RENDERED: FEBRUARY 20, 2020 TO BE PUBLISHED
2018-SC-000322-MR
MICHAEL TORRENCE APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE AUDRA JEAN ECKERLE, JUDGE NOS. 16-CR-001550 AND 18-CR-000152
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE WRIGHT
AFFIRMING
In a tri-furcated proceeding, a Jefferson Circuit Court jury convicted
Appellant Michael D. Torrence of first-degree assault and possession of a
handgun by a convicted felon. The jury further found he was a persistent
felony offender. The jury recommended a fifteen-year sentence for the first-
degree assault enhanced to twenty-five years by the PFO, and a five-year
sentence for possession of a handgun by a convicted felon enhanced to fifteen
years by the PFO, with both sentences to be served concurrently for a total
sentence of 25 years. Torrence was sentenced in accordance with the jury’s
recommendation, and now appeals to this Court as a matter of right. Ky.
Const. §110(2)(b).
Torrence raises the following claims of error in his appeal, alleging the
trial court erred by: (1) failing to remove a juror and failing to grant a mistrial concerning said juror, (2) allowing a lay witness to testify as to historical cell
tower data and several other related sub-issues,1 and (3) failing to suppress the
victim’s identification of Torrence in a police photo array and in court. For the
following reasons, we affirm Torrence’s convictions and corresponding
sentences.
I. BACKGROUND
Michael Torrence’s charges stem from events surrounding the shooting of
Gerrado Thomas on the afternoon of May 17, 2016, on 26th Street in
Louisville. The shooting left Thomas paralyzed below the waist. At trial, in
addition to the offenses that resulted in convictions, Torrence was acquitted of
first-degree wanton endangerment for shooting into a nearby house.
During police questioning, Torrence claimed he was picking up his
daughter in the Blue Lick area of Louisville at the time of the shooting because
the child’s mother, a former girlfriend, was in the hospital having a baby. The
Blue Lick area of Louisville is approximately eleven air miles from the 26th
Street shooting location.
The first issue raised in this appeal arose late in the trial. At the start of
the penalty phase, Torrence raised concerns that a juror had not been truthful
in voir dire when the panel was asked if anyone knew him. Torrence asserted
1 In his brief, Torrence raises four related issues regarding the trial court’s rulings as to cell tower evidence. While we acknowledge and analyze all of Torrence’s arguments, we treat these related issues as one.
2 Tatiana Turner, the mother of his child and an alibi witness for the defense,
recognized the juror when she testified late in the defense case.
The timing concern is centered around when the issue was brought to
the trial court’s attention. Over a weekend break after guilty verdicts were
returned on Friday, and before the penalty phase began on Monday, Torrence’s
attorney was notified about the juror issue. He brought the matter to the
court’s attention on Monday morning. While continuing with the penalty
phase, the trial court used breaks in the proceedings to take testimony and
question Turner and the juror. The trial court ruled it would not excuse the
juror or grant a mistrial, and several months later overruled a motion for
judgment notwithstanding the verdict (JNOV) and a new trial based on the
juror issues.
The next issue raised in this appeal deals with admitting historical cell
tower data into evidence. It began when Louisville Metro Police Detective
Stephen Snider obtained Torrence’s cell phone number and cell phone service
provider from the police interview. The detective was seeking to verify
Torrence’s alibi.
The detective sent AT&T a search warrant requesting historical cell
phone tower data for Torrence’s cell phone number for the day of the shooting.
AT&T sent Detective Snider a 500-page report and after it was explained to
him, Detective Snider figured out which cell phone towers Torrence’s cell phone
was communicating with around the time of the shooting. Cell phone towers
have unique identification numbers and their locations were designated in the
3 report with latitude and longitude coordinates. Also included in the report was
a directional degree reading, indicating the direction but not location, of the cell
phone in relation to the tower.
Based on the tower coordinates and directional compass readings from
the report, Detective Snider produced a graph overlay on a Google™ map of
Louisville. The map showed Torrence’s cell phone was in contact with towers
close to the shooting location and not in contact with towers near the Blue Lick
area when Thomas was shot.
On the first morning of trial, Torrence moved for the Commonwealth to
disclose experts and expert opinions regarding historical cell tower data. In
response, the Commonwealth argued Detective Snider did not need to be
qualified as an expert to testify using the historical cell tower report. The
Commonwealth asserted that Detective Snider would simply enter the cell
tower locations from the historical data report into a Google™ map computer
program. Further, the Commonwealth asserted reading the AT&T report was
like reading a familiar phone bill and anyone could use Google™ Maps. The
Commonwealth assured the trial court the phone company cell tower records
were verified. Finding the issues moot because no expert was going to testify,
the trial court overruled the motions to disclose experts and expert opinions.
The Commonwealth did not ask Detective Snider any questions about his
qualifications, background, experience, or specialized training with historical
cell tower evidence. No witness testified (either law enforcement or from a
phone company) who had specialized knowledge, experience, or background
4 with historical cell tower data and how it works. Detective Snider testified as to
basic information about cell phones connecting to towers and how the
information in the report is read.
Detective Snider gave no opinions based on the AT&T report about
Torrence’s location at the time of the shooting. A map showing two cell tower
locations communicating with Torrence’s cell phone near the time of the
shooting was presented to the jury and entered into evidence. In closing
argument, the Commonwealth asserted the graphed map undercut Torrence’s
alibi.
