MICHAEL TORRENCE V. COMMONWEALTH OF KENTUCKY

Frankfort, KY - Criminal defense attorney represented Michael D. Torrence with first-degree assault and possession of a handgun by a convicted felon..

Michael Torrence's charges stem from events surrounding the shooting of

Gerrado Thomas on the afternoon of May 17, 2016, on 26th Street in

Louisville. The shooting left Thomas paralyzed below the waist. At trial, in

addition to the offenses that resulted in convictions, Torrence was acquitted of

first-degree wanton endangerment for shooting into a nearby house.

During police questioning, Torrence claimed he was picking up his

daughter in the Blue Lick area of Louisville at the time of the shooting because

the child's mother, a former girlfriend, was in the hospital having a baby. The

Blue Lick area of Louisville is approximately eleven air miles from the 26th

Street shooting location.

The first issue raised in this appeal arose late in the trial. At the start of

the penalty phase, Torrence raised concerns that a juror had not been truthful

in voir dire when the panel was asked if anyone knew him. Torrence asserted

1 In his brief, Torrence raises four related issues regarding the trial court's

rulings as to cell tower evidence. While we acknowledge and analyze all of Torrence's

arguments, we treat these related issues as one.

2

Tatiana Turner, the mother of his child and an alibi witness for the defense,

recognized the juror when she testified late in the defense case.

The timing concern is centered around when the issue was brought to

the trial court's attention. Over a weekend break after guilty verdicts were

returned on Friday, and before the penalty phase began on Monday, Torrence's

attorney was notified about the juror issue. He brought the matter to the

court's attention on Monday morning. While continuing with the penalty

phase, the trial court used breaks in the proceedings to take testimony and

question Turner and the juror. The trial court ruled it would not excuse the

juror or grant a mistrial, and several months later overruled a motion for

judgment notwithstanding the verdict (JNOV) and a new trial based on the

juror issues.

The next issue raised in this appeal deals with admitting historical cell

tower data into evidence. It began when Louisville Metro Police Detective

Stephen Snider obtained Torrence's cell phone number and cell phone service

provider from the police interview. The detective was seeking to verify

Torrence's alibi.

The detective sent AT&T a search warrant requesting historical cell

phone tower data for Torrence's cell phone number for the day of the shooting.

AT&T sent Detective Snider a 500-page report and after it was explained to

him, Detective Snider figured out which cell phone towers Torrence's cell phone

was communicating with around the time of the shooting. Cell phone towers

have unique identification numbers and their locations were designated in the

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report with latitude and longitude coordinates. Also included in the report was

a directional degree reading, indicating the direction but not location, of the cell

phone in relation to the tower.

Based on the tower coordinates and directional compass readings from

the report, Detective Snider produced a graph overlay on a Googleâ„¢ map of

Louisville. The map showed Torrence's cell phone was in contact with towers

close to the shooting location and not in contact with towers near the Blue Lick

area when Thomas was shot.

On the first morning of trial, Torrence moved for the Commonwealth to

disclose experts and expert opinions regarding historical cell tower data. In

response, the Commonwealth argued Detective Snider did not need to be

qualified as an expert to testify using the historical cell tower report. The

Commonwealth asserted that Detective Snider would simply enter the cell

tower locations from the historical data report into a Googleâ„¢ map computer

program. Further, the Commonwealth asserted reading the AT&T report was

like reading a familiar phone bill and anyone could use Googleâ„¢ Maps. The

Commonwealth assured the trial court the phone company cell tower records

were verified. Finding the issues moot because no expert was going to testify,

the trial court overruled the motions to disclose experts and expert opinions.

The Commonwealth did not ask Detective Snider any questions about his

qualifications, background, experience, or specialized training with historical

cell tower evidence. No witness testified (either law enforcement or from a

phone company) who had specialized knowledge, experience, or background

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with historical cell tower data and how it works. Detective Snider testified as to

basic information about cell phones connecting to towers and how the

information in the report is read.

Detective Snider gave no opinions based on the AT&T report about

Torrence's location at the time of the shooting. A map showing two cell tower

locations communicating with Torrence's cell phone near the time of the

shooting was presented to the jury and entered into evidence. In closing

argument, the Commonwealth asserted the graphed map undercut Torrence's

alibi.

The final issue raised in this appeal revolves around Thomas's (the

victim's) identification of Torrence from a police photo array. Detective Snider

testified about police efforts to determine the identity of the shooter initially

identified by Thomas as "Man-Man.” Detectives presented Thomas with an

array containing six photos. Thomas identified Torrence from the photo array

as Man-Man, the person who shot him. However, before he made that police

photo array identification, Thomas's sister and/or girlfriend showed him a

single photo of Torrence they downloaded from a social media site. Torrence

moved for the exclusion of Thomas's identification from the police photo array

and in court, arguing the identifications were tainted by his sister and

girlfriend previously showing him the single photograph. The trial court denied

Torrence's motion. In ruling on the motion, the trial court found that Thomas's

sister and girlfriend were not acting on behalf of the police—and, therefore,

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there was no state action involved in them showing Thomas the single

photograph.

Further background information will be developed as needed.

II. ANALYSIS

A. Juror Issue

Torrence seeks reversal of his convictions, claiming the trial court erred

when it failed to remove a juror and declare a mistrial. Torrence claims further

error when the trial court denied his motion for a new trial or JNOV based on

the same juror issues. According to Torrence, a juror wrongfully remained

silent when asked during general voir dire if anyone knew Torrence or any of

the witnesses. Torrence claims the juror met him several years before trial,

albeit indirectly, through Turner, his girlfriend at the time of the meeting and

an alibi witness at trial.

During voir dire, the juror identified as Juror #2071060 did not respond

when asked if anyone knew Torrence. Turner, as a defense witness, was kept

out of the courtroom by the trial court's separation order. Near the end of the

defense case, Turner testified. The jury returned guilty verdicts on Friday

afternoon, and Turner told Torrence's mother over the weekend that she

believed she recognized the juror in question. On Monday, the fifth and final

day of trial, defense counsel advised the trial court that Juror #2071060 knew

Turner and Torrence and had not been honest about that knowledge in her

responses during voir dire. In dealing with the very serious issues raised, the

trial court took proof including questioning Turner and the juror.

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The trial court questioned Juror #2071060 multiple times. Each time

she was asked, the juror denied knowing Torrence. In response to a repeated

question by the trial court about knowing Torrence, the juror responded this

was the first time "ever seeing this man.” Juror #2071060 told the trial court

that she knew "of' Turner but did not know her and had not seen her in more

than five years. When the trial court asked the juror what she meant by

knowing "of' Turner, she responded that they did not communicate and had

never seen one another on a daily basis. The juror also responded that she did

not know Turner and Torrence knew each other.

When asked if she and Turner shared a half-sister, the juror responded

that her half-sister, Waynesia, and Turner were not "real sisters.” We note that

even if they had shared a half-sister (as Turner claimed in her testimony), there

was never any claim that Turner and the juror were related. In Turner's

testimony, she revealed that her father has at least thirty-six children and

indicated she had no idea how many households that involved. Defense

counsel introduced birth certificates, but they were of no help in resolving the

already-tenuous loose familial relationship, as the birth certificates contained

empty fields where the child's father would be indicated. Finally, the juror

responded to the trial court's inquiry about possible bias, saying, she was "all

the way fair.”

In her testimony regarding the juror, Turner did not know Juror

#2071060's "government name,” address, or contact information, but did know

that her mother was deceased. Turner testified Torrence and Juror #20171060

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met several times at Waynesia's house several years prior to trial. According to

Turner, she would visit Waynesia on an almost daily basis since the two halfsisters lived just a couple of streets apart from each other, and Juror

#20171060 would be there, too. Turner claimed Torrence would stop by

regularly and see her, as she was pregnant with his child. Turner

acknowledged there were no recent contacts between she and the juror.

The trial court expressed concern that the information about the

relationship between Turner and Juror #2071060 came to the court's attention

late in the trial. Turner's credibility was suspect for the trial court because

Turner had been in and out of the courtroom on the preceding Friday but

brought up the issue with Juror #2071060 only after a finding of guilt.

The defense first raised problems with Turner and Juror #2071060 on

the fifth and final day of trial—after the jury had reached a verdict in the guilt

phase and the alternate juror had been released. During voir dire when issues

could have been raised, Turner was not identified by either party as a potential

witness and no questions were asked about her. Turner, despite the

Commonwealth knowing Torrence claimed her as an alibi witness in his police

interview, was not included in the list of names read to the jury by the

Commonwealth which included several persons that would not be called as

witnesses but might be mentioned during the trial. Knowing Turner was going

to be called as an alibi witness, the defense failed to ask the jurors if anyone

knew Turner. In fact, they did not even mention Turner's name. Therefore, the

juror in question did not fail to disclose knowledge of Turner in voir dire—she

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was never asked those questions. The record reveals the first time the jury

heard Turner's name was during the defense's opening statement. The trial

court's concern over the timing of the issue is supported by the record.

The trial court denied the motion to excuse Juror #2071060 and

overruled the motion for a mistrial. Months after trial, at a sentencing hearing

with Torrence's new counsel, the trial court denied a motion, based solely on

the juror issues, for a new trial or JNOV. The trial court referenced the

questions and answers from the trial hearings in denying the motion.

1. Structural Error

The Sixth Amendment to the United States Constitution, and Sections

Seven and Eleven of the Kentucky Constitution guarantee the right to an

impartial jury. Structural error occurs when that right is denied. Hayes v.

Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005). Such a denial would not be

subject to harmless error analysis because that would not be appropriate

where a substantial right such as this is involved. Shane v. Commonwealth,

243 S.W.3d 336, 341 (Ky. 2007). "[T]he defining feature of a structural error is

that it 'affect[s] the framework within which the trial proceeds,' rather than

being 'simply an error in the trial process itself.' Commonwealth v. Douglas,

553 S.W.3d 795, 799-800 (Ky. 2018). Failing to remove a biased juror taints

the entire trial. Id. at 800.

