Shawn Hollingsworth, Jr. v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: August 14, 2025
• Docket: 2023-SC-0126
• Status: Published

Opinion

RENDERED: AUGUST 14, 2025 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0126-MR

SHAWN HOLLINGSWORTH, JR. APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE OLU A. STEVENS, JUDGE NO. 19-CR-001966

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE THOMPSON

AFFIRMING

After a jury trial, Shawn Hollingsworth was convicted of the murder of

R.O. and the first-degree assault of S.H. but acquitted of the murder of J.M. 1

Hollingsworth received a life sentence from the Jefferson Circuit Court.

Hollingsworth argues a variety of trial errors on direct appeal, but the most

important among them concerns the propriety of allowing a lay witness to

testify regarding the location of Hollingsworth’s cell phone based on which cell

phone towers were carrying its signals. Such testimony involved the

investigating officer producing the technical data provided by cell phone

carriers and translating the data, explaining what the data represented and

presenting maps created based on the data. This testimony was significant as it

1 The names of the victims, all of whom were minors at the time of these

shootings, are represented by their initials to protect their identities. corroborated S.H.’s testimony about where she, R.O., J.M. and Hollingsworth

traveled together that night.

I. FACTUAL AND PROCEDURAL BACKGROUND

Late in the evening of June 23, 2019, the minors J.M. and R.O. were

shot and killed. Another minor, S.H., was also shot but survived her wounds.

Much of the narrative account of what occurred that evening was provided by

the testimony of the female minor S.H.’s testimony as she was the only person

to survive the shootings. Hollingsworth did not testify.

Earlier on June 23, 2019, Hollingsworth sent J.M. a number of electronic

messages proposing and discussing the planned burglary of a home that

Hollingsworth had selected. According to S.H., she picked up J.M, R.O., and

Hollingsworth and for the next five hours the group drove to several spots

around Louisville while J.M. and Hollingsworth discussed robbing the house

chosen by Hollingsworth which the group then visited but did not enter

because it was occupied. The group later arrived at an apartment complex in

Louisville at 10:30 p.m. at which point Hollingsworth and J.M. exited the

vehicle to gamble with dice on Seelbach Avenue, which is a nearby alley. S.H.

stayed in the car while R.O slept in the backseat. Later, J.M. called S.H. on her

cell and asked her to drive to the alley entrance for Parthenia Avenue, on the

other side of the apartment complex. Upon arriving, S.H. heard two gunshots.

S.H. testified Hollingsworth next appeared out of the alley and entered

S.H.’s vehicle directing her to drive to the end of Parthenia Avenue and

informing her that police were chasing J.M. At the end of Parthenia Avenue,

2 Hollingsworth exited the vehicle and walked to Seelbach Avenue where he

looked down the alley and gave a “thumbs-up” to S.H. Hollingsworth then

returned to the car where he shot both S.H. and R.O. R.O. died immediately.

After a period of unconsciousness, S.H. drove to her home where she informed

her mother and stepsister that Hollingsworth had shot her and R.O. before

S.H. was transported to University of Louisville Hospital (UofL Hospital).

J.M. was discovered wounded and unconscious in the alley by a

passerby and transported to UofL Hospital where he was pronounced dead at

12:00 a.m. on June 24, 2019. Hollingsworth was indicted for the murders of

J.M. and R.O. as well as first-degree assault for the shooting of S.H.

A jury convicted Hollingsworth for the murder of R.O. and the first-

degree assault of S.H. The jury acquitted Hollingsworth of a second murder

charge related to the death of J.M. which was not witnessed by S.H. The jury

recommended a life sentence for the murder conviction and a consecutive

twenty-year sentence for the first-degree assault conviction. The trial court

reduced Hollingsworth’s sentence to life in prison.

Hollingsworth appeals from his convictions and sentence as a matter of

right to this Court. See Ky. Const. § 110. Hollingsworth argues trial court

errors regarding: (1) allowing a detective to offer what he alleges to have been

impermissible expert testimony regarding the results of cell phone mapping he

performed; (2) failure to strike sixteen prospective jurors for cause; (3) failure to

remove two jurors who believed they may have been photographed by someone

3 in the gallery; and (4) allowing the Commonwealth to introduce a call between

Hollingsworth and his father while Hollingsworth was in jail.

Finding no error, we affirm.

II. ANALYSIS

A. Did the Trial Court Err in Permitting a Detective’s Testimony, as a Non-Expert, Regarding the Mapping of Cell Phone Location Data?

A portion of the evidence presented in the prosecution of Hollingsworth

dealt with the general location of the cell phones used by J.M and

Hollingsworth on the night of the shootings. In his appeal, Hollingsworth

makes a broad attack on the Commonwealth’s use of Call Detail Records (often

referred to simply as “CDR”) evidence which was presented at trial by Detective

Timothy O’Daniel who worked in the Louisville Metro Police Department’s

Digital Forensics Unit. Hollingsworth argues that Detective O’Daniel improperly

“provided expert opinion testimony while narrating” his presentation of cell

tower location data, improperly testified that victim J.M.’s phone was “most

likely moving” when it connected to different cell phone towers, and the

Commonwealth did not “sufficiently disclose the basis for this testimony” in

accordance with Kentucky Rules of Criminal Procedure (RCr) 7.24(1)(c). 2

2 RCr 7.24(1)(c) states:

Upon written request by the defense, the attorney for the Commonwealth shall furnish to the defendant a written summary of any expert testimony that the Commonwealth intends to introduce at trial. This summary must identify the witness and describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. 4 In this matter, Detective O’Daniel obtained cell phone records (here,

CDR) for both J.M.’s phone and the phone attributed to Hollingsworth from cell

phone providers. The CDR analyzed here is one type of evidentiary material

which falls under the umbrella of Cell-Site Location Information (CSLI). CDR

are “historic” records that cell phone companies keep which include data

points that are helpful in determining a broad general area where a cell phone

was previously located. CDR include and “detail” what cell towers those phones

previously were connecting with during a specified period of time. From this

raw data, investigators can determine, within some range of error, a cell

phone’s location at a particular time or over a period of time. There is a “range

of error” found in using this information which includes the fact that a cell

phone may not, at certain times, connect to the cell tower to which it is closest,

uncertainty as to the exact range of a tower, and the “shape” of the area to

which it provides coverage given the directional attributes of certain towers.

