IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) CASE NO ST 2018 CR 00037 ) Plaintiff ) vs ) ) TREVORNE LAKE ) ) Cite a: 2022 VI Super 82 Defendant ) ) ~ H TIMOTHY PERRY Esq SAMUEL JOSEPH Esq Virgin Islands Department ofJusticc MARY ANN MATNEY, Esq GERS Building 2’“I Floor Office of‘he Tenitolial Public Defender 34 38 Kronprindsens Gadc P O Box 6040 St Thomas Virgin lsldnds 00802 St Thomas Virgin Islands 00804 Altai nev far Plamlsz Attorneys [or Defendant MACKAY KATHLEEN Judge MEMORANDUM OPINION 111 THIS MATTER is before the Court on a Motion m Ltmme t0 Exclude Cellular Location Data and Demand for Dauber! Hearing ' filed by Defendant Trevome Lake ( Lake or Defendam ) on February 4 2022 Z The People of the Virgin Islands ( People ) filed an ' A “Doubc/l hearing" refer: m a well settled sxandard used to determine me admissibility ofexpcn mummy pumuam to Fedeml Rule 01 EVianLt‘ ( l R E ) 702 ealablished by the United Smes Supreme Court m Dunbar \ ML/ILI/ Dow lemmuu/qul; Inc 509 U S 579 (1993) and officially adopted by lhe Virgin Islanda Supreme Court In A/m/Im 8‘le [m \ Lembach 64 V I 400 (VI 2016) (holding me Drmbm/ standard should govern me admission of expen lemmnny In the Virgin Idanda") ” Anached m 1115 motion I eke filed one exhibit Exhibit A FBI Cellular Analysis Survey Team Repon on Trevome Lake 5 cell phone {or May 16 2017 [’20P]? 0fthe V11gm 171M119 \ Trmmm L111“, Cite as 2022 v1 Super 82 Can: No SI 2018 CR 00037 Memorandum Opinion Motion m Lzmme Page 2 0120 Opposition to Defendant 5 Motion to Exclude Cellular Location data on April 18 2022 3 For the reasons discussed herein, Defendant’s motion will be denied FACTUAL AND PROCEDURAL BACKGROUND 112 The People allege Lake committed a murdet on May 16 2017 at 1 13pm in a highly trafficked area of Smith Bay in St Thomas U S Virgin Islands The Court will provide a brief overview of the timeline for discovery and other filings in this matter, as pertinent to the instant motion On February 25 2019, the Defendant filed a notice 01 alibi indicating that Lake was with a female in Bovoni, St Thomas U S Virgin Islands at the time ofthe alleged murdex On August 28 2018 4 and again on September 12 2019 5 the People provided Defendant with AT&T cell phone records associated with Defendant 5 cell phone on the date of the murder Thereafter in Februaly 2020 the People purportedly submitted the cell phone1ecords t0 the Federal Bu1eau 0f 1nvestigdtion( FBI ) 5 Cellular Analysis Survey Team( CAST ) and Supervisory Special Agent Matthew Carmau ( SSA Carman )6 perfo1med an analysis and created his CAST report On April 16 2020 the People filed a Notice of Witness Teitimony providing Defendant with SSA Carman s CAST report and indicating they intend to call SSA Cdrmdn as an expert witness at trial On September 14 2021 Defendant filed a supplemental discovely request seeking reports ‘Attached (0 I116" opposition the People filed two exhibits Exhibit 1 Curriculum Vllae ofSupcrvisory Special Agenl Matthew Carman and Exhlbil 2 FBI Cellular Ana1y aubstanttally outweighed by the danger ofunfalr prejudice, Lunfusion of the inuea, or misleading the jury or by Lonaiderations of undue delay, waatc of time, or needleas presentation of cumulative evidence ’ Again, the Court find: this rule to be suhstanlively the game as current V I R E 403 '3 Kleppsi Gommmem 011m Vugm [slum]; L11€:lOI R E 403 In 2006 F R E 403 was the same as it wet: in 2008 mp7” at note 15 Accordingly Ihe Conn don not find any substantive difference to the rules interpreted People nf/he Vugm Island: I mmme Late cm as 2022 v1 Super 82 Case No ST 2018 CR 00037 Memorandum Opmicn Motion in leme Page 6 of 20 rather assist them in assessing and understanding the People’s allegations regarding Lake’s movements on the date 0f the alleged murder The People additionally Loneede that the cell phone location data and corresponding CAST repmt are not abmlutely precise and that they will indicate and explain the generality of the location data to the Jury They argue the testimony and data regarding the geographic location of Lake’s cell phone on the date and time of the alleged murder are relevant and their probative Value is not outweighed by prejudiee to Lake 117 Defendant 5 location at the time ufthe alleged murder is a significant factnr in the People a burden To prove Lake guilty, the People have the burden ofindieating Lake’s whereabouts at the time of the alleged murdei, especially considering