NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0133-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAHEEM J. JACOBS,
Defendant-Appellant.
Argued November 12, 2024 – Decided December 23, 2024
Before Judges Sabatino, Gummer, and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-08- 0743.
Robert N. Agre, argued the cause for appellant (Agre & St. John, attorneys; Robert N. Agre, on the briefs).
David M. Galemba, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; David M. Galemba, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Raheem Jacobs was found guilty of second-
degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser-included
offense of murder, in connection with the fatal shooting of Keon Butler. He was
acquitted of other charges. The trial court sentenced him to a twenty-year
custodial term, subject to the minimum parole ineligibility period of the No
Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
Briefly stated, defendant allegedly was in a red car that was following a
minivan being driven by Butler. Gunshots were fired from the red car towards
the minivan. Most of those shots hit the lower portion of the rear of the minivan.
However, one shot struck Butler in the head, killing him.
There were no testifying eyewitnesses, nor any video recordings, that
placed defendant at the scene of the shooting. Instead, the State relied on
statements indicative of his involvement in the shooting that a friend and former
girlfriend claimed defendant had made to them—which they provided under
oath in police interviews but later recanted at trial. The State also relied upon
the expert testimony of an FBI agent, who opined that, at the time of the
shooting, defendant's cell phone had passed through cell tower zones near the
crime scene.
A-0133-22 2 In this direct appeal, defendant presents the following arguments for our
consideration:
POINT I
THE VERDICT ENTERED BY THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE
POINT II
THE TRIAL COURT ERRED BY CHARGING THE JURY AS TO WHAT IT BELIEVED WAS THE LESSER-INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER OVER THE OBJECTION OF BOTH COUNSEL
POINT III
THE COURT ERRED IN ALLOWING THE JURY TO CONSIDER THE TESTIMONY OF THE STATE'S EXPERT, JOHN HAUGER, WHO WAS NOT NAMED BY THE STATE UNTIL THE DAY PRIOR TO JURY SELECTION
POINT IV
THE COURT ERRED IN ALLOWING THE REDACTED OUT OF COURT STATEMENTS OF ERICA JACKSON AND ORDALE TELFAIR TO BE READ TO THE JURY
POINT V
THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION
A-0133-22 3 POINT VI
THE CHARGES AGAINST APPELLANT SHOULD BE DISMISSED AS A RESULT OF PROSECUTORIAL MISCONDUCT THAT OCCURRED IN THE PRESENTATION TO THE GRAND JURY BUT WHICH ONLY BECAME EVIDENT DURING THE TRIAL TESTIMONY OF JOHN RILEY (NOT RAISED BELOW)
Having considered these arguments in light of the record and the
applicable law, we affirm.
I.
In the early morning hours of August 11, 2015, Butler was shot and killed
while driving a minivan in Bridgeton. Before the shooting, Butler had reached
out to a friend and arranged to pick her up from her home. After picking up the
friend in his minivan, Butler noticed that a red car was following behind them.
When he tried to speed up and get away from that car, he was struck in the head
by a nine-millimeter bullet. Butler's minivan crashed into a utility pole. After
the red car drove off, Butler's friend was able to get out of the crashed minivan
and make her way to the hospital.
Based on Sprint cell phone records, the State contended that a cell phone
number assigned to defendant was used around the sectors of the cell tower in
center city Bridgeton around the time that Butler was killed. The State presented
A-0133-22 4 expert testimony from Special FBI Agent John Hauger in support of that
contention. Hauger was a member of the FBI's Cellular Analysis Survey Team
("CAST"). He testified that, as a member of CAST, he used Sprint's per call
measurement data ("PCMD")1 to "locate a phone in real time" and to "give a
general geographic area as to where [a] phone was."
Hauger testified that PCMD yielded information about the tower sector in
which a cell phone was located. It generated that tracking information by
applying a proprietary formula for calculating "how far a phone is from [a]
tower." Hauger acknowledged that Sprint issued a disclaimer about PCMD
records, which advised that "they're not vouching for the accuracy of the
information contained in it."
