State v. Turner ( 2020 )

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STATE OF CONNECTICUT v. TYQUAN TURNER
(SC 20186)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of the crimes of felony murder, robbery in the first degree, and
conspiracy to commit robbery in the first degree, the defendant appealed,
claiming, inter alia, that his federal due process right to a fair trial was
violated when the trial court improperly admitted testimony from a
police officer, W, and other evidence regarding the location of the defen-
dant’s cell phone on the day of the victim’s murder. The victim had
been fatally shot while standing on a sidewalk when he was approached
by two people who fired a series of gunshots. The victim’s medallion
and gold chain were later recovered at a nearby pawn shop. W testified
that he had performed a call detail mapping analysis of the defendant’s
cell phone, which the police recovered after the shooting, and generated
cell tower coverage maps and a time lapse video showing the movement
of the cell phone. The state relied on the cell tower coverage maps to
establish that the defendant was in the area of the crime scene at the
time of the shooting and in the area of the pawn shop after the shooting.
The Appellate Court concluded that the defendant’s claim was unpre-
served and unreviewable under State v. Golding (213 Conn. 233), as
modified by In re Yasiel R. (317 Conn. 773), because it was evidentiary
and not constitutional in nature. In addition, the Appellate Court declined
to review the defendant’s claim under the plain error doctrine, conclud-
ing that defense counsel had assented to the admission of the cell phone
evidence that the defendant claimed violated his right to due process.
The Appellate Court also declined to review the defendant’s claim under
its supervisory authority over the administration of justice, concluding
that the defendant had failed to present extraordinary circumstances
that warranted such review. Accordingly, the Appellate Court affirmed
the judgment of conviction. On the granting of certification, the defen-
dant appealed to this court, claiming, inter alia, that the Appellate Court
incorrectly concluded that he was not entitled to Golding review of his
unpreserved claim that the trial court violated his right to a fair trial
by admitting W’s testimony and the cell phone evidence without conduct-
ing a hearing pursuant to this court’s decision in State v. Porter (241
Conn. 57), which held that testimony based on scientific evidence must
be assessed to determine whether it is derived from and based on reliable
scientific methodology. Held:
1. The defendant having failed to establish that any error occurred in the
admission of W’s testimony and the cell phone evidence, he was not
entitled to review of his unpreserved claim under Golding: this court
having determined, contrary to the defendant’s claim, that its recent
decision in State v. Edwards (325 Conn. 97) did not obligate the trial
court to conduct a Porter hearing to assess the reliability of W’s testi-
mony and the cell phone evidence in the absence of a party’s request
for such a hearing, and the defendant having failed to request such a
hearing or to object to the admission of W’s testimony and the cell
phone evidence, his claim, which was evidentiary in nature, was unpre-
served and there was no error, and, accordingly, the defendant could
not establish that the trial court’s failure to conduct such a hearing sua
sponte was constitutional in nature or violated his constitutional rights
under the second and third prongs of Golding; moreover, because the
defendant failed to request a Porter hearing, the record was unclear as
to what the trial court would have done if he had requested such a
hearing, and this court declined to find facts not in the record or to
presume that the trial court committed evidentiary error when it was
never asked to decide the issue; furthermore, the record was inadequate
to determine whether W’s cell tower coverage map evidence satisfied
the requirement of Porter that the proffered scientific testimony be
demonstrably relevant to the facts of the case, as it was impossible to
determine, without a Porter hearing or an objection to W’s testimony
and the cell phone evidence, whether the state would have been able
to satisfy that requirement.
2. The defendant could not prevail on his claim that the trial court’s failure
to conduct a Porter hearing constituted plain error; this court declined
the defendant’s request to adopt the federal plain error standard, under
which the determination of whether an error was clear is made on the
basis of the law existing at the time of appeal rather than the time of
trial, and, because the case law existing at the time of the defendant’s
trial did not guarantee the defendant the right to a Porter hearing regard-
ing cell phone data, this court could not conclude that the plain error
doctrine afforded the defendant any relief.
3. This court declined the defendant’s request to exercise its supervisory
authority over the administration of justice to review his unpreserved
claim that the trial court improperly had admitted W’s testimony and
the cell phone evidence without conducting a Porter hearing, as this
case did not present the exceptional and unique circumstances that
would justify the exercise of such authority, and this court’s decision
not to exercise its supervisory authority was consistent with its holding
in Edwards, as Edwards entitles a defendant to a Porter hearing regard-
ing cell phone data only upon request, and the defendant failed to request
such a hearing.
Argued September 25, 2019—officially released February 18, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, robbery in the
first degree and conspiracy to commit robbery in the
first degree, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before Kwak,
J.; verdict and judgment of guilty of felony murder,
robbery in the first degree and conspiracy to commit
robbery in the first degree, from which the defendant
appealed to the Appellate Court, DiPentima, C. J., and
Bright and Eveleigh, Js., which affirmed the trial court’s
judgment, and the defendant, on the granting of certifi-
cation, appealed to this court. Affirmed.
Ann M. Parrent, assistant public defender, for the
appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and David L. Zagaja, senior assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. In this case, we are asked to determine
whether, in light of our recent decision in State v.
Edwards, 325 Conn. 97, 156 A.3d 506 (2017), the defen-
dant, Tyquan Turner, is entitled to review of his unpre-
served claim that the trial court improperly failed to
sua sponte conduct a hearing pursuant to State v. Por-
ter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523
U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),
before admitting expert testimony regarding cell phone
data and corresponding cell tower coverage maps. The
defendant seeks review under (1) State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
(2) the plain error doctrine; see Practice Book § 60-
5; and (3) this court’s supervisory authority over the
administration of justice. We conclude that, because
the defendant has failed to establish that any error
occurred, he is not entitled to any review of this unpre-
served claim. Accordingly, we affirm the Appellate
Court’s judgment.
The following facts, as set forth by the Appellate
Court in State v. Turner, 181 Conn. App. 535, 187 A.3d
454 (2018), and procedural history are relevant to our
review of the defendant’s claims. On the afternoon of
July 13, 2013, the victim, Miguel Rodriguez, was stand-
ing on the sidewalk in front of 10-12 Flatbush Avenue
in Hartford. Id., 539. Two people approached the victim
from an open parking lot alongside 10-12 Flatbush Ave-
nue and fired two series of gunshots. Id. Shortly there-
after, the police and emergency response personnel
found the victim, who was being tended to by residents
of 10 Flatbush Avenue. Id. The victim later was pro-
nounced dead at Hartford Hospital. Id. Although two
eyewitnesses gave statements, the victim’s family and
friends, who were present when the shooting occurred,
were unwilling to provide any information about the
incident. They did, however, notify the police that the
victim was missing a gold chain and a medallion. Id.