The final issue raised in this appeal revolves around Thomas’s (the
victim’s) identification of Torrence from a police photo array. Detective Snider
testified about police efforts to determine the identity of the shooter initially
identified by Thomas as “Man-Man.” Detectives presented Thomas with an
array containing six photos. Thomas identified Torrence from the photo array
as Man-Man, the person who shot him. However, before he made that police
photo array identification, Thomas’s sister and/or girlfriend showed him a
single photo of Torrence they downloaded from a social media site. Torrence
moved for the exclusion of Thomas’s identification from the police photo array
and in court, arguing the identifications were tainted by his sister and
girlfriend previously showing him the single photograph. The trial court denied
Torrence’s motion. In ruling on the motion, the trial court found that Thomas’s
sister and girlfriend were not acting on behalf of the police—and, therefore,
5 there was no state action involved in them showing Thomas the single
photograph.
Further background information will be developed as needed.
II. ANALYSIS A. Juror Issue
Torrence seeks reversal of his convictions, claiming the trial court erred
when it failed to remove a juror and declare a mistrial. Torrence claims further
error when the trial court denied his motion for a new trial or JNOV based on
the same juror issues. According to Torrence, a juror wrongfully remained
silent when asked during general voir dire if anyone knew Torrence or any of
the witnesses. Torrence claims the juror met him several years before trial,
albeit indirectly, through Turner, his girlfriend at the time of the meeting and
an alibi witness at trial.
During voir dire, the juror identified as Juror #2071060 did not respond
when asked if anyone knew Torrence. Turner, as a defense witness, was kept
out of the courtroom by the trial court’s separation order. Near the end of the
defense case, Turner testified. The jury returned guilty verdicts on Friday
afternoon, and Turner told Torrence’s mother over the weekend that she
believed she recognized the juror in question. On Monday, the fifth and final
day of trial, defense counsel advised the trial court that Juror #2071060 knew
Turner and Torrence and had not been honest about that knowledge in her
responses during voir dire. In dealing with the very serious issues raised, the
trial court took proof including questioning Turner and the juror.
6 The trial court questioned Juror #2071060 multiple times. Each time
she was asked, the juror denied knowing Torrence. In response to a repeated
question by the trial court about knowing Torrence, the juror responded this
was the first time “ever seeing this man.” Juror #2071060 told the trial court
that she knew “of’ Turner but did not know her and had not seen her in more
than five years. When the trial court asked the juror what she meant by
knowing “of’ Turner, she responded that they did not communicate and had
never seen one another on a daily basis. The juror also responded that she did
not know Turner and Torrence knew each other.
When asked if she and Turner shared a half-sister, the juror responded
that her half-sister, Waynesia, and Turner were not “real sisters.” We note that
even if they had shared a half-sister (as Turner claimed in her testimony), there
was never any claim that Turner and the juror were related. In Turner’s
testimony, she revealed that her father has at least thirty-six children and
indicated she had no idea how many households that involved. Defense
counsel introduced birth certificates, but they were of no help in resolving the
already-tenuous loose familial relationship, as the birth certificates contained
empty fields where the child’s father would be indicated. Finally, the juror
responded to the trial court’s inquiry about possible bias, saying, she was “all
the way fair.”
In her testimony regarding the juror, Turner did not know Juror
#2071060’s “government name,” address, or contact information, but did know
that her mother was deceased. Turner testified Torrence and Juror #20171060
7 met several times at Waynesia’s house several years prior to trial. According to
Turner, she would visit Waynesia on an almost daily basis since the two half-
sisters lived just a couple of streets apart from each other, and Juror
#20171060 would be there, too. Turner claimed Torrence would stop by
regularly and see her, as she was pregnant with his child. Turner
acknowledged there were no recent contacts between she and the juror.
The trial court expressed concern that the information about the
relationship between Turner and Juror #2071060 came to the court’s attention
late in the trial. Turner’s credibility was suspect for the trial court because
Turner had been in and out of the courtroom on the preceding Friday but
brought up the issue with Juror #2071060 only after a finding of guilt.
The defense first raised problems with Turner and Juror #2071060 on
the fifth and final day of trial—after the jury had reached a verdict in the guilt
phase and the alternate juror had been released. During voir dire when issues
could have been raised, Turner was not identified by either party as a potential
witness and no questions were asked about her. Turner, despite the
Commonwealth knowing Torrence claimed her as an alibi witness in his police
interview, was not included in the list of names read to the jury by the
Commonwealth which included several persons that would not be called as
witnesses but might be mentioned during the trial. Knowing Turner was going
to be called as an alibi witness, the defense failed to ask the jurors if anyone
knew Turner. In fact, they did not even mention Turner’s name. Therefore, the
juror in question did not fail to disclose knowledge of Turner in voir dire—she
8 was never asked those questions. The record reveals the first time the jury
heard Turner’s name was during the defense’s opening statement. The trial
court’s concern over the timing of the issue is supported by the record.
The trial court denied the motion to excuse Juror #2071060 and
overruled the motion for a mistrial. Months after trial, at a sentencing hearing
with Torrence’s new counsel, the trial court denied a motion, based solely on
the juror issues, for a new trial or JNOV. The trial court referenced the
questions and answers from the trial hearings in denying the motion.