Mindful of the above principles, we review the trial court's decisions

under an abuse of discretion standard, "whether the trial judge's decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

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Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). After careful

review, we find the trial court did not abuse its discretion and therefore find no

structural error.

2. Bias

RCr 9.36(1) states, in pertinent part: "When there is reasonable ground

to believe that a prospective juror cannot render a fair and impartial verdict on

the evidence, that juror shall be excused as not qualified.” In Ward. v.

Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985), this Court quoted a sister

state in saying "irrespective of the answers given on voir dire, the court should

presume the likelihood of prejudice on the part of the prospective juror because

the potential juror has such a close relationship, be it familial, financial or

situational, with any of the parties, counsel, victims or witnesses.” Id. (quoting

Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981)).

With that in mind, our initial inquiry is whether the juror in question

had a "close relationship” with either Torrence or Turner such that prejudice

should be presumed. To answer this question, Torrence asserts Juror

#2071060 and Turner had a half-sister in common. However, even if they did

share a half-sister (as is asserted by Turner and disputed by the juror), both

Juror #2071060 and Turner made clear to the trial court that they were not

related to each other. The existence of a familial relationship, based on

testimony from both Turner and Juror #2071060, proved non-existent.

Torrence presented no proof contesting the lack of a familial relationship;

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instead, Torrence raised situational claims based on the half-sister-in-common

relationship.

Relying on Turner's testimony about daily time spent at Waynesia's

home, Torrence argues the juror had to have met him and was therefore not

truthful with the court. Although conceding no contact between Turner and

Juror #2071060 occurred more recently than five or six years prior to trial,

Torrence claims the prior contact was critical. Because Torrence asserted he

and Turner were dating while she was pregnant with his child, the import of

Turner being daily at Waynesia's house is that, if Juror #2071060 saw Turner

at Waynesia's, she had multiple opportunities to meet Torrence. Turner

claimed Juror #2071060 did meet Torrence at Waynesia's on multiple

occasions. No other witnesses supported that claim and Juror #2071060

denied ever seeing him.

Juror #2071060 claimed she did not know Turner, she only knew "of”

her, and the two did not communicate with each other. No proof was offered of

shared birthday parties, holidays, or other family events related to the

contested half-sister. It was not arbitrary for the trial judge to weigh the

evidence and give more credibility to the juror than to one of Torrence's alibi

witnesses, who was also the mother of his child. Torrence claims the shared

relationship between juror #2071060, Turner, and Waynesia produced

unavoidable contact between the juror and himself. The trial court found

otherwise.

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This Court notes that Waynesia was not called as a witness. Both juror

#2071060 and Turner claimed her as a half-sister (though the juror disputes

that Waynesia and Turner were "real sisters”). It seems as if Waynesia would

have been important to corroborate or deny that Turner and the juror had

spent substantial time together. However, she was not called to testify. During

trial this is more understandable given the time constraints of when this issue

arose, but we note she was not called as a witness for the hearing on the

motion for a new trial or JNOV motion at a sentencing hearing conducted

several months after trial. We do not speculate as to what she might have said

if called as a witness.

Reviewing the totality of circumstances in the record, it was not

unreasonable for the court to determine the juror possessed the mental

attitude of "appropriate indifference” required to sit on a jury. Gabbard v.

Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). If this was a close call or the

issues could not be resolved with certainty, the juror should have been

excused. Futrell v. Commonwealth, 471 S.W.3d 258, 273 (Ky. 2015). The

record supports that this was not a close call. The juror adamantly told the

trial judge she did not know Torrence and was not biased. She even denied

Turner's claim that the two of them shared a half-sister. The trial court had

full opportunity to view her responses to questions and make a determination

as to her credibility. The trial court likewise had the same opportunity to view

Turner's responses and assess her credibility. "[DJeference must be paid to

the trial judge, who sees and hears the juror, in reviewing determinations of

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impropriety of challenges for cause.” Penman v. Commonwealth, 194 S.W.3d

237, 252 (Ky. 2006), overruled on other grounds by Rose v. Commonwealth, 322

S.W.3d 76 (Ky. 2010).

Torrence further objects to the use of the transcript ofjail calls attached

in an appendix to the Commonwealth's brief. The transcript is a purported

summary of what was said during Torrence's recorded jail house phone calls.

In that transcript, Torrence apparently said he did not recognize the juror but

indicated he would say he did. Torrence unsuccessfully moved this Court to

strike Appellee's brief for citing to the transcript. The transcript was offered by

the Commonwealth and placed in the court file as part of an avowal at the

sentencing hearing prior to the trial court ruling on the motion for a new trial

or JNOV. The trial court did not have this purported transcript during trial

when ruling on the motion to excuse the juror and the motion for mistrial.

When the document was presented to the trial court as part of an avowal, it

was entered into the record. There is no indication the trial court read or

considered it when making the decision to overrule the motion for a new trial or

JNOV. The trial court was clear that the decision to overrule the motion was

based on the questions and answers from the hearings held during trial.

3. Mendacity and New Trial or JNOV motion

Torrence also seeks a new trial based on juror mendacity. "To obtain a

new trial because ofjuror 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

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challenge for cause.'” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003)

(quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984)). Torrence made no such showing here. The material question, "did the

juror know Torrence?” was asked during voir dire and answered by her silence.

When Juror #2071060 was asked the same question late in the trial, her

adamant spoken reply was she did not know Torrence.

Furthermore, any purported relationship between the juror and Turner

(one of Torrence's alibi witnesses) was not close, as discussed at length above.

As to the juror's mendacity regarding Turner, the juror was never asked during

voir dire if she knew or had a connection with Turner. Therefore, she could not

have lied about such a connection at that point. It is noteworthy that the

defense did not question jurors as to any knowledge of or connection with

Turner in spite of her being one of Torrence's alibi witnesses. In fact, the juror

was never questioned about knowing Turner until after the jury had reached a

guilty verdict—a time after the alternate juror had been excused.

The trial court accepted the juror's answers as truthful. As such:

On appeal, the factual findings of the trial court "shall not be set

aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility of the

witnesses.” CR 52.01. A factual finding is not clearly erroneous if it

is supported by substantial evidence. Moore v. Asente, 110 S.W.3d

336, 354 (Ky. 2003). Substantial evidence is "[e]vidence that a

reasonable mind would accept as adequate to support a conclusion

and evidence that, when taken alone or in the light of all the

evidence ... has sufficient probative value to induce conviction in

the minds of reasonable men.” Id. at 354.

Gullett v. Commonwealth, 514 S.W.3d 518, 523 (Ky. 2017).

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4. Mistrial

Torrence also claims the trial court erred in failing to grant a mistrial. "A

trial court is authorized to use its discretion to declare a mistrial only when

there is a manifest necessity, when the right to a fair trial has been infringed

upon and the prejudicial event cannot otherwise be remedied.” Gray v.

Commonwealth, 534 S.W.3d 211, 215 (Ky. 2017) (internal citations omitted).

Having determined the trial court committed no error in failing to excuse the

juror, it follows that we find no manifest necessity existed for a mistrial.

After careful review of the record relating to Torrence's claims that the

trial court erred by failing to excuse a juror, grant a mistrial, or grant a motion

for a new trial or JNOV, we find no error.

B. Historical Cell Tower Data Testimony

Torrence raises four claims of error by the trial court in admitting

historical cell tower evidence obtained through an AT&T report and allowing

Detective Snider to testify utilizing that report. In summary, all four claims

involve the AT&T report, Detective Snider testifying as a lay witness about

information in the report, and whether the Commonwealth should have called

an expert witness to testify about historical cell tower data in the report. As we

find these issues significantly interconnected, we will review them as one

concern. Additional background information is necessary for analysis of this

issue.

As noted above, prior to trial, Torrence filed a motion for disclosure of

expert testimony and a separate motion to exclude any testimony regarding

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historical cell tower evidence pursuant to RCr 7.24. Torrence did not file a

motion requesting a hearing pursuant to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), challenging historical cell tower

evidence. As previously noted, cell phone records from AT&T for Torrence's

phone number with historical tower data, including latitude and longitude of

specific cell towers, were provided in discovery by the Commonwealth. The

Commonwealth's response to the motions was:

Judge, these are AT&T records and they show what time each

phone call was made. It is the typical AT&T records that we

normally see where the phone calls are listed in a row in order of

date and time, and at the end of each row it shows the latitude and

longitude, and the angle from the cell tower, the location of the call

being made. So, while yes there were a lot of incomprehensible

phone records that were turned over as part of the package, there

are also pages that are very familiar to us. That look like phone

records or any records we would get in our own phone bills.

The Commonwealth indicated it did not have an expert, would not be

qualifying anyone as an expert, and would ask Detective Snider questions

about the cell tower data based solely on the AT&T records that anyone could

read, interpret, and apply. The Commonwealth assured the trial court the

records were verified.

In response, Torrence raised concerns with Detective Snider testifying as

a lay witness. Defense counsel stated:

And Judge, my understanding is that Detective Snider is effectively

. . . that I want to contest that these calls, these records are

accurate or that these longitude pings are inaccurate, effectively

there is nothing that Detective Snider can actually answer as far as

just this is what is in the report.

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The court replied, "Then you can call your own witness to do that, would

be the way to challenge it.” The trial court overruled the motion to disclose

expert testimony as moot and denied the motion to exclude the testimony

pursuant to RCr 7.24. Torrence did not call any expert witnesses.

Detective Snider testified about the historical cell tower phone records

and the search warrant used to obtain the AT&T report. Detective Snider

indicated that he obtained the records in the course of his investigation in an

effort to confirm Torrence's alibi that he was in the Blue Lick area picking up

his daughter when Thomas was shot.

Detective Snider testified AT&T maintains information for every AT&T

cell phone customer. Much of the information in the report is like familiar

phone bills the average cell phone customer receives with pages separated into

columns by phone number, call or text, date, and time.

