APPEAL FROM MORGAN CIRCUIT COURT HONORABLE REBECCA K.
PHILLIPS, JUDGE NO. 15-CR-00008
COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public
Advocate Department of Public Advocacy.
COUNSEL FOR APPELLEE: Andy. Beshear Attorney General of
Kentucky Thomas Allen Van De Rostyne Assistant Attorney
General Office of the Attorney General.
Kyle Shea Holbrook, appeals as a matter of right from a
judgment of the Morgan Circuit Court sentencing him to twenty
years' imprisonment for murder and tampering with
physical evidence. Holbrook alleges that the trial court
erred in five ways: 1) by permitting expert testimony about
historical data analysis of cell phone and cell tower
records; 2) by allowing two witnesses to opine that Holbrook
was lying or that he was guilty; 3) by permitting the
Commonwealth to introduce photographs depicting the
victim's body; 4) by authorizing the admission of hearsay
statements made by Holbrook; and 5) by instructing on
complicity to murder. Also, Holbrook contends that he was
prejudiced and denied due process of law by the Commonwealth
allegedly defining reasonable doubt during voir dire. For the
following reasons, we affirm the judgment and sentence of the
Morgan Circuit Court.
AND PROCEDURAL BACKGROUND
April 2011, Matthew Harris discovered Dillori Bryant's
body floating in a pond on the two-hundred-acre Holbrook
family farm. A month prior, Bryant had been reported missing
by his sister after she was unable to get in contact with
him. When the authorities arrived on the scene, Harris
informed them that after Bryant's disappearance in late
February or early March he observed tire tracks leading to
one pond, backing out, and then heading to the pond in which
the body was found. The pond where the body was recovered was
approximately a mile away from Holbrook's residence.
Despite the advanced level of decomposition, the body was
ultimately identified as that of Bryant. Medical examination
of Bryant's body revealed that he had been shot twice,
once in the head and the other in the upper back.
was interviewed by police both as part of their investigation
into Bryant's disappearance and again later as part of
the murder investigation. In his statements to the police,
Holbrook claimed that Bryant had informed him of an
altercation that had occurred with Francisco Camacho and Evan
Ratliff a week before he was reported missing. The root of
the altercation was Bryant's effort to convince his
former girlfriend to leave Camacho's home where she had
been residing. Camacho took exception to Bryant's efforts
and they had an argument outside his residence. When Bryant
left Camacho-s residence, Camacho followed him. After running
the vehicle Bryant was in off the road, Camacho confronted
and argued with Bryant at a gas station and later at a home
belonging to Greg Creusen.
also informed police that the day after this dispute, he
picked up Bryant and they went to his residence to use
narcotics. Bryant discussed his plan to make sham cocaine and
rip someone off. Later Bryant was picked up in a grey or
silver sedan, but Holbrook said that he did not know who was
driving the vehicle. Holbrook claimed that this was the last
time that he saw Bryant.
years later, in April 2013, Holbrook was indicted by the
Elliott County grand jury for murder and tampering with
physical evidence. Prior to trial the indictment was amended
to include complicity liability to the murder charge. After
Holbrook successfully petitioned for a change of venue, the
case was tried in February 2015, in Morgan County.
witnesses testified at trial about statements Holbrook
allegedly made to them about his involvement with
Bryant's disappearance. Justin Conn testified that
Holbrook told him that Bryant was killed by Camacho and that
the body had been placed in the pond to set him up. Conn also
explained that Holbrook had told him that Camacho had offered
him money to bring Bryant to him, but Holbrook said that he
would never do that. Similarly, Odie Robinson testified that
several weeks prior to Bryant's disappearance, Holbrook
informed him that Camacho had offered him money to bring
Bryant to him. Robinson explained that Holbrook told him that
he refused to entertain such a proposition. Later, after
Bryant's disappearance, Robinson noticed that Holbrook
had a great deal of money.
jury also heard testimony from Brian Stacy. Stacy explained
that he had purchased narcotics from Holbrook in the past.
