State of Iowa v. Jacob A. Boothby ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 19–0454
Submitted September 16, 2020—Filed December 11, 2020
STATE OF IOWA,
Appellee,
vs.
JACOB A. BOOTHBY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Clinton County, Phillip J.
Tabor, District Associate Judge.
Defendant seeks further review of the court of appeals decision
declining to address ineffective-assistance-of-counsel claims but
preserving them for postconviction-relief proceedings. We conclude the
ineffective-assistance claims fail. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT CONVICTION AFFIRMED.
Oxley, J., delivered the opinion of the court, in which all justices
joined.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart
(argued), Assistant Appellate Defender, for appellant.
2
Thomas J. Miller, Attorney General, Martha E. Trout (argued),
Assistant Attorney General, Mike Wolf, County Attorney, and James M.
McHugh, Assistant County Attorney, for appellee.
3
OXLEY, Justice.
As society becomes more attached to cell phones, cell site technology
seemingly makes tracking people look like following a breadcrumb trail
while their phones ping off cell towers along their route. The technology
is more complicated than that, and this case asks us to decide whether
testifying about the records created from that technology requires an
expert witness.
After a vehicle rammed the back of another car travelling down
190th Street just outside of Toronto, Iowa and a neighbor suggested Jacob
Boothby may have mistaken the vehicle for his ex-girlfriend’s, investigating
officers used Boothby’s cell phone records to place him in the general
vicinity at the time of the incident. Following his convictions for assault
with a dangerous weapon and third degree criminal mischief, Boothby
claimed on direct appeal that his counsel was ineffective for not
challenging the phone records as inadmissible hearsay and not
challenging the officer’s testimony as an unqualified expert. We
transferred the appeal to the court of appeals, which concluded the record
was insufficient to determine whether counsel had tactical reasons for not
objecting and preserved the claims for postconviction-relief proceedings.
Boothby sought further review, which we granted to address as a
matter of first impression whether Iowa Rules of Evidence 5.701 and 5.702
require testimony concerning historic cell site data to be presented by an
expert. Having carefully reviewed the officer’s testimony and surveyed
other jurisdictions, we now hold that the specific testimony provided by
Officer Schroeder was not based on specialized knowledge and therefore
did not require an expert. As such, any challenge by his counsel would
have been pointless, and Boothby’s ineffective-assistance claims fail. We
vacate the court of appeals decision preserving Boothby’s claims for
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postconviction-relief proceedings and affirm Boothby’s district court
convictions.
I. Factual Background and Proceedings.
In the early morning hours of November 14, 2017, Bernadette Chell
was driving her boyfriend, Steven Duvall, to work. Duvall noticed a gray
SUV traveling in the opposite direction on the two-lane road, identifying it
as possibly a 1999 or 2000 “Blazer or Jimmy.” The SUV turned around
and began following them. Chell slowed to let it pass, but instead, the
SUV “slammed” Chell’s car. Chell and Duvall scrambled to call 911, and
Chell sped up to try to get away. The SUV rammed their car a second time,
and Chell and Duvall got through to the police. Following the second
impact, the SUV “just turned off and disappeared,” and Chell and Duvall
stopped to wait for the police.
Neither Chell nor Duvall recognized the driver of the car or got a
license plate number. After the police arrived to speak with the couple,
Shawn Barten emerged from a nearby house. Barten was worried about
Shalan Miller, a friend who had borrowed his car and should have
returned by then. He told the officer that Miller’s on-again, off-again-
boyfriend, Jacob Boothby, had tried to call and text him and Miller
throughout the previous night and into the early morning hours and that
Boothby was mad at Barten for spending time with Miller.
Officer Jessup Schroeder took over the investigation a few days later
and went to speak with Boothby. At Boothby’s home, he observed a silver
Chevrolet Trailblazer with a missing bumper. In a conversation recorded
by a camera in Schroeder’s patrol car and played at trial, Boothby admitted
he contacted Barten and Miller many times the night before and early
morning of November 14 but denied involvement in the hit-and-run
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incident. He also showed Officer Schroeder the bumper from the
Trailblazer.
Officer Schroeder took possession of the bumper to further
investigate, but it had no evidence of paint transfer. Boothby later sent a
text to Officer Schroeder, claiming “I think that [Barten is] a snitch . . . so
i will give that lady the money but im not saying that i did it.” Officer
Schroeder also obtained a warrant for phone records from Boothby’s cell
phone company. Those records showed numerous calls and texts sent
from Boothby’s phone to both Barten’s and Miller’s cell phones throughout
the time period leading up to the incident. The records also identified the
specific cell tower with which Boothby’s cell phone connected in making
each of those calls and texts.
The State charged Boothby with assault with a dangerous weapon
and third-degree criminal mischief, both aggravated misdemeanors. At
trial, Officer Schroeder testified about the cell phone records he obtained,
which were admitted as exhibits. He explained how he used the records
to identify the cell towers Boothby’s phone pinged when he made the
numerous calls leading up to the time of the incident and then plotted the
location of the cell towers on a map he created using Google Earth. He
also plotted the address of the incident near Toronto and Boothby’s home
address near Spragueville on the map and identified each tower’s “sectors”
and coverage radius. The map was introduced as an exhibit at trial.
Neither the State nor Boothby asked Officer Schroeder if he had any
particular expertise in reading or interpreting cell phone records. Boothby
did not object to the exhibits or Officer Schroeder’s testimony.
The jury convicted Boothby of both charges. The district court
sentenced Boothby to two years in prison for each charge, to be served
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consecutive to another sentence Boothby was serving related to other
charges involving Miller.
Boothby appealed, and we transferred the case to the court of
appeals. Recognizing he did not object below, Boothby argued his counsel
was ineffective for not challenging the cell tower records and related
testimony. Particularly, he argued the evidence should have been
presented by an expert and his cell phone records should have been
excluded as impermissible hearsay. The court of appeals concluded the
record was insufficient to address whether trial counsel had a tactical
reason for not challenging the evidence and preserved Boothby’s claims for
postconviction-relief proceedings.
Our court has never addressed whether testimony about cell tower
records and related locations requires an expert witness. In the cases that
have reached our court of appeals, the officers were qualified as experts by
their training, and the court did not address whether the testimony
required an expert rather than a lay witness. We granted Boothby’s
application for further review to address this issue.
