OF COUNSEL (APPEARANCES ENTERED.) CHIEF JUSTICE RABNER: WELCOME COUNSEL, MR.
MASON ONLY. CODY T. MASON: GOOD AFTERNOON, YOUR HONORS, ANIME IT PLEASE
COURT. I'D LIKE TO RESERVE A FEW MINUTES FOR REBUTTAL IF NECESSARY. YOUR HONOR,
THIS CASE IS ABOUT RELIABILITY. REPORTS OBLIGATIONS TO SHE WOULD JURORS FROM
TESTIMONY THAT IS INSUFFICIENTLY RELIABLE AND THE EFFECTS OF COURT'S FALLING TO
HONOR THAT GATE KEEPING RESPONSIBILITY. MORE SPECIFICALLY THIS CASE INVOLVES
EXPERT OPINIONS AND IN AN IN COURT IDENTIFICATION. TWO FORMS OF TESTIMONY
THAT THIS COURT HAS LONG RECOGNIZED CARRY PARTICULAR WEIGHT WITH JURORS AND
WITH CAUSTIC RISKS OF UNRELIABILITY SUCH THAT THEY NEED TO BE CAREFULLY SETS HAD.
EXPERT TESTIMONY FOR EXAMPLE CAN ONLY BE ADMITTED IF THE STATE CLEARLY DEMONSTRATES
THAT THE TESTIMONY AT ISSUE IS RELIABLE AND IF THE EXPERT THEMSELVES EXPLAINS
THEIR METHODOLOGY AND THEIR FACTUAL BASIS. DESPITE THOSE RELIABILITY REQUIREMENTS
HOWEVER, THE STATE IN THIS CASE WAS ALLOWED TO PRESENT EXPERT TESTIMONY FROM
A FBI AGENT TO OPINED THAT MR. BURNEY WAS MOST CERTAINLY COULD HAVE BEEN AT THE
CRIME SCENE DURING THE ROBBERY BASED ON A RULE OF THUMB ABOUT THE RANGE OF CELL PHONES
THAT HE HIMSELF CON SEATED HAD WERE NOT A VIABLE TO TOOLS OR ACCOUNT FOR RELEVANT
FACTORS WHICH IS WHOLLY UNFOR THE HAD BY ANY AUTHORITY WHETHER LEGAL OR SIGN
PARTICULAR AND WHICH THE AGENT PLANNED TO EXPLAIN OR SPORT. SIMILARLY DESPITE
THE SAFEGUARDS IN PLACE TO SHE WOULD YEARS FROM UNRELIABLE AID INDICATIONS THE STATE
WAS ALLOWED FIRST TIME IDENTIFICATION IN THIS CASE IN COURT FROM A WITNESS WHO
HAD LITTLE OPPORTUNITY TO SECOND DEGREE THE PERP 30 TORE IN A VESTAL ENVIRONMENT
HAILED TO IDENTIFY MR. BERRY ONLY DAYS IN A -T IDENTIFIED A PHOTO 90 PERCENT
CERTAINTY. AFTER HAVING BEEN CONVINCED WITH MR. BERRY'S QUILT BASED ON INFORMATION
PROVIDED BY POLICE IN A HIGHLY SUGGESTIVE ENVIRONMENT. OVER 25 MONTHS AFTER THE
ROBBERY AND MOREOVER WITHOUT THE JURY BEING PROPERLY INSTRUCT IN ADDITION ON YOU
WHO CONSIDER THAT IDENTIFICATION TESTIMONY. IN OTHER WORDS, THE STATE IN THIS CASE
WAS ALLOWED TO BOLSTER IT'S CASE. BUILD ITS CASE ON UNRELIABLE BY HIGHLY PERSUASIVE
EVIDENCE THAT SHOULD NEVER HAVE BECOME THE JURY AND WHICH DENIED MR. BURNEY
OF HIS CONSTITUTIONAL RIGHTS. TURNING TO THE FIRST ISSUE. REVERSAL SHOULD BE
ORDERED IN THIS CASE BECAUSE THE STATE WAS WRONGLY ALLOWED TO ELICIT TESTIMONY FROM
AGENT DAVID THAT MR. BURNEY'S CELL PHONE VERY LIKELY OR MOST CERTAINLY COULD HAVE BEEN
AT THE HOME DURING THE ROBBERY BASED ON RULE OF THUMB. DESPITE THE FACT THAT THE
TOWER THAT WAS PINKED IN THIS CASE WAS NEARLY A MILE AWAY. AND THIS TESTIMONY
SHOULD HAVE BEEN EXCLUDED BOTH BECAUSE THE STATE FAILED TO APPROVE IT WAS RELIABLE
AND BECAUSE IT CONSEQUENCE CONSTITUTES HAD AN IMPROPER NET OPINION. STARTING WITH THE
ISSUE OF RELIABILITY. IT WAS THE STATE'S BURDEN CLEARLY DEMONSTRATE RELIABILITY
IN THIS CASE. AND. JUSTICE PATTERSON: LET ME INTERRUPT YOU FOR A
SECOND MR. MASON. WE HAVE A NUMBER OF MET OPINION CASE MOST OF THEM CIVIL AS YOU
KNOW. IT'S A FAIRLY FREQUENTLY ENCOUNTERED ISSUE. AND THEN WE HAVE THE RELIABILITY
DETERMINATION UNDER FRYE HISTORICALLY. AND THEY SOMETIMES SEEM TO BE COVERING
THE SAME GROUND. WHAT DISHESES A RELIABILITY DETERMINATION UNDER RULE
SEVEN OH TWO, SEVEN OH THREE AND A NET OPINION WHICH OBVIOUSLY DRIVES FRO THOSE
RULES A NET OPINION DETERMINATION. CODY T. MASON: I THINK THE MAIN DISTINCTION
AND THEY'RE DEALING WITH DIFFERENT COURT RULES. THE MINIMUM DISTINCTION THE
RELIABILITY TEST IS A THRESHOLD ISSUE AND BROADER I OBJECT. SO WHETHER THE SUBJECT
MATTER OR METHOD IS ACTUALLY RELIABLE AND THEN THE NET OPINION GETS TO THE
THE INFORMATION THAT THE INDIVIDUAL EXPERT IS PROVIDING. SO AN EXPERT CAN BE
OPINING IN A RELIABLE FIELD IN TOWNS END WERE PIER CIVIL CASE I THINK PROVIDES A
GOOD EXAMPLE YOU HAVE QUALIFIED EXPERT SOMEBODY WHO WAS QUALIFIED BY THE COURT ABLE
TO TESTIFY WINDOW THE OBLIGATIONS FOR MAINTAINING HEDGES BUT WENT BEYOND IT.
AND THAT'S WHEN THE NET OPINION RULE IS REALLY DEALING WITH MACKING SURE PEOPLE
OTHERWISE QUALIFIED OTHER CAUTIONS ARE ACTUALLY BASIS THE OPINION THEY ARE
RENDERING ON THE EVIDENCE AND THAT THEY ARE EXPLAINING THEM IN WAYS THAT DEMONSTRATE
THAT THEY ARE IN TABLET RELIABILITY. JUSTICE PATTERSON: YOUR CLASSIC NET
OPINION IN TOWNS END IS ONE OF COURSE YOUR CLASSIC NET OPINION IS I BELIEVE
THAT THE DEFENDANT WAS DEFENDANT WAS NEGLIGENT I BELIEVE THE PLAINTIFF WAS
CONTRIBUTE TOWER NEGLIGENT AND THAT'S ESSENTIALLY IT. IT'S THE CONCEPT OF NET
IS YOU JUST SAY IT SAY THE CONCLUSION AND THIS IS NOT A LOT OF EXPLANATION BUT IT
REALLY DOES DOVE TAIL THAT RULE DOES DOVE TAIL WITH RELIABILITY REQUIREMENTS
BECAUSE BOTH OF THOSE RULES REQUIRE THAT THE METHODOLOGY BE EXPLAINED AND THAT THE
-- IT BE GROUNDED THAT RELIABLE METHODOLOGY. CODY T. MASON: YEAH, I DO
AGREE YOUR HONOR THERE IS OVERLAP I THINK FOR PURPOSES OF THIS CASE THERE IS
A FAIR AMOUNT OF OVERLAP AND THE MAIN POINT THAT I WOULD POINT OUT THAT IS DIFFERENT
IN TERMS OF THE NET OPINION I THINK IS WHEN THE AGENT DAVID TESTIFIED ABOUT THE
TOWER THAT WOULD PROVIDE THE CLEAREST AND STRONGER SIGNAL. I THINK THAT'S PROVIDES
AM GOOD EXAMPLE HOW THESE RULES ARE DIFFERENT. THERE ARE MAJOR ISSUES
RELIABILITY RECEIPTING TO THE RANGE WHICH I CAN GET TO THAT WAS NOT ESTABLISHED BY
THE STATE. BUT THEN DETERMINING WHICH TOWER WOULD HAVE PROVIDED THE ELECTRONIC
EVIDENT SIGNAL. THAT WAS NOT PART OF THE RELIABILITY CHALLENGE AS MUCH AS MUCH AS THE
NET OPINION CHALLENGE BECAUSE HE IS TESTIFY I THINK THIS TOWER WOULD PROVIDE
THE STRONGEST SINAL THIS ONE HAPPENED TO BE A MILE AWAY AND HE PROVIDES NO
BASIS FOR IT. SO THAT IS A DIFFERENT ONE. THE NET OPINION RULE I THINK WHILE
THERE IS OVERLAP THE MAIN GOAL AS YOUR HONOR INDICATED IS TO WEED OUT THESE PINS
THAT AREN'T IN THE EVIDENCE OR METHODOLOGY. JUDGE SABATINO: PURELY PERSONAL
ASPECT NOT TO CONCLUSORY NO EXPLANATION PART BUT THE PERSONAL OPINION PART
WHICH YOU SEE IN POMERANTZ, DAVIS, TOWNS END, MOSTLY CIVIL CASES AS A THE EXPERT
CAN'T OPINE ABOUT THINGS THAT HAVEN'T BEEN ESTABLISHED ELSEWHERE IN THE FIELD AS
BEING RELIABLE WHICH THEN I AM INDICATES EITHER FRYE OR DAY PERIOD OF TIME BOASTED
PERIOD OF TIME YOU'RE LOOKING AT ARREST GENERALLY SUBJECTED OR IF WE USE-FACTORS,
THE PROCESS AND COUNT THAT'S A SEPARATE PEE PERSONAL OPINION. EVEN IF IT'S
WELL EXPLAINED, IF IT'S UNIQUE TO THAT INDIVIDUAL AND NOT TIED TO THE FIELD
THAT'S NOT GOING TO WORK EITHER RIGHT. CODY T. MASON: THAT YOUR HONOR
AND I DIDN'T MAKE THAT CLEAR ENOUGH. IF IT IS JUST A PERSONAL OPINION THAT
DOES NOT HAVE AN EXPLANATION WHICH IS WHAT YOU HAVE IN THIS CASE AS WELL. THAT
WOULD BE NET OPINION. BUT IN THIS CASE I AGREE THERE IS OVERLAP. REALLY THE MAIN
THRESHOLD ISSUE IS LIABILITY BECAUSE IF IT WAS UNRELIABILITY THEN HE DON'T REALLY
GET TO THE NET OPINION. IT WAS THE CLEARLY DEMONSTRATE RELIABILITY. SIMPLY
OF THE ARTICLES THROUGH JUDICIAL OPINIONS AND THEY FAILED ON EVERY ONE OF THOSE
POINTS. JUSTICE PATTERSON: AS A MATTER OF COMPARISON FROM YOUR READING
OF OTHER CASES AND FROM PERHAPS YOUR EXPERIENCE IN COURT THIS QUESTION OF
DISTANCE, HOW IS IT STABBED BY EXPERT WHO I'M NOT ASKING YOU TO WAIVE ANY OBJECTIONS
TO THE EXPERT'S TESTIMONY BUT WHO ARE WHAT YOU WOULD CONSIDER TO BE EXPERT WHO MEET
THE RELIABILITY THRESHOLD. CODY T. MASON: THAT'S EXACTLY WHAT I WANTED
TO TALK ABOUT, YOUR HONOR. SO THERE ARE DIFFERENT WAYS TO DO THAT. AND I THINK
THAT REALLY IS THE HEART OF THIS, THIS IS NOT A BROAD BASED CHALLENGE TO ALL
FORMS OF HISTORIC CELL SUITABLE ITS. THIS IS NOT A CHALLENGES TO DRIVE TEST.
THAT IS SOMETHING THAT CAN BE CUT HAD RELIABILITY. WITH THE CAVEAT THESE THE
RELIABILITY DEFENDANTS CAN BE. GAR A A FROM THE APPELLATE DIVISION. IF SOMEBODY
CONDUCTS A CORP TEMPORANEOUS TRY TEST IF THEY HAVE A CONTEMPORANEOUS PROPAGATION
MAP THAT'S VERY DIFFERENT. AND KIND OF GOING IN THE OTHER DIRECTION. IN TERMS
OF ESTIMATING INTERROGATION THOSE ARE WAYS TO DO THAT. IN TERMS OF WHAT THIS
TESTIMONY CAN OTHERWISE LOOK LIKE AND TRIAL COUNSEL MADE THIS CLEAR, HAVING AN
EXPERT OR A CAST AGENT COME IN AND SAYING A PHONE HIT OFF AN EFFECT TOWER IN A SPECIFIC
SECTOR AND THE DIRECTION, THAT'S ALSO NOT AT ISSUE HERE. THEY'RE ALLOWED TO
DO THAT. THAT IS NOT? DISPUTE. THE ONLY THING THAT'S IN DISPUTE THICK IS THE
RULE OF THUMB ESTIMATION WHICH IS NOT GROUNDED IN ANY SCIENTIFIC PRINCIPLES
OR EVEN LEGAL OPINIONS FOR THAT MATTER. CHIEF JUSTICE RABNER: SO THE AGENT
GROUNDS IT IN HIS TRAINING AND EXPERIENCE. BUT ADDS ONE MORE PIECE IF I UNDERSTAND
THE RECORD CORRECTLY THAT IS HIS EXPERIENCE IN THIS AREA, THE AREA OF ESSEX COUNTY.
WHAT'S THE IMPORT OF THAT IN TERMS OF OUR ANALYSIS MAY. CODY T. MASON:
I THINK THAT GOES MORE TO THE NET OPINION RULE. I THINK THAT GOES TO THE
PRINCIPLE THAT EXPERT TO HEY MAY HAVE EQUALSES CAN'T JUST WAIVE GENERALLY TOWARDS
EXPERIENCE AND KNOWLEDGE WITHOUT EXPLAINING IT. SO MAYBE WE WOULD BE IN A DIFFERENT
SITUATION IF HE SAID I'VE DONE ANALYSES OF THIS POWER BEFORE I'VE TEST IN ADDITION
SOMEWAY FROM MY OWN PERSONAL EXPERIENCE IT HAS ROUGHLY A MILE MAYBE THAT WOULD
AND LITTLE DIFFERENT AND WE WOULD HAVE A LITTLE MORE INDICATION AT LEAST WHAT THE
BASIS WAS BUT WE DON'T EVEN HAVE THAT. IN THIS CASE I BASIS IT ON MY EXPERIENCE.
I'M BASING ON MY KNOWLEDGE OF THE SELL NET WORTH NONE OF THAT IS BEING LAID
OUT IN DETAIL TIED TO THE RANGE ESTIMATION OR WHAT WHICH TOWER WILL BE PROVIDING
THE STRONGEST SIGNAL. JUSTICE PATTERSON: IS IT YOUR CONTENTION WITHOUT
EITHER PROPAGATION MAP OR DRIVE TEST OR BOTH THAT FORGET THE LANGUAGE RULE OF THUMB,
I UNDERSTAND THE ISSUE WITH THAT LANGUAGE. BUT AN EXPERT CANNOT IDENTIFY A
DISTANCE? AND IF THAT'S YOUR POSITION HAS ANY COURT HELD THAT, IN OTHER WORDS,
THIS HAS TO -- THESE ARE -- WITH WHICH ONE OF THOSE TWO IS ESSENTIAL TO ADMISSIBLE
EXPERT. I DON'T THINK. CODY T. MASON: I DON'T THINK THOSE ARENESS. I
THINK THOSE ARE TYPICAL. I DON'T THINK THE COURT NEEDS TO SET CLEAR GUIDANCE IN
TERMS WHAT SPECIFICALLY IS REQUIRED OTHER THAN WHAT METHODOLOGY NEEDS TO BE
EMPLOYED NEEDS TO ACT FOR ALL RELEVANT FACTORS. JUSTICE PATTERSON: EXCEPT
WHAT'S BEING SUGGESTED HERE IT IS DEFICIENT AND THERE ARE THESE TWO ALL TENTATIVE
WAYS PERHAPS USED TOGETHER THAT WOULD MAKE IT A RELIABLE OPINION AND WHAT I DON'T
SEE IN THE POSITIONS BEING TAKEN BY THE PARTIES HERE IS A CLEAR PRINCIPLE THAT
WOULD DISTINGUISH BETWEEN AN ADMISSIBLE OPINION AND AN INADMISSIBLE OPINION. ASSUMES
I THINK A LOT IS NATURE OF THE SCIENCE. TECHNOLOGY IS DEVELOPING I'M NOT AN EXPERT.
SO I CAN'T SAY THIS IS GOING TO BE THE BRIGHT LINE OF IT. AND HAVE -- HAVING
READ THESE DIFFERENT CASES AND THESE DIFFERENT ARTICLES I'M NOT SURE THAT
THERE ARE HARD AND FAST RULES OTHER THAN THE METHODOLOGY NEEDS TO BE DEMONSTRATED
AS RELIABLE AND IT NEEDS TO ACCOUNT FOR THESE FACTORS. JUSTICE
PIERRE-LOUIS: THERE COULD BE STITCHESES DENIAL PARTICULARLY IF THERE'S AN AREA
VERY HIGHLY POPULATED VERSUS A HEAR THAT'S NOT HIGHLY POPULATED. THERE'S SIGNIFICANT
DIFFERENCES BETWEEN THE ARE THE RANGE AND THE COVERAGE AREAS IN ESSEX COUNTY
CELL TOWERS I'M GUESSING WOULD BE VERY DIFFERENT FROM SALEM COUNTY CELL TEN
APPEAR CELL SITE ANALYSIS IN A CASE INVOLVING THOSE DIFFERENT AREAS. SO IT WOULD
BE DIFFICULT TO MAKE A HARD AND FAST RULE WITH REGARD TO EVERY SENDING I WILL
INDICATION WHAT SHOULD BE DONE TO DETERMINE EXACTLY WHERE THE COVERAGE WAS WHEN THE
PHONE IS BOUNCING OFF A PARTICULAR TOWER. CODY T. MASON: THAT'S RIGHT YOUR HONOR
AND I THINK THE OTHER WAY TO LOOK AT THIS AND MAYBE A LITTLE CLEAR IS THIS CASE
IS MADE LESS ABOUT SAYING WHAT CAN BE DONE AND WHAT CAN'T BE DONE. IT'S SETTING
THE FLOOR WHAT IS CLEARLY IMPERCENT FEBRUARY I BELIEVE INDICATE TO CASES THAT
SUPPORT THIS. MORE SUPERIOR SCIENTIFIC ARTICLES ABOUT THIS, YOU CAN'T JUST USE
A UNIFORM DISTANCE AND SAY THAT THIS IS ALL ONE MILE, YOU CAN'T USE A UNIFORM
SYMBOL TO DEMONSTRATE THAT THIS IS WHAT THE RANGE IS BECAUSE THAT DOESN'T ACCOUNT
FOR THE RELEVANT FACTORS, IT DOESN'T ACT ARE THE CASE SPECIFIC. JUSTICE
PATTERSON: IF THE EXPERT DID NOT USE THE RULE OF THUMB TERMINOLOGY AND CAME IN
AND REALLY SAID THE SAME OPINION BUT COUCHED IN A DIFFERENT WAY SAYING I'VE ABDOMINAL
LICE HAD ESSENTIAL COUNTY I'VE LOOKED AT THE TOPOGRAPHY ALL OF THIS, ET CETERA.
FORGET USING PROPAGATION MAPS OR DRIVE TESTING BUT HAD DONE AN ANALYSIS AND
BASED UPON MY TRAINING EXPERIENCE AND MY ANALYSIS AND MY FAMILIARITY WITH THIS
AREA AND MY KNOWLEDGE OF THE CELL TOWERS AND LOCATION IT IS MY OPINION WITHIN A
REASONABLE DEGREE OF SCIENTIFIC CERTAINTY THAT THE RANGE OF ONE MILE IS A GOOD
APPROXIMATION OF THE DISTANCE THAT -- CODY T. MASON: IN THE HYPOTHETICAL
THE EXPERT WOULD BEING FOR ALL THESE DIFFERENT MEASUREMENTS THE HEIGHT.
JUSTICE PATTERSON: MORE DETAIL. SEE WHAT I'M SAYING IS THE PROBLEM HERE THIS
RULE OF THUMB WHICH IS REALLY TO ME NOT VERY CLEAR AS TO WHETHER IT'S ALL CASES
BUT THIS RULE OF THUMB LANGUAGE OR IS THE PROBLEM HERE THAT THE SOME FACTORS
THAT SHOULD HAVE BEEN CONSIDERED WERE NOT. CODY T. MASON: SO I THINK IT IS
INCREDIBLY DIFFICULT A THAN I WOULD UPON THE ARTICLES FROM HIGH TRIP PIER REVIEWED
ARTICLE ON THIS TOPIC. THAT DOES TALK ABOUT THE I DID I OF SOMEBODY DOING
ESSENTIALLY A HANDLE ANALYSIS. I'M NOT GOING TO SAY THAT'S IMPOSSIBLE. SOMEBODY
PROBABLY COULD YET ALTHEA DURATIONS AND BE ABLE TO SAY THAT. THAT'S NOT OBVIOUSLY
NOT THE CASE HERE. HE DIDN'T TAKE ANY MEASUREMENTS REGARDING THE PARK WAY STORY
OR ANY OF THE OTHER TOWERS. BUT IF SOMEBODY CAME IN AND SAID I HAVE THE MEASUREMENTS
OF THE TOWER. I TALKED TO THE PHONY KNOW THE DIRECTIONAL ARRAY. I KNOW I
ACTED FOR THE TRAIN AND SOME WHO HOW THEY'RE ABLE TO DEMONSTRATE THAT THAT IS
RELIABLE. I THINK THAT COULD BE OKAY. SO THERE'S DIFFERENT WAYS. IT'S A
EVOLVE FIELD. BUT ULTIMATELY THE BASELINE IS THAT THEY NEED TO ACCOUNT FOR THESE
FACTORS AND I THINK WHY THAT DOESN'T HAPPEN. I'VE NEVER SEEN A CASE WHY SOMEBODY
DID TO TO THAT SORT OF HANDLE ANNUAL ANALYSIS. EASIER TO USE A DRIVE TEST
OR PROPAGATION MAP THAT NECESSARILY TAKES THOSE FACTORS INTO ACCOUNT. JUDGE
SABATINO: WAS THE OPINION NECESSARILY PREJUDICIAL TO THE DEFENDANT IN THIS
RESPECT? AND MAYBE I'M MISCONCEIVING WHAT I SAW IN THE POWER POINT SLIDES. IT LOOKS
LIKE NOT ONLY THE PARK WAY TOWER BUT THERE'S TWO OTHER TOWERS THAT APPEAR TO
BOTH BE WITHIN A MILE AS WELL. UNLESS I'M WRONG ABOUT THAT INFERENCE, IT SEEMS
LIKE THAT'S THE CASE. SO HOW INHERENTLY PRIM INDICATING WAS IT AND THE DEFENSE
DID SAY WELL THESE OTHER TOWERS ARE JUST AS CLOSE AS WELL. SO IT'S NOT PARTICULARLY
INFORTIFY. WHAT WAS THE HARM IN ISOLATING THIS TOWER VERSUS THE OTHER TWO.
CODY T. MASON: OH THE HARM OF ISOLATING THIS PARTICULAR TOWER HIS TESTIMONY IS WHEN
WHAT IS NOT SUBSTITUTED MR. BURNEY'S PHONE HIT OFF THIS TOWER IN THIS PARTICULAR
SECTOR THAT'S ALMOST A MILE AWAY. THE TESTIMONY IS A BIT UNCLEAR EXACTLY HOW
FAR BUT EITHER THREE QUARTERS OR BASICALLY A MILE. SO WE HAVE THAT PIECE AND
THEN THE EXTRA LAYER THAT ADDS ONTO IT YES, THIS IS THE THIRD CLOSEST TOWER OR MAYBE
EVEN FARTHER THAN THAT. BUT I STILL THINK HE COULD HAVE BEEN IN THAT HOME AND STILL
BEEN USING THAT TOWER. SO THE HARM OF ALL OF THIS IS IN A CERTAIN WAY REBUTTING
THE SIGNIFICANCE OF THE FACT THAT THERE WERE TWO CLOSER TOWERS. AND DEFENSE
COUNSEL THE POINT THAT OUT. BUT ULTIMATELY HE TESTIFIED THAT IT WOULD BE VERY,
VERY UNLIKELY OR HIGHLY HIGHLY UNLIKELY THAT THIS WOULD FALL OUT OF RANGE. THIS
IS REALLY SIGNIFICANT IN IN THIS CASE BECAUSE THIS IS THE ONLY OBJECTIVE PIECE OF
INFORMATION THAT PLACES HIM EVEN NEAR THE CRIME SEEN AND ULTIMATELY IF YOU WERE
TO VIEW THIS -- JUSTICE WAINER-APTER: WHAT ABOUT THE DNA EVIDENCE I FELT
THIS WAS A BAG DOES COULD BAG THAT THE VIM NOTICED ON THE STAIRWELL OF HER
APARTMENT IMMEDIATELY AFTER THE I AM TOOK POLICE TOOK THE BAG AND TESTED IT AND HAD
DEFENDANT'S DNA ON IT. CODY T. MASON: THERE WAS THE BAG. WE DON'T
KNOW HOW LONG IT WAS IN THERE AND THERE WAS NO DISPUTE THAT HE DID PREVIOUSLY WORK
IN THE HOME AT SOME POINT. JUSTICE WAINER-APTER: SHE TESTIFIED THAT SHE
STATED THE SHE CALLED THE POLICE THE NEXT DAY BECAUSE THE BAG ALL OF A SUDDEN WAS
THERE. SHE HAD NEVER NOTICED THE BAG BEFORE AND SHOVELS THERE WAS A BAG ON
HER STAIRWELL. CODY T. MASON: SHE NOTICED IT THE NEXT DAY. NOBODY NOTICED
IT THE INITIAL WALK THROUGH. THERE WAS TESTIMONY FROM THE CRIME SCENE ANALYST.
SHE POINTED OUT EVERYTHING THAT WAS THAT WAS NOT COLLECTED. JUSTICE
WAINER-APTER: I THOUGHT IT WAS SOMETHING IN THE STAIRWELL UP TO THE APARTMENT.
CODY T. MASON: I BELIEVE IT WAS NEAR THE DOOR WITH SOME OTHER BAGS NEXT TO IT. I
BELIEVE THE TESTIMONY ALSO SHOWS THAT THE AREA WAS A LITTLE CLUTTERED AS WELL.
BUT ULTIMATELY IT IS EVIDENCE BUT IT'S NOT OVERWHELMING EVIDENCE AND I THINK
YOU CAN EVEN SEE THAT. JUSTICE PATTERSON: HOW DOES THAT FACT THAT YOU
WERE JUST TALKING ABOUT HELP HIM BECAUSE IF THE THEORY IS THAT HIS DNA -- A BAG WITH
AN DNA WAS WORKED ON THE APARTMENT HISTORICALLY THEN THE BAG WAS THERE
THROUGHOUT. THERE'S NO SUGGEST THE BAG WAS PLANTED THERE WITH HIS DNA. IT'S
IT WAS EITHER THERE IMMEDIATELY -- DURING THE ROBBERY OR IT WAS THERE EARLIER.
CODY T. MASON: I THINK THAT'S RIGHT. THE ARGUMENT WAS THERE WAS AGAIN
NO TESTIMONY WHAT TESTIMONY ABOUT ANYONE SEEING THIS BAG DURING THE ROBBERY.
SO THE STATE'S ARGUMENT WAS THIS BAG THAT THEY NOTICED MAYBE THAT WAS BROUGHT
THERE. AND MAYBE THAT'S WHAT HE USED TO HIDE THE GUN. NOBODY TESTIFIED TO THAT.
AND THE BETWEEN COUNTER TO THAT WAS HE WORKED IN THE FOAM. I 15 DEFENSE
COUNSEL SAID THE BAG SMELLED LIKE PAINT. THERE WAS OTHER PEOPLE DNA ON IT THAT
THEY COULDN'T IDENTIFY IT. AND THERE'S NOT SOMETHING THAT THE STATE HAS SOME
RELEVANCE NOT SOMETHING THAT ULTIMATELY MADE UP A BIG PART OF THE MACHINE. CHIEF
JUSTICE RABNER: WHAT ABOUT THE PRINCES WATCH, THE PHOTO OF THE PRINCES PHOTO.
THE TESTIMONY COMPARISON CLICKING SOUND THAT HEARING. CODY T. MASON: I WANT
TO CLARIFY A FEW THINGS ABOUT THE WATCH. BUT I THING THERE IS DISCREPANCIES
BETWEEN THE BRIEFING AND THE APPELLATE DIVISION AND THE TRANSCRIPT. THE
FIRST THING I WANT TO SAY THOSE PHOTOS WERE NOT TAKEN DURING THE ROBBERY. THE
APPELLATE DIVISION SAID THAT, I THINK THE STAYED SAID THAT IN THEIR BRIEF. BUT IF YOU
LOOK ATTICLY PAGES TWO '05 TO TWO '06 OF THE 13 TRANSCRIPT AND I HAVE ADDITIONAL
CITES THAT ARE IN THE BRIEF AS WELL ON THIS. THE INITIAL DIRECT EXAMINATION
OF THE OFFICER THAT DID THE CELL PHONE EXTRACTION WAS A BIT UNCLEAR WHICH
PHOTOS SHE WAS TALKING ABOUT TAKEN AT WHICH TIMES. THE ONES SHE WAS TALKING ABOUT
TAKING DURING THE ROBBERY OR AT THE TIME OF THE ROBBERY WERE THESE BLURRY BLACK
PHOTOS. IT WAS NOT THE WATCH. THE WATCH WAS TAKEN THEY SAID THEY WERE CREATED
ON THE 26, I BELIEVE THE 27 AND 29. SO THOSE WERE DIFFERENT. THE WATCH
ALSO WAS NOT ORIGINALLY -- IT WAS NOT REPORTED STOLEN. YOU KNOW, THERE WERE
MENTION ABOUT HIS CREDIT CARDS AND KINDLES, SPECIFIC JEWELRY PENNSYLVANIA.