1. Structural Error
The Sixth Amendment to the United States Constitution, and Sections
Seven and Eleven of the Kentucky Constitution guarantee the right to an
impartial jury. Structural error occurs when that right is denied. Hayes v.
Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005). Such a denial would not be
subject to harmless error analysis because that would not be appropriate
where a substantial right such as this is involved. Shane v. Commonwealth,
243 S.W.3d 336, 341 (Ky. 2007). “[T]he defining feature of a structural error is
that it ‘affect[s] the framework within which the trial proceeds,’ rather than
being ‘simply an error in the trial process itself.’ Commonwealth v. Douglas,
553 S.W.3d 795, 799-800 (Ky. 2018). Failing to remove a biased juror taints
the entire trial. Id. at 800.
Mindful of the above principles, we review the trial court’s decisions
under an abuse of discretion standard, “whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
9 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). After careful
review, we find the trial court did not abuse its discretion and therefore find no
structural error.
2. Bias
RCr 9.36(1) states, in pertinent part: “When there is reasonable ground
to believe that a prospective juror cannot render a fair and impartial verdict on
the evidence, that juror shall be excused as not qualified.” In Ward. v.
Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985), this Court quoted a sister
state in saying “irrespective of the answers given on voir dire, the court should
presume the likelihood of prejudice on the part of the prospective juror because
the potential juror has such a close relationship, be it familial, financial or
situational, with any of the parties, counsel, victims or witnesses.” Id. (quoting
Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981)).
With that in mind, our initial inquiry is whether the juror in question
had a “close relationship” with either Torrence or Turner such that prejudice
should be presumed. To answer this question, Torrence asserts Juror
#2071060 and Turner had a half-sister in common. However, even if they did
share a half-sister (as is asserted by Turner and disputed by the juror), both
Juror #2071060 and Turner made clear to the trial court that they were not
related to each other. The existence of a familial relationship, based on
testimony from both Turner and Juror #2071060, proved non-existent.
Torrence presented no proof contesting the lack of a familial relationship;
10 instead, Torrence raised situational claims based on the half-sister-in-common
relationship.
Relying on Turner’s testimony about daily time spent at Waynesia’s
home, Torrence argues the juror had to have met him and was therefore not
truthful with the court. Although conceding no contact between Turner and
Juror #2071060 occurred more recently than five or six years prior to trial,
Torrence claims the prior contact was critical. Because Torrence asserted he
and Turner were dating while she was pregnant with his child, the import of
Turner being daily at Waynesia’s house is that, if Juror #2071060 saw Turner
at Waynesia’s, she had multiple opportunities to meet Torrence. Turner
claimed Juror #2071060 did meet Torrence at Waynesia’s on multiple
occasions. No other witnesses supported that claim and Juror #2071060
denied ever seeing him.
Juror #2071060 claimed she did not know Turner, she only knew “of”
her, and the two did not communicate with each other. No proof was offered of
shared birthday parties, holidays, or other family events related to the
contested half-sister. It was not arbitrary for the trial judge to weigh the
evidence and give more credibility to the juror than to one of Torrence’s alibi
witnesses, who was also the mother of his child. Torrence claims the shared
relationship between juror #2071060, Turner, and Waynesia produced
unavoidable contact between the juror and himself. The trial court found
otherwise.
11 This Court notes that Waynesia was not called as a witness. Both juror
#2071060 and Turner claimed her as a half-sister (though the juror disputes
that Waynesia and Turner were “real sisters”). It seems as if Waynesia would
have been important to corroborate or deny that Turner and the juror had
spent substantial time together. However, she was not called to testify. During
trial this is more understandable given the time constraints of when this issue
arose, but we note she was not called as a witness for the hearing on the
motion for a new trial or JNOV motion at a sentencing hearing conducted
several months after trial. We do not speculate as to what she might have said
if called as a witness.
Reviewing the totality of circumstances in the record, it was not
unreasonable for the court to determine the juror possessed the mental
attitude of “appropriate indifference” required to sit on a jury. Gabbard v.
Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). If this was a close call or the
issues could not be resolved with certainty, the juror should have been
excused. Futrell v. Commonwealth, 471 S.W.3d 258, 273 (Ky. 2015). The
record supports that this was not a close call. The juror adamantly told the
trial judge she did not know Torrence and was not biased. She even denied
Turner’s claim that the two of them shared a half-sister. The trial court had
full opportunity to view her responses to questions and make a determination
as to her credibility. The trial court likewise had the same opportunity to view
Turner’s responses and assess her credibility. “[DJeference must be paid to
the trial judge, who sees and hears the juror, in reviewing determinations of
12 impropriety of challenges for cause.” Penman v. Commonwealth, 194 S.W.3d
237, 252 (Ky. 2006), overruled on other grounds by Rose v. Commonwealth, 322
S.W.3d 76 (Ky. 2010).
Torrence further objects to the use of the transcript of jail calls attached
in an appendix to the Commonwealth’s brief. The transcript is a purported
summary of what was said during Torrence’s recorded jail house phone calls.
In that transcript, Torrence apparently said he did not recognize the juror but
indicated he would say he did. Torrence unsuccessfully moved this Court to
strike Appellee’s brief for citing to the transcript. The transcript was offered by
the Commonwealth and placed in the court file as part of an avowal at the
sentencing hearing prior to the trial court ruling on the motion for a new trial
or JNOV. The trial court did not have this purported transcript during trial
when ruling on the motion to excuse the juror and the motion for mistrial.
