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State v. Garcia

Court of Appeals of Iowa

August 15, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
ALBERT GARCIA, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         Albert Garcia appeals his convictions for two counts of first-degree murder and two counts of first-degree robbery.

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          VAITHESWARAN, Presiding Judge.

         Three men hatched a plan to rob a person who was seeking to buy marijuana from one of them. They enlisted the help of Albert Garcia because they knew Garcia had a gun. Garcia ended up shooting the would-be marijuana purchaser and his friend. Both died.

         The State charged Garcia with two counts of first-degree murder, in violation of Iowa Code sections 707.1 and 707.2 (2015), and two counts of robbery in the first degree, in violation of sections 711.1 and 711.2. A jury found him guilty as charged, and the district court sentenced him to two terms of life imprisonment without the possibility of parole and two prison terms not exceeding twenty-five years. The sentences were to run consecutively.

         On appeal, Garcia contends (1) a police detective lacked the qualifications to provide expert testimony about cell phone technology; (2) accomplice testimony was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in failing to object to an instruction informing the jury it could consider his out-of-court statements "just as if they had been made at trial"; and (4) his murder convictions and sentences should be vacated under a merger doctrine.

         I. Expert Testimony-Cell Phone Technology

         At trial, the prosecutor asked a Des Moines police detective to pinpoint the locations of a cell phone belonging to one of the participants in the crimes, based on cell tower information. The detective testified the locations were near the crime scene. The prosecutor then asked about the locations of Garcia's cell phone. After the detective identified the locations, the prosecutor engaged in the following exchange about cell phone tower technology:

Q. Generally speaking based upon your training and experience, how do cell phones connect to particular towers? A. When it's trying to get a signal, it goes to whatever the clearest closest tower is. If you start a call and you are traveling, it will sometimes switch towers from one to another. A lot of times if you have a lengthy phone call, it will connect to multiple towers.

         At this juncture, Garcia's attorney objected to the testimony on the ground the detective was not "certified as an expert in cell phone technology." The district court overruled the objection and the detective continued: "Essentially it connects to the closest tower and communicates with whatever the closest tower is that it can communicate with."

         Garcia contends, "Testimony about cellular phone technology and the use of cell tower data to estimate the location of a cell phone is technical, specialized information that is beyond the understanding of the average lay person and properly the subject of expert testimony." In his view, the detective was unqualified to testify about "location based on the cellphone tower records because the State presented no evidence of [the detective's] experience or knowledge in the area of cell phone technology."

         The State responds with several error preservation concerns. We agree with the State that Garcia's objection to the question quoted above came too late and he failed to object to other testimony about cell phone technology. Accordingly, he did not ...


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