The gold chain and medallion were later recovered at
a pawn shop. Id., 540. At about this time, the police
also received a phone call from someone who identified
as a friend or family member of the victim, and who
implicated the defendant in the victim’s death. Id.
Approximately one month later, while at an intersection
in the north end of Hartford, Detective George Watson
observed the defendant, who ‘‘ ‘took off’ ’’ but dropped
his cell phone. Id.
Alexandra Colon, the mother of the defendant’s child,
identified the recovered cell phone as being owned by
the defendant, on the basis of a crack in the phone’s
screen, and provided the police with the phone number
associated with the phone. Id., 541. ‘‘With that number,
[the police] confirmed that Sprint Corporation (Sprint)
was the defendant’s cell phone carrier, and, thereafter,
a subpoena was issued, ordering Sprint to produce the
defendant’s cell phone records from July 13, 2013, the
day the homicide occurred, through August 6, 2013, the
day the phone was recovered. Sprint’s response to the
initial subpoena was incomplete and did not include any
records for July 13, 2013. The subscription information,
however, indicated that the cell phone number was
changed on July 14, 2013, the day after the crime, at
the request of a person by the name of ‘Patrick.’1 In
response to a subsequent subpoena, Sprint produced
the cell phone records, associated with that prior phone
number, for July 13, 2013.
‘‘[The police then] sent the cell phone records and
locations of investigative interest to Andrew Weaver, a
sergeant in the Hartford Police Department’s special
investigations division, who performed a call detail
mapping analysis. Weaver input that data into a com-
puter program called Oculus GeoTime, and produced
a time lapse video visually representing the movement
of the defendant’s cell phone between approximately
3:04 and 6:48 p.m. on the day of the crime. Weaver also
took screenshots of the video at different times between
approximately 3:24 and 5:08 p.m. on the day of the
crime.’’ (Footnote added; footnotes omitted.) Id.,
541–43.
At trial, Weaver and Ray Clark, a custodian of records
at Sprint, were called to testify as prosecution wit-
nesses. On direct examination during the state’s case,
Clark identified the defendant’s account subscription
information, July 14, 2013 customer service record, and
call detail records. Those three documents were admit-
ted into evidence without objection. On cross-examina-
tion, Clark testified that the call detail records allow a
person to determine where a call was generated and
where it ended in relationship to a particular cell site.
Clark clarified, however, that ‘‘you can’t pinpoint and
say [the phone] has to have been exactly here. This
record simply says it had to have been in the vicinity
of this particular cell site at the time the phone call
began and, likewise, at the time the phone call ends.’’
Clark explained that a cell phone is within the vicinity
of a particular cell site when it is within the range of
that cell site, the range being approximately two miles
in larger cities like Hartford.
Weaver was called to testify next. The state did not
disclose Weaver as an expert witness, although the trial
court instructed the jury that he provided expert testi-
mony. Weaver testified that he oversaw computer based
investigations of adult and juvenile sexual assaults and
missing persons, including cell phone forensics and cell
phone mapping (also known as call detail mapping).
He testified that he had received training in call detail
mapping and had taken courses on geolocating of cell
service, which included learning how to map which cell
tower a particular call is routed through. He testified
that he had undertaken hundreds of hours of training
in call detail mapping.
In explaining the process he undertakes to conduct
call detail mapping, Weaver testified that first he
receives the call detail records from the cell phone
company, which usually include information identifying
which cell tower was routing the call, the coordinates
of the tower, and which side of the tower the call was
routed through. He explained that ‘‘[m]ost cell towers
have . . . three sides. [Each side] primarily cover[s] a
120 degree arc. That’s the coverage area of the—the
antennas. So, you’ll have one tower with three antennas
on it, 120 degree arc. And that’s your 360 degree cover-
age area.’’ When the cell towers are designed, engineers
map the area, determine each tower’s coverage area,
and then record that information, which is then pro-
vided to Weaver through the call detail records. This
information is then inputted into a computer program
called Oculus GeoTime and results in a map that visually
represents the calls over time.
In describing the coverage range of the cell towers,
Weaver testified that the towers are built ‘‘so they over-
lap about 51 percent from one tower to the next, the
coverage areas. So, [they] have that seamless transmis-
sion . . . . In Hartford, with the amount of cell towers
we have, we generally expect to see industry standard.
We’ve got—1.5 miles is the average coverage area.’’
Weaver testified that cell phone calls are routed through
the tower that the phone is closest to and has the best
signal from. According to Weaver, however, a cell phone
would not necessarily have to be within a tower’s cover-
age area to be routed through that tower. He explained
that, although towers should not overlap too much,
because otherwise there would be interference that
would cause dropped calls, there remains some overlap
so that, ‘‘if you’re a little bit farther out [from the cover-
age area], you [may] still connect with that tower. There
might be a better line of sight, or you might have a
building in the way and that tower is the best tower as
opposed to the one that might be closer to you.’’ Weaver
clarified that the cell phone data and subsequent map
show only that ‘‘the phone itself was in a certain area’’
but do not establish that a certain person was in a
certain area or provide a specific address at which the
phone was located.
The maps Weaver generated in this case have an
underlying map of the city of Hartford. There are orange
pie shaped sections showing the coverage area of the
side of the particular tower that the call data records
show a particular call was routed through. The maps
also identify locations or addresses important to the
investigation of the crime at issue. Weaver explained
that ‘‘[w]hat we do, once we have the towers associated
on the map, the program, we add in the data that [come]
from the cell phone company about the calls that were
made. So, we know at . . . 3:24 in the afternoon, that
. . . the cell phone [at issue] made a call, and it was
routed through that pie shaped area. What we do is,
the next call is routed through another tower, or it can
be the same tower, in which case, you wouldn’t show
movement [on the map]. So, the—the—the movement
is actually just shown of where the cell phone goes
over time. So, we move it from the center of one cover-
age area to the center of the next coverage area. I can’t
tell you which streets were driven down. The—the only
thing we can be 100 percent sure of is, the phone calls
were made and that at some point the cell phone trav-
eled between—from one coverage area to the next cov-
erage area.’’