When the document was presented to the trial court as part of an avowal, it
was entered into the record. There is no indication the trial court read or
considered it when making the decision to overrule the motion for a new trial or
JNOV. The trial court was clear that the decision to overrule the motion was
based on the questions and answers from the hearings held during trial.
3. Mendacity and New Trial or JNOV motion Torrence also seeks a new trial based on juror mendacity. “To obtain a
new trial because of juror mendacity, ‘a party must first demonstrate that a
juror failed to answer honestly a material question on voir dire, and then
further show that a correct response would have provided a valid basis for a
13 challenge for cause.’” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003)
(quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984)). Torrence made no such showing here. The material question, “did the
juror know Torrence?” was asked during voir dire and answered by her silence.
When Juror #2071060 was asked the same question late in the trial, her
adamant spoken reply was she did not know Torrence.
Furthermore, any purported relationship between the juror and Turner
(one of Torrence’s alibi witnesses) was not close, as discussed at length above.
As to the juror’s mendacity regarding Turner, the juror was never asked during
voir dire if she knew or had a connection with Turner. Therefore, she could not
have lied about such a connection at that point. It is noteworthy that the
defense did not question jurors as to any knowledge of or connection with
Turner in spite of her being one of Torrence’s alibi witnesses. In fact, the juror
was never questioned about knowing Turner until after the jury had reached a
guilty verdict—a time after the alternate juror had been excused.
The trial court accepted the juror’s answers as truthful. As such:
On appeal, the factual findings of the trial court “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” CR 52.01. A factual finding is not clearly erroneous if it is supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is “[e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence ... has sufficient probative value to induce conviction in the minds of reasonable men.” Id. at 354.
Gullett v. Commonwealth, 514 S.W.3d 518, 523 (Ky. 2017).
14 4. Mistrial
Torrence also claims the trial court erred in failing to grant a mistrial. “A
trial court is authorized to use its discretion to declare a mistrial only when
there is a manifest necessity, when the right to a fair trial has been infringed
upon and the prejudicial event cannot otherwise be remedied.” Gray v.
Commonwealth, 534 S.W.3d 211, 215 (Ky. 2017) (internal citations omitted).
Having determined the trial court committed no error in failing to excuse the
juror, it follows that we find no manifest necessity existed for a mistrial.
After careful review of the record relating to Torrence’s claims that the
trial court erred by failing to excuse a juror, grant a mistrial, or grant a motion
for a new trial or JNOV, we find no error.
B. Historical Cell Tower Data Testimony Torrence raises four claims of error by the trial court in admitting
historical cell tower evidence obtained through an AT&T report and allowing
Detective Snider to testify utilizing that report. In summary, all four claims
involve the AT&T report, Detective Snider testifying as a lay witness about
information in the report, and whether the Commonwealth should have called
an expert witness to testify about historical cell tower data in the report. As we
find these issues significantly interconnected, we will review them as one
concern. Additional background information is necessary for analysis of this
issue.
As noted above, prior to trial, Torrence filed a motion for disclosure of
expert testimony and a separate motion to exclude any testimony regarding
15 historical cell tower evidence pursuant to RCr 7.24. Torrence did not file a
motion requesting a hearing pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), challenging historical cell tower
evidence. As previously noted, cell phone records from AT&T for Torrence’s
phone number with historical tower data, including latitude and longitude of
specific cell towers, were provided in discovery by the Commonwealth. The
Commonwealth’s response to the motions was:
Judge, these are AT&T records and they show what time each phone call was made. It is the typical AT&T records that we normally see where the phone calls are listed in a row in order of date and time, and at the end of each row it shows the latitude and longitude, and the angle from the cell tower, the location of the call being made. So, while yes there were a lot of incomprehensible phone records that were turned over as part of the package, there are also pages that are very familiar to us. That look like phone records or any records we would get in our own phone bills.
The Commonwealth indicated it did not have an expert, would not be
qualifying anyone as an expert, and would ask Detective Snider questions
about the cell tower data based solely on the AT&T records that anyone could
read, interpret, and apply. The Commonwealth assured the trial court the
records were verified.
In response, Torrence raised concerns with Detective Snider testifying as
a lay witness. Defense counsel stated:
And Judge, my understanding is that Detective Snider is effectively . . . that I want to contest that these calls, these records are accurate or that these longitude pings are inaccurate, effectively there is nothing that Detective Snider can actually answer as far as just this is what is in the report.
16 The court replied, “Then you can call your own witness to do that, would
be the way to challenge it.” The trial court overruled the motion to disclose
expert testimony as moot and denied the motion to exclude the testimony
pursuant to RCr 7.24. Torrence did not call any expert witnesses.
Detective Snider testified about the historical cell tower phone records
and the search warrant used to obtain the AT&T report. Detective Snider
indicated that he obtained the records in the course of his investigation in an
effort to confirm Torrence’s alibi that he was in the Blue Lick area picking up
his daughter when Thomas was shot.
Detective Snider testified AT&T maintains information for every AT&T
cell phone customer. Much of the information in the report is like familiar
phone bills the average cell phone customer receives with pages separated into
columns by phone number, call or text, date, and time.
