State of Minnesota, Respondent, vs. Cedric Lamont Berry, Appellant.
A21-1310
STATE OF MINNESOTA IN SUPREME COURT
December 21, 2022
Gildea, C.J.
Hennepin County. Filed: December 21, 2022. Office of Appellate Courts
Michael O. Freeman, Hennepin County Attorney, Sarah Jane Vokes, Assistant County Attorney, Minneapolis, Minnesota, for respondent.
Lisa M. Lopez, Acting Chief Public Defender Hennepin County, Paul Joseph Maravigli, Assistant Public Defender, Minneapolis, Minnesota, for appellant.
S Y L L A B U S
- The district court did not err in admitting the State‘s cell-site location information (CSLI) evidence without holding a hearing on general acceptance in the relevant scientific community because the CSLI evidence is not novel, and even if the district court‘s failure to hold a hearing on foundational reliability was erroneous, the error was harmless
because trial testimony established that the CSLI evidence had foundational reliability in this case. - Defendant and his codefendant did not present antagonistic defenses, thus the district court did not err by joining their cases for trial, by denying defendant‘s motion to sever before trial, or by failing to sever defendant‘s and his codefendant‘s cases during trial.
- Defendant suffered no prejudice from the denial of a peremptory challenge during alternate juror selection when the alternate jurors did not participate in the verdict.
Affirmed.
O P I N I O N
GILDEA, Chief Justice.
Appellant Cedric Lamont Berry appeals his convictions for first-degree premeditated murder, attempted first-degree premeditated murder, and kidnapping. Berry argues that the district court improperly admitted expert testimony and evidence about cell-site location information (CSLI) without holding a hearing to determine that the evidence was generally accepted in the relevant scientific community and had foundational reliability. He also challenges the fact that he and codefendant Berry Davis‘s cases were tried together. Finally, he asserts that the district court erroneously denied his request for an additional peremptory challenge.
Because the CSLI evidence is not novel, we agree with the State that the district court was not required to hold a hearing to determine whether that evidence was generally accepted in the relevant scientific community. We further conclude that any error in failing to hold a
FACTS
Berry was convicted of first-degree premeditated murder and kidnapping of Monique Baugh and attempted first-degree premeditated murder of her boyfriend Jon.1 These crimes occurred on December 31, 2019, when Baugh was lured to a house in Maple Grove, kidnapped from that house, driven around Minneapolis in a rented U-Haul van, and later fatally shot in an alley behind a home on Russell Avenue North in Minneapolis. Baugh died of the gunshot wounds. Jon was shot at Baugh‘s mother‘s home while Baugh was being driven around in the U-Haul. Jon survived his injuries.
The State‘s theory was that the crimes were committed because of a falling out between Jon and Lyndon, a musician with whom Jon worked. Lyndon was also a drug dealer, and he was arrested in 2019 after his falling out with Jon. Lyndon believed that Jon was behind his arrest. According to the State‘s theory, to get back at Jon, Lyndon got Berry and Davis to commit the murder, attempted murder, and kidnapping. Berry did not have a direct connection to Lyndon, but Davis did, and Berry and Davis regularly worked together to sell drugs, even sharing a phone in the fall of 2019.
Baugh arrived at the Maple Grove house at approximately 11 a.m., the scheduled time. Another real estate agent also had a showing of the same house. The two agents chatted while they waited for their clients to arrive. Baugh‘s client never came to the showing. But while she was waiting, a car, which looked like the car registered to Berry‘s wife, was captured on video circling the block where the Maple Grove house is located. In addition, cell phones that Berry and Davis are known to have used connected to towers near the Maple Grove house from about 11–11:40 a.m.
Later that evening, Berry and Davis met Keith at a business park in Fridley. Keith testified that Berry asked him to rent a U-Haul for Berry in exchange for heroin. Keith told his girlfriend that Berry was moving to Maple Grove. They agreed to meet in the same place the next day for Berry to return the U-Haul. Berry‘s phone connected to towers around the business park during these events.
The next morning, December 31, 2019, Berry‘s phone again connected to towers around the business park where the U-Haul was parked. Surveillance cameras captured Berry‘s tan Buick entering the parking lot and the U-Haul and the Buick driving away. Berry admitted to being at the business park to pick up the U-Haul.
