This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.
Failure to conduct a Daubert hearing. Before trial, the State filed a witness list that included an expert on phone tracking and cell phone data. Defense counsel did not object or request a Daubert hearing. At trial, the expert testified about what phone tolls and cell sight towers are and how they operate. She explained sectors, signal strength, call transitioning, the maximum distance that a signal from a tower can go, and which towers cell phones are most likely to hit off. And she gave her opinion that certain cell phones at issue in Cameron’s case were in certain places at certain times. The jury convicted Cameron of multiple crimes, including 1st-degree intentional homicide.
On appeal, Cameron argued that a circuit court must act to ensure that only reliable expert testimony is presented to the jury, regardless of any objection. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592- 93 (1993). The court of appeals rejected this argument, in part, because:
[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 Daubertadmissibility analysis even if there is no objection to the testimony:
It is without question that Rule 702 of the Federal Rules of Evidence imposes an obligation on trial courts to ensure that all expert testimony is reliable. The trial court, in performing its “gatekeeping” function, has discretion to choose the manner in which the reliability of an expert’s testimony is appraised. However, the trial court has no discretion to abandon its role as gatekeeper. When a party objects to an expert’s testimony, the court must adequately demonstrate by specific findings on the record that it has performed its duty…. Absent an objection, the trial judge is not required to announce for the record that the expert witness’s testimony is based on reliable methodology. A defendant must still make a timely objection to preserve error for appeal…. If the defendant fails to object to the expert’s testimony, then the defendant waives appellate review absent plain error. United States v. Bates, No. 99-11382, unpublished slip op. at 3 (5th Cir. Nov. 21, 2000). Slip op. ¶13.
What’s so irritating about that holding? For starter’s Cameron opened with an attack on a common circuit court practice: adopting the State’s brief as the postconviction decision. He rightly pointed out District 1’s recent holding that “a circuit court does not appropriately exercise its discretion when its decision is nothing more than the ‘wholesale adoption of the State’s brief.’” State v. McDermott, 2012 WI App 14, ¶ 9 n.2, 339 Wis. 2d 316, 810 N.W.2d 237. Initial Br. at 11. The court of appeals replied: “While we generally encourage courts to exercise independent rationales for their decisions, here the State’s brief properly set forth the facts at issue, the legal issues, and the analysis of those issues.” Slip op. ¶10 n.2. As if to underscore the point, the court of appeals then copied portions of the State’s response brief, including the excerpt above, and pasted them (without reference) into its opinion in this case. See e.g.Slip op. ¶13, ¶21; State’s Br. at 6-7, 21. Worse, the above excerpt showcases an unpublished, per curiam opinion from the 5th Circuit–an opinion which may not be cited as precedent in the 5th Circuit. See5th Cir. R. 47.5.4.Normally, a party’s citation of non-citable opinions leads to sanctions. See e.g. State v. Dillard, 2007 WI App 34, ¶9 299 Wis. 2d 728, 373 (unpublished per curiam)(fining defense counsel for citing unpublished decisions); County of Milwaukee v. Manske, 2010 WI App 100, ¶8 n.5, 327 Wis. 2d 799, 788 N.W.2d 384. Here, the misstep garnered the court’s seal of approval in an opinion recommended for publication.
Admissibility of expert testimony on cell phone tracking. Because trial counsel did not challenge the admission of the State’s expert, Cameron raised an ineffective assistance of counsel of claim. The court of appeals found no “deficient performance” because:
[B]asic cell phone signal technology has already been held by this court to be admissible evidence. Challenges to this type of cell phone location technology have been rejected by other courts. See e.g., Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1204 n.5 (8th Cir. 2015); United States v. Gatson, No. 2:13-CR-705, 2015 U.S. Dist. WL 5920931, at *2 (D.N.J. Oct. 9, 2015); United States v. Henderson, No. CR10-117 BDB, 2011 U.S. Dist. WL 6016477, at *5 (N.D. Okla. Dec. 2, 2011). In some cases, the reliability of cell phone mapping was found to be so well-established that a Daubert hearing was not necessary. See United States v. Jones, 918 F. Supp. 2d 1, 6-7 (D.C. 2013). Slip op. ¶26 (emphasis supplied).
Which case holds that basic signal technology has been held admissible? The court of appeals provides no citation, but it may be referring to State v. Butler, Case No. 2014AP1769, unpublished slip op. ¶17 (WI App June 9, 2015), mentioned earlier in its decision. Slip op. ¶15. Butler did not involve a Daubert challenge to the reliability of an expert’s opinion on cell phone tracking and data. It held that an expert was not necessary to transfer information provided by a cell phone company onto a map for the jury to see. That’s not the issue in this case.The court of appeals failure to understand the difference between the two situations means that we now have a published court of appeals opinion suggesting that expert testimony on cell phone tracking and data is per se admissible without a Daubert hearing no matter who the expert is, what her qualifications are, or what research she relied upon. Slip op. ¶¶27-28.
Prosecutorial vouching. Nick Smith, one of the men accused of crimes in this case, cut a deal with the State. He agreed to testify against Cameron, pursuant to a plea agreement. During closing argument, the DA repeatedly told the jury things like: “Ladies and Gentlemen, Nick Smith came in and he told you the truth.” Trial counsel did not object. So Cameron argued that the DA’s vouching was plain error and that he had received ineffective assistance of counsel. The court of appeals disagreed. Looking at the DA’s statement “in the context of the entire closing argument” it appeared that the DA was just arguing that the jury should conclude that Smith was telling the truth based on various facts. Besides, “the comments were limited in scope, were a direct commentary on the evidence, and were an exercise of prosecution reasoning from the evidence to a conclusion.” Slip op. ¶22.
It’s hard to square the court of appeals’ decision here with cases like State v. Smith, 2003 WI App 234, ¶25, 268 Wis. 2d 138, 671 N.W.2d 854, where the court of appeals found the following statements to be vouching: “I know these officers; and you know them now too. They work hard. They do a tough job. They come here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant’s.”