II. Standard of Review.
We review claims of ineffective assistance of counsel de novo. State
v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). “To succeed on a claim of
ineffective assistance of counsel, a claimant must establish by a
preponderance of the evidence: ‘(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.’ ” Id. at 320
(quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012)). We deny an
ineffective-assistance claim if the defendant fails to show either prong. Id.
“Under the first prong, ‘we measure counsel’s performance against
the standard of a reasonably competent practitioner.’ ” Id. (quoting State
v. Clay, 824 N.W.2d 488, 495 (Iowa 2012)). We presume counsel
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performed competently, “and the claimant must successfully rebut this
presumption by establishing by a preponderance of the evidence that
counsel failed to perform an essential duty.” Id. We consider the totality
of the circumstances to determine whether counsel’s performance was
reasonable under prevailing professional norms. Id.
Under the prejudice prong, Boothby must show “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” State v. Harrison, 914
N.W.2d 178, 206 (Iowa 2018) (quoting Ledezma v. State, 626 N.W.2d 134,
143 (Iowa 2001) (en banc)). To meet this standard, Boothby “must show
that, ‘absent the errors, the fact finder would have had a reasonable doubt
respecting guilt.’ ” Id. (quoting Ledezma, 626 N.W.2d at 143).
We are asked to decide whether Boothby’s counsel was ineffective in
two respects: (1) failing to object to U.S. Cellular phone records as
inadmissible hearsay, and (2) failing to object to Officer Schroeder’s
testimony using the U.S. Cellular records to create a map because he was
not qualified as an expert. If the evidence was properly admitted, counsel
could not have been ineffective and his claim must fail. See State v. Smith,
573 N.W.2d 14, 21 (Iowa 1997) (affirming denial of ineffective-assistance
claim where challenge to admission of evidence would have lacked merit).
III. Whether the U.S. Cellular Records are Inadmissible
Hearsay.
Boothby argues the U.S. Cellular records in State’s exhibits 10 and
11 are inadmissible hearsay and his counsel was ineffective for failing to
object to their admission. The State argues the records are not hearsay
8
because there was no human “declarant”1 but even if they are hearsay,
they fall within the business records exception.
Hearsay is a (1) statement made by a (2) declarant (3) not made
while testifying at the current trial or hearing, which (4) the “party offers
into evidence to prove the truth of the matter asserted in the statement.”
Iowa R. Evid. 5.801(c)(2). We have previously recognized that phone
records fit the definition of hearsay. See State v. Lain, 246 N.W.2d 238,
242 (Iowa 1976) (“The telephone bill was a written hearsay statement, as
the State offered it to prove the telephone calls were in fact made as the
bill purported to show.”). The U.S. Cellular records were introduced to
show that Boothby’s phone communicated with the cell towers identified
in the records at specific times around the time of the incident, satisfying
the requirement that the evidence be an out-of-court statement offered to
prove the matter asserted.
Under the business records exception to the hearsay rule, a party
may introduce records of regularly conducted activity if specific
requirements are met. Iowa R. Evid. 5.803(6). Those requirements
include:
(A) The record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) The record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or
calling, whether or not for profit;
(C) Making the record was a regular practice of that
activity[.]
1Because the Certificate of Authenticity attached to the records indicates they
were generated “by (or from information transmitted by) a person with knowledge of those
matters” and the State offered no contrary evidence, we need not address the State’s
alternative argument about the lack of a human declarant. (Emphasis added.)
9
Id. r. 5.803(6)(A)–(C). A certification meeting the self-authentication
conditions of rule 5.902(11) can prove these requirements without the
need for a witness testifying at trial. Id. r. 5.803(6)(D).
The State introduced exhibit 10, which included a Certificate of
Authenticity signed by U.S. Cellular subpoena specialist Solangia Haddock
to provide the foundation for admitting the phone records. In the
certificate, Ms. Haddock certified that:
such records were made, at or near the time of the occurrence
of the matters set forth, by (or from information transmitted
by) a person with knowledge of those matters;
such records were kept in the course of a regularly conducted
business activity;
the business activity made such records as a regular practice;
if such record is not the original, such record is a duplicate of
the original.
Ms. Haddock signed the Certificate of Authenticity under penalty of
perjury. This certificate meets the self-authentication requirements of rule
5.902(11), at least for most of the cell site records. See United States v.
Yeley-Davis, 632 F.3d 673, 678 (10th Cir. 2011) (“The certification and
affidavit signed by the Verizon records custodian establish that the phone
records are business records.”); Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct.
App. 2008) (“The certifications provided by the State were evidence that
the cell phone records were records of regularly conducted business, and
therefore admissible hearsay.”).
We say “most” because not all pages of exhibit 10 fall within the
documents identified in the Certificate of Authenticity. Ms. Haddock
identified the certified records as “Subscriber Information, call records,
tower information, and text messages for [Boothby’s phone number] time
period 11/13/2017 to 11/14/2017.” However, exhibit 10 appears to
10
include more than those identified documents. The exhibit consists of “19
of 19” pages of call records for the identified cell number including line
item details for calls made or received on November 13 and November 14,
2017. Those records are followed by a page containing a narrative,
purporting to explain how “[t]o convert Orig CLLI or Term CLLI to find the
cell tower location” and how “[t]o determine cell tower location.” The
narrative is in a different font than the nineteen-page report of calls, and
it is followed by a signature block for Camesha Daniel, a U.S. Cellular
Subpoena Compliance Specialist. The Certificate of Authenticity does not
identify this narrative document as part of the documents to which the
certificate applies. The State failed to lay a sufficient foundation to
establish that this narrative page of exhibit 10 falls within the business
records exception to the hearsay rule.
Nonetheless, to the extent that page may have been introduced to
prove the truth of the matter asserted, i.e., how to convert the CLLI records
to find the cell tower locations or how to determine the cell tower locations,
its introduction did not prejudice Boothby and therefore cannot support
an ineffective-assistance claim. To meet the prejudice prong of his
ineffective-assistance claim, Boothby would have to show that without this
page of the exhibit, the jury would have had reasonable doubt about his
guilt. Harrison, 914 N.W.2d at 206. But no witness referenced that page
of the exhibit during the trial. Our review of Officer Schroeder’s testimony
detailing how he used specific lines of the call records to identify each cell
tower and its location makes clear he did not rely on the narrative to
determine the location of the towers. To the extent any juror even saw the
narrative as part of the exhibit, it would not have changed the outcome of
Boothby’s trial.
