IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS ) CASE NO ST 2018 CR 00037 )
Plaintiff )
vs )
)
TREVORNE LAKE )
) Cite a: 2022 VI Super 82 Defendant )
) ~
H TIMOTHY PERRY Esq SAMUEL JOSEPH Esq Virgin Islands Department ofJusticc MARY ANN MATNEY, Esq GERS Building 2’“I Floor Office of‘he Tenitolial Public Defender 34 38 Kronprindsens Gadc P O Box 6040 St Thomas Virgin lsldnds 00802 St Thomas Virgin Islands 00804 Altai nev far Plamlsz Attorneys [or Defendant
MACKAY KATHLEEN Judge
MEMORANDUM OPINION
111 THIS MATTER is before the Court on a Motion m Ltmme t0 Exclude Cellular Location Data and Demand for Dauber! Hearing ' filed by Defendant Trevome Lake ( Lake or Defendam ) on February 4 2022 Z The People of the Virgin Islands ( People ) filed an
' A “Doubc/l hearing" refer: m a well settled sxandard used to determine me admissibility ofexpcn mummy pumuam to Fedeml Rule 01 EVianLt‘ ( l R E ) 702 ealablished by the United Smes Supreme Court m Dunbar \ ML/ILI/ Dow lemmuu/qul; Inc 509 U S 579 (1993) and officially adopted by lhe Virgin Islanda Supreme Court In A/m/Im 8‘le [m \ Lembach 64 V I 400 (VI 2016) (holding me Drmbm/ standard should govern me admission of expen lemmnny In the Virgin Idanda") ” Anached m 1115 motion I eke filed one exhibit Exhibit A FBI Cellular Analysis Survey Team Repon on Trevome Lake 5 cell phone {or May 16 2017
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Opposition to Defendant 5 Motion to Exclude Cellular Location data on April 18 2022 3 For the reasons discussed herein, Defendant’s motion will be denied
FACTUAL AND PROCEDURAL BACKGROUND 112 The People allege Lake committed a murdet on May 16 2017 at 1 13pm in a highly trafficked area of Smith Bay in St Thomas U S Virgin Islands The Court will provide a brief overview of the timeline for discovery and other filings in this matter, as pertinent to the instant motion On February 25 2019, the Defendant filed a notice 01 alibi indicating that Lake was with a female in Bovoni, St Thomas U S Virgin Islands at the time ofthe alleged murdex On August 28 2018 4 and again on September 12 2019 5 the People provided Defendant with AT&T cell phone records associated with Defendant 5 cell phone on the date of the murder Thereafter in Februaly 2020 the People purportedly submitted the cell phone1ecords t0 the Federal Bu1eau 0f 1nvestigdtion( FBI ) 5 Cellular Analysis Survey Team( CAST ) and Supervisory Special Agent Matthew Carmau ( SSA Carman )6 perfo1med an analysis and created his CAST report On April 16 2020 the People filed a Notice of Witness Teitimony providing Defendant with SSA Carman s CAST report and indicating they intend to call SSA Cdrmdn as an expert witness at trial On September 14 2021 Defendant filed a supplemental discovely request seeking reports
‘Attached (0 I116" opposition the People filed two exhibits Exhibit 1 Curriculum Vllae ofSupcrvisory Special Agenl Matthew Carman and Exhlbil 2 FBI Cellular Ana1y<is Survey Team Report on Trevome Lake 5 cell phone for May 16 2017 ‘ lhc People 5 Fun Supplemental Dlsuovery filed Augusl 18 2018 state: 11 produced A1&1 [elephone Records dated 6/16/2017 (16 pages) 5 The People 9 Fourth Supplemental Digeovcry filed September 12 2019 states it produced (.311 Phone Records (xxx xxx xxxx) conlaining ATT Record: Key and 2x Report AU 2273592 (FBI and Text documents) Fhologrztphs/lep cl geo 10Latl0n of murder scene ATT TOWER DATA Repurt AU 2758529 (PDF and Text documents) Detail Records Report and Phone Summary Report (The court has redacted the cell phone number that i: identlfied in the discovery) 5 Both parties refer to [1H5 expert witness a Cannon," but the whites: s C V spells 1113 name a: Carman Theretore, the Conn will use the witness s own spelling 01111; name
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peniuent to the cellular location data, among other requests On January 11 2022 the People responded to the request but did not include any new attachments 1D Pursuant to Virgin Islands Rules of Evidence( V I R E ) 403 and 702 Lake now moves to exclude the cellular location data and SSA Carman s testimony from trial Lake argues that (l) the expert testimony will not help the tn'ei of taut but rather will mislead the jury' (2) SSA Cdrman s testimony will not be based on scientific facts or data and is not the product ofteliable methodology; (3) the cellular loadtion data has only ‘miniscule" probative Value, which is outweighed by prejudice to Lake; and (4) a Dmlbert hearing must he ordered fer the Coun to asses: the relevance and reliability of the cellular location data The People counter with a detailed explanation of SSA Carman’s anticipated testimony and an overview of comprehensive legal precedent supporting CAST methodology and ecllulai location analysis The People further argue that the cellular location data provided will be relevant, ieliable, and probative, thereby satisfying all the Daube/l requirements and rendeling the evidence admissible Without need for a Daubert hearing Lake filed no reply to the People’s comprehensive bliefing
DISCUSSION
A The Court finds the proffered evidence is relevant and its probative value is not substantially outweighed by prejudice to Lake
1M As a threshold matter, the Court must determine whether the proffered evidence is relevant and sufficiently probative t0 be admissible at trial, pursuant to the pertinent Virgin Islands Rules of Evidence 1T5 V I R l: 401 states “Evidence is relevant if (d) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the tact is of consequence in
