State of New Jersey v. Kwacey Q. Owens

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1635-23 STATE OF NEW JERSEY, Plaintiff-Respondent, v. KWACEY Q. OWENS, Defendant-Appellant. _________________________ Argued September 23, 2026 – Decided October 14, 2026 Before Judges Mayer, Vinci and Zazzalli-Hogan. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 21-07- 0725. Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney for appellant; Kevin S. Finckenauer, of counsel and on the briefs). Nicole Handy, Assistant Prosecutor, argued the cause for respondent (LaChia L. Bradshaw, Burlington County Prosecutor, attorney; Nicole Handy, of counsel and on the brief). PER CURIAM Defendant Kwacey Q. Owens appeals from a judgment of conviction (JOC) for first-degree murder, possession of a weapon for an unlawful purpose, possession of a weapon without a permit, and two counts of certain persons not to possess weapons. Defendant was convicted of killing Barry Barino, who he allegedly met on a dating application. We affirm except to reverse and remand for the judge to amend the JOC and dismiss the certain persons conviction in count five. We recite the testimony from the trial. Barino lived with three roommates on Maplewick Lane in Willingboro. On the night of October 7, 2020, Barino invited a man he previously met through a dating application to his apartment. That same night, Barino messaged another individual through a different dating application. The second invited man went by the username BottomSlayer.1 The "about me" section of BottomSlayer's dating profile indicated he stood at 5'10," weighed 170 pounds, and wore dreadlocks. Defendant's driver's license listed his height as 5'10." The chat logs associated with BottomSlayer's dating account requested Barino's address around 12:28 a.m. on October 8, 2020. At 12:40 a.m., through 1 The police later identified BottomSlayer as defendant. A-1635-23 2 the dating application, BottomSlayer told Barino that he had arrived and asked Barino to flicker the house lights to confirm the correct address. At 12:45 a.m., Barino responded. The first man arrived at Barino's apartment before BottomSlayer. After a few minutes, Barino stepped outside the house and returned with BottomSlayer. BottomSlayer did not speak and wore a hood obscuring his face. The three men had sex. BottomSlayer left shortly thereafter. Around 1:00 a.m. on October 8, 2020, the first man left Barino's apartment. At 1:21 a.m., BottomSlayer messaged Barino asking if he left his keys in the apartment. Barino replied he did not see any keys. At 1:24 a.m. BottomSlayer messaged Barino to meet him at the apartment's back door. At 1:25 a.m., Barino asked BottomSlayer "WYA?"2 and BottomSlayer replied, "here." That same night, Barino's roommates were playing videogames in the apartment. Late into the night, after the group finished playing a video game, one roommate heard a loud bang.3 The roommate also "hear[d] a little clank 2 WYA is texting shorthand for "where you at." 3 The roommate did not check the clock but remembered ending the videogame "around like 11:30-ish, 12:00" and hearing the noise "[forty]-plus minutes" later. A-1635-23 3 through the gate" in the backyard and thought somebody was "messing around with the trash." After hearing the bang and the clank, the roommate went downstairs and saw Barino's body lying on the floor just outside an open exit door adjacent to the kitchen. The roommate called Barino's name and received no response. According to the roommate, he "finally registered what the noise was," locked the door, ran upstairs, and called the police. The roommate called the police around 1:30 a.m. on October 8, 2020. When the police arrived, they found Barino's body lying face down on trash bags with a gunshot wound to his head. They also discovered a spent shell casing inside the kitchen. The shell casing came from a .45 caliber bullet. The police officers contacted the medical examiner to examine the body and rule out suicide. The police searched the apartment with the roommates' consent. The police officers collected Barino's cell phone and the shell casing. The State Police Ballistics Unit did not recover fingerprint evidence from the shell casing. Detective Kevin Sobotka with the High Tech Crimes Unit of the Burlington County Prosecutor's Office conducted a forensic search of Barino's cell phone. Based on information extracted from Barino's cell phone, the police A-1635-23 4 obtained subpoenas for defendant's dating application, Comcast, Verizon, and Tracfone. The documents police obtained from defendant's dating application listed seven Internet Protocol (IP) addresses4 linked to BottomSlayer. One IP address was associated with Comcast, and the other six addresses were linked to Verizon. The Comcast IP address was assigned to the mother of defendant's former girlfriend, who lived on Echo Lane in Willingboro. Detective Sobotka found a common phone number among the IP