After getting out of jail, Stacy approached Holbrook to
purchase cocaine. Holbrook informed Stacy that he was unable
to procure the drugs. Specifically, he claimed that "he
wasn't messing with those people anymore" and that
someone ended up dead. Stacy was uncooperative during
questioning and denied informing Kentucky State Police (KSP)
Detective Gardner about statements allegedly made by Holbrook
to him. Subsequently, Detective Gardner testified that Stacy
informed him that Bryant owed Camacho $2, 600 and when he
failed to pay, Camacho ordered Holbrook to seize Bryant.
Afterwards, Holbrook brought Bryant to where Ratliff and
Camacho were, and the pair murdered him.
Tony Lewis, who was incarcerated with Holbrook for several
months in 2012-2013, informed the jury that based on his
discussions with Holbrook, Holbrook believed that he had
gotten away with murdering Bryant. According to Lewis,
Holbrook had an altercation with Bryant. Also, in a statement
made to KSP Detective Royce Collett, Lewis claimed that
Holbrook murdered Bryant to erase a debt owed to Camacho.
Holbrook was found guilty of all charges. The jury
recommended twenty years' imprisonment for murder and
three years' imprisonment for tampering with physical
evidence. The jury recommended that those sentences be served
concurrently for a total sentence of twenty years'
imprisonment. The trial court sentenced Holbrook in
conformance with the jury's recommendation. Holbrook
brings this appeal as a matter of right.
The Trial Court Did Not Abuse Its Discretion by Permitting
the Introduction of Expert Testimony Regarding Historical
Data Analysis of Cell Phone and Cell Tower Records.
alleges that the trial court erred by permitting the
introduction of expert testimony from Special Agent Kevin
Horan of the Federal Bureau of Investigation (FBI). Prior to
trial, Holbrook sought to bar Special Agent Horan's
testimony about historical data analysis of cell tower and
cell phone records contending that his conclusions are
admissibility of expert testimony is governed by Kentucky
Rule of Evidence (KRE) 702. That rule 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
(3) The witness has applied the principles and methods
reliably to the facts of the case.
was written in light of guidance set forth by the Supreme
Court in Daubertv. Merrell Dow Pharm., Inc., 509
U.S. 579, 113 S.Ct. 2786 (1993). Daubert 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). "[A] trial court's task
in assessing proffered expert testimony is to determine
whether the testimony *both rests on a reliable foundation
and is relevant to the task at hand. Futrell v.
Commonwealth, 471 S.W.3d 258, 282 (Ky. 2015) (quoting
Daubert, 509 U.S. at 597, 113 S.Ct. at 2799).
Relevancy, in this setting has been described as one of
"Fit' is not always obvious, and scientific validity
for one purpose is not necessarily scientific validity for
other, unrelated purposes. . . . The study of the phases of
the moon, for example, may provide valid scientific [,
technical, or other specialized] 'knowledge' about
whether a certain night was dark, and if darkness is a fact
in issue, the knowledge will assist the trier of fact.
However, (absent creditable grounds supporting such a link),
evidence that the moon was full on a certain night will not
assist the trier of fact in determining whether an individual
was unusually likely to have behaved irrationally on that
Luna v. Commonwealth, 460 S.W.3d 851, 864 (Ky. 2015)
(quoting Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 578 (Ky. 2000) (alterations in
original)). "In making its reliability determination,
the trial court must consider 'whether the reasoning or
methodology underlying the testimony is scientifically valid
and whether that reasoning or methodology properly can be
applied to the facts in issue.'" Toyota Motor
Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky. 2004) (quoting
Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796). To
evaluate whether the proffered expert testimony is reliable,
a trial court may consider a number of non-exclusive factors
such as: "whether the principle, theory, or method in
question 'can be (and has been) tested/ whether it has
been subjected to peer review and publication/whether it has
a Known or potential rate of error/and whether it enjoys
acceptance within 'a relevant scientific
community."5 Futrell, 471 S.W.3d at 282
(quoting Daubert, 509 U.S. at 593-94, 113 S.Ct. at
decisions of trial courts as to the admissibility of expert
witness testimony under Daubert are generally
entitled to deference on appeal because trial courts are in
the best position to evaluate firsthand the proposed
evidence." Miller, 146 S.W.3d at 914.
Accordingly, whether a witness qualifies as an expert is
reviewed under an abuse of discretion standard. Id.