JUSTICE PATTERSON: BUT IF YOU RAILROAD -- IF YOU LOOK AT THE TESTIMONY ABOUT HEARING
THE CLICKING SOUND AND THE THREE WOMEN WERE IN THE OTHER ROOM AND SOME PHOTOGRAPHS
THEN APPEAR ON HIS CELL PHONE OBVIOUSLY THEY WERE ALL BLACK PHOTOGRAPHS, THEREFORE,
SOMETHING WENT WRONG NEVERTHELESS PHOTOGRAPHS WERE TAKEN AT THE RIGHT TIME
FRAME. AND THEN YOU HAVE A WATCH IDENTIFIED BY THE VIM AS HERS WHICH EVEN IF THE
PHOTOGRAPHS ARE TAKEN WITHIN A COUPLE DAYS THERE AFTER MATCHES, CONNECTS HIM,
HIS CELL PHONE, THE PRESENTLY OF HIS CELL PHONE TO THAT LOCATION ON THE 25,
DOESN'T IT. CODY T. MASON: SO I THINK THERE'S A FEW DIFFERENT PARTS OF
THAT. IN TERMS OF THE WATCH ITSELF, IT WAS NOT REPORTED STOLEN. SHE DREW A PURE
AVENUE NECKLACE AND MENTIONED OTHER ITEMS. SHE SAID SHE TALKED TO THE POLICE OTHER.
THE WATCH INSIST NEVER MENTIONED IN WILL THIS IDENTIFICATION. THERE WAS THE
ISSUE ABOUT WHETHER HER FATHER MAY HAVE GIVEN THEM ITEMS FROM THE HOME
PREVIOUSLY THAT DIDN'T COME IN. THERE WAS AN OPEN QUESTION ABOUT DEFENSE COUNSEL
MADE ABOUT THAT. JUSTICE WAINER-APTER: THAT THE FATHER GAVE DEFENDANT
THE WATCH. CODY T. MASON: SO THE PRINCES I ALSO WANT TO CLARIFY THAT IS THE
BRAND. IT'S NOT ENGRAVING IS MY UNDERSTANDING IT'S JUST A BRAND CHAIRMAN
WATCHES. I THINK THE STATE MENTIONS IN THEIR BRIEF BEING DISTINCTIVE. I DON'T THINK
THERE'S ANY TESTIMONY THAT ACTUALLY SPORTS OF THAT. I THINK IT'S JUST THE BRAND
OF WATCH. GIVEN TAKE SHE SIDE FOR IDENTIFICATION IT WHERE IT CAME FROM,
EVEN IF YOU WERE TO INFER THAT THERE WAS, THAT HE HAD SOME INVOLVEMENT. THAT'S
RECEIVING STOLEN PROPERTY. THAT'S MAYBE SOME OTHER, YOU KNOW, IMPLICATION.
JUSTICE PATTERSON: YOU DON'T THINK THERE WAS AN INFERENCE THAT COULD BE DRAWN A
REASONABLE INFERENCE THAT COULD BE DRAWN BY THE JURY THAT WHEN -- AND I UNDERSTAND
YOUR DISPUTING WHAT SHE SAID ABOUT IT BUT IF HER WATCH SHOWS UP ON HIS CELL PHONE
NAP PHOTOGRAPH TAKEN WITHIN A COUPLE DAYS FOLLOWING THIS ROBBERY IT WAS STOLEN
DURING THE ROBBERY, NOT A MATTER OF RECEIVING STOLEN PROPERTY. CODY T.
MASON: SO I THINK IF YOU ASSUME THAT IT'S STOLEN IT STILL DOES NOT NECESSARILY
PLACE HIM THERE BECAUSE THEY WERE TAKEN THE NEXT DAY. WE STILL HAVE THE OTHER
CIRCUMSTANCE WILL AN AGAIN I'M NOT DUETTING THIS IS RELEVANT THAT THE JURY.
CHIEF JUSTICE RABNER: PHOTOS WERE TAKEN NEXT DAY IS YOUR POINT. CODY T. MASON:
YES. CHIEF JUSTICE RABNER: WEREN'T YOU POTENTIALLY LOOKING FOR VALUE OF THE
WATCH. CODY T. MASON: THE SEARCHES WERE A LITTLE ODD SALES PRICE FOR IT.
SEARCHES FOR SUNGLASSES WHICH WAS NOT SOMETHING THAT WAS STOLEN. A LOT OF
OTHER PICTURES. CHIEF JUSTICE RABNER: WAS THE WATCH BAND TORE BOX FOR
THE WATCH THAT THE WITNESS PROVIDED TO THE POLICE HOW LONG AFTER WAS THAT. CODY
T. MASON: THAT WAS IN -- SO SHE WENT IN AND SPOKE WITH THEM IN JANUARY I THINK ABOUT
A MONTH LATER. BUT ULTIMATELY THIS IS CIRCUMSTANTIAL. I THINK CLICKING NOISE.
I THINK THE CELL PHONE RECORDS ARE REALLY SIGNIFICANT ON THIS POINT. THERE ARE
SOME THINGS THAT MATCH UP. WHAT DOES ROSETTE AND SAMANTHA TESTIFIED TO
HEARING HIM MAKING A PHONE CALL. THEY HEARD THE INTRUDE OTHER MAKE A PHONE
CALL. ROSETTE AT PAGE 33 AND 37 AT THE 11 TRANSCRIPT SHE HEARD THE PHONE ANNOUNCE
A PHONE SEED SHE HAD HEARD A PERSON WAS CALLING AND TALKING TO SOMEONE MEANING
HE QUOTE MUST TEXT MESS AGED OR CALLED SOMEONE. THE SAMPLE THAT HAPPEN
LIKEWISE TESTIFIED AT PAGE 35. JUSTICE WAINER-APTER: CAN YOU READ THAT I
THOUGHT IT WAS SOMEONE HAD CALLED HIM NOT. CODY T. MASON: HER TESTIMONY WAS
EITHER HE GOT A CALL OR HE CALLED SOMEBODY BUT SHE HEARD HIM MAKING OR RECEIVING
A PHONE CALL WHICH IS NOT REFLECT IN ADDITION MR. BURNEY'S PHONE CALL.
JUSTICE PATTERSON: WASN'T THERE ANNOUNCE. ON THIS PHONE CALL FROM X PERSON VERBAL
ANNOUNCE. THAT WAS CONSISTENT WITH THE TIME OF A RECEIVED PHONE CALL ON THAT
PHONE. CODY T. MASON: THERE WAS A TEXT MESSAGE. HE HAD A TEXT MESSAGE
AT EIGHT OH TWO ON HIS RECORDS. JUSTICE PATTERSON: DO WE KNOW WHETHER
HIS PHONE WOULD HAVE ANNOUNCED A TEXT MESSAGE. CODY T. MASON: WE DON'T
REALLY KNOW MUCH ABOUT THIS PHONE AND WE HAVE THE TESTIMONY FROM DETECTIVE ALFONSO
THAT HE HEARD IT BUT THAT WASN'T REPRODUCED IN FRONT OF THE JURY. THERE'S
NO INDICATION THAT ANY OF THE WITNESSES WERE ACTUALLY MADE TO HEAR THAT ANNOUNCE.
OH JUST BASICALLY SAID IT ANNOUNCED SO IT MUST BE SIMILAR. BUT IN TERMS OF THE
ACTUAL ANNOUNCEMENT. THE REAL SIGNIFICANCE HERE IS THAT SAMANTHA AND ROSETTE
SAID THERE WAS A TEXT MESSAGE AND A CALL. THEY SAID THEY HEARD HIM TALKING
TO SOMEBODY AND THE PHONE RECORDS DO NOT REFLECT A CALL. THEY ONLY REFLECT A TEXT
MESSAGE SO I THINK WHEN WE WERE TALKING ABOUT THE CLICKING NOISES AND THERE'S
STREP IS ABOUT HOW MANY CLICKS THERE WERE BUT I THINK THE MOST SIGNIFICANT
THINK TWO OUT OF THREE OF THE WITNESSES THE ONLY TWO THAT MENTIONED THIS BECAUSE
TAFFY CALM APPEAR OH DIDN'T MENTION IT. THE ONLY TWO PEOPLE THAT MENTIONED THIS
ORIGINALLY SAID THAT THERE WAS A TEXT AND A CALL AND THERE WAS NO CALL MR.
MR. BURNEY'S PHONE RECORDS. THAT I THINK IS MORE POWERFUL THAN THE ADDITIONAL
WHATEVER WEIGHT MIGHT BE BEGIN TO THE WATCH WHICH AGAIN WAS NOT TAKEN DURING
THE ROBBERY, WAS NOT REPORTED STOLEN. THE DNA WHICH COULD NOT BE DATED. THE STATE'S
EXPERT SAID THE SAME THINK. COULD HAVE BEEN MONTHS, COULD HAVE BEEN WEEKS
OLD. WE HAVE NO IDEA WHERE THAT BAG CAME FROM. SO ULTIMATELY THERE WAS
ADDITIONAL EVIDENCE THAT UNDER CUT THAT. JUSTICE WAINER-APTER: WAS THERE
TESTIMONY OR A PHOTO OF THE AREA THAT WAS CLUTTERED SUCH THAT THE BAG COULD HAVE
BEEN THERE FOR A MONTH AND SHE NEVER WOULD HAVE NOTICED IT. CODY T. MASON:
THERE WERE PHOTOS OF IT. I HAVE NOT SEEN THE PHOTO BUT THE TESTIMONY WAS ESSENTIALLY
THAT THERE WERE SEVERAL BAGS IN THE AREA. AND SOME OF THE APARTMENT WAS CLUTTERED
ALTHOUGH SOME OF IT WE POTENTIALLY RELATED TO THE ON ROBBERY. OVERALL THE
APARTMENT WAS CLUTTERED AND TROOPER MOUNT HOLLY BAGS NEAR THE FRONT DOOR AND
IT WAS NOT SOMETHING THAT WAS FIRST I'D BIDE BY THE SIMS. JUSTICE WAINER-APTER:
WHO WAS TESTIMONY WAS THAT. CODY T. MASON: DETECTIVE ALFONSO'S TESTIMONY
WAS ABOUT THE OVERALL CLUTTER AND I BELIEVE IT OFFICER OR DETECTIVE BROWN CAGE WHO
WAS THE CRIME SCENE INVESTIGATOR. JUSTICE WAINER-APTER: WHEN YOU SAID JUST
NOW IT WASN'T I'D FIGHT WINDOW THE VIM IT WAS ROSETTE CALLED THE NEXT DAY AND
SAID ALL OF A SUDDEN THERE'S THIS BIG AND I'VE NEVER SEEN THIS BAG BEFORE COME
GET THIS BAG MISS I JUST MEANT THE DAY OF THE ROBBERY IT WAS IN ORDER IDENTIFY.
THAT'S WHEN THE INITIAL SWEEP THROUGH WENT THROUGH AND THAT'S WHEN THEY SELECTED
ALL THESE ITEMS. AND IN ADVERTISE OF THE DNA AMONG THE ITEMS THAT WERE
RECOVERED THAT NIGHT WERE THE ITEMS THAT WERE ACTUALLY TOUCHED BY THE INTRUDE OTHER.
YOU'RE THE THREE DIFFERENT ITEMS THAT WERE USED TO TIE UP THE VIALS. THERE'S
MULTIPLE PURSINGS, MULTIPLE ITEMS THAT WE KNOW ACTUALLY TOUCHED AND THE STATE JUST
DIDN'T TEST THEM. THE STATE'S PERIOD OF TIME CONCEDED THERE COULD HAVE BEEN
DNA ON THEM. THE ONLY THING WE HAVE IN TERMS OF REAL DNA ANALYSIS. THE ONLY
THING WE HAVE CREASE. THEORY ABOUT IT. THEY DID TESTIFY THAT THEY HADN'T NOTICED
IT PREVIOUSLY. JUSTICE PATTERSON: NONE THE LESS. THIS WHOLE DISCUSSION
TARTED BECAUSE YOU WERE SAYING THERE WAS NO OTHER PHYSICAL EVIDENCE AND YOU'VE GOT
DNA IN THE VICINITY AT APPROXIMATELY THE RIGHT TIME PERIOD, YOU CAN OBVIOUSLY MAKE
ARGUMENTS ABOUT WHAT IT DOES OR DOESN'T MEAN BUT IT IS PHYSICAL EVIDENCE THAT
IS INCRIM CALCULATING NO DYSTONIAS PLACE SO THERE IS CIRCUMSTANTIAL EVIDENCE.
THAT'S MANLIER POINT ABOUT THIS. THERE WAS EVIDENCE BUT THIS IS CIRCUMSTANTIAL
AND THE TWO MOST SIGNIFICANT AND REALLY ONLY DIRECT PIECE OF EVIDENCE PLACING HIM
IN THE HOME DURING THE ROBBERY AS OPPOSED TO SOME OTHER TIME WITH IS NOT? DISPUTE
WAS THIS IMPROPER CELL PHONE TESTIMONY AND THEN THE IN COURT IDENTIFICATION
SAMPLE SAAB COMING BACK TO THE YET TOWER REALLY FAMILIAR WITH THE HE WILL NOW
PSYCHIATRY OPINION. AND THE STATE AND ANY A G IF I HAVE IT RIGHT ARGUED THAT IN THIS
CASE WHERE THE TRIAL COURT APPLIED THE OLD FRYE STANDARD THAT THAT IS THE STANDARD
IN THIS HEARING THIS APPEAL MATTER SHOULD USE AND THAT THE JUDGE MADE A CORRECT
RULING LOOKING TO THE CASE LAW IN OTHER STATES AND SO ON. I WASN'T SURE ABOUT
THE PUBLIC DEFENDERS POSITION ABOUT AS A MATTER OF LAW. WHAT STANDARD SHOULD WE
BE USING NOW AND IF THE STANDARD HYPOTHETICALLY IS-AND NOT FRYE AT A
MINIMUM NUMBER SHOULDN'T THE STATE BE ALLOWED TO HAVE A REMAND TO PERMIT THE
TRIAL COURT TO AN EMPLOY THE NEWLY ANNOUNCED STANDARD. CODY T. MASON:
I DON'T HAVE A FIRM POSITION I THINK THE LANGUAGE OF ELEVATOR SHOWS THAT IT
DOES NOT APPLY A HEAR. IT SHOWS THAT HAPPEN GOING FORWARD DOES NOT DISTURB PRIOR
RULINGS UNDER FRYE. THIS IS A PRIOR RULING RESPECTED FRYE SO I DON'T BELIEVE
IT APPLIES ULTIMATELY I DON'T THINK IT MAKES A DIFFERENCE BARSTOOL NOW PSYCHIATRY
IS AND NATURED SAME PRINCIPLES RELIABILITY AS ANIMATED FRIDAY. HE WILL NOW
PSYCHIATRY AS I UNDERSTAND IT PROVIDES ADDITIONAL GUIDANCE WHICH THIS COURT SAID
IS NEITHER NECESSARY OR NEITHER NECESSARY DISPOSITIVE. JUDGE SABATINO:
IN THIS ONE MILE RULE OF THUMB CONTEXT YOU WENT UNDER EITHER STANDARD YOU SAY
AND IT'S NOT NECESSARY IN THIS CASE PERHAPS FOR THE COURT TO REACH QUESTIONS OF
PIPE LANNERET ACTIVITY FOR EXAMPLE BECAUSE IT'S SO OBVIOUS IN YOUR PERSPECTIVE
THAT THE EXPERT WENT A STRAY. CODY T. MASON: THAT'S CORRECT, YOUR HONOR,
I DON'T THINK IT MAKES ANY DIFFERENCE BECAUSE THE RECORD IS SO LACKING IN TERMS
OF RELIABILITY. AND WE MOVE PAST THIS BUT TO JUST BRIEFLY TALK ABOUT IT. IN
TERMS OF THE TESTIMONY, THERE ISN'T EVEN A CLAIM THAT THIS IS RELIABLE OR HAS BEEN
TESTED. THERE'S NOT EVEN TESTIMONY WHERE THIS RULE OF THUMB COMES FROM OR
IF OTHER JACKS. TALKS RELIABILITY EVIDENCE TESTED AND I AM PIER KAYLIL DATED.
THERE'S NOTHING ABOUT THAT IN THIS CASE. WHAT THE TESTIMONY DOES SHOW THIS IS NOT
RELIABLE. BECAUSE AGENT DAVID HIMSELF TESTIFIED AT PAGE I BELIEVE 16 OF THE
FOURTH TRANSCRIPT THAT IT'S NOT REALLY TRANSCRIPT TO MAKE A RANGE ESTIMATION
WITHOUT USING EXCEPT. HE ALSO RECOGNIZED THERE WERE OTHER METHODS AS DISCUSSED
WITH JUSTICE PATTERSON WHERE THIS CAN BE RELIABLY DETERMINED AND JUST DIDN'T EMPLOY
THEM. HE DIDN'T PROVIDE ANY INFORMATION. HE SAID HE DIDN'T THINK A PROPAGATION
MAP WOULD MAKE THAT MUCH OF A DIFFERENCE. HE'S KNOWLEDGE CAN IT WOULD MAKE
SOME DIFFERENCE. JUSTICE WAINER-APTER: GIVEN THOUSAND SKILLFULLY HE WAS
CROSS-EXAMINED ON THE LIMITS OF HIS METHODOLOGY AND ANALYSIS WHY WAS THAT
NOT SUFFICIENT. CODY T. MASON: THAT WAS NOT SUFFICIENT BECAUSE AS THIS
COURT RECOGNIZED JARS ARE LIKELY TO CREDIT EXPERT TESTIMONY EVEN IF IT IS
UNRELIABLE AND IF IT IS AFFECTED BY EFFECTIVE CREDITS. IN IS IT THE PICKET THE APPELLATE
DIVISION TALKED ABOUT EXTREME RISK UNRELIABLE EXPERT TESTIMONY BEING ACCEPTED
NEITHER BY THE FACT ANOTHER MERELY BY EXPERT. IN JEFFERSON IN TONS END THIS
CASE IS AGAIN AND AGAINST RECOGNIZES THIS CARRIES SIGNIFICANT WEIGHT WITH JURORS
AND AGAIN WOULD CARRY ADDITIONAL WEIGHT BECAUSE IT'S NOT COMING FROM AN EXPERT IT'S
COME FROM A FBI AGENT WHO IS GOING TO CARRY MORE WEIGHT. OUR COURTS HAVE RECOGNIZED
MORE LAW ENFORCEMENT ARE MORE INCREASED FBI IS EVEN MORE SO. SO IT WAS LIKELY
TO BE CREDITED BY THEM AND IT WAS JUST INHERENTLY UNRELIABLE. THERE ARE A
NUMBER OF DIFFERENT ARTICLES WE CITE. I DON'T THINK THEY'RE REALLY ESSENTIAL
PAUSE ULTIMATELY THE BURDEN WITH AS ON THE STATE AND THEY DIDN'T PRESENT AN AS I GO
HE WILL ART ON THE TRIAL -RT SUGGESTING THIS IS RELIABLE BUT I WOULD JUST POINT YOUR
HONOR TO THE ONE ARTICLE I THINK IT'S A REALLY DETAILED EXPLANATION WHY THIS
IS INAPPROPRIATE. PUTTING ON PAGES 25 AND 26 OF OUR SUPPLEMENTAL APPENDIX VERY
CLEARLY SAY ESTIMATES ARE BASED ON PHONE RECORDS BASED ON THE LOCATION OF THE SECTORS
CARRIED THE CALL ARE INORIENTATION ARE INHERENTLY UNRELIABLE. SHAPE AND INHERENTLY
THE DEFRAUD PRACTICE WITH NO BASIS IN ASSISTANCE. THAT'S WHAT YOU HAVE HERE.
THE STATE HASN'T PUT FORWARD ANY AUTHORITY TO PUT FOR THE EARTH THIS SITUATION.
THE COURT THAT DOES UNRELIABLE. WE TALKED BRIEFLY ABOUT THE CASE UNTIL
I NEVER GOT BACK TO UNTIL RIGHT NOW. TRIAL COURT RELIED ON JUDICIAL OPINIONS
AGAIN TO MENTION POST CONVICTION RELIEF. NJLG. THAT IS GENERALLY A RED FLAG.
PICKET NOT STACK PACED ON REPETITION OF AUTHORITY: THE OTHER PUTS RELIABILITY
ABOVE WHAT OTHER, DO. BUT EVEN THE CASE LAW HERE DOESN'T SUPPORT THE CASE LAW
TESTIMONY. MOST OF IT FOCUS ON THE FOR THE GENERAL CELL SITE ANSWER SILLS. SUCCESS
TOWER AND SECTOR USED DIFFERENT METHODOLOGY AND THE FEW CASES THAT TALK ABOUT
RANGE ESTIMATES SHOW THIS IS UNREAL. UNITED STATES VERSUS MA CHAT OH AND RAS
OH. US VERSUS EFFICIENT ANSWER. JUSTICE PATTERSON: THE MAJORITY OF THE CASE
LAW ABOUT RANGE ESTIMATES SAYS IT IS WHAT IS UNRELIABLE. CODY T. MASON:
THIS TYPE OF GUESS, GUESSWORK BASICALLY WITHOUT TAKING INTO ACCOUNT THESE
DIFFERENT FACTORS THAT YOU CAN'T DO. JUSTICE PATTERSON: WHEN YOU SAY THIS,
YOU'RE TALKING ABOUT THE RULE OF THUMB. CODY T. MASON: YES. JUSTICE
PATTERSON: THE RULE OF THUMB BECAUSE AS I UNDERSTAND IT ALMOST ALL OF THE FEDERAL
COURTS AND MOST OF THE STATE COURTS GENERALLY HAVE FOUND OBVIOUSLY USING
DIFFERENT STANDARDS HAVE FOUND THIS TO BE PROPERLY PRESENTED TESTIMONY TO BE
RELIABLE. CODY T. MASON: AND I THINK THAT IS SORT OF CAVEAT, PROPERLY
PRESENTED. JUSTICE PATTERSON: BUT IT'S EASY TO FIND CASES SAYING GUESSWORK
IS RELIABLE. THEY ALL SAY THAT. THE ISSUE HERE WE HAVE IS A LITTLE MORE DIFFICULT
THAN THAT. THAT IS LEAVING ASIDE HIS COMMENT ABOUT A RULE OF THUMB, WAS WHAT
HE PRESENTED WAS THE TRIAL COURT CORRECT IN AN EVIDENTIARY DETERMINATION UNDER RULE
SEVEN OH TWO IN FINDING THAT THE EVIDENCE THAT HE PRESENTED WAS RELIABLE.
CODY T. MASON: IT WAS INCORRECT AND BECAUSE THE JUDICIAL OPINIONS FACTOR IN LESS
SIGNIFICANT. BUT THOSE CASES, I THINK THEY DO END UP BEING A LITTLE CONFUSING
AT TIMES BECAUSE THEY TALK ABOUT USING HISTORICAL CELL SITE ANALYSIS TO
APPROXIMATE THE GENERAL AREA WHERE A PHONE MAY HAVE BEEN. BUT WHAT THEY'RE TALKING
ABOUT THE VAST PACKET OF CASE. JUST THE TOWER AND SECTOR. BASICALLY BEING ABLE TO
SAY IT HIT OFF THIS TOWER. WE DON'T KNOW WHAT THE RANGE IS, WE DOESN'T KNOW WHERE
IT IS. IT'S IN THIS APPROXIMATE GEOGRAPHIC LOCATION. THE LARGER AREA. WHAT
IS THE MORE NARROW AND RELEVANT SERIES OF CASE WHERE THE ONES WHERE YOU HAVE
A CAST AGENT COME IN AND SAY THIS TOWER HAS THIS RANGE AND THAT WILL INFORM THE
DECISION OF CONTACTUALLY WHERE THIS PHONE MAY HAVE BEEN. AND THAT'S ONLY A FEW
CASES. THE ONE CASE SAID THAT ONE FORM WAS OKAY BUT THAT WASN'T EVEN THE FORM
HERE. IN THAT CASE YOU HAD A CAST AGENT USING AN ESTIMATION WHERE YOU JUST
WENT BY 50 TO 70 PERCENT OF THE DISTANCE FROM THE NEXT NEAREST TOWER. I THINK THAT'S
SIGNIFICANT BECAUSE THAT'S CONSISTENT WITH THE FBI TRAINING THAT WE APPENDED
WHICH I BELIEVE DATED IN 2019. BUT THAT WASN'T EMPLOYED HERE AND WHAT'S ALSO
SIGNIFICANT IF YOU WERE TO EMPLOY IT HERE, THE HOME IN THIS CASE WOULD HAVE BEEN
OUT OF RANGE. BECAUSE WE WERE TALKING ABOUT IT BEING AT LEAST A QUARTER MILE AWAY.
USING THIS ONE FORM OF SORT OF A RULE OF THUMB OR SUMMATION THAT DOESN'T ACCOUNT
FOR RELEVANT FACTORS WOULD HAVE BEEN ACTUALLY BEEN EXCULPATORY IN THE IN THIS
CASE. I THINK GETTING TO THE BIGGER FOR THE US VERSUS EVEN ANSWER. 892F SUBJECT
2D949. AND THEY SPECIFICALLY REJECTED OR THE COURT REJECTED IT BECAUSE
THE CAST AGENT PRESENTED NO SCIENTIFIC CALCULATIONS AND DID NOT CONSIDER A
VARIETY OF V FACTORS AND ALSO QUOTE BECAUSE IT WAS WHOLLY UNTESTED BY THE SCIENTIFIC
COMMUNITY. SO WE HAVE THIS THEORY THAT APPEARS TO BE MORE GENERALLY ACCEPTED IN
LAW ENFORCEMENT AND EVEN THAT HAS BEEN REJECTED BY OTHER COURTS THAT HAVE
PROPERLY FOCUSED ON ARE THEY CONSIDERING THE RELEVANT FACTORS AND IS THIS SOMETHING
THAT IS RELIABLE. HERE IS SOMETHING ON FAR AGGRAVATING FACTOR LESS. WE HAVE
NO IDEA WHETHER ANY OTHER AGENT USES THIS RULE OF THUMB. JUDGE SABATINO:
I WAS GOING TO ASK YOU ABOUT THAT, AFTER LOOKING INTO THIS, ARE YOU AWARE WHETHER
THIS AGENT HAS TESTIFIED IN OTHER CASES THAT ARE PENDING ON APPEAL AND IF ANY OTHER
EXPERT HAVE DONE THE SAME ONE MILE OR WHATEVER DISTANCE RULE OF THUMB, IS THERE
ANY INFORMATION WE HAVE ABOUT THAT. CODY T. MASON: I'VE READ MORE CELL
SITE CASES I SEE CELL TOWERS WHEREVER WHERE. I'M NOT AWARE OF ANY CASE. I
NOMIC CASES A CASE IN THE FOOT MUTE. AGENT DAVID DID EMPLOY ANALYSIS BUT WITH A
EVEN SHORTER ESTIMATION. I'LL LEAVE THAT ON A MEETING I BECAUSE THEY'RE MORE
FAMILIAR WITH IT. MY CASE RULE OF THUMB FOR ABOUT HALF MILE. BUT I'M NOT AWARE
OF ANY OTHER OFFICERS OR OTHER AGENTS MORE AS I GOLY KNOW WHAT YOUR FREQUENTLY
ENGINEERS OR ANYBODY THAT'S ACTUALLY INVOLVED IN DETERMINATION THE RANGE OF
A TOWER. AND IN TERMS OF CASES US VERSUS JONES AS WELL. THAT IS CITED
BY THE TRIAL COURT, BY THE APPELLATE DIVISION, INNING IN THEREFORE, BRIEF
THAT HAS BEEN SITED BY THIS COURT. IF YOU LOOK AT EVERYTHING THAT HAPPENED IN THIS CASE
THEY REJECTED THEREFORE. THE ISSUE. THE REPRESENTED THE ISSUE NOT THE TESTIMONY
HERE. AND THAT'S AT PAGE THREE. CHIEF JUSTICE RABNER: MR. MASON. I HOPE
FINISH YOUR POINT HERE. CODY T. MASON: I APOLOGIZE. JUSTICE
PATTERSON: I'M LARGELY AT FAULT. CODY T. MASON: NO, I'LL TAKE THE BLAME. BUT
I THINK THAT THAT CASE IS RELEVANT BECAUSE THEY REJECT THAT EXACT TYPE OF TESTIMONY
AND THE DRIVE TEST TESTIMONY INCLUDING THE OTHER CASE. ALSO SHOW IT'S NOT
TESTIMONY JUST ACCOUNT FOR THE RELEVANT FACTORS BUT THE FAILURE TO ACCOUNT AT
THE TIME OF THE ROBBERY THAT UNDER MINE THE OPINION IN THIS CASE. UNLESS
YOUR HONOR'S HAVE ANY ADDITIONAL QUESTIONS ABOUT THE CELL TOWER TESTIMONY IT SHOULD
BE EXCLUDABLE FOR RELIABILITY AND NET OPINION. IN ADDITION TO REVERSAL VOTES FIRST
TIME IN COURT IDENTIFICATION. IT WAS BASED ON HER BRIEF OBSERVATIONS OF A MAN
OF ANOTHER RAISE IN A HIGHLY STRESSFUL SITUATION WHICH PRECEDED HER FAILURE
TOP IDENTIFY MR. BURNEY HER IDENTIFYING ANOTHER PERSON, BEING GIVEN INFORMATION
LEADING MR. BURNEY WAS GUILTY AND MAKING THE IDENTIFICATION IN COURT OVER 25 MONTHS
AFTER THE ROBBERY. HIGHLY SUGGESTIVE AND UNRELIABLE IDENTIFICATION. I KNOW THAT
YOUR HONOR HAVE HAD DIFFERENT DISCUSSIONS ABOUT DIFFERENT STANDARDS THAT CAN BE
EMPLOYED. I THINK THE MAIN ANSWER IN TERMS OF THIS CASE IS THIS TESTIMONY
SHOULD HAVE BEEN SECLUDED UNDER ANY TEST THAT CREDITS THE RELIABILITY OF AN IN COURT
IDENTIFICATION. AS FAR AS I UNDERSTAND FROM THE BRIEFING IN THIS CASE AND FROM
AT ALL TIMES IN WATSON IT SEEMS THERE ARE THREE DIFFERENT WAYS TO GO ABOUT
THIS. AT LEAST THE WAYS I THINK THERE IS A BRATTIER BRIDE LINE RULE THAT INNOCENCE
PROJECT TALKED ABOUT. BUT AS FAR AS MY UNDERSTANDING IS AND I THINK WHAT WOULD
BE PRACTICAL, THE BRIGHT LINE RULE WOULD BE ALONG THE PARTICULARS ONLY OPINION
IN CONNECTICUT. SOBRIETY LINE IS A LITTLE BIT OF A MISNOMER, THEY DON'T ALLOW
IN COURT IDENTIFICATIONS IN THE VAST MAJORITY OF CASES BUT THEY WILL ALLOW IT
WHERE IDENTIFICATION IS NOT AN ISSUE. SO IF THE DISPUTE IS JUST WHAT HAPPENED,
THAT'S A LITTLE BIT DIFFERENT. JUSTICE PATTERSON: ROSETTE TELLS THE
9-1-1 DISPATCHER THAT THE MAN WORKED AT OUR HOUSE. CODY T. MASON: YES.
