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Holbrook v. Commonwealth

Supreme Court of Kentucky

August 24, 2017

KYLE SHEA HOLBROOK APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON 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.

          OPINION

          HUGHES JUSTICE.

         Appellant, 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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.

         Holbrook 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.

         Holbrook 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.

         Two 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.

         Multiple 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.[1] Later, after Bryant's disappearance, Robinson noticed that Holbrook had a great deal of money.

         The 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.

         Additionally, 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.

         Subsequently, 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.

         ANALYSIS

         I. 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.

         Holbrook 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 scientifically unreliable.

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

         KRE 702 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":

"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 night.

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 2796-97).

         "The 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)).

         To 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)).

         "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." 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)).

         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." 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.

         In the 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.

         Subsequently, 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.

         To 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 apply regardless.

         After 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 ...

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