Lake’s notice that he has an alibi and wai not in Smith Bay at the time ofthe alleged murder Thus the Court finds the cellular location data and SSA Carmdn a testimony thereon to be relevant to possibly showing Lake’s location on the day in question and that the probative Value of such evidence is not Substantially outweighed by unfair prejudice to Lake fls Under V I R E 401 evidence with rmv tendency to make a fact more or less piobable is ieleVdnt 50 long As the fact is of consequence in determining the action The Court Agrees with Lake’s argument that the cellular location data cannot be taken as dispositive of Lake‘s location on the date of the alleged murder, and even the People concede the inexaetitude of location intonnation gleaned from the cellular location data Regardless the cellular location data and SSA Carman e testimony explaining same has the tendency to make the location of Lake 5 eel] phone in a general geographic area at the time of the alleged muider mm 6 or less probable, especially in light of Lake’s notice of alibi The Cnurt is not pereuaded by Lake 5 argument that the probative value associated with the location evidence is “miniseule” and thereby substantially outweighed by prejudice to Lake As held by the Virgin Islands Supreme Court every piece at evidence will People 17/th Vugm Islandt t TH" 0mg Luke Cite as 2022 V1 Super 82 Cage No SI 2018 (.R 00037 Memorandum Opinion Motion in [Amine Page 7 of20 be prejudicial to one party or the other See eg Bill”, 57 V I at 464 The distinguishing factor fox the purposes of the V I R E 403 balancing test is whether ajury would respond negatively to some aspect ofthe evidence unrelated to its tendency to make a fact in issue more or less probable Id at 465 Given the People 5 concession that SSA Cdrman will testify that the location data is based an educated estimations and is not dispositlve of Lake 5 location at the time of the alleged murder, the Court finds little risk for significant adverse effects to the jury’s judgment from the presentation of this evidence Additionally, Lake will have the opportunity to cross examine SSA Carman to ensure the estimated nature of the location information is laid bare 1" The Court agrees with a federal district cnun, which noted that an “explanation of how cell towers work and what general location a cell phone user must have been in at the time his cell phone connected to a particular cell towel would be helpful to thequ in understanding the government 5 claims about the movements and whereabouts of [the defendant] Umrui States v Guitar: 2015 U S Dist LEXIS 138329 at *8 (D N J 2015) [hereinafier Gafszm I’] 21de 744 F App X 97 (3d Cir 2018) [hereinafter Gatvon 11‘ ]20 (citing Unmd State: \ Jones 918 F Supp 2d 1 S (D D C 2013)) The Court finds the ptoffered evidence to be relevant and probative under the Virgin Islands Rules of Evidence because the cellular location data and SSA Carman s CAST report and testimony will provide thejury with context regdtding Lake’s location on the ddte 0fthc alleged murder The jury can then decide for itself how much weight to give the evidence '9 Lake may also call his own expert Mme» to rebut the tesltmony at the People‘s expert 1“ 1n (71113011 [I the Third Ctreutt affirmed the trial court‘: declaion that a Dumber! hearing on cell site locattun data was not neeessary, elating we agree thh [the district coun’:] rcaaoning and adopt 11 83 our own Guise" \ United Slam 744 F App x 97 101 (3d Ctr 2018) The Third Ctreuit thereby effectively adopted the analyais from the distrtct court and upheld the Valtdity and methodology of cell Stte location data and testimony thereon by a qualified expert Though not bmdtng on this Court that Third CtrCull deeiston came: great “eight Peap/e 0/th mg": Ivlunds \ Tm me [Mg mm at 2022 v1 Super 82 CageNo SI 2018 CR 00037 Memorandum Opinion Motion m Ltmmc Page 8 of 20 B SSA Carman’s testimony is admissible under V l R E 702 and its supporting case law 19 V I R E 702 itatei A witness who is qualified as an expett by knowledge skill experience training or education may testify in the form of an opinion or otherwise if (a) the expert 5 scientific, technical, or other specialized knowledge will help the trier offact to understand the evidence or to determine a fact in issue, (b) the testimony is based on sufficient facts 01 data, (c) the testimony is the product afreliable principles and methods and (d) the expert has teliably applied