The State also introduced two out-of-court statements: one from a friend
of defendant and another from his paramour. Both statements indicated that
defendant had participated in the homicide. The first such statement was by
Ordale Telfair. Detective James Riley testified that on August 21, 2015, the
Bridgeton Police Department contacted him and told him that Telfair wanted to
1 According to Hauger's trial testimony, PCMD is "a separate system that the Sprint engineers use to optimize their network to troubleshoot different complaints that a customer may have. Basically[,] what it shows is the tower that a phone uses and the estimated distance that the phone was from the tower." A-0133-22 5 provide information about Butler's shooting. Telfair was at the police station
because he had been arrested on an outstanding warrant. Riley went to the
station and interviewed Telfair. Riley testified that he did not make any
promises to Telfair to make his statement.
In a recording of the interview played for the jury, Telfair told Riley that
on the night of the crime Butler, known to him as "Smash," had dropped off a
man named "Che" while Telfair was at the Bridgeton Villas apartment complex.
Telfair stated he then got into the car with Butler and they drove to a
convenience store. According to Telfair, while at the store, he saw a "smoke
gray color Impala," and Butler, who had also seen the Impala, asked him who
was in the vehicle. Telfair told Butler that he did not know. He then left Butler
and walked back to the apartment complex, where he heard Butler's voice talking
over Che's speaker phone. Shortly thereafter, Telfair heard gunshots over the
phone.
Telfair recounted that defendant had called later in the day looking for a
man named Shumar Cotto, whom Telfair was with at the time, and that defendant
had asked for ".40 and [.]9 bullets." Telfair explained to Riley that defendant
did not provide any context for his statement, but that Telfair had deduced it was
in relation to Butler's shooting. Telfair stated he brought defendant the
A-0133-22 6 requested bullets. Telfair also told Riley that defendant made comments about
"head shots," which Telfair suggested meant "I don't miss."
Contrary to his police interview, Telfair testified at trial that he had not
talked to Butler or Che on the night Butler was killed and that he had not met
defendant. Telfair claimed he had lied to the police "because that's what they
wanted to hear." He alleged that police officers "had it out for [defendant]. They
kept asking me different questions about him and kept threatening me with fake
charges." Telfair claimed he had been harassed by officers several times.
The second hearsay declarant was Erica Jackson, defendant's paramour at
the time of Butler's death. On March 29, 2016, Detective Riley and State Police
Sergeant Glenn Garrells interviewed Jackson, after asking her if she would come
to the station with them.
In the video recording of her interview presented to the jury, Jackson
stated that defendant had called her crying on the night of Butler's shooting and
told her he had "so much revenge . . . in his mind," and that "everyone was
against him." She also told Riley and Garrells that defendant often talked about
how "[h]e was going to put a .40 [caliber bullet] in somebody." Jackson further
stated that she had heard information that suggested that defendant killed Butler
and "that the cops traced all the stuff down to [defendant]. They found the gun.
A-0133-22 7 They had his phone. They [had] see[n] him on camera going through the light.
They had the girl['s] car." Jackson did not reveal the source of this information.
At trial, Jackson testified she did not recall anything that she had told
detectives in her recorded interview, including her conversation with defendant
after Butler's death. She claimed, for the first time, that she had problems with
memory loss due to medicine she took to manage her mental health.
In addition, the State presented video evidence that showed a red vehicle
in pursuit of Butler's minivan before shots were fired. The State also moved
into evidence several photos of the scene after Butler's shooting. Among other
things, the photos depicted the following: a blown-out middle window on the
driver's side of the minivan, a bullet hole entry near the driver's side rear wheel,
a trajectory rod in the driver's side rear tire, a trajectory rod in the passenger side
rear tire, bullet entries in the rear passenger side of the vehicle, and a bullet
strike through the driver's side headrest.
The jury acquitted defendant of murder and various gun possession
charges. However, the jury found him guilty of the lesser-included offense of
second-degree reckless manslaughter. The court imposed an extended term
twenty-year NERA sentence upon defendant, a persistent offender.
This appeal followed.
A-0133-22 8 II.
We address the issues on appeal by first discussing the two points that
defense counsel chose to focus on during the appellate oral argument: (1) the
jury instruction that the trial court issued, sua sponte, on manslaughter; and (2)
the admission of Special Agent Hauger's expert testimony on cell tower analysis.
