Ex parte Watson

• Decision Date: 08 January 2021
• Docket Number: 1190490,1190498
• Parties: Ex parte Marcus King George (In re: Marcus King George v. State of Alabama) Ex parte Alyssa Sue Watson (In re: Alyssa Sue Watson v. State of Alabama)
• Court: Supreme Court of Alabama

Ex parte Marcus King George

(In re: Marcus King George v. State of Alabama)

Ex parte Alyssa Sue Watson

(In re: Alyssa Sue Watson v. State of Alabama)

1190490

1190498

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2020-2021

January 8, 2021

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

(Tuscaloosa Circuit Court, CC-18-886; Court of Criminal Appeals, CR-18-0435) (Tuscaloosa Circuit Court, CC-18-887; Court of Criminal Appeals, CR-18-0377)

MENDHEIM, Justice.

Marcus King George and Alyssa Sue Watson petitioned this Court for writs of certiorari to review the Court of Criminal Appeals' decision in Watson v. State, [Ms. CR-18-0377, Jan. 10, 2020] ___ So. 3d ___ (Ala. Crim. App. 2020), affirming the Tuscaloosa Circuit Court's judgments convicting Watson and George of felony murder (murder committed during the course of a kidnapping in the first degree), see § 13A-6-2(a)(3),Ala. Code 1975, and sentencing them to 30 years' imprisonment. Significant to the State's case against Watson and George was the testimony of Allison Duncan, an intelligence analyst with the Alabama Law Enforcement Agency ("ALEA"), analyzing the historical cell-site data of Watson's and George's cellular telephones. The Court of Criminal Appeals concluded that Duncan's testimony analyzing historical cell-site data was lay testimony admissible under Rule 701, Ala. R. Evid., and determined that Rule 702, Ala. R. Evid., had no application to Duncan's testimony. At the request of Watson and George, we granted certiorari review in both cases to consider as an issue of first impression whether testimony analyzing historical cell-site data is expert or lay testimony. More specifically, we must determine as an issue of first impression whether Duncan's testimony analyzing the historical cell-site data of Watson's and George's cellular telephones was "scientific" testimony and, thus, subject to the admissibility requirements of Rule 702(b), Ala. R. Evid.Facts and Procedural History

A full summary of the underlying facts, which are not in dispute and all of which are not necessary to decide the issue before us, may be found in Watson, supra. In short, on November 1, 2015, Steven George ("Steven"), Chylli Bruce, and Mike Belcher were "working on bikes and getting high" at Wee Racing, a motorcycle-repair shop owned by Belcher's father. Samantha Payne, Watson, and George later arrived at Wee Racing. Without Payne's permission, Steven, Watson, and George then took Payne's automobile to steal the battery and catalytic converter out of it. After stealing the parts and destroying Payne's automobile, Steven, Watson, and George went to Belcher's residence.

In the meantime, at Wee Racing, Belcher forced Payne into his vehicle and, along with Bruce, drove to Belcher's residence. At Belcher's residence, Belcher took Payne out of his vehicle and began beating her, apparently because Belcher believed that Payne had been talking to the police about Belcher's sale of methamphetamine. After arriving at Belcher's residence, George suggested going to another location. Belcher and Watson then forced Payne into Belcher's vehicle, and the entire groupdrove to property believed to belong to Watson's family. Once at the property, Belcher again beat Payne and tied her up.

Subsequently, the group forced Payne into the trunk of Belcher's vehicle and drove to the Talladega National Forest. While driving to the Talladega National Forest, Belcher's vehicle, which Belcher was driving and in which Payne, Bruce, and Steven were riding, ran out of gas; Watson and George were traveling in a separate vehicle. Bruce used Belcher's cellular telephone to call Watson and inform Watson that Belcher's vehicle had run out of gas. Bruce and Steven then began walking away from Belcher's vehicle to find gasoline. At that time, Belcher took Payne into the forest and murdered her.