The maps showed that, at 3:25 p.m. on the day of the
shooting, the cell phone that the defendant dropped
was in a particular cell coverage area, in which was
1154 Albany Avenue, the address for the pawn shop
where the victim’s gold chain and medallion were sold.
At 3:53 p.m., near the time of the murder, the cell phone
was located within another coverage area, near 18 Flat-
bush Avenue, the location of the crime scene. Although
the crime scene was located just outside of the coverage
area of the tower that routed the 3:53 p.m. call, as
explained, Weaver testified that a cell phone may be
located outside of a tower’s coverage area but be routed
through that tower if that tower had the better signal.
Then, at approximately 4:17 p.m., the maps showed
the cell phone again within the cell coverage area that
included the location of the pawn shop.
In closing argument, the state relied on the cell cover-
age maps to establish that the defendant was present
in the area of the crime scene at the time of the crime
and subsequently was present in the area of the pawn
shop sometime after the crime occurred. The jury sub-
sequently found the defendant guilty of felony murder
in violation of General Statutes § 53a-54c, robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (2), and conspiracy to commit robbery in the
first degree in violation of General Statutes §§ 53a-48
and 53a-134 (a) (2), but found him not guilty of murder.
The trial court thereafter rendered judgment in accor-
dance with the jury’s verdict and sentenced the defen-
dant to a total effective term of seventy years of incar-
ceration, thirty of which are a mandatory minimum
sentence.
The defendant appealed to this court, and the appeal
was transferred to the Appellate Court pursuant to Prac-
tice Book 65-1. On appeal to the Appellate Court, the
defendant claimed, inter alia, that the trial court improp-
erly admitted documentary and testimonial evidence
regarding cell phone coverage maps in violation of his
federal due process right to a fair trial. The Appellate
Court held that the defendant’s claim was unpreserved
and unreviewable under Golding because it was eviden-
tiary, not constitutional, in nature. State v. Turner,
supra, 181 Conn. App. 551. Additionally, the Appellate
Court declined to review this claim under the plain
error doctrine ‘‘because defense counsel assented to the
admission of the cell phone evidence that the defendant
now claims deprived him of his right to a fair trial,
and, thereafter, used it in a manner indicating that the
decision was made as a matter of trial tactics . . . .’’2
Id., 555. Finally, the Appellate Court declined to review
this claim under its supervisory authority over the
administration of justice, holding that the defendant
had failed to present extraordinary circumstances war-
ranting such an exercise. Id., 555 n.17. Thus, the Appel-
late Court affirmed the judgment of conviction.
The defendant then petitioned for certification to
appeal, which we granted, limited to the following
issues: (1) ‘‘Did the Appellate Court properly determine
that the petitioner was not entitled to review, under
State v. Golding, [supra, 213 Conn. 233], of his unpre-
served claim that the trial court improperly admitted
cell tower coverage maps?’’ And (2) ‘‘Did the Appellate
Court properly determine that the petitioner was not
entitled to plain error review of his unpreserved claim
that the trial court improperly admitted cell tower cov-
erage maps?’’ State v. Turner, 330 Conn. 909, 193 A.3d
48 (2018).
I
To address the defendant’s claims properly, a review
of recent changes in our case law pertaining to the
admissibility of expert testimony regarding cell phone
data is useful.
‘‘In Porter, we followed the United States Supreme
Court’s decision in Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993), and held that testimony based on scientific
evidence should be subjected to a flexible test to deter-
mine the reliability of methods used to reach a particu-
lar conclusion. . . . A Porter analysis involves a two
part inquiry that assesses the reliability and relevance
of the witness’ methods. . . . First, the party offering
the expert testimony must show that the expert’s meth-
ods for reaching his conclusion are reliable. . . . Sec-
ond, the proposed scientific testimony must be demon-
strably relevant to the facts of the particular case in
which it is offered, and not simply be valid in the
abstract. . . . Put another way, the proponent of scien-
tific evidence must establish that the specific scientific
testimony at issue is, in fact, derived from and based
[on] . . . [scientifically reliable] methodology.’’3
(Internal quotation marks omitted.) State v. Edwards,
supra, 325 Conn. 124. This second inquiry is known as
the ‘‘fit’’ requirement. Prentice v. Dalco Electric, Inc.,
280 Conn. 336, 344, 907 A.2d 1204 (2006), cert. denied,
549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).
‘‘[F]or the trial court, in the performance of its role
as the gatekeeper for scientific evidence, properly to
assess the threshold admissibility of scientific evidence,
the proponent of the evidence must provide a sufficient
articulation of the methodology underlying the scien-
tific evidence. Without such an articulation, the trial
court is entirely ill-equipped to determine if the scien-
tific evidence is reliable upon consideration of the vari-
ous Porter factors. Furthermore, without a clear under-
standing as to the methodology and its workings, the
trial court also cannot properly undertake its analysis
under the fit requirement of Porter, ensuring that the
proffered scientific evidence, in fact, is based upon the
reliable methodology articulated.’’ (Internal quotation
marks omitted.) State v. Edwards, supra, 325 Conn.
125. Although it is the proponent’s burden to satisfy
the Porter requirements, the party opposing the admis-
sion of the expert testimony must object and request
a Porter hearing, otherwise, any objection is waived.
Weaver v. McKnight, 313 Conn. 393, 415–16, 97 A.3d
920 (2014).
Before the proponent proceeds to satisfy the Porter
requirements, however, a court must initially determine
whether the evidence at issue is the type of scientific
evidence contemplated by Porter. See, e.g., Arthur v.
Commissioner of Correction, 162 Conn. App. 606, 621–
22, 131 A.3d 1267, cert. denied, 323 Conn. 915, 149 A.3d
496 (2016). At the time of the defendant’s trial in the
present case, this court had not been asked to decide
whether cell phone data constituted the type of scien-
tific evidence contemplated by Porter. The Appellate
Court, however, in Arthur, considered this issue when
the petitioner alleged a claim for ‘‘ineffective assistance
of counsel because [his counsel had] failed to request
a Porter hearing regarding the cell phone evidence
offered by the state to show the petitioner’s movements
on the night of the shooting.’’ Id., 619. The Appellate
Court noted that requests for Porter hearings regarding
this kind of expert testimony were routinely denied in
this state and ‘‘that numerous courts across the country
have concluded that such evidence is sufficiently well
established that a hearing concerning its scientific relia-
bility is unnecessary . . . .’’ Id., 623 n.6. The Appellate
Court concluded that the petitioner had failed to estab-
lish that cell phone data was the kind of scientific evi-
dence contemplated by Porter and, thus, ‘‘[had] failed
to show that he was prejudiced by [his counsel’s] failure
to request a Porter hearing . . . .’’ Id., 623.