In Holbrook v. Commonwealth, 525 S.W.3d 73, (Ky. 2017), this Court

explained the relationship of cell phones to cell towers:

Cell phones work by communicating with cell-sites operated by cell-phone service providers. Each cell-site operates at a certain location and covers a certain range of distance. The geographic area covered by a particular tower depends upon the number of antennas operating on the cell site, the height of the antennas, topography of the surrounding land, and obstructions (both natural and manmade). When a cell phone user makes a call, the phone generally connect[s] to the cell site with the strongest signal, although adjoining cell towers provide some overlap in coverage. As a cell phone user moves from place to place, the cell phone automatically switches to the tower that provides the best reception. Due to practical and technical necessity, cell-phone service providers keep historical records of which cell-sites each of their users’ cell phones have communicated. Review of a cell 5 tower’s location data does not identify a cell phone user’s location with pinpoint precision—it identifies the cell tower that routed the user’s call. Historical cell-site data makes it possible to identify at least the general location of a cell phone at the time the phone connects to a tower. A cell user’s location may be further defined by the sector of a given cell tower which relays the cell user’s signal, the user may be anywhere in that sector.

Id. at 79 (internal quotations and citations omitted).

[C]ell phones are essentially radios, as they use radio signals to contact cell towers. Each tower is unique and has identifiers that allow cell providers to determine what specific tower a phone communicated with during the logged activity. Most cell towers are engineered to cover a 360-degree radius which is typically broken down into three sectors. When a user makes a phone call, the cell phone connects to the tower and sector with the strongest signal, which is often, but not always, the closest tower to the caller. Through reviewing cell phone records, which reflect which tower a phone connects to at a specific date and time, [the investigator] could determine the general location of a phone at a particular time. By determining the cell phone tower and sector, [the investigator] can identify a general area or “footprint” within which the phone was located at a given time.

Id. at 80.

Well prior to trial, on February 27, 2020, the Commonwealth began

producing phone record data to the defense and filed a supplemental response

to the trial court’s pretrial order of discovery which listed J.M.’s and S.H.’s

phone records and J.M.’s “CDR mapping.” On March 4, 2022, Hollingsworth

filed a request with the Commonwealth for expert disclosures of any expert

witnesses expected to testify on behalf of the Commonwealth pursuant to RCr

7.24(1)(c).

On April 19, 2022, the Commonwealth produced additional discovery to

Hollingsworth which included what it termed was “CDR Mapping.” In response 6 to that disclosure, on April 29, 2022, Hollingsworth filed a motion to continue

his trial, then scheduled for May 10, 2022, due to the Commonwealth’s late 3

tender of discovery which included “new Call Detail Record (CDR) Mapping of

(S.H.’s) phone and CDR Records of Shawn Hollingsworth.” The Commonwealth

agreed to a continuance and both parties agreed to a new trial date beginning

July 12, 2022.

On June 15, 2022, Hollingworth filed a renewed notice for expert

disclosure related to digital forensics. At the court’s motion hour on June 20,

2022, the Commonwealth stated it was “not sure that any of (our) witnesses

are expert witnesses when it comes to the cell phones.” On June 28, 2022, the

Commonwealth filed a supplemental response to discovery providing a

“[w]orksheet and demonstrative maps based on previously provided Call Detail

Records” and “a power point that Detective O’Daniel” would present to the jury.

It was Detective O’Daniel who the Commonwealth stated would be called to

“testify to historical cell-tower data regarding the towers with which defendant’s

phone was communicating on or about June 23, 2019.” The supplemental

disclosure stated it was the Commonwealth’s position that the detective was

not an expert within the meaning of RCr 7.24(1)(c) but “out of an abundance of

caution, and in compliance with RCr 7.24(1)(c), a copy of Detective O’Daniel’s

curriculum vitae” was attached.

3 Jefferson Circuit Court Rules of Practice (JRP) 803 require that the

Commonwealth fulfill its discovery obligation “no later than ten (10) days prior to the first pretrial.” In this matter, the final pretrial had occurred on February 23, 2022. 7 On July 6, 2022, Hollingsworth filed reciprocal discovery identifying Dr.

Michael Littrell as an expert who was “still in the process of examining the

records provided” by the Commonwealth but would testify “generally to the use

and investigation of historical cell site location analysis” including “the Call

Detail Records (CDR) provided by the Commonwealth and how mobile devices

communicate with Cell Sites.”

On July 12, 2022, the first day of Hollingsworth’s now-scheduled trial,

Hollingsworth filed a motion in limine seeking to exclude Detective O’Daniel’s

alleged “expert testimony” arguing that Detective O’Daniel’s potential testimony

would be “more than just ‘coordinates on a map,’” and the maps he had

produced “seem to necessarily include information about the use and operation

of cell towers generally, cell site azimuth[4] and their potential directionality,

and the coverages areas of the cell sites.” The motion also argued that the

maps contained “information from a program called ‘Trax,’” provided to law

enforcement that was not commercially available and “includes data points

that are also not available to the general public.”

On July 12, 2022, both parties announced ready for trial, but due to

unrelated issues they agreed to reschedule the trial to begin on October 25,

2022. Hollingsworth’s motion in limine was not addressed by the trial court at

that time and Hollingsworth did not request a hearing on the motion prior to

trial.

