534 U.S. 858 (2001).
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." State v. Williams, 471 N.J. Super. 34, 43 (App. Div. 2022) (quoting
State v. Frost, 158 N.J. 76, 82 (1999)). "A prosecutor must 'conscientiously and
ethically undertak[e] the difficult task of maintaining the precarious balance
between promoting justice and achieving a conviction,' ensuring that at all times
[their] 'remarks and actions [are] consistent with [their] duty to ensure that
justice is achieved.'" State v. Jackson, 211 N.J. 394, 408 (2012) (first and third
alterations in original) (quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).
A-1279-23 25 Prosecutors may "strike hard blows . . . [but not] foul ones." State v.
Wakefield, 190 N.J. 397, 436 (2007) (quotation omitted). "Generally, remarks
by a prosecutor, made in response to remarks by opposing counsel, are
harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div. 1993).
Defendant's claim that the State shifted the burden of proof by arguing he
controlled the evidence after the shooting lacks merit. It was not improper for
the prosecutor to highlight the State's contention that defendant was in control
of the Dodge Dart, and any evidence contained in the vehicle, after the shooting.
The State did not shift the burden of proof to defendant.
Nor was it improper for the State to respond to defendant's argument that
there may have been a third-party shooter who crawled through the bushes by
stating "[t]here[ was] . . . no one in the grassy knoll . . . you know, this is not a
conspiracy." The prosecutor was not "trivializing" or "disparaging" defendant's
defense. Rather, he was arguing that there was no evidence of a third-party
shooter.
We are persuaded, however, that it was inappropriate for the prosecutor
to imply to the jury fingerprint and DNA testing of the shell casings would have
been futile. Specifically, the prosecutor stated:
[Defense counsel] also made mention of fingerprints or DNA analysis on the shell casing I showed you. Well
A-1279-23 26 think about how the gun works. It[ is] an explosion out of a gun, it's hot. And to think where the shell casing was found and the conditions that were out there with a whole bunch of people outside, raining, what do you think you[ are] going to find on a shell casing? This is [ not] CSI.
"[R]eferences to matters extraneous to the evidence may constitute
prosecutorial misconduct." State v. Williams, 244 N.J. 592, 607 (2021) (quoting
Jackson, 211 N.J. at 408). Here, there was no evidence in the record, expert or
otherwise, to support the prosecutor's implication that the shell casings could
not have been tested for fingerprints or DNA evidence.
Nevertheless, a finding that a prosecutor has made an improper statement
"does not end a reviewing court's inquiry; in order to merit reversal, the
misconduct must have deprived the defendant of a fair trial." State v. Hawk,
327 N.J. Super. 276, 281 (App. Div. 2000). Such an error is not a basis for
reversal unless the conduct was so egregious that it deprived the defendant of a
fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S.
1129 (1996). The prosecutor's conduct must have been so egregious that it
"substantially prejudiced [the] defendant's fundamental right to have a jury
fairly evaluate the merits of his defense." Timmendequas, 161 N.J. at 575.
Overall, a court "must assess the prosecutor's comments in the context of the
entire trial record," State v. Nelson, 173 N.J. 417, 472 (2002), including whether
A-1279-23 27 the trial was lengthy, and the prosecutor's remarks were short or "errant." State
v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991).
Considering this brief statement in light of the lengthy trial and the
strength of the State's case, we are satisfied the prosecutor's comment did not
deprive defendant of a fair trial. Indeed, the comment did not undermine
defendant's argument that the State failed to offer any fingerprint or DNA
evidence from the shell casings to link defendant to the shooting. As discussed
previously, given that there was an abundance of incriminating evidence proving
defendant was the shooter, the prosecutor's comment did not "substantially
prejudice[] defendant's fundamental right to have a jury fairly evaluate the
merits of his defense." Timmendequas, 161 N.J. at 575.
VI.
Defendant argues, for the first time on appeal, the court failed to: (1)
instruct the jury on third-party guilt; (2) instruct the jury on how to assess Lee's
dying declaration identification; and (3) provide "tailored guidance on how to
evaluate dying declarations." These arguments are unpersuasive.
"An essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997).