Detective Snider pointed out each call line in the report contained

additional information not usually found on a customer cell phone bills which

was included in the report because of the search warrant request. The request

specified unique tower identification numbers for each cell tower Torrence's

phone interacted with for calls or texts, the latitude and longitude location of

those specific towers, and a directional degree reading based on a 360-degree

circle or compass. This reading indicated the direction of the call or text

relative to the tower but did not provide an actual location of the phone when a

call or text was made. The report is for historical data only: it shows only

what happened (which tower a cell phone interacted with at what time), which

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is different from real-time pinging location technology police use to track a

current location for a cell phone.

Detective Snider used a computer to open Googleâ„¢ Maps on a video

display for the jury. On the Googleâ„¢ map of the relevant parts of Louisville,

Detective Snider entered the location of the shooting on 26th Street, the Blue

Lick area where Torrence claimed he was at the time of the shooting, and the

location of two cell towers to which Torrence's phone connected around the

time of the shooting based on the AT&T report. One of the towers showed cell

phone interaction for a call at 4:27 p.m. (immediately prior to the shooting) and

a second tower showed cell phone interaction for a call at 4:33 p.m. (a few

minutes after the shooting). The distance of the two towers from the shooting

location according to Googleâ„¢ Maps was 1.131 miles for the first tower and

3,292 feet for the second tower.

Using the directional compass information from the report, Detective

Snider drew a "pie wedge” for each call that showed the direction from the cell

tower the phone was when it interacted with the tower. According to Googleâ„¢

Maps, the Blue Lick area where Torrence claimed to be at the time of the

shooting was eleven miles from the 26th Street location of the shooting. No

towers in the Blue Lick area showed interaction with Torrence's cell phone

around the time of the shooting. Detective Snider did not give an opinion

about Torrence's location based on the report or the map he created during the

course of his investigation from the report data. The map was entered into

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evidence. The phone records he utilized in creating the map during his

investigation were not entered into evidence.

On appeal, "[w]e will not disturb a trial court's decision to admit evidence

absent an abuse of discretion.” Matthews v. Commonwealth, 163 S.W.3d 11,19

(Ky. 2005) citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996).

"The test for abuse of discretion is whether the trial judge's decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)

(citing English, 993 S.W.2d at 945).

Both parties refer this court to Holbrook v. Commonwealth, 525 S.W.3d

73 (2017). In that case, we reviewed historical cell tower data analysis and

found the trial court did not abuse its discretion by permitting the introduction

of expert testimony by an FBI special agent regarding historical data analysis of

cell phone and cell tower records. The FBI Special Agent had specialized

training and experience in cell tower data analysis regarding the data, the

technology, the limits of that technology and what the data revealed. It is

important to this analysis that the agent did not offer an opinion as to the

location of the caller in Holbrook, but only as to towers that the phones

interacted with when calls were made.

This court revisited cell tower historical data and expert testimony in

2019 in an unpublished opinion, Rivera-Rodrigues v. Commonwealth, 2018-SC000197-MR, 2019 WL 2462783, (Ky. 2019). We affirmed the use of expert

testimony by a radio frequency engineer from Sprint (the phone company in

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that case). As to the location of the callers, again no opinion was offered. We

stated:

As the Commonwealth contends, had Neeman opined that the

sectors revealed that Rivera-Rodrigues was in the area of the

murder during the time it was committed, the testimony would

have required disclosure—as it would have amounted to expert

opinion testimony. However, Neeman did not testify to that effect.

Neeman testified explaining the sectors and which sectors were

used by the phone number associated with Rivera-Rodrigues. He

did not testify stating his opinion of Rivera-Rodrigues's location

throughout the day of the murder.

Id at 4.

We are now called upon to review this trial court's ruling permitting

Detective Snider to testify as a lay witness and apply historical cell tower data

with no underlying expert opinion explaining the technology. Detective Snider

used the AT&T report to locate and mark tower latitude and longitude points

on a Googleâ„¢ map. The Commonwealth asserts anyone could read the

records, open a Googleâ„¢ Maps program on a computer, enter the addresses,

locations, or coordinates including latitude and longitude, and obtain the same

results. In summary, that meant Detective Snider's testimony qualified as lay

testimony. We agree.

In this case, the Commonwealth did not present the map to make a claim

as to Torrence's location at the time of the shooting. Detective Snider was

careful to avoid any opinion on that subject while he testified from the records

and marked the map. In closing argument, the Commonwealth pointed out the

map with its marked locations did not support Torrence's claimed alibi. The

map was not central to the Commonwealth's case, which focused on Thomas's

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account of the shooting and the subsequent police investigation that supported

his account. Rather, central to the Commonwealth's case was the police

tracking down a Gray Ford Explorer described by Thomas as involved in the

shooting, connecting that Ford Explorer to Torrence, securing nearby home

surveillance video, locating witnesses, utilizing lab and evidence technicians,

and obtaining a statement from Torrence that was not helpful to his defense

and was, in many respects, incriminating. Problems with Torrence's alibi

inferred from the marked tower locations on the map were a small part of the

Commonwealth's overall case.

Use of phone company records in police investigations is ever more

commonplace because cell phones offer law enforcement significant

information. Cell tower reports do not show exactly where someone's cell

phone was at specified times, but often do show where the cell phone was not.

In this case, Detective Snider explained to the jury how he obtained the cell

phone records, what the records detailed for each call, and applied the

information from the records to a map program. Only in closing argument did

the Commonwealth assert a reasonable inference could be drawn from the

points marked on the map.

Could a juror apply the longitude and latitude coordinates from the

report to a Googleâ„¢ map? While there is no absolute answer to that question,

we note elementary-school-aged children in Kentucky are offered or taught

basic plotting on graphs. The Kentucky Academic Standards for the Kentucky

Department of Education for Mathematics adopted in 2019 for fifth grade sets

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out the following in the Grade 5 Overview for Geometry. "Graph points on the

coordinate plane to solve real-world problems” (p. 97). The overview on page

111 states "After gathering data on a question, students discuss which graphs

are possible and which ones are not possible, and why. Students select one

type of graph that fits the data gathered and create the graph, by hand, or by

using technology.” This language coincides with what Detective Snider did in

this case. Simple graphing of data points is something we can reasonably

expect jurors to know or at least understand without relying on an expert's

explanation.

We find support for Googleâ„¢ mapping of cell towers by a lay witness in

federal authority. In United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill.

2012), a case remarkably comparable to the current case, a reviewing court

was called upon to determine if a special agent could testify as a lay witness

concerning cell tower data and references that could be drawn from it. The

court held that the agent could testify as a lay witness as to some matters, but

other issues, including the granulization theory of cell phone location based on

cell tower data, required expert testimony. Id. at 954. As to simple mapping of

cell tower locations, the Illinois federal court said:

As an initial matter, the government argues that a portion of

Special Agent Raschke's testimony is admissible under Rule 701,

specifically, his testimony concerning maps he created indicating

the location of certain cell towers used by Evans's phone during

the course of the conspiracy in relation to other locations relevant

to the crime. . . . The court agrees that using Google Maps to plot

these locations does not require scientific, technical, or other

specialized knowledge and that these exhibits are admissible

through lay opinion testimony under Rule 701.

22

Id. at 953.

Turning to other neighboring states, we find that many of their state

appellate courts allow non-experts to plot points on a map from cell tower

reports. Tennessee, in an unpublished opinion often cited in subsequent

cases, permitted the plotting of cell tower locations on a map by a detective

concluding no specialized knowledge was required. State v. Hayes,

M200802689CCAR3CD, 2010 WL 5344882, (Tenn. Crim. App. Dec. 23, 2010).

Tennessee in a separate unpublished case permitted a detective to testify about

cell tower data, not as an expert, but as someone who read the "how to” booklet

that came with the cell report. State v. Greer, E201500922CCAR3CD, 2017 WL

2233647 (Tenn. Crim. App. May 17, 2017).

In 2018, Ohio reaffirmed earlier cases comparing crime scene locations

to cell phone data records as not requiring specialized knowledge, skill,

experience, training or education regarding cellular networks. State v.

Johnson, 110 N.E.3d 800, 807 (Ohio Ct. App.), appeal not allowed, 104 N.E.3d

792 (Ohio 2018). Ohio also allows cell tower mapping by lay witnesses to do

more. Typically, cell tower mapping by a lay person permits an inference to be

drawn that the cell phone owner was in the area at the listed time, to

corroborate other evidence of the defendant's presence at a crime scene. State

v. Bradford, 101 N.E.3d 710, 725 (Ohio Ct. App. 2018). See also State v.

Daniel, 57 N.E.3d 1203, 1218 (Ohio Ct. App. 2016) and State v. Boaston, 100

N.E.3d 1002, 1014 (Ohio Ct. App. 2017), appeal allowed, 100 N.E.3d 445 (Ohio

2018).

23

We also note two cases from Indiana. We are mindful that both cases

have been reversed either in a subsequent appeal of the same case or by United

States Supreme Court remand, however, we note for both cases the reversal or

remand was on other grounds. The first is Zanders v. State, 73 N.E.3d 178,

188 (Ind. 2017), cert, granted, judgment vacated, 138 S. Ct. 2702 (2018).

The reviewing court discussed the testimony of "skilled witnesses.”

A skilled witness, by contrast, is a person with "a degree of

knowledge short of that sufficient to be declared an expert under

[Indiana Evidence] Rule 702, but somewhat beyond that possessed

by the ordinary jurors.” A skilled witness, then, will "perceive more

information from the same set of facts and circumstances than an

unskilled witness would.” The skilled witness may give an opinion

"(a) rationally based on the witness's perception; and (b) helpful to

a clear understanding of the witness's testimony or to a

determination of a fact in issue.”

Id.

The court in Zanders allowed the detective to testify in order to help the

jury understand Sprint phone records. Any dispute about the accuracy of the

records went to the weight not admissibility. Id. at 189.