A.
Defendant contends the trial court erred by instructing the jury on the
lesser-included offenses of aggravated 2 and reckless manslaughter. We reject
his contention and, in fact, commend the trial judge for including this jury
charge, sua sponte, based on the evidence that emerged at trial.
The applicable law is well-established. As our Supreme Court has
repeatedly made clear, "[j]ury instructions for lesser-included offenses are
reviewed under a standard that examines whether 'a rational basis' exists 'for a
jury to acquit the defendant of the greater offense as well as to convict the
defendant of the lesser, unindicted offense.'" State v. Fowler, 239 N.J. 171, 187–
88 (2019) (quoting State v. Funderburg, 225 N.J. 66, 81 (2016)). Furthermore,
if, as here, "the parties do not request a lesser-included-offense charge,
2 The jury did not convict defendant of the aggravated form of manslaughter, instead choosing to find him guilty of reckless manslaughter.
A-0133-22 9 reviewing courts 'apply a higher standard, requiring the unrequested charge to
be "clearly indicated" from the record.'" Id. at 188 (quoting State v. Alexander,
233 N.J. 132, 143 (2018)).
A trial judge "has an independent obligation to instruct on clearly
indicated lesser-included offenses even if the defendant objects." State v.
Simms, 369 N.J. Super. 466, 471 (App. Div. 2004) (citing State v. Jenkins, 178
N.J. 347, 361 (2004)). In applying this "clearly indicated" standard, "the court
must not consider 'the credibility of the witnesses' or the 'worth' of the evidence;
rather, it must look only to the 'existence of evidence to support the lesser
included offense [charge].'" State v. Canfield, 252 N.J. 497, 501 (2023)
(alteration in original) (quoting State v. Canfield, 470 N.J. Super. 234, 289 (App.
Div. 2022)). As it is often said, the court must give a jury charge sua sponte
when the evidence to justify that charge is "jumping off the page." Ibid. (quoting
Funderburg, 225 N.J. at 81–82); see also State v. Denofa, 187 N.J. 24, 42 (2006).
A related principle is that our appellate courts will not overturn
convictions founded on jury instructions that were objected to and given at trial
if the instructions amounted to harmless error. State v. Cooper, 256 N.J. 593,
607 (2024). "To show that an error was not harmless, the proponent of the
objection must establish 'some degree of possibility that [the error] led to an
A-0133-22 10 unjust result.'" Id. at 607–08 (alteration in original) (quoting State v. Baum, 224
N.J. 147, 159 (2016)). "The possibility must be real, one sufficient to raise a
reasonable doubt as to whether [the error] led the jury to a verdict it otherwise
might not have reached." Id. at 608 (alteration in original) (quoting State v.
Lazo, 209 N.J. 9, 26 (2012)).
Here, both defense counsel and the prosecutor objected at the charge
conference to the court's proposed instructions on aggravated and reckless
manslaughter as lesser-included offenses to murder. Despite their objections,
the court issued those manslaughter instructions after determining the need for
them. In justifying its decision, the court referenced the testimony of the
victim's passenger describing the shots that had been fired, the location of the
bullet strikes in the lower portion of the minivan, and the delay in shooting while
the perpetrators pursued the vehicle.
The passenger's testimony recounted that the red car following her and
Butler had pursued them for some time before shots eventually were fired from
that direction and killed Butler. Although the exact amount of time she and
Butler were followed by the red car is unclear, the passenger testified that Butler
circled the same block at least three times after realizing they were being
followed before attempting to speed away from it. Her testimony, coupled with
A-0133-22 11 the photos of gunshots aimed toward the lower portion of the car, reasonably
supported an inference that the shooter's intent could have been not to kill Butler
but to disable the vehicle. The judge reasoned that because these pieces of
evidence raised questions in his own mind as to the intent of the shooting, they
would likely raise questions in the jurors' minds as well.