addresses registered to a TracFone account with defendant's email and birth date. Early in morning on October 16, 2020, Willingboro police searched an Echo Lane residence pursuant to a warrant. Defendant was in the house when the police arrived. Defendant had been staying at the Echo Lane home with his former girlfriend who was nine months pregnant. Defendant kept his personal items in the top two drawers of the dresser in the bedroom he shared with his former girlfriend. In the top right dresser drawer, the officers found a .45 caliber semi- automatic pistol and a magazine containing seven live .45 caliber rounds. Police 4 According to the trial testimony of a Comcast employee, "[a]n IP address is a unique identifying number that is assigned to any device in order to allow that device to access the internet." A-1635-23 5 also obtained defendant's cell phone as part of their search. After completing the search, the police arrested defendant on an outstanding child support warrant and took him to the police station. Around 2:20 a.m., Detective Anthony J. Luyber of the Burlington County Prosecutor's Office and Detective Elijah Hart of the Willingboro Police Department interviewed defendant. Detective Luyber mentioned defendant had "a warrant for child support. But there's some other stuff that we want to talk to you about." Detective Luyber then read defendant his Miranda5 rights. He told defendant "[i]f you agree to talk to us, the decision to waive these rights is not final and you may withdraw your waiver whenever you wish, either before or during questioning." Defendant indicated he understood, stating "[s]o even during this, I can just stop talking?" and "[a]ll right. Sound[s] cool." Detective Luyber re-confirmed defendant understood he had the right to withdraw his waiver "either before or during questioning." Detective Luyber asked defendant "with your rights being read to you . . . do you [feel] comfortable waiving your rights and speaking to us?" 5 Miranda v. Arizona, 384 U.S. 436 (1966). A-1635-23 6 Defendant responded, "I want to know what the fuck is going on." Detective Luyber again asked if defendant felt comfortable waiving his rights and speaking. Defendant replied, "I feel comfortable because I want to know . . . what's going on." Defendant discussed his relationship with his pregnant girlfriend. Defendant grew impatient, stating "if you all don't mind, bro, like, fuck all this small talk, bro . . . I don't want to talk about my kids or nothing like that because with all due respect, I don't know you." However, defendant continued answering the detectives' questions. Regarding the search of the Echo Lane house, defendant stated, "you all . . . told me that you all was there for me for child support." Detective Luyber replied, "[w]e got a search warrant for the house. You just had a child support warrant in the system." The detectives then questioned defendant about his work. Defendant said he sold weed and that was the only illegal item they would find in the Echo Lane house. As the officers asked more questions, defendant interjected, "I just want to talk about why you all kicked my door. All right?" Detective Luyber then told defendant "there's two separate incidences. We had a search warrant already for the house. . . . You just happened to have also a child support warrant." Detective Luyber asked if defendant heard A-1635-23 7 anything about "that shooting over on Maplewick?" Defendant claimed he only "heard somebody got hit." When Detective Luyber asked if defendant knew Barino, he replied he "was talking about it with one of [his] home girls. She said we went to school with him." Defendant otherwise denied knowing or recently seeing Barino. Detective Luyber then informed defendant the police found a gun in his bedroom in the Echo Lane home. Defendant denied owning a gun. Detective Luyber asked if defendant heard of a specific male dating application. Defendant denied any knowledge about that dating application. The officers told defendant about their investigation into BottomSlayer's dating account and how their investigation led them to defendant's cell phone. Defendant denied killing Barino or using a male dating application. Thereafter, defendant stated he had "clearly got to get a fucking lawyer." The detectives ceased the interview at that time. On October 16, 2020, a Burlington County grand jury indicted defendant on the following counts: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two), second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count three), and two counts of second-degree A-1635-23 8 possession of a firearm by convicted persons, N.J.S.A. 2C:39-7(b)(1) (counts four and five). Defendant filed a pretrial motion to suppress evidence. At a pretrial evidentiary hearing pursuant to N.J.R.E. 104, the State called Detective Luyber. He testified about the homicide investigation and his interview with defendant. According to Detective Luyber, defendant