 

Sin the miseoutt Qtourt of appeals
QEaStern Eistrttt

DIVISION THREE
STATE OF MISSOURI, ) ED100473
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. ) 1 122—CR05948
)
MICHAEL .1. FORD, ) Honorable Michaei K. Mulien
)
Appellant. ) FILED: February 10, 2015

introduction
Michael J. Ford (Ford) appeals from a sentence and judgment of conviction for first-
degree murder and armed criminal action. He asserts there was insufﬁcient evidence to support
his conviction, and he challenges the admission of certain evidence. We afﬁrm.
Background
The State of Missouri (State) charged Ford as a prior and persistent offender along with
Antoine Barton (Antoine) and Dejuan Blocker (Dejuan)l with first-degree murder and armed
criminal action for the shooting death of Calvin Ross (Victim). The evidence at the 2013 jury

trial showed the following, viewed in a light most favorable to the verdict.2

’ Due to the similarity in Antoine Barton’s and Dejuan Biocker’s last names, we refer to them by their ﬁrst names to

avoid confusion. No disrespect is intended.
2 State v. Gibbs, 306 S.W.3d 178, 181 (Mo. App. ED. 2010).

i

Ford was arrested on an unrelated weapons charge. During his interview for that offense,
he indicated he had information about a murder, later revealed to be the murder of Victim. He
made a videotaped statement to the police, in which he asserted the foliowing. Ford was driving
around with Antoine on Juiy 6, 2011, when Antoine pointed out Victim as someone who had
shot at him a while ago and Antoine said he had to “take him out.” Ford understood that Antoine
intended to kill Victim, but Ford stated that in his experience, Antoine did not always carry
through on his threats. Ford had purchased a .38 caliber revolver the day before and Antoine
asked for it. Ford had some shells for the gun, and they went to an alley to test ﬁre the gun. it
was operational. Ford then reloaded the gun at his house before giving it to Antoine.

Meanwhile, Antoine had enlisted Dejuan to keep Victim in the neighborhood while Ford
and Antoine drove Ford’s brother and cousin to St. Louis County. While in the vehicle with
Antoine, Ford overheard multipie telephone conversations between Antoine and Dejuan
discussing Victim. Dejuan wanted to kill Victim, so as to “get his stripes” and prove himself,
and Antoine was considering it. Ford counseled Antoine not to let Dejuan do it, saying that if
Dejuan was caught, it wouid fall on Antoine. Moreover, Ford did not want Dejuan to “do it”
with his gun.

Ford and Antoine arrived back in the neighborhood, and Antoine and Dejuan went into
an aiiey with Victim while Ford waited by the car. Ford did not hear any gunshots, but when
Antoine came back, he said “it’s 4-7,” from which Ford understood Antoine had “got on

[Victim]” and “whacked”3 him. Antoine showed Ford a .357 revolver that he had taken from

3 0n crosswexamination, Ford argued he said “jacked” not “whacked,” but ﬁ‘om our review of the videotaped
statement we believe he said “whacked.”

“require[s] analysis of the many variables that inﬂuence cell site signal strength,” BL at 132, and
thus also requires an expert witness to provide that analysis.

Likewise, it was also error for the trial court to allow Blackburn to testify as to the
location of Antoine's telephone based on PCMD, or radio frequency distance information. In
general, expert testimony is appropriate when the witness has knowledge or skill in an area about
which thejury lacks common knowledge or experience. & State v. Love, 963 S.W.2d 236, 241

(Mo. App. W.D. 1997). Expert testimony is proper “if the subject is one with which lay jurors

 

are not likely to be conversant.” Patton, 419 S.W.3d at 131 (citations omitted). We are
conﬁdent that calculating location from radio frequency distance information is a subject with
which the average juror lacks common knowledge or experience. Blackburn testiﬁed that she
merely plotted the information she received from Sprint onto a map, and from that she testified
as to Antoine’s location. Blackburn agreed she had no specialized experience or knowledge in
the ﬁeld of wireless communications, and she did not testify to how radio frequency distance
calculations worked or to their accuracy. Without this explanatory testimony, the jury, for want
of experience or knowledge, would be incapable of drawing a proper conclusion from the facts in
evidence. ﬂ State v. Harris, 305 S.W.3d 482, 490 (Mo. App. ED. 2010). Thus, we hold that
the trial court erred in allowing Blackburn, a lay witness, to testify as to the location of Antoine’s
telephone in relation to the cell towers to which it connected.