Baugh used the key lockbox to access the Maple Grove house at 3 p.m. Video footage shows two men arriving at the house in a U-Haul truck shortly after 3 p.m. They parked the U-Haul in the driveway and entered the house through the front door. Later, two men came back out, and one of the men was shown on the video walking close to a third person. The three went to the back of the U-Haul, then one got in the cab and the U-Haul drove away.
From 3:12 p.m. to 3:21 p.m., Baugh‘s cell phone connected to the network near the Maple Grove house. At 3:25 p.m., her phone started moving east—toward Minneapolis. There are no outgoing communications from her phone after 3:21 p.m.
At 5:16 p.m., a camera captured the U-Haul driving north on the 4800 block of Humboldt Avenue North, in Minneapolis. The U-Haul drove around the area for about 40 minutes. Just before 5:40 p.m., video shows that someone entered Baugh‘s mother‘s house. Jon testified that he thought it was Baugh coming back, but instead, an assailant walked in and shot Jon. At 5:40 p.m., police received a call about a shooting at the house. They arrived to find Jon lying on the ground with several gunshot wounds. Police also found Baugh‘s key to the house lying on the floor near the door.
At 5:45 p.m. the U-Haul was captured on a license plate reader at 45th and Lyndale, just blocks north from the cousin‘s house. At 5:52 p.m. the phones of Berry and Davis began to move in concert. Berry‘s phone made a call to his wife‘s number. The U-Haul and Berry‘s tan Buick appear minutes later on a traffic camera just a few blocks south of Berry‘s cousin‘s house, at Fremont and Lowry. CSLI places their phones in the same place. For the next half hour, traffic camera photos place the U-Haul and Berry‘s Buick travelling through north Minneapolis, consistent with the location of their phones.
Video footage captured the U-Haul driving near the 1300 block of Russell Avenue around 6:30 p.m. A resident of the block saw a tan Buick parked in front of her house around this time. And CSLI places both Berry‘s and Davis‘s cell phones near the 1300 block of Russell Avenue at the same time as the video footage depicts the U-Haul in this area.
A few days later, police arrested Cedric Berry on suspicion of committing the kidnapping and shootings. The arrest of Cedric Berry occurred at a hotel where he was staying with his wife, her brother, Berry Davis, and Davis‘s wife.
The State indicted Berry and Davis on charges of first-degree premeditated murder,
Before trial, the State moved for joinder of the trials. Berry and Davis opposed the motion. The district court considered the State‘s theory of the case and concluded that although there could be only one shooter, the State charged Berry and Davis on an aiding and abetting theory of liability, and the State intended to show that both defendants engaged in different aspects of preparing for and participating in these offenses. According to the court, it did not matter who the shooter was because Berry and Davis were present and
Before trial, Berry filed a written motion to sever his trial, asserting that because only Davis knew Lyndon, the sole motive the State could present for him was his relationship with Davis. Berry asserted that he planned to defend against the charges by arguing that he had no connection to Lyndon. He claimed that his only option would be to emphasize Davis‘s connection to Lyndon, making his defense antagonistic to Davis‘s. The district court denied the motion, concluding that Berry‘s proffered defense did not change anything about the joinder analysis.
During jury selection, the district court allotted 16 peremptory challenges to the defense side, 8 to each defendant to use independently. Berry requested that each defendant receive 15 challenges, but the court denied that request. The court sought to empanel 14 jurors: 12 to serve on the jury with 2 alternates. Berry exhausted his peremptory challenges between empaneling Juror 13 and 14, and consequently he had no peremptory challenges left to remove the 14th juror (the second alternate) from the jury. Berry then asked for an additional preemptory challenge. The court denied that request, and the second alternate juror was selected. Neither alternate participated in deliberation or in the verdict.
Several days into jury selection, Berry moved to suppress the CSLI data obtained from his and Davis‘s cell phones. CSLI data is location information generated and collected by the cellular carriers about which cell tower a phone connected to and from which sector of that cell tower. CSLI data from towers can be used to approximate the cell phone‘s location using triangulation—an analysis of the phone‘s location based on the pattern of
Berry moved to suppress the State‘s CSLI evidence or for a Frye-Mack4 hearing on whether this evidence was admissible. Berry argued that because CSLI evidence was novel, the State needed to show that it was generally accepted in the relevant scientific community. He also contended that the State needed to establish—at a hearing outside the presence of the jury—that the evidence had foundational reliability.