was alert and coherent and did not appear intoxicated or under the influence of any substances during the interview. Detective Luyber further testified he did not make any promises to defendant or coerce him into giving a statement. The judge also reviewed a video recording of defendant's interview with the detectives. The State argued defendant's statements during the interview were admissible because they were voluntary, knowing, and intelligent. At the time, defendant did not claim his interview statements were involuntary, unknowing, or unintelligent. Instead, defendant argued the statement against interest hearsay exception did not apply. On June 5, 2023, the judge entered an order finding defendant's statement "was given knowingly, freely, intelligently and voluntarily." The judge explained "no instances on the video . . . would suggest that the defendant was coerced through psychological pressures, mental exhaustion, or physical A-1635-23 9 punishment." The judge found defendant's statements would be admissible at trial. Trial began on September 14, 2023. The State called Barino's roommate to testify. He spoke about living on Maplewick Lane and finding Barino's body. The State also introduced testimony from Willingboro Police Officer Jackie Osborn who responded to the 9-1-1 call. Officer Osborn attended Willingboro High School with Barino and defendant but "wasn't close" with Barino. Sergeant Tim Horne with the Burlington County Prosecutor's Office told the jury he recovered a .45 caliber shell casing, as well as Barino's cell phone and hoodie he was wearing when he was killed. Sergeant Horne testified he found Barino's body with his shirt and shorts in disarray, "indicat[ing] there was an attempt to move the body." Detective Hart testified investigators obtained IP information from BottomSlayer's dating application. According to the detective, the information led them to subpoena Comcast, Verizon, and Tracfone. The State then called Vincent Digilio, as a privacy program manager for the dating application used by defendant. Digilio testified the company's dating application stores a user's information in the normal course of business. He A-1635-23 10 explained a user's profile contains personal information, including "how they would like to appear within the [dating application,] . . . some statistics about themselves like their weight or their age or their height, and just generally what they're looking for and what they're into." Digilio testified one of the documents the State obtained from BottomSlayer's account contained "the IP address . . . as well as the times that w[ere] associated with that particular profile identifier." Digilio explained a profile identifier is assigned to a user upon creating an account and is "used to be able to maintain information about that particular individual." Defendant objected when Digilio testified about data pertaining to "latitude and longitude" of the account user "as well as the time associated with that location." At a sidebar, defendant argued: [T]he problem is, there's testimony here of IP addresses and different things like that. And there has been no foundation for those things at all, and we certainly object to that. And the information as far as latitude and longitude, we object to those things as well, as they relate to the IP address. There has been no foundation for any of that. The judge overruled defendant's objection, finding the records containing the IP addresses and location data were properly authenticated business records. A-1635-23 11 Digilio continued his testimony, explaining the dating application tracked users' location data as a "way you can connect with people that are nearby to you." Digilio testified that when users open the application from different locations, "the latitude and longitude moves as well . . . when the application is live," and the application tracks the "IP address associated with the Wi-Fi" at a particular location. The State also presented testimony from employees of Comcast, Verizon, and Tracfone. These employees explained documents containing IP address information were tied to accounts associated with the Echo Lane address. They also testified about documents containing IP address information and subscriber information for an account tied to defendant's email address, phone number, and birth date. The State then called the first man who visited Barino's apartment the night of the murder. That person told the jury Barino invited another man, who he later learned was defendant, into the apartment that night. The first man was unable to identify defendant because he wore a hood. He described defendant as "a built person," around six feet tall, and recalled telling the police that defendant was a dark skinned "African American." A-1635-23 12 Next, Detective Michael Wiltsey from the Burlington County Prosecutor's Office testified. He told the jury about the search of the Echo Lane home and the