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While we conclude the narrative constituted inadmissible hearsay
not excepted by the business records exception, Boothby cannot satisfy
the prejudice prong of his ineffective assistance claim. See Thorndike, 860
N.W.2d at 319. Boothby’s ineffective assistance claim based on failure to
object to the admission of hearsay documents fails.
IV. Whether an Expert Witness is Required to Present
Historical Cell Site Data.
Boothby argues only an expert can explain use of historical cell site
records to create the map introduced at trial and opine about locations
based on those records. He also argues Officer Schroeder was not qualified
as an expert, so the testimony should not have been admitted.
Until 2017, the only requirements for use of lay opinion testimony
under our rules of evidence were that the opinion be “[r]ationally based on
the witness’s perception” and “[h]elpful to clearly understanding the
witness’s testimony or to determining a fact in issue.” Iowa R. Evid.
5.701(a)–(b). In 2017, we added subsection (c), which limits “testimony in
the form of an opinion” offered by a lay witness to “one that is: . . . c. Not
based on scientific, technical, or other specialized knowledge within the
scope of rule 5.702.” Id. r. 5.701(c); 7 Laurie Kratky Doré, Iowa Practice
Series: Evidence § 5.701:1, at 755 (2019–2020 ed. 1999) [hereinafter Doré,
Iowa Practice Series]. Such testimony is “routed instead to the rules
governing the admission of expert testimony.” Doré, Iowa Practice Series
§ 5.701:1, at 764–65; see also Iowa R. Evid. 5.702 (allowing “[a] witness
who is qualified as an expert by knowledge, skill, experience, training, or
education [to] testify in the form of an opinion”).
Subsection (c) is patterned after the federal rules, which added the
same limitation to Federal Rule of Evidence 701 in 2000. Fed. R. Evid.
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701 advisory committee’s note to 2000 amendment; Doré, Iowa Practice
Series § 5.701:1, at 755. According to the committee notes,
the distinction between lay and expert witness testimony is
that lay testimony “results from a process of reasoning
familiar in everyday life,” while expert testimony “results from
a process of reasoning which can be mastered only by
specialists in the field.”
Fed. R. Evid. 701 advisory committee’s note to 2000 amendment (quoting
State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992)). Many courts have
applied a “ ‘process of reasoning’ approach for distinguishing lay from
expert testimony.” King v. United States, 74 A.3d 678, 682–83 (D.C. 2013)
(adopting the Second Circuit’s process of reasoning approach and
concluding officers could offer lay testimony where “the reasoning process
the officers employed to interpret the street language was the everyday
process of language acquisition”); see also United States v. Garcia, 413
F.3d 201, 215 (2d Cir. 2005) (“[I]n considering the third prerequisite for
lay opinion testimony, a court must focus on ‘the reasoning process’ by
which a witness reached his proffered opinion.” (quoting 4 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 701.03[1],
at 701–14 (Joseph M. McLauglin ed., 2d ed. 2004) [hereinafter Weinstein]).
“If the opinion rests ‘in any way’ upon scientific, technical, or other
specialized knowledge, its admissibility must be determined by reference
to Rule 702, not Rule 701.” Garcia, 413 F.3d at 215 (quoting Weinstein
§ 701.03[1], at 701–14)).
This is our first opportunity to address whether testimony is lay or
expert under the revised rules of evidence, i.e., whether the evidence is
“based on scientific, technical, or other specialized knowledge.” Iowa R.
Evid. 5.702. Determining whether opinion testimony is lay or expert
“requires a case-by-case analysis of both the witness and the witness[]’s
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opinion.” United States v. Smith, 591 F.3d 974, 983 (8th Cir. 2010). Before
we look at the specific testimony provided by Officer Schroeder, it is helpful
to first understand what evidence is available from cell site data and how
it is used in police investigations to assist in our determination of whether
Officer Schroeder improperly gave opinion testimony based on scientific,
technical, or specialized knowledge.
A. Historical Cell Site Data. “Cell phones are like two-way radios.
They require a transceiver to transmit the phone calls, and those
transceivers are called cell sites or cell towers.” Alexandra Wells, Ping! The
Admissibility of Cellular Records to Track Criminal Defendants, 33 St. Louis
U. Pub. L. Rev. 487, 491 (2014) [hereinafter Wells] (footnote omitted). Cell
towers are generally arranged in a honeycomb-shaped grid to avoid
coverage gaps, with a cell site or cell tower located at the intersection of
three different hexagonal areas. Id. “This shape is better than other
potential configurations, such as a circle, as it allows the towers to leave
no area without service.” Id.
A number of factors determine a particular cell tower’s coverage
area, including “[t]he number of antennas operating on the cell site, the
height of the antennas, topography of the surrounding land, and
obstructions (both natural and man-made).” Aaron Blank, The Limitations
and Admissibility of Using Historical Cellular Site Data to Track the Location
of A Cellular Phone, 18 Rich. J.L. & Tech. 3, 5 (2011) [hereinafter Blank].
The cell tower’s range is essentially a mathematical calculation of the area
of the circle around the cell tower, with the furthest distance of cell service
serving as the radius. Id. at 5 n.12. A cell tower’s range may vary from
up to thirty miles from the cell site to around one mile from the cell site.
Id. at 5. Urban areas often have overlapping cell sites located every one-
14
half to one mile, whereas rural areas often have cell sites every three to
five miles. Id.
“When a user places a call, the cell phone connects to the cell site
with the strongest signal.” Id. at 6. Although the cell phone must be
within the coverage area of the tower it connects to, “the tower with the
strongest signal . . . is not always the cell tower geographically closest to
the cell phone.” Wells at 493. Rather, a number of factors affect which
tower a cell phone connects to, including technical characteristics of the
cell sites, characteristics of the phone making the connection, and
environmental and geographic factors. Id.
Cell phones can be tracked by two main methods: “(1) Global
Positioning Systems [GPS] and (2) cell site data—which include both real-
time and historical data.” Id. at 489. GPS tracking involves satellite-based
navigation systems that receive signals from cell phones and convert the
delivery speed of the signal into distance to provide an accurate reading of
the phone’s location. Id. at 489–90. Real-time and historical cell site data
both use cellular technology to locate a cell phone and differ only in the
timing of when the signal is observed. Id.