We concur with the trial judge that the record contained evidence that
"clearly indicated" and supported a jury finding of either aggravated or reckless
manslaughter within the meaning of the applicable statutes. A person commits
the crime of reckless manslaughter when that person recklessly causes death—
that is, "'consciously disregard[s] a substantial and unjustifiable risk' that death
'will result from his conduct.'" State v. Curtis, 195 N.J. Super. 354, 363–64
(quoting N.J.S.A. 2C:2-2(b)(3)); see also N.J.S.A. 2C:11-4(b)(1). Alternatively,
a homicide constitutes aggravated manslaughter if the defendant not only
"recklessly causes death" but does so "under circumstances manifesting extreme
indifference to human life." N.J.S.A. 2C:11-4(a)(1).
The State's proofs included evidence that showed the person or persons
responsible for Butler's death shot at the minivan multiple times at the lower
portion of the vehicle. The video evidence corroborated the passenger's
testimony that the red car followed behind Butler's minivan for some time before
A-0133-22 12 shots were fired. This delay in pursuing the minivan without firing shots might
have caused the jury to conclude the necessary intent to kill required for first-
degree murder, N.J.S.A. 2C:11-3, was not present and that the shooter instead
had a less culpable state of mind.
We are satisfied that evidence supporting the lesser-included
manslaughter offenses "jump[ed] off the page" to an extent that the unrequested
charges were "clearly indicated." Canfield, 252 N.J. at 501. As the trial court
reasoned, a juror could logically conclude, based on the video evidence of the
drawn-out pursuit and photo exhibits of the trajectory rods in Butler's vehicle,
that defendant intended only to disable the vehicle rather than kill Butler, but
that his actions in engaging in this violent pursuit were nonetheless reckless,
N.J.S.A. 2C:11-4(b)(1), and perhaps even performed "under circumstances
manifesting extreme indifference to human life," N.J.S.A. 2C:11-4(a)(1)
(defining aggravated manslaughter).
We are mindful of defense counsel's assertion to us at the appellate oral
argument that this indictment was tried by counsel "as a murder case." Although
a murder conviction was the State's main goal, there was ample evidence here
for the jury to acquit defendant of murder and instead find him guilty of either
aggravated or reckless manslaughter. The court did not err in giving those
A-0133-22 13 lesser-included charges. The court rightly disallowed the "all-or-nothing"
strategies of counsel on the murder count. Cf. Jenkins, 178 N.J. at 364
(sustaining reversal of murder conviction because of the trial court's failure to
instruct the jury properly on lesser-included offenses, thereby leaving the jury
with an "all-or-nothing" situation).
Furthermore, given the nature and quantum of the evidence presented at
trial, even if hypothetically there was error, defendant has failed to establish that
the jury charge led to an unjust result. R. 2:10-2. We therefore affirm the judge's
charging decision and sustain the verdict on the lesser-included offense of
reckless manslaughter.
B.
Defendant argues the trial court erred in admitting Agent Hauger's expert
testimony on both procedural and substantive grounds. Procedurally, he
contends the State designated Hauger as an expert and served his report too late,
on the cusp of the trial. Substantively, he contends the expert's testimony was
inadmissible because it made unwarranted inferences about the location of his
cell phone, and relied upon data that Sprint does not vouch for as reliable for
litigation purposes. We are unpersuaded by these contentions.
A-0133-22 14 The short notice the State provided in designating Hauger as its expert
was justified in the unique circumstances presented. The applicable rules of
criminal discovery are as follows.
With regard to the timeliness of expert testimony submissions, Rule 3:13-
3(b)(1)(I) provides that
names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except as otherwise provided in R. 3:10- 3, if this information is not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial . . . .
In applying these time limits, preclusion of expert testimony for failure to
comply with discovery obligations is a "drastic remedy" that "should be applied
only after other alternatives are fully explored." State v. Mauro, 476 N.J. Super.
134, 149 (App. Div. 2023). Factors weighing against preclusion include "(1)
the absence of any design to mislead, (2) the absence of the element of surprise
if the evidence is admitted and (3) the absence of prejudice which would result
from the admission of evidence." State v. LaBrutto, 114 N.J. 187, 205 (quoting
Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985)).
