Fitbit, cellphone information focus of day 7 of Burch trial

George Burch sits in Brown County Court awaiting the start of day seven in his murder trial on February 27, 2018. (Photo: pool)

BROWN COUNTY (WLUK) -- Prosecutors called two witnesses Tuesday morning before the defense starated making its case in George Burch's murder trial.

Burch, 40, is charged with killing 31-year-old Nicole VanderHeyden on May 21, 2016.

The prosecution's first witness was Sgt. Richard Loppnow of the Brown County Sheriff's Department. Loppnow also took the witness stand last week.

Loppnow testified to obtaining a search warrant for information from a Google email account found on Burch's cellphone. Loppnow says Google sent him information that included dates, times, and locations for Burch's cellphone.

The Green Bay Police Department extracted the data from Burch's phone two weeks after VanderHeyden was murdered as part of an unrelated hit-and-run investigation. The Brown County Sheriff's Department obtained that information about two months later when it linked Burch to the VanderHeyden crime.

Investigators have said location information tied to Burch's GMail account puts him at the key locations in the case: outside the bar where VanderHeyden was last seen alive, outside her home where investigators believe she was murdered, at the Bellevue field where her body was found, and on the Hwy 172 on-ramp where her bloody clothes were found.

Loppnow also testified to obtaining information from Fitbit for VanderHeyden's boyfriend, Douglass Detrie. Detrie testified last week to wearing the Fitbit on the night of his girlfriend's murder, as well as the days after the crime.

Loppnow says he was able to compare information from Fitbit to more than five hours of video from two interviews deputies conducted with Detrie.

"I believe there was about three times and in those cases he was moving his hands but not necessarily taking steps or moving his feet," Loppnow says of any discrepancies he found between the Fitbit information and the two videos. "There were those small inconsistencies."

Loppnow says there were also a few discrepancies when Detrie was shown walking slowly on the video. He says Fitbit did not register steps during that time. However, Loppnow says Fitbit registered steps compared to times on video when Detrie was actively walking.

"In summation then, it is fair to say that in the roughly 300 minutes, 300 individual data sections that you reviewed, there were less than 10 discrepancies between the data and your observations?" Lasee asked Loppnow, which he replied, "yes, I would believe that would be accurate."

In his questioning of Loppnow, defense attorney Lee Schuchart verified no steps would be registered if a person was not wearing their Fitbit. Schuchart also asked Loppnow a series of questions about other devices, including GPS trackers and cellphones. Schuchart asked Loppnow if the devices work most of the time and if there are times where they do not work. Loppnow answered yes to both questions.

Tyler Behilng, a computer forensic crime analyst for the Brown County Sheriff's Department, was the second person to testify.

Behilng says his first task in the VanderHeyden case was to analyze several cellphones, including cellphones belonging to VanderHeyden and Detrie.

Behling testified to being able to tell the last activity on VanderHeyden's phone on the night of her murder was at about midnight. He was able to tell the phone was not manually shut off that night.

The last activity on Detrie's phone on the night of the crime was a Facebook Messenger call or message to Dallas Kennedy, the couple's babysitter, at 3:07 a.m., according to Behling. Detrie and Kennedy testified last week that Detrie had reached out to her to see if she had heard from VanderHeyden.

Behling says Detrie's phone was not used again until 2:42 p.m. the following day when he manually turned the phone on. However, Behling says he was able to tell that Detrie was using Facebook Messenger that morning. Detrie testified to not being able to find his cellphone until the afternoon. He said he found it in his bed.

Behling also testified to comparing data from Detrie's Fitbit application to the data Fitbit sent the Brown County Sheriff's Department. Behling says the two sets of information matched up. Like Loppnow, Behling says he also watched videos of Detrie and compared his movements to the Fitbit data.

Behling says Detrie's Fitbit only registered 12 steps between 3:08 am. and 6:09 am. on the morning of the crime. Those steps were at 4:18 am.

Behling says he also analyzed information from Burch's cellphone.

"Initially we were looking for anything in the timeframe of the night of the 20th into the morning hours of the 21st whether it be calls, texts, internet history, any kind of location data available from that device," said Behling.

From May 22, 2016 through June 6, 2016, Burch used his phone 64 times to look at news articles about VanderHeyden's murder, according to Behling. Behling says Burch looked at a fox11online.com article several times on the morning after her body was discovered. Behling says there were very few searches for any other news stories on Burch's phone in that timeframe.

Behling says he also obtained Google Dashboard information associated with Burch's Gmail account. Behling says the information puts Burch's cellphone at all of the key locations on the night of VanderHeyden's murder.

Behling says data from Google has Burch's cellphone leaving the area of Richard Crainums bar at about 2:45 am, then traveling to his Greenwood Avenue home, and then traveling down Broadway. Behling says Burch's cellphone is then in the area of VanderHeyden and Detrie's Ledgview home from 3:01 am to 3:52 am. At 3:58 am, Behling says Burch's cellphone arrives at the Bellevue field where VanderHeyden's body was found. Burch's cellphone leaves at 4:02 am, according to Behling.

The state rested its case to begin the afternoon session. The defense then made a motion to have the case dismissed, but Judge John Zakowski denied the motion.

