STATE OF NEW JERSEY v. JEFFREY HOLLAND (16-07-2123 AND 16-07-2129, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3299-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY HOLLAND, a/k/a
JEFFREY R. HOLLAND,
Defendant-Appellant.
__________________________
Submitted January 12, 2022 – Decided February 14, 2022
Before Judges Hoffman, Whipple and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos: 16-07-2123
and 16-07-2129.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jeffrey Holland appeals his conviction for three first-degree
murders and related charges, and his sentence, which included multiple
consecutive terms, yielding an aggregate sentence of 180 years with 158 years
of parole ineligibility. He also appeals from an order that denied his motion to
sever counts eight through fourteen of Indictment No. 16-07-2123. We affirm
defendant's conviction but remand for resentencing of certain counts.
Defendant was accused of the murders of Tiniquah Rouse, Ashley Jones,
and Jarrell Marshall. Investigators believed the murders were connected
because both Rouse and Jones were previously sexually involved with
defendant, and Marshall was Jones's new boyfriend. In addition, investigators
believed that surveillance footage recovered at both crime scenes showed
defendant wearing similar clothing.
I.
On January 29, 2016, Rouse was murdered in her apartment in Newark.
Harold McSwain, a neighbor, saw Rouse's door was open, noticed water was
running, found her body in the bathtub, and called 911.
Upon their arrival, police found Rouse's naked, slightly contorted body on
the floor. The bathroom floor and hallway were covered in water, and the tub
A-3299-18
2
was partially filled. A hair curling iron was inserted in Rouse's vagina and anus.
Detective Christopher Brown found Rouse's infant son in the bedroom closet
underneath some clothes.
Rouse did not have a pulse when EMS arrived and was pronounced dead
at the hospital at approximately 12:18 a.m. An autopsy determined the cause of
death as compression to the neck and drowning. No viable fingerprints of the
perpetrator were discovered in the apartment.
Defendant testified on his own behalf about his version of the events. He
explained that he and Rouse had a "sexual relationship" but did not consider
each other boyfriend and girlfriend. He also had a sexual relationship with
Saleemah Anderson, Rouse's roommate and cousin. On the day of the incident,
defendant was bored and "wanted to have a good time." He texted Anderson
and went to Rouse's apartment, arriving at approximately 5:00 p.m. Anderson
was not home. The two engaged in sexual activity "the way [they] normally do"
in Rouse's bedroom. According to defendant, Rouse "likes to be choked and
tied up and spit on and stuff of that sort." The two engaged in sexual activity
again, at which time defendant choked Rouse. Defendant testified that he found
a brown wire and asked if Rouse wanted him to use it, and she agreed. The
A-3299-18
3
judge sustained objections from the prosecutor about anything Rouse said that
night. Defendant further testified:
I choked her. I proceeded to choke her harder at
her request. In the process of having sex, . . . she's like
making like this arching like movement. And it didn't
really cause me like no concern because I just figured
she was having an orgasm and it wasn't unusual for her
to move in that manner when she [would] have
orgasms. So after I ejaculated and . . . got [up] from on
top of her, I noticed . . . she wasn't moving. She still
didn't get up. She wasn't saying anything. And I kind
of heard this gurgling noise . . . . That's when I became
concerned. I went to her, I tried to get the restraints off
her hand, I couldn't. I ran to the kitchen, grabbed a
knife out the sink and cut it off.
Defendant stated he then took Rouse to the bathroom and tried to resuscitate
her. He testified that he "completely panicked" and wiped down everything in
the apartment that he had touched. Defendant also took everything off the bed
and put it into a suitcase, including the used sheets, blankets, and sex toys. He
tried washing out her vagina with soap from the bathroom, and then found a
curling iron under her sink. He inserted one part of it into her vagina and th e
other into her anus and turned the iron on to destroy his DNA.
Defendant then wrapped the baby, who had previously been on the bed, in
a blanket and placed him inside of the bedroom closet. He stated that he turned
the water on in the bathtub so that it would flood the apartment and alert
A-3299-18
4
someone to come find the baby. Defendant left the apartment unlocked and
discarded the suitcase in a dumpster. He then returned to the apartment because
he realized he left a bottle of soda there, which may have had his DNA on it.
After that, he returned home at around 11:00 p.m., where he lives with his father
and brother. Defendant admitted that it was him in the surveillance video going
in and out of Rouse's apartment with the suitcase, wearing a black Northface
jacket, jeans, and gray shoes.
Officers recovered the suitcase, which contained an air mattress pump,
lotion, a sex toy, clothing, and a receipt, which were all Rouse's belongings.
Police also found electrical cords, one with a long hair in it, and a serrated steak
knife in the suitcase. Police could not find Rouse's phone, but cell tower records
showed it was near defendant's home in East Orange on January 29 after Rouse
was already dead.
Defendant claimed he woke up around 9:00 a.m. the following day and left
his home wearing red sneakers, a red sweatshirt, green cargo pants, and carrying
a blue backpack that contained his Northface jacket. He discarded the jacket in
a trash chute in a nearby building. Defendant claims he spent the rest of the day
with his brother. That night, he returned to Rouse's apartment building to see if
there was a police presence.
A-3299-18
5
The trial court found that the video surveillance footage recovered from the
interior and exterior of the building revealed:
• 5:08 p.m. An individual with long dreadlocks, ripped jeans with the
left black pocket sticking out of the rip of the left jean legs, rips on
the right jean leg, a black Northface jacket, a hat, and a mask over
his mouth, walked to [Rouse's apartment building].
• 5:12 p.m. An unknown person lets the individual into the building
and the individual is seen walking to the stairwell.
• 5:13 p.m. The individual is now seen on the fourth floor of the
building. The individual walks to and then waits outside [Rouse's
apartment].
• 5:16 p.m. The individual is let in. No one is seen entering or exiting
[Rouse's apartment] until almost [seven] hours later.
