State v. Patton

• Decision Date: 25 February 2014
• Docket Number: No. ED 98051.,ED 98051.
• Citation: 419 S.W.3d 125
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Melvin PATTON, Defendant/Appellant.
• Court: Missouri Court of Appeals

419 S.W.3d 125

STATE of Missouri, Plaintiff/Respondent,

v.Melvin PATTON, Defendant/Appellant.

No. ED 98051.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 8, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 19, 2013.

Application for Transfer Denied Feb. 25, 2014.

Emmett Queener, Woodrail Centre, Columbia, MO, for appellant.

Jennifer Rodewald, Jefferson City, MO, for respondent.

LISA S. VAN AMBURG, Presiding Judge.

INTRODUCTION

Defendant Melvin R. Patton was convicted by jury in the Circuit Court the City of Saint Louis of two counts of murder in the first degree, section 565.020, RSMo 2000, one count of assault in the first degree, section 565.050, RSMo 2000, one count of burglary in the first degree, section 569.160, RSMo 2000, and three counts of armed criminal action, section 575.015, RSMo 2000. The trial court sentenced Patton to consecutive sentences of life without probation or parole on the murder counts, concurrent sentences of life on the assault count and armed criminal action count, and a concurrent sentence of fifteen years on the burglary count. On appeal, Patton argues that the trial court erred by admitting evidence of the location of cell sites used by his cell phone near the time of the crime. The State introduced this evidence to suggest that Patton was in the vicinity of the crime scene at the time of the shootings. Patton contends that locating a phone in relation to the cell sites to which it connected is a subject for expert testimony, and that a Frye hearing was necessary before the cell site data could be admitted. Additionally, Patton argues that the trial court erred in admitting photographs of the victims' family, because the prejudicial effect of the photographs outweighed their probative value.

We hold: (1) the trial court did not abuse its discretion by declining to require a Frye hearing before admitting historical cell site data; (2) the trial court erred by failing to require an expert witness to testify as to the location of Patton's phone in relation to the cell sites to which it connected; (3) this error does not require reversal, because the evidence of Patton's guilt is otherwise overwhelming; and (4) the admission of family photographs was not so prejudicial as to affect the outcome of the trial. We decline to exercise our discretion to review Patton's unpreserved claim of error regarding the State's closing arguments. We affirm the judgment of the trial court.

FACTS

In the early morning hours of April 21, 2010, a hooded gunman entered a home at 3815 Pennsylvania Avenue in the Saint Louis and shot Jane Smith, her cousin Robert Johnson, and Smith's girlfriend Mary Williams.¹ Smith's son, John Davis, looked on as the gunman shot his mother and Williams. Smith and Johnson died from their wounds.

At trial, both Williams and Davis testified that they recognized the gunman as Davis's father, Melvin Patton. Williams testified that she could see Patton's face despite the hood, and recognized his voice. Williams further testified that Davis grabbed Patton during the shootings and said, “Daddy, no, please don't kill my momma.” Davis testified that he recognized his father's eyes and mouth. Additionally, Stephen Showers, Patton's cellmate before trial, testified that Patton confessed the shootings to him.

In his defense, Patton claimed that he was sleeping in Cahokia, Illinois, at the house of his cousin Marlon Tillman at the time of the shootings. Tillman and his ex-girlfriend Sarah Morice both testified that Patton was at the house when they went to sleep on the night of the shootings and when they woke up the next morning. Patton testified to this effect as well.

The jury found Patton guilty of two counts of murder in the first degree, one count of assault in the first degree, one count of burglary in the first degree, and three counts of armed criminal action. The trial court sentenced Patton to two consecutive sentences of life without probation or parole for the murders, two concurrent life sentences for assault and armed criminal action, and a concurrent sentence of fifteen years for the burglary. This appeal follows.