JUSTICE PATTERSON: SHE IS MAKING A CONNECTION WITH SOMEONE THAT SHE HAD MET
BEFORE AND IN A CONTEXT OF WHICH THE DEFENDANT ULTIMATELY HAD WORKED THERE.
BECAUSE HE WORKED FOR HIS BROTHER, RIGHT. CODY T. MASON: YES. JUSTICE
PATTERSON: WHY DOESN'T THAT DISTINGUISH THIS CASE FROM SITUATIONS WHERE SOMEONE
HAS HAD NO PRIOR ENCOUNTER WITH THE INDIVIDUAL AND THE ONLY -- THE ONLY
OPPORTUNITY TO LOOK AT THAT INDIVIDUAL IS DURING THE COMMISSION OF A CRIME.
CODY T. MASON: SO THE QUESTION IS BASICALLY THE RULE OF FAMILIARITY. AND THE
COURT'S CASE LAW IS NOT MATERIAL CLEAR BECAUSE THAT NOISE NOT PART OF THE
TRADITIONAL ANALYSIS. IT'S NOT A VARIABLE. NOT SOMETHING WE NORMALLY CONSIDER.
THE ONE FAMILIARITY SEEMS TO BE AN ISSUE ALTHOUGH NOTED PAROLE STATE VERSUS
\PRESENCE\PRESSLY WHICH TALKS ABOUT CONFIRMATORY IDENTIFICATIONS AND DEALING
WITH THAT TYPE OF FAMILIARITY IS VERY DIFFERENT THAN WHAT YOU HAVE HERE. I THINK
WHAT \PRESENCE\PRESSLY INDICATES AND CASE LAW FROM OTHER JURISDICTIONS WHICH
HAVE ADDRESSED IT IN MORE LEPT YOU'RE TALKING ABOUT INSTANCES WHERE PEOPLE ARE
SO FAMILIAR WITH EACH OTHER THAT NO LEVEL OF SUGGEST CAN LEAD TO A MISIDENTIFICATION.
SO THERE ARE QUESTIONS BEFORE ABOUT SPOUSEES IF YOU'RE TALKING ABOUT A
DOMESTIC VIOLENCE SITUATION YOU'RE TALKING ABOUT SOMEBODY THAT YOUR BEST FRIEND THAT YOU
SEE EVERY DAY, THAT MIGHT BE A LITTLE BIT DIFFERENT. ALTHOUGH I DO HAVE TO
CAVEAT WITH THE FACT I THINK THERE IS A LOT OF SOCIAL SCIENCE OUT THERE THAT
COMPLY INDICATES IT A LITTLE BIT. ULTIMATELY THAT COURT DOESN'T NEED TO
GET INTO THAT HERE BECAUSE THE FAMILIARITY WAS SO MINIMAL. SO THE CASE LAW CONCLUDING
\PRESENCE\PRESSLY AND THERE'S THE NEW YORK CASE I BELIEVE BOY DENY THAT I CITE
IN MY BRIEF THAT TALKS. JUSTICE PATTERSON: WHY IS NOT RELEVANT BECAUSE
IF THE ARGUMENT IS AND THE ALL THE IS THAT THE IN COURT IDENTIFICATION IS SO
SUGGESTIVE THAT IT SHOULD BE EXCLUDED EITHER ALMOST ALL CASES OR IN ALL CASES, YOU
HAVE SOMEONE HERE WHO HAS PREVIOUSLY WHILE NOT BY NAME IDENTIFIED THE DEFENDANT
IDENTIFY THE PERPETRATOR OF THIS CRIME TO THE 9-1-1 IMMEDIATELY THERE AFTER,
THIS IS MINUTES LATER AFTER THE DEPARTURE OR PERP AT A TORE SOMEONE WORKED
AT OUR HOUSE. WHY ISN'T THAT REALLY AN IMPORTANT CONSIDERATION HERE. CODY
T. MASON: SO I DON'T THINK IT'S AN IMPORTANT CONSIDERATION FOR A COUPLE REASONS.
THE MOST STRAIGHT FORWARD ONE IS SHE DIDN'T IDENTIFY HIM WHEN SHE SAW A PHOTO
TWO DAYS LATER. UNDERMINES THIS CLAIM THAT HE IS THE PERSON SHE SAW. WE HAVE
A LACK OF INFORMATION ABOUT IN FAMILIARITY. OTHER THAN IT WAS BASICALLY TWO
SUBSTANCES MONTHS EARLIER WAS THE FIRST ONE AND SHE DID -- SO THE EXACT NATURE OF
WHAT HAPPENED WHEN NIECE CONTRACTORS WERE IN THE HOUSE WAS NOT SPEAKER CLEAR
BECAUSE HER FATHER DIDN'T TESTIFY. JUSTICE PATTERSON: THERE WAS PRIOR
WORK IS THE EXPLANATION FOR DNA PRESENT. THERE'S NO DISPUTE AS I UNDERSTAND
IT THAT HE WAS PRESENT IN THE HOME. CODY T. MASON: I JUST MEAN THE EXACT
NATURE WHAT THEIR INTERACTIONS WERE. THERE WAS NO 104 HEARING. THE ONLY
INFORMATION WE HAVE SEVERAL MONTHS EARLIER SHE INTAB ADD WITH HIM ONCE WHERE SHE
GAVE HIM CLEANING SUPPLIES. SHE WAS NOT THE PERSON WHO HIRED THE CONTRACTORS.
SHE HAD THIS ONE INSTANCE OF COMMUNICATION AND THEN SEVERAL WEEKS LATER ASSUMPTION
IT'S IAN THE SAME PERSON SOMEBODY STOPPED BY THE HOUSE AND ASKED INFORMATION
HER FATHER WHEN HE WASN'T THERE 55 DIDN'T SHE ALSO TESTIFY WHEN HE CAME TO THE
DOOR ON THE NIGHT OF THE ROBBERY SHE IMMEDIATELY SAID WHAT ARE YOU THERE TO FIX
AND HE SAID I'M HERE FOR YOUR DAD AND THEN PULLED OUT A GUN. CODY T.
MASON: SHE DID TESTIFY TO THAT. AND I THINK THERE ARE TWO SORT OF DIFFERENT ISSUES.
I THINK THE IDEA THAT SIGNIFICANCE OF WHETHER SHE RECOGNIZED HIM BECAUSE OF THE
COMMENTS OR WORDS IS STILL UNDER CUT BY THE FACT SHE DIDN'T IDENTIFY HIM SHE
SIDE FOR IDENTIFICATION SOMEBODY ELSE. JUSTICE PATTERSON: IN A PHOTOGRAPH.
CODY T. MASON: IN A PHOTOGRAPH. JUSTICE PATTERSON: THAT INTERACTION
JUSTICE WAINER APTER WHEN HE CAME TO THE DOOR SHE KNEW EXACTLY WHO HE WAS SHE
IDENTIFIED HIM AS SOMEBODY WHO HAD PREVIOUSLY WORKED THERE. CODY T.
MASON: I THINK THAT KIND OF GETS BACK TO WHAT I WAS TALKING ABOUT BEFORE IN TERMS
OF WE DON'T KNOW EXACTLY WHO WAS WORKING THERE ALL THE TIME. IT COULD HAVE BEEN
SOMEBODY ELSE OH SHE COULD HAVE BEEN JUST BEEN A MAZE TAKE. THE SCIENTIFIC
RESEARCH I CITED IN THE BRIEF INCLUDING THE VILLAN OH BRIEF FROM CONTROLLING
PUBLIC POLICY ON LAW A THAT TALKS ABOUT MINIMAL PRIOR INTERACTIONS REALLY DON'T
MAKE ANY IDENTIFICATION MORE LABEL. THE SIGN IT PEOPLE MAKE MISTAKES ABOUT
WHETHER THEY RECOGNIZE -- PAT YOU HEAR HERE YOU HAVE THE UNINDICTED AT THAT TIME
THAT THE DEFENDANT WORKED IN HER HOME AT LEAST ONE OCCASION POSSIBLY TWO WHEN
SHE WAS PRESENT IN THE HOME. THIS TAKES IT OUT OF THE RECOMMEND OF CASES IN WHICH
A RANDOM PERSON COULD BE IMPLICATE IN ADDITION CRIME WHICH HAD NOTHING TO DO WITH
MY SUGGESTIVENESS TO KEY EYEWITNESS IN A COURTROOM. CODY T. MASON:
I DISAGREE YOUR HONOR. THIS IS A MINIMAL, MINIMAL CONTACT. THIS IS A CONTRACTOR
SHE DIDN'T EVEN HIRE THAT SHE SAW TWICE MONTHS AGO. I THINK JUST FROM -- I THINK
A DAY TO DAY EXPERIENCE I COULDN'T PICK OUT A CONTRACTOR THAT BURLINGTON COUNTY ON
MY HOUSE A MONTH AGO. JUSTICE PATTERSON: YOU COULDN'T. CODY T.
MASON: I COULDN'T PICK OUT A CONTRACTOR IN A THAT WAS IN MY HOUSE. THAT'S WHAT
THE SOCIAL SCIENCE SAYS IF WE'RE GOING TO CONSIDER FAMILIARITY AND FACTOR THAT IN
THEN IT NEEDS TO BE SUBSTANTIAL CONTACTS. CHIEF JUSTICE RABNER: AREN'T
THESE CONSIDERATIONS THE TYPE THAT SHOULD BE CONSIDERED THAT I 104 HEARING
IN ADVANCE. CODY T. MASON: I THINK THAT DEPENDS -- SO THAT WOULD BE IF
THERE WAS A CASE BY CASE ANALYSIS I GUESS IN TERMS WHETHER AN IN COURT IDENTIFICATION
COULD EVER BE MADE. CHIEF JUSTICE RABNER: UNDER THE MACELUS FRAMEWORK
WHERE THE FIRST FAIR AND ACCURATE TO BE REALIZE TO WHERE THE WITNESS KNEW THE
INDIVIDUAL PREVIOUSLY. CODY T. MASON: SO WHAT I THINK SHOULD DO AND I HOPE
THIS IS RESPONSIVE TO THE QUESTION IS IF WE WERE TO ADOPT THE PARTICULARS ONLY
APPROACH, I WOULD HAVE A NON-SUGGESTIVE OUT OF COURT IDENTIFICATION THAT WOULD ADDRESS
BASICALLY EVERYONE'S CONCERN SO. JUSTICE WAINER-APTER: THE CHIEF WAS
REFERS TO THE MACELUS SJC OPINION NOT THE COP AND YOU'RE PREFERRING NOW TO THE CONNECTICUT
OPINION. CHIEF JUSTICE RABNER: CAN YOU OFFER TWO GOOD REASONS. THE
FIRST GOOD REASON IS THE ONE I MENTIONED WHAT WOULD BE WRONG WITH THAT APPROACH
THAT WOULD FACTOR INTO A HEARING PRIOR THE THE COURT'S DECIDING WHETHER TO GO FORWARD
WITH AN IN COURT IDENTIFICATION. CODY T. MASON: I THINK THERE ARE
DIFFICULT IS WITH THAT BOTH PRACTICALLY AND AS THEY MIGHT RELATE TO A FUTURE SUGGESTION.
SO IF YOU'RE DOING -- I THINK IF YOU ARE HAVING A 104 HEARING I THINK IT IS
HARD TO KNOW EXACTLY WHAT THAT IS GOING TO LOOK LIKE. IF YOU'RE HAVING THE
104 HEARING TO DETERMINE WHETHER THEY CAN MAKE THE IN COURT IDENTIFICATION THAT
WOULD BE MEAN QUESTIONING THE COMMUNICATION PRIOR COMMUNICATIONS PRIOR CONTACT
WITH THIS PERSON FLUSHING THAT OUT AND ASKING IF SHE THOUGHT SHE COULD MAKE
AN IDENTIFICATION. I'M NOT SURE THAT WOULD -- THAT WOULDN'T IMMEDIATE THE
STANDARDS. BECAUSE THAT'S NOT THE TYPE OF SUBSTANTIAL FAMILIARITY. I THINK THAT'S
THE PROBLEM I'M KIND OF TRUCK RELYING WITH. JUDGE SABATINO: ONE OF THE
FACTORS ON WHATEVER TEST IS USED WHETHER THE WITNESS PREVIOUSLY HAD AFFIRMATIVELY
MISIDENTIFIED THE PERPETRATOR IN AN ARRAY VERSUS WHAT WE HAVE HERE UNLESS I'M
MISWRECK IT. THE DECEMBER 26 ARRAY AND THEN THE 28 ARRAY WHICH DID INCLUDE A PHOTO
OF HIM, SHE DIDN'T IDENTIFY ANYBODY IF I'M WRECK IT CORRECTLY RIGHT. CODY T.
MASON: IN THE 26 SHE IDENTIFIED A FILLER AND THERE'S -- JUDGE SABATINO:
IN THAT WOULD BE. CODY T. MASON: SHE IDENTIFIED THE FILLER WITH 90 PERCENT
CERTAINTY AND THEN THE 28 WAS WITH MR. BURNEY AND SHE DID NOT IDENTIFY ANYONE.
I THINK IN TERMS OF WHETHER THAT SHOULD BE -- AND THAT IS A FACTOR THAT SHOULD
BE CONSIDERED IN TERMS OF RELIABILITY ANALYSIS BUT THE PROBLEM WITH DEALING
A LOT OF THIS IS THE EASIER WAY TO ADDRESS IT IS WITH THE PARTICULARS ONLY APPROACH
BECAUSE IF WE'RE TALKING ABOUT HOW DOES FAMILIARITY TACK FOR IN, WHAT ABOUT
ALL HE'S OTHER CONSIDERATIONS I THINK THE APPROACH THEN IS TO JUST REQUIRE THE
STATE TO HAVE A NON-SUGGESTIVE PHOTOGRAPHIC A RAZOR LINE-UP THAT ADDRESSES WHATEVER
REASON THE WITNESS MAY NOT HAVE BEEN ABLE TO MAKE AN AID INDICATION. IF THE
EXPLANATION IS BECAUSE THEY WERE PHOTOS IF THE EXPLANATION BECAUSE THE PERSON
SHAVED THEIR HEAD IN BETWEEN THE EVENTS THEN YOU CAN HAVE THIS PROCEDURE THAT FAIRLY
PRESENTS THE OPTIONS TO THE WITNESS AND THEY CAN MAKE THAT IDENTIFICATION AND
THEN THE COURT CAN MAKE ENABLES. THE COURT CAN CONSIDER ALL THE ESTIMATE FOR
AND VARIABLES. WHETHER THIS IS TAINT FROM ANYTHING ELSE. IF THAT WORKS THEN
YOU CAN HAVE AN IN COURT IDENTIFICATION. I THINK HAVING THE 104 HEARING THE GOOD
REASON I THINK IT ENDS UP MAKING THINGS A MORE COMPLICATED. CHIEF JUSTICE
RABNER: HOW DO YOU DETERMINE WHETHER THERE'S SUFFICIENT FAMILIARITY UNDER PARTICULARS
ONLY. WHAT IF THERE WERE FIVE OR TEN OCCASIONS IN THE RECENT PAST WHERE THE
SUSPECT SHOWED UP. CODY T. MASON: I DON'T KNOW THAT WOULD BE ENOUGH.
CHIEF JUSTICE RABNER: WHERE ARE YOU DRAWING THE LINE. CODY T. MASON:
I'M DRAWING THE LINE IN SIGNIFICANT FAMILIARITY. JUSTICE PATTERSON: ARE
YOU STATE AGO PERM RELATIONSHIP AS OPPOSED TO SOMEBODY WHO IS IN SOMEBODY'S
HOME DOING WORK. CODY T. MASON: MAYBE I'VE COMPLICATED THIS A LITTLE BIT.
SO THE -- I THINK FOR HIGHLY HIGHLY FAMILIAR ONES THAT IS A SITUATION WHERE
IDENTIFICATION WILL NOT BE AT AN INHERENTLIISH AARON THAT IS A SITUATION WHERE
PARTICULARS ONLY WOULD ALLOW AN IN COURT IDENTIFICATION. YOU HAVE THESE LONG
SUSTAINED CONTACTS. THAT MIGHT BE A DIFFERENT TYPE OF SITUATIONS AND THOSE
ARE THE LIMIT SITUATIONS IN TERSE OF THE 104 OR THE OVERALL ANALYSIS. I THINK
THERE CAN BE SOME CONSIDERATION OF FAMILIARITY BUT I THINK THAT IS SOMETHING
THAT PROBABLY DOES REQUIRE FURTHER EXAMINATION ON WHAT THAT ACTUALLY MEANS
BECAUSE THE SOCIAL SCIENCE IS IF YOU DON'T HAVE SIGNIFICANT CONTACT, IF YOU
HAVE MINIMAL CONTACT AND THAT'S THE VILLAN OH ARTICLE TALKS ABOUT A FEW TIMES. THAT'S
REALLY NO DIFFERENT THAN A STRANGER IDENTIFICATION. SO I THINK THAT THAT IS
SOMETHING. JUSTICE PATTERSON: YOU DON'T SEE A DISTINCTION -- CREDITING
HER TESTIMONY OBVIOUSLY I HAVE NO IDEA IF SHE WAS TRUTHFUL OR NOT BUT SHE SAYS
THAT THEY IMMEDIATELY HAD A CONVERSATION THAT CLEARLY OBJECTIVELY. A A PRIOR
ENCOUNTER AND FAMILIARITY IN HIS AWARENESS OF WHO HER FATHER IS, HE'S BEEN IN THE HOME.
YOU HAVE AN IMMEDIATE CALL TO 9-1-1 IN WHICH SHE REPORTS THAT THIS IS SOMEONE WHO WORKS
IN THE HOUSE. AND YOU HAVE THE FACT THAT HE WORKED IN THE HOUSE WHICH IS APPARENTLY
ONE OF THE FEW INDISPUTED FACTS IN THIS CASE. HE WORKED IN THE HOUSE. HIS DNA IS IN THE
BAG AND THE DEFENDANT'S THEORY IS IT'S THERE BECAUSE HE WORKED IN THE HOUSE. WHY DOES
THAT NOTED A UP TO AN OPPORTUNITY PERHAPS FOR HER TO HAVE ACTUALLY BEEN AROUND HIM ENOUGH
TO KNOW WHAT HE LOOKED LIKE. CODY T. MASON: IF WE'RE TALKING ABOUT THE
OPPORTUNITY TO ACTUALLY OBSERVE HIM IS NOT FIRMLY ESTABLISHED TRACTOR TRAILER RECORD
BY SEEMS TO BE A FEW SECONDS MAYBE A MINUTE BEFORE HE PULSE OUT THE GUN AND
TELLS THEM TO TURN AROUND. THERE'S A VERY LIMITED OPPORTUNITY TO VIEW HIM
THEN AND THEN THE PRIOR INTERACTION ACTIONS ARE VERY, VERY MINIMAL, MONTHS EARLIER.
SO IT IS NOT SOMETHING THAT -- PAUSE YOU'RE TALKING ABOUT THE DNA AND THINGS
LIKE THAT. I THINK THAT GOES BACK TO THE HARM ANALYSIS MORE THAN THE RELIABILITY
OF THE IDENTIFICATION. JUSTICE PATTERSON: WE HAVE AN UNINDICTED FACT
THAT HE WORKED AT THE HOUSE. SO THIS IS NOT HER MIXING HIM UP WITH SOMEBODY.
CODY T. MASON: I DISYOUR HONOR I DIDN'T MEAN TO CUT YOU OFF. JUSTICE PATTERSON:
WHAT I'M SAYING IT'S NOT HER RANDOMLY SAYING THIS PERSON WORKED IN THE HOUSE
WHEN THIS IS NO INDICATION HE DID. IT'S YOU KNOW FOOTED. CODY T. MASON:
THERE IS THE FAMILIARITY RESEARCH ABOUT HOW MENIAL CONTACTS DON'T MEAN VERY MUCH.
BUT HOW PEOPLE ARE MISTAKEN ABOUT THAT. THAT WAS REALLY THE DEFENSE THEORY SHE
WAS WRONG ABOUT WHO THIS WAS. MAYBE IT WAS SOMEBODY ELSE THAT WORKED ON THE
HOUSE, THE ONLY INFORMATION THAT REALLY POINT TO DO MR. BURNEY BEING THAT PERSON
WAS MARK BURNEY WHO DIDN'T TESTIFY AND THE DETECTIVE WHO SPOKE WITH HER DIDN'T
TESTIFY. WE DON'T HAVE INFORMATION HOW THE OTHER BROTHERS WERE EXCLUDED. WE
DON'T HAVE INFORMATION THE TIE ROWAN HOME HEALTH AID WHETHER HE KNEW SOMEBODY
ELSE. I'M NOT DISPUTING THERE'S SOME SIGNIFICANT TO THIS, THIS EVERY IT'S NOT
OVERWHELMING EVIDENCE AND IT DOESN'T CURE THE SUGGESTIVE NATURE OF THE IDENTIFICATION
WHICH AGAIN HAPPENED OVER TWO YEARS AFTER THIS ROBBERY. CHIEF JUSTICE
RABNER: IT YOUR POSITION WE HAVE ENOUGH INFORMATION IN THE RECORD AS IT STANDS
RIGHT NOW FOR THIS TO COURT TO MAKE A DETERMINATION ON ANY RELEVANT SYSTEM
VARIABLES. CODY T. MASON: YES, YES. IN TERMS OF THE OH. CHIEF JUSTICE
RABNER: INCLUDING FAMILIARITY. CODY T. MASON: I THINK SO. I THINK FROM
FAMILIARITY BECAUSE THE CASE LAW AND THE SOCIAL SCIENCE IS CLEAR THAT YOU NEED
TO HAVE SOME SUBSTANTIAL FAMILIARITY FOR IT TO REALLY MEAN VERY MUCH AND YOU
JUST DON'T HAVE THAT HEAR. CHIEF JUSTICE RABNER: THERE WERE TWO PRIOR
OCCASIONS WHERE SHE SAW HIM WORKING IN THE HOUSE IS THAT CORRECT. CODY T.
MASON: ONE OCCASION WHERE SHE SAW HIM WORKING IN THE HOUSE AND SHE GAVE HIM
CLEANING SUPPLIES AND THEN ANOTHER OCCASION WHERE SHE SAID THAT HE CAME TO THE HOUSE
AND KNOCKED ON THE DOOR AND THEY HAD BRIEF. CHIEF JUSTICE RABNER: ON THE
FIRST OCCASION DO WE KNOW HOW LONG THEY WERE TOGETHER ON THE RECORD MAYBE.
CODY T. MASON: I DON'T BELIEVE WE KNOW THE EXACT TIME FRAME. LESS I THE INTERACTION
SHE WENT HAPPEN HOW THE WINDOWS LOOKED AND SHE GAVE HIM CLEANING APPLIES AND
THAT WAS IT. AND THERE WAS THERE NO INDICATION THAT SHE HAD ANY OTHER
CONTACT OR COMMUNICATION WITH I AM HAD. SHE WASN'T SUPERVISING THEM. SO THERE ARE
MINIMAL CONTACTS. I THINK IF THERE WAS A DIFFERENT CASE AND THERE WAS MUCH
MORE SUSTAINED CONTACT I THINK THAT MIGHT BE DIFFERENT AND MAYBE THERE WOULD
NEED TO BE REMAND TO ASSESS FAMILIARITY ON ESTABLISH THE RECORD ON THAT. THIS
IS SEE FAR \BELOW\BLOW WHAT HAS BEEN ACCEPTED ON OTHER COURTS. I WOULD POINT
TO EIGHT CASE WHICH IS QUITE SIMILAR THAN OTHER THAN THAT IT INVOLVES A SHOW UP
AS WAS DISCUSSED A GOOD DEAL PREVIOUSLY AN IN COURT IDENTIFICATION IS REALLY JUST
AN OH SO UP. IT IS MORE SUGGESTIVE FORM OF THAT. BUT IN THAT CASE YOU HAVE
POLICE PROVIDING INFORMATION TO THE SUSPECT BASICALLY. IT WAS A CAR JACKING
THEY HAVE THE IT WITNESS AND SAY WE FOUND YOUR CAR AND SOMEBODY IN IT AND THEY
BRING THEM TO THERE AND THE PERSON IDENTIFIES HIM. AND OPEN 30 THIS COURT SAID THIS WAS
UNDIELY SUGGESTIVE AND THEY FOUND IT WAS STILL RELIABLE IN PART BECAUSE THE
VIM A SECURITY GUARD SAW THE SUSPECT RECOVERED WORKING AS A SECURITY GUARD.
SO HE SAW HIM EVERY SINGLE DAY I WOULDN'T KNOW THIS IS BEFORE HENDERSON. THEY
WOULDN'T HAVE THE BENEFIT OF ALL THE SOCIAL SCIENCE. I DON'T KNOW IF THIS WOULD
HOLDUP NATIONAL POST HENDERSON WORLD. THAT IS THE SUSTAINED RELIABILITY. IN THAT
CASE THIS WAS A PRETTY CLOSE QUESTION. THIS IS FAR FRIBBLE THAT. IT WASN'T
RECENT. IT WASN'T REGULAR, IT WAS NOT SUBSTANTIAL CONTACT THAT CHANGES THE
NATURE OF THIS IDENTIFICATION. JUSTICE PIERRE-LOUIS: ASIDE FROM THE BROTHER
MARK DO WE KNOW HOW MANY OTHER CONTRACTORS THERE WERE, WHETHER ANY OF THE OTHER
BROTHERS WERE WORKING ON THE HOUSE AT THE TAPE TIME. COULD WE KNOW ANY OF THAT
INFORMATION. CODY T. MASON: WE KNOW ONLY FROM ROSETTE. SHE SAID THERE WAS
A CONTRACTOR DIDN'T BASICALLY HEARSAY CAME IN SAYING THIS WAS MARK AND SON
AND THEN THE BROTHER. AND THAT'S ABOUT IT. WE DON'T HAVE TESTIMONY LIKE I SAID
FROM GEORGE. WE DON'T HAVE TESTIMONY FROM MARK. THERE WERE FIVE DIFFERENT
BURNEY BROTHERS INCLUDING MR. BURNEY AND MARK BURNEY, SOME OF THEM WERE INCLUDED
HAD IN PHOTO OF RAISE WE HAVE NO INDICATION HOW ANY OF THEM WERE EXCLUDED FOR
ANY REASON. THERE IS SOMETHING HERE BUT IT'S NOT OVERWHELMING. THERE ARE HOLES
BOTH IN THE PROOFS AND IN THE STATE'S INVESTIGATION WHETHER IT BE FAIR FAILURE TO
TEST RELEVANT EVIDENCE. ULTIMATELY WHEN IT COMES TO THE IDENTIFICATION THESE
TWO PRIOR CONTACTS JUST DO NOT FUNDAMENTALLY ALTER THIS. I THINK LOOKING AT THE
HENDERSON FACTORS ARE THE RIGHT LINE APPROACH OR CAUSE A BRIGHT LINE APPROACH
WOULD LEAD TO THE EXCLUSION OF THIS NECESSARILY. IT DOES NOT CONSTITUTE GOOD
REASON WHEN PARTICULARS ONLY AND CONTROL INHERENTLY TALK ABOUT THAT. THEY WERE
TALKING ABOUT DOMESTIC VIOLENCE SITUATIONS THEY'RE TALKING ABOUT REAL SUSTAINED
CONTACT. IT'S SUSTAINED. CHIEF JUSTICE RABNER: I WANT TO TRY TO MOVE
THIS LONG WE'RE FIVE MINUTES FROM THE HOUR AT WHICH I'M GOING TO STOP YOU.
JUDGE SABATINO: YOU HAVE UNDER US TO DECIDE THE ISSUE ON THIS RECORD. PRESENTLY
DON'T REMAND. IS ONE OF THE SUGGESTIONS POT TO REMAND THIS WITNESS HAS NOW
BEEN BE TAINTED THERE IS NOTHING TO BE GAINED SHE KNOWS THE IDENTITY, THE
IDENTITY ISSUE WAS DETERMINED AT TRIAL THAT THERE'S NO POINT IN TRYING TO FIND OUT
MORE FROM HER WHAT SHE REMEMBERS OR KNOWS BECAUSE SHE'S ALREADY BEEN FATAL OVERDOSED
TO ALL THAT. WE MIGHT LEARN MORE INFORMATION PERHAPS FROM ALL THESE
FAMILY MEMBERS. BUT AS REGARDING HER THE CRITICAL WITNESS IT'S REALLY FUTILE TO
DO A REMAND ASSUMES WHEN I WAS DISCUSSING THE REMAND IT WAS MORE FURTHER SOCIAL
SCIENCE RESEARCH. I DO AGREE I THINK IF YOU WERE TO BRING ROSETTE IN NOW FIVE YEARS
LATER AND IT WOULD BE THE SAME PROBLEM. ANNULET MAILLY THIS IS JUST SOMETHING
THAT IS NOT NECESSARY, IT'S NOT SOMETHING THAT SHOULD HAVE HAPPENED. WHAT
SHOULD HAPPEN BECAUSE OF THE SUGGESTIVENESS, THE INHERENT SUGGESTIVENESS WHICH
I KNOW THE STATE IN THE PRIOR CASE DISCUSSED THIS IS UNAVAILABLE. THAT PEOPLE ARE
GOING TO KNOW WHO THE DEFENDANT IS. SHE TESTIFIED THAT SHE KNEW MR. BURNEY WAS
THE DEFENDANT IN THIS CASE. SHE NEW THERE WAS EVIDENCE AGAINST HIM WHICH SHE
BELIEVED WAS OVERWHELMING. THESE ARE SITUATIONS ARE UNVAT JUDGE BE I KNOW
YOU WERE TALKING ABOUT WHAT HAPPENS. I THING A LOT OF THE DIFFICULTY IS THIS
IS JUST AN UNAVOIDABLE SUGGESTIVE ENVIRONMENT IT'S NOT SOMETHING THAT CAN BE
DONE IN A FAIRWAYS. THERE'S NO REASON AT LEAST FOR IDENTIFICATION IS AT ISSUE.