4 An azimuth is the direction an antenna is pointed in degrees where zero is

north. With a cell site sector, the azimuth represents the center point of the sector’s coverage. 8 When Hollingsworth’s trial proceeded on October 25, 2022, the parties

selected the jury before taking up Hollingsworth’s motion in limine.

Hollingsworth argued that Detective O’Daniel would be testifying as an expert

because he would be presenting “more than just coordinates” and would be

providing “other testimony about how cell phone towers, phones, work.”

Detective O’Daniel’s “expertise” could be gleaned from his curriculum vitae

which showed his work with the LMPD’s Digital Forensics Unit and over 200

hours of specialized digital analysis training including three separate 40 hour

courses in “Criminal Investigations Using Cellular Technologies,” “Subject

Matter Expert Course for Call Detail Records and Geolocation Analysis,” and

“Forensic Analysis of Cellular Networks.” Further, Hollingsworth argued his

testimony would not fall under “lay testimony” because his maps were not

created with a widely available computing tool but were generated using “Trax,”

a computer program that Hollingsworth’s expert could not access since it was a

tool available only to law enforcement.

While Hollingsworth argued that Detective O’Daniel had “expertise” and

should have been formally declared as an expert witness, Hollingsworth did not

request a Daubert 5 hearing to question either Detective O’Daniel’s

qualifications or the reliability of the “principle and methods” he utilized

pursuant to Kentucky Rules of Evidence (KRE) 702.

5 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), requires the trial court to play the role of “gatekeeper” to prevent the admission of “unreliable pseudoscientific evidence.” Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004). 9 In response to Hollingsworth’s motion, the Commonwealth quoted from

our opinion in Torrence v. Commonwealth, 603 S.W.3d 214 (Ky. 2020), arguing

that Detective O’Daniel’s testimony and presentation would not fall under the

auspices of “expert testimony” and explained that Trax only creates an

“expedited map” correlating cell phone data independently obtained by, and

then uploaded by, an investigator with the location and coverage areas of

towers known and catalogued by Trax, and that the map ultimately utilized is

from a Google Earth program. The Commonwealth also represented that the

maps created by Detective O’Daniel could have been plotted by him manually,

by hand, without using the “shortcut” of Trax, stating that the recreation of the

Trax-produced mapping was otherwise “doable just time consuming.”

The trial court took the matter under submission. On the third day of the

trial, prior to Detective O’Daniel being called to testify, the trial court overruled

Hollingsworth’s motion in limine and in doing so noted, that Detective O’Daniel

“would also qualify as an expert if needed.”

When Detective O’Daniel testified at trial, he explained that his

department had obtained CDR from the cell phone provider, which showed cell

phone usage corresponding to various cell towers. Those cell phone records

relating to Hollingsworth and S.H.’s cell phones were displayed with Detective

O’Daniel explaining how he read the records to determine which cell towers

were used by which cell phone numbers at various times during the evening of

the murders. Detective O’Daniel also provided narration for the presentation of

the mapping he had generated which gave the general area of the two cell

10 phone numbers he reviewed based on the CDR obtained. This presentation

showed which cell towers the mapped cell phone numbers connected to and

the coverage area of those towers at different points of time on the night of the

shootings.

1. Standard of Review

We review a trial court’s evidentiary rulings under an abuse of discretion

standard. Deal v. Commonwealth, 607 S.W.3d 652, 657 (Ky. 2020). A trial court

abuses its discretion when its ruling was “arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999). However, even if the trial court’s ruling is determined to

have been erroneous, we will not disturb the jury’s verdict where this Court

can determine the error was harmless and can “say with fair assurance that

the judgment was not substantially swayed by the error.” Winstead v.

Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).

In the realm of expert testimony, “the consideration of reliability [by a

trial court] entails an ‘assessment into the validity of the reasoning and

methodology upon which the expert testimony is based.’” Toyota Mot. Corp. v.

Gregory, 136 S.W.3d 25, 39 (Ky. 2004) (quoting Goodyear Tire & Rubber Co. v.

Thompson, 11 S.W.3d 575, 578 (Ky. 2000)). A trial court’s determination

regarding the reliability of expert testimony is a finding of fact that we review

for clear error. Miller, 146 S.W.3d at 915.

11 Hollingsworth’s arguments implicate both the extent to which Detective

O’Daniel could testify as a lay witness and the methodology he applied in

creating his CDR-based mapping exhibits.

2. Kentucky Precedent Regarding Acceptance of Historical Cell Tower Data Evidence

In 2017, this Court noted “the ‘science is well understood’” regarding

historical CDR data analysis of cell phone and cell tower records and “‘the

technique [of cell phone location analysis] has been subjected to publication

and peer criticism, if not peer review.’” Holbrook, 525 S.W.3d at 82 (quoting

United States v. Hill, 818 F.3d 289, 298 (7th Cir. 2016)). We, like the Hill Court,

also noted that caution was warranted in the introduction of such material,

namely identifying “the level of precision—or imprecision—with which that

particular evidence pinpoints a person’s location at a given time.” Holbrook,

525 S.W.3d at 82. We recognized that such data “does not identify a cell phone

user’s location with pinpoint precision—it identifies the cell tower that routed

the user’s call.” Id. at 79 (quoting United States v. Davis, 785 F.3d 498, 515

(11th Cir. 2015)).

To avoid any future intermingling of industry-specific terminology in our

opinions, there are two other types of CSLI in addition to CDR, which are not

discussed in this appeal. These are: (a) GPS/Wi-Fi data, see, e.g., United States

v. Jimenez-Chaidez, 96 F.4th 1257, 1268 n.4 (9th Cir. 2024); United States v.

