State v. Tyus ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. GERJUAN
RAINER TYUS
(SC 20462)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. Prior to the shooting, the defendant
was involved in a dispute with the victim, after which the victim drove
by the defendant’s apartment and shot the defendant, and the defendant
fired back at the victim. The defendant’s close friend, A, thereafter stated
an intention to seek revenge against the victim. Approximately two
weeks later, the victim was shot and killed at a café in New London.
In an interview with the police after the victim’s murder, the defendant
told them that, on the night of the victim’s murder, he and A had traveled
directly from Boston to a nightclub in Norwich located approximately
twelve miles away from the café, thereby indicating that he and A were
not present at the café at the time of the murder. The defendant and
A were subsequently charged with murder and conspiracy to commit
murder, but the conspiracy charges were dismissed prior to trial. The
trial court granted the state’s motion to join the cases against the defen-
dant and A for trial. At trial, A’s girlfriend, E, testified that A told her
that he had shot someone on the night the victim was killed. Bullet
casings from the scene of the shooting at the defendant’s apartment and
from the murder scene were submitted to the state forensic laboratory.
A ballistics analyst, P, examined the evidence and generated a written
report containing his findings. S, who also was employed at the labora-
tory, served as a technical reviewer of P’s report. P died before trial
and was therefore unavailable to testify. The state subsequently sought
to admit testimony from S, and the court denied the defendant’s motion
to preclude S’s testimony. The jury found the defendant guilty of murder
as a principal or an accessory. The Appellate Court affirmed the defen-
dant’s conviction, and the defendant, on the granting of certification,
appealed to this court. Held:
1. The Appellate Court correctly concluded that the trial court had not
abused its discretion in joining the defendant’s case with A’s case for
trial: the state’s case against the defendant and the state’s case against
A both arose from the shooting death of the victim, most of the state’s
evidence would have been admissible against both the defendant and
A if their cases had been tried separately, and the defendant’s and
A’s defenses were not antagonistic because each served as the other’s
principal alibi witness, the defendant and A both having claimed that
they were together at a certain nightclub at the time of the shooting;
moreover, the defendant could not prevail on his claim that joinder was
improper on the ground that E’s testimony regarding A’s admission that
he had shot someone on the night of the victim’s murder could not have
been admitted into evidence against the defendant under the coconspira-
tor exception to the hearsay rule, because, contrary to the defendant’s
claim, that hearsay exception is applicable even in cases, such as the
present one, in which the defendant is not facing a conspiracy charge
at the time of trial.
2. The defendant could not prevail on his unpreserved claim that the admis-
sion into evidence of certain information regarding the location of his
cell phone (CSLI) around the time of the victim’s murder violated his
fourth amendment rights insofar as the police obtained that information
without a warrant: the admission of the defendant’s CSLI was harmless
because evidence other than the defendant’s CSLI placed the defendant
close to the crime scene at the time of the victim’s murder, including
CSLI from the cell phone of A, who maintained at trial that he and the
defendant were together the entire evening, and there was additional
evidence from which the jury could have inferred that the defendant
and A had lied about being at the Norwich nightclub at the time of the
murder, including testimony from a witness that he saw the defendant
and a man matching A’s description entering that nightclub fifteen to
twenty minutes after the witness was told that the victim had been shot;
moreover, there was evidence that the defendant and A were driving
in a rented silver vehicle on the night of the murder, and witnesses
testified that a man matching A’s description ran from the scene of the
shooting and entered a vehicle matching the description of the rented
vehicle, the defendant’s and A’s DNA were found in that vehicle, and
a substance found in the interior of that vehicle possessed genetic
characteristics similar to those of the victim.
3. Although the Appellate Court incorrectly concluded that the defendant’s
right to confrontation was not violated when the trial court allowed S,
an employee of the state forensic laboratory to testify about certain
findings made by P, a ballistics analyst with the same laboratory who
was unavailable to testify at the defendant’s trial, the admission of S’s
testimony was harmless beyond a reasonable doubt:
a. The defendant’s constitutional right to confrontation was violated
when the trial court allowed S to testify about certain of P’s findings
regarding the ballistics evidence in the case, the defendant having been
deprived of the opportunity to cross-examine P with respect those find-
ings; although S was asked about his own analysis and conclusions in
connection with his independent review of the ballistics evidence, S was
also asked during direct examination about certain evidence that P had
reviewed, and about which P had made findings, but that S had no
recollection of reviewing himself, and, because, in those instances, S
relied solely on P’s findings rather than his own, the state indirectly
communicated P’s findings to the jury through S’s testimony.
b. The admission of S’s testimony about P’s findings was harmless beyond
a reasonable doubt, as S’s testimony was cumulative of other evidence,
including S’s testimony regarding his analysis and conclusions based on
his independent review of the evidence, from which the jury reasonably
could have concluded that the firearm that the defendant used to fire
back at the victim at the defendant’s apartment was the same weapon
that was used to kill the victim; moreover, other evidence presented at
trial provided the jury with a strong evidentiary basis to conclude that
the defendant had ready access to the type of firearm that was used to
murder the victim, and there was other compelling evidence of the
defendant’s guilt, including DNA evidence, motive, and evidence that
placed the defendant close to the café at the time of the victim’s murder.