CHIEF JUSTICE RABNER: YOU STARTED TO IDENTIFY THREE DIFFERENT WAYS AND
A WAYS FIRST WAS BAN ALTOGETHER. I DON'T KNOW WHETHER PARTICULARS ONLY WAS
SECTION ARE WHAT WERE THE THREE MA PLACE MAYBE IT'S FOUR BECAUSE IS THE VERY
VERY BRIGHT LINE WHERE YOU DON'T EVER WHO ALLOW IT. THAT'S NOT OUR POSITION. OUR
POSITION IS PARTICULARS ONLY WHICH IS THAT YOU CAN ALLOW. CHIEF JUSTICE
RABNER: WE HEARD THAT LET'S MOVE ON DO. CODY T. MASON: THE SECOND ONE IS
MACELUS. THAT WOULD BE THE GOOD REASON ALSO WOULD NOT RESULT IN THE IDENTIFICATION
BEING ADMISSIBLE HERE. CONTROL INHERENTLY TALKS ABOUT YOU GENERALLY CAN'T
HAVE GOOD REASON. CHIEF JUSTICE RABNER: GIVE US THE NEXT ONE. CODY T.
MASON: LAST ONE WOULD BE THE TOTALITY. SO THAT WOULD BE LOOKING AT THE SYSTEM
VARIABLES WHICH ARE ALL NECESSARILY IMPLICATED AND WHETHER THE IDENTIFICATION
ISSUE GOES BEYOND THAT WHICH IS SORT OF ALONG THE LINES OF WHAT COM DOES. ANY
ONE OF THOSE SHOULD HAVE LED TO THE EXCLUSION HERE. IN. IN TERMS OF
HANDLE IT SHOULD NOT BEEN ADMITTED IN I CAN THE HARM IS REALLY AMPLIFIED FROM
THE INSTRUCTIONS, THE JURY WAS NOT TOLD THAT THEY COULD EVEN CONSIDER THE PRIOR
IDENTIFICATION -- MISIDENTIFICATION DESPITE THAT BEING REQUESTED BY BETWEEN WOULD YOU
KNOW. THEY WERE NOT TOLD ABOUT ANY SYSTEM VARIABLES WHICH IS DIFFERENT IN CASES
WHERE THERE IS AT LEAST AN OUT OF COURT IDENTIFICATION SO THEY DON'T KNOW ABOUT
THE EFFECT OF ANYTHING IN INCLUDING THE FACT THERE WASN'T A BLIND ADMINISTRATION
THERE HAVE BEEN MULTIPLE VIEWS THEY HAD NO WAY TO ASSESS THAT. AND IN TERMS OF THE
OVERALL HARM BETWEEN THIS AND THE CELL TOWER I THINK ONE OF REQUIRES EXCLUSION BUT
THE TWO OF THESE THINGS TOGETHER WERE REALLY AT THE HEART OF THE STATE'S CASE.
THESE ARE THE ONLY TWO REAL PIECES OF EVIDENCE THAT PLACED HIM IN THE HOME
DURING THE ROBBERY RATHER THAN AT SOME PRIOR TIME. THIS IS WHAT THE STATE EMPHASIZED.
HALF THE PAGES TALKS ABOUT AGENT DAVID CRIMINAL RIGHT AS MANY. CARRIES
SIGNIFICANT WAIT AND SOMETHING THAT HE MEAN FACED INCLUDING CALLING THE CREDIT
CITE SEEM. FORTY-EIGHT CREDIBLE. BUILT UP. 211TH FORENSIC SCIENCE CASE HE'S
TALKING ABOUT AND THE SAME THING WITH THE IDENTIFICATION. I KNOW THE STATE HAS ARGUED
IN THEIR BRIEFING THAT IDENTIFICATIONS WERE ALL DISPARAGED THIS REALLY WASN'T
THE ISSUE. THAT WAS REALLY JUST PART OF THE STATE'S ARGUMENT TO DISCREDIT
OR NEGATE THE LACK OF PRIOR IDENTIFICATIONS. AND THE PROSECUTOR THEN HINTED
AT THE PYROMAZINE MOMENT IN THE OPENING STATEMENT SAYING I DON'T KNOW IF THERE'S
GOING TO BE ONE SAYING MR. MR. BURNEY THE PROSECUTOR SOUGHT THAT FROM EVERY
SINGLE ONE OF THE WITNESSES WHEN THEY GOT THAT FROM ROSETTE HE ARGUED IT WAS
CREDIBLE IN THE CLOSING ARGUMENT. HE ARGUED IT WAS DIFFERENT TO VIEW SOMEBODY IN
A COURTROOM RATHER THAN A PHOTOGRAPH. THIS WAS RATHER SOMETHING THAT'S NOT
BENEFIT OF THE DEFENSE WHICH THE ATTORNEY GENERAL ARGUES SOMETHING THAT REALLY
WASN'T SUBSTANTIAL THAT ALONG WITH THE CELL SIGHT EVIDENCE WERE THE TWO PIECES
ONLY TWO PIECES THAT TIED THE CIRCUMSTANTIAL EVIDENCE TOGETHER SUCH THAT THERE
ADMISSION COULD NOT BE HARMS LESS AND REVERSAL OF MR. PATTERNS CONVICTION IS
REQUIRED. UNLESS YOUR HONOR HAVE ANY FURTHER QUESTIONS I RESERVE THE LET OF THE
MY TIME FOR REBUT. CHIEF JUSTICE RABNER: MR. CHAIRMAN MISS YOUR TIME
RAN AN OUT A LONG TIME OUT BUT WE'LL HAVE YOU BACK MR. KISCH. ETHAN KISCH:
THAT YOU MR. CHIEF JUSTICE MAY IT PLEASE THE COURT MY ARGUMENTS THE COURT HAS
HEARD I'LL BE AS BRIEF AS POSSIBLE. TODAY'S APPEAL REYES TWO PIECES OF UNRELIABLE
EVIDENCE. FIRST AGENT DAVID'S TESTIMONY AS TO THE PARK WAY TOWERS RANGE AND
COVERAGE AREA BASED ON HIS UNSCIENTIFIC RULE OF THUMB AND THEN SECOND A FIRST TIME
IN COURT EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER HIGHLY SUGGESTIVE
POLICE PROCEDURES. IT'S IMPORTANT TO NOTE THAT ALTHOUGH UNRELIABLE PIECES OF
EVIDENCE THEY'RE NEVERTHELESS CONVINCING ONCE ADMITTED. AND BECAUSE UNRELIABLE EVIDENCE
LEADS TO WRONGFUL CONVICTIONS IT'S IMPORTANT TO REPORTS UP HOLD GATE KEEPING
FUNCTION ONLY RELIABLE EVIDENCE IS PERMITTED AND IN THIS CASE BOTH SHOULD HAVE BEEN
EXCLUDE. A FEW PINTS ON THE CELL TOWER ISSUES. ITS UNDISPUTED AGENT DAVID
WAS WELL WITHIN BOUNDS TO TESTIFY GENERAL CELL PHONE TECHNOLOGY, HOW TOWERS WORK,
HOW PHONES WORK, HOW PHONES CONNECT TO TOWERS AND CERTAINLY HE WAS WITHIN
BOUNDS IN THIS CASE TO DISCUSS THE PARTICULARS OF THE CDRS, THAT IS
SPECIFIC PHONE CHECK -T A PARTICULAR TOWER AT A SPECIFIC TIME OR EVEN A SPECIFIC
SECTOR. AGENT DAVID WENT BEYOND THAT IN TWO MAIN WAYS, FIRST HE TESTIFIED THAT
PARK WAY TOWER HAD A ONE MILE RANGE BASED ON HIS OWN RULE OF THUMB. NOW, HE PROVIDED
NO SCIENTIFIC METHODOLOGY FOR THAT RULE OF THUMB, NOR SHOWED THAT IT WAS RELIABLE.
AND I THINK UNDER FRYE OR DILBERT AS MR. MASON DESCRIBED THAT TESTIMONY SHOULD
HAVE BEEN EXCLUDED AND SECOND AGENT DAVID THEN USED THAT ONE MILE OF RULE OF
THEN TO MAP A COVERAGE AREA FOR THE TOWER BASED ON ARMS THAT WERE DRAWN WITH
ONE MILE AND THEN HE TESTIFIED MULTIPLE TILES THAT THE FRYE HEARING AND DURING TRIAL
THAT THE SPACE IN BETWEEN THE ARMS WAS INTENDED TO BE THE COVERAGE AREA OF THE
PARK WAY TOWER SECTOR AND THEN MAP THE CRIME SCENE WITHIN THE COVERAGE AREA
OF THE PARK WAY TOWER SECTOR. NOW IT'S UNSUBSTITUTED THAT THE CDRS IN THIS CASE
IN AND OF THEMSELF CANNOT EMPLOYED RANGES AND COVERAGE AREA AND THAT AGENT DAVID
FAILED TO ACCOUNT FOR THE WHOLE HOST OF FACTORS THAT CAN MORE RELIABLY DETERMINE
RANGE AND COVERAGE AREA INCLUDING THE TOPOGRAPHY OF THE AREA, THE WEATHER,
THE POWER OF THE PHONE, THE POWER OF THE TOWER. WHAT THE NETWORK SETTINGS WERE ON
THAT DAY. ALL OF THESE THINGS AGENT DAVID FAILED TO ACCOUNT FOR. MOREOVER,
HE FAILED TO DO ANY KIND OF TESTING TO MORE RELIABLY DETERMINE THE RANGE OF
COVERAGABLY AS MR. MASON SAID. JUSTICE PATTERSON: I MAY BE WRONG BUT I
THOUGHT HE TALKED ABOUT THE TOPOGRAPHY OF AREA CAN. ETHAN KISCH:
HE DID TALK ABOUT. JUSTICE PATTERSON: FLAT SO WE CAN'T REALLY SAY HE DIDN'T
MENTION TOPOGRAPHY. ETHAN KISCH: I DOES OBLIQUELY SAY THAT IT IS A FLAT
AREA GENERALLY AND THAT YOU KNOW IN A FLAT AREA A PHONE COULD CONNECT TO THE NEAREST
TOWER. BUT NICHOLAS ACTUALLY TWO TOWERS CLOSER AND AGENT DAVID FAIL TO EVEN
DO ANY RESEARCH ABOUT THOSE TOWERS OR EVEN THEIR SECTORS OR THEIR RANGES.
AND MOREOVER, AGENT DAVID COMPOUNDED ALL THESE ERRORS BY PLACING THE COURT AND JURY
AREA ON DRIVES THAT HAPPEN DEFENDANT'S APPENDIX EIGHT AND NINE AND SHOWING
THEM TO THE DRAWERS. I A PIN 20 AND 158 IN WHICH THERE ARE COVERAGE MAPS THAT ARE
RADIO FREQUENCY PROPAGATION MAPS WHICH MORE RELIABLE DETERMINE WHAT A COVERAGE AREA
LOOKS LIKE AND YOU WOULD SITUATE THEY LOOK MORE LIKE AN ABSTRACT PAINTING ON ARRESTED
DEFENDANT PAINT SPLOTCH THAN THEY DO A NEAT PIE SLICE AND SO AGENT DAVID DIFFERENT'S
WERE. T CERTAINLY EXPERT CAN TESTIFY TO THE CONTENTS OF CDRS AND CONNECT THEM
TO A SPECIFIC TOWER AT A PARTICULAR TIME AND THEY CAN CERTAINLY TESTIFY TO
GENERAL CRIMINAL TECHNOLOGY. BUT IF AN AGENT OR EXCUSE ME AN AGENT IN THIS CASE
AN EXPERT IN ANOTHER CASE WERE TO TESTIFY ABOUT SPECIFIC RANGES AND COVERAGE
AREAS AND THEN PLACE A CRIME SCENE OR A PHONE WITHIN THAT RANGE AND COVERAGE
AREA THEY NEED TO ACCOUNT FOR THE WHOLE HOST OF FACTORS THAT CAN DETERMINE RANGE
OF COVERAGE AREA AND SO THAT IT'S RELIABLE. NOW, THERE HAS BEEN A LOT OF
TALK ABOUT THE FIRST TIME IN COURT IDENTIFICATION ISSUES SO I'LL TRY TO BE
AS PROOF AS POSSIBLE A HOPEFULLY ANSWER A COUPLE LINGERING QUESTIONS. ONE
QUESTION I THINK JUSTICE PATTERSON YOU HAD ASKED QUITE AWHILE AGO AT THIS POINT ABOUT
THE APPLICABILITY OF HENDERSON EVERY PRINCIPLES AND I THINK WE DISCUSS IN OUR
BRIEF AT PAGES 30 TO 35 WHY SPECIFICALLY THE HENDERSON FRAMEWORK SHOULD APPLY
OR AT LEAST THE SYSTEM SOME MATED VARIABLES SHOULD APPLY TO IN COURT SHOW UPS, IN
OTHER WORDS FIRST TIME IN COURT IDENTIFICATION. THE FIRST IS THAT IN
AND OF IT ZEST IS AN IDENTIFICATION PROCEDURE. IT SIMPLY HAPPENS IN COURT
AS OPPOSED TO OUT OF COURT. AS MR. MASON IT IS A SHOW UP ON STEROIDS OR A SHOW UP,
SPEAKER SHOW UP. MOREOVER, THE MADISON TEST WHICH WAS SUPPLANTED BY HENDERSON
ITSELF APPLIED TO IN COURT IDENTIFICATIONS, MADISON ITSELF HAD AN INCOURT
IDENTIFICATION IN IT. IT'S MATED VARIABLES THEREFORE, APPLY TO IN COURT
IDENTIFICATIONS AND FINALLY I THINK IT'S JUST WORTH NOTING HENDERSON AND KEN.
JUSTICE PATTERSON: BEFORE YOU REACH THE NEXT POINT ARE THERE OTHER CONSIDERATIONS
THAT APPLY IN COURT THAT SHOULD BE ADDED TO THE HENDERSON ANALYSIS WHICH VERY
CAREFULLY WAS ONLY ABOUT OUT OF COURT. ETHAN KISCH: I GENERALLY ON THE
FACT THAT HENDERSON WAS ONLY OUT OF THE COURT. CERTAINLY TRUE IN BEHIND SON IT
LOOKED ATTICLY OUT OF COURT IDENTIFICATION BUT IT TALKED ABOUT SHOW UPS IN GENERAL
AND I THINK AN IN COURT IDENTIFICATION IS A SHOW UP IN AND OF ITSELF. MORE
HENDERSON AND KEN SHIFTED THE RELIABILITY OF EYEWITNESS RELIABILITY GENERALLY WHICH
THIS COURT IN GREEN AND ANTHONY HAVE SAID IT'S A BROADER CATEGORY. NOT JUST
AN OUT OF COURT IDENTIFICATION PROCEDURES. I GUESS TO ADD ONE MORE POTENTIAL
OPTION TO THE ARRAY OF OPTIONS THE COURT HAS YOU KNOW WE OF COURSE AS WE DISCUSS
IN ADDITION OUR BRIEF MAKE CLEAR WE THINK A BRIGHT LINE RULE OR SOMETHING ALONG
THE LINES OF PARTICULARS HONOR SUPREME COURT OF CONNECTICUT'S DECISION WOULD BE
MOST APPROPRIATE. IF THE COURT APPLIES HENDERSON FRAMEWORK THERE SHOULD BE A CASE
BY CASE ANALYSIS WHICH WE DON'T THINK THERE SHOULD BE A BRIGHT LINE RULE IF
THE COURT WERE TO APPLY HENDERSON'S FRAMEWORK I THINK IT WOULD BE FAIR UNDER
THE FIRST STEP OF HENDERSON ANALYSIS LOOKING AT SUGGEST ABILITY IF EVERY FIRST TIME
IN COURT IDENTIFICATION CASE AND JUST TO BE CLEAR THIS IS A VERY NARROW AND
AVOIDABLE CLASS OF IDENTIFICATION EVIDENCE, IN EVERY BEEN EVERY ONE OF THESE
CASE I THINK THE DEFENDANT IS ENTITLED TO A WADE HEARING BECAUSE OF THE INHERENT
SUGGESTIBILITY IN OTHER WORDS STEP ONE WOULD ALWAYS BE SATISFIED UNDER THE HENDERSON
FRAMEWORK AND THEN WHEN YOU GET TO STEPS WOULD TWO AND THREE, I THINK IT'S
IMPORTANT THAT THE ULTIMATE QUESTION OF VARIOUS STANCHION LIKELY OF
MISREPRESENTATION. IN THE ORIGINAL HENDERSON FRAMEWORK THE BURDEN IS ON THE FRAMEWORK
TO SO. MISREPLY HAVE YOU BEEN ID. IT WOULD BE FAIR TO FULLY THE BURDEN AND PUT
THE BURDEN ON THE STATE TO SHOW THAT THERE IS NOT A VERY SUBSTANTIAL LIKELY
OF A RIBIBLE IDENTIFICATION IN THESE CASE. THAT WOULD BE JUST TO SAY THE COURT
WOULD SAY HENDERSON FRAMEWORK SHOULD FLY. A FEW OUT STANDING QUESTIONS JUDGE
SABATINO YOU HAD MENTIONED WHAT COULD EYEWITNESS SAY IN A PARTICULAR CASE. I
THINK YOU BROUGHT OF SOMETHING IN THIS SEEN ARRESTED DEFENDANT. CERTAINLY AN EYEWITNESS
CAN SAY I IT SAW SOMEBODY IN A STRIPED SHIRT HEADING TOWARDS THE DOUG OUT MAYBE
ABOUT 510. THERE'S A VERY BIG DIFFERENCE BETWEEN THAT TYPE OF TESTIMONY WHICH
IS THERE TESTIMONY BETWEEN TESTIMONY THAT'S THE DEFENDANT THAT'S HIM. IF THEY HAD
IDENTIFIED SOMEBODY ELSE YOGI BEAR I. JUDGE SABATINO: FOB EVER CONFUSED YOGI
BETTER I A WITH FILL RAS -- IT REQUIRE. ETHAN KISCH: DECADES AGO. JUDGE
SABATINO: I'M GOING TO ASK YOU QUICK THING ANY INTERACTIONS BETWEEN A WITNESS WHO
HAS ALREADY MISIDENTIFIED SOMEONE ELSE. SHOULD ANY OF THOSE INTERACTIONS BE SOMEHOW
PRESERVED OR RECORDED. ETHAN KISCH: I THINK IT'S POSSIBLE THAT THAT
COULD BE A PRO FALL LACK PARTICULAR RULE TO ENSURE THAT THERE'S NO ADDITIONAL
SUGGESTIBILITY. I JUST SAY IN THIS CASE THERE'S NO DISPUTE ABOUT AS TO OUT OF COURT
SUGGESTIBILITY ABOUT THE PHOTO THAT WAS SHOWN TO HER AND THE INFORMATION THAT WAS
GIVEN TO HER AND HER TESTIMONY AT PAIN 129 OF THE TRANSCRIPT WHERE SHE SAYS
YEAH, I CONCLUDED THAT IT WAS HIM BASED ON THE PHOTOS THAT THEY SHOWED ME.
JUSTICE PATTERSON: OBVIOUSLY THIS IS JUST COMING UP IN ORAL ARGUMENT BUT THE A CDL
AND ITS MEMBERS MAY HAVE SIGNIFICANT CON EVERY CONCERNS OF EVERY GOING DOWN
THE ROAD -P VIDEO TAPING COUNSEL AND WITNESSES. ETHAN KISCH: THAT'S
CERTAINLY TRUE. I'LL NOW TAKE A POSITION ON THIS SPECIFIC THINK I WOULD NOTE
IT DOESN'T REALLY MATTER BECAUSE THE ULTIMATE QUESTION IS WHETHER THERE IS I
REMEMBER -- VERY SUBSTANTIAL LIKELIHOOD OF I REMEMBER REMEMBERABLE MISIDENTIFICATION.
THIS IS A VERY LIMITED CLASS OF IDENTIFICATION EVIDENCE WHICH IS SO EATS
I TO AVOID DOING AN OUT OF COURT PROCEDURE CONCERNING. JUDGE SABATINO:
THEY COULD HAVE ON AN IDEA HAD IT BY SAYING HERE'S A PHOTO BY NOT SAYING WHY
IT CAME FROM. DO YOU RECOGNIZE THIS ITEM IN THIS PHOTO. ETHAN KISCH:
I THINK THAT'S CERTAINLY LESS SUGGESTIVE IN. THEY CONFER DEFENDANT BY NAME
FOUND ON HIS PHONE. ET CETERA SEEMS TO BE SUGGESTED IN THE TRANSCRIPT IT'S POSSIBLE
THEY EVEN SHOWED HER ABOUT LOCATION OF A CELL PHONE. SO THAT'S CERTAINLY TRUE.
AND THEN FINAL OR TWO FINAL POINTS MR. CHIEF JUSTICE, YOU HAD MENTIONED
ABOUT PROFIT DEFENDANT WEARING OR SITTING IN COURT. EVEN WITHOUT THIS INFORMATION
THIS NARROW CLASS OF IN COURT IDENTIFICATIONS ARE EXTREMELY SUGGESTIVE
AND UNRELIABLE. CERTAINLY THEY SHOULDN'T BE TOLD WHERE THE DEFENDANT WOULD BE
SITTING. I THINK ANYONE WHO HAS WATCHED LAW AND ORDER QUICKLY FIGURE IT OUT. I
ALSO NOTE NOTE IN MANY MANY CASES THE DEFENDANT, THE PERSON SITTING AT COUNSEL
TABLE OR EXCUSE ME OR DEFENDANT WILL BE THE ONLY PERSON IN THE COURTROOM THAT
MATCHES THE DESCRIPTION OF THE PERPETRATOR SO THE NATURAL CONCLUSION IS THAT THE
DEFENDANT IS SITTING THERE. AND THEN FINALLY I THINK AND THIS IS A GOOD
WAY TO WRAP UP JUSTICE PATH YOU HAD ASKED ABOUT STATISTICS ABOUT PARTICULAR IN COURT
IDENTIFICATION AND I THINK THE THIS SHOWS THE REAL SUBSTANTIAL LIKELIHOOD OF
I REMEMBER REPLIABLE MISI'D AND IN COURT I'D IN THE INNOCENCE PROJECTS CAT
LOSS 375 DNA EXONERATIONS 16 PERCENT INVOLVED AN EYEWITNESS MISIDENTIFICATION
AND 54 PERCENT OF THOSE CASES INVOLVED AN IN COURT MISIDENTIFICATION AND WE CITE
TO THAT AT PAGE 29 OF OUR BRIEF. SO IN SUMMATION I WOULD JUST ASK THE COURT TO
GO BY GUIDANCE THAT TESTIMONY LIKE AGENT DAVID'S BASED ON UNRELIABLE RULE OF
THEM SHOULD NOT BE ALLOWED AND BRIGHT LINE RULE IS APPROPRIATE FOR THE NARROW
AND AVOID CLASS LUCILLE M. ROSANO: THANK YOU, YOUR HONORS. I
AM JUST GOING TO GIVE A BRIEF PRELIMINARY STATEMENT. MAY IT PLEASE THE
COURT. I THINK DEFENSE COUNSEL AND AMICUS HAVE ADMITTED HERE THAT HISTORICAL
CELL SITE SNALS IS WIDELY RECOGNIZED IN THE SCIENTIFIC COMMUNITY AS A RELIABLE METHOD
FOR ESTIMATING THE GENERAL LOCATION OF THE USER'S CELLPHONE AT A GIVEN TIME AND THAT IS
SHOWN BY THE AUTHORITY FROM FEDERAL AND STATE COURTS THAT HAVE ALMOST UNIVERSALLY ACCEPTED
IT. HERE, HOWEVER, THE MAIN QUESTION REALLY IS ABOUT SPECIAL AGENT DAVID'S
OPINION ABOUT THE APPROXIMATE ONE-MILE RANGE OF THE CELL TOWER. SPECIAL AGENT
DAVID'S EXPERT OPINION HERE WAS PROPERLY ADMITTED BY THE TRIAL COURT AS SUFFICIENTLY
RELIABLE. AGENT DAVID'S TESTIMONY WAS BASED ON HIS EXPERIENCE IN CELL TOWER TECHNOLOGY
AN THE RELEVANT PHONE RECORDS FACTORS WHICH ARE REASONABLY RELIED UPON BY KS E EXPERT'S
IN THE FIELD AN XOERT WITH EVIDENCE RULE 703. IT WAS HIS OPINION, EXPERT OPINION 802
TEXT MESSAGE TO DEFENDANT'S KRP USED A CELL TOWER THAT HE WOULD REASONABLY EXPECT TO INCLUDE
THE BLOOMFIELD CRIME SCENE. HIS TESTIMONY APPROXIMATING THAT ONE-MILE
FREQUENCY RANGE OF THE CELL TOWER SECTOR IN THIS PARTICULAR URBAN AREA OF ESSEX COUNTY
AND IN PARTICULAR THAT PARK WAY TOWER, SECTION 1 WAS BASED ON HIS TRAINING AND EXPERTISE
AN HIS QUALIFICATIONS, EXPERIENCE WITH THE CELL TOWER NETWORK IN SEX KOUPT, ESSEX COUNTY,
HIS KNOWLEDGE IN PARTICULAR. HE WAS AN AGENT WHO WAS TECHNICAL OPERATIONS CAST AGENT
IN NEWARK. HIS KNOWLEDGE WAS ABOUT THE CLOSE PLACEMENT OF THE TOWERS. HE EXPLAINED THAT
THE TERRAIN WAS GLAT FLAT. HE EXPLAINED THAT THE TOWER SECTOR LOCATION WAS ON A HIGH-RISE
BUILDING. HE EXPLAINED THE TOWER DIRECTION WAS POINTING IN THE AREA OF BLOOMFIELD AND
THAT THAT PARTICULAR SECTOR TOWER ANTENNA PROVIDED A CLEAR LINE OF SIGHT TO THE AREA IN
BLOOMFIELD ENCOMPASSING THE CRIME SCENE. HE WAS ALSO VERY CAREFUL TO EXPLAIN
THE LIMITATIONS OF THE TECHNOLOGY AND HIS ANALYSIS. HE EXPLAINED THAT THIS WAS ONLY --
AN HE WAS VERY CLEAR ABOUT THIS BOTH AT THE 104 HEARING AND AT TRIAL, THAT THIS WAS ONLY
AN APPROXIMATION OF THE CELL PHONE'S LOCATION WITHIN THAT PARTICULAR RANGE. HE
EXPLAINED THAT THE RADIO FREQUENTS OF THE TOWERS WILL OVERLAP AND THEREFORE IT WAS POSSIBLE
THE PHONE WAS PINKING THE PARKWAY TOWER BUT THE ACTUAL PHONE WAS LOCATED SOMEWHERE ELSE
IN ANOTHER SECTOR OR IN ANOTHER TOWER RANGE. FOR THESE REASONS, THE TRIAL COURT'S
RULING TO ADMIT HIS EXPERT TESTIMONY WAS PROPER. AS TO POINT 2, THE TRIAL COURT
PROPERLY EXERCISED ITS DISCRETION TO DENY DEFENDANT'S MOTION TO PRECLUDE ROSETTE'S IN
-COURT IDENTIFICATION. THE DEFENDANT'S BURDEN WAS TO SHOW -- AN IT'S A HEAVY BURDEN, TO
SHOW THAT THE DETECTIVE'S COMMENTS AND HER FAILURE TO IDENTIFY A PHOTOGRAPH FROM A PHOTO
ARRAY WERE SO SUGGESTIVE AS TO DEMONSTRATE A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
IDENTIFICATION. ANY SUGGESTIVENESS HERE IN THE DETECTIVE'S COMMENTS AND
ROSETTE'S INABILITY TO IDENTIFY THE DEFENDANT IN A PRIOR PHOTOGRAPH AND HER INDEPENDENT
OBSERVATIONS OF THE DEFENDANT WERE ALL EXPLORED THROUGH VIGOROUS CROSS-EXAMINATION, AS WELL
AS APPROPRIATE JURY CHARGES. FINALLY, I THINK THAT THIS IS REALLY A SUBSTANTIAL
HARMLESS ERROR CASE. THE STATE'S POSTS HERE WERE OVERWHELMING. ROSETTE HAD FACE TO FACE
INTERACTIONS WITH THE DEFENDANT SHORTLY BEFORE THE HOME IN FAGS INVASION. HE WORKED ON
HER HOME DOING ROOF REPAIRS WITH HIS SON MARK AND I BELIEVE HER TESTIMONY WAS THAT THERE WAS
ONLY ONE OTHER PERSON AND I THINK IT WAS MARK BURN KNEE'S SON WHO WAS AT THE HOUSE. SHE
DID INTERACT WITH HIM BECAUSE SHE WAS UNHAPPY WITH THE WINDOW CLEANING JOB SO SHE DID
HAND HIM SOME CLEANING SUPPLIES AN SHE SLAN EXPLAINED THAT HE RETURNED TWO WEEKS PRIOR
TO DECEMBER 25TH ASKING FOR HER FATHER GEORGE BY NAME. AND WHEN HE DID APPEAR
AT THE DOOR DURING THE ROBBERY, ROSETTE TESTIFIED THAT HE ASKED FOR HER FATHER GEORGE
BY NAME AND THAT SHE IMMEDIATELY RECOGNIZED HIM AND SHE ASKED HIM WHAT ARE YOU HERE TO
FIX. SHE, ALSO, TOLD THE 911 DISPATCHER, THE RESPONDING OFFICER AND
DETECTIVE ALFONSO THE INVESTIGATING DETECTIVE THAT THE INTRUDER HAD DONE WORK AT HER HOUSE
PREVIOUSLY. ALSO, THE DEFENDANT'S DNA WAS ON THE COST COMPANY BAG LEFT ON
THE STAIR RAILING AND THE EVIDENCE AT TRIAL SHOWED THAT ROSETTE, HER DAUGHTER TER SAM
ANTHA THAT AND HER FRIEND TAFFY WERE ALL EXCLUDED AS POSSIBLE CONTRIBUTORS TO THAT DNA.