After the defendant’s trial in the present case, but
while his appeal was pending before the Appellate
Court, this court released its decision in State v.
Edwards, supra, 325 Conn. 97. In Edwards, the state
offered the testimony of Detective Christopher Morris
of the Wethersfield Police Department regarding cell
phone data and maps he generated therefrom. Id., 118–
19, 121. The defendant objected to the admission of the
maps and requested a Porter hearing, which the trial
court denied. Id., 118, 123.4 On appeal in Edwards, the
defendant argued to this court that the trial court
improperly had failed to qualify Morris as an expert
and denied his request for a Porter hearing. We agreed.
Id., 118. Specifically, we concluded that Morris should
have been qualified as an expert witness before the
court allowed him to testify regarding cell phone data
because of his superior knowledge on this subject. Id.,
128, 133. Additionally, we determined that expert testi-
mony regarding cell phone data is the type of scientific
evidence contemplated by Porter, and, thus, a Porter
hearing was required to ensure that his testimony was
based on reliable scientific methodology. Id., 129–33.
Nevertheless, we applied an evidentiary harmless error
analysis, concluding that these errors had not harmed
the defendant. Id., 133–34.
II
The defendant first claims that the Appellate Court
incorrectly determined he was not entitled to Golding
review of his unpreserved claim that the trial court
violated his right to a fair trial by admitting Weaver’s
testimony and cell tower coverage maps without con-
ducting a Porter hearing. More specifically, he argues
that (1) the admission of Weaver’s testimony and cell
tower coverage maps without a Porter hearing violated
the new rule announced in Edwards, and (2) Weaver’s
cell tower coverage maps did not satisfy the Porter ‘‘fit’’
prong because they were not derived from his stated
methodology and were incapable of proving the propo-
sition for which they were offered—that the defendant
was at specific locations at specific times. The defen-
dant acknowledges that the trial court’s failure to con-
duct a Porter hearing and exclude the maps from evi-
dence were, at best, unpreserved evidentiary errors. He
nonetheless argues that the Appellate Court improperly
failed to address his argument that these evidentiary
errors were significant and crucial enough that they
implicated his due process right to a fair trial and, thus,
were constitutional in nature under Golding’s second
prong. The state concedes that an evidentiary error
may rise to the level of a constitutional violation but
contends that the defendant failed to establish that the
alleged evidentiary errors exist, let alone rise to that
level. We agree with the state.
It is undisputed that the defendant did not preserve
his claim at trial either by objecting to Weaver’s testi-
mony or to the admission of the cell tower coverage
maps, or by requesting a Porter hearing. ‘‘[T]his court is
not required to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial.’’
(Internal quotation marks omitted.) State v. Fay, 326
Conn. 742, 766, 167 A.3d 897 (2017). ‘‘It is well estab-
lished, however, that an unpreserved claim is review-
able under Golding when (1) the record is adequate to
review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fun-
damental right; (3) the alleged constitutional violation
. . . exists and . . . deprived the defendant of a fair
trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) Id. ‘‘In the
absence of any one of these conditions, the defendant’s
claim will fail. The appellate tribunal is free, therefore,
to respond to the defendant’s claim by focusing on
whichever condition is most relevant in the particular
circumstances.’’ State v. Golding, supra, 213 Conn. 240.
Under the second prong of Golding, an unpreserved
evidentiary error generally is not reviewable. See, e.g.,
State v. Toccaline, 258 Conn. 542, 550, 783 A.2d 450(2001). Because ‘‘the admissibility of expert testimony
is a matter of state evidentiary law . . . in the absence
of timely objection, [it] does not warrant appellate
review under [Golding] . . . because it does not, per
se, raise a question of constitutional significance.’’ State
v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993). Thus,
an unpreserved claim that the trial court improperly
failed to conduct a Porter hearing, which involves the
admissibility of expert testimony, generally is not
reviewable. See State v. Natal, 113 Conn. App. 278, 285,
966 A.2d 331 (2009).
Nevertheless, this court has recognized that an unpre-
served evidentiary claim may be constitutional in nature
if ‘‘there is a resultant denial of fundamental fairness
or the denial of a specific constitutional right . . . .’’
(Internal quotation marks omitted.) State v. Toccaline,
supra, 258 Conn. 550; see also State v. Crespo, 303 Conn.
589, 609 n.15, 35 A.3d 243 (2012). This is consistent
with federal jurisprudence, which recognizes that an
evidentiary error may be of constitutional magnitude
if ‘‘the error was so pervasive as to have denied [the
defendant] a fundamentally fair trial . . . . [T]he stan-
dard . . . [is] whether the erroneously admitted evi-
dence, viewed objectively in light of the entire record
before the jury, was sufficiently material to provide the
basis for conviction or to remove a reasonable doubt
that would have existed on the record without it. In
short it must have been ‘crucial, critical, [and] highly
significant . . . .’ ’’ (Citations omitted.) Collins v.
Scully, 755 F.2d 16, 18–19 (2d Cir. 1985); see also McKin-
non v. Superintendent, Great Meadow Correctional
Facility, 422 Fed. Appx. 69, 72 (2d Cir. 2011), cert.
denied sub nom. McKinnon v. LaValley, 565 U.S. 1181,
132 S. Ct. 1151, 181 L. Ed. 2d 1024 (2012); Smith v.
Greiner, 117 Fed. Appx. 779, 781 (2d Cir. 2004), cert.
denied sub nom. Smith v. Fischer, 544 U.S. 984, 125 S.
Ct. 1853, 161 L. Ed. 2d 741 (2005).
The ‘‘crucial, critical, [and] highly significant’’ stan-
dard—which elevates evidentiary error into constitu-
tional error in some circumstances—has created some
confusion as to which prong of Golding is implicated
in the analysis: ‘‘This stems from confusion over the
proper application of the second and third prongs. . . .
[Because] any claim of evidentiary error . . . premised
on a generalized violation of a party’s due process right
is constitutional in nature [only] if the harm resulting
from the error is sufficient to require a new trial . . .