A-0133-22 15 Moreover, Rule 3:10-3(a) provides an exception to the deadline above,
stating that if the
expert witness did not conduct, supervise, or participate in a scientific or other such test about which he or she will testify, the State shall serve written notice upon the defendant and counsel of intent to call that witness, along with a proffer of such testimony, all reports pertaining to such testimony, and any underlying tests, at least 20 days before the pretrial proceeding begins, or at least 20 days before the pretrial conference. If extenuating circumstances exist, the state may file the notice after this deadline. For purposes of this rule the term "test" shall include any test, demonstration, forensic analysis or other type of expert examination.
We review a trial court's decision whether to permit the expert testimony
only for an abuse of discretion. Mauro, 476 N.J. Super. at 150 (citing State v.
Stein, 225 N.J. 582, 593 (2016)). No such abuse of discretion occurred here.
The pertinent chronology is as follows. The State first submitted an expert
report on PCMD data in 2019, which entailed plotting specific locations on a
map meant to reflect the whereabouts of defendant's cell phone at certain critical
times, and defendant submitted a responsive report from his own expert.
However, just a few months before trial, this court in March 2022 in State v.
Burney, 471 N.J. Super. 297 (App. Div. 2022), rev'd, 255 N.J. 1 (2023) ("Burney
A-0133-22 16 I"),3 provided guidance on this sort of expert testimony. Burney addressed a
challenge to the admission of testimony by an FBI agent regarding cell-site
analysis data. Our opinion held that such evidence was admissible, but for the
limited purpose of giving a general approximation of a phone's location as
opposed to a pinpoint location. Id. at 323.
In the short time left ahead of trial after we issued our opinion in Burney,
the prosecution concluded that testimony pursuant to the existing expert's report
would not comply with this precedent. Consequently, the State obtained a new
report, this time from Hauger, using the cell tower data to estimate more
approximate locations, but was not able to submit it until days before jury
selection.
Defendant moved to exclude Hauger's testimony based on untimeliness.
The trial court denied the motion. The court made clear at the outset that it
intended to "more closely" follow Rule 3:10-3 than Rule 3:13-3, apparently on
the notion that Hauger would not be testifying regarding any "test" he had
himself conducted. In any event, the court observed that even Rule 3:13-3 did
not mandate exclusion for a violation of the deadline. It concluded extenuating
circumstances justified the late production because the new report was required
3 We discuss the implications of the Supreme Court's opinion in Burney, infra. A-0133-22 17 to comply with our opinion in Burney, which, as a practical matter, was not
issued until this case had already been on the trial list.
The trial court reasoned further that defendant already had an expert who
had opined as to the reliability of PCMD and would be given time to respond to
Hauger's report as well. Given the time constraints, the court concluded it would
be appropriate to permit the defense to give a less formal response at trial ,
instead of a written response to the State's new expert opinion.
Defendant argues the court's decision to permit Hauger's testimony,
despite the State's noncompliance with the time frames of Rule 3:13-3(b)(1)(I),
resulted in a denial of justice. Defendant claims that he was prejudiced by the
late submission because his counsel had only a little over a week to consult with
his own expert witness to rebut the State's late-submitted expert opinion.
We discern no abuse of discretion by the trial court in its balanced and
sensible handling of this discovery matter. The court's decision to allow the
State to comply with our opinion in Burney did not rest on an impermissible
basis, nor was it devoid of a rational explanation. The court fairly allowed the
defense time to communicate with its expert, who had already given his opinion
on PCMD, and relaxed the defendant's discovery obligations by allowing a
A-0133-22 18 proffer response to Hauger's report instead of a formal updated defense expert
report.
In sum, Hauger's testimony justifiably was not excluded on procedural
grounds. The court handled a difficult and unanticipated situation in an
equitable manner to accommodate the search for the truth. N.J.R.E. 102.
We next consider defendant's substantive argument asserting that
Hauger's expert testimony was unreliable.
As we noted above, Hauger testified as to how he and his team analyzed
the PCMD record that Sprint had provided to determine the general location of
where a phone had been. He frankly acknowledged that the PCMD was "not
100 percent accurate." Even so, he testified that the FBI was able to locate
missing persons using PCMD to determine "how far away from [a] tower [a]
phone [is] measuring"; Hauger referred to this range as an arc. He stated that
once able to identify a tower being used by an individual's phone, he could use
his investigative skills to locate missing persons based on PCMD. He testified
further that he had used PCMD to locate persons "a couple hundred times"
through different carriers and "a little over a hundred times" using PCMD data
specifically from Sprint. The methodology used to analyze PCMD, Hauger
A-0133-22 19 testified, was reproducible and could be verified for accuracy by other CAST
members.