Reynolds, 86 F.4th 332, 342–43 (6th Cir. 2023) (Reynolds II); and (b) Real-Time

Tool (RTT) data, which is the data that cell phone companies use in the

ordinary course of business to create a reliable network for users. RTT shows 12 the approximate distance between a cell phone and an antenna, calculated by

the time it takes for a “ping” from a cell phone to reach the antenna and return

to the cell phone “based on the propagation speed of [radiofrequency] waves.”

Reynolds II, 86 F.4th at 343. 6

In Holbrook, unlike in Hollingsworth’s case, the witness was qualified by

the trial court as an expert in analyzing and mapping historic cell phone data

after it conducted a pretrial Daubert hearing to both assess the FBI Special

Agent’s qualifications and examine his analysis and opinions relating to

historical cell-site data. Holbrook, 525 S.W.3d at 79-80. We reviewed the trial

court’s findings under KRE 702 which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principle and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

(Emphasis added).

6 In Commonwealth v. Reed, 647 S.W.3d 237, 241–42 (Ky. 2022), we discussed

the difference between “real-time” and “historic” CSLI noting that “real-time CSLI is not a passive location record [like the “historic” stored data utilized in Hollingsworth’s case] but data generated by an affirmative action—a “ping”—taken by the cell-service provider at the behest of a law enforcement officer. By “pinging” an individual’s cell phone, the cell-service provider is able to determine, instantaneously, the cell phone’s [current] location in relation to the available cell sites and to communicate that location information to law enforcement. 13 KRE 702 was itself written in light of guidance set forth by the United

States Supreme Court in Daubert, and looks not only to the reliability of the

“principles and methods” (KRE 702(2)) behind witnesses’ opinions, but also the

aptitude and acumen of the witnesses themselves to apply their specialized

knowledge appropriately (KRE 702(3)) to reach their conclusions.

3. Lay Witness vs. Expert Witness Testimony

In 2020, this Court went a step beyond the general acceptance of the

science of historic cell tower data methodology and determined that

investigators could offer limited testimony, as lay witnesses, on the subject

without the need to qualify as an expert. In Torrence v. Commonwealth, 603

S.W.3d 214 (Ky. 2020), prior to trial, Torrence moved for disclosure of expert

testimony by the Commonwealth and made a companion motion to exclude any

testimony regarding historical cell tower evidence pursuant to RCr 7.24

(Discovery and Inspection). Both motions were denied by the trial court. Similar

to the present case, the defendant did not request a Daubert hearing

challenging the utilization or methodology of historical cell tower evidence.

This Court agreed in Torrence that the detective was properly allowed to

testify as a lay witness and provide mapping based on cell tower historic data

reports explaining:

[The witness] 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 [the witness’s] testimony qualified as lay testimony. We agree.

14 603 S.W3d at 225.

In Torrence, the Commonwealth’s witness 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. Id. at 226. We also

noted that “[t]he 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[.]” Id. at

227-28. However, we emphasized that “this new rule with respect to the use of

lay testimony to present historical cell-tower data is limited in its application”

and further explained:

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 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).

Id. at 228 (emphasis added).

The question, therefore, is when exactly does a CDR witness need to be

disclosed as an expert and, if there is a Daubert challenge to that witness’s

expertise, be approved by the trial court or when may such testimony be

accepted as lay witness, non-expert, testimony as we approved in Torrence.

This issue involves the tension between KRE 701(c) 7 (lay witness testimony)

7 KRE 701 reads:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are: (a) Rationally based on the perception of the witness; (b) 15 and KRE 702 (testimony based on “specialized knowledge”) and requires courts

to assess when a witness’s testimony crosses a threshold and evinces such

“specialized knowledge” as to necessitate pretrial disclosure and potentially

prompt Daubert review of either the witness and/or the methodology they

employed.

4. Specialists in Mapping Call Detail Records

Starting with the personnel who we are seeing in these appeals, the most

recent witnesses offering such testimony are now generally specialists, highly

trained in the field, who in many cases now possess—and whose testimony

evidences—the “knowledge, skill, experience, training, or education” necessary

to be qualified as experts under KRE 702. In this case, Detective O’Daniel

worked within LMPD’s specialized Digital Forensics Unit and the trial court

noted on the record that his curriculum vitae set forth “at least 240 hours of

training” in the fields of cell phone mapping, digital investigative methods, call

detail record review, and geolocation analysis.

Drawing on such training, witnesses like Detective O’Daniel could now

offer more than just “simple mapping” of the raw CDR we discussed and

approved as coming from laymen in Torrence. These witnesses can now offer

juries more information on the technology itself, how the collected data can be

used, and its accuracy and limitations.

Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (Emphasis added). 16 For example, Detective O’Daniel was able to explain to the jury that while

the raw CDR was able to show a cell phone number pairing with a cell tower

(which he referred to as “cell sites”) at a certain time, he was also able to utilize

additional law enforcement tools to narrow and refine the area where the cell

phone had been located. Detective O’Daniel explained he had access to the

locations of each relevant cell tower either through the CDR data or through

the National Domestic Communications Assistance Center (NDCAC), a law

enforcement database maintained by the United State Department of Justice

(DOJ) and the FBI which can provide precise cell tower locations for mapping

purposes when those locations are not included in the CDR provided by the cell

phone companies. Also, while the overall or general coverage areas of the cell

towers might be more generally known, the software utilized by law

enforcement can create mappings which reduces a rough coverage area circle

down to a third of its circumference. While not always the case, most cell

towers are divided into three sectors, each covering a 120-degree “slice” of the

overall coverage area “pie.” This approach narrows the cell phone’s location

from the entire circle of the tower’s coverage area to one of the three

sector/slices. Here, for each call that was mapped, Detective O’Daniel provided:

(a) the time of the call; (b) the phone number of the mapped cell phone; (c)

whether the call was “placed” or “received; (d) the number of the other phone

that placed the call to, or received the call from, the mapped phone; (e) the

duration of the call; (f) the cell tower that was utilized for the call; and (g) the

sector of that cell tower’s coverage area that was utilized. Detective O’Daniel

17 explained his mapping as showing what he referred to as a “horizontal plane”

and that each of the three sectors of each tower’s coverage area were divided at

0 degrees, 120 degrees, and 240 degrees (a circle being 360 degrees).