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determining the action ” V 1 R EVID 401 7 Even 1fthe tendency is minimal, it is enough to satisfy the 1equirements for relevance under V I R E 401 Thomas v Vzrgm Islands 60 VI 183 196 (V 1 2013)g (citing Untied States v dean 485 F 3d 1214 1218 (10th Cir 2007?) V I R E 401 dacs not require the evidence to be dispositive of a fact in issue; quite the opposite, “the bar is much lowel and simply requires that the existence (or 11011 existence) of such fact make it more or 1esslike1y Osmium v People 58 V1 531 563 (V 1 2013)‘0 (citing People \ Tadmarm 53 V1 431 451 (V 1 2010) (Swan J dissenting)“ '2) V 1 R E 403 states The court may exclude relevant evidence it its probative value is substantia1ly outweighed by a danger of one or more 01 the following unfair prejudice; confusing the issues, misleading the jury; undue delay, wasting time or needlessly presenting cumulative evidence V 1 R EVID 403 '3 By definition, all relevant evidence will be prejudicial to one of the parties 31/111 \ People 57 V 1 455 464 (V I
7 In order to interpret V 1 R E 401 the Court considers cases decided ptior to the adoption nfthe Virgin Island: Rule: of Luanec on March 31 2017 [n Ia Arlo/marr 0/1/1: VI Rules (1/51 trims? Promulgatitm N0 2017 02 2017 V1 Supreme LEXIS 21 (v 1 Apr 3 2017) All at the cases uted 1n thi: Semen A interpret the F R E The Current vctsion ofF R E 401 is identical to current V I R F 401 11 a different vemcm of the federal rule was coneidered by any case cued herein, the tom will note the changes and whether those difference: unpact mterpretatmn at the rule 8 Ihomax \ People oflltc Vugm lilzmrk cues to F R F. 401 F R E 401 was amended to 1ts current version in 2011, 30 m 2013 1- R E 401 was 1dent1ea1 to the current Version and thereby identical to current V I R E 401 9 UmmdSmlest J01 (Inn ones to F R E 401 In 2007, F R E 401 [cad a: follows mRelevant evident»Y mean: evidence havmg any tendency to make the existence of any fact that i: of consequence to the determlnalion of the action more probable or less probable than 1! would be without the evidence " While techmcally diflerent from the current version of current V 1 R E 401 the Advisory Committee Notes 1nd1eate that the amendments to this \ersiun to yield the current version, “ate intended to be stylistic only [and] [t]here i: no intent to Change any result in any ruling on evidence admtssththty Tee FED R EVID 401 advtsory committee : notes to 2011 amendmenl "1 01mla_(t 1 People aftht. VHgm [slum]; cites to F R 1: 401 The 2013 verston 01 F R E 401 i: Identical to the current F R E 401 and Is therefore identical to Current V 1 R L 401 “ Pcap/c oft/IL Vugm Bland: \ Tudmmm 0116:“) 1 R L 401 as well1s V 1 Com ANN tn 5 35 771(2) whtch at the tune was within the Umform Ru1es of Evidence applteable to the Vitgm Islands Then applicable 5 V I C § 771(2) defined “relevant eudence as “evtdence having any tendency in team to pmVe any material fact ” Again, the (.oun findg this definttton to he substantively the same d: current V 1 R E 401 ‘7 Although the reference to 5 V 1 C § 771(2) 1: within the diesenting opimon, the only inloxmation utilized within the dtsaent 151118 language 015 V 1 C § 771(2) 3: 1t Wm at the time the case was decided “ As dtscussed sttpm at note 7, in order to interpret V 1 R 1: 403 the Lam has cued to tasee that mterpreted F R E 403 prior to the adoption ofthe Vtrgm Islands Rules ovaidenee Currently F R E 403 IS 1denlica1 to current V I R 1: 403 As above» 1fatty of the ctted cases interpret a ptevtuu: veteion ofthc rule, the Court will note the difference and detemlhte whether the interpretation of the rule is impacted
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2012)" (citing United Stale: v Dzllon 532 F 3d 379 391 (5111 Cir 2008)”) The term unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some eoneededly relevant evidence to lure the faetfinder into declaring guilt on a ground different from proof specific to the offense charged Mulleyi People 51 VI 404 411 12 (V I 2009)[6 (quoting 01d Chiefi United States 519 U S 172, 180 (1997)”) Further unfair prejudice is measured by the degree to which €1qu responds negatively to some aspect 0fthe evidence unrelated to its tendency to make a fact in issue more or less probable 811/11 57 VI at 465 (quoting Kreppm Gm tafthe VI 47 VI 662 674
(D V 1 App Div 2006)”) 116 Lake argues the proffered location data is based on a mere estimation, and any information
presented to the Jury by SSA Carman as an expert witness would lead the jury to believe Lake was definitively located in a specific location at the time 0fthe alleged murder thereby prejudicing the Defenddnt Accordingly Lake contends the proffered evidence will mislead the jury sueh that its “miniscule ’ probative Value is substantially outweighed by unfair prejudice to Lake, in violation ofV I R E 403 The People respond that SSA Cannan s testimony will not mislead the jury but
H Brill! y People oflhc VI/gm Islands cites t0 F R I. 403 In 2012 the F R E 403 Wm identical to eunenl V I R I: 403 '5 United Staten Dillon cites to F R E 403 In 2008 F R E 403 read as follow: Although relevant evidence may be excluded ifits prohalive Value is substantially outweighed by the danger efunfair prejudiee nonfusion ofthe issues or misleading the jury or by considerations of undue delay waste 01 ttme or needless presentation of eumulative evidence Although technically slightly different {tom current V I R E 403 the Lourt finds the 2008 veraion of l- R L 403 to be substantively identical to the current V I R E 403 '5 Mulle) \ People nf/Iu VI/gm [Altmth interpreted F R E 403 as “ ell as 5 V I C § 885 In 2009 F R E 403 “as the game m it wa: in 2008, supra al note 15 In Mulls}, the Court notes ”the penment clause 01 the federal rule contains virtually the same language a: Section 885 Mulley 51 VI at 411 Aeomdmgly the Court does not find any aubatantive difference to the rules interpreted '7 01d Chzef\ Untied Tami citea to F R E 403 In 1997 the rule stated in pertinent part that relevant eudence may be excluded when its “probative value i> aubstanttally outweighed by the danger ofunfalr prejudice, Lunfusion of the inuea, or misleading the jury or by Lonaiderations of undue delay, waatc of time, or needleas presentation of cumulative evidence ’ Again, the Court find: this rule to be suhstanlively the game as current V I R E 403 '3 Kleppsi Gommmem 011m Vugm [slum]; L11€:lOI R E 403 In 2006 F R E 403 was the same as it wet: in 2008 mp7” at note 15 Accordingly Ihe Conn don not find any substantive difference to the rules interpreted