Real-time cell site data is obtained through viewing the cell
phone’s activity and signals in real time, meaning at that
instant. Thus, this largely happens when police officers
survey a particular cell phone’s activity. On the other hand,
historical cell site data . . . is information obtained after the
cell phone’s activity is recorded using the cell companies’
records of that activity.
Id. at 490 (footnotes omitted).
This case involves use of historical cell site data. “Often historical
cell site records only indicate the date, time, and duration of calls, whether
calls are inbound or outbound, and show the originating and terminating
cell sites for calls received or placed on the phone.” Blank at 13. Cell
15
phone companies collect this data to bill customers and track call volume.
Wells at 499. Thus, historical cell site data includes information about
which towers a cell phone pinged at particular times and, although the
data shows a cell phone was within the broad range of a cell site, it cannot
provide a precise location at any given moment. Id.
With this background, we turn to the specific testimony provided by
Officer Schroeder and challenged by Boothby.
B. Officer Schroeder’s Testimony. When asked to explain the cell
phone records he had subpoenaed, Officer Schroeder testified,
So [exhibit 11] is a spreadsheet that U.S. Cellular provides
that has a location of their cellphone towers and the
corresponding codes that we use from the cellphone records
[in exhibit 10] so that we can determine which cellphone
towers and which sectors of each tower the cellphone used.
The State then asked Officer Schroeder to describe what he did with the
records. Specific to the cell tower issue, Officer Schroeder explained,
“[t]here’s also a column labeled original CLLI that has a code that consists
of numbers of letters and this column is a way how we determine what
cellphone tower was utilized by the phone number.” After that
explanation, the State and Officer Schroeder had the following exchange:
Q. And so then that tells you which tower was used?
A. That’s correct. Based on the information in the original
CLLI column, we can determine the physical location of the
tower, the physical address where it’s located, and then also
by that fourth character, the number, it tells us which sector
of the tower is being utilized by the phone. Typically cellphone
towers are separated into three sectors. If you would think of
a cellphone tower at the center and then a circle around it,
they are typically separated into three sectors from the tower.
Q. And so the sector with the information provides
what details to you as an investigator? A. The sector
information tells us which sector or direction from the tower
that the cellphone is, what direction from the tower, roughly.
Q. And so how do you go from the—at one column the
originating CII column to knowing the physic[al] location of
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the tower? A. The exhibit that you gave me, No. 11, the
spreadsheet with all the locations, it has the original CLLI
number and then by looking at that, you can look over and
get the actual physical address of the tower where it’s located,
where the tower actually sits, and then also it provides
information for each tower as to where each sector starts. It
goes by degrees in the 360-degree circle, so you can roughly
show where the sectors start and end for the three sectors for
each tower.
Q. And so using this information, you looked at the
cellphone records. What did you observe? A. Um, in that
time frame that I mentioned before, early morning hours of
the 14th starting around 5:13 to 5:31, there was numerous
calls that had been made from Mr. Boothby’s cellphone, and
all those calls utilized three towers that were in the Toronto,
Iowa, area, and I was able to determine first the physical
location of the address of the towers and then I went back and
was able to determine what sectors the phone was using for
each of those towers.
Officer Schroeder then explained the map admitted as exhibit
12:
This is a Google Earth map that I made. It has Mr. Barten’s
residence pinpointed on the map up by Spragueville. It has
the location of Shawn Barten’s trailer west of Toronto. The
city of Toronto itself is displayed on this map. The city of Lost
Nation, the city of Wheatland, and then there are circles
around each of the three towers I mentioned before with lines
coming from the center where the towers are out to the edge
of the circle to indicate where the sectors were.
Officer Schroeder next described how to interpret the map,
And then if you look at the three pinpoints where the
cellphone towers are, you’ll see lines coming out from the
center there. These are the lines that I used to mark out the
different sectors for each of these individual towers. So for
example, up here on the tower north of Lost Nation, you can
see two lines coming out to the west and to the east and then
one to the bottom and then the same for the tower down here
in Wheatland.
These lines that come out from the center of the tower
are just to mark out the sectors and then also the same over
here for the tower by Lowden. Now, what I tried to do was
make them different colors to try to be able to differentiate
them looking at this map because as you can see, some of
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them overlay each other. Another thing you will notice is it
looks like some of the circles are bigger than others.
U.S. Cellular does provide information of the relative
radius range of the towers, and you can measure that using
Google Earth, so if you notice here on the tower over by
Lowden, there’s quite a large circle for that one. You can’t
actually see it all. U.S. Cellular indicated that the radius
range for that, I believe, was maybe 34,000 or 37,000 meters,
so usually Google Earth you can measure that out. That’s
why there’s different circles for each of the towers.
The map created by Officer Schroeder is reproduced below.
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Following a discussion of the timing of the calls in the records, the
State asked Officer Schroeder to explain specifically what the map meant:
Q. . . . And then so based on your training and
experience, what is this information telling us? A. This
information tells me that Mr. Boothby’s phone was in the
sectors of those towers that—where Mr. Barten’s residence or
the rough location of where the incident occurred. His
cellphone was in that area or in those sectors on the morning
of the 14th.
Q. Does it give us exact locations? A. No, it does not.
The record would only indicate that his phone would be
somewhere roughly in those sectors. It cannot pinpoint his
exact location.
(Emphasis added.)
To summarize, Officer Schroeder testified about how he used the
U.S. Cellular records to create a map from the Google Earth program that
identified Boothby’s home address and the address near the incident,
three specific cell towers used by Boothby’s phone in the minutes leading
up to the time of the incident, the direction of the phone from the relevant
tower when the call was connected, and the range of each tower as
identified by U.S. Cellular. We now look at how other jurisdictions have
treated similar testimony to determine whether Officer Schroeder provided
expert testimony without being properly qualified to then determine
whether Boothby’s counsel was ineffective for failing to challenge the
testimony on that basis.
C. Survey of Other Jurisdictions’ Treatment of Historical Cell
Site Date. On the surface, many of the jurisdictions that have considered
this question appear divided. However, in recent years, a trend has
emerged among courts that have considered whether and when an expert
is required to testify about historical cell site data.