Such testimony obviously drew upon “specialized knowledge” not held by

laymen.

Detective O’Daniel also testified Sprint’s cell tower data “can be a little off

sometimes” due to Sprint’s records often showing a prior cell tower location for

a call when the phone had actually moved to a second, later, location. While,

fortunately, the accuracy of Sprint’s data or any mapping resulting therefrom is

not an issue in this case, such an opinion obviously draws on training and

experience not held by laymen.

Hollingsworth also argues that in one instance Detective O’Daniel’s

testimony exceeded the scope of testimony allowed concerning CDR data’s

“precision” when he acknowledged an inference (a cell phone moving between

locations over time) that could be drawn from the data and its mapping. On

direct, Detective O’Daniel was asked “What is happening here?” while narrating

his mapped cell tower data from victim J.M.’s phone and responded by stating

that the mapping indicated a “cellular device, um, most likely, uh, moving from

the, this area of, of the scene to the area of the hospital.” There was no

contemporaneous objection made by Hollingsworth to what he now describes

as “implicit expert opinion.”

In this instance though, Detective O’Daniel’s testimony was based upon

the mapping of the area where J.M. was first found and mapping of later

18 occurring CDR showing J.M.’s phone connecting to several different towers on

the map on a path leading to UofL Hospital. There was, and is, no factual

dispute as to the location where J.M. was found, when he was found, or of the

fact that he was transported to UofL Hospital. None of this testimony placed

Hollingsworth at or near the scene of any of the crimes as it only concerned

J.M.’s possible locations after he was found wounded. Moreover, this was

common sense testimony insofar as it is clear that a cellphone likely moved

when it pinged one cell tower and then later pinged on another tower. This is

not so technical that a jury could not understand the all too obvious inference

without expert proof just as one would not expect the necessity of expert

testimony to prove that a piece of mail moved when it was once at a post office

and then later appeared in a mailbox. Lastly, Hollingsworth was acquitted of

J.M.’s murder and could not therefore have been prejudiced by testimony

which did nothing more than confirm J.M.’s known movements.

Considering his testimony as a whole, Detective O’Daniel’s testimony

appears to fall between our classic notions of highly trained expert witnesses

who are permitted to offer conclusive opinions on matters that could not

otherwise be sufficiently comprehended by juries, and non-experts who would

still be allowed to offer more generalized opinions on matters with which they

are familiar or have observed. If Kentucky followed Indiana’s lead, witnesses

with specialized knowledge and training like Detective O’Daniel would most

appropriately be classified as “skilled witnesses” situated between laymen and

experts as we noted in Torrence.

19 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.”

603 S.W.3d at 227 (quoting Zanders v. State, 73 N.E.3d 178, 188 (Ind. 2017)).

Counsel and our trial courts must remain vigilant in monitoring when a

witness who has only been disclosed as a “layman” attempts to offer testimony

which enters the realm of expert testimony based on technical or other

specialized knowledge. In such instances, our disclosure rules and the Daubert

standard come into play and this type of explanatory testimony could violate

the prohibition found in KRE 701(c) against lay witnesses testifying on matters

“based on scientific, technical, or other specialized knowledge within the scope

of Rule 702.” The Evidence Rules Review Commission Notes regarding KRE 701

indicate that subsection (c) was specifically intended to combat the possibility

of counsel avoiding the reliability standards set out in Daubert “by the simple

process of offering . . . ‘scientific, technical, or other specialized knowledge’

evidence through a witness that an attorney sought to identify as a ‘lay

witness.’”

5. Advances in CDR Mapping Technology

Trained investigators like Detective O’Daniel now utilize, and rely upon,

programs like Trax to generate maps based on the CDR data they have

20 obtained and now have additional resources available to them like NDCAC,

discussed above, which allow them to fill in information not contained in CDR

data. These technological advancements invite renewed Daubert analysis by

our Courts.

Detective O’Daniel appropriately limited his presentation to not show

precise locations of any of the mapped cell phones but only showed the sector

of coverage, designated by Trax, corresponding to each call routed through

each tower’s location. In this case, Detective O’Daniel stated he only used Trax

as “a shortcut” to manually mapping the raw data and as a means of

identifying the location of one cell tower whose coordinates were not contained

in the raw data received from the service provider. Hollingsworth’s expert noted

the one tower’s location was missing from the CDR produced by the provider,

but we can find no prejudice to Hollingsworth given his expert acknowledged

during cross examination that the tower’s coordinates were available but that

he did not contact the provider himself to inquire. Otherwise, Hollingsworth’s

expert’s mapping did not vary in any observably significant manner from that

provided by Detective O’Daniel.

In this case however, Hollingsworth did not assert a Daubert challenge,

in name or in substance, questioning the reliability of Trax or NDCAC as

evidentiary tools to the extent they were utilized by Detective O’Daniel. To date,

neither the use nor reliability of Trax or NDCAC has been specifically analyzed

in Kentucky and we make no decision within this opinion regarding their

efficacy under KRE 702.

21 6. The Trial Court Did Not Err in Allowing Detective O’Daniel’s Testimony

On the narrow issue of Detective O’Daniel’s training, the specifics of his

training were disclosed in his curriculum vitae and supported the trial court’s

determination that Detective O’Daniel would qualify as an expert in this field as

necessary. This Court has not otherwise been shown any reason to doubt that

pronouncement and the trial court did not abuse its discretion in its

determination.