recovery of a .45 caliber pistol, magazine, and defendant's cell phone. Detective Wiltsey testified he searched gun records and discovered the pistol was purchased on October 6, 2020, by an individual who was related to defendant through marriage. Earl Williams, the State's ballistics expert, testified the shell recovered from the homicide scene was fired from the same gun found at the Echo Lane house. Defendant's former girlfriend confirmed defendant stayed with her at Echo Lane. She testified the gun did not belong to her or any of her family. The former girlfriend's mother lived at the Echo Lane home and similarly testified no one in the family owned a gun in 2020. The State also presented testimony from Detective Sobotka. He described how investigators tracked defendant's cell phone number from IP address logs and TracFone subscriber information. The State sought to admit an edited recording of defendant's video recorded statement to the police. The trial judge deemed the recording A-1635-23 13 admissible, finding the issue had been "briefed and litigated and decided" by the prior judge handling the matter. The trial judge further explained: when I advise the jury at the conclusion of the testimony and your summations, then I will only discuss the charges on [c]ounts [one], [two], and [three] of the indictment. And we will go through a charging conference, because I think there will have to also be lesser included offenses that are charged to the jury. The State continued with Detective Luyber's testimony. The jury heard an edited recording of defendant's statement to the police. Detective Luyber testified data recovered from defendant's phone revealed defendant's email address and the fact that the dating application was uninstalled from defendant's cell phone approximately thirty minutes after Barino was shot. The State then presented testimony from Dr. Ian Hood, an expert in forensic pathology. In his autopsy examination, Dr. Hood found "terminal collapse abrasions over [Barino's] forehead," which the doctor explained could occur when "somebody is rendered suddenly and completely incapacitated while standing or even kneeling and they collapse on to the ground." Dr. Hood testified he "could tell [Barino] didn't have much circulation going on . . . because there was no bruising, no swelling, no oozing from the[] abrasions." According to the doctor, the abrasions suggested Barino's body was moved after he was killed. Dr. Hood concluded Barino's injuries were consistent with "him A-1635-23 14 having lost effective circulation at least to the scalp and then landing on his head on a hard surface." Dr. Hood also testified the gunshot wound had "no sort of stippling around it. It's not a contact wound, which would result in a lot of gas going into the skin. If you've got the muzzle of the gun against the head, you get a lot of stippling and you also get a muzzle imprint. None of that was present." He further explained Barino's hands were not injured, and there were no signs of bruising in Barino's mouth or around his neck. Detective Sobotka provided testimony as the State's digital forensics expert. The detective testified he used a program called GrayKey, which allows investigators "to gain access to cellular devices that are locked with unknown pass codes" and obtain data used in conjunction with another program, Cellebrite, to interpret the information. Detective Sobotka described the GrayKey report generated from an extraction of Barino's cell phone. The report revealed messages between Barino and BottomSlayer on the dating application. The GrayKey report lacked photographs exchanged between the users because the extraction software was unable to interpret images. However, the police obtained photographs by opening the dating application on Barino's phone. A-1635-23 15 Detective Sobotka also described chat exchanges between BottomSlayer and Barino preceding their meeting on October 8, 2020. Detective Sobotka further testified regarding information containing latitude, longitude, date, and time from defendant's phone each time the BottomSlayer used the dating application. Detective Sobotka confirmed the phone belonged to defendant because the user account was linked to defendant's email address. Detective Sobotka explained he plotted the latitude and longitude data provided by the dating application on Google Maps and included screen captures of the mapped points. Defendant objected, arguing "a lack of foundation." The judge overruled the objection, finding Detective Sobotka "explained the reason why and the techniques used to prepare this document." The location report revealed defendant's phone was located around Sterling Avenue and Somerset Drive in Willingboro at 12:03 a.m. on October 8, 2020. Six minutes later, defendant's phone was at Maplewick Lane, which was about the same time BottomSlayer messaged Barino stating he arrived at Barino's house. At 1:28 a.m., defendant's phone