603 S.W.3d 214
Ky.2020Background
- Michael D. Torrence was convicted by a Jefferson Circuit Court jury of first-degree assault and possession of a handgun by a convicted felon; the jury found him a persistent felony offender and recommended concurrent sentences totaling 25 years.
- The charged shooting (May 17, 2016) left victim Gerrado Thomas paralyzed below the waist; Torrence claimed an alibi that he was in the Blue Lick area (about 11 miles away) picking up his daughter.
- Police obtained historical AT&T cell‑tower records for Torrence’s phone; Detective Snider used tower IDs, lat/long coordinates, and directional sector data from the report to plot tower locations and sector “pie wedges” on Google Maps (no expert was called).
- Late in trial an alibi witness (Tatiana Turner, mother of Torrence’s child) identified a juror as someone she recognized from years earlier; defense sought removal/mistrial and later a new trial/JNOV based on alleged juror mendacity and bias.
- Victim Thomas identified Torrence from a six‑photo police array after family members (not at police direction) showed him a single social‑media photo of Torrence while he was hospitalized; Torrence moved to suppress the array and in‑court ID.
Issues
| Issue | Torrence's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Juror nondisclosure / bias | Juror failed to disclose knowledge of defense alibi witness (Turner), so juror was biased; verdict tainted; merits removal, mistrial, new trial or JNOV | Juror repeatedly denied knowing Torrence; any contact was remote and years old; timing of disclosure was late and credibility favored juror; trial judge entitled to weigh demeanor | No structural error; no abuse of discretion. Trial court credited juror, found no close relationship or prejudice; denial of removal, mistrial, new trial/JNOV affirmed |
| Admissibility of historical cell‑tower data and lay testimony | AT&T report and plotting involve specialized technical inference; Detective Snider should have been qualified as an expert and records/exhibits excluded without expert foundation | Records are ordinary phone/tower data; plotting coordinates on Google Maps is a non‑expert, demonstrative task; Commonwealth need not proffer expert so long as no location opinion offered | Admissible as lay testimony limited to plotting coordinates and showing which towers interacted with the phone. Expert testimony required if witness offers opinions about precise location or technical inferences beyond plotting |
| Photo array / in‑court identification | Identification was tainted because family showed Thomas a single photo before police array, rendering array unduly suggestive and unreliable; suppression required | Family showed the photo independently (no state action); Perry v. New Hampshire bars due‑process exclusion absent police involvement; jury and cross‑examination suffice to assess reliability | No abuse of discretion. No state action shown; suppression not required. Cross‑examination and jury fact‑finding were adequate safeguards |
Key Cases Cited
- Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005) (right to an impartial jury)
- Commonwealth v. Douglas, 553 S.W.3d 795 (Ky. 2018) (failing to remove biased juror taints trial; structural‑error framework)
- McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (U.S. 1984) (standard for juror nondisclosure/mendacity claims)
- Holbrook v. Commonwealth, 525 S.W.3d 73 (Ky. 2017) (upholding expert testimony about historical cell‑tower records)
- McNeil v. Commonwealth, 468 S.W.3d 858 (Ky. 2015) (distinguished — detective’s use of phone records to identify owner required different analysis)
- Perry v. New Hampshire, 565 U.S. 228 (U.S. 2012) (due‑process exclusion of ID evidence requires police‑arranged suggestiveness/state action)
- Manson v. Brathwaite, 432 U.S. 98 (U.S. 1977) (reliability test for eyewitness identification)
- Jeter v. Commonwealth, 531 S.W.3d 488 (Ky. 2017) (Kentucky precedent emphasizing jury safeguards and cross‑examination for contested IDs)