The second Indiana case deals with maps, latitude and longitude

coordinates and assisting the jury in understanding the records. The court

stated:

For instance, the exhibit containing the challenged phone records

is extremely thorough and difficult to comprehend because it

contains tables of primarily coded or numerical data that

comprises numerous pages as to each call or message. State's Ex.

148. In fact, the maps—not the phone records—were the method

for conveying the estimated locations to the jury because the

phone records themselves contained only latitude and longitude

coordinates that would likely have been meaningless to the jury

without the maps.

24

McCowan v. State, 10 N.E.3d 522, 532 (Ind. Ct. App.), transfer granted, opinion

vacated, 14 N.E.3d 44 (Ind. 2014), and opinion affd in part, vacated in part, 27

N.E.3d 760 (Ind. 2015).

The court in McCowan noted the detective did not testily as an expert but

testified from four limited specialized trainings attended over a four-year period

concerning general principles involving cell phone technology. The detective

performed no calculations and provided limited background information. Id.

at 532-33.

In summary three neighboring states, Ohio, Tennessee and Indiana

permit lay testimony for marking maps with data from cell phone records. The

defense can cross examine the witness as to the reports and underlying data as

well as contest the maps. The defense can call expert witnesses that arrive at

different conclusions based on the same data and that is what occurred in

McCowan.

All three state courts were clear that analyzing data from the records and

explaining what it means beyond simply marking coordinates on a map,

requires an expert. We agree with our sister states' conclusions: marking

points on a graph—in these cases a map—based on a cell phone report

including latitude and longitude of cell towers, does not require an expert.

We emphasize that this new rule with respect to the use of lay testimony

to present historical cell-tower data is limited in its application. Our holding

today is that lay testimony may be used to present historical cell-tower data so

long as the testimony does not go beyond simply marking coordinates on a

25

map. If the witness seeks to offer an opinion about inferences that may be

drawn from that information, that witness must be presented as an expert

witness under KRE 702 (for example, if a witness seeks to provide an opinion

as to the location of the cell phone during the relevant time based on the

plotted coordinates).

The investigative usage of the historical cell tower report in this case is

distinguishable from our holding in McNeil v. Commonwealth, 468 S.W.3d 858

(Ky. 2015). In McNeil, a detective used cell-phone records to identify the owner

of a cell-phone number. Id. at 871. In contrast to the detective's conduct in

McNeil, Detective Snider's use of the historical cell-phone data in this case

required a much greater degree of "knowledge, skill, experience, training, or

education,” KRE 702, than simply reading whose name was listed as the owner

of a cell-phone number. Also, the detective in McNeil was permitted to show

the jury during his testimony a copy of the phone record to provide a

"demonstrative aid” to the detective's testimony explaining how McNeil became

a suspect in the case. McNeil, 468 S.W.3d at 872. In contrast, here, Detective

Snider used the cell-phone data to plot geographical points on a map, which

was entered into evidence, to cast doubt on Torrence's claimed alibi. The only

reason this Court allowed the detective's testimony and use of the records in

McNeil was that the detective was not offering any opinion as to the inferences

that may be drawn from the cell-phone records. In fact, the trial court did not

initially allow the cell records to be introduced into evidence because they

would not be presented by someone from the phone company; i.e. by someone

26

who could authenticate them. For the foregoing reasons, we hold the trial court

did not abuse its discretion in overruling Torrence's motions and permitting the

detective to testify as a lay witness and mark coordinates on a map based on

cell tower historic data reports.

C. Photo Array

Torrence's final assertion of error is the trial court failed to suppress and

exclude from evidence a photo array identification and a subsequent in-court

identification, both made by Thomas. The claim arises because Thomas's

sister or girlfriend (the record is not entirely clear as to which one) showed him

a single photograph of Torrence derived from a social media site just before

police arrived and showed Thomas a photo array. Torrence claims the police

photo array identification following Thomas seeing the single photo was a

procedure so suggestive as to render any identifications unreliable. The trial

court noted the motion was untimely and overruled it finding no state action

was involved in the single photo being shown first.

The trial court's decision will be reviewed under an abuse of discretion

standard. An abuse of discretion occurs when a "trial judge's decision is

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

English, 993 S.W.2d at 944.

Some additional background information is necessary as we analyze this

issue. Thomas told police after he was shot, but before he was taken to the

hospital by ambulance, that an individual he knew as "Man-Man” shot him.

After being taken to the hospital and rushed to surgery, Thomas was placed in

27

a medically induced coma, in which he remained for several days. After coming

out of the coma, Thomas told the police that prior to the day of the shooting, he

had previously met the shooter, knew generally where he lived, and knew him

by his nickname, Man-Man. In a subsequent interview with detectives on May

26, nine days after the shooting, Thomas picked Torrence from a photo lineup.

The same day Thomas was shown the photo array and identified

Torrence, his sister and girlfriend visited him at the hospital. Prior to the

Detectives' arrival, the visitors showed Thomas a single photo of Torrence

downloaded from a social media post. Shortly thereafter, Thomas reviewed a

police-generated six-photo array and picked Torrence as the shooter. After the

photo array identification, Detective Snider collected the single photograph

from Thomas's family and included it in the police file. Although police had

asked the family for help in identifying the shooter, there is no evidence in the

record Thomas was shown the single photograph at police request.

We begin with a review of the photo array. It is a standard police array

containing six facial photographs including head and neck, all made in front of

a grey background. Six African-American men are shown wearing black Tshirts and are approximately the same age. Three of the men have facial hair

ranging from a goatee to a slight beard, and all six have mustaches. Skin color

in the photos ranges from three with darker tones to three with lighter tones.

No photograph has any special or unique features or attributes that draw

attention to it. Torrence raises no issue with the photo array photos, but

objects to the identification made from the array by Thomas after he was

28

shown a single photo of Torrence by his sister or girlfriend as they visited him

in the hospital. A black and white copy of the single photo collected by

Detective Snider from Thomas's family was admitted into evidence and shows

Torrence sitting in a vehicle wearing a hat and track suit, his face clearly

visible.

Torrence claims state action is present in this case because the

Commonwealth claimed, in opening and closing arguments, that police

recruited Thomas's family to help them determine the shooter's identity.

According to Torrence, this "recruitment” resulted in state action when the

family showed Thomas the single photograph before detectives showed him the

photo array.

State action is required for the trial court to exclude an identification

procedure. A due process check on the admission of eyewitness identification

is applicable when the police have arranged suggestive circumstances leading

to an identification by an eyewitness. Perry v. New Hampshire, 565 U.S. 228,

237 (2012). The United States Supreme Court has not extended pretrial

screening for reliability of identification to situations not arranged by law

enforcement. Id. at 233. Instead, the U.S. Supreme Court has relied on other

rights and opportunities to challenge the suspect identification including the

right to counsel, vigorous cross-examination, and jury instructions requiring

proof beyond a reasonable doubt. Id. at 237.

29

This Court has likewise found those and other protections sufficient to

protect the rights of defendants when it comes to suspect identifications. We

said:

We trust that these same safeguards will continue to protect the

rights of defendants first identified in court, leaving the juiy with

responsibility for assessing the credibility of the identification in

each case. As often noted, throughout Anglo-American history,

"[decisions as to human life, liberty and public and private

property have been routinely made by jurors and extraordinary

confidence has been placed in this decision-making process.”

Curry v. Fireman's Fund Ins. Co., 784 S.W.2d 176, 178 (Ky. 1989).

Fairley v. Commonwealth, 527 S.W.3d 792, 799-800 (Ky. 2017).

As we further made clear when it came to suspect identifications,

"Absent the 'taint of improper state action,' Perry establishes that the jury and

the ordinary rules of trial provided Jeter with all the process due him for

contesting Albrecht's testimony. Thus, on the asserted due process grounds

Jeter is not entitled to relief.” Jeter v. Commonwealth, 531 S.W.3d 488, 495

(Ky. 2017).

In this case, there is no evidence in the record that Thomas's family or

girlfriend was acting at police behest when they located and showed Thomas

the single photograph of Torrence downloaded from social media. Thomas

viewing the single photo and the police photo array on the same day, after

coming out of a medically induced coma, based on the record appears to have

been a coincidence. Thomas, at that point, was finally physically able to speak

to someone about the shooting, and meeting with his family and police on the

same day is not particularly suspect. That the two showings happened on the

30

same day was a result of Thomas's critical injuries, extensive medical

treatment, and being one of the first opportunities for him to view photos.

Absent improper state action, the weight to give a suspect identification

is best left to juries to sort out. "A primary aim of excluding identification

evidence obtained under unnecessarily suggestive circumstances ... is to deter

law enforcement use of improper lineups, showups, and photo arrays in the

first place.” Perry, 565 U.S. at 241 (citing Manson v. Brathwaite, 432 U.S. 98,

112 (1977)). That exclusionary goal is absent where, as here, there has been

no state action.

A review of the record shows that other constitutional protections

afforded Torrence were active in this case. One clear example from the record

is worth noting. When Thomas denied multiple times during the

Commonwealth's questioning that he saw the single photo before he saw the

photo array, and even went so far as to claim he had not seen the single photo

at any time before he testified, Torrence's counsel seized the opportunity.

Under capable cross-examination by defense counsel, Thomas changed his

mind and his testimony. With some skilled questioning, Thomas conceded

seeing the photo first.

Thomas acknowledged seeing the single photo when confronted with an

audio recording of his statement to the police. After hearing his own words on

audio tape played for the jury, Thomas acknowledging seeing the single photo

first. The Commonwealth's key witness was caught over-stating a claim and

forced to backtrack on testimony given minutes earlier that he never saw the

31

single photo prior to trial. In the best possible light, he was mistaken, or

perhaps, when viewed in a different light, Torrence's counsel caught him in an

outright lie.

Was Thomas's significant medical treatment the cause of his

misstatement, did his memoiy slip over time, or were the repeated denials an

effort to make his identification of Torrence appear untainted? These possible

questions went unanswered and regardless, the jury saw classic impeachment

of a witness with his own words. Thomas's about-face concession as to when

he saw the single photograph was a result of effective cross-examination by

defense counsel confronting him with a prior recorded statement.