Argued October 14, 2021—officially released April 12, 2022
Procedural History
Substitute information charging the defendant with
the crimes of murder and conspiracy to commit murder,
brought to the Superior Court in the judicial district of
New London, where the court, Jongbloed, J., granted
the defendant’s motion to dismiss the charge of conspir-
acy to commit murder and granted the state’s motion
to consolidate for trial the defendant’s case with that
of a codefendant; thereafter, the case was tried to the
jury before A. Hadden, J.; subsequently, the court, A.
Hadden, J., denied the defendant’s motion to preclude
certain evidence; verdict and judgment of guilty, from
which the defendant appealed to this court; thereafter,
the case was transferred to the Appellate Court, Lavine,
Sheldon and Harper, Js., which affirmed the trial court’s
judgment, and the defendant, on the granting of certifi-
cation, appealed to this court. Affirmed.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, former
state’s attorney, and Paul J. Narducci, state’s attorney,
for the appellee (state).
Charles D. Ray, Dana M. Delger, pro hac vice, M.
Christopher Fabricant, pro hac vice, Don O. Burley,
pro hac vice, Barbara E. Butterworth, pro hac vice,
Jessica L. Hannah, pro hac vice, and Alexander E.
Harding, pro hac vice, filed a brief for the Innocence
Project, Inc., as amicus curiae.
Opinion
KAHN, J. The defendant, Gerjuan Rainer Tyus,
appeals from the judgment of the Appellate Court,
which affirmed his conviction of murder in violation of
General Statutes §§ 53a-54a (a) and 53a-8. In this appeal,
the defendant claims that (1) the Appellate Court incor-
rectly concluded that the trial court had not abused its
discretion in joining the defendant’s case with that of his
codefendant, Darius Armadore, because the evidence
in both cases was cross admissible, (2) his fourth
amendment rights were violated under Carpenter v.
United States, U.S. , 138 S. Ct. 2206, 201 L. Ed.
2d 507 (2018), when the police obtained his cell site
location information (CSLI) without a warrant sup-
ported by probable cause, and (3) the Appellate Court
incorrectly concluded that the defendant’s right to con-
frontation was not violated when the trial court allowed
a state’s firearms examiner to testify about the findings
of a second firearms examiner, who was deceased and,
thus, unavailable to testify at trial. The state disagrees
with each of these claims and asserts, in the alternative,
that any error was harmless. For the reasons that follow,
we agree that the Appellate Court correctly concluded
that the trial court had not abused its discretion in
joining the defendant’s case with the codefendant’s case
and that the violations of the defendant’s constitutional
rights were harmless beyond a reasonable doubt. Accord-
ingly, we affirm the judgment of the Appellate Court.
The following facts, which the jury reasonably could
have found from the evidence admitted at trial, and
procedural history are relevant to our review of the
defendant’s claims. In December, 2006, the defendant
was involved in an ongoing dispute with the victim,
Todd Thomas, over jewelry that the victim’s brother
had given to the defendant. The victim demanded that
the defendant return the jewelry, but the defendant
refused to do so unless the victim paid him $10,000.
The victim’s girlfriend, Devena Colebut, told the
police that, after the victim had requested that the jew-
elry be returned, she and the victim were driving in the
victim’s white Lexus in New London. She recognized the
defendant’s vehicle, a blue Range Rover, which began
to follow the Lexus. Soon after, she heard three or four
gunshots, and the victim pushed her down. The victim
made several turns in an attempt to evade the Range
Rover.1
On December 3, 2006, the victim drove by the defen-
dant’s apartment on Willetts Avenue in New London as
a passenger in the white Lexus, which was registered
to his wife. The victim fired several gunshots from a
.38 caliber firearm, striking the defendant in the leg and
the back. The defendant fired gunshots back at the
victim with a nine millimeter firearm. The defendant’s
acquaintance, Rashard Johnson, who was present at the
scene of that shooting, told the police that the defendant
had a gun that he thought might be a nine millimeter
firearm. Five nine millimeter cartridge casings were
subsequently recovered from the scene of the shooting
on Willetts Avenue. Those casings were found in front
of 28 Willetts Avenue, the very same location the defen-
dant later identified to the police on a hand drawn map
as the place he had been standing. Several casings from
a .38 caliber firearm were found farther down the street,
in front of 24 Willetts Avenue from the location where
the victim had fired. Later that same day, while the
defendant was being treated for his wounds at the hospi-
tal, his close friend, Armadore, visited the defendant at
the hospital and was overheard to say, ‘‘we’re gonna
get them niggas . . . .’’2
On December 15, 2006, the defendant’s then girlfriend,
Takeisha Betts, went with the defendant to rent a silver
Chevrolet Impala and listed herself and the defendant
as authorized drivers of that vehicle.3 The defendant
and Armadore drove this rental vehicle to Boston, Mas-
sachusetts, at approximately 7 p.m. on December 22,
2006. While in Boston, the defendant and Armadore
visited family and then picked up three women. One
of the women subsequently refused to return to Con-
necticut with them, so the defendant and Armadore
drove the other two women back to Connecticut in the
silver Impala.