Furthermore, Detective O’Daniel’s opinions and mapping were tendered

sufficiently in advance of trial to allow for review by Hollingsworth’s own expert

and preparation of cross-examination by his counsel. Neither the quality of

Detective O’Daniel’s training nor the results of his mapping techniques were

brought into question by Hollingsworth.

Despite having retained and declared his own CDR expert,

Hollingsworth’s motion to the trial court did not contain any affidavit or

supporting report describing how the Commonwealth had prejudiced him by

not specifically identifying Detective O’Daniel as an expert despite providing his

curriculum vitae, or more importantly, what necessary additional information,

data or opinions the Commonwealth should have provided to Hollingsworth

about Detective O’Daniel in addition to that which it had tendered in discovery.

As to Detective O’Daniel’s opinions, the information, data, and mapping

the Commonwealth provided in discovery prior to trial were wholly sufficient to

give Hollingsworth, his counsel and his own expert, the knowledge of Detective

O’Daniel’s utilization of Trax and the results of, and conclusions to be drawn 22 from, his mapping. The information provided was utilized effectively by

Hollingsworth in his cross examination of Detective O’Daniel and was reflected

in the testimony of his own expert. We are not otherwise persuaded that the

totality of Detective O’Daniel’s disclosures would not have been in accord with

RCr 7.24(1)(c) had that, in fact, been the issue before the trial court.

Most importantly, as noted above, Hollingsworth raised no Daubert

challenge whatsoever to Detective O’Daniel’s methodology or to Trax or NDCAC

as reliable technologies to the extent utilized by Detective O’Daniel. The use of

such database “shortcuts” to mapping raw data, when the accuracy of their

results is not questioned and their utilization is rather simplistic, does not

fundamentally change the basic concepts of CDR mapping as addressed in

Torrence, nor does it create a situation in which CDR mapping is rendered so

highly technical that expert proof is required.

For these reasons, we observe no error or an abuse of discretion in the

trial court’s determination to allow Detective O’Daniel testify, nor do we observe

any indication that the CDR mapping methodology he relied upon, or the

results of his mapping, were unreliable as we previously explained in Holbrook.

We find that there was no cause for the trial court to impose a higher

level of scrutiny than that set forth in our precedent. Hollingsworth fails to

establish that the trial court’s decision to allow the testimony was an abuse of

discretion or arbitrary, unreasonable, or unsupported by sound legal

principles. English, 993 S.W2d at 945. In fact, the trial court’s determination

23 was solidly based on our current jurisprudence as established in Holbrook and

Torrence.

7. Judicial Safeguards for Call Detail Record Witnesses and Evidence

Moving forward, when law enforcement agencies determine to subpoena

or execute a warrant for CDR from cell service providers, the materials

obtained must be made available to the defendants after they are charged or

promptly disclosed to the defendants once they are indicted.

Given the nature of CSLI data in its raw form, defendants and their

counsel need sufficient time to review the data independently and, if it is

determined to be helpful to the defense, engage their own expert to

independently review and/or map the information.

The continuing and increasing advances in this technological arena

together with the requisite training and experience necessary to appropriately

utilize this technology, requires continuing scrutiny to ensure the accuracy of

the proof offered by the Commonwealth as well as ensure fundamental fairness

to the defendant.

Disclosure of a CDR mapping witness’s identity and qualifications must

go “hand in hand” with the production of their summaries which should mirror

the requirements of RCr 7.24(1)(c). Trial courts must be mindful that such

disclosures cannot be withheld but must be tendered in a timely manner giving

consideration to a defendant’s own needs to review and potentially challenge

either the findings factually, via their own expert, or foundationally via a

Daubert challenge to the methodology used by the proposed witness, or the 24 underlying technology utilized by the witness. These summaries must include

acknowledgment and identification of any portions of their opinions which were

founded, in whole or in part, upon information created by or provided by

programs, databases, or other technologies or entities which was not taken

directly from the source data provided by the cell phone companies.

Once such production is completed, only then will defendants be able to

determine whether to file a Daubert challenge pursuant to KRE 702 as to either

the qualifications of the Commonwealth’s witness or the reliability of the

technology or methodologies utilized. In turn the trial court can properly and

effectively “function as a ‘gatekeeper’” charged with excluding “unreliable,

pseudoscientific evidence,” and “assess the reliability of the expert testimony . .

. and then evaluate its relevance.” Miller, 146 S.W.3d at 913-14.

B. Did the Trial Court Commit Reversible Error by Not Striking Jurors Who May Have Heard a Deputy’s Inappropriate Comments?

Hollingsworth also argues that the trial court committed reversible error

when it did not strike, for cause, sixteen potential jurors who may have heard

statements made by a deputy sheriff outside the courtroom but did not report

the comments to the trial court. Five of those sixteen prospective jurors

ultimately served on Hollingsworth’s jury. Hollingworth argues that the court’s

failure to strike all sixteen prospective jurors constituted an error which

violated his right to a fair and impartial jury.

25 Specifically, during voir dire, a prospective juror (identified as juror

3050621) approached the bench and with both attorneys present the following

discussion occurred:

Juror: I don’t know if I should have brought this up sooner. I don’t know if it’s a big deal or not, but it’s been kind of weighing on me before we came in here for the first time earlier, and we were and we were standing outside the courtroom, the sheriff said to the group, and he was joking, but I don’t know if somebody may have taken him literally, he said, “If you want to sit on this jury, sit there and don’t say anything. Don’t give them a reason to strike you.”

Trial Judge: Who said that?

Juror: The sheriff.