The court denied defendant's motion to bar Hauger's expert testimony
after reasoning that PCMD was an optimization tool that the provider, Sprint,
had an interest in making as accurate as possible for the purposes of ensuring
reliable and efficient coverage. It reasoned that "[f]or the purposes of analysis,
the data does not need to be perfect" and that
while the data relied upon is clearly, as testified to, not perfect data, his analysis is also not exact. He puts in a range, not a pinpoint spot, so it is not inherently misleading either. He is demonstrating that there is a level of inconsistency or interpretive range within each of these readings.
The court found that it was up to the jury "to consider how good the information
is that the expert is relying upon" and that the expert testimony did not overstate
its accuracy. Accordingly, the court determined that Hauger's expert testimony
had satisfied the "general acceptance" standard of reliability of Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), which was then applicable in New Jersey
criminal cases.4
4 See State v. Olenowksi, 253 N.J. 133, 139 (2023) (prospectively adopting in New Jersey criminal cases the multi-factor "Daubert" standard for assessing the reliability of an expert's methodology). A-0133-22 20 On appeal, defendant argues the court erred in admitting Hauger's expert
testimony because the cell data analysis was not shown to be reliable enough to
satisfy N.J.R.E. 702. At oral argument on the appeal, defense counsel clarified
that defendant is not categorically arguing that PCMD cell tower analyses are
inadmissible under Frye. Instead, defendant maintains that the particular steps
that Hauger followed in applying that methodology did not justify presenting his
opinion to the jury about the whereabouts of defendant's cell phone at the time
of the shooting. The State contends the trial court's decision to permit Hauger's
testimony is consistent with case law admitting other PCMD experts, and it was
not an abuse of discretion. State v. Rosales, 202 N.J. 549, 562–63 (2010)
(applying an abuse of discretion scope of appellate review to pre-Olenowski
criminal cases).
Our analysis of this issue is substantially guided by the Supreme Court's
opinion in State v. Burney, 255 N.J. 1, 21–25 (2023) ("Burney II"). In the
Burney case, the State's expert witness, a different FBI agent presented
testimony based on historical cell-site data analysis "for the limited purpose of
providing a general approximation of defendant's geographical location at the
time of the robbery." Burney I, 471 N.J. Super. at 308. This included testimony
about the coverage area of a specific cell tower sector where the defendant's cell
A-0133-22 21 phone allegedly "pinged" or connected with the tower upon receiving a text
message at a specific time on the night of the robbery. Id. at 320.
The agent in Burney testified that on the night of the robbery, a text
message caused defendant's phone to connect with a cell tower sector directed
toward the site of the robbery, suggesting that the defendant was likely within
one mile of the robbery location at the time it occurred. Id. at 308. The expert
stated that the cell tower sector communicating with defendant's phone when he
received the text message in question "had an approximate one-mile radius area
that either covered or came very close to the victims' home . . . ." Id. at 320.
According to the agent in Burney, he used information that Sprint
provided, call detail records and PCMD, to create maps that depicted the towers
that the defendant's phone had connected to on the night of the robbery. Burney
II, 255 N.J. at 12. After plotting the cell towers onto the maps, the expert drew
two lines from them that resembled 120-degree pie-shaped wedges extending
from the cell tower's pinged sectors. Ibid. The agent then testified that each of
the lines he had drawn had an approximate length of one mile and that the space
between the lines was the coverage area of the tower sector. Ibid. When asked
how he had determined the length of the lines, the expert testified that
the length that was used for these arms is, again, an estimate and these are one mile, which is a rule of
A-0133-22 22 thumb for this particular technology and this particular frequency in this particular area. So just based on my training and experience, one mile is a good estimate of the tower range for Sprint in this area.
[Ibid. (emphasis added in part and omitted in part).]
Based on this information, the agent in Burney opined that the defendant's cell
phone connected with a cell tower sector that encompassed the crime scene.