That evening, the victim was at Ernie’s Café on Bank
Street in New London. Kevin Thorne, an acquaintance
of the defendant, testified that he was at Ernie’s Café
around that time and that, while he was there, he and
the defendant communicated several times over their
cell phones in order to arrange a marijuana sale. Shortly
after midnight, the victim was shot in the head while
he was standing outside of the front entrance of Ernie’s
Café smoking a cigarette. Thorne was outside of the
bar and near the victim at the time of the shooting, and
his phone records show that he was on the phone with
the defendant around that time.
Witnesses observed a light-skinned African American
male wearing a hooded sweatshirt fleeing the scene of
the crime toward a municipal parking lot on Golden
Street, where he entered the passenger side of a silver
vehicle that was waiting there with its motor running.
The vehicle immediately sped away. The victim was
transferred to Lawrence + Memorial Hospital in New
London and was pronounced dead upon arrival.
After the shooting, the defendant and Armadore arrived
at Bella Notte, a nightclub in Norwich located approxi-
mately twelve and one-half miles north of Ernie’s Café.
The defendant elected to testify at trial and asserted
that he and Armadore had driven straight from Boston
to Bella Notte, and that they were there at the time the
victim was shot. However, CSLI from two cell phones
belonging to the defendant and one cell phone belong-
ing to Armadore showed that they were in New London
at the time of the victim’s death. Further, a state’s wit-
ness, Eduardo Guilbert, testified that he saw the defen-
dant and a man matching Armadore’s description
entering Bella Notte sometime after Guilbert received a
phone call informing him that the victim had been shot.4
A few hours later, the defendant dropped Armadore
off at the apartment Armadore shared with his then
girlfriend, Ritchae Ebrahimi. At trial, Ebrahimi testified
that, after Armadore arrived at their home, they argued
over his having been with other women that evening,
and that he told her he had shot someone that night.
The police recovered one nine millimeter cartridge
casing from the scene of the December 23, 2006 shoot-
ing at Ernie’s Café. Ballistics evidence showed that this
cartridge casing had been fired from the same firearm
as all five of the nine millimeter cartridge casings that
were recovered in front of 28 Willetts Avenue at the
scene of the December 3, 2006 shooting.
The police also recovered the silver Impala that the
defendant and his girlfriend rented, after it was returned
to a rental car company in New London. The police
then searched that vehicle for evidence related to the
shooting. In addition to both the defendant’s and Arm-
adore’s DNA, a red, bloodlike substance found on the
interior of the Impala’s front passenger door possessed
genetic characteristics similar to that of the victim’s.
Angela Przech, an employee at the state forensics labo-
ratory, noted that a bloodlike substance, although not
blood, could be skin cells, saliva, sweat, or brain tissue.
Both the defendant and Armadore were interviewed
by the police relating to their whereabouts during the
night of and at the time of the shooting. During his
initial interview with the police, the defendant stated
that he and Armadore arrived at Bella Notte before
11:30 p.m. and that he did not see anyone he knew at
Bella Notte. In a subsequent interview, however, the
defendant said that he recognized a female friend at
Bella Notte. Further, during an interview with the police
shortly after the shooting, the defendant stated that he
and Armadore had driven to Boston in a black car, but,
after returning to Connecticut, they exchanged it for a
rented silver car. In his March, 2008 interview with the
police, the defendant stated that he and Armadore drove
to Boston in a rental car. During his interview with the
police in December, 2006, Armadore stated that he and
the defendant traveled to Boston in a silver Impala to
visit family. Both the defendant and Armadore testified
at trial that they did not recall telling the police that they
had ridden in a silver Impala that evening. Specifically,
Armadore denied telling the police that he ever had
ridden in a silver Impala with the defendant on the
evening in question. The jury, however, was presented
with forensic evidence showing that both Armadore
and the defendant had been inside of the silver Impala
rented by the defendant and his girlfriend. Throughout
the investigation and even during their trial testimony,
both the defendant and Armadore maintained that they
were together at all times that evening and night.