Detective Snider pointed out each call line in the report contained
additional information not usually found on a customer cell phone bills which
was included in the report because of the search warrant request. The request
specified unique tower identification numbers for each cell tower Torrence’s
phone interacted with for calls or texts, the latitude and longitude location of
those specific towers, and a directional degree reading based on a 360-degree
circle or compass. This reading indicated the direction of the call or text
relative to the tower but did not provide an actual location of the phone when a
call or text was made. The report is for historical data only: it shows only
what happened (which tower a cell phone interacted with at what time), which
17 is different from real-time pinging location technology police use to track a
current location for a cell phone.
Detective Snider used a computer to open Google™ Maps on a video
display for the jury. On the Google™ map of the relevant parts of Louisville,
Detective Snider entered the location of the shooting on 26th Street, the Blue
Lick area where Torrence claimed he was at the time of the shooting, and the
location of two cell towers to which Torrence’s phone connected around the
time of the shooting based on the AT&T report. One of the towers showed cell
phone interaction for a call at 4:27 p.m. (immediately prior to the shooting) and
a second tower showed cell phone interaction for a call at 4:33 p.m. (a few
minutes after the shooting). The distance of the two towers from the shooting
location according to Google™ Maps was 1.131 miles for the first tower and
3,292 feet for the second tower.
Using the directional compass information from the report, Detective
Snider drew a “pie wedge” for each call that showed the direction from the cell
tower the phone was when it interacted with the tower. According to Google™
Maps, the Blue Lick area where Torrence claimed to be at the time of the
shooting was eleven miles from the 26th Street location of the shooting. No
towers in the Blue Lick area showed interaction with Torrence’s cell phone
around the time of the shooting. Detective Snider did not give an opinion
about Torrence’s location based on the report or the map he created during the
course of his investigation from the report data. The map was entered into
18 evidence. The phone records he utilized in creating the map during his
investigation were not entered into evidence.
On appeal, “[w]e will not disturb a trial court’s decision to admit evidence
absent an abuse of discretion.” Matthews v. Commonwealth, 163 S.W.3d 11,19
(Ky. 2005) citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996).
“The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)
(citing English, 993 S.W.2d at 945).
Both parties refer this court to Holbrook v. Commonwealth, 525 S.W.3d
73 (2017). In that case, we reviewed historical cell tower data analysis and
found the trial court did not abuse its discretion by permitting the introduction
of expert testimony by an FBI special agent regarding historical data analysis of
cell phone and cell tower records. The FBI Special Agent had specialized
training and experience in cell tower data analysis regarding the data, the
technology, the limits of that technology and what the data revealed. It is
important to this analysis that the agent did not offer an opinion as to the
location of the caller in Holbrook, but only as to towers that the phones
interacted with when calls were made.
This court revisited cell tower historical data and expert testimony in
2019 in an unpublished opinion, Rivera-Rodrigues v. Commonwealth, 2018-SC-
000197-MR, 2019 WL 2462783, (Ky. 2019). We affirmed the use of expert
testimony by a radio frequency engineer from Sprint (the phone company in
19 that case). As to the location of the callers, again no opinion was offered. We
stated:
As the Commonwealth contends, had Neeman opined that the sectors revealed that Rivera-Rodrigues was in the area of the murder during the time it was committed, the testimony would have required disclosure—as it would have amounted to expert opinion testimony. However, Neeman did not testify to that effect. Neeman testified explaining the sectors and which sectors were used by the phone number associated with Rivera-Rodrigues. He did not testify stating his opinion of Rivera-Rodrigues’s location throughout the day of the murder.
Id at 4.
We are now called upon to review this trial court’s ruling permitting
Detective Snider to testify as a lay witness and apply historical cell tower data
with no underlying expert opinion explaining the technology. Detective Snider
used the AT&T report to locate and mark tower latitude and longitude points
on a Google™ map. The Commonwealth asserts anyone could read the
records, open a Google™ Maps program on a computer, enter the addresses,
locations, or coordinates including latitude and longitude, and obtain the same
results. In summary, that meant Detective Snider’s testimony qualified as lay
testimony. We agree.
In this case, the Commonwealth did not present the map to make a claim
as to Torrence’s location at the time of the shooting. Detective Snider was
careful to avoid any opinion on that subject while he testified from the records
and marked the map. In closing argument, the Commonwealth pointed out the
map with its marked locations did not support Torrence’s claimed alibi. The
map was not central to the Commonwealth’s case, which focused on Thomas’s
20 account of the shooting and the subsequent police investigation that supported
his account. Rather, central to the Commonwealth’s case was the police
tracking down a Gray Ford Explorer described by Thomas as involved in the
shooting, connecting that Ford Explorer to Torrence, securing nearby home
surveillance video, locating witnesses, utilizing lab and evidence technicians,
and obtaining a statement from Torrence that was not helpful to his defense
and was, in many respects, incriminating. Problems with Torrence’s alibi
inferred from the marked tower locations on the map were a small part of the
Commonwealth’s overall case.
Use of phone company records in police investigations is ever more
commonplace because cell phones offer law enforcement significant
information. Cell tower reports do not show exactly where someone’s cell
phone was at specified times, but often do show where the cell phone was not.
In this case, Detective Snider explained to the jury how he obtained the cell
phone records, what the records detailed for each call, and applied the
information from the records to a map program. Only in closing argument did
the Commonwealth assert a reasonable inference could be drawn from the
points marked on the map.