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rather assist them in assessing and understanding the People’s allegations regarding Lake’s movements on the date 0f the alleged murder The People additionally Loneede that the cell phone location data and corresponding CAST repmt are not abmlutely precise and that they will indicate and explain the generality of the location data to the Jury They argue the testimony and data regarding the geographic location of Lake’s cell phone on the date and time of the alleged murder are relevant and their probative Value is not outweighed by prejudiee to Lake 117 Defendant 5 location at the time ufthe alleged murder is a significant factnr in the People a burden To prove Lake guilty, the People have the burden ofindieating Lake’s whereabouts at the time of the alleged murdei, especially considering Lake’s notice that he has an alibi and wai not in Smith Bay at the time ofthe alleged murder Thus the Court finds the cellular location data and SSA Carmdn a testimony thereon to be relevant to possibly showing Lake’s location on the day in question and that the probative Value of such evidence is not Substantially outweighed by unfair prejudice to Lake fls Under V I R E 401 evidence with rmv tendency to make a fact more or less piobable is ieleVdnt 50 long As the fact is of consequence in determining the action The Court Agrees with Lake’s argument that the cellular location data cannot be taken as dispositive of Lake‘s location on the date of the alleged murder, and even the People concede the inexaetitude of location intonnation gleaned from the cellular location data Regardless the cellular location data and SSA Carman e testimony explaining same has the tendency to make the location of Lake 5 eel] phone in a general geographic area at the time of the alleged muider mm 6 or less probable, especially in light of Lake’s notice of alibi The Cnurt is not pereuaded by Lake 5 argument that the probative value associated with the location evidence is “miniseule” and thereby substantially outweighed by prejudice to Lake As held by the Virgin Islands Supreme Court every piece at evidence will
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be prejudicial to one party or the other See eg Bill”, 57 V I at 464 The distinguishing factor fox the purposes of the V I R E 403 balancing test is whether ajury would respond negatively to some aspect of the evidence unrelated to its tendency to make a fact in issue more or less probable Id at 465 Given the People 5 concession that SSA Cdrman will testify that the location data is based an educated estimations and is not dispositlve of Lake 5 location at the time of the alleged murder, the Court finds little risk for significant adverse effects to the jury’s judgment from the presentation of this evidence Additionally, Lake will have the opportunity to cross examine SSA Carman to ensure the estimated nature of the location information is laid bare 1" The Court agrees with a federal district cnun, which noted that an “explanation of how cell towers work and what general location a cell phone user must have been in at the time his cell phone connected to a particular cell towel would be helpful to thequ in understanding the government 5 claims about the movements and whereabouts of [the defendant] Umrui States v Guitar: 2015 U S Dist LEXIS 138329 at *8 (D N J 2015) [hereinafier Gafszm I’] 21de 744 F App X 97 (3d Cir 2018) [hereinafter Gatvon 11‘ ]20 (citing Unmd State: \ Jones 918 F Supp 2d 1 S (D D C 2013)) The Court finds the ptoffered evidence to be relevant and probative under the Virgin Islands Rules of Evidence because the cellular location data and SSA Carman s CAST report and testimony will provide thejury with context regdtding Lake’s location on the ddte 0fthc alleged murder The jury can then decide for itself how much weight to give the evidence
'9 Lake may also call his own expert Mme» to rebut the tesltmony at the People‘s expert 1“ 1n (71113011 [I the Third Ctreutt affirmed the trial court‘: declaion that a Dumber! hearing on cell site locattun data was not neeessary, elating we agree thh [the district coun’:] rcaaoning and adopt 11 83 our own Guise" \ United Slam 744 F App x 97 101 (3d Ctr 2018) The Third Ctreuit thereby effectively adopted the analyais from the distrtct court and upheld the Valtdity and methodology of cell Stte location data and testimony thereon by a qualified expert Though not bmdtng on this Court that Third CtrCull deeiston came: great “eight
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B SSA Carman’s testimony is admissible under V l R E 702 and its supporting case law