On November 20, 2012, the defendant and Armadore
were arrested and charged with murder in violation of
§ 53a-54a and conspiracy to commit murder in violation
of § 53a-54a and General Statutes § 53a-48. The conspir-
acy charges were later dismissed as to both defendants
on the ground that they were barred by the statute of
limitations. The state then filed long form informations
charging the defendant and Armadore with murder,
both as a principal and as an accessory, in violation of
§§ 53a-54a (a) and 53a-8.
The state subsequently filed a motion to join for trial
the cases against the defendant and Armadore. The
trial court granted that motion, over the objections of
counsel, and the case was tried before a single jury,
which returned guilty verdicts as to both the defendant
and Armadore.5 The court sentenced the defendant to
a term of fifty-five years of incarceration.
The defendant appealed from the judgment of convic-
tion to this court, which transferred the appeal to the
Appellate Court.6 Before the Appellate Court, the defen-
dant claimed ‘‘(1) that the trial court abused its discre-
tion in granting the state’s motion to join his case for
trial with that of . . . Armadore; (2) that he was
deprived of his constitutional right to confrontation
when the state’s firearms examiner was permitted to
testify regarding the findings of another firearms exam-
iner, who was deceased, and thus unable to testify at
trial; and (3) that the court erred in denying his request
for a limiting instruction to the jury concerning the
testimony of the state’s firearms examiner.’’ State v.
Tyus, 184 Conn. App. 669, 670–71, 195 A.3d 737 (2018).
The Appellate Court disagreed with those claims and,
accordingly, affirmed the trial court’s judgment of con-
viction. Id., 685. This certified appeal followed. See
State v. Tyus, 335 Conn. 907, 227 A.3d 77 (2020). Addi-
tional facts and procedural history are set forth subse-
quently in this opinion as necessary.
The present appeal presents three certified questions:
(1) whether the Appellate Court correctly concluded that
the trial court had not abused its discretion in joining
the defendant’s case with that of Armadore because the
evidence in both cases was cross admissible; (2) whether,
in light of the United States Supreme Court’s recent
decision in Carpenter, the defendant’s fourth amend-
ment rights were violated when the police obtained his
historical CSLI without a warrant; and (3) whether the
Appellate Court correctly concluded that the defen-
dant’s right to confrontation was not violated when the
trial court allowed a substitute firearms examiner to
testify about the findings of the primary examiner, who
was unable to testify at trial.7 We address these three
claims in turn.
I
The defendant first claims that the Appellate Court
incorrectly concluded that the trial court had not abused
its discretion in joining the defendant’s case with that
of Armadore’s case because the evidence in both cases
was cross admissible.8 We disagree.
The following additional facts and procedural history
are relevant to our consideration of this claim. Before
trial, the state filed a motion for joinder of the defen-
dant’s case with Armadore’s for trial pursuant to Prac-
tice Book § 41-19. The state argued that joining the
cases would promote judicial economy because the
witnesses, physical evidence, and scientific evidence
presented for each case would be identical. The state
also argued that the defendant’s and Armadore’s
defenses would not be antagonistic, and, therefore, nei-
ther would suffer substantial injustice by having their
cases tried together.
In an objection to the state’s motion for joinder,
defense counsel argued that the defendant would be
substantially prejudiced by joining his case with Arm-
adore’s because Ebrahimi’s testimony that Armadore
told her he had shot someone on December 23, 2006,
would constitute inadmissible hearsay against him. Spe-
cifically, counsel argued that the only way the state
could introduce Armadore’s confession against the defen-
dant would be pursuant to the coconspirator exception
to the hearsay rule but that this exception would not
apply because the conspiracy charge against the defen-
dant had been dismissed. The trial court heard argu-
ment on the motion for joinder and orally granted that
motion, finding that a joint trial would not be unfairly
prejudicial to either the defendant or to Armadore.
On appeal, the defendant renews his claim that the
joinder of his case with Armadore’s case was improper
because Armadore’s confession to his girlfriend was
not admissible against him under the coconspirator
exception to the hearsay rule because the conspiracy
charges against him had been dismissed. He, thus,
argues that its introduction and use in his joint trial with
Armadore resulted in unfair prejudice. The Appellate
Court rejected this claim, reasoning that it was based
on the erroneous legal premise that a coconspirator’s
statements are only admissible in criminal cases involv-
ing conspiracy charges. State v. Tyus, supra, 184 Conn.
App. 678–79. The Appellate Court concluded that,
because the defendant provided no other basis for the
objection to the joinder, the trial court did not err in
joining the cases for trial. Id., 679. We agree with the
well reasoned decision of the Appellate Court on this
particular point and are, thus, unpersuaded by the
defendant’s claim.
As the Appellate Court aptly noted, Practice Book
§ 41-19 provides that ‘‘[t]he judicial authority may, upon
its own motion or the motion of any party, order that
two or more informations, whether against the same
defendant or different defendants, be tried together.’’