ROSETTE IDENTIFIED A PHOTOGRAPH OF HER PRINCESS WATCH THAT WAS EXTRACTED FROM
THE DEFENDANT'S CELLPHONE AN THEN SHE BROUGHT THE BOX, THE WATCH BOX TO THE POLICE STATION
TO VERIFY THAT IT WAS HERS. FINALLY, IN ADDITION, ALL THREE OF THE VICTIMS
HEARD THE DEFENDANT'S CELLPHONE RECEIVE AN INCOMING CALL OR A TEXT MESSAGE VIA THE VOICE
ASSISTANCE ON THE PHONE. ALL THREE ALSO HEARD THE DEFENDANT'S PHONE CAMERA TAKING PICTURES
DURING THE ROBBERY AN THE EXTRACTION REPORT DOES SHOW THAT THE PHONE WAS CLICKING AT 8:03
AND THAT IS THE TIME THAT THE CELL TOWER PINKED -- THE CELL TOWER SECTOR PINKED, WHICH WAS
SECTOR 2. I JUST WANT TO POINT OUT THAT DEFENSE COUNSEL IS CORRECT THAT THEY
WERE PICTURES BE, THEY WERE BLANKS. THEY WERE BASICLY -- THEY WERE BLACK PHOTOS. THE
ACTUAL PHOTOS OF THE PHONE WERE GENERATED THE NEXT THREE DAYS AN THEN THERE WERE WEB SEARCH
ES FOR THE VALUE OF THE WATCH. FOR THESE REASONS, THE STATE WOULD RESPECTFULLY
ASK THE COURT TO AFFIRM THE TRIAL COURT'S RULING IN THIS CASE. THANK YOU.
THE COURT: ON THE FIRST ISSUE CENTRAL TO THE QUESTION WAS WHETHER THE RULE
OF THUMB FOR THE 1 MILE SOMETIMES WAS PROPER. IS THAT WIDELY ACCEPTED?
LUCILLE M. ROSANO: YOUR HONOR, I THINK IT WAS MAYBE AN IN ARTFUL TERM FOR HIM TO USE.
WHEN YOU DO READ AGENT DAVID'S TESTIMONY AT THE 401 HEARING, HE EXPLAINED AND I AM GOING
TO READ THIS FROM THE 401 HEARING, THIS IS TRANSCRIPT NO. 440, 57 AND IT'S LINES 9 TO
25. HE SAYS, THE LENGTH THAT WAS USED FOR THESE ARMS IS AN ESTIMATE. THESE ARE ONE MILE
WHICH IS A RULE OF THUMB. AND THEN HE SAYS Z, FOR THIS PARTICULAR TECHNOLOGY, THIS
PARTICULAR FREQUENCY AND THIS PARTICULAR AREA, HE SAYS, BASED ON MY TRAINING AN EXPERIENCE,
ONE MILE IS A GOOD ESTIMATE FOR THE RANGE OF THE TOWER, SPRINT TOWER IN THIS AREA. IT IS
ALSO SUPPORTED BY THE LOCATION OF THE ADJACENT TOWERS. HE EXPLAINS THAT THE
NETWORK IS LAID OUT BY SPRINT TO AVOID COVERAGE AND SO HE KNOWS THAT IN THIS PARTICULAR
AREA THOSE TOWER SECTORS EXTEND APPROXIMATELY 1 MILE IN OVERLAP TO PREVENT DROPPED CALLS
BECAUSE THIS IS AN URBAN AREA AND THERE ARE MANY MORE PEOPLE USING THE NETWORK.
AGAIN, HE TESTIFIES CONSISTENTLY -- JUSTICE PATTERSON: DOES HE EXPLAIN, THOUGH,
WHAT THAT MEANS IN EITHER THE HEARING OR THE -- OR HIS TESTIMONY, THE FREQUENCY AREA,
THE TECHNOLOGY, 1 MILE IS A GOOD ESTIMATE? THERE IS REALLY NOT A LOT OF
MEAT ON THOSE BONES, IS THERE? LUCILLE M. ROSANO: YOUR HONOR, I THINK YOU
HAVE TO LOOK BACK TO HIS QUALIFICATIONS. HE HAS BEEN A CAST AGENT FOR TWO YEARS. HE HAS BEEN
A TECHNICAL OPERATIONS OFFICER -- JUSTICE PATTERSON: I MEAN, OBVIOUSLY,
QUALIFICATIONS, THAT'S DETERMINED BY THE COURT AT THE OUTSET AS TO WHETHER THE PERSON
IS QUALIFIED. THAT'S A DIFFERENT INQUIRY THAN THE RELIABILITY. IN FRYE THE GENERAL
ACCEPTANCE OF THE OPINION, ISN'T IT? LUCILLE M. ROSANO: WELL, FRYE PERMITS
THE COURT UN GENERAL ACCEPTANCE STANDARD TO LOOK AT JUDICIAL OPINIONS, BUT ALSO TO LOOK
AT EXPERT TESTIMONY AND AGENT DAVID EXPLAINS HIS QUALIFICATIONS AS HISTORICAL CELL SITE
TOWER EXPERT. JUSTICE PATTERSON: YOU CAN HAVE A QUALIFIED EXPERT WHOSE
QUALIFICATIONS MEET 702, BUT THAT PERSON CAN FALL SHORT ON THE QUESTION OF THE ADMISSIBILITY
OF THAT PERSON'S OPINION? I MEAN, AREN'T THOSE TWO DIFFERENT INQUIRIES?
LUCILLE M. ROSANO: YOUR HONOR, I UNDERSTAND THAT THEY CAN BE TWO DIFFERENT
INQUIRIES, BUT IN THIS CASE, AGENT DAVID DID EXPLAIN WHAT THE SYSTEM WAS IN THIS
PARTICULAR AREA, THE SYSTEM GENERALLY HOW IT OPERATES. JUSTICE WAINER APTER:
WHAT WAS THE BASIS? HE DID SAY SO JUST BASED ON MY TRAINING AN EXPERIENCE
ONE MILE IS A GOOD ESTIMATE OF THE TOWER RANGE FOR SPRINT IN THIS AREA. HE
DIDN'T EXPLAIN, YOU KNOW, I'VE WORKED IN SEX KOUPTD FOR THIS MANY YEARS, I'VE WORKED ON
THIS MANY YEARS, I'VE MEASURED THIS MANY RANGES OF CELL TOWERS IN SEX KOUPT AND I KNOW
BECAUSE THAT'S WHAT SPRINT TOLD ME OR WHAT SOMEONE TOLD ME. IT IS JUST SO
GENERAL. WHY WAS THAT A GOOD ESTIMATE. LUCILLE M. ROSANO:
YOUR HONOR, I THINK THAT'S WHY YOU HAVE TO GO BACK AN REALLY LOOK AT HIS QUALIFICATIONS.
HE DID EXPLAIN THAT HE WAS A CAST AGENT IN THIS AREA FOR TWO YEARS, BUT THAT FOR FOUR
YEARS HE HAD BEEN ASSISTING BOTH FEDERAL STATE AN LOCAL AGENCIES WITH THIS KIND OF ANALYSIS
AND REAL-TIME LOCATION, AS WELL. THE COURT: SO LET'S LOOK AT IT A SLIGHT
LY DIFFERENT WAY. ASSUMING HE HAS STELLAR QUALIFICATIONS IN TERMS OF HIS PRIOR
EXPERIENCE, THE TESTIMONY THAT HE OFFERED HERE, IF YOU SUBSTITUTE 2 MILES, 3 MILES, 2.5
MILES, WOULD IT SUPPORT THOSE CLOOUSHGSZ JUST THE SAME CONCLUSIONS JUST THE SAME?
THE PROBLEM IS WE HAVE NO TESTING, NO PARTICULAR REFERENCES OTHER THAN TO QUOTE, THE AREA.
LUCILLE M. ROSANO: IN THIS CASE, YOUR HONOR, I BELIEVE HE ALSO -- HE ALSO
INDICATED THAT THE MAPs, THE WAY THE ACTUAL CELL TOWERS ARE MAMED OUT OR SITUATED IN THIS
PARTICULAR AREA, THEY ARE CLOSE TOGETHER AND THEY DO HAVE 1 MILE RANGES BASED UPON HIS
KNOWLEDGE ABOUT THE AREA AND THAT IS PART OF THE REASON HE -- HE EXPLAINED THAT 1 MILE
WAS A GOOD APPROXIMATION. ULTIMATELY, WHEN HE GAVE HIS OPINION, I WOULD JUST
POINT OUT THAT HE DID NOT INDICATE, WELL, YOU KNOW, THE DEFENDANT'S PHONE WAS WITHIN 1
MILE. HE DID REALLY GIVE A GENERAL OPINION BASED UPON HISTORICAL CELL SITE ANALYSIS THAT
THE PHONE -- THE TEXT MESSAGE AT 8:02 WAS PINKING A CELL TOWER THAT WAS REASONABLY EXPECTED
TO INCLUDE THE CRIME SCENE. JUSTICE WAINER APTER: DID HE EXPLAIN WHY THE
PARKWAY TOWER WOULD HAVE COVERED 118 ASH LAND AVENUE WHEN TWO OTHER TOWERS WERE ACTUALLY
CLOSER TO THE HOME? LUCILLE M. ROSANO: HE EXPLAINED THAT IT WAS THE
POSITION OF THE PARK WAY CELL TOWER ON A HIGH-RISE BUILDING AND HE DID EXPLAIN THAT THAT
PARTICULAR TOWER HAD A DIRECT LINE OF SIGHT. BASICALLY -- JUSTICE WAINER
APTER: DID HE SAY THAT THE CLOSER TOWERS DID NOT HAVE THAT? LUCILLE M. ROSANO:
HE EXPLAINED THAT THAT PARTICULAR TOWER WAS THE ONE WITH THE DIRECT LINE OF SIGHT TO --
JUSTICE WAINER APTER: DID HE DO ANYTHING TO RULE OUT -- THIS IS WHAT I AM
TRYING TO ASK. THERE WERE TWO TOWERS THAT WERE CLOSER. DID HE SAY ANYTHING ABOUT WHY
THOSE WERE RULED OUT, WHY DID IT NOT PINK TO THE CLOSER TOWER? LUCILLE M.
ROSANO: HE DID NOT SPECIFICALLY SAY. HE DID SAY THAT THE PHONE -- THE ACTUAL LOCATION
OF THE PHONE COULD HAVE BEEN IN AN OVERLAPPING AREA, IT COULD HAVE BEEN LOCATED NEAR EITHER,
I BELIEVE HE SAID THE BLOOMFIELD COLLEGE TOWER OR THERE WAS A THOMAS AVENUE TOWER THAT WERE
BOTH IN THE SAME AREA, BUT HE EXPLAINED THAT THIS PARTICULAR TOWER IS THE TOWER THAT
WAS -- THAT THE KRP CONNECTED TO CELLPHONE CONNECTED TO AND BECAUSE -- HE EXPLAINED THE
AS MUT WHICH IS THE DIRECT LINE BETWEEN BOTH OF THE ARMS, THE 120 PIE-SHAPED WEDGE ARMS.
HE EXPLAINED THAT THAT AS MUT FROM THE TOP OF THAT BUILDING ON A FLATTER RAIN IS THE
DIRECT LINE OF SIGHT TO THAT TECH CRIME SCENE ADDRESS IN BLOOMFIELD. BUT,
HE ALSO DID EXPLAIN THE LIMITATIONS OF THE ANALYSIS IN GENERAL. HE EXPLAIN BOTH AT THE
104 HEARING AND AT TRIAL THAT THIS WAS REALLY ONLY AN APPROXIMATION BASED UPON THE TOWER
THAT WAS CONNECTED TO -- THE PHONE CONNECTED TO. HE EXPLAINED, ALSO, THAT
THOSE 120-DEGREE WEDGES WERE NOT PERFECT LINES, BUT THEY WERE -- THE ACTUAL RADIO FREQUENCY
IS IT REGULARLY SHAPES. HE ALSO EXPLAINED AND I KNOW DEFENSE COUNSEL BROUGHT THIS UP,
HE EXPLAINED THAT HE DID NOT DO A DRIVE TEST, THAT HE DID NOT PREPARE PROPAGATION MAPs.
HE EXPLAINED THAT THE DRIVE TEST WOULD HAVE GIVEN AN ACTUAL RADIO FREQUENCY, BUT IT WAS
STILL AN ESTIMATION. HE, ALSO -- HE, ALSO, DID, AS I EXPLAINED BEFORE, EXPLAINED THAT
THE PHONE COULD HAVE BEEN IN THE VICINITY OF THE OTHER TWO TOWERS. CHIEF JUSTICE
RABNER: THE COURT TESTIMONY THAT YOU READ BEFORE FOR US FOCUSED ON TRAINING, EXPERIENCE
AND EXPERIENCE IN THE AREA. IS THAT ENOUGH TO ESTABLISH RELIABILITY?
LUCILLE M. ROSANO: YES, YOUR HONOR. THE STATE'S POSITION IS THAT UNDER RULE
703, IT DOES MEET THE EXPERT TESTIMONY BEING BASED ON FACTS AND DATA DERIVED FROM HIS
PERSONAL EXPERIENCE AND, YOU KNOW, IN ADDITION -- JUSTICE PATTERSON: BUT
FRYE, WHICH I THINK THE PARTIES AGREE IS THE APPLICABLE STANDARD HERE, TALKS ABOUT GENERAL
ACCEPTANCE IN THE SCIENTIFIC COMMUNITY. HE DIDN'T SEEM TO EVEN TOUCH ON THAT.
LUCILLE M. ROSANO: IN TERMS OF THE ACTUAL EXPLANATION ABOUT HOW THE TOWER WORKED?
CHIEF JUSTICE RABNER: NO, THE 1 MILE. LUCILLE M. ROSANO: I'M
SORRY. AGAIN, I WOULD JUST GO BACK TO THE FACT THAT HE DID EXPLAIN BASED ON
HIS EXPERIENCE AN HIS EXPERTISE. HE, ALSO, EXPLAINED THAT, YOU KNOW, WITH REGARD TO HIS
QUALIFICATIONS, HE DOES MEET WITH THE CELL TOWER PROVIDERS, THE RADIO ENGINEERS FOR SPRINT
REGARDING NEW DEVELOPMENTS OR CHANGES IN THE AREA. JUSTICE WAINER APTER:
HE NEVER TESTIFIED, FOR EXAMPLE, THAT THE FOLKS AT SPRINT HAD TOLD HIM THAT IT WAS A 1-MILE
RADIUS FOR EACH ONE OR THAT THEY HAD PROVIDED DOCUMENTS THAT IT WAS A 1-MILE RADIUS FOR
EACH ONE, RIGHT? HE JUST TESTIFIED THAT HE MEETS WITH THEM TO HEAR ABOUT
CHANGES BUT NOT THAT THEY EVER HELPED TO GET TO THIS 1-MILE RANGE TO BEGIN WITH.
LUCILLE M. ROSANO: NO, YOUR HONOR, HE DID NOT SPEKLY SAY THAT. HE WAS REALLY BASING IT
ON HIS OWN EXPERIENCE DOING THE HISTORICAL CELL SITE ANALYSIS. JUSTICE WAINER
APTER: ARE THERE ANY OTHER CASES THAT SUPPORT THE IDEA THAT YOU CAN ESTIMATE A RANGE FOR
A PARTICULAR TOWER JUST BASED ON YOUR OWN EXPERIENCE WHEN YOU DO NOT WORK FOR ONE OF
THESE COMPANIES AN YOUR EXPERIENCE DOES NOT INVOLVE HAVING GOTTEN THE INFO. FROM ONE OF
THE COMPANIES OR DOING ANY KIND OF SCIENTIFIC TEST. LUCILLE M. ROSANO: NO,
YOUR HONOR, I CAN'T POINT THE COURT TO ANY SPOEFK CASE LIKE THAT. I DO BELIEVE SPECIFIC
CASE LIKE THAT. I DO BELIEVE THAT IN JACKSON VERSUS AULS STATE, THERE IS A
LOT OF DIFFERENTIATIONS IN THE ACE IN THE CASES AND IT'S NOT REALLY CLEAR IN A LOT OF THE
CASES WHAT THE EXPERT HAS SPECIFICALLY TESTIFIED TO. AS LONG AS THE EXPERT
IS EXPLAINING THE PITFALLS AND LIMITATIONS, THAT IS OBVIOUSLY ONE OF THE REQUIREMENTS
AND THAT'S WHAT THE AGENT DID HERE, BUT IN JACKSON VERSUS ALL STATE THE COURT ADMITTED
EXPERT TESTIMONY BY THE PLAINTIFF'S EXPERT AND PERMITTED HIM TO TESTIFY THAT THE CELL
TOWERS IN HAD URBAN AREAS TYPICALLY CAN ONLY CONNECT WITH CELLPHONES THAT ARE LOCATED
ONE AND A HALF TO ONE MILE. AND OTHERWISE, YOU DON'T FIND A LOT OF THAT SPECIFIC INFORMATION
IN THE CASE LAW AS TO APPROXIMATIONS. JUDGE SABATINO: I WANT TO COME BACK
TO THE STANDARD WE'RE GOING TO BE USING IN THIS CASE. YOU ADVOCATED WE SHOULD USE A FRYE
STANDARD BECAUSE THAT WAS THE LAW AT THE TIME THIS CASE WAS TRIED. I THOUGHT
I HEARD THE DEFENSE BEING AMBIVALENT OR NEUTRAL ABOUT IT. WE WIN UNDER FRYE OR DAUB.
WE WILL GET THAT CONFIRMED IN A MINUTE. ASSUME OR HYPOTHETICALLY, IF WE DETERMINE
THAT THE DAUB STAPD DARD WOULD AAPPEAL UNDER DIRECT WE DON'T HAVE INFORMATION ABOUT RATE
OF ERROR OR SOME OF THE THINGS THAT HISTORILY IN DAUB YOU WOULD LOOK TO, WOULD WE JUST
EVALUATE BASED ON OUR PRESENT RECORD, WOULD A REMANDS BE NEEDED? IF
HYPOTHETICALLY THAT TURNED OUT TO BE THE STANDARD, WHAT SHOULD WE DO? LUCILLE M.
ROSANO: IN THAT CASE, YOUR HONOR, THE STATE BELIEVES THAT A REMAND WOULD BE REQUIRED
BECAUSE THE DAUB BETTER STANDARD DOES CONSIDER OTHER FACTS BESIDES GENERAL ACCEPTANCE CLOP
DA U B E R T CLOP AND IT WOULD ALSO CONSIDER WHETHER THE TECHNIQUE, YOU KNOW, CAN OR HAS
BEEN TESTEDED. IT WOULD CONSIDER PEER REVIEW AND PUBLICATIONS OF THAT AND THE POTENTIAL
RATE OF ERROR AS THE COURT HAD SAID INCLUDING GENERAL ACCEPTANCE IN THE SCIENTIFIC
COMMUNITY. CHIEF JUSTICE RABNER: GEE WERE TO DO THAT AND I WILL ASK THE ATTORNEY
GENERAL THE SAME QUESTION, CAN YOU TELL US APPROXIMATELY HOW MANY CASES MIGHT BE
AFFECTED IF OEL LEN NOW SEE/DAUB WERE TO BE APPLIED TO CASES WITH THIS EXPERT TESTIMONY.
LUCILLE M. ROSANO: YOUR HONOR, I DON'T KNOW THE ANSWER TO THAT.
THE COURT: THAT'S WHY I WAS TELLING YOUR FRIEND TO BE ON NOTICE. LUCILLE M.
ROSANO: IF THAT'S IT, YOUR HONORS, I WILL GO ON TO THE SECOND POINT. IN THIS
CASE, DEFENSE COUNSEL DID MAKE A MOTION TO PRECLUDE ROSETTE'S IN-COURT IDENTIFICATION
AS UNRELIABLE, BUT THE TRIAL COURT PROPERLY DENIED THAT. THE APPELLATE
DIVISION, I THINK, APTLY AND CORRECTLY NOTED THIS WAS AN UNUSUAL OR UNIQUE CIRCUMSTANCE
BECAUSE WE DON'T HAVE AN ACTUAL OUT-OF-COURT IDENTIFICATION IN THIS CASE. WE HAVE REALLY
THE POLICE CALLING THE WITNESS IN OR THE VICTIM IN AND SHOWING HER A PHOTOGRAPH THAT WAS
TAKEN FROM THE DEFENDANT'S CELLPHONE. THE STATE'S POSITION IS THAT EVEN THOUGH
THERE MAIVEN SOME SUGGESTIVENESS IN THE OFFICER'S STATEMENTS WHEN HE DID INDICATE THAT
ROBERSON BURNEY WAS ARRESTED AND THIS PHOTOGRAPH OF THE WATCH WAS FOUND ON THE CELLPHONE,
ROSETTE STILL DID MAKE A POSITIVE RELIABLE IDENTIFICATION OF HER OWN WATCH.
IN AND THE MAD DIS SON/HENDERSON STANDARD STILL APPLIES HERE EVEN THOUGH THERE MAY BE SOME
SUGGESTIVENESS THE DEFENDANT HAS THE ULTIMATE BURDEN TO PROVE THAT ANY PROCEDURE -- THERE
WAS VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION THAT OH DURD AND THAT
DID NOT OCCUR IN THIS CASE CLOP MADISON CLOP. AND, THE JUDGE, ALSO, DID JUST
DETERMINE THAT THE JURY COULD HEAR THIS INFORMATION AND THAT IT WOULD BE SUBJECT TO
CROSS-EXAMINATION AND PROPER JURY INSTRUCTIONS. ALSO -- JUDGE
PIERRE-LOUIS I'M SORRY DID YOU SAY THERE WASN'T AN IDENTIFICATION OUT OF COURT BECAUSE
ROSETTE DID NOT IDENTIFY HIM IN THE PHOTO ARRAY. LUCILLE M. ROSANO: ROSETTE
WAS SHOWN TWO PHOTO ARRAYS, ONE TWO DAYS AFTER -- THEY WERE WITHIN SEVERAL DAYS OF THE
ROBBERY. JUDGE PIERRE-LOUIS AND SHE DIDN'T IDENTIFY HIM IN THE PHOTO ARRAY
THAT INCLUDED HIM AND IN THE FIRST PHOTO ARRAY SHE IDENTIFIED SOMEONE WITH 90 PERCENT
CERTAINTY THAT WAS NOT HIM. THERE WAS A MISIDENTIFICATION AND A NONIDENTIFICATION.
LUCILLE M. ROSANO: YOUR HONOR, THE STATE'S POSITION IS IT WAS -- THE FIRST ONE
WAS ALSO A NONIDENTIFICATION BECAUSE THE PHOTO ARRAY IDENTIFICATION FORMS WEREN'T FILLED
OUT AND SHE ULTIMATELY DID TELL THE OFFICER THE -- THE OFFICER WHO ADMINISTERED THE PHOTO
ARRAY THAT SHE WAS 90 PERCENT CERTAIN, BUT, ULTIMATELY SHE DIDN'T MAKE AN IDENTIFICATION
OF THAT PHOTOGRAPH. CHIEF JUSTICE RABNER: SHE WAS ASKED TO MAKE AN
IDENTIFICATION, SHE LOOKED AT SIX PHOTOS, SHE PICKED SOMEONE OUT AN YOU'RE TELLING US THAT
WAS NOT AN IDENTIFICATION PROCEDURE? LUCILLE M. ROSANO: NO, NO, YOUR HONOR;
THAT'S NOT WHAT I MEAN. WHAT I AM SAYING IS THAT IT WASN'T A MISIDENTIFICATION.
SHE DIDN'T ULTIMATELY CHOOSE ANYONE EVEN THOUGH SHE DID INDICATE THAT -- JUDGE
PIERRE-LOUIS BUT SHE CHOSE SOMEONE AT 90 PERCENT CERTAINTY. ISN'T THAT SOMETHING YOU WO
TURNED OVER TO DEFENSE COUNSEL, LETTING DEFENSE COUNSEL KNOW THAT HEY WE SHOWED THIS WITNESS
A PHOTO ARRAY AND THEY IDENTIFIED SOMEONE ELSE BECAUSE TLAS EASE BRAID DEE. I AM REALLY
CONFUSED ABOUT THIS ARGUMENT. LUCILLE M. ROSANO: I'M SORRY, YOUR HONOR.
BOTH OF THE PHOTO IDENTIFICATIONS IDENTIFICATIONS AN ALL THE INFORMATION AND
THE RECORDINGS BECAUSE THEY WERE BOTH RECORDED WERE TURNED OVER TO THE DEFENSE.
JUSTICE PIERRE-LOUIS: R I AM CONFUSED BY THIS ARGUMENT IN THIS CASE AN THE PREVIOUS CASE
THAT BECAUSE THERE WASN'T A ONE HUNDRED PERCENT IDENTIFICATION OF THE DEFENDANT THAT WAS
CHARGED IN THIS CASE THAT THERE WAS NO IDENTIFICATION. I AM JUST CONFUSED WHERE
THAT WAS COMING FROM. TLVS AN IDENTIFICATION MADE. ROSETTE MADE AN
IDENTIFICATION PRIOR TO TRIAL. IT JUST WASN'T OF THE DEFENDANT, CORRECT? SHE
MADE A 90 PERCENT IDENTIFICATION OF SOMEONE BEFORE TRIAL? LUCILLE M.
ROSANO: SHE LOOKED AT THE PHOTOGRAPHS AN SHE SAID I'M 90 PERCENT SURE ABOUT A FILLER
PHOTOGRAPH, BUT SHE -- JUSTICE PIERRE-LOUIS: SHE IDENTIFIED SOMEONE IN HAD
A PHOTO ARRAY BEFORE TRIAL? LUCILLE M. ROSANO: YES, YOUR HONOR. I UNDERSTAND
WHAT YOUR HONOR IS SAYING. IT WAS NOT RECORDED THAT WAY BY THE OFFICER. IT WAS RECORDED
AS SHE DID NOT MAKE AN IDENTIFICATION BECAUSE SHE ULTIMATELY SAID SHE WASN'T SURE. SHE
LOOKED AT THE PHOTOS, SHE SAID, YEAH, THIS GUY LOOKS 90 PERCENT -- I'M 90 PERCENT OF THIS
MAN, BUT I, YOU KNOW. THE COURT: SO WE UNDERSTAND THAT'S WHAT THE OFFICER
DID. IS IT YOUR OFFICES'S POSITION THAT CIRCUMSTANCES LIKE THAT DO NOT CON
STITUTE AN IDENTIFICATION PROCEDURE OR AN IDENTIFICATION? LUCILLE M.
ROSANO: OH, NO, YOUR HONOR. MAYBE I AM MISS -- YOU KNOW, MISS-EXPLAINING. THAT IS NOT
MY POSITION AT ALL OR OUR POSITION AT ALL. MY POSITION IS THAT, NO, THAT WAS
-- NO, SHE DID NOT MAKE AN OUT-OF-COURT IDENTIFICATION OF THE DEFENDANT.
CHIEF JUSTICE RABNER: LET ME SAY IT OTHERWISE AN TELL ME IF YOU DISAGREE. SHE
MADE AN IDENTIFICATION. SHE WAS WRONG. LUCILLE M. ROSANO: I UNDERSTAND
WHAT YOUR HONOR IS SAYING. YES. JUSTICE PATTERSON: SHE IDENTIFIED A FILLER
PHOTO. LUCILLE M. ROSANO: YES, SO ULTIMATELY SHE DID NOT IDENTIFY THE DEFENDANT
FROM A PHOTO ARRAY. SHE DID NOT IDENTIFY THE DEFENDANT IN THE SECOND PHOTO ARRAY. SHE
DID NOT MAKE AN IDENTIFICATION OF THE DEFENDANT. HIS PICTURE WAS NOT IN THE FIRST PHOTO
ARRAY. IT WAS IN THE SECOND PHOTO ARRAY. JUSTICE WAINER APTER: I CAN'T TELL
ONE HUNDRED PERCENT WHAT YOU'RE GETTING AT. ARE YOU SAYING THAT IF SOMEONE SAYS IT IS
WITH 90 PERCENT CERTAINTY IT NEVER COUNTS AS AN IDENTIFICATION BECAUSE IT THEY HAVE TO
SAY IT'S 1 HUNDRED PERCENT OR ARE YOU SAYING SOMETHING TOTALLY DIFFERENT BECAUSE SHE DID
MISS IDENTIFY BECAUSE SHE CHOSE A FILLER BUT SHE DID NOT IDENTIFY THE DEFENDANT WHICH
WE ALL AGREE WITH YOU SHE DID NOT IDENTIFY THE DEFENDANT BECAUSE SHE NEVER CHOSE THE ACTUAL
DEFENDANT OUT OF THE PHOTOS. LUCILLE M. ROSANO: SHE DIDN'T MAKE AN
IDENTIFICATION OF THE DEFENDANT. JUSTICE WAINER APTER: SHE MADE A
MISIDENTIFICATION BECAUSE SHE CHOSE THE FILLER; OKAY. JUDGE SABATINO: DID
SHE MAKE AN IDENTIFICATION OF THE DEFENDANT AS A RESULT OF THE LATER SESSION WHERE SHE IS
SHOWN THE PHOTO OF THE WATCH? ? DID SHE MAKE AN IDENTIFICATION OF HIM AS A
RESULT OF THAT EXPERIENCE? IN. LUCILLE M. ROSANO: NO, YOUR HONOR. THERE
WAS INDEPENDENT CASH DASH SHE MADE AN INDEPENDENT IDENTIFICATION OF THE DEFENDANT.
JUSTICE WAINER APTER: BUT DIDN'T SHE SAY IN COURT IT WAS BECAUSE SHE KNEW THEY HAD ARRESTED
THE RIGHT PERSON BECAUSE SHE SAW PHOTOS OF HER WATCH ON HIS PHONE? LUCILLE M.
ROSANO: SHE DID SAY THAT SHE BELIEVED THAT THE POLICE, BASED UPON THE FACT THAT THEY
HAD A PHOTO -- THAT THIS PERSON HAD A PHOTO OF HER WATCH THAT THE POLICE HAD.