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Many earlier cases considering this issue held historical cell site
data did not require an expert, offering little discussion. See, e.g., United
States v. Baker, 496 F. App’x 201, 204 (3d Cir. 2012) (concluding that
creation of a map using cell site data did not require special knowledge);
United States v. Feliciano, 300 F. App’x 795, 801 (11th Cir. 2008) (per
curiam) (concluding testifying officer did not provide expert testimony but
“simply reviewed the cellular telephone records and a summary of those
calls, which identified cellular towers for each call, and based on his
personal knowledge concerning the locations of certain cellular towers,
testified that, at the time of the call, [an accomplice’s] cellular telephone
was nowhere near the arrest location”); Perez v. State, 980 So. 2d 1126,
1131 (Fla. Dist. Ct. App. 2008) (concluding records custodians did not
provide expert testimony where they “simply factually explained the
contents of phone records” (quoting Gordon v. State, 863 So. 2d 1215,
1219 (Fla. 2003) (per curiam))); State v. Hayes, No. M2008–02689–CCA–
R3–CD, 2010 WL 5344882, at *10 (Tenn. Crim. App. Dec. 23, 2010) (“The
detective merely testified that he saw the locations of the cell phone towers
listed on the cell phone records and plotted those locations on a map. . . .
We conclude that a layperson could plot the locations of the towers on a
map and draw the same inference [of location]; therefore, his testimony
did not require specialized knowledge . . . and the trial court did not err by
allowing the testimony.”).
The Maryland Court of Special Appeals reached the opposite
conclusion in Wilder v. State. 991 A.2d 172, 176 (Md. Ct. Spec. App. 2010)
(“[T]he trial court abused its discretion by permitting testimony about
cellular tower site location without qualifying the State’s witness as an
expert . . . .”). After considering many of the cases cited above, the
Maryland court concluded “the better approach is to require the
20
prosecution to offer expert testimony to explain the functions of cell phone
towers, derivative tracking, and the techniques of locating and/or plotting
the origins of cell phone calls using cell phone records.” Id. at 198. That
court “recognize[d] that cellular telephone technology has become
generally understood,” but concluded the testifying detective’s “testimony
implicated much more than mere telephone bills.” Id. at 199. The court
believed that the officer’s elaboration on the phone records by use of a
software program to “plot the locations from which Wilder used his cell
phone” required specialized knowledge or skills, requiring the witness to
be qualified as an expert. Id. at 199–200.
Maryland’s highest court later endorsed this holding in State v.
Payne. 104 A.3d 142, 154–55 (Md. 2014). That court observed,
Detective Edwards engaged in a process to derive his
conclusion that [the defendant and a co-conspirator’s] cell
phones communicated through the Menlo Park and Balmoral
Towers cell towers that was beyond the ken of an average
person; his conclusions regarding the communication path
also required that he be qualified as an expert witness.
Id. at 154. The court concluded that the detective needed to be an expert
to interpret the cell data and understand how to plot it on a map. Id. at
154–55.
More recent cases have addressed the issue in a more nuanced
manner, focusing on the specific testimony presented. A federal court in
Illinois recognized that some information regarding historic cell site data
required expert testimony, while other information did not. See United
States v. Evans, 892 F. Supp. 2d 949, 953–54 (N.D. Ill. 2012). In United
States v. Evans, the state sought to use an officer to introduce a map of
the location of cell towers pinged by the defendant’s phone at specific times
and then estimate the general location of the defendant’s phone during an
eighteen-minute period based on the phone’s communications with two
21
specific cell towers by using “granulization theory.” Id. at 952. The court
concluded that “using Google Maps to plot these locations does not require
scientific, technical, or other specialized knowledge and that these exhibits
are admissible through lay opinion testimony under Rule 701.” Id. at 953.
“Understanding how . . . factors affect a cell phone’s ability to
connect a particular tower, however, cannot be said to be within the
perception of the untrained layman,” and, therefore, attempting to explain
the function of cell towers required expert testimony. Id. at 954. Thus,
witnesses could
provide lay opinion testimony concerning (1) the call data
records obtained for [the defendant’s] phone and (2) the
location of cell towers used by [the defendant’s] phone in
relation to other locations relevant to the crime; but if [they]
wish[] to testify concerning . . . how cellular networks operate,
i.e., the process by which a cell phone connects to a given
tower . . . [they] must first meet the demands of Rule 702 and
Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
593–94, 113 S. Ct. 2786, 2796–97 (1993)].
Id.
The Evans court drew its line based on the “process of reasoning”
standard identified in the advisory committee rules applied by courts in
other situations faced with determining whether testimony was lay or
expert. Id. at 953–54. Relaying information contained in phone records
and using that information to plot locations on a map use a “process of
reasoning familiar in everyday life” rather than “reasoning which can be
mastered only by specialists in the field.” Id. (quoting Fed. R. Evid. 701
advisory committee’s note to 2000 amendment). It is also consistent with
many of the earlier cases cited above that considered the issue.
Since Evans, the trend among courts has been to draw a similar line
between use of historical cell phone data to generate a map identifying the
location of cell towers with which a cell phone pinged at the times identified
22
in phone records on the one hand and testifying about how a cell tower
functions and using that information to locate a cellphone at the time it
made a call on the other. In United States v. Henderson, the United States
Court of Appeals for the Tenth Circuit observed that an officer’s “recitation
of business records” was not improper expert testimony where “the
majority of his statements required nothing more than knowing the
meaning of abbreviations.” 564 F. App’x 352, 363 (10th Cir. 2014). When
asked to provide a conclusion about the location of the defendant based
on the data, the officer did not cross the line into expert opinion testimony
because he qualified his answer by saying no one used the phone to make
a phone call within that tower’s range, rather than saying the defendant
was in any particular location. Id. The Tenth Circuit recognized the
officer’s testimony merely “reflected the collated call information (including
tower and sector) contained in other exhibits (also admitted without
objection) with the spatial information contained in” the admitted map
exhibit. Id. at 363 n.10.
The court later distinguished the Henderson holding in United States
v. Yeley-Davis. 632 F.3d at 683–84. There the court held that a witness
who first described how cell phone signals are transmitted and the factors
that determine which cell tower a phone will connect to, and then testified
a phone was in a particular location using that information, gave expert
testimony. Id. Like the Evans court, the Tenth Circuit drew its line based
on whether the “process of reasoning” utilized by the witness was one
“familiar in everyday life” or could “be mastered only by specialists in the
field.” Id. at 684 (quoting Fed. R. Evid. 701 advisory committee’s note to
2000 amendment).
Missouri courts have come to a similar conclusion. In State v.
Patton, the defendant to a murder charge claimed to be in his cousin’s
23
house sleeping at the time of the murder. 419 S.W.3d 125, 128–29 (Mo.
