Brown v. State, 81962

Docket Nº81962
Citation138 Nev.Adv.Op. 44
Case DateJune 23, 2022
CourtSupreme Court of Nevada

138 Nev.Adv.Op. 44



No. 81962

Supreme Court of Nevada

June 23, 2022

Appeal from a second amended judgment of conviction, pursuant to a jury verdict, of conspiracy to commit robbery, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon, and pursuant to an Alford plea, of ownership or possession of a firearm by a prohibited person. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

JoNell Thomas, Special Public Defender, Clark County, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Karen L. Mishler, Chief Deputy District Attorney, Clark County, for Respondent.





By the Court, In this appeal from a judgment of conviction, we consider whether a jury may consider footwear impression evidence without the aid of expert testimony and conclude that such was proper here. We also consider whether the district court violated the defendant's rights under the Confrontation Clause by allowing a witness to testify via two-way video and limiting that witness's testimony to avoid disclosing trade secrets. Although the district court failed to make express findings under Lipsitz v. State, 135 Nev. 131, 442 P.3d 138 (2019), regarding the propriety of the two-way video, we determine reversal is not warranted here. We also conclude that the district court did not abuse its discretion by limiting the witness's testimony, and we affirm.


The State indicted appellant Larry Brown on charges of conspiracy to commit robbery, robbery with the use of a deadly weapon, murder with the use of a deadly weapon, and ownership or possession of a firearm by a prohibited person. Brown entered an Alford[1] plea as to the possession charge but proceeded to trial on the remaining charges. These charges arose from the 2017 death of Kwame Banks, who was shot and killed outside a Las Vegas apartment complex. Responding officers found Banks's body lying between two cars in a pool of blood. Two bullet cartridge cases were nearby, and bloody shoe prints led away from the body. A torn latex glove was near the body, and the remainder of that glove was near the apartment complex exit. A separate black glove was lying in front of some


parked cars near the body. Officers also discovered three cell phones in the vicinity: one under Banks's body, one a few feet away in some landscaping rocks, and one near the exit. Banks's pockets appeared to have been searched, but Banks still had about $1,900 in cash, earrings, and a bracelet on his person.

Detectives learned that before his death Banks agreed to sell marijuana to Anthony Carter, Brown's codefendant, and to an unidentified third party. Banks drove a car to an apartment complex to do the sale. The detectives found Banks's car the next day, approximately a half mile from the crime scene, burned and missing its license plates. Detectives also learned that a patrol officer had come upon the car the night of the murder and observed a white mid-sized SUV pick up an African-American male and drive off. Detectives were able to obtain video surveillance showing the white SUV, which the State presented to the jury.

Police investigated the three cell phones and determined that two belonged to Banks and the third was registered to Brown under an Atlanta, Georgia, address and phone number. Following the murder, police executed a search warrant for Brown's home and found a white SUV and shoes that had prints which appeared to match the shoeprints at the crime scene.[2] Brown was later located in Atlanta, where he was arrested following a brief chase. Detectives thereafter linked the DNA on both the torn latex glove found near the body and the black cloth glove to Brown, but the murder weapon was never recovered.

Detectives used technology from a private company called Cellebrite to extract information from Banks's phones, but they were unable


to access the contents of Brown's phone. Police then sent Brown's phone to Cellebrite, which initially was also unable to extract the data. Following a Cellebrite software update and pursuant to a second search warrant, police again sent the phone to Cellebrite, which this time successfully extracted the data. The employee who performed the successful extraction was Brian Stofik.

Notably, the extracted information contained a series of text messages between Carter and Brown in the days leading up to the murder, indicating they were planning to meet to do something involving an unidentified third person. Those messages included the address where the murder occurred and statements such as, "He have money in middle console 2 sum time mostly on him and in trunk in bags if he riding heavy he keep small pocket nife on right side," and, "If u need Nard he on stand by," as well as messages sent shortly before the murder such as, "Tonight the Night my brother," "Just seen you text okkk COOL!!!!," "How are we looking," "He suppose to be Pullen up my man that want the bags not here either ... I told him be here at 9:30," and, "On standby."

Before trial, Brown moved to strike evidence of footwear impressions, arguing that such evidence required expert testimony. The State countered that it did not intend to present an expert because one was not needed as the photograph of the crime scene-showing the shoeprint and the photograph of the shoes found at Brown's residence later impounded into evidence-were independently admissible. The district court agreed and denied the motion. Brown also moved to preclude all cell phone information obtained from Cellebrite. Brown asserted that he should be able to cross-examine Cellebrite about its proprietary software that allows Cellebrite to duplicate the phone's data without actually reviewing


the information on it, as well as Cellebrite's processes for ensuring no information is changed during the extraction and return processes. At Brown's request, the district court agreed to have a sealed hearing outside the jury's presence to allow Brown to question Cellebrite's witness prior to his testimony at trial.

Early during trial, the State learned that it would be unable to reschedule Cellebrite employee Brian Stofik's testimony as necessary to have Stofik appear in person. Noting that Stofik would be testifying to whether the copy of the phone returned to law enforcement was accurate, the State argued that good cause existed to allow Stofik to testify audiovisually because Cellebrite had an employee shortage at the time of trial, rescheduling Stofik's testimony so that he could testify in person would cost an extra $10,000 to the State, and Stofik's testimony could be taken over two-way video. Brown made a Crawford[3] objection, arguing that because Cellebrite worked with law enforcement, it should be willing to come to court. But Brown acknowledged that two-way video would be acceptable "if that's what's necessary." The court concluded Stofik could effectively testify over two-way video.

During trial, a detective testified to finding the cell phones and to the techniques the department used to obtain information about the cell phones and link one of them to Brown. The detective also testified that both of Banks's phones contained a contact named "POE ATL" and that the department traced that contact's number to Anthony Carter. Another detective testified to using Cellebrite software and other tools to extract and analyze information from the phones. Texts on one of Banks's phones


showed that on the morning of the murder, Carter set up a meeting between Banks and an unidentified third person. Phone records admitted at trial also established that Carter was in contact with both Banks and Brown in the minutes leading up to the murder. Additionally, cell tower evidence placed Brown's and Carter's phones in the vicinity of the crime scene in the hours leading up to the murder.

Before Stofik testified, the district court held a sealed hearing, during which Stofik explained Cellebrite's process for receiving and returning phones and for extracting information from those phones. As to Brown's phone, Stofik explained the phone's chain of custody and what he did to extract the data without going into specifics about Cellebrite's trade secrets. He also verified that the information provided to police mirrored what was on the phone and explained how Cellebrite used a "hashing" system to check accuracy. On cross-examination, Brown asked Stofik which of its products was used to extract the data and about the circumstances under which a particular Cellebrite device would be unable to unlock a phone. Stofik declined to answer these questions due to proprietary interests, and the district court thereafter determined the latter question was irrelevant. Although Stofik was not the employee who attempted to extract information the first time the phone was sent to Cellebrite,[4] Stofik explained Cellebrite documented that, during its first attempt, it did not examine or alter any of the applications or data on the device.

Brown then made a Crawford objection, arguing he had the right to confront all involved Cellebrite employees about the chain of custody. He also argued the evidence was not properly authenticated


because Stofik failed to establish the process or system used to extract the data. The district court concluded that the proprietary coding and programming did not need to be presented to the jury, as those areas were technically difficult and could cause the jury undue confusion. The district court overruled the objections and allowed the parties to question Stofik regarding how Cellebrite downloaded and returned the phone information while ensuring its accuracy.

Stofik's subsequent trial testimony...

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