Watson and George were subsequently indicted based on their participation in Payne's kidnapping and murder; both pleaded not guilty. Before trial, the State indicated its intention to call Duncan as an expert witness to testify regarding the relevant historical cell-site data at issue in the case. Watson and George argued that such testimony was scientific testimony and requested a pretrial hearing to determine whether Duncan's testimony met the relevant admissibility requirements underRule 702(b). The trial court granted Watson's and George's request for a pretrial hearing. At the hearing, the trial court heard testimony from Duncan and from defense witness Manfred Schenk, an expert in radio frequencies and cellular technology. A detailed recitation of both Duncan's testimony and Schenk's testimony is necessary for our analysis.

In Schenk's opinion, testimony pertaining to historical cell-site data is scientific testimony. Schenk explained the complex process by which an antenna on a cellular tower connects to a signal sent by a cellular telephone and the numerous factors that impact such a connection. Schenk explained that, at the time a call is made from a cellular telephone, the cellular telephone emits an omnidirectional radio-frequency signal that connects "to a multiplicity of towers within the area." Once the signal is connected to a multiplicity of cellular towers, Schenk explained, a centralized computer -- called a "mobile switching center," which "controls ... all of the towers and all of the antennas on the towers that are under its jurisdiction ... or control" -- performs an evaluation to determine to which cellular tower the signal from the cellular telephone should connect. Schenk explained:

"[The cellular towers] will, in fact, then communicate in contact with the mobile switching center; and the mobile switching center will then make an evaluation in what is called, in engineering terms, 'SINR,' which is an acronym that stands for signal divided by interference plus noise ratio. So a ratio is developed for each particular cell tower within the area, in the vicinity, in order to determine which tower is the clearest tower that that particular communication should be connected to. So when that evaluation is done and then the clearest tower selected, then the frequency channels are assigned and then the telephone handset is notified that, this is your frequency that you're going to use in order to communicate. And that particular frequency is then connected to a specific cell tower, and that's how that particular connection is made."

Schenk answered in the negative when he was asked whether a "cellular telephone always selects the tower that is nearest to the person making the call." Schenk further stated:

"There is no measurement capability within the radio frequency spectrum in order to indicate as to, quote, unquote, what the distance is. So when we're talking about nearest, we're making an assumption of distance measurement. And there is no distance component. All there is is signal and signal strength component.

"Now, obviously there's a correlation between signal strength and distance. But an actual distance we do not know."

Schenk further testified that a cellular telephone can connect to an antenna on a cellular tower that is as far as 21.75 miles away. Schenk also provided the following explanation concerning antennas when asked if an antenna on a cellular tower is "designed to be omnidirectional":

"If it's a single antenna and designed to be omnidirectional, then yes. If it's a sectored, then the idea is that the emphasis is that the predominant energy lobe is being projected in a particular direction. Now, that's a little bit -- that gets into an, obviously, probability theory and how much energy and what particular direction because antennas are not so precise in terms of the way that they radiate out their energy. The majority of it would be in what they call the 'front lobe' of that particular antenna.

"However, there is lower levels of signal on what they call 'side lobes' that emanate from an antenna. And, you know, if there's a sufficient amount of energy there, there's no reason for your individual cellphone to perhaps lock onto one of those particular side lobes as easily or whatever as in a main front lobe.

"In addition, in the further complications, if you're fairly close to the antenna, there is an electronic phenomenon of the antenna where they, in fact, radiate what they call 'back lobes.' So the point is you could be behind an antenna, if you're fairly close to the tower, that, in fact, an energy exists there and you could potentially, in fact, even connect to what is called a 'back lobe.' And with the energies that we're talking about, practically anything is possible. So the fact that we have these sectored antennas, it's not a very good indication in regard to direction.

"....

"Q. Okay. ... Let's say there are three antennas on a tower, one is located on the south part of the tower, your cell signal hits that antenna. Does that necessarily mean that you are south of the antenna?

"[Schenk:] In most cases, the answer is yes. But as I explained, not absolutely necessarily so because, as I said, the phenomenon exists that there is a smaller radiation pattern that goes to the rear of the antenna, which is what I call the 'back lobe' for that particular antenna."

Schenk responded "[s]urely" when asked: "[T]he theory for being able to project where a cellphone was being received or was being directed from, would that be some type of scientific theory?"

The trial court also heard Duncan testify at the pretrial hearing. Her testimony, which is necessary to our analysis, is summarized extensively below. Watson and...