Ct. App. 2013). The cousin’s house was only four miles from the site of
the murder, so there was overlapping coverage of cell sites in the area. Id.
at 132. The court recognized that “[r]eading the coordinates of cell sites
from phone records and plotting them on a map is not a scientific
procedure or technique, and the Frye [v. United States, 293 F. 1013, 1014
(D.C. Cir. 1923)] standard is not applicable.” Id. at 130. However,
“analysis of the many variables that influence cell site signal strength,”
which was “actually probative of whether Patton was in one area rather
than the other . . . amount[ed] to opinion testimony that is properly the
province of an expert.” Id. at 132. Notably, in Patton, the crime site and
the defendant’s alibi site were both located within the coverage of the
overlapping cell towers, and the testimony crossed into expert testimony
because opining that a cell phone was closest to the pinged tower to then
place him at the crime scene was based on the witness’s analysis of the
“many variables that influence cell site signal strength.” Id. The Missouri
Supreme Court later endorsed Patton in State v. Blurton. 484 S.W.3d 758,
771 (Mo. 2016) (en banc).
The Nevada Supreme Court recognized a similar distinction in
Burnside v. State. 352 P.3d 627, 636–37 (Nev. 2015) (en banc).
The key to determining whether testimony about information
gleaned from cell phone records constitutes lay or expert
testimony lies with a careful consideration of the substance of
the testimony—does the testimony concern information
within the common knowledge of or capable of perception by
the average layperson or does it require some specialized
knowledge or skill beyond the realm of everyday experience?
Id. at 636. Thus, an officer who created a map identifying the location of
cell sites used by the defendants’ phones did not need to qualify as an
expert to testify about the map. Id. However, a Sprint employee, who
24
explained how cell signals are transmitted and what determines which cell
tower has the strongest signal, based his testimony on specialized
knowledge gained through his employment, which required him to be
qualified as an expert. Id. at 636–37.
In reaching a similar conclusion, the New Hampshire Supreme
Court offered a unique perspective. In State v. DePaula, records
custodians employed by major cell phone service providers and a police
analyst testified about cell towers as well as a map with plotted cell tower
pings. 166 A.3d 1085, 1090 (N.H. 2017). In determining whether these
witnesses provided lay or expert testimony, the court noted it had
“previously found that individuals can present limited lay testimony
regarding matters which, if discussed in detail, would require expert
testimony.” Id. at 1098 (discussing the horizontal gaze nystagmus test
used for determining whether a person is under the influence of alcohol).
The court reasoned that just as an officer who testifies about performing
a horizontal gaze nystagmus test but does not understand the neurological
processes testifies as a lay witness, so too an officer presenting testimony
of historical cell site data without addressing the inner workings of the
towers presented only lay testimony. Id.
Many other jurisdictions have come to the same or a substantially
similar conclusion, including Ohio, State v. Johnson, 110 N.E.3d 800, 807
(Ohio Ct. App. 2018) (“Testimony regarding a comparison of cell phone
data records to locations where crimes occurred does not require
‘specialized knowledge, skill, experience, training, or education’ regarding
cellular networks.” (quoting State v. Daniel, 57 N.E.3d 1203, 1218 (Ohio
Ct. App. 2016))), New Mexico, State v. Carrillo, 399 P.3d 367, 376 (N.M.
2017) (“Had the State limited [the records custodian’s] testimony to just
the call detail report record and the cell tower report, we would find no
25
error. However, [the custodian] proceeded to testify about how cell towers
operate and interact with cell signals to locate the general origin of a cell
phone call. This second category of testimony requires the ‘scientific,
technical, or other specialized knowledge’ to assist ‘the trier of fact to
understand the evidence or determine a fact in issue.’ ” (quoting New
Mexico R. Evid. 11-702)), and Maine, State v. Wyman, 107 A.3d 641, 648
(Me. 2015) (“A witness who testifies to the contents of cell phone billing
records should be qualified as an expert if her testimony employs some
form of specialized knowledge. Specialized knowledge is not necessary,
however, when a witness conveys only the factual information displayed
on cell phone billing records.” (footnote omitted)).
Kansas confronted the issue most recently in State v. Timley. 469
P.3d 54, 61 (Kan. 2020). The Kansas court discussed Patton and Blurton
and concluded the detective’s “testimony was much more akin to Blurton
than to Patton.” Id. at 62.
As in Blurton, [the detective] input the Sprint data—which
was, itself, admitted without objection—into a program in
order to more comprehensibly digest the information, i.e., to
produce maps. [The detective] did not definitively represent
that Timley was present at any given point at any given time—
just that his phone connected to particular towers at
particular times and from particular directions, as depicted
on the maps generated from the Sprint data. According to [the
detective], Timley’s phone had to have been somewhere in the
direction of the cone emanating from each tower on the
exhibits—if not necessarily the area of the cone—regardless of
whether other towers were overburdened.
Id. Therefore, the detective’s testimony was properly admitted as lay
testimony. Id.
Some courts recognize there is a line to be drawn but seemingly
move it closer to the expert side in more situations by precluding lay
testimony beyond the mere recitation of information contained in the
26
phone records. See State v. Edwards, 156 A.3d 506, 521, 522–23, 526
(Conn. 2017) (holding a witness who testified about the “azimuth” and
“bismuth” of coverage areas acted as an expert when the witness “relied
on data he obtained from Verizon to conduct his analysis, the process he
used to arrive at his conclusions was beyond the ken of average juror[,
and] even the trial court acknowledged that [the witness] had an expertise
that allowed him to be more knowledgeable on the subject of cell phone
data than the average juror”); Collins v. State, 172 So. 3d 724, 743 (Miss.
2015) (en banc) (recognizing “testimony that simply describes the
information in a cell phone record . . . [or] merely informs the jury as to
the location of cell phone towers” is proper lay testimony but “agree[ing]
with the Maryland Court of Appeals that the better approach is to require
‘expert testimony to explain the functions of cell phone towers, derivative
tracking, and the techniques of locating and/or plotting the origins of cell
phone calls using cell phone records’ ” (quoting Wilder, 991 A.2d at 198)).
In United States v. Natal, the Second Circuit observed that it “need
not hold that all evidence related to cell phone towers necessarily requires
expertise,” but the court went on to “caution that the line between
testimony on how cell phone towers operate, which must be offered by an
expert witness, and any other testimony on cell phone towers, will
frequently be difficult to draw.” 849 F.3d 530, 536 (2d Cir. 2017) (per
curiam). The court advised “both litigants and district courts . . . to
consider seriously the potential need for expert testimony.” Id.
