State v. Warner

• Decision Date: 08 April 2020
• Docket Number: Opinion No. 5717,Appellate Case No. 2017-001313
• Citation: 842 S.E.2d 361,430 S.C. 76
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Justin Jamal WARNER, Appellant.

430 S.C. 76

842 S.E.2d 361

The STATE, Respondent,

v.Justin Jamal WARNER, Appellant.

Appellate Case No. 2017-001313

Opinion No. 5717

Court of Appeals of South Carolina.

Heard December 11, 2019

Filed April 8, 2020

Rehearing Denied May 28, 2020

Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, Senior Assistant Attorney General W. Edgar Salter, III, all of Columbia; Assistant Attorney General Samuel Marion Bailey, of Bluffton; and Solicitor David Rhys Wagner, Jr., of Anderson, all for Respondent.

HILL, J.:

Justin Jamal Warner appeals his convictions for murder, attempted armed robbery, and possession of a weapon during a violent crime. He challenges the trial court's admission of expert testimony regarding cell site location information (CSLI), denial of his motion to suppress evidence of his cell phone records, denial of his motion for a pretrial hearing as to his probation officer's identification of him from a surveillance video, and admission of five maps created by the expert depicting cell tower locations Warner's phone had accessed. Finding no error in any of these rulings, we affirm.

I.

At 10:13 p.m. on April 30, 2015, a surveillance camera at the BP convenience store at Exit 40 on Interstate 85 in Anderson County recorded a person entering the store. The person approached the cashier, Mradulaben Patel (who owned the store with her husband of thirty-eight years, Pravinchandra). The person appeared to ask about buying a cigar and can then be seen flipping open his wallet and presenting it to Ms. Patel, presumably showing his identification. When Ms. Patel presented the cigar, the person handed Ms. Patel payment, and, as Ms. Patel opened the cash register, the person pulled a handgun from his pants pocket, pointed it at Ms. Patel, and attempted to reach into the cash register drawer. When Ms. Patel tried to push the gun away, the person shot her. The person left the store and wiped down the front door handle with his shirt. The incident took less than three minutes. Ms. Patel died several days later.

After releasing a portion of the video to local media, police received a Crimestoppers tip identifying Justin Jamal Warner as the perpetrator and relaying remarkable detail about the crime. Police discovered Warner's date of birth matched the date of birth Ms. Patel entered into the cash register seconds before the murder. Investigators also discovered Warner was on probation in Georgia, so they sent clips of the video to his probation officer, Nathan Goolsby, who identified Warner as the perpetrator. Warner's palm print from his probation file was matched to a latent palm print taken from the counter beside the cash register.

Warner turned himself in to the probation office. He arrived in a silver Dodge Challenger, a search of which revealed a "flip" style wallet similar to the wallet seen in the video. Police also found cigar wrappers in the car bearing a purchase price of ninety-nine cents, the same price of the cigars the cash register receipt showed Ms. Patel sold moments before being killed. Police further determined the Challenger was similar to a car seen on a store surveillance video facing the parking lot shortly before the crimes occurred. They also noted the suspect in the surveillance video appeared to have markings on his upper arm consistent with tattoos Warner has in the same area.

An Anderson County magistrate issued a search warrant to T-Mobile for Warner's cell phone records. At trial, the State offered FBI Special Agent David Church as an expert in historical cell site analysis and cell phone record analysis. Warner objected, contending Church's methodology of linking phone records to a cell phone's location did not meet the threshold reliability standard Rule 702, SCRE, requires for expert testimony. The trial court overruled Warner's objection, and Church gave opinion testimony that Warner's phone had "pinged" off T-Mobile cell towers near the crime scene shortly before and after Ms. Patel was shot. The jury deliberated a little over two hours before finding Warner guilty on all counts.

II.