• 11:00 p.m. The individual that entered earlier now leaves wearing
the same clothes. However, this time, the individual has a red glove
on his left hand holding a suitcase and a white cloth in his right
hand. The individual is then observed pulling the suitcase and
proceeding down the stairwell and into the vestibule area in front of
entrance of [the building]. The individual then exits the apartment
building with the suitcase.
• 11:14 p.m. The individual returns to the apartment building . . .
wearing the same clothes.
• 11:15 p.m. While inside the vestibule, the individual pulls up his
mouth mask and goes to the stairs and up to the fourth floor. As he
walks past the fourth floor camera, he is observed with the same
clothes, but the mask is now on and he is putting on red gloves. He
then enters [Rouse's apartment] without delay.
A-3299-18
6
• 11:18 p.m. The individual is still wearing the same clothes, but he
is now holding a green bottle and his dreadlocks are tucked into his
Northface jacket.
• 11:19 p.m. The individual leaves [the apartment] and exits the
apartment building.
• 11:42 p.m. McSwain, riding his bike, arrives at [the building].
• 11:44 p.m. McSwain walks down the fourth-floor hallway and
enters [Rouse's apartment].
• 12:09 p.m. McSwain is seen opening [the] building for police and
EMS.
• 12:21 p.m. EMS is observed carrying a swaddled baby out of [the
apartment].
Saleemah Anderson knew defendant as "Rodrese," – defendant's middle
name. On January 31, Anderson identified defendant on surveillance footage.
She also identified him in the courtroom. Anderson identified the suitcase as
Rouse's.
Defendant was previously in a sexual relationship with Jones. They have
two children together. They previously lived together, until she received
housing assistance and moved.
During the evening of January 30, 2016, police reported to Jones's
apartment in response to a report of a shooting. A neighbor called 911 after
hearing gunshots coming from the apartment. Jones and Marshall were found
A-3299-18
7
dead in the apartment. Police found three children in the apartment crying in
the bedroom where Jones and Marshall lay dead. Jones was holding one of the
children. Two of the children were defendant's biological children, the other
was Marshall's child with another woman.
The door to the apartment was kicked in and nearly off its hinges. Seven
shell casings were found near Marshall, and there were bullet holes in the
window and near where Jones lay. Autopsies revealed that Jones had two
gunshot wounds to the head, and Marshall had multiple gunshot wounds to the
neck, torso, arms, and legs. The medical examiner found Jones's cause of death
was the gunshot wound to the head and Marshall's was multiple gunshot wounds.
No fingerprints of the perpetrator were found at the scene.
Surveillance footage recovered from the building revealed:
• 8:14 p.m. An individual wearing green cargo pants, a red sweatshirt
with white strings and the hood over his head, a black Northface
jacket, red sneakers, and a red glove is observed going up the
stairwell at the apartment building.
• 8:20 p.m. The individual, wearing the same clothes, is observed
going down the stairwell.
Seven gunshots and a woman's scream can be heard on another
surveillance video. Jones and Marshall were fatally shot within minutes of each
other. An individual is then seen running away from the building.
A-3299-18
8
After receiving Miranda1 warnings and waiving those rights, defendant
was interviewed by detectives on January 31, 2016, at about 4:30 a.m. He
consented to detectives searching his cellphone. Defendant was held on several
unrelated arrest warrants.
The two incidents were initially investigated separately, but as the
investigations progressed, defendant became a suspect in all three murders.
Detective Anthony Lima noticed that the suspects in the three murders were
wearing similar clothing, their descriptions matched, and the suspect in the
surveillance videos resembled defendant. Investigators obtained search
warrants for defendant's residence, the clothing he wore on January 31, 2016,
and his person.
During the search of defendant's residence, detectives seized green cargo
pants, a black ski mask in the pants pocket, and red gloves. They also found
defendant's sneakers, his driver's license, documents belonging to Jones, a gun
holster, two handgun magazines, and nineteen live rounds of ammunition.
Defendant did not have a permit to carry a gun. They also recovered a key to
the front door of Jones's apartment and one of defendant's cellphones, which
showed text messages from Jones asking defendant to leave her alone. The text
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3299-18
9
messages include defendant stating, "I could have killed you three times" to
Jones, and that the only reason he did not kill Marshall was because he left his
gun at his house. He also texted her saying he would kick her door in, which is
exactly how officers found the door the night of the shooting. Defendant
testified that he was out of state when he sent that message and did not mean it,
he was "just harassing."
Investigators also recovered Facebook messages that defendant sent to
Dominique Street describing sexual acts Jones performed on him, along with the
message, "Nah dis b**ch just dirty. [I'm] just waiting on my moment to kill this
b**ch." He sent similarly vulgar messages to Jones' entire friend list on
Facebook. Detectives examined defendant's internet search history on his phone
and found that just hours before Rouse was killed, defendant searched "New
Jersey law on Murder" multiple times. On January 27, defendant searched where
to buy 0.40 caliber ammunition. Jones and Marshall were killed with 0.40
caliber ammunition.
He sent similar messages to one of Jones's friends, writing that he was
waiting for the go ahead to "kill him" (meaning Marshall), that the children
would be "better without" Jones and that he was "seriously thinking about
paying Dominque a visit." He also wrote: "the way I move I rather just eliminate
A-3299-18
10
both of them out of the picture"; "b**ch I’m senseless." "Just be patient and
watch my work." He also stated that Jones was terrified of him "because she
know[s] I'm ruthless."
On January 31, 2016, defendant emailed his father prior to speaking to
detectives, stating, "Dad I love [you with] all my heart if [you don't] hear from
me by tomorrow evening[,] I got locked up . . . ."
An Essex County grand jury returned three indictments against defendant.