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
& Rubber Co., 11 S.W.3d at 581 (citing
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999)). However, any factual determinations made by the trial
court in evaluating an expert's reliability are reviewed
for clear error. Luna, 460 S.W.3d at 864 (citing
Hyman & Armstrong P.S.C. v. Gunderson, 279
S.W.3d 101-02 (Ky. 2008)).
understand the issues presented in Special Agent Horan's
testimony, a brief explanation of the intersection of cell
phones and cell phone towers is necessary. "Cell phones
work by communicating with cell-sites operated by cell-phone
service providers. Each cell-site operates at a certain
location and covers a certain range of distance." In
re U.S. for an Order Authorizing the Release of Historical
Cell-Site Info., 809 F.Supp.2d 113, 115 (E.D.N.Y. 2011).
The geographic area covered by a particular tower depends
upon "the number of antennas operating on the cell site,
the height of the antennas, topography of the surrounding
land, and obstructions (both natural and manmade).8
United States v. Hill, 818 F.3d 289, 295 (7th Cir.
2016) (quoting Aaron Blank, The Limitations and
Admissibility of Using Historical Cellular Site Data to Track
the Location of A Cellular Phone, 18 RICH. J.L. 85 TECH.
3, 5 (2011)).
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." Id. "As a cell phone user moves
from place to place, the cell phone automatically switches to
the tower that provides the best reception." State
v. Johnson, 797 S.E.2d 557, 562 (W.Va. 2017) (quoting
In re Application of U.S. for an Order for Disclosure of
Telecomms. Records & Authorizing the Use of a Pen
Register & Trap & Trace, 405
F.Supp.2d 435, 436-37 (S.D.N.Y. 2005)).
practical and technical necessity, "cell-phone service
providers keep historical records of which cell-sites each of
their users' cell phones have communicated." 809
F.Supp.2d at 115. Review of a cell 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." United States v. Davis,
785 F.3d 498, 515 (11th Cir.), cert, denied, 136
S.Ct. 479 (2015); see also State v. Simmons, 143
A.3d 819, 825 (Me. 2016) ("[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." Davis, 785 F.3d at 515.
case at bar, the trial court conducted a pretrial hearing to
assess Special Agent Horan's qualifications and to
examine his analysis and opinions relating to historical
cell-site data. During that hearing, the trial court learned
that Special Agent Horan has been employed by the FBI for
nineteen years and is a member of the Bureau's Cellular
Analysis Survey Team (CAST). CAST was created to analyze
various historical records associated with the use of cell
phones including cell phone records, tracking cell phones
through cell tower records, and analyzing cell phories. CAST
agents undergo one month of training, along with continuing
education and updates from professionals in the cell phone
industry. Additionally, Special Agent Horan attended a
specialized training known as the Project Pinpoint School
where he concentrated on cellular analysis and tracking.
Based on the foregoing, the trial court concluded that
Special Agent Horan was an expert.
Special Agent Horan explained that cell 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, Special Agent Horan could determine
the general location of a phone at a particular time. By
determining the cell phone tower and sector, Special Agent
Horan can identify a general area or "footprint"
within which the phone was located at a given time.
identify the exact boundaries of the "footprint, "
Special Agent Horan would typically perform a "drive
test, " wherein he would drive the area to identify the
exact size of the "footprint." However, Special
Agent Horan did not perform a drive test in this case due to
the passage of time. Special Agent Horan explained that a
drive test conducted in 2013 or 2014 would not yield accurate
information as to the "footprint" of the tower as
it existed in 2011, due to software and hardware changes.
Also, he noted that while a drive test is the best way to
refine the coverage area, the general principles of coverage
hearing Special Agent Horan's proffered testimony, the
trial court determined that:
[Special Agent Horan's] testimony is based upon the
technology and analysis system which is the industry
standard. His methods of analysis have been repeatedly
utilized with success and were developed by and taught by
industry members. His testimony is reliable, relevant, and of
assistance to the trier of fact. Without question, the
concerns which drive a Daubert analysis do not exist
herein. This is not 'junk science' or junk
technology' for this is the methodology of the industry
itself. More importantly, this is not some technique devised
by [Special] Agent Horan that is untested and ...