19 V I R E 702 itatei A witness who is qualified as an expett by knowledge skill experience training or education may testify in the form of an opinion or otherwise if (a) the expert 5 scientific, technical, or other specialized knowledge will help the trier offact to understand the evidence or to determine a fact in issue, (b) the testimony is based on sufficient facts 01 data, (c) the testimony is the product afreliable principles and methods and (d) the expert has teliably applied the pxineiples and methods to tho tacts 0f the case VI R EVID 702 2‘ Interpreting V I R E 702, the Virgin Islands SuperiOI Coutt has utilized a standard requiting satisfaction of three major requirements In re Catalyst thlg 55 VI 3 ll 12 (V 1 Super Ct 2010)72 (citing Pmeda ‘ Ford Motor Co 520 F 3d 237 244 (3d Cir 2008)”) These requilcments ale (1) the expert must be qualified; (2) the expert must give an opinion “about matters requiring scientific, technical, or specialized knowledge,” obtained or derived from a reliable process or technique, and (3) the expert‘s testimony must “assist the trier of fact,” in othel words, it must “fit” the facts of
7' As discussed, mpm at notes 7 and 13, many cases cited herein inlerpre! F R E 702 35 they were decided pnur to the adoption ofthe Virgin Islands Rulea 0f Lvtdcnee m ”017 Currently F R E 702 i: identical to current V I R E 702 As above If any 01 lhe oiled Laue: Interpret a pre\ ions verslnn of the mle the Court will note the difference and delenmne whether interpretation of the rule is impacled “ In 12 Cumin! Imgunun Little to 1 R L 702 In 2010 F R F 702 read as follow:
IF scientific technical or other spechlized knowledge will assist the mar of hot l0 understand the evidence or to determine a fact in lune, a witness qualified as an expert by knowledge, sk|ll, experience training, or educauon may testify thereto m the form of an optmon or Othelwl:€ 1f (1) the lesllmony is based upon auffielenl tacts or data (2) the teatimony ts the product at reliable principlea and methods and (3) the witne» has apphed lhe principle: and mcthode reliably to lhe facts ol the Lane While not Identical to Current V l R L 702 the Conn finds [hm the rule.» are :ubstanlively Identical and lhe changes do not tmpztct Interpretation 0fthc rule 7‘ Pmeda \ Fold M0101 Co mm to F R I. 702 The version of]: R E 702 referenced in Pmtzrla IS the same a: that utilized in Ca/aLtvt ngalum mp”: at note 22 Accordingly, the Court does not find any substantive difference to current V I R E 702
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the ease Id at 12 (citing Pmeda 520 F 3d at 244 In re P1101: R R Yard PCB Ling 35 F 3d 717 74143 (3d Cir 1994)“) 1110 The Virgin Islands Supreme Court has also adopted the United States Supreme Court holding from Daubezt t Merrell Dam thmaceutlca/s Inc , which finds a trial court must determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or detetmine a fact in issue " Antllles Sch Inc , 64 V 1 at 41625 (quoting Daubert v Merle]! Dow Phnrmncuzticals Inc, 509 U S 579, 592 (1993)“) Virgin Islands Superior Court Judges serve as ‘gatekeepers when determining whether an expen 5 Opinion is admissible Armlmn \ Buchar 72 VI 50 76 2019 V1 SUPER 153 11 1627 (quoting Dauberl, 509 U S at 597) Judges are granted “broad discretion in assessing the relevance and reliability at expelt testimony and perfmming their gatekeeping function Grimm [I 744 F App x at 102 (quoting Untied Sums \ Alatolre 222 F 3d 1098 1 100 (9th Cir 2000)”) $111 Lake’s motion demands the Court conduct a Daubert hearing before it alicwa the cellular location data or SSA Carmen 5 report and testimony to be admitted at trial as the People provided limited detail regarding the evidence they intend to introduce at trial Lake argues that furthel detail
7‘ In Re P(mh RR Yam! PCB Lllxgalxon cite: to FRE 702 In 1994 F R E 702 read as follows If eetentific technical or other <pec|allzed knowledge will assist the trier oftaet to understand the evidence or to determine a tact m Issue a witneas qualtfied as an expert by knowledge skill eXanenLC training or education may teettty thereto in the form of an opinion or otherwtae Again though this wle is not identiewl to current V I R E 702 the Court notes that if anything additional detail ha: been added to the new rule ’5 Amzllu Ye}: Inc t Ltmbach chm to F R E 702 F R E 702 was [mt amended in 2011 :0 in 2016 F R E 702 wa: identical to its current version and therefore Identtcfll to current V I R E 702 760(11th11‘ Menu“ Dun Pharmaceutical: Inc cites to F R E 702 In 1993, F R E 702 was the same as 1t was in 1994 see vlz/Ilu at note 24 Additionally the Virgin Islands Supreme Court has repeatedly affirmed its adoption 01 the Daubm standard for determining the adm|SStb11tty or expen teatimony ’7 A71 {dean t Emma Cttes 10 V I R 1: 702 as the case waa deeided m 2019 after the Virgin Ialands adoption of it: mles of evidence in 2017 Accordingly, the case cites to cutrent V 1 R 1: 702 7‘ Untied Stain Allm H. cites to F R 1: 702 1n December 2000 F R E 702 was amended However the Alamo case Wm decided in August 2000 when the rule “as the same as it was in 1994 Supra at note 24 Accordingly the Court finds no substanttVe differenee to the current F R E and V I R E 702