Indictment No. 16-07-2123 charged defendant with first-degree murder of
Rouse, N.J.S.A. 2C:11-3(a)(1)-(2) (count one); two counts of third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts two and
thirteen); second-degree desecration of human remains, N.J.S.A. 2C:22-l(a)(2)
(count three); second-degree desecration of human remains, N.J.S.A. 2C:22-
l(a)(3) (count four); two counts of third-degree hindering apprehension or
prosecution, N.J.S.A. 2C:29-3(b)(l) (counts five and six); third-degree theft by
unlawful taking, N.J.S.A. 2C:20-3(a) (count seven); first-degree murder of
Jones, N.J.S.A. 2C:11-3(a)(1)-(2) (count eight); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b) (count nine); two counts
of second-degree unlawful possession of a weapon N.J.S.A. 2C:39-4(a) (counts
ten and twelve); first-degree murder of Marshall, N.J.S.A. 2C:11-3(a)(1)-(2)
A-3299-18
11
(count eleven); two counts of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (counts fourteen and fifteen); second-degree burglary,
N.J.S.A. 2C:18-2 (count sixteen); and first-degree felony murder, N.J.S.A.
2C:11-3(a)(3) (count seventeen).
Indictment No. 16-07-2129 charged defendant with second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b) (count one). Indictment No.
16-07-2128, which charged defendant with fourth-degree contempt of a
domestic violence restraining order, N.J.S.A. 2C:29-9(b), was dismissed by the
State following the verdict on the other indictments.
Defendant moved to sever counts eight to seventeen, contending that
joinder of the counts relating to the first and second incidents would be
prejudicial. The State argued that while the two incidents were different events
that happened at different times and locations, they eventually "became one
case," with the identity of Rouse's killer leading directly to the identity of Jones's
and Marshall's killer.
In his oral decision, the judge performed a Cofield2 analysis and
summarized the essential facts of both incidents that made them similar. He
noted the following physical evidence shared between the incidents: defendant's
2
State v. Cofield, 127 N.J. 328 (1992).
A-3299-18
12
distinctive dreadlocks, ripped jeans, Northface jacket, black face mask, red
gloves, hat, green cargo pants, and red sweatshirt. After outlining the evidence,
the court found that the two incidents were "so intertwined together that it would
be next to impossible to separate" them. The court also found that the possible
prejudice to defendant was outweighed by "the enormous probative value[.]"
In a written decision, the judge recounted the pertinent facts and applied
the applicable legal principles. Under the first prong of Cofield, whether the
evidence of another crime is relevant to a material issue which is genuinely
disputed, the court found that defendant's identity as the killer in both instances
was genuinely in dispute because defendant originally denied involvement in
either homicide. The evidence of identity proffered by the State showed that
killer of all three victims was wearing similar items of clothing outside their
homes. Some of that clothing was found in defendant's apartment. This
evidence would be used to prove his identity as the killer in both incidents.
Under the second Cofield prong, that the other bad acts evidence be "similar
in kind and reasonably close in time to the offense charged," the judge found
that the two incidents involved homicides and similar related offenses that
occurred within forty-eight hours of one another. Although the methods of
killing were different, the crimes were otherwise sufficiently similar.
A-3299-18
13
Under the third Cofield prong, whether the evidence of the misconduct is
clear and convincing, the judge found there was "substantial evidence
connecting [d]efendant" to all three homicides, noting:
The surveillance video on January 29, 2016 from
[the apartment building] where Rouse was killed,
shows the suspect who has long black dreadlocks,
ripped jeans with the left pock[et] sticking out of the rip
of the left jean leg with rips on the right leg, a black
half-mask, and red gloves. Defendant is shown on
surveillance video at [his residence] and is shown via
photographs taken of him at University Hospital and
surveillance video of him at the Essex County
Prosecutor's Office to have long black dreadlocks.
Defendant is shown via photographs taken of him at
University Hospital and surveillance video of him at the
Essex County Prosecutor's Office to have ripped jeans
with the left pock[et] sticking out out of the rip of the
left jean leg with rips on the right leg. Furthermore, a
search of [d]efendant's apartment . . . revealed a pair of
green cargo pants that contained a black half-mask and
red gloves.
The surveillance video on January 30, 2016 from
[Jones's apartment building], where Jones and Marshall
were killed, shows the suspect who has red gloves,
green cargo pants, a red sweatshirt with white strings,
and red sneakers. Defendant is seen on surveillance
footage that same day, two hours after the Jones-
Marshall homicide, entering his apartment . . . wearing
green cargo pants, a red sweatshirt with white strings,
and red sneakers. Furthermore, a search of
[d]efendant's apartment . . . revealed a pair of green
cargo pants that contained red gloves.
A-3299-18
14
Under the fourth Cofield prong, whether the probative value of the evidence
outweighs the prejudice to defendant, the judge found the highly probative value
of the evidence of the two homicides outweighed any prejudicial effect if the
offenses relating to the two incidents were tired together. He noted the female
victims had prior intimate relationships with defendant. In addition:
The two homicides took place within less than twenty-
four hours of each other. The victims were pronounced
dead by the same doctor and autopsied by the same
medical examiner. The suspect was wearing similar
clothes, which [d]efendant either was later also wearing
at some point or was found to be in possession of. The
investigations began within less than 24 hours of each
other and rapidly became intertwined due to the
similarities of the cases.
The judge further noted that while the murders were independent of each
other, they were part of a chain of events
that unfolded in a very short and rapid time span.
Trying the murders together does not establish
[d]efendant's propensity to commit crime nor would it
have "a probable capacity to divert the minds of the
jurors from a reasonable and fair evaluation' of the
issues in the case." Thus, the probative value of the
evidence is not outweighed by any prejudicial effect
and the fourth Cofield factor is satisfied.
[(Citations omitted).]
Based on these findings, the court concluded that "[e]vidence from both
homicides . . . would be admissible if the two homicides were tried
A-3299-18
15
independently." Therefore, "it would be improper to sever the two cases."