Because the trial court committed an error that was evident, obvious, and clear, we now
must determine whether that error resulted in manifest injustice or a miscarriage of justice.
ﬂqyd, 347 S.W.3d at 123-24. It did not. Where there is substantial corroborating evidence
properly admitted at trial, the admission of improper evidence does not constitute plain error.

gee flowery, 427 S.W.3d at 249. Ford argues on appeal that the evidence regarding the location

it

of Antoine’s cellular telephone was improperiy used to place Ford in the vicinity of the murder
scene; however, Ford himself testified at trial that he was in the vicinity of the murder when it
occurred. He testiﬁed that he was waiting at the car while Antoine and Dejaan went into the
alley with Victim. Ford’s defense was that he did not know Antoine intended to kill Victim, and
the location of Antoine’s telephone was not relevant to disproving that theory; thus, the evidence
did not have a decisive effect on the jury’s determination. ﬂag Mite, 247 S.W.3d at 563.
Considering the record as a whole, we do not ﬁnd that Blackburn’s testimony prejudiced Ford
such that he suffered a manifest injustice or miscarriage of justice.
Point denied.
92am

Thejudgment of the trial court is afﬁrmed.

   

 

Gary aertner, Jr., Judge

Kurt S. Odenwaid, P. J ., concurs.
Robert G. Dowd, 321, l, concurs.

12

"34

Victim. A person named Tato, who Ford described as “0G, then arrived and took Antoine to

dispose of Ford’s .38 revolver.

The State piayed Ford’s statement to the jury. Ofﬁcer Charles Betts, a homicide
detective with the St. Louis Metropolitan Police Department (poiice department), testified that he
had interviewed Ford and that the evidence corroborated Ford’s statement. He fu1ther testiﬁed
that Victim was shot at approximately 10:45 pm. on July 6, 2011. Likewise, Detective Joseph
Lankford also testiﬁed that he had subpoenaed Antoine’s telephone records, which showed
multiple calls between Antoine and the house at which Dejuan and Victim had spent the day.
Detective Lankford testiﬁed their theory was that Antoine shot Victim, while Dejuan was the set-
up man, and Ford provided the weapon.

The State then called Emily Blackburn, a crime analyst for the police department, as a lay
witness. The State argued it did not need to call her as an expert witness, because “all [she does]
is take latitudes and longitudes from Sprint cell phone records and plot them on a map.  She
can’t say that the phone was at {a speciﬁc} location.” Defense counsel stated she did not object
to Blackburn being called as a iay witness. Blackburn testiﬁed she had received the data from
Sprint subpoenaed by Detective Lankford. The data showed which cellular towers were used at
what time for each call made by Antoine on the day of Victim’s murder, and she entered the
information into a mapping program. She testiﬁed that cellular telephones generaliy use the
closest tower, but the connection can be affected by tall buildings, geography, and topography,
among other things. The State offered the map of cell tower connections, to which defense
counsel objected only subject to cross—examination and voir dire. From the map, Blackburn

testiﬁed that Antoine’s telephone connected to a tower close to the murder scene at 10:00 pm,

4 The interviewing ofﬁcer testiﬁed that 0G meant “old gang.” It could also mean “original gangster.”

3

close to the airport at approximately 10:30 pm, and again close to the murder scene at 10:45
pm.