Ibid. On appeal, this court upheld the admission of the expert's testimony in
Burney I, with the caveat that the expert should be confined to a "general
approximation" of the defendant's location. Burney I, 471 N.J. Super. at 320.
The Supreme Court reversed our decision, holding that the expert's
testimony about his "rule of thumb"—which estimated a one-mile radius
coverage range for a cell tower in locating a phone—was a net opinion that
lacked factual support. Burney II, 255 N.J. at 25. In this regard, the Court noted:
Special Agent David did not testify that such approximation 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. Additionally, Special Agent David candidly admitted that he did not review the height of the Parkway 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 on December 25. Special Agent David similarly did not perform any tests of the Parkway Tower's area of signal coverage.
A-0133-22 23 [Id. at 24–25.]
The Court was clear that not all of these factors were required to make
testimony on PCMD admissible. Id. at 25. Instead, the expert's testimony there
was inadmissible because he did not testify to anything other than his own
personal experience. The Court further implied that the expert overstated the
reliability of the data when the agent "emphasized to the jury that it was 'highly,
highly unlike[ly]' that the [tower] did not cover the crime scene based on the
tower's approximated coverage distance." Id. at 15 (first alteration in original).
The Court also noted that, in its closing statement, the State highlighted that the
expert's testimony was the most credible of all the witness testimonies. Id. at
29–30.
The present case is distinguishable from Burney. Agent Hauger did not
present any "rule of thumb" to the jury. Instead, Hauger testified that
defendant's phone appeared to have passed through one or more the ranges
connected to the tower, without himself suggesting a probable distance.
Hauger's testimony also materially differs from the expert in Burney in
that his analysis was not based solely on personal experience; rather it was
grounded in a methodology that was demonstrated to be reliable among others
in his field. See Townsend v. Pierre, 221 N.J. 36, 53 (2015). He explained in
A-0133-22 24 detail the process he used to map the towers using PCMD, stating that these
maps provide a general approximation for locating phones. He also testified
that previous efforts to locate missing individuals and fugitives using the same
mapping methodology based on PCMD yielded accurate results, often placing
agents within a few feet of their intended targets, further demonstrating the
reliability of the methodology. See id. at 55 (citing Landrigan v. Celotex Corp.,
127 N.J. 404, 417 (1992)). This is fundamentally different from relying on an
unsupported personal assumption about a tower's coverage range. Additionally,
Hauger did not testify to any coverage range for the tower sectors based on the
maps he had generated; when he did provide an estimated distance, they were
directly from the PCMD records from Sprint.
Hauger's testimony also responsibly emphasized the limitations of the data
he used, explaining that the Sprint data had inaccuracies, and reiterating that the
maps generated from the PCMD could only offer general locations. His repeated
acknowledgement of these limitations further distinguishes his testimony from
the net opinion found in Burney II.
Notably, our Supreme Court in Burney II did not reject the reliability of
expert testimony based on historical cell tower analyses. Burney II, 255 N.J. at
21–22. In fact, the Court acknowledged that, "[a]cross the nation, state and
A-0133-22 25 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." Ibid.
The Court cited to an opinion of the Seventh Circuit Court of Appeals that
upheld the admissibility of testimony based on historical cell-site analysis,
because the testimony included explanations about the limitations of the data.
Id. at 21–22 (citing United States v. Hill, 818 F.3d 289, 299 (7th Cir. 2016)).
In Hill, the Seventh Circuit held that testimony on historical cell-site
analysis was admissible, where the expert disclaimed the ability to pinpoint a
defendant's phone's exact location and described the limitations of the analysis.
818 F.3d at 299. The defendant in Hill, appealing a conviction of several
offenses related to robbery, argued that the expert testimony about historical
cell-site analysis did not meet the requirements for reliability outlined in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589. Id. at 295.
The expert testified that he used cell-site analysis to determine that the
defendant's phone had been in the general vicinity of the crime scene on the day
of the robbery. Id. at 298. The court found that the expert's analysis was
sufficiently reliable to show that a phone was in a general area and not a pinpoint
location. Id. at 299. In fact, the court was most concerned "that the jury may
overestimate the quality of the information provided by this analysis"; thus it
A-0133-22 26 "caution[ed] the government not to present historical cell-site evidence without
clearly indicating the level of precision—or imprecision—with which that
particular evidence pinpoints a person's location at a given time." Ibid. The
Court of Appeals concluded that "[t]he admission of historical cell-site evidence
that overpromises on the technique's precision—or fails to account adequately
for its potential flaws—may well be an abuse of discretion." Ibid.