Accordingly, defendant's severance motion was denied.
The case proceeded to trial. The prosecutor repeatedly referred to defendant
as the person who killed Rouse, Jones, and Marshall. In his opening statement,
the prosecutor explained that evidence would show that defendant was the
person on the surveillance video entering Jones's apartment, even though the
identity of that individual was in dispute. When reviewing surveillance footage,
Lima and the prosecutor repeatedly used defendant's name when identifying who
was at Jones's apartment. Defendant did not object to the prosecutor's opening
statement or to Lima's testimony. Instead, defense counsel argued that there was
no one who was inside of the apartment that can say they saw defendant kill
Marshall or Jones and there was no "viable evidence that shows that [defendant]
was even there."
Without objection, FBI Special Agent John Hauger was admitted as the
State's expert in historical cell site analysis. He analyzed two of defendant's cell
phones.
Hauger testified that defendant's cellphones were near the crime scenes at
the time of each murder, first at Rouse's apartment, then at the dumpster, then
moving back to his residence in East Orange, and then at Jones's apartment.
A-3299-18
16
Hauger candidly acknowledged that he could not "tell you the exact spot a phone
was historically." He also acknowledged that he did not do a drive test, which
involves driving a cellphone up and down a street to see which tower it pings
off and how far the tower's reach extends. He explained, however, that the
cellphone chooses which tower to ping to, not the tower.
The jury found defendant guilty of all counts of Indictment Nos. 16-07-
2123 and the certain persons offense charged in Indictment No. 16-07-2129.
Defendant was sentenced on February 26, 2019. The judge asked defendant
if he wanted to allocute, but defendant declined. The judge described defendant
as "a total menace to society." It explained the brutality of the murders, and the
fact that defendant "show[ed] absolutely no remorse whatsoever." In sentencing
defendant, the judge indicated that he wanted to ensure the safety of public and
that defendant would "not hurt anyone else again by his sentence today."
The judge declined to find aggravating factor one, N.J.S.A. 2C:44-1(a)(1),
even though he found defendant's conduct was "heinous, cruel, and depraved."
On both indictments, the judge found aggravating factors three (the risk
defendant will reoffend), N.J.S.A. 2C:44-1(a)(3); six (the extent of defendant's
criminal record and the seriousness of the offenses committed), N.J.S.A. 2C:44-
1(a)(6); nine (the need for deterrence), N.J.S.A. 2C:44-1(a)(9); and fourteen (the
A-3299-18
17
offense involved an act of domestic violence), N.J.S.A. 2C:44-1(a)(14). The
court found no mitigating factors and was clearly convinced the aggravating
factors substantially outweighed the non-existent mitigating factors.
The judge explained that although there is a presumption of concurrent
sentences, under State v. Yarbough, 100 N.J. 627 (1985), and subsequent case
law, the presumption can be overridden if "the crimes and their objectives were
predominantly independent of one another, the crimes involve separate acts of
violence or threats of violence, the crimes were committed at different times or
separate places, [and consider] whether or not the crimes involve multiple
victims." The judge found that because the murders were separate acts of
violence, occurred on consecutive but separate dates, and there were three
separate victims, the murder sentences should run consecutive to each other.
For each of the three murders (counts one, eight, and eleven), defendant
received a sixty-year term, subject to the parole ineligibility and mandatory
parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2,
with counts eight and eleven running consecutively to each other and to count
one. Defendant received five-year concurrent terms on counts two, five, and
thirteen. On counts four, fourteen, and sixteen, he received concurrent ten -year
terms. On count nine, he received a ten-year term, subject to a five-year period
A-3299-18
18
of parole ineligibility. On count fifteen, defendant received a ten -year NERA
term. Counts three, six, seven, ten, twelve, and seventeen were merged for
sentencing purposes. On the certain persons count (Indictment No. 16-07-2129),
defendant was sentenced to a consecutive ten-year term, subject to a five-year
period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
This yielded an aggregate sentence of 190 years with 158 years of parole
ineligibility. This appeal followed.
Defendant raises the following points for our consideration.
POINT I
THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S MOTION TO SEVER COUNTS 1-7
FROM COUNTS 8-17 OF INDICTMENT NO. 16-07-
2123.
POINT II
THE IMPROPER ADMISSION OF A DETECTIVE'S
LAY OPINION, IDENTIFYING THE DEFENDANT
AS THE SUSPECT ON THE SURVEILLANCE
VIDEOS, WAS PLAIN ERROR, REQUIRING
REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT III
BECAUSE THE STATE FAILED TO
DEMONSTRATE THAT ITS EXPERT'S
METHODOLOGY WAS SCIENTIFICALLY
RELIABLE, THE COURT ERRED BY ALLOWING
AN FBI AGENT TO OPINE AS AN EXPERT THAT
A-3299-18
19
CELL PHONE SERVICE RECORDS WERE
CONSISTENT WITH THE DEFENDANT BEING AT
THE HOMICIDE SCENE.
POINT IV
THE SENTENCING COURT VIOLATED THE
DEFENDANT'S FIFTH AMENDMENT RIGHT TO
SILENCE AND SIXTH AMENDMENT RIGHT TO
COUNSEL BY FINDING AS AN AGGRAVATING
FACTOR THAT HE DID NOT SPEAK TO EXPRESS
REMORSE. THE COURT ALSO MISAPPLIED THE
YARBOUGH FACTORS ON COUNTS 8 AND 11.
II.
We first address the denial of defendant's motion to sever counts one to
seven from counts eight to fourteen. "A trial court's severance decision will be
reversed only for an abuse of discretion." State v. Davis, 390 N.J. Super. 573,
591 (App. Div. 2007) (citing State v. Chenique-Puey, 145 N.J. 334, 341 (1996)).