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and testimony from SSA Carmen is necessary to detennine if his intended testimony meets the requirements of V1 R 13le 702 The People iespond with significant detail explaining SSA Carman’s anticipated testimony, and citation to numerous cases finding a Daubert hearing was unnecessary given the well established nature of the cellular location analysis methodology See eg Jones, 918 F Supp 2d at 6 7 (noting the use of cell phone receids to locate a phone has been widely accepted in both federal and state courts across the country," conduding that expert testimony based on cell site data was based on a reliable methadology and declining to hold Daubert hearing) 3w alto Untied States 1 Part6) 2016 U S Dist LEXIS 16140 *9 (E D La 2016) (holding that historical cell site analysis satisfies the Daubelt reliability test and concluding that a hearing Was not necessary to detennine the reliability at Special Agent’s testimony); United Statev v freeman 2015 U S Dist LEXIS 57921 *1 (E D Mich 2015) (declining to hold Daubert hearing on challenge to cell site analysis testimony) Gama" I 2015 U S Dist LEXIS 138329 at *1 (helding FBI CAST analysis of call detail records was reliable, 161evant, and admissible, and finding that a [Jaube/ 1 hearing was unnecessary when defendant did not present a novel challenge to cell site analysis) Untied States \ Jackson 2017 U S Dist LEXIS 221421 *83 84 (N D Ga 2017) (“Given the overwhehning acceptance of cell site information and the lack of a navel challenge to the underlying methodology Defendant s Motion to Exclude Historical Cell Site Location Information and Request for Dauberl Hearing is denied"), and Untied Statex v Houard 2017 U S Dist LEXIS 95138 *13 (C D Cal 2017) (concluding thdt aDaulJert hearing would not be helpful here due to the wide consensus in thejudicial community that historical cell site data is a reliable methodology )
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1 SSA Carman is qualified to provide testimony regarding cellular location data and the methodology employed to analyze it and create his CAST report
1112 Lake does not make any arguments regarding SSA Carman s qualificaticns to testify as an expert in this matter and the People point to Lake 5 lack of argument 011 this issue claiming that for the purposes ofthe motion m Izmme, SSA Carman’s qualifications must be deemed conceded Though Lake did not raise them db 3 concern, the Court will briefly assess SSA Carman’s qualifications to testify as an expert 1113 There is m) articulated test, 01 set of stmdards, for detenuining the qualification of a witness as an expert, rather, such determination is left to the discretion 0fthe tria1judgc Catalyst Lttlg 55 V I at 13 The polestdr guiding this Court 5 assessment ofqualiflcations rcquiies that a proffeied expert witness possess skills 01 kn0w1edge greater than the average layman Alvzdson, 72 V 1 at 79 (quoting PmmComm Corp v Novel] Adwmced Sens Inc , 171 F Supp 2d 473 477 (ED Pa 2001)”) Factors considered in making such a determination include education prapticdl experience, study, research and general dekground Id The People attached SSA Caimdn s C V as Exhibit 1 to their opposition The C V details SSA Cannan s extensive and ongoing experience with CAST he supervises 70 FBI agents and officers nationwide who conduct cellulal analysis, he provides cellular record analysis at all levels of govcmmen’t and trequently plovides expert testimony; he trains othei officers on ee1lu1ar technology and lecord analysis and he has engaged in CAST trainings and certifications frequently over the past approximately 10 years, amounting to over 100 hours of instruction The Court considers this
1" P70!0Lomm Corporalmn 1 Now” Adulmul SEHICES Inc cites to F R E 702 In 2001, F R 1. 702 was the same as that utilized in Carolyn Lt/zglllwnv supra at note 22 Accordingly, the Court hnds nu substantive difference to cunent V I R E 702
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significant leadership, education, training, practical experience, and instruction in cellular record analysis to be extensive and appropriate to inform the laypeople of the jury about the processes involved in assessing cellular location data Accordingly, in its discretion, the Court deems SSA Carman is qualified to testify as an expert so long as the aferementioned qualifications are sufficiently demonstrated by the People at trial
2 The methodology upon which SSA Carman intends to base his testimony is sufficiently reliable
1114 Lake’s main argument is that SSA Carman’s testimony will not be based on scientific facts
or data in violation ofV I R EVID 702(b) and that the testimony is not a product of reliable principles or methods in violation of VI R EVID 702(c) accordingly Lake argues that the methodology used to obtain the location evidence is umelidble He claims the People have failed to show how the location estimates were calculated, and they meiely provided shaded maps with no explanation Specifically Lake states that none of the underlying data used to determine the estimated euverage area has been provided ’ and ‘ 1m deseription 0fthe methods applied to create the maps" has been provided He further contends there is no scientific basis for the data provided by the mobile network operators as to direction and beam width of cell towers which SSA Carman purpmts to analyze and that SSA Caiman has not personally traveled to St Thomas to perform such analysis The People counter that the broad national consensus is that the methodolngy underlying analysis and mapping of cellular data is sound and can reliably indicate the general locatien Ufa cell phone that was in use at a pa) ticular date and time The People note that the same form ofeellulai location assessment is performed and used in many United States jurisdictions and has been repeatedly upheld as a reliable methodology in courts aeross the country, with citations to same They claim the science is not Lomplieated and is easy to understand, and that the People