Further, Blackburn testiﬁed that she had also received Per Call Measurement Data
(PCMD) from Sprint. PCMD was different from the cell tower data, because it measured the
radio frequency distance between the telephone and nearby towers, and gave an estimate of the
location of the telephone itself during the call. Accordingly, Blackburn testiﬁed that on the day
Victim was killed, the PCMD indicated Antoine’s cellular telephone was near the murder scene
at 10:45 p.111. The trial court admitted without further objection the State’s maps of the cell
tower locations and the PCMD location estimates. Ford moved for judgment of acquittal at the
close of the State’s evidence, but the trial court denied the motion.

Ford testiﬁed in his own defense to the following. He did not know Victim before
Antoine pointed him out the day of the murder. He did not know that Antoine planned to kill
Victim; rather, he thought that Antoine w0uld just beat up or rob Victim. He did not give
Antoine the gun so that he could kill Victim; rather, Antoine had requested the gun on July 5,
before Ford had heard of Victim. Antoine never said he was going to kill Victim or that he
needed Ford’s gun to kill Victim.

Ford further testiﬁed that he was carrying a gun for his protection because he had been

’5

shot when he was young. He was not planning to “shoot someone for no reason. On cross—

examination, the State then asked Ford, “[d]idn’t you tell the police that you get guns all the
time?” Defense counsel objected and requested a mistrial, arguing the question raised the issue
of uncharged crimes. The State responded that Ford opened the door to the issue by stating he
only needed the gun for protection. The trial court overruled the objection, and Ford agreed he

and his crew would break into vehicles around clubs that prohibited weapons to steal guns left in

the vehicles. If the owners confronted him while he was trying to break into the vehicles, then he
would shoot at them.

Ford moved for judgment of acquittai, which the trial couﬁ denied. The jury found Ford
guilty of firstndegree murder and armed criminal action. The trial court sentenced Ford to life in
prison without the possibiiity of parole. This appeal follows.

Discussion
Point One

In his ﬁrst point 011 appeal, Ford argues the trial court erred in overruling his motions for
judgment of acquittal and in entering judgment against him, because the State’s evidence was
insufﬁcient to support a ﬁnding of guilt beyond a reasonable doubt for the charge of murder in
the ﬁrst degree, in that the State’s evidence did not establish beyond a reasonable doubt that Ford
independently deliberated upon the death of Victim. We disagree.

We review challenges to the sufﬁciency of the evidence supporting a criminal conviction
by determining whether the State presented sufﬁcient evidence at trial from which a reasonable
juror might have found the defendant guiity of all the essential eiernents 0f the crime. Slag
m, 306 S.W.3d 178, 181 (Mo. App. ED. 2010). We accept as true all evidence supporting
the jury’s verdict, including all favorable inferences therefrom, and disregard ail contrary
evidence and negative inferences. Id, We do not act as a superjuror but wiii defer to the trier of

fact. State v. Nash, 339 S.W.3d 500, 559 (Mo. banc 2011).

The State is required to prove beyond a reasonable doubt each element of the offense
charged. State v. Danikas, 11 S.W.3d 782, 788 (Mo. App. W.D. 1999). The State charged Ford
with first degree murder, which occurs when a person “knowineg causes the death of another

person after deliberation upon the matter.” Mo. Stat. RSMo. 565.020.} (2000). The element of

deliberation is deﬁned as “cool reﬂection for any iength of time no matter how brief.” Section
565.002(3). Deliberation is inferred from the circumstances surrounding the crime, and it is only
necessary that the evidence Show the defendant considered taking another’s life. m
ﬂowery, 427 S.W.3d 236, 246 (Mo. App. ED. 2014). Three circumstances can establish
deliberation on the part of a defendant where a codefeudant pulied the trigger: (1) where there is
a statement or conduct by a codefendant in the presence of the defendant prior to the murder
indicating a purpose to kill; (2) where the murder was committed by means of a deadly weapon
and the defendant was aware the weapon was going to be used in the commission of the crime;
and (3) the defendant participated in the homicide or criminal enterprise once it became apparent
that a victim would be kiiled. State V. Gray, 887 S.W.2d 369, 376-77 (Mo. banc 1994).