was, again, near Maplewick Lane. At 1:35 a.m., defendant's phone was near Echo Lane with the last data point placing defendant's phone at the Echo Lane home at 2:12 a.m. On cross- A-1635-23 16 examination, Detective Sobotka admitted the location data was not necessarily accurate "down to the foot" but could "give[] a general area to a certain . . . degree of certainty," particularly "when there are several points of data that are . . . overlaying in the same area . . . during that same period of time." After completion of the testimony, the judge conducted a charge conference. Defense counsel requested the judge to charge the lesser-included offenses of reckless and aggravated manslaughter, arguing "there is room in here to argue that what happened was in the heat of an argument." Defendant further argued "there has been absolutely no testimony about the actual event of death. So it leaves room for [defendant] to make those arguments." The State objected to inclusion of the charge because there was no supporting evidence. The judge initially decided "the jury should have a choice as to how that offense was committed and that by leaving the question open as to how or what circumstances the offense was committed, there [wa]s a rational basis for including the lesser included offenses." The next morning, the judge reversed course, stating: The decision of the [c]ourt was rendered after some argument and a quick review of some of the cases cited by the State and really without a lot of consideration and deliberation by the [c]ourt because of the time A-1635-23 17 constraints. After further review and deliberation, the [c]ourt has decided to not charge the lesser included offenses of aggravated manslaughter and reckless manslaughter resulting in the charge to the jury of the murder charge with no lesser included. The judge determined "the jury need[ed] to find a rational basis for acquittal on the murder charge and guilty finding on the lesser charge" to support the lesser - included offenses and found "there is nothing like that that has been even remotely suggested by the evidence in this case." After closing argument, the judge instructed the jury. During deliberations, the jury asked three questions: whether there was "any testimony that established where the shooter was when the gun was fired," whether there was "testimony as to whether the shooter was inside or outside of the house," and whether they could review Dr. Hood's testimony as to the shooter's position when the gun was fired. The judge responded to the jury's questions after conferring with counsel, and the jury resumed deliberations. The jury returned a guilty verdict on counts one, two, and three. Thereafter, defendant pleaded guilty to the certain persons charges in counts four and five. On December 4, 2023, the judge sentenced defendant to thirty years in prison without parole on count one as merged with count two, and seven years A-1635-23 18 on unlawful possession of a weapon without a permit on count three. The judge also sentenced defendant to seven years in prison for each certain persons offense, counts four and five, to run concurrent to the thirty-year sentence. On appeal, defendant raises the following arguments: POINT I THE TRIAL COURT REVERSIBLY ERRED IN REFUSING [DEFENDANT]'S REQUEST FOR AGGRAVATED AND RECKLESS MANSLAUGHTER AS LESSER INCLUDED OFFENSES OF MURDER AFTER INITIALLY AGREEING THEY SHOULD BE GIVEN. POINT II [DEFENDANT]'S CUSTODIAL INTERROGATION SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS COERCED BY THE DETECTIVES' REFUSAL TO PROVIDE ANY INFORMATION AS TO WHY HE WAS ARRESTED UNLESS HE SPOKE WITH THEM. A. Interrogating officers cannot induce a waiver by misleading a defendant as to why he is in custody. B. Law enforcement induced [defendant] to waive his rights by refusing to tell him why he was arrested unless he engaged with police. C. The admission of the unlawful interrogation was not harmless beyond a reasonable doubt, and thus, reversal of [defendant]'s convictions is required. POINT III A-1635-23 19 THE STATE FAILED TO ESTABLISH A RELIABLE SCIENTIFIC BASIS FOR ADMITTING THE PINPOINT LOCATION DATA FROM THE [DATING] APP AND FROM THE TRACFONE BECAUSE THERE WERE NO EXPLANATIONS OF HOW THAT LOCATION DATA WAS CALCULATED OR HOW RELIABLE IT WAS. POINT IV [DEFENDANT] WAS IMPROPERLY CONVICTED OF TWO CERTAIN PERSONS OFFENSES FOR THE SAME GUN, REQUIRING A REVERSAL OF ONE OF THOSE CONVICTIONS. (NOT RAISED BELOW). I. We first consider defendant's argument regarding the judge's decision not to charge the jury on the lesser included offenses of aggravated or reckless manslaughter. We reject this argument. Because there was little evidence regarding what happened immediately prior to the shooting, defendant argues purposeful murder is no more suggested by the evidence than aggravated or reckless manslaughter. Defense counsel argues "there [wa]s room . . . to argue that what happened was in the heat of an