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are not seeking to introduce precise location infermation, but rather generalized estimations of the Defendant s whereabouts 0n the date of the alleged murder Further the People descxibe SSA Carman’s qualifications and provide detailed descriptions of his anticipated testimony regarding the technical process of cellular location ana1ysis 3" 1115 The Virgin Islands Supreme Court hm adopted the non exhaustive list of factors from Daubert to determine the reliability of an expert’s opinion “Whether the opinion can be (and has been) tested whether the theory 01 technique has been subjected to peer review and publication what the known or potential rate of error is, and the existence and maintenance 0t standards controlling the technique 5 opciation Antilles Sch Inc 64 V 1 at 416 (citing Daubert, 509 U S at 593 94) Reliability requiles inquiry into the methodology used as a basis for the expert s conclusions, to ensure that it is gounded in good sense and based on more than mere ‘subjective beliefor unsupported speculation People uft/ze Vzrgm Islands 1 Roberts 2016 V I LEXlS 234, *2 (V 1 Super Ct Oct 25 2016) (quoting Ifequsky \ General E166 Cu 980 F Supp 818 821 (D VI 1997))
1“ The People stale SSA Carman intends to lestify that call detail records provided by AT&T reveal the general location ofwhere Defendant 5 phone Was located, when making and receiving calls around the time 0fthc alleged murder The People furlherstate atypicalcelltowerhastlueedietinctantcnnaface§( sectors > eachaervinga 120 degree portlon of mughly circular coverage area from that antenna the cell site and sector analysis does not determine the exact locatlon of a suspect 5 phone but show: the general area a phone was likely located baecd on cell tower location and the sector of the tower used to transmit the call; and whenever a user imitates or receive: communication, the cell phone carrier routinely creales a record including dale and exact time of contact and what to“ or and sector on that to“ er handled the contact Therefore the People stale SSA Carma“ will testity that it i: ponible to determine general geographic location 01a cell phone at a :peclflc time The People state that SSA Cannan obtains data from a service provider that identifies which network tower and which sector were utilized, so he doee not guess or estimate which lower or towers were used SSA Cam'Mn will testify that a cell phone will seek the tower hill] the <tmngest clearest signal which generally comes from the tow er closeet 01 the tower with the best line of eight however SSA Carmen will concede that strongest clearest signal can be affected by many factor: and the cell phone dam not 31“ ays connect to the 0105th tower
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1116 While Virgin Islands nouns have not yet considered the admissibility of cellular location data or testimony thereon 3‘ numerous tederal circuit courts, federal district courts and state couns have upheld the reliability and admissibility of testimony regarding CAST reports and cellular location ana1ysis methodology See eg Jackson 2017 U S Dist LEXIS 221421 at *83 84 Howard 2017 U S Dist LEXIS 95138 at *13 Porter 2016 U S Dist LEXIS 16140 at *9 Carson I 2015 U S Dist LEXIS 138329 *5 (afld 744 F App X at 101)‘ F1 “mart 2015 U S Dist LEXIS 57921 at 1 Jones 918F Supp 2d 315 US 1 Dans N011 60285 CR 2013US Dist LEXIS 70371 2013 WL 2156659 (S D F12) May 17 2013) Unzted Stat25\ SchaflLr 439 F App x 344 346417 (5th Cir 2011) Notably the Third Circuit which represents strongly persuasive authority to Virgin Islands courts, is among the couns which have deemed cellular location analysis method01ogy and testimony thereon to be reliable and admissible while the Third Circuit did not perform its own ana1y§is 0n the topic, it adopted the reasoning and analysis of Distxict Court ofNew Jolscy in an opinion affirming the lower court’s denial Ofa Daubert hearing See Galson II 744 F App x at 101 (referencing Gatwn I 2015 U S Dist LEXIS 138329) Other tcdcral district courts have denied a defendant‘s motion to exclude testimony legdrding cellular location data noting that the mcthodo1ogy was reliable and that the use of cell phone location lecoxds to determine the gene! :11 location of a cell phone has been widely accepted by numerous federal couns Jone: 918 F Supp 2d 2115 (citing Schaf/er 439 F App x at 347 UI1ltez/States \ Dam N0 09 CR 446 2012 WL 6568229 at *5 (N D 111 Dec 14 2012) United Strum \ Fania N0 12 CR 186 2012 WL6102700 at *3 (EDNY Dec 10 2012))
1‘ The Virgin Islands Superior Court has performed an analysis on legally obtaining historiual eellu1ar lower data, under the federal Stored CommuniLation: Act, 18 U S (. § 2703 In 16 Appllmtwnfol (I Cowl Order Author 12mg AT&TID Pun 1dr ”100214!!! Cell Tone) RFCDId? 55 VI 127 (V1 Super CI 2011) But [he Courl found no opinion ofa Virgin Islands court perkorming analyata regarding the admisstbillty mum data
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1117 The Seventh Circuit has said that the science and methods upon which the technique is based are understood and well ducumcnted Hill 818 F 3d at 299 Specifically cellular location data shows the eel] sites with which the person 5 cell phone connected, and the science is well undeistood Id at 298 (citing United States v E\ [ms 892 F Supp 2d 94‘) 956 (N D 111 2012) (noting that methods of historical cell site analysis can be and has been tested by scientists )) Although a mathematical error rate has not been calculated [] the technique has been subjected to publication and peer criticism, if not peer review ” [d (citing Matthew Tait et a1 , HISlorlCfl] Cell 5110 Analysis 0\el\zew q/Prmczplci and SIIHEV Methadologm 8 DIGITAL INVESTIGATION 185 86 (2012) Blank 18 RICH J L & Tl-( H at 3 5 Herbert B Dixon Jr Scientific Fact or Junk Sclence7 [rackingA CL” Plume Without GPS 53 JUDGES J 37 (2014)) 37 1118 The Court finds SSA Cdrman s methodology for his production of the CAST report to be reliable under the prescribed standard Although as Defendant notes SSA Carman 5 CAS F report includes only what appears to be brief exp1andtions of his methodology and maps without detailed explanations, CAST analysis is no longer new or unique or untested The scientific and legal evidence proving the ieliability of CAST methodology is plentiful As discussed there is an extensive body of law from otherjurisdictions establishing the reliability offhe methodology for procuring cellular location data and the value of explanatory testimony Significantly, the People argue not a single court in the United States has rejected CAST data undei Dauben In its