We are guided by the following basic principles governing joinder of
offenses. Rule 3:7-6 provides:
Two or more offenses may be charged in the
same indictment or accusation in a separate count for
each offense if the offenses charged are of the same or
similar character or are based on the same act or
transaction or on [two] or more acts or transactions
connected together or constituting parts of a common
scheme or plan. Relief from prejudicial joinder shall be
afforded as provided by [Rule] 3:15-2.
A-3299-18
20
"Although joinder is favored, economy and efficiency interests do not
override a defendant's right to a fair trial." State v. Sterling, 215 N.J. 65, 72
(2013). Rule 3:7-6 provides a remedy for prejudicial joinder, "referencing Rule
3:15-2(b), which vests a court with discretion to sever charges '[i]f for any other
reason it appears that a defendant or the State is prejudiced by a permissible or
mandatory joinder of offenses or of defendants in an indictment or accusation. '"
Id. at 73. The Court explained:
The relief afforded by Rule 3:15-2(b) addresses
the inherent "danger[,]when several crimes are tried
together, that the jury may use the evidence
cumulatively; that is, that, although so much as would
be admissible upon any one of the charges might not
have persuaded them of the accused's guilt, the sum of
it will convince them as to all." State v. Pitts, 116 N.J.
580, 601 (1989) (quoting United States v. Lotsch, 102
F.2d 35, 36 (2d Cir. 1939)).
[Ibid. (alteration in original).]
In determining whether to grant severance, a trial court must assess
whether joinder would prejudice the defendant or the State. Ibid. "The test for
assessing prejudice is 'whether, assuming the charges were tried separately,
evidence of the offenses sought to be severed would be admissible under
[N.J.R.E. 404(b)] in the trial of the remaining charges.'" Ibid. (alteration in
original) (quoting Chenique-Puey, 145 N.J. at 341). "The admissibility of the
A-3299-18
21
evidence in both trials renders inconsequential the need for severance." Davis,
390 N.J. Super. at 591 (citing State v. Coruzzi, 189 N.J. Super. 273, 299 (App.
Div. 1983)).
Rule 404(b)(1) prohibits the use of other crimes, wrongs or acts "to prove
a person's disposition in order to show that on a particular occasion the person
acted in conformity with such disposition." However, such "evidence may be
admitted for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue in dispute." N.J.R.E. 404(b)(2).
The requirements of N.J.R.E. 404(b) must be met. Sterling, 215 N.J. at
73 (citing Cofield, 127 N.J. at 338). In Cofield, the Court adopted the following
four-part test to determine admissibility: (1) "[t]he evidence of the other crime
must be admissible as relevant to a material issue"; (2) "[i]t must be similar in
kind and reasonably close in time to the offense charged"; (3) "[t]he evidence
must be clear and convincing; and" (4) "[t]he probative value of the evidence
must not be outweighed by its apparent prejudice." 127 N.J. at 338. In addition,
"such evidence is admissible only if it is relevant to prove a fact genuinely in
dispute 'and the evidence is necessary as proof of the disputed issue.'" State v.
A-3299-18
22
Darby, 174 N.J. 509, 518 (2002) (quoting State v. Hernandez, 170 N.J. 106, 118-
19 (2001)).
Applying these principles to this case, we conclude that the denial of
defendant's severance motion was not an abuse of discretion. The trial court
provided cogent and thorough reasoning for denying defendant's motion to sever
counts eight to fourteen. The court considered each prong of the four-part test
separately, setting forth the pertinent facts in its analysis. We discern no abuse
of discretion.
Under the first prong, a material issue in the Jones and Marshall murders
was the identity of the suspect in the surveillance footage, and whether that
suspect was defendant. Under the second prong, all three murders occurred
within forty-eight hours, and the first and second victims were defendant's
former girlfriends. The male victim was the current boyfriend of the second
victim. Under the third prong, the court found that the evidence of the Rouse
murder was clear and convincing; defendant admitted killing to Rouse but
claimed he had no intent to kill her. Under the fourth prong, the court found the
probative value of the evidence outweighed the prejudice to defendant.
A-3299-18
23
III.
Defendant contends that the admission of Detective Lima's lay opinion,
identifying defendant as the suspect in the surveillance videos was reversible
plain error. We disagree.
An appellate court defers to a trial court's evidentiary ruling absent an
abuse of discretion. State v. Garcia, 245 N.J. 412, 430 (2021). We do so because
"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. Co., 202 N.J. 369, 383-84 (2010)). Under
that deferential standard, we "review a trial court's evidentiary ruling only for a
'clear error in judgment.'" State v. Medina, 242 N.J. 397, 412 (2020) (quoting
State v. Scott, 229 N.J. 469, 479 (2017)).
Where there is no objection to testimony, we review for plain error. The
admission of the unchallenged evidence constitutes plain error if it was "clearly
capable of producing an unjust result." R. 2:10-2. "Thus, 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." State v. Singh, 245 N.J. 1, 13
(2021) (quoting State v. R.K., 220 N.J. 444, 456 (2015)).
A-3299-18
24
N.J.R.E. 701 permits testimony by lay witnesses "in the form of opinions
or inferences" if it is "(a) is rationally based on the witness's perception; and (b)
will assist in understanding the witness's testimony or determining a fact in
issue." This testimony "must 'assist the trier of fact either by helping to explain
the witness's testimony or by shedding light on the determination of a disputed
factual issue.'" State v. Sanchez, 247 N.J. 450, 469 (2021) (quoting Singh, 245
N.J. at 15). A witness should offer an opinion on something that the jury can
come to a decision to on their own. Id. at 469-70. The purpose of the rule "is
to ensure that lay opinion is based on an adequate foundation." Singh, 245 N.J.
at 14 (quoting State. v. Bealor, 187 N.J. 574, 586 (2006)).