[this kind of claim] will necessitate a review of the full
record—in effect, the analysis required by Golding’s
third prong—to determine whether the claim is indeed
constitutional in nature in order to satisfy Golding’s
second prong.’’ (Emphasis omitted.) State v. Crespo,
supra, 303 Conn. 609 n.15; see also id., 607–609 (describ-
ing how inconsistently these claims have been
addressed). Moreover, to the extent this analysis is
undermined by an inadequate record, Golding’s first
prong likewise may be implicated. See State v. Holley,
327 Conn. 576, 598–601, 175 A.3d 514 (2018); State v.
Johnson, 149 Conn. App. 816, 830–31, 89 A.3d 983, cert.
denied, 312 Conn. 915, 93 A.3d 597 (2014). Thus, if the
record is inadequate to determine whether an eviden-
tiary error exists and is ‘‘crucial, critical, [and] highly
significant,’’ a defendant’s constitutional claim will fail
under the first, second, and third prongs of Golding.
In the present case, the defendant claims that the
trial court improperly admitted the cell tower coverage
maps, violating his due process right to a fair trial
because the maps were crucial to the state’s case. Spe-
cifically, he asserts two evidentiary errors in support
of his argument that the trial court improperly admitted
the cell tower maps. First, he argues that the trial court
improperly failed to conduct a Porter hearing because
this court’s recent decision in Edwards required the
court to do so. Second, he argues that, even without
a Porter hearing, the trial court improperly admitted
Weaver’s cell tower coverage maps because it is clear
from the record that the maps did not satisfy the Porter
‘‘fit’’ requirements that they be derived from the expert’s
stated methodology and that they prove the proposition
for which they were offered—that the defendant was
at specific locations at specific times.5 He argues that
the record is adequate to review the two alleged errors.
The state responds that, under Edwards, the defen-
dant was required to request a Porter hearing, and, thus,
the trial court need not have conducted such a hearing
sua sponte. Accordingly, the state contends that the
defendant’s first alleged error fails under the second
and third prongs of Golding. Additionally, because there
was no Porter hearing, the state argues that the record
is inadequate to determine whether the cell tower cover-
age maps would have satisfied the Porter ‘‘fit’’ prong.
As a result, the state argues, the defendant’s second
alleged error fails under the first, second, and third
prongs of Golding because he has failed to establish
an evidentiary error, let alone a ‘‘crucial, critical, [and]
highly significant’’ error that implicated his due process
right to a fair trial. We agree with the state.
As to the first alleged error, the defendant argues
that, under the new rule announced by this court in
Edwards, a trial court is required to conduct a Porter
hearing to assess the reliability of the expert testimony
regarding cell phone data and that this new rule applies
retroactively to the present case. The defendant argues
that the record in the present case is similar to the
record in Edwards, in which this court held that the
trial court improperly failed to hold a Porter hearing,
even though there was no record regarding the expert’s
qualifications or methodology.
But, in fact, the record in Edwards was different from
the record in the present case in one critical respect:
the defendant in Edwards raised the claim to the trial
court. In fact, the defendant in Edwards, on multiple
occasions, specifically objected to the admission of the
expert testimony and corresponding cell coverage
maps, and requested that the trial court conduct a Porter
hearing. State v. Edwards, supra, 325 Conn. 118–19. We
held that the trial court’s refusal to grant the request
for a Porter hearing was error. Id., 133. Even though we
agree with the Appellate Court that the rule in Edwards
applies retroactively,6 we did not hold in Edwards that
trial courts were bound to have, sua sponte, held Porter
hearings in every case involving expert testimony on
cell phone data in the absence of an objection or request
to do so.
Rather, a court is obligated to conduct a Porter hear-
ing only when a party requests one. See, e.g., Prentice
v. Dalco Electric, Inc., supra, 280 Conn. 352 (trial court
was obligated to hold Porter hearing once defendant
objected to expert testimony and requested hearing);
see also State v. Sullivan, 244 Conn. 640, 651 n.14, 712
A.2d 919 (1998) (‘‘[w]e never have held that a trial court
has an independent obligation to order, sua sponte, a
hearing on an evidentiary matter, in the absence of both
a request for a hearing and an adequate offer of proof’’).
This is consistent with this court’s previously stated
rule that parties waive their right to a Porter hearing
if no request is made. See Weaver v. McKnight, supra,
313 Conn. 415–16 (‘‘To raise a Porter claim, the party
opposing the admission of the scientific evidence must
first object to the validity of the expert’s methods. . . .
The failure to raise a Porter claim in the trial court
results in waiver of that claim and it will not be consid-
ered for the first time on appeal.’’ (Citations omitted.)).
In the absence of a request for a Porter hearing, the
proponent of the expert testimony is deprived of the
opportunity to present evidence supporting the expert’s
methodology, hindering the court’s ability to determine
whether the expert testimony in fact satisfies the Porter
requirements. Id., 416. Federal courts that have consid-
ered the issue consistently have held that United States
District Courts are obligated to conduct a Daubert hear-
ing only when one has been requested but do not have
an obligation to conduct one sua sponte. See United
States v. Bedford, 628 F.3d 1232, 1236 (10th Cir. 2010)
(‘‘trial court was not obligated to act sua sponte [to
conduct a Daubert hearing] without an objection from
[defense counsel]’’); Hoult v. Hoult, 57 F.3d 1, 4–5 (1st
Cir. 1995) (‘‘[w]e do not think, however, that district
courts are required, sua sponte, to make explicit [on
the record] rulings regarding the admissibility of expert
testimony’’ under Daubert); see also Henry v. St. Croix
Alumina, LLC, 572 Fed. Appx. 114, 119 (3d Cir. 2014)
(‘‘District Court . . . acted within its discretion in
declining to hold a Daubert hearing sua sponte’’); Gam-
boa v. Henderson, Docket No. 99-20965, 2000 WL
1835289,*2 (5th Cir. November 29, 2000) (‘‘[a] Daubert
analysis of the admissibility of expert testimony . . .
does not lend itself to instant, sua sponte rulings from
the bench’’).
Thus, even though the new rule in Edwards applies
retroactively, its retroactive application to pending
cases does not compel the conclusion that a trial court
is required to conduct a Porter hearing sua sponte in
the absence of a request for one. Retroactivity of new,
nonconstitutional evidentiary rules does not relieve a
defendant of his obligation to preserve the claim. In
other cases in which a new, nonconstitutional eviden-
tiary rule has been applied retroactively, the defendant
still was required to preserve his claim at trial in order
to be entitled to review. See State v. Martinez, 95 Conn.
App. 162, 166 n.3, 896 A.2d 109 (2006) (concluding that,
even if new jury instruction rule announced in State v.
