State v. Timley
| Decision Date | 07 August 2020 |
| Docket Number | No. 120,414,120,414 |
| Citation | 469 P.3d 54 |
| Parties | STATE of Kansas, Appellee, v. Cortez Tyrell TIMLEY, Appellant. |
| Court | Kansas Supreme Court |
Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.
Cortez Tyrell Timley appeals his conviction for first-degree premeditated murder in the killing of Jermel Robbins. Finding no reversible error, we affirm his conviction.
On the afternoon of June 13, 2014, law enforcement responded to a 911 call and found a man—later identified as Robbins—lying in the front yard of a house. Robbins had suffered gunshot wounds to his leg and his back, from which he soon died.
Several witnesses saw a blue or gray Dodge Magnum driving down the street at the time of the shooting; one witness also saw the Magnum drive down the street 5 to 10 minutes before the shooting but noted that the Magnum "came back around" before the shooting. According to this witness, the Magnum's driver was a "light skinned dude" with "short hair," but the shots came from the passenger window. This witness noted that the shooter's arms were tattooed, but he could not recall the shooter's skin color. Another witness saw the shooter fire from the Magnum's front passenger window; this witness identified the shooter as being black. And a third witness—who did not see the shooting itself but who heard the shots—reported a partial license plate number to law enforcement.
Based on the partial license plate number and the identification of the vehicle involved in the shooting as a gray Dodge Magnum, law enforcement matched the vehicle to one owned by Jazmine Christopher, a resident of Independence, Missouri. Law enforcement suspected the shooter was Timley, who was Christopher's boyfriend at the time.
Timley was apprehended in a white Chevy Malibu in Kansas City later that day, along with Eric Price and D'Ante Boykins. Price, who was "more white," long-haired, and relatively thin, was Timley's best friend. Boykins was Timley's cousin, and had grown up with Price and Timley. Officers recovered a broken Kyocera flip phone from the seat in the Malibu where Timley had been sitting. The flip phone's "cables were completely severed."
According to Christopher, Timley left her residence at about 12:30 in the afternoon. When she called him around 1:09 p.m. to ask a favor, Timley told her he was "too far away from home." Christopher told officers that Timley had had the Magnum "all day." She also speculated that Timley had gone to Topeka to drop off his son with Timley's mother, who lived near Lake Shawnee in Topeka, "[o]ff of 45th." According to Detective Justin Broxterman, Timley gave an address on Southeast 43rd Terrace in Topeka where "he spends a lot of time."
Broxterman acquired records relating to the location and call data of Timley's phone—the broken flip phone recovered from the Malibu—from Sprint. Various cellphone records were admitted into evidence without objection, alongside the testimony of Sprint records custodian Ricardo Leal. Leal could not guarantee "with all certainty" that the location information provided in cellphone records was accurate.
Over the objection of Timley's counsel, Broxterman testified about the relative position of Timley's phone throughout the day of the shooting. Broxterman had input the Sprint information—that included "which cell tower it was and which side of that cell tower it was accessing"—into a program to plot out the trajectory of Timley's phone. He then generated maps depicting the cell tower accessed by Timley's phone at different times of the day, although he noted that the maps did not depict the distance of the phone from each tower.
According to Broxterman, Timley's phone remained in the area of the Independence residence until about 12:40 p.m. on the day of the shooting. The phone then headed west along the same general trajectory of I-70 and, by 2:09 p.m., it began to access a cell tower in Topeka. At 2:37 p.m., which was shortly before the shooting, Timley's phone accessed a cell tower in Topeka. According to Per Call Measurement Data (PCMD) provided by Sprint, Timley's phone was estimated to be approximately 2.63 miles away from that tower. As the crow flies, the scene of the shooting was exactly 2.63 miles from the same tower. Later, Timley's phone eventually headed east, this time traveling north of I-70; by 5:03 p.m., it was back in the area of Kansas City.
Broxterman admitted that the PCMD provided by Sprint was merely an estimate used by engineers, rather than a definitive statement of fact. Broxterman read Sprint's PCMD disclaimer aloud for the jury—which emphasized the potential inaccuracy of the PCMD, depending on several variables—and that "Sprint will not guarantee the accuracy of the location information." When pressed about the accuracy of the PCMD information Broxterman said:
Broxterman further emphasized that
Dreux Doty testified as an expert witness for Timley with respect to the cellphone location data, and his report was also admitted at trial. Doty emphasized that there was no exact GPS data for the flip phone once it left the Kansas City metro area and that any estimates of distance in Topeka were just that—estimates. However, Doty agreed that Sprint's figure of 2.63 miles was "a rational estimate."
The jury was instructed on the charged crime of first-degree murder. No lesser included offense instructions were given or requested, and Timley's counsel raised no objection to the jury instructions. Timley was ultimately convicted of one count of first-degree murder. He then appealed his conviction to this court.
Timley raises five issues for our consideration. We agree that he has identified at least one error but rule that it was not reversible.
Prosecutorial error
Timley claims that the prosecutor committed prosecutorial error by making statements, during both opening and closing arguments, concerning the location of Timley's phone at the time of the shooting. Specifically, Timley claims that the prosecutor mischaracterized the Sprint data's depiction of the location of Timley's phone as an unimpeachable fact, rather than an unreliable estimate. In order to properly evaluate those claims, the prosecutor's statements must be considered in some detail.
In the State's opening statement, the prosecutor told the jury—without objection—that the evidence would show that:
" (Emphasis added.)
The prosecutor further told the jury that, "The phone data of the phone sitting right next to this defendant when he is stopped and arrested in Independence, Missouri[,] shows that he traveled on the day of the shooting to Topeka, that he was exactly in the area at the time of the shooting."
In closing arguments, the prosecutor emphasized—again, without objection—that both law enforcement and Timley's own expert had demonstrated that "this defendant and this defendant's phone, that phone found with him, had traveled, ... was in Lawrence, was in Topeka, was in southeast part of town." The prosecutor then said:
Timley's counsel responded by repeatedly pointing out the uncertain accuracy of the Sprint location data. In rebuttal, the prosecutor replied by emphasizing "[t]he only thing that Sprint will not guarantee the accuracy of, is the [PCMD], which is the exact distance from the handset to the tower." Additionally:
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