The presence of counsel, vigorous cross-examination, and a jury

instruction requiring proof beyond a reasonable doubt were among the

protections noted in Perry and present in this case. Coupled with these

protections is the absence in the record of any proof of state action in the prior

showing of the single photo.

Without state action, the two-prong test often cited requiring the trial

court to inquire as to whether the identification was unduly suggestive, and if

so, then determine was it admissible under a totality of circumstances test, is

inapplicable. See Barnes v. Commonwealth, 419 S.W.3d 584 (2013); Duncan v.

Commonwealth, 322 S.W.3d 81 (2010); Oakes v. Commonwealth, 320 S.W.3d

50 (2010); King v. Commonwealth, 142 S.W.3d 645 (2004); Wilson v.

Commonwealth, 695 S.W.2d 854 (Ky. 1985).

32

The trial court's decisions to permit the identifications, outside court as

well as during trial, were not an abuse of discretion. With no state action

involved in showing Torrence the single photograph, the decision to overrule

the motion without a hearing was consistent with caselaw and supported by

long standing legal principles.

ordinates. Also included in the report was

a directional degree reading, indicating the direction but not location, of the cell

phone in relation to the tower.

Based on the tower coordinates and directional compass readings from

the report, Detective Snider produced a graph overlay on a Googleâ„¢ map of

Louisville. The map showed Torrence's cell phone was in contact with towers

close to the shooting location and not in contact with towers near the Blue Lick

area when Thomas was shot.

On the first morning of trial, Torrence moved for the Commonwealth to

disclose experts and expert opinions regarding historical cell tower data. In

response, the Commonwealth argued Detective Snider did not need to be

qualified as an expert to testify using the historical cell tower report. The

Commonwealth asserted that Detective Snider would simply enter the cell

tower locations from the historical data report into a Googleâ„¢ map computer

program. Further, the Commonwealth asserted reading the AT&T report was

like reading a familiar phone bill and anyone could use Googleâ„¢ Maps. The

Commonwealth assured the trial court the phone company cell tower records

were verified. Finding the issues moot because no expert was going to testify,

the trial court overruled the motions to disclose experts and expert opinions.

The Commonwealth did not ask Detective Snider any questions about his

qualifications, background, experience, or specialized training with historical

cell tower evidence. No witness testified (either law enforcement or from a

phone company) who had specialized knowledge, experience, or background

4

with historical cell tower data and how it works. Detective Snider testified as to

basic information about cell phones connecting to towers and how the

information in the report is read.

Detective Snider gave no opinions based on the AT&T report about

Torrence's location at the time of the shooting. A map showing two cell tower

locations communicating with Torrence's cell phone near the time of the

shooting was presented to the jury and entered into evidence. In closing

argument, the Commonwealth asserted the graphed map undercut Torrence's

alibi.

The final issue raised in this appeal revolves around Thomas's (the

victim's) identification of Torrence from a police photo array. Detective Snider

testified about police efforts to determine the identity of the shooter initially

identified by Thomas as "Man-Man.” Detectives presented Thomas with an

array containing six photos. Thomas identified Torrence from the photo array

as Man-Man, the person who shot him. However, before he made that police

photo array identification, Thomas's sister and/or girlfriend showed him a

single photo of Torrence they downloaded from a social media site. Torrence

moved for the exclusion of Thomas's identification from the police photo array

and in court, arguing the identifications were tainted by his sister and

girlfriend previously showing him the single photograph. The trial court denied

Torrence's motion. In ruling on the motion, the trial court found that Thomas's

sister and girlfriend were not acting on behalf of the police—and, therefore,

5

there was no state action involved in them showing Thomas the single

photograph.

Further background information will be developed as needed.

II. ANALYSIS

A. Juror Issue

Torrence seeks reversal of his convictions, claiming the trial court erred

when it failed to remove a juror and declare a mistrial. Torrence claims further

error when the trial court denied his motion for a new trial or JNOV based on

the same juror issues. According to Torrence, a juror wrongfully remained

silent when asked during general voir dire if anyone knew Torrence or any of

the witnesses. Torrence claims the juror met him several years before trial,

albeit indirectly, through Turner, his girlfriend at the time of the meeting and

an alibi witness at trial.

During voir dire, the juror identified as Juror #2071060 did not respond

when asked if anyone knew Torrence. Turner, as a defense witness, was kept

out of the courtroom by the trial court's separation order. Near the end of the

defense case, Turner testified. The jury returned guilty verdicts on Friday

afternoon, and Turner told Torrence's mother over the weekend that she

believed she recognized the juror in question. On Monday, the fifth and final

day of trial, defense counsel advised the trial court that Juror #2071060 knew

Turner and Torrence and had not been honest about that knowledge in her

responses during voir dire. In dealing with the very serious issues raised, the

trial court took proof including questioning Turner and the juror.

6

The trial court questioned Juror #2071060 multiple times. Each time

she was asked, the juror denied knowing Torrence. In response to a repeated

question by the trial court about knowing Torrence, the juror responded this

was the first time "ever seeing this man.” Juror #2071060 told the trial court

that she knew "of' Turner but did not know her and had not seen her in more

than five years. When the trial court asked the juror what she meant by

knowing "of' Turner, she responded that they did not communicate and had

never seen one another on a daily basis. The juror also responded that she did

not know Turner and Torrence knew each other.

When asked if she and Turner shared a half-sister, the juror responded

that her half-sister, Waynesia, and Turner were not "real sisters.” We note that

even if they had shared a half-sister (as Turner claimed in her testimony), there

was never any claim that Turner and the juror were related. In Turner's

testimony, she revealed that her father has at least thirty-six children and

indicated she had no idea how many households that involved. Defense

counsel introduced birth certificates, but they were of no help in resolving the

already-tenuous loose familial relationship, as the birth certificates contained

empty fields where the child's father would be indicated. Finally, the juror

responded to the trial court's inquiry about possible bias, saying, she was "all

the way fair.”

In her testimony regarding the juror, Turner did not know Juror

#2071060's "government name,” address, or contact information, but did know

that her mother was deceased. Turner testified Torrence and Juror #20171060

7

met several times at Waynesia's house several years prior to trial. According to

Turner, she would visit Waynesia on an almost daily basis since the two halfsisters lived just a couple of streets apart from each other, and Juror

#20171060 would be there, too. Turner claimed Torrence would stop by

regularly and see her, as she was pregnant with his child. Turner

acknowledged there were no recent contacts between she and the juror.

The trial court expressed concern that the information about the

relationship between Turner and Juror #2071060 came to the court's attention

late in the trial. Turner's credibility was suspect for the trial court because

Turner had been in and out of the courtroom on the preceding Friday but

brought up the issue with Juror #2071060 only after a finding of guilt.

The defense first raised problems with Turner and Juror #2071060 on

the fifth and final day of trial—after the jury had reached a verdict in the guilt

phase and the alternate juror had been released. During voir dire when issues

could have been raised, Turner was not identified by either party as a potential

witness and no questions were asked about her. Turner, despite the

Commonwealth knowing Torrence claimed her as an alibi witness in his police

interview, was not included in the list of names read to the jury by the

Commonwealth which included several persons that would not be called as

witnesses but might be mentioned during the trial. Knowing Turner was going

to be called as an alibi witness, the defense failed to ask the jurors if anyone

knew Turner. In fact, they did not even mention Turner's name. Therefore, the

juror in question did not fail to disclose knowledge of Turner in voir dire—she

8

was never asked those questions. The record reveals the first time the jury

heard Turner's name was during the defense's opening statement. The trial

court's concern over the timing of the issue is supported by the record.

The trial court denied the motion to excuse Juror #2071060 and

overruled the motion for a mistrial. Months after trial, at a sentencing hearing

with Torrence's new counsel, the trial court denied a motion, based solely on

the juror issues, for a new trial or JNOV. The trial court referenced the

questions and answers from the trial hearings in denying the motion.

1. Structural Error

The Sixth Amendment to the United States Constitution, and Sections

Seven and Eleven of the Kentucky Constitution guarantee the right to an

impartial jury. Structural error occurs when that right is denied. Hayes v.

Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005). Such a denial would not be

subject to harmless error analysis because that would not be appropriate

where a substantial right such as this is involved. Shane v. Commonwealth,

243 S.W.3d 336, 341 (Ky. 2007). "[T]he defining feature of a structural error is

that it 'affect[s] the framework within which the trial proceeds,' rather than

being 'simply an error in the trial process itself.' Commonwealth v. Douglas,

553 S.W.3d 795, 799-800 (Ky. 2018). Failing to remove a biased juror taints

the entire trial. Id. at 800.

Mindful of the above principles, we review the trial court's decisions

under an abuse of discretion standard, "whether the trial judge's decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

9

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). After careful

review, we find the trial court did not abuse its discretion and therefore find no

structural error.

2. Bias

RCr 9.36(1) states, in pertinent part: "When there is reasonable ground

to believe that a prospective juror cannot render a fair and impartial verdict on

the evidence, that juror shall be excused as not qualified.” In Ward. v.

Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985), this Court quoted a sister

state in saying "irrespective of the answers given on voir dire, the court should

presume the likelihood of prejudice on the part of the prospective juror because

the potential juror has such a close relationship, be it familial, financial or

situational, with any of the parties, counsel, victims or witnesses.” Id. (quoting

Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4, 7 (1981)).

With that in mind, our initial inquiry is whether the juror in question

had a "close relationship” with either Torrence or Turner such that prejudice

should be presumed. To answer this question, Torrence asserts Juror

#2071060 and Turner had a half-sister in common. However, even if they did

share a half-sister (as is asserted by Turner and disputed by the juror), both

Juror #2071060 and Turner made clear to the trial court that they were not

related to each other. The existence of a familial relationship, based on

testimony from both Turner and Juror #2071060, proved non-existent.

Torrence presented no proof contesting the lack of a familial relationship;

10

instead, Torrence raised situational claims based on the half-sister-in-common

relationship.