The defense called Jason Lemons as its first witness. Lemons was VanderHeyden's friend and ran into her at the Sardine Can on the night of her murder.

Lemons says the two talked for between 20 and 30 minutes. Lemons says the one thing that stuck out about the conversation is VanderHeyden said she would get in trouble for talking to him. Lemons says he figured the comment was in reference to "typical jealousy" in a relationship.

The defense then recalled Dallas Kennedy to the witness stand. She also testified as the prosecution's witness last Tuesday.

Kennedy's testimony was similar to her previous testimony. She says she was a friend of VanderHeyden's and babysat the child she shares with Detrie on the night she was murdered.

Kennedy says she left the couple's home quickly that night after Detrie returned after bar close without VanderHeyden.

"I was just scared," said Kennedy. She says everything about the evening seemed odd.

Drug investigator Nicholas Olmsted was the defense's third witness. Olmsted testified to using a set of keys to start the battery of VanderHeyden's vehicle, which was parked in the garage of the home she shared with Detrie. Olmsted says he did not turn on the ignition. Olmsted also testified to the vehicle having two settings for the driver's seat, one for a shorter person and one for a taller person.

Roman Aronstein, a deputy sheriff with the Brown County Sheriff's Department, was the final defense witness called to testify on the day.

Aronstein testified to finding a box of wires on top of a refrigerator in the garage of the Detrie/VanderHeyden home. Aronstein says, at the time, investigators were aware that some type of wire was likely used to strangle VanderHeyden.

After jurors were excused for the day, the attorneys talked with Judge Zakowski about the possibility of "jailhouse snitches" being called to testify. The defense contends the inmates are unreliable and are only trying to gain something.

The defense attorneys also say they would have to recuse themselves from the case if the inmates testify, because their office has conflicts of interest.

Judge Zakowski says the issue will be discussed before jurors return Wednesday morning. Zakowski says he hopes to avoid a mistrial.

Case Background

Burch was arrested almost four months after VanderHeyden’s beaten body was discovered in a Bellevue farm field, three miles from her home.

Prosecutors say Burch’s DNA was found on VanderHeyden’s body, sock, and other murder evidence found near VanderHeyden’s home.

Burch’s defense attorneys have indicated they plan to have Burch testify at trial, so they can accuse VanderHeyden’s boyfriend, Doug Detrie, of the crime.

The 36-year-old Detrie, who lived with VanderHeyden and is the father of the youngest of her three children, was originally arrested for the murder.

Detrie was never charged and was released from jail after 18 days.

Investigators have said Detrie and VanderHeyden were out drinking with friends in the hours before her murder. The couple fought about infidelity issues, and became separated, according to investigators.

Burch, who moved to the Green Bay area from Virginia shortly before the murder, has claimed he met VanderHeyden for the first time on the night of her murder at a bar on Broadway in Green Bay.

Burch says he drove VanderHeyden home, where they became intimate in the backseat of his car. Burch says Detrie came outside, discovered the two together, and knocked Burch out. When Burch gathered himself, he says he discovered Detrie standing over VanderHeyden’s bloodied and unconscious body. Burch says Detrie forced him at gunpoint to help him dispose of the body in the Bellevue field.

Prosecutors say Detrie’s Fitbit clears him of Burch’s scenario of what happened. The Fitbit shows Detrie was sleeping and took very few steps during the time the murder allegedly took place, according to prosecutors.

Judge John Zakowski has ruled that prosecutors can introduce some Fitbit evidence at trial. Prosecutors can show how many steps Detrie took the night of the murder, however, they cannot introduce the sleep evidence. Zakowski made that stipulation, citing pending lawsuits that question the reliability of Fitbit’s sleep records.

Zakowski is also allowing evidence from Burch’s cellphone to be presented at trial, despite defense attempts to have it excluded.

Investigators say Burch provided Green Bay Police written consent to download information from his phone during a separate hit-and-run investigation, a few weeks after VanderHeyden’s murder. The Brown County Sheriff’s Department obtained that information from Green Bay Police three months later, after DNA on VanderHeyden’s body came back as a match for Burch.

Burch’s attorneys argued the sheriff’s department should have obtained a warrant for those cell phone records, and that the sheriff department’s request went beyond the scope of the investigation the data was originally acquired for.

Prosecutors have said the information from Burch’s cellphone is key because geolocation data pings Burch’s cellphone to the Broadway bar where VanderHeyden was last seen alive, outside her home, and the Bellevue Field.

Judge Zakowski also ruled the defense will not be able to bring up an open domestic abuse case involving Detrie and VanderHeyden’s younger sister.

Detrie is charged with second degree recklessly endangering safety, false imprisonment and disorderly conduct.

Prosecutors allege that Detrie and Heather Meyer were together in a car in Allouez in February. Meyer told police Detrie touched her leg in a sexual manner. When she objected, Detrie sped off and would not let her out of the car. She tried to get out of the moving vehicle, but could not, until he eventually stopped several miles down the road.

Detrie is due back in court on March 23.

As for Burch, he has faced a murder charge before in Virginia. In June 1998, a jury found a then-20-year-old Burch not guilty of a gang-related killing.

Burch’s trial in the death of VanderHeyden is scheduled to last two weeks.

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