The district court denied Berry‘s motion. Relying on State v. Harvey, 932 N.W.2d 792 (Minn. 2019), the court concluded that CSLI evidence is not novel, and a Frye-Mack hearing on general acceptance was not required. The court also determined that the State‘s expert would have to establish foundational reliability during his testimony before the CSLI evidence would be admitted at trial.
At trial, FBI Special Agent Richard Fennern—an expert in CSLI analysis—testified to the CSLI evidence in this case. He explained that he has personally witnessed the real-world accuracy of call-detail data by using it to find missing persons or fugitives based on
Fennern acknowledged that cell-service providers do not keep this data for law enforcement purposes; they use it to manage their network and to better understand how many callers are in a specific area. This information allows cell-service providers to build more cell towers in optimal locations.
According to Fennern, CSLI analysis is now automated. He testified that he generally uses multiple software programs in his analysis, including checking his work using different software. He also explained that a colleague generally verifies the report and the findings, and that a colleague had reviewed at least some parts of his report for this case.
In investigating the case, Fennern performed CSLI analysis on phone records Minneapolis police identified as relevant. He used triangulation and estimated the distance from the phone to the tower using timing-advance data. His report presented the records, which come in Excel format, as maps showing the approximate location of the phones that were identified as relevant to the investigation.
When the State moved to admit Fennern‘s report, Berry‘s attorney objected. The court responded, “That‘s noted. Overruled,” but made no further reference to foundational reliability.
The State then published the report. The report begins with background, stating that the report is based on the methodology of matching records from phone companies to cell-tower lists and then creating a visual depiction. Fennern relied on the report to testify about
Berry testified in his own defense. After an arrest in fall 2019, Berry had agreed to work as an informant to implicate Davis in drug crimes. According to Berry, he would not have committed a kidnapping and shooting in December 2019 because he knew that police were watching him and Davis closely. Berry testified that Lyndon is not his friend, and that Davis was his connection to Lyndon. But Berry did not specifically contend that Davis committed the crimes.
Berry also explained that he rented vehicles to move drugs. He claimed that he asked Keith to get him the U-Haul so that he could move drugs. According to Berry, he left the U-Haul at the house of his wife‘s mother and left his phone in the Buick on December 31, 2019. Then he went out drinking, smoking, and selling drugs, so he could not have committed the kidnapping, murder, and attempted murder. He admitted that he owned the tan Buick, among other cars. But, he explained, the Buick was also parked at the house of his wife‘s mother on December 31, 2019.
The jury found Berry guilty on all charges. The district court entered convictions for premeditated first-degree murder, attempted first-degree murder, and kidnapping. The district court sentenced Berry to life in prison without the possibility of parole for the premediated first-degree murder conviction and concurrent sentences of 240 months and 158 months on the attempted first-degree murder and kidnapping convictions. This direct appeal follows.
On appeal, Berry argues that he is entitled to a new trial and reversal of his convictions or to a post-trial evidentiary hearing. First, he asserts that the district court erred by admitting CSLI evidence without a hearing. Second, he argues that the district court erred by trying his and Davis‘s cases together. Third, he argues that the district court committed reversible error by not granting his motion for an additional peremptory challenge during alternate juror selection. We address each argument in turn.
I.
Berry first argues that the district court should have held a Frye-Mack evidentiary hearing to evaluate whether the CSLI evidence was admissible. Berry raised two grounds in support of this claim, arguing that CSLI is novel or emerging and that a hearing is required to establish foundational reliability of scientific evidence.
A.
We start with prong 4. Under this prong, district courts must consider whether the scientific evidence involves a novel scientific theory or technique. State v. Garland, 942 N.W.2d 732, 746 (Minn. 2020). A theory or technique is novel if it is new. Harvey, 932 N.W.2d at 807. If a technique is novel, a hearing is required to determine whether the technique is generally accepted in the relevant scientific community. State v. Roman Nose, 649 N.W.2d 815, 822 (Minn. 2002). We review a district court‘s finding that scientific evidence is not novel de novo. See Harvey, 932 N.W.2d at 806.