This court has observed that ‘‘[t]he argument for joinder
is most persuasive when the offenses are based [on]
the same act or criminal transaction, since it seems
unduly inefficient to require the state to resolve the
same issues at numerous trials. . . . In contrast, when
the cases are not of the same character, the argument
for joinder is far less compelling because the state must
prove each offense with separate evidence and wit-
nesses [thus] eliminat[ing] any real savings in time or
efficiency which might otherwise be provided by a sin-
gle trial.’’ (Internal quotation marks omitted.) State v.
LaFleur, 307 Conn. 115, 157, 51 A.3d 1048 (2012). Fur-
ther, ‘‘[a] joint trial expedites the administration of jus-
tice, reduces the congestion of trial dockets, conserves
judicial time, lessens the burden [on] citizens who must
sacrifice both time and money to serve [on] juries, and
avoids the necessity of recalling witnesses who would
otherwise be called to testify only once.’’ (Internal quo-
tation marks omitted.) State v. Booth, 250 Conn. 611,
622, 737 A.2d 404 (1999), cert. denied sub nom. Brown
v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L.
Ed. 2d 471 (2000).
Although joint trials may serve to conserve judicial
resources, we note that trials may not be joined if a
‘‘substantial injustice is likely to result unless a separate
trial be accorded.’’ State v. White, 229 Conn. 125, 158,
640 A.2d 572 (1994). ‘‘A separate trial will be ordered
[when] the defenses of the accused are antagonistic,
or evidence will be introduced against one which will
not be admissible against others, and it clearly appears
that a joint trial will probably be prejudicial to the rights
of one or more of the accused.’’ (Internal quotation
marks omitted.) State v. Booth, supra, 250 Conn. 620.
We also note that ‘‘[t]he phrase prejudicial to the rights
of the [accused] means something more than that a
joint trial will probably be less advantageous to the
accused than separate trials.’’ (Internal quotation marks
omitted.) Id.Further, ‘‘we will reverse a trial court’s ruling on
joinder only [when] the trial court commits an abuse
of discretion that results in manifest prejudice to one
or more of the defendants.’’ State v. Vinal, 198 Conn.
644, 649, 504 A.2d 1364 (1986). ‘‘[I]t is the defendant’s
burden on appeal to show that joinder was improper
by proving substantial prejudice that could not be cured
by the trial court’s instructions to the jury . . . . [I]n
deciding whether to [join informations] for trial, the trial
court enjoys broad discretion, which, in the absence of
manifest abuse, an appellate court may not disturb.’’
(Citation omitted; internal quotation marks omitted.)
State v. Devon D., 321 Conn. 656, 665, 138 A.3d 849(2016).
In the present case, the state’s case against the defen-
dant arose from the same criminal incident as its case
against Armadore, namely, the shooting death of the
victim. Further, at the time of the trial, most of the
state’s evidence would have been admissible against
both the defendant and Armadore had their cases been
tried separately. Finally, the defendant’s and Armadore’s
defenses to the charges were not antagonistic. Indeed,
each served as the other’s principal alibi witness, as
both claimed that they were together at Bella Notte at
the time of the shooting.
Defense counsel’s only opposition to joinder before
the trial court, and the basis for the defendant’s related
claim of error before the Appellate Court and in the
present appeal, is that Armadore’s confession that he
shot someone could only have been admitted into evi-
dence against the defendant under the coconspirator
exception to the hearsay rule if he was facing a conspir-
acy charge. Counsel claimed that this exception could
not possibly apply in the defendant’s case because the
conspiracy charges against both him and Armadore
were barred by the statute of limitations. The defen-
dant’s argument, in fact, assumed that Armadore’s con-
fession would have been admitted against the defendant
under the coconspirator exception to the hearsay rule
had his conspiracy charge remained pending.9 Defense
counsel asserted no other evidentiary or other basis for
excluding Armadore’s confession, and counsel neither
objected to Ebrahimi’s testimony regarding Armadore’s
confession at trial nor requested the issuance of a lim-
iting instruction to the jury.
Thus, the defendant’s argument that joinder was
improper rests squarely on his contention that the
absence of a conspiracy charge made Ebrahimi’s testi-
mony about Armadore’s confession inadmissible against
him. As the Appellate Court correctly concluded, this
argument must fail as a matter of law. State v. Tyus,
supra, 184 Conn. App. 678–79. Section 8-3 of the 2009
edition of the Connecticut Code of Evidence provides
in relevant part: ‘‘The following are not excluded by
the hearsay rule, even though the declarant is available
as a witness:
‘‘(1) Statement by a party opponent. A statement that
is being offered against a party and is . . . (D) a state-
ment by a coconspirator of a party while the conspiracy
is ongoing and in furtherance of the conspiracy . . . .’’
