On February 24, 2009, New York City police, acting on a tip from an anonymous informant about a marijuana-growing operation, went to a home in the Bellerose neighborhood of Queens, New York. When they arrived, 34-year-old Patrick Murray, a New York firefighter, was sitting in a rental truck in the driveway of the building.
The officers detained Murray and took a set of keys from him. They went inside the building and, using the keys they got from Murray, opened the doors to the boiler room and to another room that contained 100 marijuana plants.
The house was owned by Matthew Cody, who was also a firefighter and worked out of the same firehouse in Queens. Cody and Murray were indicted by a federal grand jury on charges of conspiring to manufacture marijuana, manufacturing marijuana near a school and endangering human life while cultivating marijuana.
Cody pled guilty to the conspiracy charge and received probation in return for testifying against Murray, who went on trial in the U.S. District Court for the Eastern District of New York in August 2010.
Cody testified that Murray proposed growing marijuana at Cody’s house. Cody said Murray came to the house a few times in late October or early November of 2008 to help Cody convert the basement into a rentable apartment. Cody testified that when he realized he would not be able to rent out the basement, Murray suggested they grow marijuana plants there.
Cody testified that Murray provided the plants, decided which room to use, and gave directions on how to set up the grow room and tend to the plants. Cody said Murray also purchased light bulbs for the grow room and liquid plant food.
Cody told the jury that in February 2009, Murray decided to move the marijuana plants out of the basement because the smell was detectable outside of the room. Cody said they planned to meet at the house in the early morning of February 24—the day Murray was arrested—to use Cody's truck to move the plants, but when Murray failed to show by 9 a.m., he left.
Murray testified in his defense and denied any involvement in or knowledge of the marijuana found in Cody’s house. Murray testified that in the fall of 2008, at Cody’s request, he went to Cody’s house approximately five to seven times to help Cody with construction work to convert the basement into a rentable apartment. Murray said that the keys the police took from him came from Cody, who lent them to him so he could get into the house to borrow Cody’s tools.
Murray denied that Cody ever told him that he had decided it was not practical to rent out the apartment and denied that he knew there were marijuana plants in the building.
Murray testified that on February 23, 2009, the day before his arrest, Cody asked him to come to the house on February 24 to help move some heavy items and get rid of some garbage.
Murray testified that on the morning of February 24, Cody called him at about 9:00 a.m. and asked him to rent a van because Cody's truck was full of debris. Murray said he rented a van at about 10:30 a.m., got something to eat, and then drove to the house. He said that when he arrived and didn’t see Cody’s truck, he began to turn the van around in the driveway and was stopped by police.
On cross-examination, Murray testified that he did not spend much time in the Bellerose area from late 2008 until the day of his arrest. He said that he had some acquaintances in the neighborhood and visited a few pubs and bars, that his mother lived nearby, and that when he visited his mother he sometimes he went to the bars as well.
In rebuttal, over objection by Murray’s attorney, the prosecution introduced cell site records for Murray’s cell phone through the testimony of a Drug Enforcement Agency agent. The agent testified that cell site records identify the cell tower that a cell phone signal bounces off of during a call. The agent said the tower identified in the records would have been the tower closest to the cell phone at the time of the call.
The agent told the jury that the records showed that from November 2008 through February 2009, 97 calls from Murray’s cell phone bounced off a tower approximately four blocks from Cody’s house. The agent conceded that if the tower closest to a cell phone is busy, a call might be redirected to another tower as much as five miles away. The agent also admitted that the records did not show whether the calls that bounced off the tower near Cody were in fact redirected to that tower from another tower further away that was busy.
Murray’s attorney sought to call a witness to rebut the agent’s cell phone testimony, but the judge excluded the testimony on the ground that the agent’s testimony did not meaningfully incriminate Murray–given the testimony about the redirection of the calls during busy times–so rebuttal was unnecessary.
During closing argument, the prosecution repeatedly referred to the cell phone records and contrasted Murray’s testimony that he was at Cody’s house five to seven times with the 97 times his cell phone calls bounced off the tower near Cody’s house.
“There are times when those cell phone towers get overloaded and it pings off to the next tower,” the prosecutor told the jury. “That happens. There’s no denying it. But does it happen 97 times? …Accept the cell site records for what you want, but when the frequency is here, and the cell site records show 97 times on a [tower] four blocks from his house, it seems like corroboration.”
During deliberation, the jury requested a chart of the cell phone calls between Murray and Cody that included the cell tower information. On August 25, 2010, the jury convicted Murray on all counts and he was sentenced to 5 years in prison.
Murray was released from prison on parole in September 2013. In November 2013, the U.S. Court of Appeals for the Second Circuit reversed the conviction and ordered a new trial. The court held that Murray should have been allowed to present evidence rebutting the prosecution’s testimony about the cell site records.
“Without the cell tower evidence, the case was essentially a credibility contest between Cody and Murray,” the court noted. “Cody had admitted his own involvement in growing the marijuana but placed the major blame on Murray. Murray denied any involvement. Cody had much to gain by blaming Murray as he thereby became a cooperating defendant for whom the government would advocate a reduced sentence.”
The Appeals Court also pointed out that the cell tower evidence may well have influenced the jury to reject Murray’s testimony, noting that the jury expressly asked for the cell tower records during deliberation.
“If Murray had had the opportunity to present clear evidence of his more frequent presence in the area serviced by (the tower near Cody’s home), that might have completely neutralized the cell tower evidence, leaving for the jury a straight credibility contest between Cody and Murray,” the court held.
Murray went on trial a second time in July 2014 and presented the evidence showing that he was in the area more often than the five to seven times he visited Cody’s house and that his calls could have been redirected to the tower near Cody’s house. On July 23, 2014, the jury acquitted Murray.
– Maurice Possley