Agent Hauger's expert testimony in this case aligns with the principles
expressed in Hill. Hauger did not opine on the exact location of defendant's
phone. He explained to the jury the limitations of the PCMD information as
well as its proven utility in locating missing persons. He did not overstate the
significance of his analysis. In sum, the trial court did not abuse its discretion
in concluding the expert testimony was sufficiently reliable and helpful to the
jurors to pass muster under N.J.R.E. 702.
Defendant's claim that he was unduly prejudiced by Hauger's expert
opinions is unpersuasive. Unlike the State's closing argument in Burney, the
prosecutor in this case carefully refrained in summation from overstating the
probity of Hauger's opinions. The prosecutor acknowledged that the
methodology "is not perfect" and made clear that the State was not relying on
Hauger's testimony to establish defendant's distance from the cell tower. At
A-0133-22 27 most, the summation focused on how Hauger's testimony showed defendant's
movements between pie-shaped sectors of the cell tower at relevant times. That
focus on movement distinguishes the present case from Burney. The expert
testimony and the closing argument, considered in combination, were not
"clearly capable of producing an unjust result." R. 2:10-2.
For these reasons, we affirm the admission of Agent Hauger's expert
testimony and reject defendant's procedural and substantive arguments.
III.
Defendant's remaining arguments are likewise unavailing.
We reject defendant's challenge to the trial court's admission of the
incriminating hearsay statements of Telfair and Jackson. The statements, both
made under oath, were admitted for their truth as prior inconsistent statements
under N.J.R.E. 803(a)(1). The trial court appropriately conducted admissibility
hearings regarding the statements in accordance with State v. Gross, 216 N.J.
Super. 98, 109–10 (App. Div. 1987) (enumerating numerous factors bearing on
admissibility under the hearsay exception), aff'd, 121 N.J. 1 (1990). We concur
with and incorporate by reference here the trial court's sound application of the
Gross factors. Although both Telfair and Jackson arguably had reasons to be
biased, inaccurate, or otherwise lacking in credibility in their police interviews,
A-0133-22 28 the defense capably sought to impeach those witnesses through cross-
examination. We discern no abuse of discretion in the court's evidentiary rulings
as to both witnesses. State v. Garcia, 245 N.J. 412, 430 (2021).
Defendant's claim that the verdict was against the weight of the evidence
is without merit. The State presented ample evidence that jurors could
reasonably conclude was sufficient to establish beyond a reasonable doubt
defendant's commission of reckless manslaughter. State v. Reyes, 50 N.J. 454,
458–59 (1967). The court appropriately denied defendant's motion for judgment
of acquittal under Rule 3:18-1. Defendant points out inconsistency within the
jury's verdict acquitting him of the weapons possession charges but convicting
him of recklessly shooting Butler. However, such inconsistency is permissible
under our case law where, as here, there is sufficient evidence to support the
guilty verdict that was rendered on the manslaughter count. State v. Banko, 182
N.J. 44, 46 (2004).
Defendant's allegation of prosecutorial misconduct in the State's grand
jury presentation concerning the timing of the cell phone texts, a point which
was not raised below, is foreclosed by the petit jury's guilty verdict. United
States v. Mechanik, 475 U.S. 66, 72–73 (1986).
A-0133-22 29 The extended-term sentence imposed on defendant for this second-degree
offense was authorized because of his criminal record that qualifies him as a
persistent offender under N.J.S.A. 2C:44-3(a). His prior offenses, which
included two indictable convictions and a federal conviction, were significant,
and not, as defendant's brief characterizes them, a mere "criminal spell." The
trial court did not misapply its wide sentencing discretion and reasonably
weighed the three aggravating factors and the sole mitigating factor of
restitution. State v. Case, 220 N.J. 49, 65 (2014).
To the extent that we have not mentioned them, all other points raised by
defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
A-0133-22 30