JUSTICE PATTERSON: ARRESTED THE RIGHT PERSON. LUCILLE M. ROSANO: ARRESTED
THE RIGHT PERSON. HOWEVER, THAT IS -- THAT HAS TO BE BALANCED AGAINST THE FACT SHE DID,
IN FACT, HAVE AN INDEPENDENT BASIS FOR IDENTIFYING HIM. PLUS, I WOULD
JUST DASH GASH -- GOING BACK THO THAT, SHE DIDN'T NECESSARILY KNOW WHO ROBERSON BURNEY
WAS. I MEAN SHE DIDN'T NECESSARILY RECOGNIZE THE NAME. JUSTICE WAINER APTER:
PROBABLY WHEN SHE GOT TO THE TRIAL SHE WOULD KNOW THAT THE NAME OF THE DEFENDANT WAS ROBERSON
BURNEY. LUCILLE M. ROSANO: YES, YOUR HONOR. AND, IN FACT, AGAIN,
SHE DID HAVE AN INDEPENDENT BASIS FOR THE MAKING AN IDENTIFICATION OF HIM AND THAT THAT WAS
-- THAT WAS THE TWO INTERACTIONS WITH HIM, THE PRIOR INTERACTIONS THAT SHE, YOU KNOW,
SPOKE TO HIM, THAT SHE SAW HIM, THAT WHEN HE CAME TO THE DOOR SHE RECOGNIZED HIM APPEND
SHE DID TELL THE 911 DISPATCHER THAT HE HAD WORKED ON THE HOUSE. JUSTICE
WAINER APTER: I THOUGHT YOU SAID IN YOUR BRIEF THAT THIS WAS A CONFIRMATORY IDENTIFICATION
WHEN THE WITNESS HAS THIS PRIOR PERSONAL RELATIONSHIP. WHAT IS REQUIRED
FOR IT TO BE A CONFIRMATORY RELATIONSHIP? DOES IT HAVE TO BE YOU SAW THE
PERSON TWICE? WHAT IF YOU ONLY SAW THE PERSON ONCE BEFORE, BUT YOU HAD A
LONGER CONVERSATION? LUCILLE M. ROSANO: YOUR HONOR, I THINK THAT THAT IS
ALWAYS GOING TO DEPEND ON THE EVIDENCE ADDUCED AT TRIAL. I DON'T THINK THAT YOU CAN
NECESSARILY SAY THAT, YOU KNOW, THIS PERSON SAW, YOU KNOW, SAW -- YOU KNOW -- I THINK IN
THE OTHER CASE I HEARD TALK ABOUT YOUR FREPD FROM HIGH SCHOOL AND, YOU KNOW, YOU IDENTIFY
THAT PERSON CLOP FRIEND CLOP OR YOU'RE IDENTIFYING YOUR SPOUSE OR YOU'RE IDENTIFYING
A RELATIVE. I THINK IT'S ALL GOING TO REALLY DEPEND. JUSTICE PATTERSON:
IS IT THE STATE'S POSITION THAT A CONFIRMATORY IDENTIFICATION OCCURS ANY TIME THERE IS
ANY KIND OF PRIOR CONTACT SO THAT THE IDENTIFICATION IS NOT SIMPLY FROM THE CRIME
INTERACTION BUT ANY PRIOR ONE? THIS. LUCILLE M. ROSANO: NO, YOUR HONOR,
NOT NECESSARILY. I MEAN, IN THIS CASE, WE HAVE EVIDENCE THAT SHE DID RECOGNIZE -- SHE
DID RECOGNIZE THE DEFENDANT AS SOMEONE WHO HAD WORKED ON THE HOUSE. JUSTICE
PATTERSON: SO WHY DID YOU CALL THIS ONE A CONFIRMATORY IDENTIFICATION?
LUCILLE M. ROSANO: BECAUSE SHE DID RECOGNIZE HIM. SHE RECOGNIZED HIM FROM PRIOR INTERACTIONS.
SHE RECOGNIZED HIM WHEN HE CAME -- YOU KNOW, WHEN HE ARRIVED AT THE DOOR. JUSTICE
WAINER APTER: JUSTICE PATTERSON WAS JUST ASKING IF SOMEONE SAYS THAT THEY RECOGNIZE SOMEONE
BASED ON ONE PRIOR INTERACTION, WOULD THAT BE ENOUGH AND I THOUGHT YOU SAID NO.
LUCILLE M. ROSANO: OH, I'M SORRY. YES, YOUR HONOR, BUT, AGAIN, THAT'S, ALSO -- THAT'S
ALL FODDER FOR CROSS-EXAMINATION; THAT'S NOT SOMETHING THAT SHOULD BE EXCLUDED. IT'S
NOT -- IT DOESN'T MEET THE STANDARD OF VERY SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.
IT'S SOMETHING THAT WOULD HAVE TO GO TO THE JURY AND THAT THE JURY WOULD HAVE TO DECIDE.
JUDGE SABATINO: LET ME ASK YOU ABOUT TIMING ONE MORE THING. WHAT
TRIGGERS NOTICE IS WHAT I AM WONDERING ABOUT. WHEN DO YOU SAY THE STATE FIRST
REASONABLE PLEA EXPECTED THAT SHE WOULD IDENTIFY THE DEFENDANT AT TRIAL. WAS IT AT THE
CONCLUSION OF SHOWING THE PHOTOGRAPH OF THE WATCH OR WAS IT AT SOME LATER TIME?
WHEN DID THE STATE FIRST HAVE A REASONABLE BASIS TO EXPECT THAT IN COURT SHE WOULD SAY
THAT THAT'S THE PERPETRATOR? HAD. LUCILLE M. ROSANO: YOUR HONOR, I BELIEVE
THAT WAS DISCUSSED DURING DEFENDANT'S MOTION TO PRECLUDE THE IDENTIFICATION. THE PROSECUTOR
SEEMED TO BE PRETTY CLEAR THAT THE OTHER TWO WITNESSES WERE NOT -- YOU KNOW, WERE NOT
FWOEG TO BE ABLE TO MAKE AN IN-COURT IDENTIFICATION IN TERMS OF ROSETTE'S
IDENTIFICATION, EVEN AT THAT POINT THE PROSECUTOR DIDN'T SEEM TO KNOW WHETHER OR NOT SHE
WOULD IN FACT MAKE THE IN-COURT IDENTIFICATION. THE COURT: BUT IN TERMS
OF NOTICE, SHOULD THE QUESTION BE AN OBJECTIVE ONE, NOT WHEN THE PROSECUTOR REASONABLY
THOUGHT THE IDENTIFICATION MIGHT BE MADE A CERTAIN WAY, BUT WHEN THE PROSECUTOR DECIDED,
I AM GOING TO ASK THE QUESTION? THE. LUCILLE M. ROSANO: YOUR HONOR, I THINK
THE APPROPRIATE THING -- THE APPROPRIATE PROCEDURE IS THE PROCEDURE THAT WAS FOLLOWED
IN THIS CASE WHERE THE DEFENDANT MADE THE PRETRIAL MOTION. THE COURT: I
THOUGHT WE WERE TALKING MORE GENERALLY. JUDGE SABATINO: YES. THE
COURT: WE UNDERSTAND THERE WAS AN IN LIMINE MOTION HERE BUT I WAS FOLLOWING UP ON JUDGE
SABATINO'S QUESTION THAT YOU ANSWERED tAT WOULD APPLY MORE GENERALLY TO OTHER CASES, NOT
SIMPLY THIS ONE. LUCILLE M. ROSANO: I'M NOT SURE HOW TO ANSWER THAT QUESTION
BECAUSE I'M NOT SURE WHEN NOTICE -- WHEN NOTICE WOULD BE REQUIRED TO BE GIVEN BECAUSE
I THINK IT MAY BE DIFFERENT IN EVERY CASE. I MEAN I ASSUME IN MOST CASES THE PROSECUTOR
IS GOING TO ASSUME THAT AN EYEWITNESS IS GOING TO MAKE AN IN-COURT IDENTIFICATION.
JUDGE SABATINO: EVEN WHEREAS HERE THEY MISIDENTIFIED SOMEBODY ELSE BEFORE?
ANYWAY, FAIR ENOUGH; THAT'S SOMETHING WE CAN THINK ABOUT MORE. JUSTICE
WAINER APTER: CAN I ASK IF YOU THINK THAT THE -- I KNOW YOU ARGUED THAT THIS WAS A CONFIRM
ATORY IDENTIFICATION, BUT REETDING THE LANGUAGE FROM KRAIT TON WHERE IT SAYS TWO EXAMPLES
OF A GOOD REASON, ONE IS WHERE THE EYEWITNESS WAS FAMILIAR WITH THE DEFENDANT BEFORE THE
COMMISSION AS THE CRIME SUCH AS WHERE THE VICTIM TESTIFIES TO A CRIME OF DOMESTIC VIOLENCE.
DO YOU THINK THIS WOULD RISE TO THE LEVEL OF FAMILIAR WITH THE DEFENDANT BEFORE
THE COMMISSION OF THE CRIME SUCH AS WHERE THE VICTIM TESTIFIES TO A CRIME OF DOMESTIC
VIOLENCE? LUCILLE M. ROSANO: UNDER THESE FACTS, THE VICTIM WAS CERTAINLY
NOT AS FAMILIAR WITH THE INTRUDER SO I WOULD SAY NO, YOUR HONOR. CHIEF JUSTICE
RABNER: IS THERE ANYTHING ELSE YOU WOULD LIKE TO PRESENT TO US? LUCILLE M.
ROSANO: I JUST WANTED TO END BY SAYING THAT THE JURY CHARGE IN THIS CASE WAS APPROPRIATE.
THE JUDGE DID LET THE JURY KNOW THAT THERE WAS A TWO-YEAR LAPSE BETWEEN ROSETTE'S BEING
UNABLE TO IDENTIFY THE DEFENDANT'S PHOTO ON DECEMBER 28TH, WHICH WAS THREE DAYS AFTER
THE CRIME, BUT THAT SHE WAS, IN FACT, ABLE TO MAKE AN IN-COURT IDENTIFICATION TWO YEARS
LATER AND THIS ALERTED THE JURY EITHER TO THE ISSUE OF THE FACT THAT THERE WAS A LAPSE
OF TIME AND THIS WAS WHAT THE DEFENDANT HAD ASKED FOR. IN ADDITION, I WOULD
JUST LIKE THE COURT TO KNOW AND I HAVE THIS IN MY BRIEF, EXCUSE ME, AT PAGE 48, THE COURT
ALSO GAVE THE INSTRUCTION THAT IF YOU DECIDE THAT THE IDENTIFICATION IS THE PRODUCT OF
AN IMPRESSION GAINED AT THE IN COURT PROCEDURE, THE IDENTIFICATION SHOULD BE AFFORDED
NO WEIGHT. THIS IS JUST THE STANDARD LANGUAGE FROM THE IDENTIFICATION CHARGE. AND THAT'S
ALL I HAVE. THANK YOU. CHIEF JUSTICE RABNER: THANK YOU, MS.
ROSANO. MS. BONFIGLIO. LAUREN BONFIGLIO: THANK YOU, YOUR HONORS.
MAY IT PLEASE THE COURT. THE ATTORNEY GENERAL IS HERE ON BOTH.
AND I WOULD LIKE TO ADDRESS TWO FACTUAL ISSUES. FIRST, AS IT
RELATES TO THE DNA EVIDENCE, THE IDEA THAT NO WITNESS SAW THE DEFENDANT WITH THE COST
KOE BAG OR THAT THE COST KOE BAG KOVN LEFT IN THE HOUSE IS NOT AT ALL SUPPORTED BY THE
RECORD. THE RECORD SHOWS THAT THIS WAS A TWO-FAMILY DWELLING, THAT YOU WOULD
HAVE TO GO UP THE STAIRS IN ORDER TO GET TO ROSETTE'S APARTMENT. THE
DEFENDANT LET HIMSELF INTO THE APARTMENT SO -- YOU KNOW, UNANNOUNCED SO NO WITNESS WOULD HAVE
BEEN ABLE TO SEE THE DEFENDANT CARRYING THE COST KOE BAG AN THIS DEFENDANT, WHICH IS
UNDISPUTED DID WORK ON THE HOUSE. HE DID NOT DO WORK INSIDE THE HOUSE. HE DID WORK ON
THE ROOF. HE DIDN'T DO PAINTING AND DIDN'T DO ANY FLOORS SO THE IDEA THAT HE LEFT THAT
BEFORE IS NOT SUPPORTED BY THE RECORD. THE SECOND THING I WOULD LIKE TO NOTE
AN YOUR HONORS TOUCHED ON IT A LITTLE BIT BUT THERE WAS NO OUT-OF-COURT IDENTIFICATION
BY ROSETTE. THE RECORD ACTUALLY IS CLEAR ON THAT ISSUE AN I KNOW, YOU KNOW, IT HAS BEEN
DISCUSSED HERE A LOT TODAY, DEFENSE COUNSEL DOES PORTRAY IT AS AN OUT-OF-COURT IDENTIFICATION
BUT THAT'S NOT WHAT THE RECORD SHOWS AND I IMAGINE IF THE OUT-OF-COURT IDENTIFICATION
REALLY WAS THAT CLEAR HE WOULD HAVE BEEN PROVIDED IT AT SOME POINT. THE RECORD
ACTUALLY SHOWS THE OPPOSITE BECAUSE WHEN DEFENSE COUNSEL -- AND DEFENSE COUNSEL USED
THIS WHILE HE WAS CROSS-EXAMINING ROSETTE. JUSTICE WAINER APTER: ARE YOU
SAYING THERE WAS NO OUT OF THE COURT MISIDENTIFICATION? ARE YOU
SAYING THERE WAS NO OUT OF COURT MISIDENTIFICATION OF A FILLER? LAUREN BONFIGLIO:
I AM BECAUSE WHEN DEFENSE COUNSEL WAS CROSS-EXAMINING ROSETTE OVER THE PROSECUTOR'S
REPEATED OBJECTIONS, THE COURT ACTUALLY INTERJECTED AT ONE POINT AN YOU KNOW, RIGHT
AFTER SHE SAYS 90 PERCENT, THEN SHE SAYS NO. SO WE DON'T KNOW WHAT THAT VIDEO SHOWS IT'S
NOT IN THE RECORD. THE COURT: I'M SORRY, THEN SHE SAYS NO, EXPLAIN WHAT
THAT MEANS. LAUREN BONFIGLIO: SHE SAYS THE WORD NO BUT WE DON'T HAVE THE
VIDEO OF THAT. JUSTICE WAINER APTER: YOU MEAN YOU DON'T HAVE THE VIDEO OF THE
MISIDENTIFICATION OR WHATEVER YOU'RE CALLING IT, THE VIDEO OF WHAT HAPPENED ON THE 26TH
OF DECEMBER. LAUREN BONFIGLIO: YES. WE DO NOT HAVE THE VIDEO OF THAT.
JUSTICE WAINER APTER: SO THIS IS JUST WHAT SHE TESTIFIED TO AT TRIAL AND
WHAT WAS THE EXACT QUESTIONING AND ANSWER. LAUREN BONFIGLIO: THIS WAS TESTIFIED
AT TRIAL AND IT WAS ACTUALLY SHOWN AT TRIAL. WE DO NOT HAVE THAT IN THE RECORD BUT IT'S
IN THE TRANSCRIPT. WHAT IS SAID IS SHE SAYS, YOU KNOW, 90 PERCENT AN THEN THE WORD NO
SO WE DON'T KNOW EXACTLY WHAT THAT MEANS. JUSTICE WAINER APTER: SHE SAID
THAT ON THE 26TH OR SHE SAID THAT AT TRIAL. LAUREN BONFIGLIO: IT WAS THE
26TH AND THIS IS COMING FROM THE TRANSCRIPT OF THE OUT OF THE COURT PROCEEDING.
THE COURT: DO YOU HAVE A KRIT FOR US. JUSTICE PIERRE-LOUIS: YOU'RE SAYING
SHE SAID 90 PERCENT AN THEN SHE SAID NO, I DON'T UNDERSTAND WHAT THAT MEANS.
LAUREN BONFIGLIO: IT'S VERY HARD TO TELL BECAUSE WE DON'T HAVE A RECORD TO IT. SHE TESTIFIED
AT 11 T. IT IS DURING THE CROSS-EXAMINATION. IT IS OVER THE PROSECUTOR'S REPEATED OBJECTIONS
BECAUSE HE DIDN'T WANT THAT PLAYED. THIS ISSUE WAS DISCUSSED EXTENSIVELY IT WAS DISCUSSED
AT 6 T IT WAS DISCUSSED THROUGHOUT THE RECORD AND THE JUDGE MADE FIENTDINGS THAT THIS WAS
NOT AN IDENTIFICATION. THIS WAS NOT A MISIDENTIFICATION. IT WAS NOT AN
IDENTIFICATION. WHAT IT SAYS IN THE RECORD, I KNOW IT'S PROBABLY CONFUSING BUT IT SAYS
90 PERCENT. NO. SO WE DON'T HAVE THE VIDEO OF THAT, BUT IT WAS TREATED AS NOT A POSITIVE
IDENTIFICATION. SHE WAS ASKED TO MAKE AN IDENTIFICATION. JUSTICE WAINER
APTER: A MISIDENTIFICATION. IT'S NOT AN IDENTIFICATION OF THE DEFENDANT NO MATTER
WHAT? LAUREN BONFIGLIO: I'M SO SORRY IF I'M BEING UNCLEAR. SHE DID DECLINE
TO MAKE A SELECTION AT THAT PHOTO ARRAY PROCEDURE. FROM WHAT I CAN TELL IN THE
RECORD SHE DECLINED TO MAKE A SELECTION SO TO CALL THAT A MISIDENTIFICATION IS NOT CORRECT.
JUSTICE PATTERSON: THE, WHAT WAS THE QUESTION THAT ELICITED THE ANSWER 90
PERCENT. NO. DID YOU IDENTIFY ANY OF THE -- DASH. LAUREN BONFIGLIO:
THIS IS OF THE OUT-OF-COURT IDENTIFICATION PROCEDURE SO IT'S NOT ACTUALLY
CROSS-EXAMINATION. THIS IS A COLD TRANSCRIPT OF THE VIDEO IN THE RECORD. JUSTICE
PATTERSON: SO THE VIDEO IS -- SO SHE'S SHOWN -- YOU DON'T KNOW REALLY WHAT IS GOING ON.
LAUREN BONFIGLIO: I THINK SHE'S LOOKING AT PICTURES. JUSTICE
PATTERSON: SHE IS LOOKING AT PICTURES AND SHE SAID 90 PERCENT AN THEN SHE SAYS NO.
LAUREN BONFIGLIO: YES PATH AT ON THE BASIS OF. JUSTICE PATTERSON: IN
THE BASIS OF THAT IN THE CROSS-EXAMINATION OF HER AT TRIAL THE DEFENDANT IS SAYING YOU
PICKED SOMEBODY EMS AT 90 PERCENT. LAUREN BONFIGLIO: EXACTLY. DEFENSE COUNSEL
WAS CROSS-EXAMINING HER ON THAT AND THE JUDGE INTERJECTED AT A CERTAIN POINT AND SAID,
COUNSEL, YOU KNOW, YOU HAVE TO READ THE WHOLE STATEMENT, WHAT COMES NEXT AN THEN IT WAS
THE WORD NO. JUSTICE PATTERSON: SO IN OTHER WORDS IT'S NOT CLEAR WHETHER
SHE IDENTIFIED ANY OF THE PHOTOGRAPHS. JUDGE SABATINO: IS THERE A WRITTEN
TRANSCRIPT OF THE PHOTO ARRAY SESSION THAT PRESEX, EXISTED THE TRIAL? WAS
ONE CREATED? LAUREN BONFIGLIO: I BELIEVE SO. DEFENSE COUNSEL HAD IT.
DEFENSE COUNSEL USED -- ACTUALLY, I DON'T KNOW. I WOULD IMAGINE SO. HE DEFINITELY HAD
A VIDEO BECAUSE HE PLAYED IT OVER THE PROSECUTOR'S OBJECTIONS. JUDGE
SABATINO: BUT THE TRANSCRIPT MIGHT HAVE BEEN JUST A TRANSCRIPT THAT THE TRIAL TRANSCRIBER
CREATED BASED ON WHAT WAS OVERHEARD WHEN THEY PLAYED THE VIDEO, NOT SOMETHING THAT PREEKS
KS EXISTED THE TRIAL IS THAT SOMETHING THAT HAPPENED. LAUREN BONFIGLIO:
I CANNOT ANSWER IF THERE WAS A TRANSCRIPT OR NOT. COMBROV IT. JUDGE SABATINO:
WHAT YOU'RE CLAIMING THOUGH IS THE WORD NO WAS SOMETHING SHE UTTERED AT THE PRETRIAL
-- AT THE PHOTO ARRAY PROCEDURE, NOT IN RESPONSE TO A QUESTION -- LAUREN
BONFIGLIO: ABSOLUTELY. IT WAS DURING THE PHOTO ARRAY PROCEDURE. SHE SAID SOMETHING
LIKE 90 PERCENT. NO. I JUST WANTED TO POINT IT OUT. I DON'T THINK IT WAS NECESSARILY
DISPOSITIVE BUT THE IDEA THERE WAS SOME MISIDENTIFICATION OF THE DEFENDANT I DON'T
THINK IS ACTUALLY CORRECT IN THIS CASE. JUSTICE PIERRE-LOUIS: SHE DIDN'T
IDENTIFY HIM IN THE PHOTO ARRAY THAT DID INCLUDE HIM. LAUREN BONFIGLIO:
NO AND I HAVEN'T CLAIMED THAT HE DID. ROSETTE DID NOT MAKE AN OUT-OF-COURT IDENTIFICATION
THAT'S WHAT I AM CLAIMING. SHE MADE IN IN-COURT IDENTIFICATION, 11 T IS WHERE SHE TESTIFIED,
11 T PAGE 79 COUNSEL CROSS EXAMINED R HER AND HE SAYS DID YOU EVEN HAVE TIME TO ASK HIM
WHAT HIS NAME WAS AN SHE SAYS NO, I KNEW WHO HE WAS. SHE IS VERY CLEAR FROM
THE 9129-1-1 CALL THROUGH HER TESTIMONY AND IT WASN'T A BUNCH OF PEOPLE. IT WAS ONE OF
THREE SPECIFIC PEOPLE, WE KNOW MARK BURNEY WAS THE CONTRACTOR. WE KNOW A MAN TIE REASON
REFERRED THE CONTRACTOR, WHEN THE MAN WALKED IN THE HOUSE HE SAID THE WORD TIE REASON
HE SAID THE WORD WORK. JUSTICE PATTERSON: WHAT IS THE FAMILIAL RELATIONSHIP
BETWEEN MARK BURNEY AND THE DEFENDANT. LAUREN BONFIGLIO: THEY ARE BROTHERS.
JUSTICE PATTERSON: LAUREN BONFIGLIO: MARK BURNEY WAS THE
CONTRACTOR HIS BROTHER AND HIS SON WORKED ON THE HOUSE THAT'S WHAT ROSETTE TESTIFIED TO.
SHE DIDN'T KNOW HIM BY NAME BUT MARK BURNEY CLEARED THAT UP. MARK BURNEY'S CELLPHONE
NUMBER WAS CONSISTENT WITH DEFENDANT'S CELLPHONE RECORDS. CHIEF JUSTICE RABNER:
WOULD YOU AGREE HAD SHE MADE AN IDENTIFICATION I'M 90 PERCENT CERTAIN THAT WOULD QUALIFY
AS AN IDENTIFICATION. LAUREN BONFIGLIO: ABSOLUTELY SFWLFRMTHS OR A
MISIDENTIFICATION. LAUREN BONFIGLIO: ABSOLUTELY. IF SHE WAS ASKED DO YOU
RECOGNIZE THE PERSON, SHE AS FAR AS I CAN TELL IN THE RECORD DECLINED TO MAKE A SELECTION.
CHIEF JUSTICE RABNER: SO YOU'RE ONLY ADVANCING THIS ARGUMENT IN THE CONTEXT
OF OVER ALL ARM THERE WASN'T A PRIOR MISIDENTIFICATION. LAUREN
BONFIGLIO: MORE OR LESS. I JUST WANTED TO POINT OUT -- JUSTICE WAINER APTER:
DIDN'T COUNSEL FOR THE DEFENDANT SPECIFICALLY REQUEST THAT THE TRIAL COURT INSTRUCT THE
JURY THAT ROSETTE HAD PREVIOUSLY IDENTIFIED A FILLER? LAUREN BONFIGLIO:
YES. JUSTICE WAINER APTER: AN THE TRIAL COURT DENIES THAT REQUEST, BUT DOES
THE TRIAL COURT SAY ON THE RECORD, I AM DENYING THAT REQUEST BECAUSE THAT NEVER HAPPENED?
LAUREN BONFIGLIO: I DON'T REMEMBER EXACTLY. MY READING OF IT I WAS LESS
CONFIDENT THAT THE RECORD WHICH WE DON'T HAVE WHICH WAS NOT PROVIDED, THE ACTUAL VIDEO
OF THE OUT-OF-COURT IDENTIFICATION PROCEDURE I WOULD IMAGINE SUPPORTS THAT.
JUSTICE WAINER APTER: I AM TALKING ABOUT AT A LATER STAGE. I AM TALKING ABOUT DEFENSE
COUNSEL GETS UP OR DURING THE CHARGE CONFERENCE SAYS I WOULD LIKE YOU TO INSTRUCT THE
JURY THAT ROSETTE PREVIOUSLY IDENTIFIED A FILLER AND THE TRIAL JUDGE SAYS NO OR SOMETHING
LIKE THAT DOES HE VA NO BECAUSE THAT NEVER HAPPENED OR JUST NO. JUSTICE
SOLOMON: THE TRIAL COURT DID AT TRIAL SPECIFICALLY SAY THAT WAS A
NONIDENTIFICATION. HE SPECIFICALLY SAID THAT AT PAGE 35 OF THE TRANSCRIPT ON JANUARY 30TH.
LAUREN BONFIGLIO: THE JUDGE SAID THAT? JUSTICE SOLOMON: HE
SAID, BUT MR. WAUFL, LET ME JUST STOP YOU WHERE IS THE UNNECESSARY OUT-OF-COURT
IDENTIFICATION, THAT'S THE ISSUE. HERE. IT WAS A NONIDENTIFICATION. IN FACT, IF ANYTHING,
IT GOES TO THE DEFENSE THAT SHE IDENTIFIED SOMEBODY ELSE. THERE IS NOTHING SUGGESTIVE
ABOUT THAT. I THINK THAT'S WHAT HE IS SAYING. I DON'T THINK IT WAS EVER RAISED AFTER
THAT, BUT I COULD BE WRONG. LAUREN BONFIGLIO: I THINK HE DID REQUEST THAT
INSTRUCTION ON I BELIEVE 14 T HE REQUESTED THREE SPECIFIC INSTRUCTIONS ON THE IDENTIFICATION
ISSUE. THE JUDGE DID INCORPORATE SOME OF THE LANGUAGE REFERENCING THE DATES. I BELIEVE
IT'S 15 T THE NEXT DAY THAT HE ALSO REQUESTED THAT FILLER LANGUAGE WHICH I DON'T RECALL
EXACTLY WHAT THE JUDGE'S REASONING WAS. JUSTICE PATTERSON: IS THERE ANYWHERE
WHERE ANYBODY SAYS IT IS A MATTER OF FACT THAT THERE WAS NO MISIDENTIFICATION?
LAUREN BONFIGLIO: I CANNOT SAY SPECIFICALLY, BUT I BELIEVE THAT THE JUDGE FOUND THAT,
OTHERWISE -- AND COUNSEL WASN'T LIMITED IN HIS CROSS-EXAMINATION. HE WAS ABLE TO BRING
OUT ALL THESE FACTS. JUSTICE PATTERSON: THERE WERE THREE ASPECTS THAT THE
DEFENDANT WANTED IN TERMS OF ADDITIONAL CASE SPECIFIC LANGUAGE IN THE JURY CHARGE AND
THE JUDGE MAY HAVE DENIED THAT FOR REASONS OTHER THAN A CONCLUSION THAT THERE WAS NO
MISIDENTIFICATION. LAUREN BONFIGLIO: WE DON'T KNOW. JUSTICE
PATTERSON: RIGHT, WE DON'T KNOW. LAUREN BONFIGLIO: I DO BELIEVE THROUGHOUT
THE RECORD THERE ARE INSTANCES WHERE THERE WERE FINDINGS THAT THIS WAS NOT A
MISIDENTIFICATION. THIS WAS NOT A POSITIVE SELECTION. I DIDN'T WANT TO FOCUS ON THAT
BUT I DID WANT TO POINT IT OUT. THE COURT: WHAT IS THE BROADER RELEVANCE
FOR THAT? I WANT TO READ FOR YOU THE SYSTEM VARIABLES IN HENTD DID THE
EYEWITNESS INITIALLY MAKE NO CHOICE OR CHOOSE A DIFFERENT SUSPECT OR FILLER?
WOULDN'T THE PROCESS THAT TOOK PLACE THERE ARGUABLY FACTOR INTO A HEARING, AN EVALUATION
ABOUT SUGGESTIVENESS. LAUREN BONFIGLIO: ORDINARILY, SURE, BUT THE
DEFENDANT HAS TO MEET THE BURDEN TO SHOW -- YOU KNOW, TO SHOW THE REQUIRED THRESHOLD FOR
SUPPRESSION OR ANY SORT OF INSTRUCTION. THEY CAN REQUEST IT. IT WASN'T MET HERE.
CHIEF JUSTICE RABNER: BY TELLING THE DEFENDANT -- BY TELLING THE WITNESS, THIS IS THE
NAME OF THE DEFENDANT AND SHOWING THE PHOTOS AND SAYING IT'S FROM THAT PHONE THAT THAT
MINIMAL THRESHOLD HAD BEEN HURD LD? LAUREN BONFIGLIO: ABSOLUTELY NOT.
THE COURT: THAT'S NOT SUGGESTIVE. LAUREN BONFIGLIO: IT IS SUGGESTIVE
AND WE, TO BE CLEAR, WE WOULD ENCOURAGE OFFICERS TO AVOID GIVING ANY SORT OF SUGGESTIVE
INFORMATION BUT IT WAS NOT SO UNDULY SUGGESTIVE AS TO REQUIRE SUPPRESSION. CHIEF
JUSTICE RABNER: NO, I ASKED ABOUT A HEARING. LAUREN BONFIGLIO: THE DEFENDANT
DIDN'T POINT TO ANYTHING MORE THAN JUST GIVING THE VICTIM THE DEFENDANT'S NAME AND SAYING
WE FOUND THESE PHOTOS ON HIS PHONE. IT WASN'T A PHOTOGRAPH OF THE DEFENDANT AND IT WASN'T
ANYTHING LIKE THAT. IT IS REALLY NO DIFFERENT THAN WHEN VICTIMS GO TO PRETRIAL DETENTION
HEARINGS AND THEY HEAR SOME OF THE EVIDENCE AGAINST THE DEFENDANT. NOBODY WOULD DISPUTE
THAT THEY ARE ENTITLED TO BE AT THOSE HEARINGS, THEY ARE ENTITLED TO HEAR THOSE SORTS
OF THINGS BURT I DON'T SEE ANYBODY ARGUING WELL, NOW THEY CAN'T MAKE AN IN-COURT
IDENTIFICATION BECAUSE NOW THEY KNOWN THE DEFENDANT'S NAME AND THE EVIDENCE AGAINST
HIM. THE POLICE SHOULD NOT GIVE THAT SORT OF INFORMATION. THEY SHOULD TRY TO AVOID IT
BUT IT WAS NOT SO UNDULY SUGGESTIVE AS TO EVEN REQUIRE A HEARING OR A. CHIEF
JUSTICE RABNER: IT DOESN'T HAVE TO BE UNDULY SUGGESTIVE UNDER THE CASE LAW, DOES IT?