Could a juror apply the longitude and latitude coordinates from the
report to a Google™ map? While there is no absolute answer to that question,
we note elementary-school-aged children in Kentucky are offered or taught
basic plotting on graphs. The Kentucky Academic Standards for the Kentucky
Department of Education for Mathematics adopted in 2019 for fifth grade sets
21 out the following in the Grade 5 Overview for Geometry. “Graph points on the
coordinate plane to solve real-world problems” (p. 97). The overview on page
111 states “After gathering data on a question, students discuss which graphs
are possible and which ones are not possible, and why. Students select one
type of graph that fits the data gathered and create the graph, by hand, or by
using technology.” This language coincides with what Detective Snider did in
this case. Simple graphing of data points is something we can reasonably
expect jurors to know or at least understand without relying on an expert’s
explanation.
We find support for Google™ mapping of cell towers by a lay witness in
federal authority. In United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill.
2012), a case remarkably comparable to the current case, a reviewing court
was called upon to determine if a special agent could testify as a lay witness
concerning cell tower data and references that could be drawn from it. The
court held that the agent could testify as a lay witness as to some matters, but
other issues, including the granulization theory of cell phone location based on
cell tower data, required expert testimony. Id. at 954. As to simple mapping of
cell tower locations, the Illinois federal court said:
As an initial matter, the government argues that a portion of Special Agent Raschke’s testimony is admissible under Rule 701, specifically, his testimony concerning maps he created indicating the location of certain cell towers used by Evans’s phone during the course of the conspiracy in relation to other locations relevant to the crime. . . . The court agrees that using Google Maps to plot these locations does not require scientific, technical, or other specialized knowledge and that these exhibits are admissible through lay opinion testimony under Rule 701.
22 Id. at 953.
Turning to other neighboring states, we find that many of their state
appellate courts allow non-experts to plot points on a map from cell tower
reports. Tennessee, in an unpublished opinion often cited in subsequent
cases, permitted the plotting of cell tower locations on a map by a detective
concluding no specialized knowledge was required. State v. Hayes,
M200802689CCAR3CD, 2010 WL 5344882, (Tenn. Crim. App. Dec. 23, 2010).
Tennessee in a separate unpublished case permitted a detective to testify about
cell tower data, not as an expert, but as someone who read the “how to” booklet
that came with the cell report. State v. Greer, E201500922CCAR3CD, 2017 WL
2233647 (Tenn. Crim. App. May 17, 2017).
In 2018, Ohio reaffirmed earlier cases comparing crime scene locations
to cell phone data records as not requiring specialized knowledge, skill,
experience, training or education regarding cellular networks. State v.
Johnson, 110 N.E.3d 800, 807 (Ohio Ct. App.), appeal not allowed, 104 N.E.3d
792 (Ohio 2018). Ohio also allows cell tower mapping by lay witnesses to do
more. Typically, cell tower mapping by a lay person permits an inference to be
drawn that the cell phone owner was in the area at the listed time, to
corroborate other evidence of the defendant’s presence at a crime scene. State
v. Bradford, 101 N.E.3d 710, 725 (Ohio Ct. App. 2018). See also State v.
Daniel, 57 N.E.3d 1203, 1218 (Ohio Ct. App. 2016) and State v. Boaston, 100
N.E.3d 1002, 1014 (Ohio Ct. App. 2017), appeal allowed, 100 N.E.3d 445 (Ohio
2018).
23 We also note two cases from Indiana. We are mindful that both cases
have been reversed either in a subsequent appeal of the same case or by United
States Supreme Court remand, however, we note for both cases the reversal or
remand was on other grounds. The first is Zanders v. State, 73 N.E.3d 178,
188 (Ind. 2017), cert, granted, judgment vacated, 138 S. Ct. 2702 (2018).
The reviewing court discussed the testimony of “skilled witnesses.”
A skilled witness, by contrast, is a person with “a degree of knowledge short of that sufficient to be declared an expert under [Indiana Evidence] Rule 702, but somewhat beyond that possessed by the ordinary jurors.” A skilled witness, then, will “perceive more information from the same set of facts and circumstances than an unskilled witness would.” The skilled witness may give an opinion “(a) rationally based on the witness’s perception; and (b) helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.”
Id.
The court in Zanders allowed the detective to testify in order to help the
jury understand Sprint phone records. Any dispute about the accuracy of the
records went to the weight not admissibility. Id. at 189.
The second Indiana case deals with maps, latitude and longitude
coordinates and assisting the jury in understanding the records. The court
For instance, the exhibit containing the challenged phone records is extremely thorough and difficult to comprehend because it contains tables of primarily coded or numerical data that comprises numerous pages as to each call or message. State's Ex. 148. In fact, the maps—not the phone records—were the method for conveying the estimated locations to the jury because the phone records themselves contained only latitude and longitude coordinates that would likely have been meaningless to the jury without the maps.
24 McCowan v. State, 10 N.E.3d 522, 532 (Ind. Ct. App.), transfer granted, opinion
vacated, 14 N.E.3d 44 (Ind. 2014), and opinion affd in part, vacated in part, 27
N.E.3d 760 (Ind. 2015).
The court in McCowan noted the detective did not testily as an expert but
testified from four limited specialized trainings attended over a four-year period
concerning general principles involving cell phone technology. The detective
performed no calculations and provided limited background information. Id.
at 532-33.