(Emphasis omitted.)
We agree with the Appellate Court that neither the
plain language of this rule, nor the common law it is
based on, limits the application of the exception only
to criminal cases involving charges of conspiracy. See
Conn. Code Evid. (2009) § 8-3 (1), commentary (‘‘[t]he
[hearsay exception for statements of coconspirators]
is applicable in civil and criminal cases alike’’); see also
State v. Marion, 175 Conn. 211, 219–20 n.8, 397 A.2d
533 (1978) (noting that application of coconspirator
exception to hearsay rule requires prima facie showing
of existence of conspiracy); Cooke v. Weed, 90 Conn.
544, 550, 97 A. 765 (1916) (noting that statement made
by alleged coconspirator of defendant was ‘‘admissible
under the [well settled] rule relating to the declarations
of coconspirators’’ in civil trial for damages when defen-
dant had not been charged with conspiracy). Because
this was the defendant’s only basis before the trial court
for claiming that his case should not have been joined
with Armadore’s for trial, we conclude that the Appel-
late Court did not err in determining that the trial court’s
joinder of the defendant’s and Armadore’s cases was
proper.
II
We now turn to the first of the defendant’s constitu-
tional claims. The defendant claims that his constitu-
tional rights were violated when the police obtained
three days of his CSLI without a warrant. The state
responds by arguing that the admission of the defen-
dant’s CSLI into evidence was not error, but, if it was,
that error was harmless. Because we ultimately agree
with the state that the admission of the CSLI was harm-
less beyond a reasonable doubt, we need not decide
whether it was an error.
The defendant claims for the first time10 that, in light
of the United States Supreme Court’s recent decision in
Carpenter, his fourth amendment rights were violated
when the police obtained three days of his CSLI without
a warrant. Carpenter held that, under the fourth amend-
ment to the United States constitution, ‘‘the [g]overn-
ment must generally obtain a warrant supported by
probable cause’’ before acquiring CSLI; Carpenter v.
United States, supra, 138 S. Ct. 2221; because individu-
als maintain ‘‘a legitimate expectation of privacy in the
record[s] of [their] physical movements as captured
through CSLI.’’ Id., 2217. The defendant thus argues
that his constitutional rights were violated when the
police obtained his CSLI without a warrant. The state
argues that Carpenter did not conclude whether CSLI
collection of less than seven days without a warrant
constitutes a search, and, therefore, because only three
days of CSLI were obtained in the present case, the
defendant’s rights were not violated.
Additional facts and procedural history are required
to resolve this claim. Approximately two weeks after
the victim’s murder, Detective Franklin S. Jarvis of the
New London Police Department filed ex parte orders,
pursuant to General Statutes (Rev. to 2007) § 54-47aa
(b), to compel the disclosure of historical CSLI for two
cell phones belonging to the defendant, and one belong-
ing to Armadore from the day of the murder to the day
after the murder. At the time, § 54-47aa (b) required only
‘‘a reasonable and articulable suspicion that a crime
has been or is being committed’’ to obtain such histori-
cal CSLI. The orders were subsequently granted and the
records were submitted to Detective Richard Curcuro
of the New London Police Department. Those records
were then sent to James J. Wines, an agent with the
Federal Bureau of Investigation’s cellular analysis sur-
vey team, who analyzed the CSLI and prepared a slide-
show presentation with his analysis. Neither defense
counsel nor Armadore’s counsel sought to suppress
Wines’ expert testimony or his slideshow containing
the CSLI, which were admitted without objection.11
Because the CSLI evidence provided a comprehen-
sive chronicle of the cell phone users’ past physical
movements, the data showed that all three phones acti-
vated cell towers in New London between approxi-
mately 12:04 and 12:15 a.m., within minutes of when a
911 call was received at 12:09 a.m., reporting the shoot-
ing of the victim. Specifically, both of the defendant’s
phones activated cell sites west of the Thames River
in New London, approximately 0.4 miles from Ernie’s
Café, between 12:04 a.m. and 12:13 a.m. Armadore’s
phone activated a cell site east of the Thames River,
approximately three miles from Ernie’s Café, at 12:15
a.m. The evidence also showed that the cell phones
activated cell towers north of New London from approx-
imately 12:42 to 12:44 a.m., and activated a cell tower
farther north near Bella Notte, between approximately
1:12 and 1:55 a.m.
Because the defendant’s claim related to the admis-
sion of CSLI is unpreserved, we look to the familiar
test set forth in 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). In order for a
defendant to prevail under that test, he or she must
show that ‘‘(1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental 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.’’ (Footnote omit-
ted.) State v. Golding, supra, 239–40; see In re Yasiel
R., supra, 781 (modifying third prong of Golding). ‘‘The
first two [prongs of Golding] involve a determination
of whether the claim is reviewable; the second two . . .
involve a determination of whether the defendant may
prevail.’’ (Internal quotation marks omitted.) State v.
Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert.
denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110(2005).
Even if we assume, without deciding, that the defen-
dant’s Carpenter claim is reviewable under the first two
prongs of Golding and that a constitutional violation
existed under the third prong,12 it fails under the fourth
prong. For the reasons set forth subsequently in this
opinion, we conclude that the state has sustained its
burden of demonstrating that any claimed error by the
trial court in admitting the CSLI evidence was harmless
beyond a reasonable doubt. See State v. Armadore, 338
Conn. 407, 437, 258 A.3d 601 (2021) (‘‘[i]t is well settled
that constitutional search and seizure violations are not
structural improprieties requiring reversal, but rather,
are subject to harmless error analysis’’ (internal quota-
tion marks omitted)). As a result, the defendant’s consti-
tutional claim related to the admission of his CLSI data
must fail.
We begin with the applicable standard of review.
‘‘Whether any error is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the evidence on the trier of fact and the result
of the trial. . . . If the evidence may have had a ten-
dency to influence the judgment of the jury, it cannot
be considered harmless [beyond a reasonable doubt].’’
(Internal quotation marks omitted.) Id. Thus, we begin
our analysis of that question by placing those pieces of
evidence in the context of the other evidence admitted
at trial.
First, even without the evidence of the defendant’s
historical CSLI, there was other compelling evidence
admitted at trial that placed the defendant close to the
scene of the crime at the time of the shooting. The
historical CSLI from Armadore’s cell phone was admit-
ted into evidence and was relied on by Wines, who
testified that this cell phone was located in New Lon-
don, approximately three miles from Ernie’s Café,
minutes after the 911 call was received that reported
the shooting. See id., 438–47 (holding that criminal
defendant does not have privacy right in his codefen-
dant’s CSLI, and, thus, does not have standing to chal-
lenge admission of that evidence). Armadore specifically
testified at trial that he had this cell phone with him
throughout the night of the shooting and that he was
receiving calls on it. Both the defendant and Armadore
readily admitted to the police, and, indeed, even main-
tained at trial, that they were together on the night the
victim was shot and killed. The confluence of these two
pieces of evidence constitutes highly persuasive proof
that puts the defendant precisely where he claimed not
to be at the time of the shooting, namely, in the city of
New London. This evidence directly and categorically
contradicts the defendant’s assertion that both he and
Armadore drove directly from Boston to Bella Notte
on the night of the murder.
Even without CSLI, there was additional evidence
presented from which the jury could have reasonably
inferred that the defendant and Armadore had lied
about being at Bella Notte when the shooting occurred,
further strengthening the state’s case. As stated pre-
viously in this opinion, Guilbert testified at trial that
he had witnessed the defendant and a man matching
Armadore’s description enter Bella Notte approximately
fifteen to twenty minutes after Guilbert received a
phone call informing him that the victim had been shot.
Thus, records of the defendant’s historical CSLI were
cumulative of other evidence showing that the defen-
dant was not at Bella Notte at the time of the shooting,
as he claimed.
Still other circumstantial evidence indicative of the
defendant’s guilt was presented by the state at trial.
There was evidence that the defendant and Armadore
went to Boston on the night of the shooting in a rented
silver Impala. Multiple witnesses testified that, immedi-
ately after the shooting, a man fitting Armadore’s descrip-
tion ran from the scene of the shooting and entered the
passenger side of a running, silver vehicle matching the
appearance of the defendant’s rented Impala. Both the
defendant’s and Armadore’s DNA were found in the
Impala, even though Armadore testified at trial that he
had never been in that vehicle. Additionally, and per-
haps more persuasively, a red, bloodlike substance con-
sistent with being either skin cells, saliva, sweat, or
brain tissue, found on the interior of the Impala’s front
passenger door, possessed genetic characteristics simi-
lar to those of the victim. The defendant’s own contra-
dictory statements to the police during the course of
the investigation are particularly damaging, as they are
indicative of an effort to hide his role in the shooting.
Further, both the defendant and Armadore testified that
they were together the entire evening. The state also
presented evidence that, hours after the shooting, Arm-
adore confessed to his girlfriend, Ebrahimi, that he had
shot someone that night.
Finally, the state presented particularly strong evi-
dence of motive in the present case. The defendant and
the victim had an ongoing dispute over the return of
certain jewelry that was in the defendant’s possession.
Specifically, there was evidence that the defendant,
while riding in his Range Rover, previously shot at the
victim and his girlfriend. Just three weeks prior to the
victim’s death, the victim drove by the defendant’s resi-
dence on Willetts Avenue and shot the defendant in the
leg and back. While visiting the defendant at the hospital
where he was receiving treatment for those wounds,
Armadore stated an intention to seek revenge for the
victim’s shooting of the defendant.