P While peer review n indeed a lactor which bolsters reliability it i: n01dlsp0€lllVB of the legitimacy or rehability 01 a scientifit. technique In Dmibul the Supreme Court noted that [t]he fact of publication (or lack thereof) in a peer renewed ioumal [] will be a relevant though not dlsposilive, consideration in assessing the scientific valldlly ofa particular technique or methodology on which an opinion is premised Dunbar! 509 U S at 594
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independent research the Court also has not found any case in which CAST data has been excluded under Daubert 13 {[19 Further the People have piovided a detailed explanation of SSA Carman s anticipated testimony including his expected descn'ption of how cell site location data is collected This includes the process SSA Carman and his team use to analyze such data using cell sites and sectors, based on which towers a cell phone’s incoming and outgoing calls connected to, and how this infonnation is utilized to map an estimation ofa cell phone’s location on a given date and time 3“ Thelefore the Court is unpersuadcd by Defendant s argument that there is insufficient detail provided within the People‘s proffered evidence 1120 Also aiding the Couit s finding are both the People 8 assurance that SSA Carman will testity t0 the impieeise and “general" nature 0fthe location data and the numerous factors affecting sueh data as well as Lake’s opportunity to Class examine the witness or call his own expert witness to rebut SSA Cannan s testimony Multiple courts have conuluded that the external factors affecting cell signal strength which an expert may or may not account for go to the weight 01 the expert’s testimuny and is properly the subject of Lross examination but does not render the fundamental methodology 01 cell site analysis unreliable Sc: eg Jones, 918 F Supp 2d at 5 Farm! 2012 WL 6102700 at *4 United Slams v Allumv 2009 WL 806748 at *2 (D Utah Mar
“ 1n UmiLd Sim . Exam the court found m experl s testimony regarding the operations ofce11u1drnctworks to be admissible however the Conn excluded the expert 5 discussion of the theory of granlllizalion which purportedly predicls the coverage m erlap oflwo closely pnsltioned lowers bum: 892 F Supp 2d 31956 lhe theory at issue In [mm IS melevam to the current case because there Is no indication of overlap in coverage by the cellular towers at issue, and neither party mm am as an issue “ SSA Carma“ s CAST report displays a map of SI Thomas identifying the scene of Ihe alleged murder in Smilh Bay and the location in Bovoni which Lake describes in his notice of alibi as well as marking the locations of the Various cell towers across the island In each suhsequenl map W11h1l] the report, there is a depiLtion ofwhich cell tower connegted tn 1 ake .5 cell phone at various times throughout the early aftemoon of May 16 2017 based upon the call records prouded by AT&T The Court finds these images instructive particularly accompanied by the People 5 delailed explanation of SSA Cannan‘s process and anIiCIpaled testimony as well as SSA Carman s C V , demonstrating ms prelim experience mm cellular location analysts
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24 2009) Finally given the nature of the infom‘iation at issue, the Court finds that the methodology used does not require SSA Carman to have been physically present an St Thomas to perform his analysis The People have explained that such cellular location information and data is routinely provided to law enforcement by cellular service providers, and the Court is persuaded that SSA Cannan s extensive training and background enable him to appropriately analyze the data remotely {[21 Given the extensive history Ofcourts finding reliability in the methodology used in cellular location data analysis, SSA Carman’s extensive qualifications and up to date training, to perfoun and describe the analysis the details within the proffered CAST lepOIt itself the repeated utilization and improvement of process“, the robust and peer Clitiqued science behind the analysis, the caveats the People present legarding the incxactness 0fthe location data and analysis, and SSA Carman s ability to perform the analysis remotely the Court finds the data and testimony satisty many oftlie factors med to determine reliability, as established in the original Daube/ I case and adopted by the Virgin Islands Supreme Court Therefore the Court finds the methodology employed by SSA Cannan to create his CAST report and his testimony thereon to be reliable
3 SSA Carman’s testimony fits the facts of the case {I22 In order for expert testimony to fit the facts of a case it must be demonstrated that the
testimony will assist the trier of tact Catalyst Ling 55 V I at 12 (citing Pmeda 520 F 3d at 244) There must he a legitimate connection between the expertise in question and the inquiry being made in the case Id at 18 (citing Paul! 35 F 3d at 743) {I23 Lake argues that SSA Carmdn’s testimony will not help the trier of fact understand the evidence but will mislead the jury, in violation ofV I R E 702(2)) Lake claims that because the cellular location data does not provide the exact location of a device at a specific date and time,