the pxineiples and methods to tho tacts 0f the case VI R EVID 702 2‘ Interpreting V I R E 702, the Virgin Islands SuperiOI Coutt has utilized a standard requiting satisfaction of three major requirements In re Catalyst thlg 55 VI 3 ll 12 (V 1 Super Ct 2010)72 (citing Pmeda ‘ Ford Motor Co 520 F 3d 237 244 (3d Cir 2008)”) These requilcments ale (1) the expert must be qualified; (2) the expert must give an opinion “about matters requiring scientific, technical, or specialized knowledge,” obtained or derived from a reliable process or technique, and (3) the expert‘s testimony must “assist the trier of fact,” in othel words, it must “fit” the facts of 7' As discussed, mpm at notes 7 and 13, many cases cited herein inlerpre! F R E 702 35 they were decided pnur to the adoption ofthe Virgin Islands Rulea 0f Lvtdcnee m ”017 Currently F R E 702 i: identical to current V I R E 702 As above If any 01 lhe oiled Laue: Interpret a pre\ ions verslnn of the mle the Court will note the difference and delenmne whether interpretation of the rule is impacled “ In 12 Cumin! Imgunun Little to 1 R L 702 In 2010 F R F 702 read as follow: IF scientific technical or other spechlized knowledge will assist the mar of hot l0 understand the evidence or to determine a fact in lune, a witness qualified as an expert by knowledge, sk|ll, experience training, or educauon may testify thereto m the form of an optmon or Othelwl:€ 1f (1) the lesllmony is based upon auffielenl tacts or data (2) the teatimony ts the product at reliable principlea and methods and (3) the witne» has apphed lhe principle: and mcthode reliably to lhe facts ol the Lane While not Identical to Current V l R L 702 the Conn finds [hm the rule.» are :ubstanlively Identical and lhe changes do not tmpztct Interpretation 0fthc rule 7‘ Pmeda \ Fold M0101 Co mm to F R I. 702 The version of]: R E 702 referenced in Pmtzrla IS the same a: that utilized in Ca/aLtvt ngalum mp”: at note 22 Accordingly, the Court does not find any substantive difference to current V I R E 702 PLOPIL’ ofllte Virgin 171mm“ Tim mm. lake Cite as 2022 V1 Super 82 Case No ST 2018 CR 00037 Memorandum Opinion Motion m lelrll’ Page 9 of 20 the ease Id at 12 (citing Pmeda 520 F 3d at 244 In re P1101: R R Yard PCB Ling 35 F 3d 717 74143 (3d Cir 1994)“) 1110 The Virgin Islands Supreme Court has also adopted the United States Supreme Court holding from Daubezt t Merrell Dam thmaceutlca/s Inc , which finds a trial court must determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or detetmine a fact in issue " Antllles Sch Inc , 64 V 1 at 41625 (quoting Daubert v Merle]! Dow Phnrmncuzticals Inc, 509 U S 579, 592 (1993)“) Virgin Islands Superior Court Judges serve as ‘gatekeepers when determining whether an expen 5 Opinion is admissible Armlmn \ Buchar 72 VI 50 76 2019 V1 SUPER 153 11 1627 (quoting Dauberl, 509 U S at 597) Judges are granted “broad discretion in assessing the relevance and reliability at expelt testimony and perfmming their gatekeeping function Grimm [I 744 F App x at 102 (quoting Untied Sums \ Alatolre 222 F 3d 1098 1 100 (9th Cir 2000)”) $111 Lake’s motion demands the Court conduct a Daubert hearing before it alicwa the cellular location data or SSA Carmen 5 report and testimony to be admitted at trial as the People provided limited detail regarding the evidence they intend to introduce at trial Lake argues that furthel detail 7‘ In Re P(mh RR Yam! PCB Lllxgalxon cite: to FRE 702 In 1994 F R E 702 read as follows If eetentific technical or other eachaervinga 120 degree portlon of mughly circular coverage area from that antenna the cell site and sector analysis does not determine the exact locatlon of a suspect 5 phone but show: the general area a phone was likely located baecd on cell tower location and the sector of the tower used to transmit the call; and whenever a user imitates or receive: communication, the cell phone carrier routinely creales a record including dale and exact time of contact and what to“ or and sector on that to“ er handled the contact Therefore the People stale SSA Carma“ will testity that it i: ponible to determine general geographic location 01a cell phone at a :peclflc time The People state that SSA Cannan obtains data from a service provider that identifies which network tower and which sector were utilized, so he doee not guess or estimate which lower or towers were used SSA Cam'Mn will testify that a cell phone will seek the tower hill] the