Patterson, 276 Conn. 452, 886 A.2d 777 (2005), which
was not of constitutional dimension, was retroactive,
court would decline to review defendant’s unpreserved
evidentiary claim that trial court failed to give jury
instruction regarding credibility of jailhouse informants
because defendant did not raise claim during trial), cert.
denied, 279 Conn. 902, 901 A.2d 1224 (2006); cf. State
v. Steele, 176 Conn. App. 1, 24, 27, 31, 169 A.3d 797(2017) (applying rule in Edwards retroactively when
defendant preserved claim that court improperly per-
mitted lay testimony concerning historic cell site analy-
sis where defendant had objected), cert. denied, 327
Conn. 962, 172 A.3d 1261 (2017); State v. Quinones, 56
Conn. App. 529, 533, 745 A.2d 191 (2000) (applying new
rule retroactively where preservation was not at issue).
Thus, we conclude that our holding in Edwards did
not obligate the trial court in the present case to hold
a Porter hearing sua sponte. In the absence of error,
the defendant has not established that the trial court’s
failure to hold a Porter hearing was constitutional in
nature or violated his constitutional rights under the
second and third prongs of Golding.
The defendant contends that we should overlook his
failure to request a Porter hearing because, before
Edwards, requests for Porter hearings regarding cell
tower data routinely had been denied, so there was no
reason to believe that the trial court would have granted
his request had he made one. His failure to request a
Porter hearing, he claims, should not result in a different
outcome than in Edwards itself. The defendant appears
to be making a fairness argument—that, because this
court’s decision in Edwards had not been released at
the time of his trial, it is unfair to place the burden of
requesting a Porter hearing on him because he did not
know that he could do so. We are not persuaded.
Like the defendant in Edwards, who also did not have
the benefit of our decision in that case, the defendant
in the present case could have objected to the admission
of the cell data evidence and requested a Porter hearing,
but he did not do so. Because the defendant did not
request a Porter hearing, the record is bereft of what
the trial court would have done if he had. We will not
find facts not in the record or presume evidentiary error
on the part of the trial court when it was never asked
to decide this issue.7
The defendant next argues that the trial court improp-
erly admitted the cell tower coverage maps because,
even without a Porter hearing, it is clear on the record
that the maps did not satisfy the Porter ‘‘fit’’ require-
ment.8 Specifically, he argues that the maps were not
derived from Weaver’s stated methodology.9 Addition-
ally, the defendant argues that the maps were incapable
of proving the proposition for which they were
offered—that the defendant was at specific locations
at specific times—because Weaver’s testimony exten-
sively qualified the maps’ ability to prove the defen-
dant’s location, clarifying that the maps showed only
the general area where the phone was located, not the
specific address where the defendant was located.
As this court previously has explained, however,
without the defendant’s having objected to Weaver’s
testimony and requested a Porter hearing, it is impossi-
ble to determine whether the state would have been able
to satisfy the ‘‘fit’’ requirements of Porter or whether
the admission of the maps was more prejudicial than
probative. See Weaver v. McKnight, supra, 313 Conn.
416. Even if we assume that the state cannot satisfy
the ‘‘fit’’ requirement on the current record in this case,
we have no way of knowing whether the state would
have presented additional evidence to support Weaver’s
methodology and to show that the cell tower coverage
maps were derived from this methodology if the defen-
dant had requested a Porter hearing.
The defendant contends that the state would not have
been able to present any additional evidence to explain
away the maps’ failure to show the adjacent cell sites,
but this is merely speculation in light of the fact that
Weaver never was asked why he did not incorporate
these adjacent cell towers into his maps and whether
this was consistent with the methodology he employed.
Perhaps Weaver would have provided greater detail
about the methodology he employed that would have
explained why it was unnecessary to incorporate the
adjacent cell towers into the maps: ‘‘[W]ithout a clear
understanding as to the methodology and its workings,
the trial court . . . cannot properly undertake its anal-
ysis under the fit requirement of Porter, ensuring that
the proffered scientific evidence, in fact, is based upon
the reliable methodology articulated.’’ (Internal quota-
tion marks omitted.) State v. Edwards, supra, 325 Conn.
125. Neither can we. As a result, the record is inadequate
to determine whether Weaver’s cell tower coverage
maps satisfy the Porter ‘‘fit’’ requirement.
The defendant has failed to establish that the trial
court erred in admitting Weaver’s cell tower coverage
maps and that this error was crucial, critical, and highly
significant such that it implicated his due process right
to a fair trial. Accordingly, the defendant’s claim fails
under Golding.
III
The defendant next claims that, even if he is not
entitled to Golding review of his unpreserved claim, he
is entitled to reversal of his conviction because the trial
court’s failure to conduct a Porter hearing constituted
plain error. Specifically, he asks this court to adopt the
federal plain error standard, which requires a determi-
nation of whether an error was clear on the basis of
the law existing at the time of appeal, not the time of
trial. See, e.g., Henderson v. United States, 568 U.S. 266,
269, 133 S. Ct. 1121, 185 L. Ed. 2d 85 (2013) (addressing
temporal aspect of rule 52 (b) of the Federal Rules of
Criminal Procedure and holding that, ‘‘as long as the
error was plain as of . . . the time of appellate review,’’
‘‘the error is ‘plain’ within the meaning of the [r]ule’’).
The defendant argues that, under the federal plain error
standard, by the time of his appeal before the Appellate
Court, it was clear under Edwards that admitting the
cell tower coverage maps without first conducting a
Porter hearing was error.10 We decline to adopt the
federal standard.
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . . so
obvious that it [is not debatable and] affects the fairness
and integrity of and public confidence in the judicial
proceedings. . . . [Additionally, a] party cannot pre-
vail under plain error unless it has demonstrated that
the failure to grant relief will result in manifest injustice.
. . . [Thus, an appellant] cannot prevail under [the
plain error doctrine] . . . unless he demonstrates that
the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice. . . . It is axiomatic that . . . [t]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v.
McClain, 324 Conn. 802, 812–14, 155 A.3d 209 (2017).
This court has explained that whether an error is
clear is premised on the law existing at the time of trial.
See State v. Darryl W., 303 Conn. 353, 374, 33 A.3d 239(2012) (‘‘[i]t is axiomatic that the trial court’s proper
application of the law existing at the time of trial cannot
constitute reversible error under the plain error doc-
trine’’ (internal quotation marks omitted)); State v.