Regarding identity, lay witness testimony may be admissible, but courts
must consider the nature, duration, and timing of the witnesses' contacts with
the defendant. Sanchez, 247 N.J. at 470 (citing U.S. v. Walker, 974 F.3d 193,
205-06 (2d Cir. 2020)). Another factor to consider when permitting an officer
to testify about identity at trial is whether there are other witnesses capable of
doing so. State v. Lazo, 209 N.J. 9, 23 (2012). Courts will also look to whether
the identification is helpful to the jury where surveillance photos are so blurry
that the subject's features are unclear, but not so clear that jurors can make the
comparison to the defendant themselves. Sanchez, 247 N.J. at 475.
A-3299-18
25
Here, Detective Lima's fleeting reference to defendant did not constitute
plain error given the other evidence produced at trial. Unlike in Lazo, the
evidence implicating defendant in the murders was not limited to identifying the
suspect depicted in surveillance videos. Defendant admitted his involvement in
Rouse's death. The evidence included the incendiary text messages defendant
sent Jones, his history with her and Marshall, his Facebook messages, his
cellphone location near the crime scene, and the fact that the same caliber bullets
used on Jones and Marshall were found in his home. Moreover, there were no
other witnesses available to testify about presence at Jones's apartment during
the incident.
Lima's lay opinion testimony was not "clearly capable of producing an
unjust result." R. 2:10-2. Defendant has not demonstrated there is "a reasonable
doubt" that "the jury came to a result that it otherwise might not have reached."
Singh, 245 N.J. at 13 (quoting R.K., 220 N.J. at 456).
IV.
We next address the admissibility of the historical cell tower evidence.
The State's expert, FBI Special Agent John Hauger, opined that the cell phone
service records were consistent with the defendant being at the homicide scene.
A-3299-18
26
Defendant contends the State failed to demonstrate that the methodology used
by its expert was scientifically reliable. We are unpersuaded.
We review a trial court's evidentiary determination that a witness is qualified
to present expert testimony under N.J.R.E. 702 for abuse of discretion "and will
only [] reverse 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)). A trial
court's decision to permit expert testimony is accorded deference. Townsend v.
Pierre, 221 N.J. 36, 52 (2015). Here, there was no objection to the expert's
qualifications or the admission of his testimony. Therefore, the plain error rule
applies. R. 2:10-2.
N.J.R.E. 702 provides: "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise."
The party offering expert testimony bears the burden of establishing its
admissibility. State v. Harvey, 151 N.J. 117, 167 (1997) (citing Windmere, Inc.
v. Int'l Ins. Co., 105 N.J. 373, 378 (1987)). We apply the following three-prong
test for the admission of expert testimony:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
A-3299-18
27
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
[Jenewicz, 193 N.J. at 454.]
Special Agent Hauger has more than fifteen years' experience in the field
of historical cell tower analysis. He was properly qualified as an expert based
on his experience.
In criminal cases, our courts apply the general acceptance test for
reliability enunciated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923). State v. Cassidy, 235 N.J. 482, 491-92 (2018). Here, only the second
prong of the Frye test is at issue. "Scientific test results are admissible in a
criminal trial only when the technique is shown to be generally accepted as
reliable within the relevant scientific community." Ibid. To establish general
acceptance, "the party proffering the evidence need not show infallibility of the
technique nor unanimity of its acceptance in the scientific community." Id. at
492. Here, the State must prove that the cell-site analysis methodology "and the
interpretation of its results are non-experimental, demonstrable techniques that
the relevant scientific community widely, but perhaps not unanimously, accepts
as reliable." Harvey, 151 N.J. at 171.
A-3299-18
28
When reviewing a decision on the admission of scientific evidence in a
criminal case, "an appellate court should scrutinize the record and independently
review the relevant authorities, including judicial opinions and scientific
literature." Harvey, 151 N.J. at 167; see also State v. Pickett, 466 N.J. Super.
270, 303 (App. Div. 2021) (an appropriate review in a criminal case requires an
appellate court to "independently scrutinize the record, including the
comprehensive and amplified declarations of the experts, the scientific
validation studies and peer-reviewed publications, and judicial opinions").
"Whether expert testimony is sufficiently reliable to be admissible under
N.J.R.E. 702 is a legal question we review de novo." State v. J.L.G., 234 N.J.
265, 301 (2018).
"Cell phones work by communicating with cell-sites operated by cell-
phone service providers. Each cell-site operates at a certain location and covers
a certain range of distance." In re U.S. for an Order Authorizing the Release of
Historical Cell-Site Info., 809 F. Supp. 2d 113, 115 (E.D.N.Y. 2011). "The
geographic area covered by a particular tower depends upon 'the number of
antennas operating on the cell site, the height of the antennas, topography of the
surrounding land, and obstructions (both natural and manmade).'" Holbrook v.
Commonwealth, 525 S.W.3d 73, 79 (Ky. 2017) (quoting United States v. Hill,
A-3299-18
29
818 F.3d 289, 295 (7th Cir. 2016)). "When a cell phone user makes a call, the
phone generally 'connect[s] to the cell site with the strongest signal,' although
'adjoining cell [towers] provide some overlap in coverage." Ibid. (alterations in
original) (quoting Hill, 818 F.3d at 295). Other factors affecting which tower
a cell phone connects to include the terrain, the antennae's angle, the phone
itself, and environmental factors. Hill, 818 F.3d at 296. "As a cell phone user
moves from place to place, the cell phone automatically switches to the tower
that provides the best reception." State v. Johnson, 797 S.E.2d 557, 562 (W.Va.
2017) (quoting In re Application for an Order for Disclosure of Telecomms.
Recs., 405 F. Supp. 2d 435, 436-37 (S.D.N.Y. 2005))
Numerous federal courts have acknowledged the general reliability of
cell-tower analysis. See e.g., Hill, 818 F.3d at 297 ("District courts that have
been called upon to decide whether to admit historical cell-site analysis have
almost universally done so."). State appellate courts have also found cell-tower
analysis to be generally reliable. See generally State v. Boothby, 951 N.W.2d
859, 871-76 (Iowa 2020) (surveying treatment of historical cell-site data by
other jurisdictions); see also Commonwealth v. Nevels, 203 A.3d 229, 241 (Pa.