Yet other courts seemingly require an expert to testify about any
historic cell site data. In many of these cases, testimony was presented
through an expert below, and reviewing courts endorsed that decision
without much discussion. See, e.g., United States v. Reynolds, 626 F.
App’x 610, 613–14 (6th Cir. 2015); United States v. Schaffer, 439 F. App’x
27
344, 346 (5th Cir. 2011) (per curiam); United States v. Machado-Erazo, 950
F. Supp. 2d 49, 52 (D.D.C. 2013), aff’d, 901 F.3d 326 (D.C. Cir. 2018);
United States v. Jones, 918 F. Supp. 2d 1, 4 (D.D.C. 2013); People v.
Hollinquest, 119 Cal. Rptr. 3d 551, 559–60 (Ct. App. 2010); State v.
Marinello, 49 So. 3d 488, 509–10 (La. Ct. App. 2010); Francis v. State, 781
N.W.2d 892, 895 (Minn. 2010); Commonwealth v. Bryant, 67 A.3d 716,
722 (Pa. 2013). While other courts question whether such evidence should
ever be introduced by lay witnesses, their ultimate holding is consistent
with the Evans line. See, e.g., United States v. Hill, 818 F.3d 289, 295–96
(7th Cir. 2016) (“Agent Raschke’s testimony in this case included
statements about how cell phone towers operate. In our view, this fits
easily into the category of expert testimony . . . .”).
The West Virginia Supreme Court of Appeals rejected the Evans line
in State v. Johnson. 797 S.E.2d 557, 566 (W. Va. 2017). The state called
a deputy as a witness and asked in-depth questions about the operations
of cell towers, including discussion of “beamwidth” and “NEID numbers.”
Id. at 566–69. In particular, the deputy testified
that cell phone calls and text messages belonging to [the
defendant, her co-conspirators, and the victim] were made in
the vicinity of cell towers that were near the crime scene. With
respect to [the defendant], based upon this testimony, the jury
could infer that she was in the area of the crime scene near
the time of the murder.
Id. at 560 (footnote omitted). After discussing both Evans and Payne, the
West Virginia court declined to follow Evans “because lay ‘witnesses . . .
not only read the records to the jury, but the[y] dr[a]w the ultimate
conclusion that the records could show the caller was in a specific
location[.]’ ” Id. at 565–66 (alterations in original) (quoting Wells at 511).
Ultimately, the court held “that a witness must be qualified as an expert
under Rule 702 of the West Virginia Rules of Evidence in order to present
28
evidence of cell phone historical cell site data.” Id. at 566. The court
rejected the state’s characterization of the officer’s testimony as merely
relating facts gleaned from the stipulated phone records where the officer
testified at least four times that his testimony was based on his training,
including training specific to cell tower mapping. Id. at 569.
D. Application to Officer Schroeder’s Testimony. Having
surveyed the various approaches, we agree with the growing majority of
jurisdictions that draw the line between lay and expert testimony involving
historical cell site data based on the underlying information supporting
the testimony. If the witness conveys inferences that can be drawn from
factual information contained in the phone records using “a process of
reasoning familiar in everyday life,” such as plotting data on a map, the
testimony qualifies as lay testimony. This includes opinions about the
generalized location of a phone within the coverage area of the pinged
tower—as long as the opinion is premised on factual information from the
phone company. However, when a witness relies on specialized knowledge
about how a cell tower functions, such as the numerous factors that
determine why a phone pings off one cell tower instead of another, to opine
about the coverage area of a tower or a cell phone’s location, that witness
must first be qualified as an expert.
We recognize this may be a fine distinction,2 but it is a logical one
recognized by a number of courts and the federal rules commentary
2Other courts have recognized the distinction between Rule 701 and 702 is a fine
one. See United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006) (“[T]he line between
lay opinion testimony under Rule 701 and expert testimony under Rule 702 ‘is a fine
one[.]’ ” (quoting 3 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal
Rules of Evidence Manual 701–14 (9th ed. 2006))); United States v. Ayala–Pizarro, 407
F.3d 25, 28 (1st Cir. 2005) (“[T]he line between expert testimony under [Federal Rule of
Evidence] 702 . . . and lay opinion testimony under [Federal Rule of Evidence] 701 . . . is
not easy to draw.” (first and third alteration in original) (quoting United States v. Colón
Osorio, 360 F.3d 48, 52–53 (1st Cir. 2004))).
29
explaining the purpose for the scientific, technical, or specialized
knowledge distinction between expert and lay testimony. The rules created
that distinction “to eliminate the risk that the reliability requirements set
forth in Rule 702 will be evaded through the simple expedient of proffering
an expert in lay witness clothing.” Fed. R. Evid. 701 advisory committee’s
note to 2000 amendment. Even so, rule 702 “does not interdict all
inference drawing by lay witnesses.’ ” United States v. Graham, 796 F.3d
332, 364 (4th Cir. 2015) (quoting United States v. Perkins, 470 F.3d 150,
156 (4th Cir. 2006), rev’d on other grounds, 824 F.3d 421 (4th Cir. 2016)
(en banc)). Limiting a lay witness’s testimony to inferences drawn from
facts using “reasoning familiar in everyday life” eliminates reliability
concerns because a juror is able to use her own reasoning to evaluate the
witness’s opinion. The same is not true when an expert witness testifies
based on “scientific, technical, or specialized knowledge” that is outside
the understanding of an average juror’s reasoning. In that case, the expert
witness’s qualifications become much more important to a juror’s ability
to evaluate his testimony. See, e.g., Ranes v. Adams Lab’ys, Inc., 778
N.W.2d 677, 686 (Iowa 2010) (discussing district courts’ “well-recognized
role as guardians of the integrity of expert evidence” by evaluating the
“witness’s qualifications and the reliability of the witness’s opinion” as part
of the court’s gatekeeping function).
