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State v. Pierce

Superior Court of Delaware

January 26, 2018

State
v.
Larry Pierce

          Submitted: January 22, 2018

          Gregory R. Babowal, DAG Lisa Whitelock, DAG Department of Justice

          Lloyd A. Schmid, Jr., Esq. Richard F. Matoni, III, Esq. Office of the Public Defender

          JEFFREY J CLARK JUDGE.

         Counsel:

         Defendant Larry Pierce's ("Mr. Pierce's") Murder First Degree trial is scheduled to begin on February 5, 2018. In advance of trial, Mr. Pierce filed three motions in limine challenging the admissibility of testimony from three State experts. Namely, Mr. Pierce challenges the opinions of Brian Daly (a cell phone tower expert), Dr. Gary Collins (the State Medical Examiner), and Carl Rone (a firearms identification expert).[1] On January 11 and 12, the Court held three separate evidentiary hearings. After considering the evidence at those hearings and the written submissions and arguments of the parties, the Court denies Mr. Pierce's motions to exclude portions of the opinions of the Medical Examiner. The Court also denies Mr. Pierce's motion to exclude portions of Mr. Rone's testimony as moot. The Court, however, grants in part Mr. Pierce's motion regarding Mr. Daly's cell phone tower opinions. The Court defers the balance of its decision regarding the admissibility of Mr. Daly's opinion testimony until trial, to permit additional evidentiary context.

         Factual Background

         All facts cited herein are those found by the Court after the two relevant evidentiary hearings held to determine the admissibility of the experts' opinions. On April 18, 2009, Josue Barclay died from a gunshot wound to the rear of his head. The alleged murder scene was on Governor's Avenue in Dover. According to an Office of the Chief Medical Examiner "Death Investigator Report", witnesses heard a shot on the street and discovered the alleged victim lying halfway on the sidewalk and halfway on the street, between two vehicles. Mr. Barclay's autopsy confirmed his cause of death to be a gunshot wound to the rear of his head. The State indicted Mr. Pierce seven years later, charging him with Mr. Barclay's murder.

         Dr. Collins, the medical examiner, reviewed the autopsy report, autopsy photographs, crime scene photographs, and the on-scene investigative report. After his review, he agreed with and offers the same opinion as that of his predecessor, Dr. Tobin, the medical examiner initially offering an opinion regarding cause and manner of death. Namely, Dr. Collins offers the opinion that the alleged victim died from a gunshot wound to the rear of the head, and that the manner of death was a "homicide" as opposed to an "accident" or a "suicide."

         Next, Brian Daly, a Department of Justice investigator, testified that he secured training in comparing call detail records to cell tower locations. Using this method, he seeks to identify the towers used during phone calls and which one of the three sides of the tower the phone accessed during the calls. After applying this information to a "key", he can pinpoint the location of the tower on a map.

         In this case, he applied this methodology to a telephone number the State proffers was associated with Mr. Pierce at or about the time of the alleged murder. The call detail records provide information sufficient for him to offer an opinion regarding the cell tower used to initiate a call and the last cellular tower used to handle the same call. The State seeks to offer his opinion through testimony and exhibits that certain towers in the Dover area were used for calls the night before and the morning of the shooting.

         There are significant limits to this method that make it impossible for it to provide a specific location of a cellular phone during a call. These limits are compounded because there is no assurance that a given cellular phone accessed the nearest tower. Rather, it merely seeks the strongest signal at a given location, which may or may not be from the nearest tower. According to Mr. Daly, the most this method shows is that a cellular phone accessed one of three sides of a given tower and did so within twenty miles of that tower.

         Furthermore, one of the maps referenced by Mr. Daly shows that there are at least three towers within less than two miles of the alleged murder scene. The phone at issue accessed those three towers at various times the night before and the morning of the alleged murder. There is also no evidence regarding ...


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