We recently held in Harvey that CSLI evidence is not novel because it is not new, and as a result, no hearing on general acceptance in the scientific community was required before the evidence was admitted. 932 N.W.2d at 807–08. Harvey is dispositive of the prong 4 question. Because CSLI evidence is not novel, a hearing is not required to assess its general acceptance.
But, Berry contends, Harvey is not controlling. He asserts that the proper inquiry is whether a scientific technique is “novel or emerging,” and if the testimony involves a technique that is either novel or emerging, district courts must address whether the technique is generally accepted in the scientific community. As Berry explains it, although CSLI evidence is not new, it is still emerging because it is “growing and developing.” We are not persuaded.
Because we previously held that CSLI evidence is not novel, the district court did not err when the court denied an evidentiary hearing to evaluate whether CSLI evidence is generally accepted in the relevant scientific community.
B.
Turning now to prong 2 of
But the district court‘s error is harmless because the record establishes that the CSLI evidence had the necessary foundational reliability. The district court‘s failure to hold a hearing, even if erroneous, is harmless for the same reason.6 State v. Ortlepp, 363 N.W.2d 39, 44–45 (Minn. 1985) (noting that a harmless-error standard of review applies to a failure to hold a hearing and to prevail a defendant must show that the hearing would have benefitted
As the party offering the evidence, the State had the burden of showing that the CSLI evidence had foundational reliability. See State v. Bailey, 677 N.W.2d 380, 399–400 (Minn. 2004). An assessment of the foundational reliability of an expert‘s opinion begins by considering the purpose for which it is offered. Doe, 817 N.W.2d at 167–68. Next, “the court must consider the underlying reliability, consistency, and accuracy of the subject about which the expert is testifying.” Id. at 168. Last, the party offering the evidence “must show that it is reliable in that particular case.” Id.
The State offered CSLI evidence to show the location of Berry‘s phone when the assailants were preparing for and committing the crimes. Thus, the question is whether the CSLI analysis was sufficiently reliable evidence of the approximate location of Berry‘s phone. To conclude that it was, the State needed to show that CSLI is generally reliable, consistent, and accurate. Doe, 817 N.W.2d at 168. The record evidence confirms that the State met this burden.
Fennern testified at length about how CSLI analysis works and explained that it is reliable for identifying the location of a cell phone. He testified that CSLI has been reliable in his personal experience, and it is the most precise form of cell-phone-location analysis. He also explained that the cell-service providers keep this data to manage their network, not for law enforcement purposes. This testimony is very similar to the testimony we held
In urging us to reach a contrary conclusion, Berry asserts that the State needed to offer data about accuracy, error rates, and peer-reviewed studies to establish foundational reliability. We disagree. We concluded that the CSLI in Harvey had foundational reliability without this type of evidence. See 932 N.W.2d at 808.7
Finally, for the prong 2 analysis, the State established that the CSLI evidence had foundational reliability in this case. Specifically, evidence at trial corroborated Fennern‘s report as to the location of Berry‘s cell phone. Video from the T-Mobile store placed Berry with his phone consistent with CSLI analysis. Berry himself admitted that he was at the business park when the CSLI placed Berry‘s phone near there, and at the same time Keith
Moreover, Fennern testified that he followed the generally accepted method for CSLI analysis. See State v. Traylor, 656 N.W.2d 885, 893–94 (Minn. 2003) (“[I]n determining the foundational reliability . . . this court looks at ‘whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls.’ “) (quoting Roman Nose, 649 N.W.2d at 819). His report states that it was based on analysis of cell records and that cell-tower, cell-sector, and timing-advance data were put into a mapping software to make the report. See Bailey, 677 N.W.2d at 398–99 (holding that a test that departed from the generally accepted method lacked foundational reliability). Berry does not argue that Fennern failed to apply CSLI analysis properly and nothing in the record shows that he failed to do so. The record gives us no basis to conclude anything other than that Fennern “reliably applied the underlying theories and methodologies in the particular case.” Garland, 942 N.W.2d at 742.8
II.