TO TRIGGER A HEARING. LAUREN BONFIGLIO: THE CASE LAW ISN'T
ENTIRELY CLEAR. CHIEF JUSTICE RABNER: ASSUME THE HENDERSON FRAMEWORK.
LAUREN BONFIGLIO: THEY WOULD HAVE TO POINT TO SOME EVIDENCE OF SUGGESTIVENESS.
CHIEF JUSTICE RABNER: AND TELLING THE WITNESS, THIS IS THE DEFENDANT, THIS IS
HIS PHONE, HAVE A LOOK AT THIS PHOTO DOES NOT CONSTITUTE SUGGESTIVE EVIDENCE AS YOU
UNDERSTAND IT TO TRIGGER A HEARING? LAUREN BONFIGLIO: NOT IN THE IDENTIFICATION
SENSE BECAUSE THEY ARE NOT SHOWING HIM A PICTURE OF THE DEFENDANT AN THEY'RE NOT -- I
MEAN, AT THE SAME TIME, IT'S SUGGESTIVE IN A WAY, BUT THE POLICE SHOULD HAVE EVERY RIGHT
TO ALLEVIATE THE VICTIM'S FEARS AN LET THEM KNOW HEY, WE GOT THE RIGHT MAN. THE
COURT: YOU ARE CORRECT ABOUT THAT. BUT IF YOU MAKE A DETERMINATION TO ALLEVIATE SOMEONE'S
FEARS, THAT MIGHT HAVE A CONSEQUENCE FOR WHETHER THERE IS A SUGGESTIVE IDENTIFICATION
THAT CAN NO LONGER TAKE PLACE. LAUREN BONFIGLIO: IT MIGHT, BUT IT WOULD BE
THE DEFENDANT'S BURDEN TO SHOW THAT EXTREMELY HIGH BAR FOR SUPPRESSION, BUT...
CHIEF JUSTICE RABNER: LET ME ASK IT THIS WAY, THE WITNESS COMES IN, YOU'RE GOING TO SHOW
THE WITNESS AN ARRAY, IS IT SUGGESTIVE IF THE OFFICER SAYS IMMEDIATELY BEFORE, I WANT
YOU TO KNOW, WE FOUND THE GUY, THIS IS THE GUY'S NAME AND THESE ARE PHOTOS FROM HIS PHONE,
NOW, CAN YOU MAKE AN IDENTIFICATION FOR US. SUGGESTIVENESS TO GET A HEARING.
LAUREN BONFIGLIO: ABSOLUTELY. THEY SHOULD NOT DO THAT AND THAT'S AGAINST
THE A G GUIDELINES AN HENDERSON, THEY SHOULD AVOID THAT SORT OF INFORMATION.
WHAT THE DETECTIVE SAID HERE WAS -- I MEAN WHEN SHE SPOKE TO POLICE, SHE SAID HE TOOK MY
JEWELRY. WHEN THEY WERE SHOWING -- WHEN THEY CAME IN TO SEE IF SHE COULD IDENTIFY THE
PHOTO, THEY SAID WE FOUND YOUR WATCH AND NAMED HIM BUT IT WAS SUGGESTIVE IN A WAY THAT
THEY SHOULD AVOID THAT GENERALLY, BUT IT WASN'T SO UNDULY SUGGESTIVE TO MEET THE HIGH
BURDEN OF SUPPRESSION. JUDGE SABATINO: AT THAT POINT, THOUGH, WAS THERE
ENOUGH THAT HAD TRANSPIRED TO REQUIRE THE PROSECUTOR TO NOTIFY THE DEFENDANT THAT THEY
EXPECTED AT TRIAL THAT SHE WOULD IDENTIFY HIM AND IF IT DIDN'T HAPPEN THEN, AT WHAT POINT
IN THIS CHRONOLOGY WOULD A PROSECUTOR REASONABLY EXPECT THAT SHE WOULD DO THAT.
LAUREN BONFIGLIO: NOT NECESSARILY. THE PROBLEM IN THIS CASE, THE PROSECUTOR AT NO POINT
KNEW WHETHER THE VICTIMS COULD MAKE AN IN-COURT IDENTIFICATION. HE SAID THAT PRETRIAL
AND THAT WAS PART OF THE JUDGE'S RULINGS. I DO NOT KNOW WHETHER THE VICTIMS WILL BE ABLE
TO IDENTIFY THE DEFENDANT IN COURT. THAT DIDN'T STOP DEFENSE COUNSEL FROM APPROPRIATELY
MOVING TO EXCLUDE ANY IN-COURT IDENTIFICATION AN HE DID THAT AND HE MOVED IN LIMINE TO
DO THAT AND THEY ARGUED AND THE JUDGE ULTIMATELY FOUND I DON'T KNOW WHETHER THERE WILL
BE AN IN-COURT IDENTIFICATION IN THIS CASE BUT IF THERE WILL BE IN MY OPINION YOU WILL
BE ABLE TO EVISCERATE THAT. JUSTICE PATTERSON: THERE WAS A GUY SITTING
AT COUNSEL TABLE WITH TWO LAWYERS AN LAWYERS ARE PRETTY IDENTIFIABLE IN THIS WORLD. THE
FACT IS YOU HAVE GOT A GUY SITTING BETWEEN TWO LAWYERS AT DEFENSE COUNSEL TABLE.
LAUREN BONFIGLIO: ABSOLUTELY. JUSTICE PATTERSON: SO EVEN IF THE PROSECUTOR
HAS HAVING SUSPENSE ABOUT WHETHER THERE WOULD BE AN IDENTIFICATION, OBJECTIVELY, IT'S
NOT A LONG SHOT, IS IT? LAUREN BONFIGLIO: IT'S NOT BUT IT'S NOT NECESSARILY
THE CASE BECAUSE YOU HAVE THREE VICTIMS IN THIS CASE AN ONLY ONE SAID THAT THEY COULD
IDENTIFY IN COURT. THE OTHER TWO DIDN'T MAKE AN ATTEMPT. EVEN IF THE WATSON CASE HE
IDENTIFIED THE DEFENDANT IN COURT EVEN THOUGH HE WAS SITTING AT DEFENSE COUNSEL TABLE,
BUT HE WAS ONLY 85 PERCENT SURE. IT DOESN'T NECESSARILY THAT THE VICTIM WILL ALWAYS
IDENTIFY THE DEFENDANT JUST BECAUSE HE IS SITTING THERE. CASE LAW RECOGNIZES THAT IN-COURT
IDENTIFICATION ARE SUGGESTIVE. THEY ARE SUGGESTIVE IN A WAY. THE JURY KNOWS THAT,
TOO. THE JURY CAN SEE HEY, IT'S PRETTY EASY TO POINT OUT THE GUY ON TRIAL.
CHIEF JUSTICE RABNER: WAS THE JURY STRUKTD ABOUT THAT SPECIFICALLY? LAUREN
BONFIGLIO: NO, BUT THEY ALSO WEREN'T REQUESTED TO. THE JURY WAS -- CHIEF
JUSTICE RABNER: SHOULD THEY BE IN ANOTHER CASE? LAUREN BONFIGLIO: I DON'T
BELIEVE IT'S NECESSARY AS FAR AS I'VE SEEN IN THIS CASE, THE JURY WAS INSTRUCTED IMMEDIATELY
AFTER ROSETTE IDENTIFIED THE DEFENDANT AN THEY WERE REMINDED THAT SHE COULD NOT IDENTIFY
THE DEFENDANT OUT OF COURT BUT NOW SHE COULD IDENTIFY HIM IN COURT. DEFENSE
COUNSEL VIGOROUSLY CROSS EXAMINED HER ON THAT AND THEN THE JURY WAS INSTRUCTED AT THE
END VERBATIM TO THE MODEL JURY INSTRUCTION, WHICH IS IN COURT IDENTIFICATIONS ONLY.
CHIEF JUSTICE RABNER: SO IT'S SUFFICIENT THAT THE JURY CAN FIGURE IT OUT FOR ITSELF BASED
ON THE COURTROOM LAYOUT. THERE IS NO NEED FOR THAT TO BE HIGHLIGHTED IN A COURT'S
INSTRUCTION IS THAT YOUR POSITION. LAUREN BONFIGLIO: AS OF THAT, YES, BUT
PERRY V NEW HAMPSHIRE ALSO RECOGNIZES THAT THE COURTROOM ATMOSPHERE IS SUGGESTIVE. BLANK
THE REQUIREMENT THAT THE STATE PROVE THE CASE BEYOND A REASONABLE DOUBT AND COUNSEL IS
FREE TO POINT THAT OUT DURING SUMMATION AND HE DID. JUSTICE WAINER APTER:
I THOUGHT I SAW IN YOUR BRIEF THAT YOU SAID THAT BARRING FIRST TIME IN-COURT IDENTIFICATIONS
WOULD QUOTE, UNRIGHT ELIMINATE THE STATE'S ABILITY TO MEET IT'S HIGH BURDEN OF PROOF.
WHY WOULD THAT BE. LAUREN BONFIGLIO: THAT IS HE IS AN ELEMENT
THAT THE STATE LAS TO PROVE IN EVERY CASE, I BELIEVE MADISON RECOGNIZES THIS, SOMETIMES
IDENTIFICATION EVIDENCE IS THE MOST CRUCIAL EVIDENCE. JUSTICE WAINER APTER:
WHY DOES IT HAVE TO BE A FIRST TIME IN-COURT IDENTIFICATION. YOUR ADVERSARY SAID, BOTH
OF THEM I THINK SEVERAL TIMES THAT THERE ALWAYS COULD BE A LINEUP. IF THE PERSON CAN'T
IDENTIFY THROUGH PHOTOS YOU COULD HAVE A LINEUP WHERE THERE ARE MULTIPLE PEOPLE IN THE
LINEUP AND IT'S DONE IN A NONE SUGGESTIVE WAY AND ROSETTE OR ANYONE ELSE COULD HAVE GONE
AND ATTEMPTED TO IDENTIFY THE DEFENDANT IN A LINEUP. WHY DOES IT HAVE TO BE DONE IN COURT
FOR THE FIRST TIME WHEN IT IS SO SUGGESTIVE BECAUSE IT IS OBVIOUS TO EVERYONE WHERE THE
DEFENDANT IS SITTING? LAUREN BONFIGLIO: IT DOESN'T NECESSARILY HAVE TO BE
FOR THE FIRST TIME IN COURT BUT I DON'T KNOW THAT DEFENDANTS WOULD WANT THAT SORT OF RULE
EITHER BECAUSE IF THE VICTIM IS ABLE TO IDENTIFY THE DEFENDANT, WELL, THAT'S A LOT LESS
SUGGESTIVE THAN ORDINARILY JUST, YOU KNOW, THE ONLY PERSON IN FRONT OF THE JURY AND THAT
SHOULD BE ABLE TO COME OUT. IF THEY WERE ABLE TO IDENTIFY THE DEFENDANT IN COURT UNDER
NONSUGGESTIVE CIRCUMSTANCES THAT WOULD BE BETTER FOR THE STATE. JUSTICE WAINER
APTER: I AM TALKING ABOUT A PRETRIAL LINEUP NOT A LINEUP IN COURT. SO THE
PROSECUTOR KNOWS THAT THE WITNESS HAS NEVER IDENTIFIED THE DEFENDANT OUT OF COURT AND
THE PROSECUTOR SAYS OKAY, BECAUSE I AM GOING TO TRIAL NOW AND I WANT THE WITNESS TO BE
ABLE TO IDENTIFY THE DEFENDANT IN COURT BECAUSE I WANT THE PERRY MASON MOMENT I NEED TO HAVE
A LINEUP FIRST SO THAT THE WITNESS CAN ACTUALLY IDENTIFY THE DEFENDANT OUT OF COURTS FIRST
RATHER THAN THE IN COURT TIME WHEN IT'S OBVIOUS WHO THE DEFENDANT IS BEING THE FIRST IET
OF IDENTIFICATION. WHY WOULD THAT NOT BE POSSIBLE. LAUREN BONFIGLIO:
BECAUSE THAT INJECTS THE SORT OF -- NOT NECESSARILY MUG SHOT EXPOSURE OR MUG SHOT
COMMITMENT BUT NOW YOU ARE SHOWING THE DEFENDANT'S FACE AT SOME POINT AND THE RISK IS THAT THE
VICTIM WILL NOW REMEMBER THE DEFENDANT FROM SEEING HIM BEFORE SGLFRMENT ARE YOU
SUGGESTING THE BETTER PRACTICE IS TO WAIT UNTIL TRIAL FOR THAT REASON. LAUREN
BONFIGLIO: NOT NECESSARILY. I AM JUST POINTING OUT THAT THERE ARE PROBLEMS WITH BOTH
ISSUES AND THAT IN COURT, FIRST TIME IDENTIFICATIONS -- THE CIRCUMSTANCES THAT
WILL BE PRESENT FOR THE JURY AND IT COULD BE FULLY EXPLORED DURING CROSS-EXAMINATION.
THE JURY SHOULD BE ALLOWED TO WEIGH THAT TESTIMONY. CHIEF JUSTICE
RABNER: BUT IT -- PLEASE. JUSTICE PIERRE-LOUIS: SO IN CASES WHERE THE
OFFICERS HAVE PRESENTED A WITNESS WITH A PHOTO ARRAY AS A VICTIM, THE WITNESS HAS POSITIVELY
IDENTIFIED THE DEFENDANT, THE STATE HAS A -- THERE IS AN ISSUE WITH THAT BY THE TIME YOU
GET TO TRIAL AND THERE IS AN IN-COURT IDENTIFICATION? IT SOUNDED LIKE
YOU WERE SAYING WELL, THERE ARE ISSUES INVOLVED WITH THE VICTIM SEEING THE DEFENDANT'S
PICTURE BEFOREHAND IS THAT WHAT YOU WERE SAYING? LAUREN BONFIGLIO: NOT AT ALL.
JUSTICE PIERRE-LOUIS: WHEN YOU WERE RESPONDING TO JUST WAINER APTER I WASN'T
RESPONDING TO WHAT YOU WERE SAYING IT SOUNDED LIKE YOU SAID THERE ARE ISSUES WHEN THERE IS
AN OUT OF COURT FLAI PRIOR TO TRIAL BECAUSE THAT'S EXPOSING THE VICTIM TO THE DEFENDANT'S
PICTURE I AM PRETTY SURE YOU SAID THAT SO IF YOU CAN EXPLAIN WHAT THAT MEANT.
LAUREN BONFIGLIO: SURE. I THINK IT WAS MORE AS TO THE SUGGESTION OF AN IN
PERSON LINEUP BEFORE TRIAL? JUSTICE WAINER APTER: IF THE WITNESS ALREADY
IDENTIFIED THE DEFENDANT IN THE PHOTO ARRAY, THEN YOU DON'T HAVE AN ISSUE BECAUSE THEN
YOU'RE NEVER IN FIRST TIME IN-COURT IDENTIFICATION, BUT IF THE WITNESS WAS UNABLE
TO IDENTIFY THE DEFENDANT IN A PHOTO ARRAY, LIKE WHAT HAPPENED IN THIS CASE AN THE PROSECUTOR
THEN WANTS TO ASK THE WITNESS TO IDENTIFY THE DEFENDANT AT TRIAL WHEN IT'S COMPLETELY
OBVIOUS WHERE THE DEFENDANT IS IN THE COURTROOM, SHOULDN'T THE PROSECUTOR OR COULDN'T
THE PROSECUTOR DO A LINEUP FIRST SO THAT IF THE ISSUE IS, YOU KNOW, UNABLE TO RECOGNIZE
IN PHOTOS WOULD ONLY BE ABLE TO RECOGNIZE IN PERSON, OKAY, DO A LINEUP IN A NONSUGGESTIVE
WAY AN THEN SEE IF THE WITNESS IS ABLE TO IDENTIFY THE DEFENDANT. LAUREN
BONFIGLIO: I APOLOGIZE. I MISUNDERSTOOD YOUR QUESTION; THAT'S A TOTALLY ACCEPTABLE OPTION.
JUSTICE WAINER APTER: MY QUESTION IS WHY SHOULD IT NOT BE REQUIRED?
YOU SEEMED LIKE YOU WERE SAYING SOMETIMES IN COURT IDENTIFICATIONS ARE REQUIRED AND I
DON'T UNDERSTAND WHY THEY ARE REQUIRED. WHY CAN'T A PROSECUTOR ALWAYS DO A
LINEUP FIRST? LAUREN BONFIGLIO: THEY COULD. I DON'T THINK ENOUGH HAS BEEN
PRESENTED IN THIS CASE TO IMPOSE THAT SORT OF REQUIREMENT GOING FORWARD. AS DEFENSE
COUNSEL SAID, THESE ARE VERY RARE AND IT IS NOT EVEN THE CASE THAT THEY WILL NECESSARILY
BE ABLE TO IDENTIFY. AS WE CAN SEE IN THIS CASE, TWO OF THEM SAID I CAN'T
IDENTIFY HIM EVEN THOUGH HE WAS SITTING IN THE COURTROOM. CASE LAW ALSO MAKES CLEAR THAT
THIS SORT OF SUGGESTIVENESS CAN BE MEDIATED THROUGH THE NORMAL TRIAL PROTECTIONS.
IF THAT WAS SOME SORT OF BEST PRACTICE OR RECOMMENDATION, COUNSEL CAN CERTAINLY REQUEST
THAT AND THEN THE JUDGE WOULD BE ABLE TO RULE BUT THAT WASN'T REQUESTED HERE AND COUNSEL
DIDN'T POINT TO MUCH TO MEET THAT -- AT TRIAL, AT LEAST, TO MEET THAT SORT OF HIGH THRESHOLD,
BUT GOING FORWARD, THAT IS CERTAINLY AN ALTERNATIVE THAT COUNSEL COULD MOVE FOR.
JUDGE SABATINO: WELL, THEY WOULDN'T MOVE FOR IT UNLESS THEY HAD SOME INKLING
THAT THE WITNESS IS NOW ABLE TO MAKE AN IDENTIFICATION. LAUREN
BONFIGLIO: NOT NECESSARILY. COUNSEL HERE MOVED FOR IT. I THINK APPROPRIATELY SO. COUNSEL
DID EVERYTHING RIGHT HERE. HE DID MOVE JUST PREEMPTIVELY TO BAR ANY SORT OF IN COURT
IDENTIFICATIONS AND THE PARTIES ARGUED IF THERE IS SOME SORT OF LEVEL SUGGESTION THAT
WOULD WARRANT A HEARING OR MAYBE SOME ALTERNATIVE REQUEST LIKE A LINEUP, THEN THE COURT
WOULD BE ABLE TO ORDER THAT IN ITS DISCRETION, BUT I DON'T BELIEVE IT'S NECESSARY IN EVERY
CASE. JUSTICE FASCIALE: INSTEAD OF HAVING A DEFENDANT MOVE TO BAR IN-COURT
IDENTIFICATION, IS THERE ANY PROBLEM WITH HAVING THE STATE, IF THE STATE PLANS TO ATTEMPT
THIS, TO IN LIMINE MOVE SEEKING PERMISSION TO DO SO LIKE I THINK THEY DID IN MAST
MASSACHUSETTS. LAUREN BONFIGLIO: THERE IS NO MAJOR OBSTACLE OR PROBLEM WITH
DOING THAT AS A BEST PRACTICE. I THINK THE PROBLEMS ARISE WHEN YOU CREATE A REQUIREMENT
OF THAT BECAUSE I THINK AS IT WAS SAID IN WATSON, THERE ARE SITUATIONS WHERE A WITNESS
MIGHT COME INTO COURT AN THE PROSECUTOR DIDN'T KNOW THEY MIGHT BE ABLE TO MAKE AN
IDENTIFICATION AN JUST SEEING THE DEFENDANT BASED ON THE SAME IN PERSON CIRCUMSTANCES AND
NOT A ONE DIMENSIONAL PHOTO WHERE THEY WOULD BE ABLE TO IDENTIFY THE DEFENDANT. THEY
MIGHT HAVE SOME SORT OF REACTION WHEN THEY START TREMBLING OR THE VICTIM MIGHT JUST OFFER
IT HERSELF. THE PROBLEM IS WHEN THERE IS SOME RIGID NOTICE REQUIREMENTS I
THINK WE START HOLDING RELIABLE EVIDENCE AWAY FROM THE JURY. I AGREE, BEST
PRACTICE I THINK THE PROSECUTOR VERY WELL COULD SAY HEY, YOU KNOW -- IF THERE IS INDICATION.
WE ARE ALSO NOT ADVOCATING FOR A BRIGHT-LINE RULE SAYING THEY ARE ALWAYS ADMISSIBLE NO
MATTER WHAT. THERE WILL BE CIRCUMSTANCES WHERE IT IS CLEAR THAT AN IN-COURT IDENTIFICATION
COULD NOT BE MADE. THE COURT: HELP ME UNDERSTAND THIS BECAUSE I DON'T WANT
TO UNFAIRLY SUMMARIZE YOUR ARGUMENT, BUT WE KNOW FROM THE CASE LAW AND FROM THE SCIENCE
THAT THESE IN-COURT IDENTIFICATION PROCEDURES ARE EXTREMELY SUGGEST I, HIGHLY SUGGESTIVE
AND SO ON AND WE KNOW THAT MEMORY GETS WORSE WITH TIME. WHY THEN SHOULD THE
IN-COURT IDENTIFICATION PROCEDURE HAVE LESS PROTECTION THAN ANY OTHER ONE?
LAUREN BONFIGLIO: I DON'T KNOW THAT IT HAS LESS PROTECTION. CHIEF JUSTICE
RABNER: YOU JUST ARGUED AGAINST NOTICE. LAUREN BONFIGLIO: IF NOTICE IS THE
BEST PRACTICE OR ORDINARILY, THE NOTICE IS FINE, THERE REALLY IS NO PROBLEM WITH THAT.
I DON'T THINK IT IS UNREASONABLE FOR DEFENSE COUNSEL TO ASSUME THAT YOU HAVE AN EYEWITNESS
WHO GAVE A DESCRIPTION, THAT THEY MIGHT REASONABLY BE ABLE TO IDENTIFY THE DEFENDANT
IN COURT. THERE IS NO PROBLEM WITH THE PROSECUTOR BEST PRACTICE GIVING NOTICE.
THE PROBLEM IS THESE SORTS OF SITUATIONS THAT YOU CAN'T ACCOUNT FOR. I DIDN'T MEAN TO
SUGGEST THAT IT DESERVES LESS PROTECTION, BUT IT CERTAINLY -- AN WE HAVE NOT ARGUED THAT
THEY ARE ALWAYS ADMISSIBLE. IF THE DEFENDANT MEETS THESE SAME SORT OF STANDARD
A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION THEN IT SHOULD BE
REPRESSED. WHAT WE ARE ARGUING AGAINST IS A PER SE RULE THAT IS TOTALLY INCONSISTENT WITH
THIS COURT'S PRECEDENT. CHIEF JUSTICE RABNER: QUESTION ABOUT DAUB.
LAUREN BONFIGLIO: YES. CHIEF JUSTICE RABNER: DO YOU KNOW HOW MANY
CASES MIGHT BE IN THE PIPELINE. LAUREN BONFIGLIO: I DO NOT BUT I AM HAPPY
TO FIND OUT FOR YOU IF YOU WOULD LIKE TO KNOW. I WILL SAY I HAVE HAD CASES MYSELF WHERE
THIS HAS BEEN ADMITTED AN IT HAS THAN EVEN BEEN CHALLENGED. THE DEFENDANT DIDN'T EVEN
REQUEST A HEARING. IF YOU LIKE I COULD FIND OUT HOW MANY ARE PENDING. I KNOW I PERSONAL
HAVE HAD SOME AND MY OFFICE HAS HAD SOMEWHERE THERE WERE SOME FRYE HEARINGS. I COULD
CERTAINLY FIND THAT OUT. THE COURT: WAIT FOR THE CLERK OF THE COURT TO GET
BACK TO YOU. LAUREN BONFIGLIO: IF I COULD JUST BRIEFLY TOUCH ON THE EXPERT
ISSUE. THE COURT: OF COURSE. LAUREN BONFIGLIO: COURTS AROUND
THE COUNTRY HAVE STALT PARTICULAR, SKIPTLY FOUND THAT HISTORICAL CELL SITE. THE
SCIENCE OF PHONES CONNECTING TO TOWERS WHEN THEY ARE GEOGRAPHICALLY WITHIN THE TOWERS
RANGE IS FAR FROM NEW AN APPROPRIATELY USING CELLULAR RECORDS TO ESTIMATE THE APPROXIMATE
LOCATION IS A JEVENLY ACCEPTED METHODOLOGY. JUSTICE PATTERSON: WE'RE HEARING
FROM YOUR COLLEAGUES ON THE OTHER SIDE THAT THEY AGREE WITH YOU ON THAT GENERAL PROPOSITION,
BUT WHAT WENT ON HERE WAS A RULE OF THUMB AND A DISTANCE CITED WITH NOT A WHOLE LOT OF
BACKUP IN TERMS OF RELIABILITY. THERE WERE A COUPLE OF OBSERVATIONS ABOUT THE SPECIFICS,
BUT NOT A LOT. HOW DO YOU ADDRESS THAT AND WHAT DO YOU HAVE, IF ANYTHING,
IN TERMS OF LEGAL AUTHORITY THAT ADDRESSES THAT. LAUREN BONFIGLIO: SO, I WILL
POINT OUT THAT ON DIRECT EXAMINATION DURING THE FRYE HEARING, THE SPECIAL AGENT TESTIFIED
EXACTLY TO HOW DEFENSE COUNSEL SAYS HE SHOULD HAVE TESTIFIED. THE QUESTION
REGARDING HOW DID YOU COME UP WITH THE LENGTH OF THESE ARMS WAS ASKED ON CROSS-EXAMINATION.
SO THE REAL COMPLAINT AN THE RULE OF THUMB IS REALLY A COMPLAINT THAT THE SPECIAL AGENT
ANSWERED A QUESTION THAT WAS ASKED OF HIM. HE APPROPRIATELY ANSWERED THAT QUESTION.
ASIDE FROM THE ORDINARY TRAINING, EXPERIENCE, EXPERTISE, HE GAVE A DESCRIPTION
OF HIS UNDERSTANDING OF THE AVAILABLE TECHNOLOGY. HE SAID THAT CELLPHONES USE RADIO
FREQUENCIES TO CONNECT TO TOWERS, THEY GENERALLY WILL CONNECT TO THE TOWER WITH THE CLEAREST
AND STRONGEST SNAM; THAT HAPPENED HERE. HE ALSO DID EXPLAIN THAT THE REASON
THAT THIS TOWER IN PARTICULAR MADE SENSE WAS BECAUSE IT WAS DIRECTLY ALONG THE ASS MUT
OF THAT CELL. HE DID TAKE INTO ACCOUNT THE DIRECTION OF THE ANTENNA, WHICH IS THE
ORIENTATION OR THE ASS MUT. AND IF WE LOOK AT DA-8 IT'S REALLY NOT THAT COMPLICATED WHAT
WE'RE TALKING ABOUT. WE'RE TALKING ABOUT WE HAVE THE CRIME SCENE WE HAVE A KRP AND A
CELL TOWER THAT WAS USED AND THERE WAS NO DISPUTE ABOUT THAT. THE WAY THE SITE IS IT IS
POINTED NORTHWEST, WHICH IS SHOWN IN THE MAP. THE DEFENDANT GAVE A SUPPOSED ALIBI ADDRESS
WHICH WAS IN THE SOUTHEAST AND THERE WERE A TON OF CELL SITES IN BETWEEN SO BECAUSE OF
THAT AND THE LOCATION OF THE KREM, CELL SITES WHICH HE OBTAINED FROM SPRINT ALONG WITH
THE OTHER TWO RECORDS, THERE WAS NO NEED FOR A DRIVE TEST IN THIS CASE. A
DRIVE TEST, I AGREE, IS THE BEST WAY TO REFINE A COVERAGE AREA WHEN THERE IS A LEGITIMATE
DISPUTE AS TO THAT COVERAGE AREA. THERE WAS NOT THAT HERE. IF THE ALIBI LOCATION
AN THE CRIME SCENE COULD HAVE REASONABLY BEEN COVERED BY THAT LOCATION THEN PERHAPS A
DRIVE TEST WOULD HAVE BEEN APPROPRIATE IF TOO MUCH TIME HAD NOT PASSED. HOWEVER TOO MUCH
TIME HAD PASTED AND DRIVE TESTS ALSO HAVE THEIR OWN FACT TORSZ THAT AFFECT THEIR RELIABILITY.
THE SAME THING WITH THE PROPAGATION MAP. I DID DISCUSS IT IN MY BRIEF. THERE IS REALLY
NO OTHER WORD FOR IT. IT IS A RED HERRING, CELLPHONE COMPANIES USE PROCH PAG GAS STATION
MAPS WHEN THEY ARE PLOTTING THEIR NETWORK, A LOT OF THINGS CHANGE IN BETWEEN. THERE IS
NOTHING WHATSOEVER ANYWHERE TO INDICATE THAT AN APPROPRIATE PASSION MAP SHOULD BE ACCEPTED.
