Torrence v. Commonwealth, 022020 KYSC, 2018-SC-000322-MR

Docket Nº:2018-SC-000322-MR
Opinion Judge:WRIGHT, JUSTICE
Party Name:MICHAEL TORRENCE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:COUNSEL FOR APPELLANT: Franklin Todd Lewis Lewis Law, PLLC COUNSEL FOR APPELLEE: Daniel Jay Cameron Attorney General of Kentucky Emily Lucas Assistant Attorney General
Case Date:February 20, 2020
Court:Supreme Court of Kentucky

MICHAEL TORRENCE APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2018-SC-000322-MR

Supreme Court of Kentucky

February 20, 2020

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA JEAN ECKERLE, JUDGE NOS. 16-CR-001550 AND 18-CR-000152

COUNSEL FOR APPELLANT: Franklin Todd Lewis Lewis Law, PLLC

COUNSEL FOR APPELLEE: Daniel Jay Cameron Attorney General of Kentucky Emily Lucas Assistant Attorney General

OPINION

WRIGHT, JUSTICE

In a tri-furcated proceeding, a Jefferson Circuit Court jury convicted Appellant Michael D. Torrence of first-degree assault and possession of a handgun by a convicted felon. The jury further found he was a persistent felony offender. The jury recommended a fifteen-year sentence for the first-degree assault enhanced to twenty-five years by the PFO, and a five-year sentence for possession of a handgun by a convicted felon enhanced to fifteen years by the PFO, with both sentences to be served concurrently for a total sentence of 25 years. Torrence was sentenced in accordance with the jury's recommendation, and now appeals to this Court as a matter of right. Ky. Const. §110(2)(b).

Torrence raises the following claims of error in his appeal, alleging the trial court erred by: (1) failing to remove a juror and failing to grant a mistrial concerning said juror, (2) allowing a lay witness to testify as to historical cell tower data and several other related sub-issues, [1] and (3) failing to suppress the victim's identification of Torrence in a police photo array and in court. For the following reasons, we affirm Torrence's convictions and corresponding sentences.

I. BACKGROUND

Michael Torrence's charges stem from events surrounding the shooting of Gerrado Thomas on the afternoon of May 17, 2016, on 26th Street in Louisville. The shooting left Thomas paralyzed below the waist. At trial, in addition to the offenses that resulted in convictions, Torrence was acquitted of first-degree wanton endangerment for shooting into a nearby house.

During police questioning, Torrence claimed he was picking up his daughter in the Blue Lick area of Louisville at the time of the shooting because the child's mother, a former girlfriend, was in the hospital having a baby. The Blue Lick area of Louisville is approximately eleven air miles from the 26th Street shooting location.

The first issue raised in this appeal arose late in the trial. At the start of the penalty phase, Torrence raised concerns that a juror had not been truthful in voir dire when the panel was asked if anyone knew him. Torrence asserted Tatiana Turner, the mother of his child and an alibi witness for the defense, recognized the juror when she testified late in the defense case.

The timing concern is centered around when the issue was brought to the trial court's attention. Over a weekend break after guilty verdicts were returned on Friday, and before the penalty phase began on Monday, Torrence's attorney was notified about the juror issue. He brought the matter to the court's attention on Monday morning. While continuing with the penalty phase, the trial court used breaks in the proceedings to take testimony and question Turner and the juror. The trial court ruled it would not excuse the juror or grant a mistrial, and several months later overruled a motion for judgment notwithstanding the verdict (JNOV) and a new trial based on the juror issues.

The next issue raised in this appeal deals with admitting historical cell tower data into evidence. It began when Louisville Metro Police Detective Stephen Snider obtained Torrence's cell phone number and cell phone service provider from the police interview. The detective was seeking to verify Torrence's alibi.

The detective sent AT&T a search warrant requesting historical cell phone tower data for Torrence's cell phone number for the day of the shooting. AT&T sent Detective Snider a 500-page report and after it was explained to him, Detective Snider figured out which cell phone towers Torrence's cell phone was communicating with around the time of the shooting. Cell phone towers have unique identification numbers and their locations were designated in the report with latitude and longitude coordinates. Also included in the report was a directional degree reading, indicating the direction but not location, of the cell phone in relation to the tower.