A. Admissibility of CSLI Expert Opinion Testimony

Warner asserts the trial court erred in admitting Church's expert testimony interpreting the CSLI evidence, arguing it did not meet the reliability requirement of Rule 702, SCRE. We review evidentiary rulings for abuse of discretion, meaning we will only disturb them if they have caused prejudice and are the result of legal error or have inadequate factual support. Fields v. J. Haynes Waters Builders, Inc ., 376 S.C. 545, 555, 658 S.E.2d 80, 85–86 (2008).

i. CSLI Evidence and Methodology

Before we address whether Church's testimony cleared the reliability hurdle of Rule 702, SCRE, we take a step back to consider the background of CSLI evidence. Cell phones operate much like two way radios, connecting with other phones by way of radio frequency signals that are picked up and transmitted by the carrier's cell phone towers. A typical basic tower has a three sided antenna with each side covering a 120 degree "wedge." The term "cell" or "cellular" derives from the design of the calling networks, which are divided into hexagon-shaped geographic areas called cells, much like a honeycomb. The cell tower is located at the spot where three cells meet. 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 coverage area of a cell generally depends upon the number of antennas on the tower, the height of the antenna, its elevation above sea level, topography, and obstructions. "One cell may cover an area up to thirty miles from the site, for a total coverage area of approximately 2,700 square miles." Id . In urban areas, cell sites may exist every one-half to one mile, while in rural areas they may be several miles or more apart.

When a call is made, the cell phone connects or "pings" to the cell tower with the strongest signal, which is generally the closest tower. But not always. Signal strength can depend on many things, including the height of the cell tower, wattage output of the phone or the tower antenna, the angle and direction of the antenna, maintenance, range of coverage, network traffic, topography, and whether the phone is outdoors or indoors. Id. at 7.

Church described how cell phone records track the number being called; the date, time, and duration of the call; and the approximate location of the phone at the time of the call. He explained the cell phone carrier maintains records of the addresses and coordinates of its cell towers, which he matches to the phone records and then creates a map depicting the geography of the relevant calling history. Church testified he had over 800 hours of training in CSLI, including training by all the major cell phone carriers with their compliance personnel and network engineers. As a certified FBI instructor, he has taught CSLI analysis to state, local, and federal agencies. Church has worked on over 150 investigations and testified as an expert on CSLI eleven previous times.

When explaining why CSLI analysis was reliable, Church testified cell phone companies keep records for billing purposes to ensure efficient network operation and customer satisfaction. He also explained carriers are required to be able to provide the tower a phone used when it called 911, so emergency personnel can locate the caller's approximate location. The trial court pointedly asked Church, "[Y]ou said to [the solicitor], yes, it's reliable. Besides the boilerplate response, how do you determine that it's, in fact, reliable?" Church replied in part,

[U]sing common sense and investigative knowledge and your expertise in knowing how a network operates, determine where to go look for a phone. And we successfully do that, you know, every week, our unit does. So to me ... the practical application of it is the best study.

Church was careful to note CSLI evidence can only show the approximate location of a phone at a given time. He analyzed Warner's call records and the location of the cell towers Warner's phone had pinged. He ascertained which side of the tower was being used and the direction the radio signal emitting from the tower was traveling. From this, Church created a report that included a series of maps illustrating the route Warner's phone traveled on April 30, the date of the crime. The maps depicted the phone's tower usage and showed that between 7:53 p.m. and 9:45 p.m. Warner's phone traveled north along I-85 from the Atlanta area to just north of the crime scene and then north to the Pelham Road area in Greenville. The phone then began traveling south along I-85. At 10:11 p.m., the phone pinged the north side of a tower located south of I-85 near Highway 25. This tower is located three-and-a-half miles north of the crime scene, as the crow flies. At 10:19 p.m., the phone used the northern side of a tower located near the exit where I-85 and Highway 81 intersect. This tower stands two-and-a-half miles south of the crime scene. Church noted a phone could be anywhere in that general area, even a bit behind the direction the tower sector was pointing, given radio waves are not linear. Church concluded that, in his opinion, the phone was in the "general vicinity" of the crime scene around the time the crime occurred, though of course he could not say who had the phone.

ii. Rule 702, SCRE Reliability Requirements for Expert Opinion Evidence

Before admitting expert testimony, trial courts, as the gatekeepers of evidence, must ensure the proffered evidence is beyond the ordinary knowledge of the jury; the witness has the skill, training, education, and experience required of an expert in his field; and the testimony is reliable. Watson v. Ford Motor Co ., 389 S.C. 434, 445–46, ...