In summary three neighboring states, Ohio, Tennessee and Indiana
permit lay testimony for marking maps with data from cell phone records. The
defense can cross examine the witness as to the reports and underlying data as
well as contest the maps. The defense can call expert witnesses that arrive at
different conclusions based on the same data and that is what occurred in
McCowan.
All three state courts were clear that analyzing data from the records and
explaining what it means beyond simply marking coordinates on a map,
requires an expert. We agree with our sister states’ conclusions: marking
points on a graph—in these cases a map—based on a cell phone report
including latitude and longitude of cell towers, does not require an expert.
We emphasize that this new rule with respect to the use of lay testimony
to present historical cell-tower data is limited in its application. Our holding
today is that lay testimony may be used to present historical cell-tower data so
long as the testimony does not go beyond simply marking coordinates on a
25 map. If the witness seeks to offer an opinion about inferences that may be
drawn from that information, that witness must be presented as an expert
witness under KRE 702 (for example, if a witness seeks to provide an opinion
as to the location of the cell phone during the relevant time based on the
plotted coordinates).
The investigative usage of the historical cell tower report in this case is
distinguishable from our holding in McNeil v. Commonwealth, 468 S.W.3d 858
(Ky. 2015). In McNeil, a detective used cell-phone records to identify the owner
of a cell-phone number. Id. at 871. In contrast to the detective’s conduct in
McNeil, Detective Snider’s use of the historical cell-phone data in this case
required a much greater degree of “knowledge, skill, experience, training, or
education,” KRE 702, than simply reading whose name was listed as the owner
of a cell-phone number. Also, the detective in McNeil was permitted to show
the jury during his testimony a copy of the phone record to provide a
“demonstrative aid” to the detective’s testimony explaining how McNeil became
a suspect in the case. McNeil, 468 S.W.3d at 872. In contrast, here, Detective
Snider used the cell-phone data to plot geographical points on a map, which
was entered into evidence, to cast doubt on Torrence’s claimed alibi. The only
reason this Court allowed the detective’s testimony and use of the records in
McNeil was that the detective was not offering any opinion as to the inferences
that may be drawn from the cell-phone records. In fact, the trial court did not
initially allow the cell records to be introduced into evidence because they
would not be presented by someone from the phone company; i.e. by someone
26 who could authenticate them. For the foregoing reasons, we hold the trial court
did not abuse its discretion in overruling Torrence’s motions and permitting the
detective to testify as a lay witness and mark coordinates on a map based on
cell tower historic data reports.
C. Photo Array
Torrence’s final assertion of error is the trial court failed to suppress and
exclude from evidence a photo array identification and a subsequent in-court
identification, both made by Thomas. The claim arises because Thomas’s
sister or girlfriend (the record is not entirely clear as to which one) showed him
a single photograph of Torrence derived from a social media site just before
police arrived and showed Thomas a photo array. Torrence claims the police
photo array identification following Thomas seeing the single photo was a
procedure so suggestive as to render any identifications unreliable. The trial
court noted the motion was untimely and overruled it finding no state action
was involved in the single photo being shown first.
The trial court’s decision will be reviewed under an abuse of discretion
standard. An abuse of discretion occurs when a “trial judge’s decision is
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 944.
Some additional background information is necessary as we analyze this
issue. Thomas told police after he was shot, but before he was taken to the
hospital by ambulance, that an individual he knew as “Man-Man” shot him.
After being taken to the hospital and rushed to surgery, Thomas was placed in
27 a medically induced coma, in which he remained for several days. After coming
out of the coma, Thomas told the police that prior to the day of the shooting, he
had previously met the shooter, knew generally where he lived, and knew him
by his nickname, Man-Man. In a subsequent interview with detectives on May
26, nine days after the shooting, Thomas picked Torrence from a photo lineup.
The same day Thomas was shown the photo array and identified
Torrence, his sister and girlfriend visited him at the hospital. Prior to the
Detectives’ arrival, the visitors showed Thomas a single photo of Torrence
downloaded from a social media post. Shortly thereafter, Thomas reviewed a
police-generated six-photo array and picked Torrence as the shooter. After the
photo array identification, Detective Snider collected the single photograph
from Thomas’s family and included it in the police file. Although police had
asked the family for help in identifying the shooter, there is no evidence in the
record Thomas was shown the single photograph at police request.
We begin with a review of the photo array. It is a standard police array
containing six facial photographs including head and neck, all made in front of
a grey background. Six African-American men are shown wearing black T-
shirts and are approximately the same age. Three of the men have facial hair
ranging from a goatee to a slight beard, and all six have mustaches. Skin color
in the photos ranges from three with darker tones to three with lighter tones.
No photograph has any special or unique features or attributes that draw
attention to it. Torrence raises no issue with the photo array photos, but
objects to the identification made from the array by Thomas after he was
28 shown a single photo of Torrence by his sister or girlfriend as they visited him
in the hospital. A black and white copy of the single photo collected by
Detective Snider from Thomas’s family was admitted into evidence and shows
Torrence sitting in a vehicle wearing a hat and track suit, his face clearly
visible.
Torrence claims state action is present in this case because the
Commonwealth claimed, in opening and closing arguments, that police
recruited Thomas’s family to help them determine the shooter’s identity.