Relying on Turner's testimony about daily time spent at Waynesia's

home, Torrence argues the juror had to have met him and was therefore not

truthful with the court. Although conceding no contact between Turner and

Juror #2071060 occurred more recently than five or six years prior to trial,

Torrence claims the prior contact was critical. Because Torrence asserted he

and Turner were dating while she was pregnant with his child, the import of

Turner being daily at Waynesia's house is that, if Juror #2071060 saw Turner

at Waynesia's, she had multiple opportunities to meet Torrence. Turner

claimed Juror #2071060 did meet Torrence at Waynesia's on multiple

occasions. No other witnesses supported that claim and Juror #2071060

denied ever seeing him.

Juror #2071060 claimed she did not know Turner, she only knew "of”

her, and the two did not communicate with each other. No proof was offered of

shared birthday parties, holidays, or other family events related to the

contested half-sister. It was not arbitrary for the trial judge to weigh the

evidence and give more credibility to the juror than to one of Torrence's alibi

witnesses, who was also the mother of his child. Torrence claims the shared

relationship between juror #2071060, Turner, and Waynesia produced

unavoidable contact between the juror and himself. The trial court found

otherwise.

11

This Court notes that Waynesia was not called as a witness. Both juror

#2071060 and Turner claimed her as a half-sister (though the juror disputes

that Waynesia and Turner were "real sisters”). It seems as if Waynesia would

have been important to corroborate or deny that Turner and the juror had

spent substantial time together. However, she was not called to testify. During

trial this is more understandable given the time constraints of when this issue

arose, but we note she was not called as a witness for the hearing on the

motion for a new trial or JNOV motion at a sentencing hearing conducted

several months after trial. We do not speculate as to what she might have said

if called as a witness.

Reviewing the totality of circumstances in the record, it was not

unreasonable for the court to determine the juror possessed the mental

attitude of "appropriate indifference” required to sit on a jury. Gabbard v.

Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). If this was a close call or the

issues could not be resolved with certainty, the juror should have been

excused. Futrell v. Commonwealth, 471 S.W.3d 258, 273 (Ky. 2015). The

record supports that this was not a close call. The juror adamantly told the

trial judge she did not know Torrence and was not biased. She even denied

Turner's claim that the two of them shared a half-sister. The trial court had

full opportunity to view her responses to questions and make a determination

as to her credibility. The trial court likewise had the same opportunity to view

Turner's responses and assess her credibility. "[DJeference must be paid to

the trial judge, who sees and hears the juror, in reviewing determinations of

12

impropriety of challenges for cause.” Penman v. Commonwealth, 194 S.W.3d

237, 252 (Ky. 2006), overruled on other grounds by Rose v. Commonwealth, 322

S.W.3d 76 (Ky. 2010).

Torrence further objects to the use of the transcript ofjail calls attached

in an appendix to the Commonwealth's brief. The transcript is a purported

summary of what was said during Torrence's recorded jail house phone calls.

In that transcript, Torrence apparently said he did not recognize the juror but

indicated he would say he did. Torrence unsuccessfully moved this Court to

strike Appellee's brief for citing to the transcript. The transcript was offered by

the Commonwealth and placed in the court file as part of an avowal at the

sentencing hearing prior to the trial court ruling on the motion for a new trial

or JNOV. The trial court did not have this purported transcript during trial

when ruling on the motion to excuse the juror and the motion for mistrial.

When the document was presented to the trial court as part of an avowal, it

was entered into the record. There is no indication the trial court read or

considered it when making the decision to overrule the motion for a new trial or

JNOV. The trial court was clear that the decision to overrule the motion was

based on the questions and answers from the hearings held during trial.

3. Mendacity and New Trial or JNOV motion

Torrence also seeks a new trial based on juror mendacity. "To obtain a

new trial because ofjuror mendacity, 'a party must first demonstrate that a

juror failed to answer honestly a material question on voir dire, and then

further show that a correct response would have provided a valid basis for a

13

challenge for cause.'” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003)

(quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984)). Torrence made no such showing here. The material question, "did the

juror know Torrence?” was asked during voir dire and answered by her silence.

When Juror #2071060 was asked the same question late in the trial, her

adamant spoken reply was she did not know Torrence.

Furthermore, any purported relationship between the juror and Turner

(one of Torrence's alibi witnesses) was not close, as discussed at length above.

As to the juror's mendacity regarding Turner, the juror was never asked during

voir dire if she knew or had a connection with Turner. Therefore, she could not

have lied about such a connection at that point. It is noteworthy that the

defense did not question jurors as to any knowledge of or connection with

Turner in spite of her being one of Torrence's alibi witnesses. In fact, the juror

was never questioned about knowing Turner until after the jury had reached a

guilty verdict—a time after the alternate juror had been excused.

The trial court accepted the juror's answers as truthful. As such:

On appeal, the factual findings of the trial court "shall not be set

aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility of the

witnesses.” CR 52.01. A factual finding is not clearly erroneous if it

is supported by substantial evidence. Moore v. Asente, 110 S.W.3d

336, 354 (Ky. 2003). Substantial evidence is "[e]vidence that a

reasonable mind would accept as adequate to support a conclusion

and evidence that, when taken alone or in the light of all the

evidence ... has sufficient probative value to induce conviction in

the minds of reasonable men.” Id. at 354.

Gullett v. Commonwealth, 514 S.W.3d 518, 523 (Ky. 2017).

14

4. Mistrial

Torrence also claims the trial court erred in failing to grant a mistrial. "A

trial court is authorized to use its discretion to declare a mistrial only when

there is a manifest necessity, when the right to a fair trial has been infringed

upon and the prejudicial event cannot otherwise be remedied.” Gray v.

Commonwealth, 534 S.W.3d 211, 215 (Ky. 2017) (internal citations omitted).

Having determined the trial court committed no error in failing to excuse the

juror, it follows that we find no manifest necessity existed for a mistrial.

After careful review of the record relating to Torrence's claims that the

trial court erred by failing to excuse a juror, grant a mistrial, or grant a motion

for a new trial or JNOV, we find no error.

B. Historical Cell Tower Data Testimony

Torrence raises four claims of error by the trial court in admitting

historical cell tower evidence obtained through an AT&T report and allowing

Detective Snider to testify utilizing that report. In summary, all four claims

involve the AT&T report, Detective Snider testifying as a lay witness about

information in the report, and whether the Commonwealth should have called

an expert witness to testify about historical cell tower data in the report. As we

find these issues significantly interconnected, we will review them as one

concern. Additional background information is necessary for analysis of this

issue.

As noted above, prior to trial, Torrence filed a motion for disclosure of

expert testimony and a separate motion to exclude any testimony regarding

15

historical cell tower evidence pursuant to RCr 7.24. Torrence did not file a

motion requesting a hearing pursuant to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), challenging historical cell tower

evidence. As previously noted, cell phone records from AT&T for Torrence's

phone number with historical tower data, including latitude and longitude of

specific cell towers, were provided in discovery by the Commonwealth. The

Commonwealth's response to the motions was:

Judge, these are AT&T records and they show what time each

phone call was made. It is the typical AT&T records that we

normally see where the phone calls are listed in a row in order of

date and time, and at the end of each row it shows the latitude and

longitude, and the angle from the cell tower, the location of the call

being made. So, while yes there were a lot of incomprehensible

phone records that were turned over as part of the package, there

are also pages that are very familiar to us. That look like phone

records or any records we would get in our own phone bills.

The Commonwealth indicated it did not have an expert, would not be

qualifying anyone as an expert, and would ask Detective Snider questions

about the cell tower data based solely on the AT&T records that anyone could

read, interpret, and apply. The Commonwealth assured the trial court the

records were verified.

In response, Torrence raised concerns with Detective Snider testifying as

a lay witness. Defense counsel stated:

And Judge, my understanding is that Detective Snider is effectively

. . . that I want to contest that these calls, these records are

accurate or that these longitude pings are inaccurate, effectively

there is nothing that Detective Snider can actually answer as far as

just this is what is in the report.

16

The court replied, "Then you can call your own witness to do that, would

be the way to challenge it.” The trial court overruled the motion to disclose

expert testimony as moot and denied the motion to exclude the testimony

pursuant to RCr 7.24. Torrence did not call any expert witnesses.

Detective Snider testified about the historical cell tower phone records

and the search warrant used to obtain the AT&T report. Detective Snider

indicated that he obtained the records in the course of his investigation in an

effort to confirm Torrence's alibi that he was in the Blue Lick area picking up

his daughter when Thomas was shot.

Detective Snider testified AT&T maintains information for every AT&T

cell phone customer. Much of the information in the report is like familiar

phone bills the average cell phone customer receives with pages separated into

columns by phone number, call or text, date, and time.

Detective Snider pointed out each call line in the report contained

additional information not usually found on a customer cell phone bills which

was included in the report because of the search warrant request. The request

specified unique tower identification numbers for each cell tower Torrence's

phone interacted with for calls or texts, the latitude and longitude location of

those specific towers, and a directional degree reading based on a 360-degree

circle or compass. This reading indicated the direction of the call or text

relative to the tower but did not provide an actual location of the phone when a

call or text was made. The report is for historical data only: it shows only

what happened (which tower a cell phone interacted with at what time), which

17

is different from real-time pinging location technology police use to track a

current location for a cell phone.

Detective Snider used a computer to open Googleâ„¢ Maps on a video

display for the jury. On the Googleâ„¢ map of the relevant parts of Louisville,

Detective Snider entered the location of the shooting on 26th Street, the Blue

Lick area where Torrence claimed he was at the time of the shooting, and the

location of two cell towers to which Torrence's phone connected around the

time of the shooting based on the AT&T report. One of the towers showed cell

phone interaction for a call at 4:27 p.m. (immediately prior to the shooting) and

a second tower showed cell phone interaction for a call at 4:33 p.m. (a few

minutes after the shooting). The distance of the two towers from the shooting

location according to Googleâ„¢ Maps was 1.131 miles for the first tower and

3,292 feet for the second tower.