Super. Ct. 2019) (concluding "there exists no legitimate dispute regarding the
reliability of historical cell-site analysis"), aff'd, 235 A.3d 1101 (Pa. 2020);
A-3299-18
30
Pullin v. State, 534 S.E.2d 69, 71 (Ga. 2000) (affirming the trial court's
conclusion that "the geographic location of the cell calls in question is based on
sound scientific theory and that analysis of the data can produce reliable
results").
Special Agent Hauger did not perform a drive test to confirm the specific
coverage areas of the nearby cell towers. In Holbrook, the testifying FBI agent
also did not perform a drive test. 525 S.W.3d at 80. The agent testified that
Holbrook's cell phone was within the general coverage area of the scene of the
crime when the murder was committed. Id. at 81. The expert acknowledged
"that while a drive test is the best way to refine the coverage area, the general
principles of coverage apply regardless." Id. at 80. Noting that the expert's
"testimony expressly identified limitations in the scientific techniques he
employed[,]" the Kentucky Supreme Court affirmed the admission of the
evidence regarding the general locations of the callers. Id. at 82. We reach the
same conclusion here. "[W]hile the absence of a drive test may limit the degree
of precision with which an expert may testify about cell phone locations,
providing grounds for cross-examination, that absence does not negate the
admissibility of such testimony." United States v. Nelson, 533 F.Supp. 3d 779,
794 (N.D. Cal. 2021). Defendant relies on an unpublished opinion that he
A-3299-18
31
contends reached a contrary result. The facts in that case are distinguishable.
Moreover, unpublished opinions do not constitute precedent, are not binding,
and shall not be cited by any court. R. 1:36-3.
In Hill, the defendant challenged the reliability of historical cell site
analysis based on the variables involved, arguing they rendered the methodology
too unreliable to be admissible. 818 F.3d at 296. The court found that
"[h]istorical cell-site analysis can show with sufficient reliability that a phone
was in a general area, especially in a well-populated one. It shows the cell sites
with which the person's cell phone connected, and the science is well
understood." Id. at 298 (citing United States v. Evans, 892 F. Supp. 2d 949, 956
(N.D. Ill. 2012)).
Despite the variables affecting cell sites, the court determined that
exclusion of the evidence was not the correct remedy. Ibid. Instead, any
limitations of the methodology should be presented to the jury for the jury to
determine the weight of the resulting evidence. Id. 298-99; see also United
States v. Jones, 918 F.Supp. 2d 1, 5 (D.D.C. 2013) (stating that "numerous other
courts" have concluded that "the mere existence of factors affecting cell signal
strength that the expert may not have taken into account goes to the weight of
A-3299-18
32
the expert's testimony and is properly the subject of cross-examination, but does
not render the fundamental methodology of cell site analysis unreliable").
Special Agent Hauger candidly explained the limitations of historical cell
data analysis. The jury had the opportunity to consider those limitations and
was free to give his opinions "whatever weight it deemed appropriate." Harvey,
151 N.J. at 200.
Having carefully reviewed the record in light of the applicable precedents,
we find that the methodology used by the State's expert is "generally accepted
as reliable within the relevant scientific community." Cassidy, 235 N.J. at 491-
92. We discern no abuse of discretion, let alone plain error. The trial court
properly found that cell-site analysis is a sufficiently reliable method to
determine the approximate location of a cell phone at the time the incident
occurred.
V.
Finally, we address defendant's argument that the trial court misapplied
the Yarbough factors in imposing the consecutive prison terms and violated his
Fifth Amendment right to counsel by considering his failure to personally
express remorse as an aggravating factor.
A-3299-18
33
Appellate courts review sentencing determinations deferentially. State v.
Fuentes, 217 N.J. 57, 70 (2014). "The reviewing court must not substitute its
judgment for that of the sentencing court." Ibid. (citing State v. O'Donnell, 117
N.J. 210, 215 (1989)). We affirm a sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating factors found by the sentencing
court were not based upon competent and credible evidence in the record; or (3)
"the application of the guidelines to the facts of [the] case makes the sentence
clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95
N.J. 334, 364-65 (1984).
To facilitate appellate review, the sentencing court must "state reasons for
imposing such sentence including . . . the factual basis supporting a finding of
particular aggravating or mitigating factors affecting sentence[.]" R. 3:21-4(h);
Fuentes, 217 N.J. at 73; see also N.J.S.A. 2C:43-2(e) (requiring a sentencing
court to provide the "factual basis supporting its findings of particular
aggravating or mitigating factors affecting sentence.").
Additional review is undertaken when consecutive terms are imposed. In
Yarbough, the Court adopted the following factors for trial courts to consider
when determining if prison terms should run concurrently or consecutively :
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
A-3299-18
34
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of
violence or threats of violence;
(c) the crimes were committed at different
times or separate places, rather than being
committed so closely in time and place as
to indicate a single period of aberrant
behavior;
(d) any of the crimes involved multiple
victims;
(e) the convictions for which the sentences
are to be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense; and
(6) there should be an overall outer limit on the
cumulation of consecutive sentences for multiple
offenses not to exceed the sum of the longest terms
A-3299-18
35
(including an extended term, if eligible) that could be
imposed for the two most serious offenses.
[100 N.J. at 643-44.]
The Legislature subsequently amended N.J.S.A. 2C:44-5(a) to clarify that
"[t]here shall be no overall outer limit on the cumulation of consecutive
sentences for multiple offenses." L. 1993, c. 233, § 1.