DISCUSSION

In his first point, Patton argues that the trial court erred by admitting evidence regarding the location of cell sites used by his cell phone in the time period surrounding the crime. The State introduced this evidence to establish that Patton was in the vicinity of the crime when it was committed, and not sleeping at his cousin's house as he claimed. Patton contends that locating a phone in relation to the cell sites to which it connected is a subject for expert testimony, and that a Frye hearing was necessary before cell site data could be admitted. Patton filed a motion in limine to this effect, and timely objected at trial. Therefore, we review for abuse of discretion. See Elliott v. State, 215 S.W.3d 88, 92 (Mo. banc 2007). “The trial court abuses its discretion when the ruling is clearly against the logic of the circumstances or when it is arbitrary and unreasonable.” State v. Davis, 32 S.W.3d 603, 608 (Mo.App.E.D.2000). “Our review of the trial court's ruling is for prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Burton, 320 S.W.3d 170, 176 (Mo.App.E.D.2010). “Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial.” State v. Pickens, 332 S.W.3d 303, 318 (Mo.App.E.D.2011) (quoting State v. Johnson, 207 S.W.3d 24, 34 (Mo. banc 2006)).

We begin with Patton's contention regarding Frye. Missouri courts employ a test based on Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), to determine the admissibility of scientific evidence. ²State v. Keightley, 147 S.W.3d 179, 187 (Mo.App.S.D.2004). Under this test, scientific evidence may be admitted only if the procedure is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. (quoting State v. Davis, 814 S.W.2d 593, 600 (Mo. banc 1991)). While some confusion exists on this point, a Frye hearing is generally not required when the evidence at issue is not in fact “scientific”—that is to say, it does not involve scientific procedures or techniques. See McReynolds v. Mindrup, 108 S.W.3d 662, 666 (Mo.App.W.D.2002), abrogated on other grounds by McDonagh, 123 S.W.3d at 153 n. 9.

Here, the State presented a map showing the locations of the cell sites to which Patton's phone connected and the times at which those connections occurred. The State argues that this is not scientific evidence, because creating the map involved no more than reading Patton's cell phone records and transferring that information to a map of the greater Saint Louis area. In this limited instance, we agree. Reading the coordinates of cell sites from phone records and plotting them on a map is not a scientific procedure or technique, and the Frye standard is not applicable.

We turn next to Patton's contention that the location of a cell phone in relation to the cell sites to which it connected is a subject for expert testimony. As this issue is relatively new to Missouri courts, we begin with a bit of background information. A cellular phone essentially operates as a two-way radio. Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 Rich. J.L. & Tech. 3, 5 (2011). The phone transmits and receives signals throughout a network of cell sites (towers), which are interspersed throughout a geographic area. Id. The coverage area of cell sites generally overlaps, so that a single phone might simultaneously be covered by more than one site. Id. at 6. When a call is placed, the phone connects to the cell site with the strongest signal. Id. Numerous factors affect a cell site's signal strength, including: (1) the number of other available sites; (2) network maintenance or repairs; (3) the cell tower's height; (4) the tower's height above sea level; (5) the tower's wattage output; and (6) the number, angle, direction, and height of the tower's antennas. Id. at 7. Signal strength may also be affected by environmental and geographical factors, such as weather, topography, and level of urban development. Id. Finally, signal strength may be influenced by the cell phone itself, including its wattage output, broadband capability, whether the phone is located indoors or outside, and the distance between the phone and the cell site. Id. Thus, a single cell site may have a range as short as one mile or as large as thirty miles, covering 2,700 square miles of territory. Id. at 5. In the course of their business, cellular companies generally keep historical data regarding the cell sites to which a phone connected and the date, time, and duration of those connections. Id. at 7, 13.

As in the instant case, prosecutors may wish to present evidence of a site to which a defendant's cell phone connected in order to prove that the defendant was near that location at a certain time. However,

the problem with using historical cell site records under this evidentiary theory is that they were never intended to and do not indicate location of the [cell phone] in relation to any cell site. At best, these records can only narrow location to the geographic coverage area of the originating and terminating cell sites, rather than pinpoint the specific location of the cell phone. It cannot be determined that the cell phone was closest to the site processing the call because factors other than geographic location can affect signal strength.³

Id. at 16 (alteration in original) (footnotes omitted) (internal quotation marks omitted).

Courts across the country differ on the question of whether an expert is required to testify regarding the location of a cell phone relative to the tower to which it connects. See, e.g....