Using the directional compass information from the report, Detective

Snider drew a "pie wedge” for each call that showed the direction from the cell

tower the phone was when it interacted with the tower. According to Googleâ„¢

Maps, the Blue Lick area where Torrence claimed to be at the time of the

shooting was eleven miles from the 26th Street location of the shooting. No

towers in the Blue Lick area showed interaction with Torrence's cell phone

around the time of the shooting. Detective Snider did not give an opinion

about Torrence's location based on the report or the map he created during the

course of his investigation from the report data. The map was entered into

18

evidence. The phone records he utilized in creating the map during his

investigation were not entered into evidence.

On appeal, "[w]e will not disturb a trial court's decision to admit evidence

absent an abuse of discretion.” Matthews v. Commonwealth, 163 S.W.3d 11,19

(Ky. 2005) citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996).

"The test for abuse of discretion is whether the trial judge's decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)

(citing English, 993 S.W.2d at 945).

Both parties refer this court to Holbrook v. Commonwealth, 525 S.W.3d

73 (2017). In that case, we reviewed historical cell tower data analysis and

found the trial court did not abuse its discretion by permitting the introduction

of expert testimony by an FBI special agent regarding historical data analysis of

cell phone and cell tower records. The FBI Special Agent had specialized

training and experience in cell tower data analysis regarding the data, the

technology, the limits of that technology and what the data revealed. It is

important to this analysis that the agent did not offer an opinion as to the

location of the caller in Holbrook, but only as to towers that the phones

interacted with when calls were made.

This court revisited cell tower historical data and expert testimony in

2019 in an unpublished opinion, Rivera-Rodrigues v. Commonwealth, 2018-SC000197-MR, 2019 WL 2462783, (Ky. 2019). We affirmed the use of expert

testimony by a radio frequency engineer from Sprint (the phone company in

19

that case). As to the location of the callers, again no opinion was offered. We

stated:

As the Commonwealth contends, had Neeman opined that the

sectors revealed that Rivera-Rodrigues was in the area of the

murder during the time it was committed, the testimony would

have required disclosure—as it would have amounted to expert

opinion testimony. However, Neeman did not testify to that effect.

Neeman testified explaining the sectors and which sectors were

used by the phone number associated with Rivera-Rodrigues. He

did not testify stating his opinion of Rivera-Rodrigues's location

throughout the day of the murder.

Id at 4.

We are now called upon to review this trial court's ruling permitting

Detective Snider to testify as a lay witness and apply historical cell tower data

with no underlying expert opinion explaining the technology. Detective Snider

used the AT&T report to locate and mark tower latitude and longitude points

on a Googleâ„¢ map. The Commonwealth asserts anyone could read the

records, open a Googleâ„¢ Maps program on a computer, enter the addresses,

locations, or coordinates including latitude and longitude, and obtain the same

results. In summary, that meant Detective Snider's testimony qualified as lay

testimony. We agree.

In this case, the Commonwealth did not present the map to make a claim

as to Torrence's location at the time of the shooting. Detective Snider was

careful to avoid any opinion on that subject while he testified from the records

and marked the map. In closing argument, the Commonwealth pointed out the

map with its marked locations did not support Torrence's claimed alibi. The

map was not central to the Commonwealth's case, which focused on Thomas's

20

account of the shooting and the subsequent police investigation that supported

his account. Rather, central to the Commonwealth's case was the police

tracking down a Gray Ford Explorer described by Thomas as involved in the

shooting, connecting that Ford Explorer to Torrence, securing nearby home

surveillance video, locating witnesses, utilizing lab and evidence technicians,

and obtaining a statement from Torrence that was not helpful to his defense

and was, in many respects, incriminating. Problems with Torrence's alibi

inferred from the marked tower locations on the map were a small part of the

Commonwealth's overall case.

Use of phone company records in police investigations is ever more

commonplace because cell phones offer law enforcement significant

information. Cell tower reports do not show exactly where someone's cell

phone was at specified times, but often do show where the cell phone was not.

In this case, Detective Snider explained to the jury how he obtained the cell

phone records, what the records detailed for each call, and applied the

information from the records to a map program. Only in closing argument did

the Commonwealth assert a reasonable inference could be drawn from the

points marked on the map.

Could a juror apply the longitude and latitude coordinates from the

report to a Googleâ„¢ map? While there is no absolute answer to that question,

we note elementary-school-aged children in Kentucky are offered or taught

basic plotting on graphs. The Kentucky Academic Standards for the Kentucky

Department of Education for Mathematics adopted in 2019 for fifth grade sets

21

out the following in the Grade 5 Overview for Geometry. "Graph points on the

coordinate plane to solve real-world problems” (p. 97). The overview on page

111 states "After gathering data on a question, students discuss which graphs

are possible and which ones are not possible, and why. Students select one

type of graph that fits the data gathered and create the graph, by hand, or by

using technology.” This language coincides with what Detective Snider did in

this case. Simple graphing of data points is something we can reasonably

expect jurors to know or at least understand without relying on an expert's

explanation.

We find support for Googleâ„¢ mapping of cell towers by a lay witness in

federal authority. In United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill.

2012), a case remarkably comparable to the current case, a reviewing court

was called upon to determine if a special agent could testify as a lay witness

concerning cell tower data and references that could be drawn from it. The

court held that the agent could testify as a lay witness as to some matters, but

other issues, including the granulization theory of cell phone location based on

cell tower data, required expert testimony. Id. at 954. As to simple mapping of

cell tower locations, the Illinois federal court said:

As an initial matter, the government argues that a portion of

Special Agent Raschke's testimony is admissible under Rule 701,

specifically, his testimony concerning maps he created indicating

the location of certain cell towers used by Evans's phone during

the course of the conspiracy in relation to other locations relevant

to the crime. . . . The court agrees that using Google Maps to plot

these locations does not require scientific, technical, or other

specialized knowledge and that these exhibits are admissible

through lay opinion testimony under Rule 701.

22

Id. at 953.

Turning to other neighboring states, we find that many of their state

appellate courts allow non-experts to plot points on a map from cell tower

reports. Tennessee, in an unpublished opinion often cited in subsequent

cases, permitted the plotting of cell tower locations on a map by a detective

concluding no specialized knowledge was required. State v. Hayes,

M200802689CCAR3CD, 2010 WL 5344882, (Tenn. Crim. App. Dec. 23, 2010).

Tennessee in a separate unpublished case permitted a detective to testify about

cell tower data, not as an expert, but as someone who read the "how to” booklet

that came with the cell report. State v. Greer, E201500922CCAR3CD, 2017 WL

2233647 (Tenn. Crim. App. May 17, 2017).

In 2018, Ohio reaffirmed earlier cases comparing crime scene locations

to cell phone data records as not requiring specialized knowledge, skill,

experience, training or education regarding cellular networks. State v.

Johnson, 110 N.E.3d 800, 807 (Ohio Ct. App.), appeal not allowed, 104 N.E.3d

792 (Ohio 2018). Ohio also allows cell tower mapping by lay witnesses to do

more. Typically, cell tower mapping by a lay person permits an inference to be

drawn that the cell phone owner was in the area at the listed time, to

corroborate other evidence of the defendant's presence at a crime scene. State

v. Bradford, 101 N.E.3d 710, 725 (Ohio Ct. App. 2018). See also State v.

Daniel, 57 N.E.3d 1203, 1218 (Ohio Ct. App. 2016) and State v. Boaston, 100

N.E.3d 1002, 1014 (Ohio Ct. App. 2017), appeal allowed, 100 N.E.3d 445 (Ohio

2018).

23

We also note two cases from Indiana. We are mindful that both cases

have been reversed either in a subsequent appeal of the same case or by United

States Supreme Court remand, however, we note for both cases the reversal or

remand was on other grounds. The first is Zanders v. State, 73 N.E.3d 178,

188 (Ind. 2017), cert, granted, judgment vacated, 138 S. Ct. 2702 (2018).

The reviewing court discussed the testimony of "skilled witnesses.”

A skilled witness, by contrast, is a person with "a degree of

knowledge short of that sufficient to be declared an expert under

[Indiana Evidence] Rule 702, but somewhat beyond that possessed

by the ordinary jurors.” A skilled witness, then, will "perceive more

information from the same set of facts and circumstances than an

unskilled witness would.” The skilled witness may give an opinion

"(a) rationally based on the witness's perception; and (b) helpful to

a clear understanding of the witness's testimony or to a

determination of a fact in issue.”

Id.

The court in Zanders allowed the detective to testify in order to help the

jury understand Sprint phone records. Any dispute about the accuracy of the

records went to the weight not admissibility. Id. at 189.

The second Indiana case deals with maps, latitude and longitude

coordinates and assisting the jury in understanding the records. The court

stated:

For instance, the exhibit containing the challenged phone records

is extremely thorough and difficult to comprehend because it

contains tables of primarily coded or numerical data that

comprises numerous pages as to each call or message. State's Ex.

148. In fact, the maps—not the phone records—were the method

for conveying the estimated locations to the jury because the

phone records themselves contained only latitude and longitude

coordinates that would likely have been meaningless to the jury

without the maps.

24

McCowan v. State, 10 N.E.3d 522, 532 (Ind. Ct. App.), transfer granted, opinion

vacated, 14 N.E.3d 44 (Ind. 2014), and opinion affd in part, vacated in part, 27

N.E.3d 760 (Ind. 2015).

The court in McCowan noted the detective did not testily as an expert but

testified from four limited specialized trainings attended over a four-year period

concerning general principles involving cell phone technology. The detective

performed no calculations and provided limited background information. Id.

at 532-33.

In summary three neighboring states, Ohio, Tennessee and Indiana

permit lay testimony for marking maps with data from cell phone records. The

defense can cross examine the witness as to the reports and underlying data as

well as contest the maps. The defense can call expert witnesses that arrive at

different conclusions based on the same data and that is what occurred in

McCowan.