The Jefferson County Sheriff was not shepherding or monitoring the jury.

Here, the juror was obviously referring to a deputy sheriff serving as a bailiff

assisting either the trial court or the Circuit Clerk during jury selections.

Whoever the deputy sheriff was, that person’s identity is not in the record and

neither the parties nor the trial court called the deputy to testify regarding the

juror’s allegation. Ultimately, the trial court stated, “Well, I’m sure he meant it

as a joke, but I appreciate you coming up, number one. Number two, I agree

with your interpretation, because . . . or at least that it could have been

misinterpreted as a joke, I’m sorry that it was said. But I appreciate you

bringing it to my attention.”

Later during this bench conference, the trial court invited

Hollingsworth’s counsel to question the prospective juror who described where

and when the statement was made by the deputy and reported that she had 26 not spoken to anyone else about the incident. Three other jurors later came

forward after the panel was again asked if there were matters any juror

“wish[ed] to discuss or anything that has come to their attention,” but those

issues were unrelated to the deputy’s comments. Hollingsworth’s counsel

brought up the deputy’s statements again to the trial court and stated that

while she believed the statements were “tongue-in-cheek,” she had concerns

and the juror’s report “gave [her] pause.” Counsel expressed her belief that

there was a “need to address” what had been said but did not know how to

determine whether or not the deputy’s remarks had impacted anyone on the

panel and did not “have an answer for how to handle that right now.” The trial

court advised that the juror had explained how the jurors took the deputy’s

statement, did not share any concerns, and did not want to “go into it any

further.”

After the panel was released for lunch, the Commonwealth and

Hollingsworth’s counsel began jury selection and Hollingsworth’s counsel

moved to strike, for cause, sixteen other jurors who were in proximity to the

deputy when he made the statement and may have heard the deputy’s

statement but had not spoken up themselves to disclose the statement earlier

during voir dire. This motion was overruled but the trial court allowed counsel

to submit into the record a list of the sixteen jurors’ numbers who counsel

believed should be stricken. The record reveals no explanation as to how

Hollingsworth’s counsel identified those sixteen jurors as being in proximity to

the deputy when he made the alleged statement.

27 When the full jury panel returned to the courtroom, the trial court again

queried the potential jurors about whether there was anything they felt they

needed to say but had not. Again, another juror approached on a topic

unrelated to the deputy’s remarks. The trial court next randomly selected

fourteen jurors from the remaining pool of eligible jurors. Of the fourteen

selected, five had been listed by Hollingsworth’s counsel as being among the

sixteen potential jurors who may have heard the deputy’s remarks but had not

reported them.

The Sixth Amendment to the United States Constitution, and Sections 7

and 11 of the Kentucky Constitution guarantee the right to an impartial jury.

Mindful of those 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.” English, 993

S.W.2d at 945.

Regarding implications of juror 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.” We have clarified however, that “[t]he decision

whether to excuse a juror for bias lies within the sound discretion of the trial

court[,]” and “[t]his Court reviews a trial court’s determination regarding the

exclusion of a juror for cause for an abuse of discretion” judged from the

“totality of the circumstances” including “the entirety of the [jurors’] responses

and demeanor.” Clay v. Commonwealth, 291 S.W.3d 210, 216 (Ky. 2009).

28 “The party alleging bias bears the burden of proving that bias and

resulting prejudice” and Hollingsworth has failed to prove either. Id. at 216.

Hollingsworth’s counsel did not ask for either an admonition or further

questioning by the trial court and did not herself ask any further questions of

the venire or direct any further questions towards any individual members

thereof concerning the deputy’s remarks. While the trial court determined not

to personally “go into it any further” with the jury pool, the trial court did not

preclude Hollingsworth’s counsel from doing so.

To the extent that Hollingsworth’s argument implicates juror mendacity

by the failure on the part of any other juror to inform the trial court of what

they had heard, assuming they had heard it and assuming they believed they

should tell the trial court, in order “[t]o 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 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)).

Hollingsworth makes no such showing here. This Court cannot entertain

a wholly unsupported intimation that any of the five jurors who were chosen

for Hollingsworth’s jury “followed” the deputy’s remarks as an instruction and

remained silent in an effort to be seated on the jury in order to convict

Hollingsworth. If the deputy did make the alleged statement, a more reasonable

conclusion is that the jurors either did not hear the deputy, did not pay

29 attention to the deputy, or did not believe any question actually posed to them

during voir dire required them to inform the court of the comments.

After review of the totality of circumstances in the record and the voir

dire as a whole, it was not unreasonable for the trial court to have determined

the jurors possessed the impartiality and forthrightness required to sit on the

jury. If the alleged remarks were actually made by a deputy, it is obvious that

those remarks were improper, but both the juror who informed the trial court

and the trial court itself perceived them to have been spoken in jest and there

is simply no evidence to support an implication of juror bias or mendacity on

the part of any juror. We therefore conclude the trial court did not abuse its

discretion.

C. Did the Trial Court Err by Not Removing Two Jurors Who Believed They May Have been Photographed from the Gallery During Trial?

Hollingsworth raises another issue regarding the jury, arguing that two

seated jurors should have been removed for cause pursuant to RCr 9.36(1)

because they reported they believed someone in the gallery may have

photographed them during the trial. While RCr 9.36(1) speaks to prospective

jurors, the same standard found therein applies when considering the

necessity of removing a seated juror for cause during the course of a trial.

Jerome v. Commonwealth, 653 S.W.3d 81, 90 (Ky. 2022). This issue is

preserved since after the trial court questioned both jurors, Hollingsworth’s

counsel moved to have them designated as alternate jurors and have them

dismissed after closing arguments. Hollingsworth argues that the possible

photographing and the jurors’ responses “to this supposed incident created 30 reasonable grounds to conclude that they could not be fair and impartial

jurors.” After review of this incident and the trial court’s response, we disagree.