argument, which took place between Barino and [defendant]." Although the judge initially agreed to charge the jury on the lesser included offenses, he elected not to include the instruction in the final charge. A-1635-23 20 In reversing his earlier decision, the judge found no evidence "remotely suggest[ing]" aggravation or recklessness. N.J.S.A. 2C:1-8 provides that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." "When a defendant requests a charge to a lesser included offense, 'the trial court is obligated . . . to examine the record thoroughly to determine if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense.'" State v. Dunbrack, 245 N.J. 531 , 545 (2021) (quoting State v. Sloane, 111 N.J. 293, 299 (1988)). "If such a rational basis exists, a trial court's failure to give the requested instruction is reversible error." State v. Carrero, 229 N.J. 118, 128 (2017) (citing State v. Brent, 137 N.J. 107, 118 (1995)). "In deciding whether the rational-basis test has been satisfied, the trial court must view the evidence in the light most favorable to the defendant." Ibid. (citing State v. Mauricio, 117 N.J. 402, 412 (1990)). "The rational-basis test sets a low threshold." Ibid. (citing State v. Crisantos, 102 N.J. 265, 278 (1986)). To justify the addition of a lesser-included offense upon a defendant's request, "'a scintilla of evidence' is all that is necessary." Crisantos, 102 N.J. at A-1635-23 21 278 (quoting State v. Powell, 84 N.J. 305 , 316 n.12 (1980)). "That a jury might easily reject [the] defendant's view of the facts and draw inferences different from those reached in [the] defendant's brief . . . is of no moment, for '[t]he test is whether there was room for dispute.'" Mauricio, 117 N.J. at 415 (quoting Crisantos, 102 N.J. at 285 ). "However, sheer speculation does not constitute a rational basis." Brent, 137 N.J. at 118 . First-degree manslaughter occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life ." N.J.S.A. 2C:11-4(a)(1). "[T]he prosecution must show that the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life." State v. Cruz, 163 N.J. 403, 417 (2000). Second-degree manslaughter occurs when criminal homicide "is committed recklessly" or "in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b). Reckless manslaughter is distinguishable from aggravated manslaughter in that "the degree of risk is the 'mere possibility' of death'" rather than a substantial risk. State v. Ruiz, 399 N.J. Super. 86, 97 (App. Div. 2008) (quoting State v. Curtis, 195 N.J. Super. 354, 364 (App. Div. 1984)). A-1635-23 22 The only affirmative evidence regarding Barino's death was that his roommate found Barino with a gunshot wound to the head, and the police recovered a spent shell casing discharged from the same pistol found in defendant's possession. Defendant identifies no other affirmative evidence in the record that could rationally support either first or second-degree manslaughter. Because there were no witnesses to Barino's killing other than defendant himself, and defendant opted not to testify, there was no testimony or evidence suggesting that defendant consciously disregarded a risk of death or manifested extreme indifference to human life. See N.J.S.A. 2C:11-4(a) and (b). Nor was there testimony or evidence of any argument or provocation between defendant and Barino. Dr. Hood testified that Barino's gunshot wound was probably inflicted from a distance and noted that Barino's hands, mouth, and neck were uninjured, suggesting the lack of a struggle. Additionally, the final message on the dating application between BottomSlayer and Barino was sent at 1:25 a.m. Barino's roommate heard a gunshot, came downstairs, discovered Barino's body, and called 9-1-1 at 1:30 a.m., suggesting little time for a provocation to have occurred. A-1635-23 23 The only affirmative proof of defendant's intent could have come from defendant himself. However, as previously stated, defendant exercised his right not to testify. Contrary to defendant's argument, the law does not provide that when a homicide is committed in the absence of any witnesses other than the killer, a criminal defendant is automatically entitled to a lesser-included charge based on speculation that the crime was the result of provocation or recklessness. Because defendant did not elicit any circumstantial evidence of provocation or recklessness, such as the presence of injuries to Barino's hands or mouth, or an extended time period between BottomSlayer's final dating application message and the gunshot, the judge did not err in declining to issue the lesser-included offense charge. II. We next consider the admissibility of defendant's statements to the police. Defendant argues his statements should have been suppressed because the statements were coerced. Specifically, defendant contends the detectives refused to clarify why defendant was arrested and misled him to believe he was only arrested on a child support warrant, rendering