The ﬁrst two circumstances set forth in m exist here. First, in his statement to the
police, Ford stated Antoine told him he was going to “take {Victim} out,” by which Ford
understood that Antoine intended to kill Victim. Further, Ford stated he overheard multiple
teiephone conversations between Antoine and Dejuan about Victim, in which Dejuan stated he
wanted to kill Victim, but Ford counseled Antoine to take care of it himself. Second, Ford
provided Antoine with a gun, he knew that Antoine intended to use the gun to kill Victim, and
Antoine did in fact kill Victim with the gun Ford provided. Using the standard set forth in ﬂy,
this evidence was sufficient to establish Ford’s deiiberation on the matter. See @111, 887 S.W.2d
at 367-77. Thus, the jury couid have concluded from the evidence in total that Ford knowingly
caused the death of Victim after deliberation on the matter. See Section 565.020; M, 306
S.W.3d at 181.

On appeal, Ford points to atternative evidence indicating that he beiieved Antoine and

Dejuan would only rob or beat up Victim, and thus argues that the evidence does not support

deliberation. However, on review, we View the evidence in the light most favorable to the jury’s
verdict. The jury is tasked with parsing the credibility and relative weight of conﬂicting
evidence, State v. Greer, 159 S.W.3d 451, 457 (Mo. App. ED. 2005), and this Court wiil not
substitute our judgment for that of the jury’s, m, 339 S.W.3d at 559. Giving deference to the
trier of fact, we ﬁnd the jury couid have found beyond a reasonable doubt that Ford participated
in the murder of Victim after deliberation upon the matter.

Point denied.

Point Two

in his second point on appeal, Ford argues the trial court erred in allowing the State to
cross-examine him with prior bad acts and uncharged crimes, in that the State’s questions were
used to Show his propensity for violence and gun possession, were more prejudiciai than
probative, and were outcome determinative. We disagree.

The trial court has broad discretion to admit or deny evidence at trial. State v. Forrest,
183 S.W.3d 218, 223 (Mo. banc 2006). We will reverse for an abuse of that discretion only if
the error was so prejudicial that it deprived the defendant of a fair trial. 15L at 224. Evidence of
prior bad acts is generaily inadmissible unless such proof tends to directly establish the
defendant’s guilt of the charge for which he is currently on trial. State v. Vorhess, 248 S.W.3d
585, 587 (Mo. banc 2008). There are a number of exceptions to this general ban, such as where
the evidence is offered to rebut the defendant’s voluntary assertions from the stand, including
assertions about his own good character. State v. Marshall, 302 S.W.3d 720, 727 (Mo. App. SD.
2010). “It is well established that a defendant who chooses to take the stand and testify on his
own behalf ‘is subject to contradiction and impeachment the same as any other witness.” I_d.

(citations omitted). Where a defendant refers to a subject, even in a general way, he opens

himself to cross—examination on that subject. 1d,, at 728-29 (no error in allowing prosecution to
impeach defendant with evidence of prior bad acts when he testiﬁed on direct that he was trying
to be “a model citizen”).

Here, Ford testiﬁed in his own defense. On direct examination, he testiﬁed that he was
carrying a gun for his protection because he had been shot when he was young, and that he was
not planning to “shoot someone for no reason.” Then, on cross-examination, the trial court
allowed the State over objection to question Ford about other incidents in which he had stolen
guns and shot at people. The evidence was not admitted to show a propensity to commit crimes,
but to impeach Ford’s earlier testimony. Ford injected the issue of his reason for carrying a gun
into the case in a manner that portrayed himself as a Victim, and the trial court correctly allowed
the State to impeach him on this basis by showing him as an aggressor, not a victim.

Point denied.