Diaz, 302 Conn. 93, 104 n.8, 25 A.3d 594 (2011) (same);
see also State v. Bellamy, 323 Conn. 400, 458 n.6, 147
A.3d 655 (2016) (Rogers, C. J., concurring) (‘‘[i]t is axi-
omatic that the trial court’s proper application of the
law existing at the time of trial cannot constitute revers-
ible error under the plain error doctrine’’ (internal quo-
tation marks omitted)). The defendant, nevertheless,
urges this court to adopt the federal plain error stan-
dard, in which clear error is assessed on the basis of the
law existing at the time of appeal. See, e.g., Henderson
v. United States, supra, 568 U.S. 271 (‘‘[T]he general
rule . . . is that an appellate court must apply the law
in effect at the time it renders its decision. . . . This
principle favors assessing plainness at the time of
review.’’ (Citations omitted; internal quotation marks
omitted.)); United States v. Bruno, 383 F.3d 65, 79 (2d
Cir. 2004) (‘‘[a]n error is ‘plain’ if it is ‘clear’ or ‘obvious’
at the time of appellate consideration (emphasis
omitted)).
This court has declined to adopt the federal plain
error rule, however, concluding that federal case law
is ‘‘inapposite and unpersuasive’’ in determining the
scope of plain error review. State v. McClain, supra,
324 Conn. 813 n.8. This is because of the ‘‘fundamental
differences’’ between federal and state law regarding
the plain error doctrine. Id. ‘‘Under federal law, an
appellate court may, in its discretion, correct an error
not raised at trial only where the appellant demon-
strates that (1) there is an error; (2) the error is clear
or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights,
which in the ordinary case means it affected the out-
come of the district court proceedings; and (4) the error
seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings.’’ (Emphasis in original;
internal quotation marks omitted.) Id. Thus, clear error
is just one aspect of the federal plain error doctrine,
even if measured as of the time of the appeal. ‘‘By
contrast . . . Connecticut’s plain error doctrine is a
rule of reversibility, mandating reversal when plain
error is found.’’ (Emphasis added.) Id.; see also State
v. Bellamy, supra, 323 Conn. 435–39 (explaining differ-
ences between federal and Connecticut plain error doc-
trines). Unlike federal courts, Connecticut appellate
courts do not have discretion to reverse a conviction
for plain error, and the defendant does not ask this
court to grant appellate courts this discretion.
In light of this distinction between the federal plain
error doctrine and Connecticut’s plain error doctrine,
we continue to decline to adopt the federal plain error
standard and, thus, decline to extend our plain error
doctrine to errors that were not clear at the time of
trial and require reversal in cases in which both the
trial court and the parties properly applied the law
existing at the time of trial.11 Accordingly, because this
court had not issued its decision in Edwards at the
time of the defendant’s trial and the existing case law
at the time of trial did not guarantee the defendant the
right to a Porter hearing regarding cell phone data, we
cannot conclude that the plain error doctrine applies
to provide the defendant any relief.12
IV
Finally, the defendant requests that this court exer-
cise its supervisory authority over the administration
of justice to review his unpreserved claim that the trial
court improperly admitted Weaver’s testimony and cor-
responding cell tower coverage maps without conduct-
ing a Porter hearing.13 The defendant argues that this
is an exceptional case in which the interests of justice
and consistency of the law weigh in favor of this court’s
exercising its supervisory authority, because, otherwise
this court’s new rule in Edwards will be inconsistently
applied. We are not persuaded.
‘‘[B]ypass doctrines permitting the review of unpre-
served claims such as [Golding] . . . and plain error
[claims], are generally adequate to protect the rights of
the defendant and the integrity of the judicial system
. . . . [T]he supervisory authority of this state’s appel-
late courts is not intended to serve as a bypass to the
bypass, permitting the review of unpreserved claims of
case specific error—constitutional or not—that are not
otherwise amenable to relief under Golding or the plain
error doctrine. . . . Consistent with this general princi-
ple, we will reverse a conviction under our supervisory
powers only in the rare case [in which] fairness and
justice demand it. . . . [The issue at hand must be] of
[the] utmost seriousness, not only for the integrity of
a particular trial but also for the perceived fairness
of the judicial system as a whole.’’ (Citations omitted;
internal quotation marks omitted.) State v. Reyes, 325
Conn. 815, 822–23, 160 A.3d 323 (2017).
The present case does not present the exceptional
and unique circumstances that would justify this court’s
exercising its supervisory authority. Without an ade-
quate record to determine that an evidentiary error
exists, let alone was harmful, we are not inclined to
reverse the defendant’s conviction. Additionally, we are
not persuaded by the defendant’s argument that the
consistent application of Edwards compels this court
to exercise its supervisory authority. As explained in
part I of this opinion, Edwards entitles a defendant to
a Porter hearing regarding cell phone data only upon
request. Edwards does not obligate a trial court to con-
duct a Porter hearing sua sponte. Because the defendant
in the present case did not request a Porter hearing,
our decision not to exercise our supervisory authority
is entirely consistent with our holding in Edwards—
only defendants who request a Porter hearing are enti-
tled to one.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
Subsequently, when approached by the police, the defendant identified
himself as Aaron Patrick and presented fake identification under that same
alias. State v. Turner, supra, 181 Conn. App. 543.
2
Specifically, the Appellate Court relied on the fact that, ‘‘[d]uring defense
counsel’s closing argument, he relied on portions of Weaver’s testimony’’
to establish that the cell phone data and Weaver’s testimony could not
establish who was in possession of the phone and where precisely the phone
was located at any specific point in time. State v. Turner, supra, 181 Conn.
App. 554–55.
3
Not all scientific evidence, however, must satisfy the two-pronged Porter
test in order to be admissible. See, e.g., State v. Reid, 254 Conn. 540, 546–47,
757 A.2d 482 (2000); see also Conn. Code Evid. § 7-2, commentary (explaining
that Porter does not apply if scientific principles are well established or if
evidence is presented in manner that does not supplant jury’s judgment).
4
The trial court did not label Morris as an expert, ‘‘just somebody with
superior knowledge.’’ State v. Edwards, supra, 325 Conn. 126. In Edwards,
this court did not address whether the trial court improperly permitted lay
testimony concerning cell phone data because the defendant did not raise
this claim. Similarly, in the present case, Weaver was not disclosed as an
expert witness by the state, although the trial court later classified him as
an expert. The defendant, however, does not claim that the trial court’s
improper admission of lay testimony regarding cell phone data violated his
right to a fair trial, and, thus, we do not address that issue.