IT'S REALLY NOT RELEVANT HERE. AS TO THE DRIVE TEST A THEY ARE -- AND DEFENSE
COUNSEL'S SCIENTIFIC ARTICLE THAT HE INCLUDED FOR THE FIRST TIME BEFORE THIS COURT, THEY
RECOGNIZE PROBLEMS WITH DRIVE TESTS, THEY ARE PROCEED HIB BAT ACTIVELY EXPENSIVE. IT IS
MY UNDERSTANDING THE SOFTWARE AND THE TECHNOLOGY FOR IT COSTS A QUARTER OF A MILLION
DOLLAR, IT CANNOT BE DONE IN EVERY CASE. THE AGENT HERE TESTIFIED THAT THERE ARE ABOUT
60 CAST AGENTS THROUGHOUT THE U.S. IT'S PROBABLY CLOSER TO 70 NOW BUT THEY TESTIFY 4
00 TO 500 TIMES THROUGH KWLOUT THE COUNTRY. JUSTICE PATTERSON: I THINK WHAT
WE'RE HEARING FROM YOUR AFRS SIS THROUGHOUT TODAY IS THEY ARE NOT CONTENDING THAT EITHER
OF THOSE TWO METHODOLOGIES ARE NECESSARY. THEY ARE SAYING SOMETHING A LITTLE MORE FLEXIBLE
IN THAT THIS WAS NOT ENOUGH. LAUREN BONFIGLIO: SO I DO UNDERSTAND THEIR
ARGUMENT BUT MY READING OF THE CASE LAW IT SAYS THE EXACT OPPOSITE. THIS IS EXACTLY WHAT
WE'RE TALKING ABOUT IN ALL THE CASE LAW. STEEL, JONES EVEN. I CAN MAYBE DISCUSS JONES
BECAUSE I THINK THERE IS A DIFFERENCE IN INTERPRETATION BUT ALL OF THESE CASES ARE
TALKING ABOUT THE SAME THING, THE, IF THE CELL SECTOR WAS USED AND WHETHER THAT COULD
REASONABLY COVER A CERTAIN LOCATION. THEY ARE ALL TALKING ABOUT THE SAME THING.
CHIEF JUSTICE RABNER: DID THEY USE A 1 MILE PROJECTION, APPROXIMATION.
LAUREN BONFIGLIO: THEY DO NOT USE NECESSARILY ONE MILE. THEY DISCUSS A RANGE. I DISCUSSED
IT IN MY BRIEF THERE IS NO UNIFORM COVERAGE RANGE AN THE SPECIAL AGENT TESTIFIED HERE
SOMETIMES RURAL CELL TOWERS ARE PLACED FURTHER APART. SOMETIMES URBAN AREAS ARE PLACED
CLOSER TOGETHER AND THAT'S WHY CAST AGENTS HAVE TO USE THEIR EXPERIENCE TO LOOK AT THESE
PARTICULAR CHARACTERISTICSES OF THIS TOWER. THE AGENT TESTIFIED THIS WAS ON A HIGH RISE
BUILDING IT WAS FACING A CERTAIN WAY WHICH WAS DIRECTLY ALONG THE ASS MUT OF THE CRIME SCENE
WHICH MADE SENSE BECAUSE THIS IS A LINE OF SIGHT TECHNOLOGY AND SOME OF THE CASE LAW,
I MEAN A LOT OF THE CASE LAW SOME OF IT DOESN'T DEAL WITH DRIVE TESTS. IT DOESN'T MEAN
THAT IT RENDERS ANYTHING UNRELIABLE. IN ALL OF THE CASES THEY ARE TALKING ABOUT THE KORJ
RANGE BECAUSE IT'S ALL TALKING ABOUT THE SAME THING. JUSTICE WAINER APTER:
CAN YOU JUST GO BACK TO THE CASES YOU WERE LISTING. I HAD NOT PREVIOUSLY UNDERSTOOD
THAT ALL OF THE CASES ARE ACTUALLY SAYING THAT AN AGENT CAN ESTIMATE THE KORJ RANGE JUST
BASED ON WHATEVER YOU'RE SAYING IT WAS ESTIMATED WITH HERE. WAS IT BUS BEE,
STEEL AN JONES. LAUREN BONFIGLIO: BUS BEE, STEALS, I BELIEVE PHRASE YER
IS ONE AND THEY ARE ALL CITED IN MY BRIEF. JONES, JONES IS THE ONE COUNSEL SPECIFICALLY
REFERENCED HERE TODAY. I BELIEVE JONES IS A LITTLE CONFUSING. I THINK WHAT JONES IS
ACTUALLY TALKING ABOUT IS THE MAP AN THAT'S WHAT THE CHALLENGE WAS, THAT THE AGENT'S MAP
WAS INAPPROPRIATELY SAYING THIS IS THE ENTIRE COVERAGE AREA AND THAT THIS WAS IMPORTANT
TRAG THAT AND I THINK THAT'S WHERE THE PROBLEM LIES. I DON'T THINK IT WAS ACTUALLY
REGARDING GIVING AN APPROXIMATE KORJ AREA. I THINK IT WAS JUST REPRESENTING THAT COVERAGE
AREA WHICH IS CONSISTENT WITH THIS CASE. THE SPECIAL AGENT HERE WAS VERY CLEAR THAT THIS
IS JUST AN APPROXIMATE KORJ AREA. IT COVERAGE AREA. IT COULD BE BELOW THE LINE, ABOVE
THE LINE TO THE LEFT OR THE RIGHT. IT IS NOT A STRAIGHT LINE. HE WENT OVER ALL OF THIS
WHICH IS CONSISTENT ENTIRELY WITH ALL OF THE CASE LAW. HE WAS NOT PURPORTING TO PORTRAY
THE ACTUAL COVERAGE AREA AND HE SAID IT COULD EVEN EXTEND FURTHER SO FROM MY READING OF THE
CASE LAW AND I DID GO BACK, I READ THEM, THEY ARE ALL VERY CONSISTENT WITH WHAT OCCURRED
HERE AND AS FAR AS THE ONE MILE RULE OF THUMB, I DON'T THINK THAT YOU CAN GIVE A NAR RAT
AVERAGE. THE FBI AGENT HAS TO USE THEIR TRAINING AND EXPERIENCE. THEY HAVE TO LOOK AT
THE ADJACENT TOWERS THEIR UNDERSTANDING OF THE TECHNOLOGY IN THE AREA THE WAY THE CELL
TOWERS WORK AND OPERATE I BELIEVE IT WAS SUFFICIENT IN THIS CASE. CHIEF
JUSTICE RABNER: YOU WANTED THREE MINUTES OF REBUTTAL, MR. MASON. CODY T.
MASON: THREE MINUTES. THE COURT: PLEASE TRY TO KEEP IT TO THAT.
CODY T. MASON: I WILL TRY TO KEEP IT SHORT. I WILL KEEP IT SHORT. THERE ARE
A NUMBER OF FACTUAL ISSUES REALLY RELATING PRIMARILY TO THE ATTORNEY GENERAL'S
REPRESENTATIONS. I WAS GOING TO START WITH THE ONES RELATED TO THE ID BUT I WILL START
WITH THE ONES RELATED TO THE CELL TOWER FIRST NONE OF THE KALS ES KRIERTD BY THE ATTORNEY
GENERAL SUPPORT THE RULE OF THUMB OR EVEN A GENERAL RANGE ESTIMATION. THERE IS NO CASE
IN THE I DON'T KNOW, 40 CASES I HAVE LOOKED AT, ANY THAT I AM AWARE OF THAT APPROVED OF
A RULE OF THUMB LIKE THIS. THE SCIENTIFIC AUTHORITIES ARE AGAINST THAT.
JUSTICE WAINER APTER: THE WORD RULE OF THUMB ESTIMATED COVERAGE AREA. CODY T.
MASON: THAT, TOO, YOUR HONOR, YES. THEY DO NOT ALLOW CAST AGENTS OR CAST AGENTS HAVE
NOT DONE THIS. JUSTICE PATTERSON: WHAT DO THEY DO EXACTLY IF THEY CAN'T
TELL A JURY THAT THIS PARTICULAR CELL TOWER OR A PARTICULAR CELLPHONE PINK WAS IN A SUFFICIENT
RANGE SO THAT THE PERSON MAY HAVE BEEN AT THE CRIME SCENE, WHAT DO THEY SAY?
DO THEY JUST GET UP THERE AN COME UP WITH GENERALITIES ABOUT CELL TOWERS.
CODY T. MASON: I THINK THE CASE THE ATTORNEY GENERAL CITED ACTUALLY REPRESENTS WHAT THEY
DO. IN A LOT OF CASES SO, FOR EXAMPLE IN STATE V. STEEL WHICH IS A CONNECTICUT
CASE, 169 A 3 D 797, IN THAT CASE THEY TALKED ABOUT SDASH DASH THAT CASE HAD TO DO WITH
LAB BORS AND EXPERT OPINIONS. JUSTICE PATTERSON: THAT CASE HAS TO DO WITH
WHAT? CODY T. MASON: I MISUNDERSTOOD WHICH ONE THAT WAS, THAT ONE
HAD TO DO WITH WHETHER A LAY WITNESS COULD OFFER THIS TYPE OF TESTIMONY OR WHETHER AN EXPERT
WITNESS COULD AND THAT STANDS FOR THE PROPOSITION THAT YOU NEED AN EXPERT TAKE ACCOUNT OF ALL THE INTERNAL AND EXTERNAL FACTORS. THEY DID SAY YOU NEED AN EXPERT TO ACCOUNT
NEED TO ACCOUNT FOR THE FACTORS. JUSTICE WAINER APTER: WITH WHAT ARE THE
FACTORS AGAIN. CODY T. MASON: THERE ARE A NUMBER OF ONES, THE SIGNIFICANT
ONE IS THE HEIGHT AN DIRECTION OF THE ANTENNA. JUSTICE WAINER APTER: YOU,
HE TALKED ABOUT THAT, RIGHT? CODY T. MASON: HE DIDN'T. JUSTICE
SOLOMON: HE SAID IT WAS ON TOP OF A BUILDING AND HE DESCRIBED THAT. CODY T.
MASON: HE DID NOT MEASURE THE HEIGHT OF THE TOWER OR ANY OTHER TOWERS, YOU'RE TALKING
ABOUT RATED TOWER OR WATTAGE HE DIDN'T TALK ABOUT THAT. THE RATED POWER OR POWER WATTAGE.
YOU'RE TALKING ABOUT THE DIRECTIONAL ARRAY OF THE ANTENNA, THAT WAS ALSO NOT TESTIFIED.
JUSTICE WAINER APTER: HE DIDN'T TALK ABOUT THE DIRECTION OF THE ANTENNA.
CODY T. MASON: AS A BLANKET STATEMENT HE DID NOT MEASURE A SINGLE FACTOR
RELATING TO ANY OF THESE TOWERS. HE RECOGNIZED THAT THEY ARE RELEVANT HE RECOGNIZED OTHER
TOOLS COULD ACCOUNT FOR THEM HE DIDN'T BEING FOR ANY OF THEM. JUSTICE FASCIALE:
WOULDN'T THAT BE CROSS-EXAMINATION? CODY T. MASON: I THINK THAT WOULD BE
CROSS-EXAMINATION IF HE WAS TESTIFYING TO WHAT IS ACTUALLY GENERALLY ACCEPTED AND RELIABLE
AND THAT'S WHERE THIS LANGUAGE FROM JONES COMES IN POT POT. JUSTICE PATTERSON:
I APOLOGIZE BUT I HAVE NO IDEA WHAT YOU MEANT BY WHAT YOU JUST SAID. THE ISSUE HERE IS
WHETHER THIS IS SUBJECT TO GENERAL ACCEPTANCE, RIGHT? SO I THINK JUSTICE
FASH WAS ASKING YOU THE TYPES OF FACTORS OR LACK OF DOING MEASUREMENTS IS TYPICALLY
CROSS-EXAMINATION, IT DOESN'T GO TO ADMISSIBILITY. CODY T. MASON: AND THAT WAS
WHAT I WAS GOING TO TALK ABOUT IN TERMS OF JONES BECAUSE THERE IS THIS LANGUAGE IN U.S.
VERSUS JONES THAT TALKS ABOUT ANY ASSUMPTIONS MADE BY THE AGENT IN TERMS OF FACTORS THAT
WERE OR WERE NOT ACCOUNTED FOR IS FOR CROSS-EXAMINATION, BUT THE CONTEXT OF THAT IN
JONES IS THAT THEY ONLY TESTIFIED TO THE TOWERS AN SECRETARY TORS THAT WERE USED WHICH IS
GENERALLY ACCEPTED AND THAT'S WHAT CAST AGENTS PRIMARILY DO, IT IS JUST THE TOWER AND
IT IS THE SECTOR THEY ARE WITHIN RANGE BUT WE DON'T KNOW WHAT THE RANGE IS.
JUSTICE WAINER APTER: HOW DO THEY TESTIFY THAT THE CRIME SCENE IS WITHIN RANGE IF NO ONE
KNOWS WHAT THE RANGE IS. CODY T. MASON: SO THEY CAN'T UNLESS THEY USE A
RELIABLE TOOL AND I THINK THAT'S WHERE SOME OF THIS CONFUSION COMES IN. JUSTICE
PATTERSON: WHAT IS A RELIABLE TOOL. CODY T. MASON: SO DRIVE TESTING IF YOU'RE
DOING IT, CLOSE IN TIME, PROPAGATION MAPS, THERE IS INFORMATION OF ABUSE BEE, WHICH IS
ONE OF THE CASES BY THE ATTORNEY GENERAL. JUSTICE PATTERSON: YOU TOLD US
EARLIER THAT THOSE ARE NOT NECESSARY FOREA RELIABLE OPINION BUT NOW YOU'RE SAYING THEY
CAN'T GET TO THAT POINT WITHOUT A RELIABLE TOOL. CODY T. MASON: I HAVE NEVER
SEEN A CASE WHERE AN AGENT DOES THEIR OWN CALCULATIONS, THEORETICALLY THAT IS POSSIBLE.
IF THERE IS A CASE WHERE THEY DO THAT THAT MIGHT BE FINE. JUSTICE PATTERSON:
THE A G SAID THAT NOW THE CELL COMPANIES ARE NOT PROVIDING THE PROPAGATION MAPS SO IF
WE WERE TO HAVE A RULE THAT REQUIRED PROPAGATION MAPS, WE WOULD BE REQUIRING SOMETHING
THAT CANNOT BE MET. CODY T. MASON: I DON'T THINK AGREE WITH THAT. I DON'T KNOW
WHERE THAT COMES FROM, THERE IS NOTHING IN THE RECORD THAT SHOWS THAT. I KNOW THERE IS
SOME QUESTION ABOUT HOW OFTEN THEY PROVIDE THAT BUT ABUSE BEE IN THAT -- JUSTICE
PATTERSON: I THINK WHAT WE WERE HEARING TODAY IS AS OF TODAY GOING FORWARD AND ANY OPINION
THAT COMES OUT OF THIS COURT SAYING THAT CERTAIN THINGS MUST BE DONE MAY, IN FACT BE SAYING
TO THE STATE YOU MUST PROVIDE INFORMATION THAT YOU CANNOT PROVIDE. CODY T.
MASON: SO I THINK THERE IS TWO PARTS OF IT. THERE ARE METHODS THAT CAN BE USED. THIS
AGENT DID DRIVE TESTS, PROPAGATION MAPS THEY COULD TRY TO GET THEM, THE JIF VON KNOW WISH
ARTICLE TALKS ABOUT USING A PHONE, USING A SPRIPT PHONE AND GOING TO THE PLACE OF INTEREST
AN MAKING CALLS. JUSTICE FASCIALE: WHAT ABOUT THE PROHIBITIVE NATURE OF THE
DRIVE BY TESTS. CODY T. MASON: HE DIDN'T EXPLAIN WHY HE DIDN'T DO IT HERE.
THIS IS NOT SOMETHING THAT YOU'RE MAPPING A GIGANTIC AREA YOU DON'T KNOW WHAT THE AREA
OF INTEREST IS, IT IS THIS ONE HOUSE, IN US US V HILL WHICH IS A SEVENTH CIRCUIT CASE
THAT IS A CASE WHERE ONE OF THE AGENTS USES A PHONE THAT TELLS YOU WHAT TOWER WAS USED
SO THIS AGENT COULD HAVE GONE THERE CALLED AND SAID IT CONNECTED TO THIS TOWER IT MUST BE
WITHIN RAGE. JUSTICE FASCIALE: AGAIN, CROSS-EXAMINATION. YOU DIDN'T DO
THIS, YOU DID DO THAT. TERRAIN WAS FLAT, THE TOWER WAS ON A HIGH RISE, THE BUILDING IS
POINTING TO BLOOMFIELD, THIS IS AN ESTIMATE, IT'S AN APPROXIMATION ALL OF THAT TOGETHER
IS NOT ENOUGH. CODY T. MASON: SO HIS ACTUAL TESTIMONY IS BARE BONES, AT
BEST. HE'S TALKING ABOUT THE ASS MUT. THE ASS MUT IS IRRELEVANT UNLESS IT IS IN RANGE
WATSON WATSON WHAT IS THE AS MUT. CODY T. MASON: THE LINE DOWN THE CENTER
OF THE SECTORS WHERE THERE IS THE STRONGEST SIGNAL. JUSTICE FASCIALE:
AGAIN, THAT'S CROSS, RIGHT? CODY T. MASON: THAT IS CROSS IF THE ACTUAL
OPINION BEING OFFERED IS RELIABLE THAT'S STILL THAT FIRST THRESHOLD AND THAT'S WHAT JONES
REALLY DEMONSTRATES. IF YOU HAVE SOMEBODY COMING IN AND THEY OFFER PROPER AN RELIABLE
TESTIMONY SO IN JONES IT'S A HIT OFF THIS SECTOR AND THE SECTOR IS ORIENTED IN THAT AREA
AND THEN ON CROSS-EXAMINATION DEFENSE COUNSEL COULD SAY WELL, WE DON'T KNOW WHAT THE RANGE
IS BECAUSE YOU DIDN'T MEASURE THIS AND YOU DIDN'T MEASURE THIS AND YOU DIDN'T MEASURE
THIS AND THE CAST AGENT WOULD HAVE TO SAY YES, I DON'T KNOW WHETHER THIS IS ACTUALLY IN
RANGE OR NOT BUT YOU'RE ONLY GETTING TO THAT POINT OF CROSS-EXAMINATION BECAUSE THEY HAVE
ALREADY LIMITED THEMSELVES TO SOMETHING THAT IS GENERALLY ACCEPTED AND RELIABLE WHICH IS
JUST TOWER AND SECTOR. IF YOU WANT TO GET BEYOND THAT IN TERMS OF RANGE,
WHAT THE CASES SHOW, WHAT THE SCIENCE SHOWS IS THEN YOU NEED TO CONSIDER THOSE FACTORS
WHETHER IT'S THROUGH RELIABLE TOOL, WHICH IS WHAT AGENT DAVID TESTIFIED HE WOULD USE,
WHETHER IT'S IN THE FORM OF CALCULATIONS, WHETHER IT IS CALLING A DOZEN TIMES. THERE ARE
WAYS TO DO THAT BUT JUST BECAUSE THAT IS MORE DIFFICULT DOESN'T MEAN IT LOWERS THE BURDEN
FOR THE STATE TO SUBMIT UNRELIABLE EXPERT TESTIMONY. JUDGE SABATINO: YOU
JUST SAID GENERALLY ACCEPTED AND RELIABLE WHICH IS A PHRASE IN KELLY, SO TO POSSIBLY SIM
PLIFY THIS COURT'S ANALYSIS, WOULD YOU HAVE ANY OBJECTION IF WE CONFINE OUR ANALYSIS TO
A FRYE STANDARD AND LEFT FOR ANOTHER DAY WHETHER PIPELINE RETROACTIVITY DOES OR DOES NOT
APPLY? WE COULD, IF WE COULD ANALYZE IT ON THE BASIS THE TRIAL JUDGE DID
WOULD YOU CONCEDE TO THAT FOR PURPOSES OF OUR RESOLUTION OF THE CASE. CODY T.
MASON: YOU MEAN BEING RESOLVED UNDERSTAND THE FRYE STANDARD? I HAVE NO
OBJECTION TO THAT. LOOIK I SAID BEFORE, THERE IS NO EVIDENCE HERE, YOU CAN'T
HAVE AN EXPERT COME IN AND TALK ABOUT THE GENERAL PRINCIPLES OF CELLPHONE TOWERS WHICH
WE CAME IN AND TALKED ABOUT TODAY. THAT DOESN'T MEAN THAT HE IS EXPLAINING THAT HE TOOK
THIS OTHER STEP THAT NO OTHER COURTED HAS ACCEPTED THIS METHODOLOGY. WE DON'T ALLOW
DNA ANALYSIS TO COME IN AN SAY BASED ON MY FAMILIARITY WITH DNA THIS PERSON'S DNA WAS
LIKELY ON THIS, YOU CANNOT DO THAT UN NET OPINION OR. THE COURT: GO ON TO
THE SECOND ISSUE. CODY T. MASON: IN TERMS OF THE IDENTIFICATION, THERE ARE
SOME FACTUAL ISSUES I WANTED TO CLEAR UP WITH THAT FIRST. ONE THING WAS TAN
GENERAL SHL BUT IN TERMS OF THE BAG THERE WAS NO TESTIMONY THAT MR. BURNEY WAS NOT WORKING
IN THE HOME OR THAT HE ONLY WORKED ON THE ROOF AND NEVER WENT IN THE HOUSE. I DON'T KNOW
WHERE THAT CAME FROM BUT THAT'S NOT IN THE RECORD THAT'S NOT SOMETHING THAT WAS ARGUED
IN THIS TRIAL COURT. IN TERMS OF THE ACTUAL IDENTIFICATION, SO THE 90 PERCENT
IDENTIFICATION, THE VIDEO WAS PLAYED AT THE TRIAL THAT IS TRANSCRIBED AND THE CLEAREST
PART OF WHAT HAPPENED IS ON PAGES 108 LINE 3 TO 1113 OF THE 11TH TRANSCRIPT AN THAT IS
CROSS-EXAMINATION WHERE ROSETTE IS EXCEEDINGLY CLEAR THAT WHEN SHE WAS TALKING ABOUT AT
LEAST 90 PERCENT THAT WAS ON NO. 5 AND THEN WHEN SHE SAID NO AFTERWARD THAT WAS IN RELATION
TO NO. 6, THE PHOTO AFTERWARD SO THERE WAS AN IDENTIFICATION IN THIS CASE, THERE WAS A
MISIDENTIFICATION. JUSTICE PATTERSON: WHAT IS BEING TRANSCRIBED, IS IT
THE VIDEOTAPE OF THE IDENTIFICATION? CODY T. MASON: YES, YOUR HONOR. ITS
EEGS OF THE DECEMBER 26TH PHOTO ARRAY. JUDGE SABATINO: THAT PREEXISTED THE
TRIAL, THERE WAS ALREADY A WRITTEN TRANSCRIPT PREPARED OR IS THE IN COURT COURTROOM AID,
WHATEVER THE TITLE IS FOR THE FIRST TIME LISTENING TO OR WATCHING THE VIDEO AND
TRANSCRIBING THAT? CODY T. MASON: I THINK THERE MAY HAVE BEEN ONE THAT WAS
PREPARED BY THE PROSECUTOR'S OFFICE OR BY THE POLICE BUT THERE WAS NO PRETRIAL HEARING
SO THERE WAS NOTHING LIKE THAT. THE FIRST I THINK OFFICIAL TRANSCRIPTION IS THE ONE THAT
HAPPENED IN COURT. JUSTICE WAINER APTER: SO WHY DID THE TRIAL COURT FIND
THAT THERE WAS NO IDENTIFICATION OF A FILLER HERE. CODY T. MASON: SO THAT IS
ANOTHER POINT OF CLARIFICATION. THE COURT DID NOT MAKE THAT FINDING. I KNOW JUSTICE
SOLOMON CITED TO THE PART WHERE THE COURT IS SAYING WHERE WAS THE SUGGESTIVE OUT-OF-COURT
IDENTIFICATION I BELIEVE THAT'S IN PAGES 37 TO 40 OF THE FIRST TRANSCRIPT. JUSTICE
SOLOMON: I THINK IT'S 35. CODY T. MASON: THE SIGNIFICANCE IS THAT PART OF THE
RULING AS I UNDERSTAND IT RELATES TO THE CHALLENGE TO THE IDENTIFICATION OF MR. BURNEY
AND THE COURT IS BASICALLY SAYING WHERE IS THE SUGGESTION BECAUSE THERE WAS NO SUGGESTED
OUT-OF-COURT IDENTIFICATION PROCEDURE RELATING TO MR. BURNEY. JUSTICE WAINER
APTER: SO IT COULD HAVE BEEN AN OUT OF COURT MISIDENTIFICATION. CODY T.
MASON: YES, SO THAT DID NOT RELATE TO THE 90 PERCENT IDENTIFICATION OF THE OTHER PERSON.
THE COURT'S REASONING IN REJECTING THAT JURY INSTRUCTION WHICH IS ON PAGES 10 TO 11 OF THE
15TH TRANSCRIPT, BASICALLY THE COURT SAID THAT IT DIDN'T WANT TO TIP THE BALANCE BECAUSE
THERE WAS A DISPUTE. DEFENSE COUNSEL ON PAGES 6 AND 7 OF THAT SAME TRANSCRIPT SAID THIS IS
AN IDENTIFICATION, YOU SHOULD INSTRUCT THE JURY ACCORDINGLY AND THE STATE SAID NO THIS
ISN'T FOR THE SAME REASONS THAT HAVE BEEN ARGUED TODAY AND THE TRIAL COURT SAID I DON'T WANT
TO TIP THE SCALES ONE WAY OR THE OTHER. JUSTICE WAINER APTER: WHAT WAS THE
REASONS THE STATE SAID IT WAS NOT A MISIDENTIFICATION. CODY T.
MASON: BECAUSE NO FORM WAS SIGNED. JUSTICE WAINER APTER: BUT IT IS NOT UP
TO HER WHETHER THERE WAS A FORM SIGNED. CODY T. MASON: I AGREE AND SHE TESTIFIED
THAT SHE MADE AN IDENTIFICATION. I CAN PROVIDE ADDITIONAL KROOITS IN MY BRIEF. SHE
TESTIFIED MULTIPLE POINTS IN THE TRIAL THAT SHE DID MAKE AN IDENTIFICATION IN THAT ARRAY.
I DON'T KNOW WHY IT WAS THAN MARKED THAT WAY BUT THAT WASN'T A REASON NOT TO GIVE THE
INSTRUCTION, THE JURY INSTRUCTION SAYS -- ULTIMATELY THE JURY COULD HAVE MADE THAT
FACTUAL DISTINCTION. IN TERMS OF THE IDENTIFICATION ITSELF, WE'RE COMING BACK
TO ARGUMENTS THAT WERE MADE OR POINTS THAT WERE MADE IN WATSON AN POINTS THAT WERE MADE
BY THE STATE, WHICH IS ESSENTIALLY THAT WITNESSES ARE GOING TO BE TAINTED BY INFORMATION.
THIS IS GOING TO BE SUGGESTIVE AND THEY ARE ESSENTIALLY ARGUING THAT IT IS NECESSARILY
THE CASE THAT THEY ARE GOING TO GET INFORMATION WHETHER A DETENTION HEARING OR FROM READING
NEWS ARTICLES, BUT THERE IS NO REASON THAT THAT SHOULD THEN BE COMPOUNDED BY ALLOWING
THEM TO MAKE THE MOST SUGGESTIVE IDENTIFICATION POSSIBLE IN A COURTROOM SO I THINK THE
STATE'S ARGUMENTS ABOUT WHY, YOU KNOW, OH, MAYBE IT'S NOT SUCH A BIG DEAL THEY TOLD HIM
THAT THERE WAS CELLPHONE EVIDENCE AND THEY HAD A PICTURE OF THE WATCH ON THE PHONE BECAUSE
SHE WOULD HAVE GOTTEN INFORMATION FROM ON SOME OTHER SOURCE I THINK THAT CUTS THE OTHER
WAY IS THAT THERE IS SO MUCH SUGGESTIVENESS GOING ON, WE CAN'T ASK FOR PERFECTION WE KNOW
THERE IS GOING TO BE SUGGESTIVENESS IN THESE TYPES OF PROCEDURES BUT THERE IS NO REASON
TO HAVE THIS IDENTIFICATION HAPPEN IN FRONT OF THE JURY WHEN THERE IS JUST ONE PERSON
PUT IN FRONT OF THEM. BEYOND THAT, THE IDENTIFICATION IN THIS CASE, UNDERSTAND
ANY RULE, AS I SAID, PARTICULARLY, THIS WAS NOT ONLY SUGGESTIVE BUT SHE WAS IN FACT SUGGESTED
AS SHE TESTIFIED. SHE BELIEVED THAT HE WAS GUILTY BASED ON ALL OF THIS. LAST
LY, YOUR HONORS, IN TERMS OF HARM, ONE THING IN TERMS OF THE CELL TOWER, RANGE WAS IN
DISPUTE. THE RANGE WAS AN IN OR OUT DETERMINATION. IF THE HOUSE WAS OUT OF
RANGE, THEN MR. BURNEY WAS NOT GUILTY. IF HE WAS IN RANGE, THAT MEANT THAT IT WAS POSSIBLE
THAT HE WAS THERE. THIS WAS SIGNIFICANT. THIS HOUSE ALSO FELL THREE QUARTERS OF A MILE
AWAY, ALMOST A MILE AWAY SO IT'S FAR AWAY AND IT HAS TWO TOWERS THAT ARE CLOSER.
THE COURT: MR. MASON, YOU HAVE TO PLEASE MAKE YOUR ARGUMENTS A BIT MORE QUICKLY.
CODY T. MASON: THE LAST THING I WOULD SAY IS SIGNIFICANCE OF BOTH PIECES OF TESTIMONY
IS NOT JUST FROM THEIR IN HERPTD VALUE BUT THE WAY THEY REBUT TESTIMONY THAT COULD HAVE
EXONERATED MR. BURNEY. THE CELLPHONE TESTIMONY WAS USED CELL TO YOU, MR. BURNEY WAS,
IF ANYWHERE 50 FEET CLOSER TO THE TOWER SO NOWHERE NEAR THE HOME BUT THERE WERE TWO
OTHER TOWERS THAT SHOULD HAVE PROVIDED THE STRONGEST COVERAGE SO THIS TESTIMONY WAS
SIGNIFICANT ON ITS OWN BUT IT WAS ALSO SIGNIFICANT BECAUSE IT REBUT THE SIGNIFICANT TESTIMONY
THAT UNCUT THE STATE'S CASE AN SUGGESTED THAT MR. BURNEY WAS OTHERWISE NOT THE PERSON
TO COMMIT THE CRIME HERE. UNLESS YOUR HONORS HAVE ANY FURTHER QUESTIONS I
THANK YOU FOR THE SIGNIFICANT AMOUNT OF TIME AND ASK YOU TO REVERSE MR. BURNEY'S CONVICTIONS.
THE COURT: THANK YOU, MR. MASON, THANK YOU ALL COUNSEL. IT HAS BEEN A LONG
DAY. MADE MORE ENJOYABLE BY THE EXCELLENT ARGUMENTS THAT ALL COUNSEL HAVE PRESENTED AND
DEALING WITH PROBING QUESTIONS IN A PROFESSIONAL WAY THE WAY YOU ALL DID. THE COURT IS
IN RECESS.