"[T]he reasons for imposing a consecutive or concurrent sentence should
be separately stated in the sentencing decision." State v. Miller, 205 N.J. 109,
129 (2011) (quoting Yarbough, 100 N.J. at 643). "An explicit statement,
explaining the fairness of the sentence imposed on a defendant for multiple
offenses in a single proceeding . . . is essential to a proper Yarbough sentencing
assessment." State v. Torres, 246 N.J. 246, 268 (2021); see also State v.
Chavarria, 464 N.J. Super. 1, 19 (App. Div. 2020) (explaining that a sentencing
court "must 'articulate [its] reasons' for imposing consecutive sentences 'with
specific reference to the Yarbough factors.'"). "When a sentencing court
properly evaluates the Yarbough factors in light of the record, the court's
decision will not normally be disturbed on appeal." Miller, 205 N.J. at 129.
The court must also "be mindful of the real-time consequences of NERA
and the role that it customarily plays in the fashioning of an appropriate
sentence." State v. Marinez, 370 N.J. Super. 49, 58 (App. Div. 2004). A
A-3299-18
36
reviewing court will "consider the judge's evaluation of the aggravating and
mitigating factors in that light." Id. at 58. Lengthy consecutive terms may be
manifestly excessive. See State v. Louis, 117 N.J. 250, 254-58 (1989)
(aggregate term of 130 years with a 65-year parole disqualifier found excessive);
State v. Candelaria, 311 N.J. Super. 437, 454 (App. Div. 1998) (finding six
consecutive terms totaling 105 years plus a life sentence excessive) . Here, the
judge imposed three consecutive NERA terms, followed by a consecutive ten-
year term, subject to a five-year period of parole ineligibility, yielding an
aggregate 190-year term, that requires defendant to serve 158 years before being
eligible for parole.
The trial court noted defendant's failure to express remorse for his role in
committing the homicides. The trial court may consider a defendant's lack of
remorse during sentencing. See State v. Int. of D.S., 289 N.J. Super 413, 426
(App. Div. 1996) (affirming a judge's decision that considered defendant's lack
of remorse); State v. Jackson, 138 N.J. Super 431, 436 (App. Div. 1976) (same).
However, "a defendant's refusal to acknowledge guilt following a conviction is
generally not a germane factor in the sentencing decision." State v. Marks, 201
N.J. Super. 514, 540 (App. Div. 1985).
A-3299-18
37
The judge made the following findings. Defendant was thirty years old at
sentencing. He was single, had four children, and earned a GED while at the
Essex County Youth House. Defendant had adjudications of juvenile
delinquency for aggravated assault, unlawful possession of a weapon, criminal
sexual contact, and served an eighteen-month term at Jamesburg, where he
maxed out after incurring a parole violation. Defendant also received a deferred
disposition on an obstruction charge.
As an adult, defendant had prior convictions for third-degree eluding and
fourth-degree aggravated assault, and eight disorderly persons offenses.
Defendant had seven domestic violence restraining orders entered against him.
The judge found that defendant had been involved with the criminal
justice system since age fifteen and had "been a total menace to society." He
described defendant's actions as "cruel, depraved, and inhumane . . . ." The
judge noted that defendant "killed Tiniquah Rouse in front of her five -month-
old infant" and the next day "went to Ashley Jones's apartment where [he] kicked
in the door and brutalized [Marshall] and [Jones] by shooting them multiple
times in front of three young children." Defendant was the father of two of those
children.
A-3299-18
38
The judge found defendant "show[ed] absolutely no remorse whatsoever."
The judge intended the sentence to "ensure the safety of" other people and
prevent defendant from hurting anyone in the future.
The judge engaged in an incomplete analysis of the Yarbough factors. He
noted "that there shall be no free crimes in a system in which the punishment
shall fit the crime." The judge concluded that the terms for the three murders
should run consecutively, finding the murders were "separate acts of violence"
that "were committed at two separate locations over the course of two . . .
consecutive dates."
As to the certain persons offense, the judge noted the statute "was meant
to enhance the penalty for those individuals who have a prior conviction,
otherwise this statute would serve absolutely no purpose whatsoever . . . ."
Defendant was sentenced to three consecutive sixty-year NERA terms for
the murders and a consecutive ten-year term, subject to a five-year period of
parole ineligibility on the certain persons offense pursuant to the Graves Act.
Following merger, the aggregate sentence was 190 years with 158 years of
parole ineligibility.
The judge did not any expressly consider Yarbough factors: three (a) ("the
crimes and their objectives were predominantly independent of each other");
A-3299-18
39
three (c) (whether the crimes were committed "so closely in time and place as
to indicate a single period of aberrant behavior"); and five ("successive terms
for the same offense should not ordinarily be equal to the punishment for the
first offense"). In addition, the judge did not expressly consider the real -time
consequences of the consecutive NERA and Graves Act terms. These omissions
constrain us to vacate the consecutive sentences imposed on counts eight and
eleven of Indictment No. 16-07-2123 and count one of Indictment No. 16-07-
2129, and remand for resentencing of those counts. See Chavarria, 464 N.J.
Super. at 19 (App. Div. 2020) (vacating the consecutive sentences and
remanding resentencing due to absence of "findings of the Yarbough factors");
State v. Soto, 385 N.J. Super. 247, 256 (App. Div. 2006) ("Failure to provide
reasons for the imposition of a consecutive sentence may compel a remand for
resentencing.").
At resentencing, the judge shall provide a fulsome evaluation of each of
the Yarbough factors and explain the fairness of the sentence imposed,
considering the real-time consequences of the terms imposed.
In sum, we affirm defendant's convictions but vacate and remand for
resentencing of counts eight and eleven of Indictment No. 16-07-2123 and count
one of Indictment No. 16-07-2129.
A-3299-18
40
Affirmed in part, vacated in part, and remanded in part for further
proceedings consistent with this opinion. We do not retain jurisdiction.
A-3299-18
41