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SSA Carman’s testimony cannot definitively place Lake at the scene of the alleged murder Additionally he argues that there has been no indication as to the accuracy of the location estimates within the People s discovery or the expert 5 report Ultimately Lake reiterates his argument that SSA Carman’s status as “expert” will lead thejury to give great weight to his testimony However, as discussed above the People concede that SSA Caman Will testify that the location data is not precise and it is in fact affected by numerous cxtemal factors such that a cell phone does not always ping the most proximate or most direct cell tower and sector $24 The Court nonetheless finds that SSA Larman s testimony as well as the cellular location data itself will help the trier of fact wntextualize the location of Lake s cell phone on the day of the alleged murder The Court finds that SSA Carman s testimony will not mislead the jury, particularly given the People s immediate concession that the CAST report is not definitive but rather a mere estimation oi the location ofLake‘s cell phone on the date in question Additionally, given Lake s notice ofalibi the data and SSA Carman s testimony Lould assist the tiier of fact to better contextualize Lake’s whereabouts 0n the day in questiun The Court reiterates that Lake can extensively cross examine SSA Cannan regarding the accuracy and precision of the cellular location data to demonstrate to thejury that it is not precise and highlight the extent to which the jury should rely upon such data Similarly, Lake may also cross examine SSA Cannan on how he could have prepared his report without visiting St Thomas and the cell towels in question and challenge him on same $125 A detailed explanation of the methodology used for cellular location analysis should assist the jury in understanding the People’s arguments regarding Lake‘s loeation or the location ofhis cell phone on the date ofthe alleged murder and pinvide thejury the k110vsledge and background to determine for themselves whether they may reasonably Lunelude Lake can he placed in a general
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location on the date of the alleged murder The Court thereiore finds the testimony fits the facts of the case since it provides context and additional information regarding Lake 5 whereabouts on the date in question
4 Because the Court finds SSA Carman’s testimony is relevant and reliable, a Dauber! hearing is not necessary
1126 To determine whether a Daubell hearing is necessary, a trial court must determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fad in issue ’ Antilles Sch [m , 64 V I at 416 (quoting Daubert, 509 U S at 592) ‘The focus is on two considerations reliability and relevance " Carson [1, 744 F App x at 101 02 (quoting Daubcrt 509 U S at59(F91)(the overarching subject is tho scientific validity and thus the cvidentialy relevance and reliability40f the principles that underlie a proposed submission") The Court finds no need to hold a Daube/t hearing to assess SSA Canaan’s testimony It is well established that a court “is not required to hold an evidentiary hearing regdlding the admissibility of expert testimony Jonas 918 F Supp 2d at 5 (quoting ['ama 2012 WL 6102700 at *4) Additiundlly as established in Sections A and B 2 herein the Coun finds the methodology used to create SSA Cannan s CAST report and his anticipated testimony thereon to be both relevant and reliable under V I R E 401 403 and 702 as well as Daubert Lake does not raise any specific concerns regarding the methodology utilized in SSA Cdrmdn‘s analysis, and “the need for a Daubert hearing is even less where Defendants wise n0 unique arguments to the methodology employed Unwed States v Frame; 442 F Supp 3d 1012, 1024 (M D Tenn 2020) see (Ilsa Gatsan I 2015 WL 5920931 at *3 (because the defendant did not “prcscnt[] any novel Lhdlanges to [the] proposed testimony a Daubert hearing is not necessary ) U5 \ Mitchell 365 F 3d 215 246 (3d Cit 2004) (finding a Dauben hearing not
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required where no novel challenge is raised); United States v Machado Emzo, 950 F Supp 2d 49 54 (D D C 2013) (stating cell phone technology is neither novel nor particularly complex ) Following the numerous rulings from other courts on this issue and expecting the People lay a proper foundation and appropriately represent the limits ofhistorical cell site analysis at trial, the data and SSA Carman s testimony are reliable under the pertinent standards and a Daube) I hearing is unnecessary Frame], 442 F Supp 3d at 1034 (quoting Untied Slate; \ Brown, N0 18 20075, 2019 WL 3543253 at*6(ED Mich Aug 5 2019)
CONCLUSION
4127 Lake 5 motion m lzmzne to exclude cellulai location data and SSA Carman s testimony, and his request for a Daubert hearing will be denied The Court finds that the cellular location data and proposed testimony from SSA Carman are relevant and sufficiently probative under V I R E 401 and 403 Further the Court finds that SSA Carman is qualified as an expert his methodology and anticipated testimony are reliable and his testimuny fits with the facts of the case thereby satisfying the requirements for expert testimony within V I R E 702 Accordingly because the Court finds the proposed testimony and cellular location data to be both relevant and reliable, it finds no need to hold a Daztbut hearing prior to tlial So, Lake’s motion will be denied An order consistent herewith will immediately follow
DATED SeptemberéYL 2022 é 2? é :Z7fi5/f(:
Kathleen Mackay
Judge ofthe Superior Court ATTEST ofthe Virgin Islands TAMARA CHARLES Clerk of the Co
BY (3W LAT YA CAMACHO Court Clerk Supervisor m/o’l l [fl