5
The defendant concedes that he does not argue that the maps were
improperly admitted because Weaver’s methodology was unreliable under
the first prong of Porter, acknowledging that the record is inadequate to
review the reliability of his methodology in the absence of a Porter hearing.
Also, in a single sentence in his brief before this court, the defendant
suggests a third evidentiary error: ‘‘[T]he record establishes error under
Edwards because . . . Weaver was not qualified as an expert on the scien-
tific methodology used to predict a cell phone’s location in relation to the
cell tower it connects with.’’ The defendant, however, has provided no
analysis in support of this argument to establish that Weaver was unqualified
as an expert. Moreover, in his reply brief, the defendant explicitly limited
his argument to two alleged errors: (1) admission of the cell tower coverage
maps without a Porter hearing in violation of the new rule announced in
Edwards, and (2) the maps’ failure to satisfy the Porter ‘‘fit’’ requirement.
The defendant, thus, does not argue that the trial court’s failure to qualify
Weaver as an expert was constitutional in nature. Accordingly, we do not
address this argument.
6
The Appellate Court in the present case stated in a footnote that the
rule in Edwards applied retroactively, relying on State v. Elias G., 302 Conn.
39, 45, 23 A.3d 718 (2011) (‘‘‘a rule enunciated in a case presumptively
applies retroactively to pending cases’ ’’). See State v. Turner, supra, 181
Conn. App. 549 n.13.
This court has established ‘‘the general rule that judgments that are not
by their terms limited to prospective application are presumed to apply
retroactively . . . to cases that are pending . . . .’’ (Internal quotation
marks omitted.) State v. Hampton, 293 Conn. 435, 457, 988 A.2d 167 (2009).
We have clarified, however, that ‘‘[c]omplete retroactive effect is most appro-
priate’’ in cases that announce a new constitutional rule or a new judicial
interpretation of a criminal statute. (Internal quotation marks omitted.) State
v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986) (‘‘[c]omplete retroactive
effect is most appropriate where a new constitutional principle is designed
to enhance the accuracy of criminal trials’’ (internal quotation marks omit-
ted)); see Luurtsema v. Commissioner of Correction, 299 Conn. 740, 764, 12
A.3d 817 (2011) (full retroactivity for new judicial interpretation of criminal
statute); see also State v. Elias G., supra, 302 Conn. 45–46 (applying new
interpretative gloss retroactively on statute providing for transfer of cases
from juvenile docket to regular criminal docket where gloss was required
for due process purposes).
7
Also, we cannot rule out the possibility that the defendant’s failure to
object to Weaver’s testimony or evidence could have been tactical, especially
in light of the defendant’s extensive cross-examination of Weaver and sum-
mation argument focusing on Weaver’s inability to definitively state where
precisely the defendant was located at particular times.
8
The defendant alternatively contends that, to the extent the maps mini-
mally satisfy the Porter ’’fit’’ requirement, the probative value of their admis-
sion is outweighed by its prejudicial effect.
9
The defendant argues that Weaver testified about the industry stan-
dards—a 1.5 mile estimated coverage area in Hartford and 51 percent tower
overlap—but there was no evidence presented that Weaver employed these
standards in creating the maps because he did not include the competing
signals of adjacent cell tower sites in his maps. He contends that this enabled
Weaver to easily manipulate the maps to produce the desired result. For
example, the maps depict the defendant’s cell phone location in a coverage
area near to the scene of the crime, but the maps do not depict that the
scene of the crime was located in a different tower’s coverage area that the
call was not routed through.
10
Additionally, the defendant argues that the Appellate Court incorrectly
determined that he was not entitled to review of his claim under the plain
error doctrine on the ground that he had strategically decided not to object
to Weaver’s testimony and the admission of the cell tower coverage maps.
Because we determine that the defendant is not entitled to reversal of his
conviction under the plain error doctrine on the ground that he has failed
to establish clear error, we do not reach this issue.
11
In support of his argument that this court should reverse his conviction
on the basis of our decision in Edwards, the defendant cites to out-of-state
cases in which the reviewing court found plain error on the basis of the
law at the time of the appeal. All of these cases, however, have adopted
plain error standards similar to the federal standard, which we do not. See
Madison v. State, 620 So. 2d 62, 73 (Ala. Crim. App. 1992); State v. Green,
447 N.J. Super. 317, 324–29, 147 A.3d 876 (App. Div. 2016), overruled in part
on other grounds by State v. Covil, Docket No. 081267, 2020 WL 355592,
*12–13 (N.J. January 22, 2020); State v. Wells, 257 Or. App. 808, 811–14, 308
P.3d 274 (2013).
12
Even if we applied the law existing at the time of appeal, the defendant
still has failed to establish that he is entitled to reversal of his conviction
under the plain error doctrine because, for the same reasons explained in
part I of this opinion, the record is inadequate to determine whether error
in fact occurred. See, e.g., State v. McClain, supra, 324 Conn. 812 (‘‘a com-
plete record and an obvious error are prerequisites for plain error review’’
(internal quotation marks omitted)). Additionally, because the trial court
was not required to conduct a Porter hearing sua sponte; see part I of this
opinion; this is not the kind of case that justifies reversal under the plain
error doctrine in light of the defendant’s failure to object to the admission
of the cell tower coverage maps and to request a Porter hearing. See State
v. Natal, supra, 113 Conn. App. 285–86 (unpreserved Porter claim was not
kind of claim that justifies plain error review); see also State v. Brett B.,
186 Conn. App. 563, 602–606, 200 A.3d 706 (2018) (same), cert. denied, 330
Conn. 961, 199 A.3d 560 (2019); State v. Wynne, 182 Conn. App. 706, 720,
190 A.3d 955 (same), cert. denied, 330 Conn. 911, 193 A.3d 50 (2018).
13
Additionally, in his reply brief, the defendant requests that this court
exercise its supervisory authority to review his claim of instructional error
that was decided against him by the Appellate Court. Although the defendant
requested review of the Appellate Court’s decision on this claim in his
petition for certification for appeal to this court, we did not grant certification
with respect to that issue. The defendant may present only those issues for
which certification has been granted. See Practice Book § 84-9; see also
Taylor v. Commissioner of Correction, 324 Conn. 631, 653–54, 153 A.3d 1264(2017). Accordingly, we decline to consider this claim in the present appeal.