Based on the tower coordinates and directional compass readings from the report, Detective Snider produced a graph overlay on a Google' map of Louisville. The map showed Torrence's cell phone was in contact with towers close to the shooting location and not in contact with towers near the Blue Lick area when Thomas was shot.

On the first morning of trial, Torrence moved for the Commonwealth to disclose experts and expert opinions regarding historical cell tower data. In response, the Commonwealth argued Detective Snider did not need to be qualified as an expert to testify using the historical cell tower report. The Commonwealth asserted that Detective Snider would simply enter the cell tower locations from the historical data report into a Google' map computer program. Further, the Commonwealth asserted reading the AT&T report was like reading a familiar phone bill and anyone could use Google' Maps. The Commonwealth assured the trial court the phone company cell tower records were verified. Finding the issues moot because no expert was going to testify, the trial court overruled the motions to disclose experts and expert opinions.

The Commonwealth did not ask Detective Snider any questions about his qualifications, background, experience, or specialized training with historical cell tower evidence. No witness testified (either law enforcement or from a phone company) who had specialized knowledge, experience, or background with historical cell tower data and how it works. Detective Snider testified as to basic information about cell phones connecting to towers and how the information in the report is read.

Detective Snider gave no opinions based on the AT&T report about Torrence's location at the time of the shooting. A map showing two cell tower locations communicating with Torrence's cell phone near the time of the shooting was presented to the jury and entered into evidence. In closing argument, the Commonwealth asserted the graphed map undercut Torrence's alibi.

The final issue raised in this appeal revolves around Thomas's (the victim's) identification of Torrence from a police photo array. Detective Snider testified about police efforts to determine the identity of the shooter initially identified by Thomas as "Man-Man." Detectives presented Thomas with an array containing six photos. Thomas identified Torrence from the photo array as Man-Man, the person who shot him. However, before he made that police photo array identification, Thomas's sister and/or girlfriend showed him a single photo of Torrence they downloaded from a social media site. Torrence moved for the exclusion of Thomas's identification from the police photo array and in court, arguing the identifications were tainted by his sister and girlfriend previously showing him the single photograph. The trial court denied Torrence's motion. In ruling on the motion, the trial court found that Thomas's sister and girlfriend were not acting on behalf of the police-and, therefore, there was no state action involved in them showing Thomas the single photograph.

Further background information will be developed as needed.

II. ANALYSIS

A. Juror Issue

Torrence seeks reversal of his convictions, claiming the trial court erred when it failed to remove a juror and declare a mistrial. Torrence claims further error when the trial court denied his motion for a new trial or JNOV based on the same juror issues. According to Torrence, a juror wrongfully remained silent when asked during general voir dire if anyone knew Torrence or any of the witnesses. Torrence claims the juror met him several years before trial, albeit indirectly, through Turner, his girlfriend at the time of the meeting and an alibi witness at trial.

During voir dire, the juror identified as Juror #2071060 did not respond when asked if anyone knew Torrence. Turner, as a defense witness, was kept out of the courtroom by the trial court's separation order. Near the end of the defense case, Turner testified. The jury returned guilty verdicts on Friday afternoon, and Turner told Torrence's mother over the weekend that she believed she recognized the juror in question. On Monday, the fifth and final day of trial, defense counsel advised the trial court that Juror #2071060 knew Turner and Torrence and had not been honest about that knowledge in her responses during voir dire. In dealing with the very serious issues raised, the trial court took proof including questioning Turner and the juror.

The trial court questioned Juror #2071060 multiple times. Each time she was asked, the juror denied knowing Torrence. In response to a repeated question by the trial court about knowing Torrence, the juror responded this was the first time "ever seeing this man." Juror #2071060 told the trial court that she knew "of Turner but did not know her and had not seen her in more than five years. When the trial court asked the juror what she meant by knowing "of Turner, she responded that they did not communicate and had never seen one another on a daily basis. The juror also responded that she did not know Turner and Torrence knew each other.

When asked if she and Turner shared a half-sister, the juror responded that her half-sister, Waynesia, and Turner were not "real sisters." We note that even if they had shared a half-sister (as Turner claimed in her testimony), there was never any claim that Turner and the juror...

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