All three state courts were clear that analyzing data from the records and

explaining what it means beyond simply marking coordinates on a map,

requires an expert. We agree with our sister states' conclusions: marking

points on a graph—in these cases a map—based on a cell phone report

including latitude and longitude of cell towers, does not require an expert.

We emphasize that this new rule with respect to the use of lay testimony

to present historical cell-tower data is limited in its application. Our holding

today is that lay testimony may be used to present historical cell-tower data so

long as the testimony does not go beyond simply marking coordinates on a

25

map. If the witness seeks to offer an opinion about inferences that may be

drawn from that information, that witness must be presented as an expert

witness under KRE 702 (for example, if a witness seeks to provide an opinion

as to the location of the cell phone during the relevant time based on the

plotted coordinates).

The investigative usage of the historical cell tower report in this case is

distinguishable from our holding in McNeil v. Commonwealth, 468 S.W.3d 858

(Ky. 2015). In McNeil, a detective used cell-phone records to identify the owner

of a cell-phone number. Id. at 871. In contrast to the detective's conduct in

McNeil, Detective Snider's use of the historical cell-phone data in this case

required a much greater degree of "knowledge, skill, experience, training, or

education,” KRE 702, than simply reading whose name was listed as the owner

of a cell-phone number. Also, the detective in McNeil was permitted to show

the jury during his testimony a copy of the phone record to provide a

"demonstrative aid” to the detective's testimony explaining how McNeil became

a suspect in the case. McNeil, 468 S.W.3d at 872. In contrast, here, Detective

Snider used the cell-phone data to plot geographical points on a map, which

was entered into evidence, to cast doubt on Torrence's claimed alibi. The only

reason this Court allowed the detective's testimony and use of the records in

McNeil was that the detective was not offering any opinion as to the inferences

that may be drawn from the cell-phone records. In fact, the trial court did not

initially allow the cell records to be introduced into evidence because they

would not be presented by someone from the phone company; i.e. by someone

26

who could authenticate them. For the foregoing reasons, we hold the trial court

did not abuse its discretion in overruling Torrence's motions and permitting the

detective to testify as a lay witness and mark coordinates on a map based on

cell tower historic data reports.

C. Photo Array

Torrence's final assertion of error is the trial court failed to suppress and

exclude from evidence a photo array identification and a subsequent in-court

identification, both made by Thomas. The claim arises because Thomas's

sister or girlfriend (the record is not entirely clear as to which one) showed him

a single photograph of Torrence derived from a social media site just before

police arrived and showed Thomas a photo array. Torrence claims the police

photo array identification following Thomas seeing the single photo was a

procedure so suggestive as to render any identifications unreliable. The trial

court noted the motion was untimely and overruled it finding no state action

was involved in the single photo being shown first.

The trial court's decision will be reviewed under an abuse of discretion

standard. An abuse of discretion occurs when a "trial judge's decision is

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

English, 993 S.W.2d at 944.

Some additional background information is necessary as we analyze this

issue. Thomas told police after he was shot, but before he was taken to the

hospital by ambulance, that an individual he knew as "Man-Man” shot him.

After being taken to the hospital and rushed to surgery, Thomas was placed in

27

a medically induced coma, in which he remained for several days. After coming

out of the coma, Thomas told the police that prior to the day of the shooting, he

had previously met the shooter, knew generally where he lived, and knew him

by his nickname, Man-Man. In a subsequent interview with detectives on May

26, nine days after the shooting, Thomas picked Torrence from a photo lineup.

The same day Thomas was shown the photo array and identified

Torrence, his sister and girlfriend visited him at the hospital. Prior to the

Detectives' arrival, the visitors showed Thomas a single photo of Torrence

downloaded from a social media post. Shortly thereafter, Thomas reviewed a

police-generated six-photo array and picked Torrence as the shooter. After the

photo array identification, Detective Snider collected the single photograph

from Thomas's family and included it in the police file. Although police had

asked the family for help in identifying the shooter, there is no evidence in the

record Thomas was shown the single photograph at police request.

We begin with a review of the photo array. It is a standard police array

containing six facial photographs including head and neck, all made in front of

a grey background. Six African-American men are shown wearing black Tshirts and are approximately the same age. Three of the men have facial hair

ranging from a goatee to a slight beard, and all six have mustaches. Skin color

in the photos ranges from three with darker tones to three with lighter tones.

No photograph has any special or unique features or attributes that draw

attention to it. Torrence raises no issue with the photo array photos, but

objects to the identification made from the array by Thomas after he was

28

shown a single photo of Torrence by his sister or girlfriend as they visited him

in the hospital. A black and white copy of the single photo collected by

Detective Snider from Thomas's family was admitted into evidence and shows

Torrence sitting in a vehicle wearing a hat and track suit, his face clearly

visible.

Torrence claims state action is present in this case because the

Commonwealth claimed, in opening and closing arguments, that police

recruited Thomas's family to help them determine the shooter's identity.

According to Torrence, this "recruitment” resulted in state action when the

family showed Thomas the single photograph before detectives showed him the

photo array.

State action is required for the trial court to exclude an identification

procedure. A due process check on the admission of eyewitness identification

is applicable when the police have arranged suggestive circumstances leading

to an identification by an eyewitness. Perry v. New Hampshire, 565 U.S. 228,

237 (2012). The United States Supreme Court has not extended pretrial

screening for reliability of identification to situations not arranged by law

enforcement. Id. at 233. Instead, the U.S. Supreme Court has relied on other

rights and opportunities to challenge the suspect identification including the

right to counsel, vigorous cross-examination, and jury instructions requiring

proof beyond a reasonable doubt. Id. at 237.

29

This Court has likewise found those and other protections sufficient to

protect the rights of defendants when it comes to suspect identifications. We

said:

We trust that these same safeguards will continue to protect the

rights of defendants first identified in court, leaving the juiy with

responsibility for assessing the credibility of the identification in

each case. As often noted, throughout Anglo-American history,

"[decisions as to human life, liberty and public and private

property have been routinely made by jurors and extraordinary

confidence has been placed in this decision-making process.”

Curry v. Fireman's Fund Ins. Co., 784 S.W.2d 176, 178 (Ky. 1989).

Fairley v. Commonwealth, 527 S.W.3d 792, 799-800 (Ky. 2017).

As we further made clear when it came to suspect identifications,

"Absent the 'taint of improper state action,' Perry establishes that the jury and

the ordinary rules of trial provided Jeter with all the process due him for

contesting Albrecht's testimony. Thus, on the asserted due process grounds

Jeter is not entitled to relief.” Jeter v. Commonwealth, 531 S.W.3d 488, 495

(Ky. 2017).

In this case, there is no evidence in the record that Thomas's family or

girlfriend was acting at police behest when they located and showed Thomas

the single photograph of Torrence downloaded from social media. Thomas

viewing the single photo and the police photo array on the same day, after

coming out of a medically induced coma, based on the record appears to have

been a coincidence. Thomas, at that point, was finally physically able to speak

to someone about the shooting, and meeting with his family and police on the

same day is not particularly suspect. That the two showings happened on the

30

same day was a result of Thomas's critical injuries, extensive medical

treatment, and being one of the first opportunities for him to view photos.

Absent improper state action, the weight to give a suspect identification

is best left to juries to sort out. "A primary aim of excluding identification

evidence obtained under unnecessarily suggestive circumstances ... is to deter

law enforcement use of improper lineups, showups, and photo arrays in the

first place.” Perry, 565 U.S. at 241 (citing Manson v. Brathwaite, 432 U.S. 98,

112 (1977)). That exclusionary goal is absent where, as here, there has been

no state action.

A review of the record shows that other constitutional protections

afforded Torrence were active in this case. One clear example from the record

is worth noting. When Thomas denied multiple times during the

Commonwealth's questioning that he saw the single photo before he saw the

photo array, and even went so far as to claim he had not seen the single photo

at any time before he testified, Torrence's counsel seized the opportunity.

Under capable cross-examination by defense counsel, Thomas changed his

mind and his testimony. With some skilled questioning, Thomas conceded

seeing the photo first.

Thomas acknowledged seeing the single photo when confronted with an

audio recording of his statement to the police. After hearing his own words on

audio tape played for the jury, Thomas acknowledging seeing the single photo

first. The Commonwealth's key witness was caught over-stating a claim and

forced to backtrack on testimony given minutes earlier that he never saw the

31

single photo prior to trial. In the best possible light, he was mistaken, or

perhaps, when viewed in a different light, Torrence's counsel caught him in an

outright lie.

Was Thomas's significant medical treatment the cause of his

misstatement, did his memoiy slip over time, or were the repeated denials an

effort to make his identification of Torrence appear untainted? These possible

questions went unanswered and regardless, the jury saw classic impeachment

of a witness with his own words. Thomas's about-face concession as to when

he saw the single photograph was a result of effective cross-examination by

defense counsel confronting him with a prior recorded statement.

The presence of counsel, vigorous cross-examination, and a jury

instruction requiring proof beyond a reasonable doubt were among the

protections noted in Perry and present in this case. Coupled with these

protections is the absence in the record of any proof of state action in the prior

showing of the single photo.

Without state action, the two-prong test often cited requiring the trial

court to inquire as to whether the identification was unduly suggestive, and if

so, then determine was it admissible under a totality of circumstances test, is

inapplicable. See Barnes v. Commonwealth, 419 S.W.3d 584 (2013); Duncan v.

Commonwealth, 322 S.W.3d 81 (2010); Oakes v. Commonwealth, 320 S.W.3d

50 (2010); King v. Commonwealth, 142 S.W.3d 645 (2004); Wilson v.

Commonwealth, 695 S.W.2d 854 (Ky. 1985).

32

The trial court's decisions to permit the identifications, outside court as

well as during trial, were not an abuse of discretion. With no state action

involved in showing Torrence the single photograph, the decision to overrule

the motion without a hearing was consistent with caselaw and supported by

long standing legal principles.

After careful review of the issues presented, we affirm Appellant’s convictions and their corresponding sentences.