According to Torrence, this “recruitment” resulted in state action when the
family showed Thomas the single photograph before detectives showed him the
photo array.
State action is required for the trial court to exclude an identification
procedure. A due process check on the admission of eyewitness identification
is applicable when the police have arranged suggestive circumstances leading
to an identification by an eyewitness. Perry v. New Hampshire, 565 U.S. 228,
237 (2012). The United States Supreme Court has not extended pretrial
screening for reliability of identification to situations not arranged by law
enforcement. Id. at 233. Instead, the U.S. Supreme Court has relied on other
rights and opportunities to challenge the suspect identification including the
right to counsel, vigorous cross-examination, and jury instructions requiring
proof beyond a reasonable doubt. Id. at 237.
29 This Court has likewise found those and other protections sufficient to
protect the rights of defendants when it comes to suspect identifications. We
said:
We trust that these same safeguards will continue to protect the rights of defendants first identified in court, leaving the juiy with responsibility for assessing the credibility of the identification in each case. As often noted, throughout Anglo-American history, “[decisions as to human life, liberty and public and private property have been routinely made by jurors and extraordinary confidence has been placed in this decision-making process.” Curry v. Fireman’s Fund Ins. Co., 784 S.W.2d 176, 178 (Ky. 1989).
Fairley v. Commonwealth, 527 S.W.3d 792, 799-800 (Ky. 2017).
As we further made clear when it came to suspect identifications,
“Absent the ‘taint of improper state action,’ Perry establishes that the jury and
the ordinary rules of trial provided Jeter with all the process due him for
contesting Albrecht’s testimony. Thus, on the asserted due process grounds
Jeter is not entitled to relief.” Jeter v. Commonwealth, 531 S.W.3d 488, 495
(Ky. 2017).
In this case, there is no evidence in the record that Thomas’s family or
girlfriend was acting at police behest when they located and showed Thomas
the single photograph of Torrence downloaded from social media. Thomas
viewing the single photo and the police photo array on the same day, after
coming out of a medically induced coma, based on the record appears to have
been a coincidence. Thomas, at that point, was finally physically able to speak
to someone about the shooting, and meeting with his family and police on the
same day is not particularly suspect. That the two showings happened on the
30 same day was a result of Thomas’s critical injuries, extensive medical
treatment, and being one of the first opportunities for him to view photos.
Absent improper state action, the weight to give a suspect identification
is best left to juries to sort out. “A primary aim of excluding identification
evidence obtained under unnecessarily suggestive circumstances ... is to deter
law enforcement use of improper lineups, showups, and photo arrays in the
first place.” Perry, 565 U.S. at 241 (citing Manson v. Brathwaite, 432 U.S. 98,
112 (1977)). That exclusionary goal is absent where, as here, there has been
no state action.
A review of the record shows that other constitutional protections
afforded Torrence were active in this case. One clear example from the record
is worth noting. When Thomas denied multiple times during the
Commonwealth’s questioning that he saw the single photo before he saw the
photo array, and even went so far as to claim he had not seen the single photo
at any time before he testified, Torrence’s counsel seized the opportunity.
Under capable cross-examination by defense counsel, Thomas changed his
mind and his testimony. With some skilled questioning, Thomas conceded
seeing the photo first.
Thomas acknowledged seeing the single photo when confronted with an
audio recording of his statement to the police. After hearing his own words on
audio tape played for the jury, Thomas acknowledging seeing the single photo
first. The Commonwealth’s key witness was caught over-stating a claim and
forced to backtrack on testimony given minutes earlier that he never saw the
31 single photo prior to trial. In the best possible light, he was mistaken, or
perhaps, when viewed in a different light, Torrence’s counsel caught him in an
outright lie.
Was Thomas’s significant medical treatment the cause of his
misstatement, did his memoiy slip over time, or were the repeated denials an
effort to make his identification of Torrence appear untainted? These possible
questions went unanswered and regardless, the jury saw classic impeachment
of a witness with his own words. Thomas’s about-face concession as to when
he saw the single photograph was a result of effective cross-examination by
defense counsel confronting him with a prior recorded statement.
The presence of counsel, vigorous cross-examination, and a jury
instruction requiring proof beyond a reasonable doubt were among the
protections noted in Perry and present in this case. Coupled with these
protections is the absence in the record of any proof of state action in the prior
showing of the single photo.
Without state action, the two-prong test often cited requiring the trial
court to inquire as to whether the identification was unduly suggestive, and if
so, then determine was it admissible under a totality of circumstances test, is
inapplicable. See Barnes v. Commonwealth, 419 S.W.3d 584 (2013); Duncan v.
Commonwealth, 322 S.W.3d 81 (2010); Oakes v. Commonwealth, 320 S.W.3d
50 (2010); King v. Commonwealth, 142 S.W.3d 645 (2004); Wilson v.
Commonwealth, 695 S.W.2d 854 (Ky. 1985).
32 The trial court’s decisions to permit the identifications, outside court as
well as during trial, were not an abuse of discretion. With no state action
involved in showing Torrence the single photograph, the decision to overrule
the motion without a hearing was consistent with caselaw and supported by
long standing legal principles.
III. CONCLUSION
After careful review of the issues presented, we affirm Appellant’s
convictions and their corresponding sentences.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Franklin Todd Lewis Lewis Law, PLLC
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
Emily Lucas Assistant Attorney General