Berry next asks us to order a new trial because the district court erroneously tried Berry and Davis together. Berry argues primarily that the cases should not have been joined pretrial. Specifically, Berry argues that the district court erred because he and Davis presented antagonistic defenses that presented a need for separate trials. We addressed this same claim in State v. Davis, A21-1309, ___ N.W.2d ___ (Minn. Dec. 21, 2022), decided today. In Davis, we concluded that the district court did not err when it granted the State‘s motion for joinder of Berry‘s and Davis‘s cases for trial. Id. Our decision in Davis compels the same conclusion here.
To the extent Berry separately argues that the district court erred when it denied motions to sever, we similarly conclude that there was no error. Under
The analysis of three of the
Berry did not demonstrate that his defense was antagonistic to Davis‘s defense. This is so because the jury remained free to choose between the defendants’ theories: it could find that Davis had a motive, Berry had a motive, or neither defendant had a motive. Thus, Berry‘s defense was not shifting the blame but clarifying the roles of the defendants, which is not antagonistic. Compare id. (holding that defendants had antagonistic defenses when they sought to shift the blame), with State v. Powers, 654 N.W.2d 667, 677 (Minn. 2003)
The same is true for any midtrial motion to sever.9 A higher standard applies to midtrial motions to sever than to pretrial motions to sever. Santiago, 644 N.W.2d at 448. But this standard—the “fair determination” standard—also requires that Berry show that he and Davis presented antagonistic defenses. See id. at 448–49. Berry‘s evidence at trial showed that Davis‘s connection to the motive for the crimes was stronger because Davis, not Berry, had a relationship with Lyndon.10 And Berry took the stand and testified that he did not know Lyndon well. But, as explained above, Berry‘s defense was not inherently antagonistic to Davis‘s defense. To the extent there was prejudice from Berry‘s testimony, the prejudice would be to Davis, not to Berry. And as discussed at length in our opinion in Davis‘s appeal, there was also no prejudice to Davis.
Berry asserts that this case is distinct from Powers because Davis moved to sever and because there was an attempt to shift blame. But although Davis‘s attorney moved to sever, Davis did not attempt to shift blame from Davis to Berry. Davis‘s attorneys did not even cross-examine Berry when he testified. Nor did Davis‘s attorney excessively point the finger at Berry in closing—Davis‘s attorney made one reference to CSLI analysis placing Berry and Lyndon together to refute Berry‘s contention that Davis knew Lyndon but that Berry did not. But beyond that, Berry‘s and Davis‘s closing arguments were compatible. Both Berry‘s and Davis‘s attorneys argued that Berry and Davis did not participate in the crimes, that the State did not present evidence of a motive, and that the State‘s DNA evidence was inadequate or lacking. One inconsistency does not create an antagonistic defense when there is overwhelming evidence of a common scheme. See Powers, 654 N.W.2d at 677. The compatible closing argument and lack of antagonistic cross-examination confirms that the defense theories were not antagonistic. Id. Based on
III.
Finally, Berry argues that he is entitled to a new trial because the district court denied his motion for an additional peremptory challenge.
Berry contends, however, that the district court improperly denied his motion for an additional peremptory challenge. A district court has discretion over how the defendants will exercise challenges and may allow more challenges. Id.;
Berry exhausted all his peremptory challenges, but he suffered no actual prejudice from the district court‘s denial of his motion for an additional peremptory challenge. Juror 14—the only juror empaneled after Berry exhausted his peremptory challenges—did
CONCLUSION
For the foregoing reasons, we affirm the judgment of convictions.
Affirmed.
Notes
In State v. Bailey, we directed a district court to hold a Frye-Mack hearing on foundational reliability. 677 N.W.2d 380, 399–400 (Minn. 2004). The district court had already held a Frye-Mack hearing, yet we determined that factual disputes remained about the validation of operating procedures, and that the district court improperly shifted the burden away from the State, so additional analysis was necessary. Id. Although the Bailey court did not set rules for determining when a district court must hold a hearing on the second prong, the case makes clear that it is required in at least some circumstances. Id. Given this precedent, district courts should exercise caution in denying a hearing on foundational reliability under prong 2 of