“A trial court’s decision whether to remove a juror from a panel that has

already been seated is reviewed for an abuse of discretion.” Id. at 88. A trial

court does not abuse its discretion by retaining a seated juror who “state[s]

under oath that he ha[s] no feeling in the case either way and kn[ows] of

nothing to prevent him from giving both parties a fair and impartial trial.”

Rowe v. Commonwealth, 394 S.W.2d 751, 753 (Ky 1965).

One of the two jurors initially reported her suspicion to a deputy who

informed the trial court. In response to questioning by the trial court, the juror

stated she thought they may have been photographed on the next to last day of

the trial, but had not said anything until the next morning “because I couldn’t

stop thinking about it while I was in the shower,” “I didn’t know if it was like,

they were trying to intimidate me, uh pictures were being taking of the jury, I

didn’t know,” and “it just scared me.”

During the discussion, the trial court specifically asked the juror whether

this incident “impact[s] your ability to sit on this case and serve as a fair and

impartial juror?” The juror responded that the incident would not.

The second juror was likewise questioned by the trial court and was even

less apprehensive, responding: “It really didn’t bother me, but you know, now

that I think about it, but I’m still not concerned about it at all.”

On appeal, this Court will not jump to an assumption of bias on the part

of a juror based on the evidence presented here. The record in this case reflects

31 a trial court concerned from the outset with a courtroom containing observers

from “both sides of the aisle” representing family and friends of both the

victims and Hollingsworth. The trial court knowingly and wisely observed that

it did not want “anybody thinking anybody in here or anybody knows anybody

to come in here and do something that’s going to influence this trial, ‘Oh, if I do

this, then the trial’s going to be off because [Hollingsworth’s counsel] is going to

make some motions.’ It’s not.”

Given the totality of the circumstances presented here, we conclude there

was no abuse of the trial court’s discretion and no showing of demonstrable

prejudice to Hollingsworth.

D. Did the Trial Court Err by Allowing the Commonwealth to Hear a Call Recorded at the Jail between Hollingsworth and his Father?

Hollingsworth’s last argument is that the court erred in admitting, over

his objection, a recorded jail call between Hollingsworth and his father.

Hollingsworth, who did not testify at trial, argues that the recording was

inadmissible hearsay under KRE 802 and could not have been admitted as an

adopted admission, an exception to our hearsay rule found in KRE 801A(b)(2),

because Hollingsworth’s responses during the phone call did rise to the level of

adopting his father’s statements.

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). “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). 32 Here, the phone call between Hollingsworth and his father contained the

following exchanges which are relevant to our inquiry:

Father: I heard they caught you

Hollingsworth: Yeah, they did

Father: Can’t run forever, you know.

Hollingsworth: Yes sir.

Father: You can’t run forever, though . . . Now you gotta deal with it and you know, you’re going to be alright. You know when you get in there you just need to pray, you know what I’m saying?

Hollingsworth: Yes.

....

Father: You’ll be all right, [unintelligible] you gotta stay strong, man, you know, you gotta realize what you did wasn’t right, Shawn, you know what I’m saying?

Father: So you know, I don’t know [unintelligible] talk about too much what’s going on, just [unintelligible] let me know when you go to court, and whatever, I’ll come to court, I’ll be in court. You know what I’m saying? ....

Father: You know, like I told you, you’re always gonna be my son. I love you, but what I tell you, end of the day, when you do grown man things, you have to . . . like a grown man

Hollingsworth: Yes, sir.

(Emphasis of significant statements added).

The Commonwealth argues that Hollingworth’s response to his father’s

statements constituted an “adoption” of those statements while Hollingsworth 33 asserts that his responses only indicated his respectful acknowledgment of

hearing what his father had said.

The Kentucky Rules of Evidence define hearsay as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” KRE 801. One exception

to the rule excluding hearsay statements concerns those which indicate

adoption of the statements. Under KRE 801A(b)(2), “[a] statement is not

[however] excluded by the hearsay rule, even though the declarant is available

as a witness, if the statement is offered against a party and is: [a] statement of

which the party has manifested an adoption or belief in its truth[.]”

Hollingsworth’s agreement with the statement, “you gotta realize what

you did wasn’t right,” could appear to be an adoption of an incriminating

statement but, in the full context of the phone conversation, it was one of

twelve times Hollingsworth responded with either “yes” or “yes, sir” to

statements made by his father and could be a simple acknowledgement by

Hollingsworth of having heard his father, instead of necessarily agreeing with

him that Hollingsworth had done something wrong.

This Court has previously determined “[w]hen incriminating statements

are made in the presence of an accused under circumstances that would

normally call for his denial of the statements, and it is clear that the accused

understood the statements, yet did not contradict them, the statements are

admissible as tacit, or adoptive, admissions.” Marshall v. Commonwealth, 60

S.W.3d 513, 521 (Ky. 2001).

34 We also note that the call was preceded by an automated warning that it

was not privileged and “subject to recording and monitoring.” Hollingsworth

was well aware and well-warned that law enforcement could not only listen to

his calls but that they could be played later for a jury.

The trial court was correct in determining that the jury should be allowed

to hear the call and decide for itself whether or not Hollingsworth’s father’s

statements implicated his son’s guilt, and whether Hollingsworth’s responses

indicated, or did not at all indicate, an adoption of his father’s statements. This

was not error.

III. CONCLUSION

We affirm Hollingsworth’s convictions and sentences by the Jefferson

Circuit Court.

All sitting. All concur.

35 COUNSEL FOR APPELLANT:

Joshua M. Reho Assistant Public Defender

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Bryan D. Morrow Assistant Attorney General

Shawn D. Chapman Assistant Attorney General