Here, Officer Schroeder testified that he identified calls placed from
Boothby’s phone between approximately 5:13 a.m. and 5:31 a.m., around
the time of the incident. That testimony relayed only facts contained in
the phone records. Similarly, when he identified from the phone records
which sector of which cell tower each phone call pinged, along with the
physical address of each cell tower, Officer Schroeder relayed factual
information that required nothing more than knowing what the codes
30
meant in the phone records contained in exhibit 10 and the corresponding
cell tower records contained in exhibit 11. See Henderson, 564 F. App’x
at 363 (noting “the majority of [the officer’s] statements required nothing
more than knowing the meaning of abbreviations”). Likewise, Officer
Schroeder presented factual information when he platted the location of
Boothby’s residence, the location of the incident near Barten’s house, and
the location of three cell towers on a Google Earth map. Each of those
facts involved nothing more than entering street addresses into the Google
Earth map program. See Hayes, 2010 WL 5344882, at *10 (“The detective
merely testified that he saw the locations of the cell phone towers listed on
the cell phone records and plotted those locations on a map. . . . [A]
layperson could plot the locations of the towers on a map . . . .”).
In identifying the location of the three sectors for each of the three
cell towers and drawing them on the map, Officer Schroeder testified
exhibit 11 “provides information for each tower as to where each sector
starts. It goes by degrees in the 360-degree circle, so you can roughly
show where the sectors start and end for the three sectors for each tower.”
With respect to drawing the circles around each tower to identify their
respective coverage areas, Officer Schroeder testified
U.S. Cellular does provide information of the relative radius
range of the towers, and you can measure that using Google
Earth . . . . U.S. Cellular indicated that the radius range for
[the tower near Lowden], I believe, was maybe 34,000 or
37,000 meters, so usually Google Earth you can measure that
out.
A careful review of Officer Schroeder’s testimony reveals he merely
used factual data from U.S. Cellular identifying the relative radius range
for each specific tower and Google Earth’s measurement features to
identify the sectors and create a circle representing the coverage radius
around each tower. See Smith, 591 F.3d at 983 (requiring “a case-by-case
31
analysis of both the witness and the witness[]’s opinion”); Burnside, 352
P.3d at 636 (“The key to determining whether testimony about information
gleaned from cell phone records constitutes lay or expert testimony lies
with a careful consideration of the substance of the testimony . . . .”). This
testimony distinguishes this case from Collins v. State, where the officer
“never testified regarding how he determined the service area of each
antenna or that it was the actual service area.” 172 So. 3d at 740.
The Kentucky Supreme Court recently concluded similar evidence
presented lay rather than expert testimony in Torrence v. Commonwealth.
603 S.W.3d 214, 223–25, 228 (Ky. 2020). Torrence was charged with
assault following a shooting at a Louisville residence. Id. at 216. Torrence
claimed he was picking up his daughter eleven miles away at the time of
the shooting. Id. at 217. Detective Snider described the cell site records
he subpoenaed and explained how the records identified the cell towers
Torrence’s phone used to place two calls as well as “a directional degree
reading based on a 360-degree circle or compass . . . [that] indicated the
direction of the call or text relative to the tower.” Id. at 224.
Using a Google Maps program displayed to the jury, Detective Snider
plotted the location of the towers used to make the calls, the location of
the shooting, and the location where Torrence claimed he picked up his
daughter. Id. Detective Snider then drew a “pie wedge” for each call,
showing the direction of the phone from each cell tower when it interacted
with the tower. Id. The Court agreed that “anyone could read the records,
open a Google™ Maps program on a computer, enter the addresses,
locations, or coordinates including latitude and longitude, and obtain the
same results . . . [which] meant Detective Snider’s testimony qualified as
lay testimony.” Id. at 225; cf. Patton, 419 S.W.3d at 131 (recognizing that
while historical cell tower records cannot be used to specifically locate a
32
phone, they do “indicate that a phone was located somewhere within a cell
site’s geographic coverage area”).
Given the strictly factual basis for Officer Schroeder’s identification
of the sectors and radius range for each tower, such testimony qualified
as lay testimony.
When then asked to opine about what these facts meant, Officer
Schroeder was careful to qualify his opinion about whether Boothby’s
phone was in the area of the incident. He testified only that the phone
“was in the sectors of those towers that—where Mr. Barten’s residence or
the rough location of where the incident occurred. His cellphone was in
that area or in those sectors on the morning of the 14th.” (Emphasis
added.) When asked if the map gave exact locations, Officer Schroeder
testified, “No, it does not. The record would only indicate that his phone
would be somewhere roughly in those sectors. It cannot pinpoint his exact
location.”
This testimony stayed on the lay opinion side of the line. Officer
Schroeder confined his testimony to identifying the location of cell towers
pinged by Boothby’s phone, the direction of Boothby’s phone from the
towers when it pinged on them, and the radius range for each tower.
Importantly, Officer Schroeder did not base his opinion on how cellular
technology works but only on the factual data received from U.S. Cellular.
See Graham, 796 F.3d at 364–65 (“[The records custodian’s] testimony as
to cell sites’ range of operability required no greater than the same minimal
technical knowledge. The district court did not abuse its discretion in
admitting this testimony by a lay witness.”); Blurton, 484 S.W.3d at 772
(holding witnesses who confined their testimony to the general trajectory
of the phone and did not attempt “to pinpoint the defendants’ exact
location within a small geographic area” did not need to be qualified as
33
experts because a lay “witness could still reasonably infer Mr. Blurton’s
general path of travel from Garnett to Cole Camp without using specialized
skill or knowledge”).
Having reviewed Officer Schroeder’s specific testimony, we conclude
it was based on factual information obtained from the U.S. Cellular records
rather than any specialized knowledge about how cell towers operate and
resulted from “a process of reasoning familiar in everyday life.” Evans, 892
F. Supp. 2d at 953 (quoting Fed. R. Evid. 701 advisory committee’s note
to 2000 amendment). Officer Schroeder presented only lay testimony, and
Boothby’s claim that his counsel was ineffective for failing to challenge his
qualifications as an expert necessarily fails.
We nonetheless echo the Second Circuit’s “caution that the line
between testimony on how cell phone towers operate, which must be
offered by an expert witness, and any other testimony on cell phone
towers, will frequently be difficult to draw.” Natal, 849 F.3d at 536. While
Officer Schroeder aptly walked the tight line in this case, the large, rural
area and the distance between relevant locations aided his ability to do so.
V. Conclusion.
Boothby’s counsel was not ineffective for failing to challenge the
phone records or Officer Schroeder’s testimony because the challenges
would have been unsuccessful. We therefore vacate the court of appeals’
decision preserving the ineffective-assistance claims for postconviction-
relief proceedings and affirm Boothby’s conviction.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
CONVICTION AFFIRMED.