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People v. Shanks

Court of Appeals of Colorado, Third Division

October 24, 2019

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Charles Jenson SHANKS, Defendant-Appellant.

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         Jefferson County District Court No. 14CR2888 Honorable Tamara S. Russell, Judge.

         Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Lauretta A. Martin Neff, Alternate Defense Counsel, Grand Junction, Colorado, for Defendant-Appellant.


         BROWN, JUDGE.

         [¶1] Defendant Charles Jenson Shanks appeals from his conviction on two counts of kidnapping, two counts of burglary, and one count each of robbery, felony menacing, assault, and false imprisonment. He contends that the district court erred by (1) admitting expert witness testimony about historical cell site analysis without first conducting an evidentiary hearing; (2) admitting an impermissibly suggestive out-of-court identification and an in-court identification based thereon; (3) excluding his alternate suspect defense; and (4) allowing the use of his nickname, "Capone," at trial. He also contends that the cumulative effect of these errors warrants reversal. We affirm.

         [¶2] Addressing an issue of first impression in Colorado, we conclude that expert testimony explaining how historic cell site data is used to provide a general geographic location of a cell phone at a given time may be admitted without first holding an evidentiary hearing on the reliability of the methodology.

         I. Background

         [¶3] Shanks and his codefendant, William Cody, were charged with numerous offenses arising from the home invasion and assault of the victim.

         [¶4] The victim and Cody worked together and occasionally socialized outside of work. The victim supplied Cody with marijuana and the two men sometimes smoked marijuana together. On the night of the charged offenses, Cody called the victim to purchase some marijuana and arranged for his "sister," codefendant Arianna Eastman, to pick it up for him.

         [¶5] The victim met Eastman outside his house for the transaction. When he turned to go back inside, a masked man, whom the victim later identified as Cody, and another unmasked man followed him and forced their way inside. The two assailants searched the apartment and beat up the victim before leaving with the victim's equipment for growing marijuana.

         [¶6] A couple of days after this incident, the victim identified Shanks as the second assailant from a photo array. The victim identified Shanks again during trial.

         [¶7] A jury ultimately convicted Shanks as charged. The court sentenced him to twenty-eight years in the custody of the Department of Corrections.

         II. Historical Cell Site Analysis

         [¶8] Shanks contends that the district court erred by admitting expert witness testimony analyzing historical cell site data without first holding a hearing to determine the reliability of the science behind such analysis. We disagree.

         A. Standard of Review

         [¶9] We review the district court's admission of expert testimony for an abuse of discretion and will reverse only when the decision is manifestly erroneous. See People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011). "This deference reflects the superior opportunity of the trial judge to assess the competence of the expert and to assess whether the expert's opinion will be helpful to the jury."

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          B. Applicable Law

         [¶10] A trial court determines the admissibility of expert testimony under CRE 702, which provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

         The inquiry focuses on "the reliability and relevance of the proffered evidence and requires a determination as to (1) the reliability of the scientific principles, (2) the qualifications of the witness, and (3) the usefulness of the testimony to the jury." People v. Shreck, 22 P.3d 68, 70 (Colo. 2001); accord People v. Campbell, 2018 COA 5, ¶40, 425 P.3d 1163. The court must also evaluate the evidence under CRE 403, ensuring that the probative value is not substantially outweighed by the danger of unfair prejudice. See Rector, 248 P.3d at 1200; Shreck, 22 P.3d at 70.

         [¶11] The court's inquiry "should be broad in nature and consider the totality of the circumstances of each specific case." Shreck, 22 P.3d at 77; accord Rector, 248 P.3d at 1200. Although the factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), provide helpful guidance, a court need not consider any specific set of factors when determining the reliability of the proffered evidence. Shreck, 22 P.3d at 78.

         [¶12] Concerns about conflicting opinions or whether a qualified expert accurately applied a reliable methodology go to the weight of the evidence, not its admissibility. See Campbell, ¶42. "Such concerns `are adequately addressed by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'" Id. (quoting Estate of Ford v. Eicher, 250 P.3d 262, 269 (Colo. 2011)).

         [¶13] If a party requests that evidence be subjected to a Shreck analysis, the trial court may, in its discretion, hold an evidentiary hearing. Id. at ¶41. "This discretion comports with the trial court's need to `avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.'" Rector, 248 P.3d at 1201 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). A hearing is not required if the court "has before it sufficient information to make specific findings under CRE 403 and CRE 702 about the reliability of the scientific principles involved, the expert's qualification to testify to such matters, the helpfulness to the jury, and potential prejudice." Id.

         C. Additional Background

         [¶14] Shanks's defense was that he was not the second assailant and that he was at a family gathering on the other side of town (about eighteen miles southeast of the victim's house) at the time of the offense. The prosecution intended to disprove this defense by introducing evidence from Shanks's phone records and cell tower usage data to show that he was in the general area of the victim's home at the time of the offense. To do so, the prosecution disclosed investigator Kathleen Battan as an expert in "Forensic Analysis of Cellular Phone Records and Cell Tower Function and Data." Defense counsel objected and requested a Shreck hearing.

         [¶15] In its order denying the hearing request, the district court noted that whether a Shreck hearing is required to determine the admissibility of historical cell site analysis is a novel issue in Colorado. It then reviewed federal case law analyzing the issue under Fed.R.Evid. 702, which is similar to Colorado's rule for our purposes, before ruling that

federal courts have generally required a pretrial hearing to determine the admissibility of expert testimony purporting to pinpoint the location of a defendant using cell phone site data, whereas a pretrial hearing has generally not been required to determine the admissibility of testimony merely purporting to place a defendant within the service radius of a specific tower at a certain time.

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          Concluding that the prosecution's proffered evidence fell into the latter category — identifying Shanks's general location when the crime was committed — the district court denied the request for a hearing.

         [¶16] Shanks renewed his objection and request for hearing multiple times, arguing that Ms. Battan based her opinion on a theory called "granulization" and the "scientifically unsupported assumption that a cell phone connects to the closest cell tower." Shanks also challenged Ms. Battan's use of pie shaped sectors rather than ovals to demonstrate the cell tower service area. Again, the district court denied the request for hearing.

         [¶17] At trial, over Shanks's objection[1], the district court accepted Ms. Battan as an expert and allowed her to testify "about forensic analysis of cellphone records ... and also in a limited fashion about ... cell tower function and data." The court acknowledged that Ms. Battan did not have a background in science or engineering but concluded she did not need to "know how to design, operate or manufacture cell towers" to testify about the cell tower data she collects and "what that data tells her about cell tower function."

         [¶18] Ms. Battan testified to the following:

• Typically, a cell tower has three sectors, each covering approximately 120 degrees of a 360-degree circle around the tower. The orientation of the sector (the precise direction the sector points) is called the azimuth.

• Law enforcement has access to a database that includes the precise physical location of all cell towers and the azimuth of each sector of each tower.

• Shanks's cell phone carrier produced records that included data about when each call was made or received, how long the call lasted, and what specific sector of what cell tower was used by the cell phone to make or receive the call.

• She mapped the physical location of the cell towers used by Shanks's carrier using Google Earth; identified the towers closest to Shanks's residence, Cody's residence, and the victim's residence; and noted that there were approximately 100 towers in between.

• Using an FBI computer program, she plotted the cell tower and sector used for each relevant call reflected in Shanks's phone records. The sectors ...

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