June 13, 2016 – A convicted murderer will not get a new trial despite his challenge to an “intelligence analyst” who mapped his location based on cell phone data. Defendant Robert Cameron had argued that the witness was not properly screened as an expert.
In State v. Cameron, 2015AP1088-CR (June 7, 2016), a three-judge panel for the District I Court of Appeals ruled that trial courts are not required to automatically conduct Daubert hearings to test expert witnesses without a party’s motion.
Cameron was convicted of first-degree intentional homicide and attempted first-degree intentional homicide. In 2012, he fatally shot a victim in the head and also shot at the victim’s mother, who witnessed Cameron trying to rob her son in Milwaukee.
An accomplice, Nicholas Smith, told police that he and Cameron planned to rob the victim, Russell Setum, and he witnessed Cameron fire the shots. At trial, the state called an “expert” intelligence analyst to testify about phone and cell phone tower data.
The analyst used cell phone provider data to map out the location of Smith’s and Cameron’s cell phones around the time of the murder. The maps corroborated Smith’s story about what happened. Defense counsel did not object to the testimony.
On appeal, Cameron argued that the analyst was not qualified to testify as an expert witness, and the court should have conducted a Daubert hearing to determine whether the analyst qualified as an expert and used a reliable methodology to map the phones.
But the appeals court concluded that the judge was not required to sua sponte conduct a Daubert hearing, and Cameron did not show the court committed “plain error.” Plain error is the standard of review when a party has waived errors by failing to object.
“[C]ourts have expressly rejected Cameron’s claim that the trial court’s obligation to act as a gatekeeper under Daubert requires it to conduct a Daubert admissibility analysis even if there is no objection to the testimony,” wrote Judge Joan Kessler.
Even though the state listed the analyst as an “expert,” the panel noted that “a witness need not be an expert to take the information provided by a cell phone provider and transfer that information onto a map.”
Cameron also argued for a new trial because of statements the prosecutor made during closing argument. The prosecutor said Smith, the key witness, was “telling the truth.” Cameron said the prosecutor impermissibly vouched for Smith’s credibility.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
“[A] prosecutor is permitted to comment on the credibility of witnesses as long as that comment is based on evidence presented,” wrote Judge Kessler, citing a 1998 court of appeals case. “That is what the prosecutor did here.”
Finally, the court rejected Cameron’s argument that he was entitled to a new trial because his lawyer failed to make timely objections and should have called a cell phone data expert to challenge evidence presented by the state’s intelligence analyst.
“Based on the record before us, we cannot conclude that there would have been a reasonable probability of a different outcome had trial counsel either objected to the admissibility of Rodriguez’s testimony or retained a defense expert,” Kessler wrote.
The panel suggested that any objection to the intelligence analyst’s testimony on cell phone data mapping would have failed because “basic cell phone signal technology has already been held by this court to be admissible evidence.”