"Correct jury instructions are 'at the heart of the proper execution of the jury
A-1279-23 28 function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563,
571 (1994)). The trial judge must explain the law as it relates to the facts and
issues of the case. State v. Baum, 224 N.J. 147, 159 (2016).
"It is the independent duty of the court to ensure that the jurors receive
accurate instructions on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either party." State v.
Reddish, 181 N.J. 553, 613 (2004). Indeed, every "request must concern legal
and factual issues that have been properly raised in the proceedings." State v.
Green, 86 N.J. 281, 290 (1981). Further, "[e]very request must state the correct
principles of applicable law in a manner that is tailored to the facts of the case
and is not misleading." Ibid. "The charge as a whole must be accurate." State
v. Singleton, 211 N.J. 157, 182 (2012).
"The proper standards of review of jury instructions are well-settled: if
the party contesting the instruction fails to object to it at trial, the standard on
appeal is one of plain error; if the party objects, the review is for harmless error."
State v. Cooper, 256 N.J. 593, 607 (2024) (quoting Willner v. Vertical Reality,
Inc., 235 N.J. 65, 80 (2018)). Demonstrating plain error "is a 'high
bar,' . . . requiring reversal only where the possibility of an injustice is 'real' and
'sufficient to raise a reasonable doubt as to whether the error led the jury to a
A-1279-23 29 result it otherwise might not have reached.'" State v. Alessi, 240 N.J. 501, 527
(2020) (first quoting State v. Santamaria, 236 N.J. 390, 404 (2019); and then
quoting State v. Macon, 57 N.J. 325, 336 (1971)).
"To determine whether an alleged error rises to the level of plain error, it
'must be evaluated in light of the overall strength of the State's case.'" State v.
Clark, 251 N.J. 266, 287 (2022) (quoting State v. Sanchez-Medina, 231 N.J. 452,
468 (2018)) (internal quotes omitted). "The 'high standard' used in plain error
analysis 'provides a strong incentive for counsel to interpose a timely objection,
enabling the trial court to forestall or correct a potential error.'" State v.
Burnham, 474 N.J. Super. 226, 230 (App. Div. 2022) (quoting Santamaria, 236
N.J. at 404).
Considered in light of the evidence produced at trial and the overall
strength of the State's case, defendant's claim that the failure to provide the jury
charge on third-party guilt, Model Jury Charges (Criminal), "Third Party Guilt
Jury Charge" (approved Mar. 9, 2015), constituted plain error is not convincing.
As discussed previously, there was overwhelming evidence that the shooter was
in the Dodge Dart and defendant was the shooter. There is no basis for us to
find a "reasonable doubt as to whether" the failure to provide the third-party
A-1279-23 30 guilt charge "led the jury to a result it otherwise might not have reached." Alessi,
240 N.J. at 527.
Defendant's claims that the court failed to instruct the jury on how to
assess Lee's dying declarations and identification of defendant lack sufficient
merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). As
defendant concedes, there is no applicable model jury charge and defendant did
not request such a charge. Moreover, it was not likely that Lee's identification
of defendant as the shooter was based on a mistake. Defendant was an intimate
partner of Lee's and the father of her unborn child, and she identified him as the
shooter at close range. There is no basis for us to conclude the failure to give
the model identification charge, Model Jury Charges (Criminal), "Identification:
Out-of-Court Identification Only" (effective Sept. 4, 2012), could have "led the
jury to a result it otherwise might not have reached." Alessi, 240 N.J. at 527.
VII.
We are unpersuaded by defendant's claim that he is entitled to a new trial
based on cumulative error. "A defendant is entitled to a fair trial but not a perfect
one." State v. Weaver, 219 N.J. 131, 155 (2014) (quoting Wakefield, 190 N.J.
at 537). However, "[w]hen legal errors cumulatively render a trial unfair, the
Constitution requires a new trial." Ibid.
A-1279-23 31 The State's case was strong, and to the extent there were errors made
during the lengthy trial, they did not deprive defendant of his right to a fair trial.
Based on our review of the trial record on the whole, we are satisfied there is no
basis to reverse defendant's conviction based on cumulative error.
To the extent we have not considered any of defendant's remaining
arguments, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1279-23 32