Submitted: January 22, 2018
Gregory R. Babowal, DAG Lisa Whitelock, DAG Department of
A. Schmid, Jr., Esq. Richard F. Matoni, III, Esq. Office of
the Public Defender
JEFFREY J CLARK JUDGE.
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). 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
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.
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."
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.
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.
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.
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 ...