defendant's Miranda waiver involuntary. Defendant further argues admission of his statement was not A-1635-23 24 harmless because the State used the statement to show defendant lied to the police about his relationship with Barino. "Under our state law, the prosecution at a Miranda hearing must prove beyond a reasonable doubt that a defendant's waiver of the privilege was knowing, intelligent, and voluntary." State v. O'Neill, 193 N.J. 148 , 168 n.12 (2007). "Generally, when a court determines whether an interrogee has knowingly, intelligently, and voluntarily waived his right against self- incrimination in the setting of a custodial interrogation, it considers the totality of the circumstances." State v. Sims, 250 N.J. 189 , 211 (2022). In certain "limited circumstances," courts will apply a "per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights." Id. at 211-12 (quoting State v. Nyhammer, 197 N.J. 383, 402 (2009)). Miranda waivers have been held invalid "when the police who were questioning the defendant withheld from him the fact that they had in hand a criminal complaint and warrant for his arrest." Nyhammer, 197 N.J. at 403 -04 (citing State v. Reed, 133 N.J. 237 , 261- 62 (1993); and State v. A.G.D., 178 N.J. 56, 68 (2003)). "[P]olice officers conducting a custodial interrogation cannot withhold essential information necessary for the exercise of the privilege." O'Neill, 193 N.J. at 179 . A-1635-23 25 There is no per se rule invalidating an interrogee's waiver of their Fifth Amendment rights because they were not informed they were the suspect responsible for a crime. However, "deception or trickery as to the true reason a defendant is taken into custody, whether made in response to a question posed by the defendant . . . or made on the police interrogator's own initiative, is an important circumstance to be considered as part of the totality of circumstances." State v. Diaz, 470 N.J. Super. 495 , 519 (App. Div. 2022). "[T]he failure to be told of one's suspect status still would be only one of many factors to be considered in the totality of the circumstances." Nyhammer, 197 N.J. at 407 . Defendant's argument that Detectives Luyber and Hart misled him into believing he was only being arrested for a child support warrant misrepresents the record. The detectives made clear to defendant several times that child support was not the sole issue they wanted to discuss. In fact, the detectives explained at the start of the interview that "there's some other stuff that we want to talk to you about" and later stated that "there's two separate incidences. . . . You just happened to have also a child support warrant." Here, the totality of the circumstances suggest defendant knowingly and voluntarily waived his rights by continuing to speak with the detectives. Detective Luyber confirmed multiple times that defendant understood his Fifth A-1635-23 26 Amendment rights. Defendant even acknowledged "he had the ability to stop talking." Defendant was twenty-nine years old at the time of his interview and had a prior conviction and prison experience. Detective Luyber testified defendant was alert, coherent, and did not appear intoxicated during the interview. Even if defendant was not aware of the reason for his arrest, no indictment or criminal complaint had been filed by the time of his interview, so the detectives were not withholding the kind of information that is "indispensable to a knowing and intelligent waiver of rights." A.G.D., 178 N.J. at 68 . Thus, the judge did not err in declining to suppress defendant's police statement. Even if defendant's waiver was not knowing and voluntary, defendant did not raise such a challenge at the Rule 104 hearing addressing the admissibility of defendant's statement to the police. Therefore, we review the statement's admission to determine by whether it was clearly capable of producing an unjust result. R. 2:10-2; Sims, 250 N.J. at 210. "[A]n unchallenged error constitutes plain error if it was 'clearly capable of producing an unjust result.'" State v. Clark, 251 N.J. 266 , 287 (2022) (quoting R. 2:10-2). "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might A-1635-23 27 not have reached.'" Ibid. (quoting State v. Melvin, 65 N.J. 1, 18-10 (1974)). "To determine whether an alleged error rises to the level of plain error, it 'must be evaluated in light of the overall strength of the State's case.'" Ibid. (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (internal quotation marks omitted)). N.J.R.E. 104(c) pertains to preliminary hearings on the admissibility of a defendant's statements in criminal cases and states the prosecution bears the burden of persuasion as to the admissibility of the statement. "Voluntariness of a confession or other inculpatory statement by an accused must always be established by the State at a N.J.R.E. 104(c) hearing before it can be int roduced into evidence at trial." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 104 (2026). The State's reliance on falsities in defendant's police statement was not the only evidence presented to the jury. Defendant's guilt was independently and overwhelmingly supported by forensic evidence of the dating application messages between Barino and the BottomSlayer, physical and ballistic evidence linking the spent shell casing at the crime scene and the recovered firearm, and location data placing defendant's phone precisely at the scene of the crime when it occurred. There was other ample evidence in the record for the jury to convict A-1635-23 28 defendant absent defendant's statement to the police such that admission of defendant's statement to the police did not constitute plain error. III. We next consider defendant's challenge to the location testimony. Defendant argues the State should not have introduced location data absent expert testimony under N.J.R.E. 702. Defendant argues Digilio's lay testimony failed to show "how the location data is calculated, what technology is used to track the locations, what the margin of error is, or anything about how the location tracking actually worked." N.J.R.E. 701 governs lay opinion testimony and provides that the witness "testimony in the form of opinions or inferences may be admitted if it: (a) is rationally based on the witness' perception; and (b) will assist in understanding the witness' testimony or determining a fact in issue." N.J.R.E. 702 allows expert testimony where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Our Supreme Court has recognized "some cases will involve measurements that are so far beyond the ken of jurors that a higher degree of proof of reliability must be made prior to the admission of evidence based on the use of a scientific device." State v. Haskins, 131 N.J. 643, 650 (1993). A-1635-23 29 Defendant compares the location data in this case to cell site location information (CSLI). Our Supreme Court addressed CSLI in State v. Burney, 255 N.J. 1 (2023). However, CSLI differs from Global Positioning System (GPS) data. See State v. Hannah, 263 N.J. 411 , 444 (2026) (distinguishing between CSLI data which "is not exact" and GPS data, which may provide "[e]xact location information"). CLSI analysis "uses cell phone records and cell tower locations to determine, within some range of error, a cell phone's location at a particular time." Burney, 255 N.J. at 21 (quoting U.S. v. Hill, 818 F.3d 289, 295-96 (7th Cir. 2016)). The Burney court contrasted CSLI with "the more precise location data provided by a [GPS]." Id. at 22. The New Jersey Supreme Court addressed CSLI again three years after Burney. In Hannah, the Court held that CSLI testimony must be presented by a qualified expert witness "because the technical aspects of CSLI are beyond the ken of the average juror." 263 N.J. at 442. The Court stated: The relevance of CSLI can be understood by a jury only when it has a better grasp of how cell towers and cell phones interact. This requires an understanding of cell tower sectors, direction, and maximum coverage range, and the many factors, such as terrain and topography, that impact whether a cell phone connects to the closest tower or to one that is farther away. A-1635-23 30 [Id. at 445.] The Court found CSLI to be "intrica[te] and nuance[d]" and inadmissible without equipping the jury "with the tools necessary to understand" it. Id. at 444-45. At the same time, the Court took judicial notice of GPS data reliability, recognizing that it may provide "[e]xact location information" whereas CLSI data indicates only "a cell phone's general location" based on whether that phone is "within [a particular cell] tower's coverage range, whatever that radius might be." Id. at 444. We have recognized the accuracy of GPS devices. See State v. McDuffie, 450 N.J. Super. 554, 570 (App. Div. 2017). "Our courts routinely order GPS technology to supervise individuals released pending trial or on parole. " Ibid. (citing N.J.S.A. 30:4-123.92). "Moreover, commercial GPS units are widely available, and 'smart phones' and laptops all contain a form of GPS tracking capability." Id. at 571 (citing United States v. Jones, 565 U.S. 400, 428-31 (2012) (Alito, J., concurring)). Because GPS technology is widely regarded by the public and the courts as highly reliable, and location data has been deemed by our courts to be readily understood by the average juror, the judge did not err in admitting location testimony pertaining defendant's cell phone. A-1635-23 31 IV. Defendant next argues he was unlawfully charged with two counts of possession of a firearm by a convicted person on two separate days involving the same gun. See N.J.S.A. 2C:39-7(b)(1). The State concurs and agrees defendant's conviction on count five should be reversed under N.J.S.A. 2C:39- 7(b)(1). Affirmed in part and reversed and remanded in part for entry of an amended JOC dismissing count five with prejudice. We do not retain jurisdiction. A-1635-23 32