Point Three

in his third point on appeal, Ford argues the triai court erred by admitting maps and
testimony regarding cellular telephone records, in that the State improperly used the information
to “locate” Ford near the crime scene, because the ability of cell tower signals to locate cellular
telephones is a subject for an expert witness and the State did not qualify Blackburn as an expert
witness. We agree but do not ﬁnd reversible error.

in order to preserve an evidentiary issue for appeal, a party must object upon the
introduction of the evidence. Howery, 427 S.W.3d at 248. An allegation of error below may not
be changed or broadened on appeal, but must be based on the objection made at the time of trial.
Li. Here, Ford did not object to the State calling Blackburn as a lay witness; he made only a

general preliminary objection to the admission of the maps, “subject to voir dire and cross

examination”; and he did not object to Blackburn’s location testimony. Ford made no objections
on the basis that the evidence was a subject for an expert witness. Accordingly, Ford did not
preserve the issue for appellate review, thus allowing only for plain error review.

Under plain error review, we will reverse only if a plain error affecting substantial rights
results in manifest injustice 01' a miscarriage of justice. Rule 30.205; State v. Floyd, 347 S.W.3d
115, 123-24 (M0. App. ED. 2011). We review for plain error using a two-step analysis. First,
we determine whether the record facialiy establishes substantial grounds to believe plain error
occurred, which is error that is evident, obvious, and clear. If so, we then consider whether the
error resulted in manifest injustice or a miscarriage of justice. Q Plain error review requires
that the alleged error have a decisive effect on the jury’s determination. E State v. White, 247
S.W.3d 557, 563 (Mo. App. ED. 2007).

Here, the State offered Blackburn as a lay witness, saying “all [she does] is take latitudes
and longitudes from Sprint ceil phone records and plot them on a map.  She can’t say that the
phone was at [a speciﬁc] location.” Blackburn then testiﬁed that she had received two types of
information from Sprint: a list of the cell towers Antoine’s telephone used for each call he made,
and PCMD, which measures the radio frequency distance between the actuai telephone and
nearby ceil towers. She entered that information into a computer program to generate maps.
Regarding the cell tower data, she testiﬁed that cellular telephones generally use the closest
tower and that Antoine’s telephone connected to a tower ciose to the murder scene at 10:45 p.111,
which was Victim’s approximate time of death. Regarding the PCMD, she testified that the
radio frequency distance data indicated that Antoine’s telephone was physically located at the

scene of the murder at 10:45 pm.

5 All ruie references are to M0. R. Crim. P. (2014).

The issue on appeal is whether it was improper for a lay witness to use the cell tower
information and the PCMD information to testify to the location of Antoine’s telephone. We
ﬁnd that it was. This Court recently held that it was error for a trial court to fail to require an
expert witness to testify as to the locations of cell towers used by the defendant’s phone in order
to place him near the crime scene at the time of the crime. State v. Patton, 419 S.W.3d 125, 132
(M0. App. ED. 2013). In W, the State’s lay witness had testiﬁed that she had received and
mapped information from the defendant’s cellular telephone provider. She testiﬁed the map
showed the defendant’s telephone connected to cell towers in the vicinity of the crime near the
time of the shootings, and she stated a telephone will usually connect to the closest cell tower.

This Court characterized the lay witness’ testimonywthat the strongest signal generally
comes from the closest site—as “misleadingly simple.” E at 131. Rather, historical cell tower
data can show only that a cellular telephone was used somewhere within a cell tower’s
geographic coverage area, but the coverage areas of cell towers frequently overlap and a
“multitude of factors inﬂuence which site among them will have the strongest signal.” 1d,,
Therefore, this Count concluded, “knowing the location of the cell site to which a phone
connects permits an expansive range of inferences as to where the phone actually is. We think
that drawing such an inference without the aid of specialized experience or knowledge in the
field of cellular communications comes too close to mere speculation.” I_cL at 131-32.

Following Patton, it was error here for the trial court to allow Blackburn to testify as a lay

 

witness that Antoine’s telephone connected to a cell tower close to the murder scene at the time
of the murder and that cell phones will usually connect to the closest tower. Such evidence was
clearly intended to demonstrate that Antoine, and thus Ford, was in one area rather than another.

Using cell tower information to offer evidence of the location of a defendant’s telephone

10