Because the admission of the defendant’s historical
CSLI was cumulative of other evidence contained in
the record, and because the state presented other signif-
icant evidence of motive, intent, and the defendant’s
participation in the crime, we conclude that the state
met its burden of showing that the admission of that
evidence was harmless beyond a reasonable doubt.
III
The defendant next claims that the Appellate Court
erred in concluding that his right to confrontation was
not violated by the testimony of the substitute firearms
examiner, who testified about the findings of the pri-
mary examiner. We agree with the defendant that the
Appellate Court erred by not determining that a consti-
tutional violation occurred; however, we conclude that
the violation was harmless beyond a reasonable doubt.
A
The following additional facts and procedural history
are relevant to our review of this claim. As stated pre-
viously in this opinion, the police recovered five nine
millimeter casings from the Willetts Avenue shooting
and one nine millimeter casing from the scene of the
victim’s death. Those casings were then submitted to
the state forensic laboratory, where a ballistics analyst,
Gerald Petillo, examined the evidence and generated a
written report containing his conclusions. James Ste-
phenson, who was also employed at the laboratory at
the time, was the ‘‘technical reviewer’’ of Petillo’s
report. As part of his technical review, Stephenson also
physically examined the casings recovered from the
two shootings.
Petillo died prior to trial and, therefore, was unavail-
able to testify. The state subsequently sought to admit
testimony from Stephenson in lieu of Petillo. In response,
the defendant filed a motion in limine, seeking to pre-
clude Stephenson from testifying and also to exclude
any evidence related to the firearms examination con-
ducted in this case. In that motion, the defendant argued
that Stephenson would be testifying as a surrogate
expert based on Petillo’s examination, which would
violate the defendant’s right to confrontation under Bul-
lcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011), and Melendez-Diaz v. Massa-
chusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d
314 (2009). The state opposed the defendant’s motion,
arguing that there was no confrontation clause violation
because Stephenson conducted ‘‘his own review and
comparison of the actual physical evidence . . . .’’ Ste-
phenson testified, outside of the jury’s presence, that
he reviewed Petillo’s findings but also conducted his
own examination of the evidence and reached his own
conclusions. The court then denied the motion to pre-
clude Stephenson’s testimony.
At trial, Stephenson testified that, when analysts at
the state forensic laboratory examine shell casings, they
look for class characteristics such as the manufacturer
and caliber designations to determine from what types
of firearms they may have been fired. They then look
for ‘‘individual marks that occur only during the firing
process’’ that indicate whether the casings came from
a sole source. After finding the marks, the objects can
then be viewed through a comparison microscope to
look ‘‘for those areas of agreement that occurred during
the firing process to determine whether two objects were
fired from the same source.’’
Stephenson also testified about his role as a technical
reviewer. He noted that the primary examiner, Petillo,
had conducted an examination of the casings using a
comparison microscope. Stephenson then testified that
his role as technical reviewer was to look at the same
evidence and ‘‘to determine whether they came to the
same conclusions during the examination process.’’
Specifically, Stephenson noted that the ‘‘[t]echnical
reviewer was the position of signing off after the . . .
review of all the . . . evidence . . . .’’ He also
expressly stated that, if the technical reviewer dis-
agreed with the primary examiner’s conclusion that
items were fired from the same source, the evidence
would have to be reviewed again, and both reviewers
would have to come to an agreement, or ‘‘it would be
an inconclusive result, because the [technical reviewer]
couldn’t come to the same result as the [primary] exam-
iner had come to during his examination.’’
Stephenson ultimately testified that his own examina-
tion of the .38 caliber casings found near 24 Willetts
Avenue led him to conclude that all of the casings had
been fired from the same firearm. He also opined as to
his scientific conclusion that all of the nine millimeter
casings found near 28 Willetts Avenue were fired from
the same firearm. Finally, Stephenson testified that his
review had also led him to conclude that the nine milli-
meter cartridge casing found at Ernie’s Café was fired
from the same firearm that had fired the nine millimeter
casings found near 28 Willetts Avenue.
On appeal, the defendant claims that the trial court
improperly admitted Stephenson’s testimony in viola-
tion of his sixth amendment right to confrontation
because his testimony was predicated on Petillo’s find-
ings and conclusions. The defendant argues that Pet-
illo’s findings and conclusions constituted testimonial
hearsay and that, because Petillo was unavailable for
cross-examination, Stephenson could not testify as to
Petillo’s conclusions without violating the defendant’s
constitutional right to confrontation. For the reasons
that follow, we agree with the defendant that parts of
Stephenson’s testimony were improperly used as an
implicit conduit for Petillo’s findings.
We begin with the applicable standard of review. ‘‘Under
Crawford v. Washington, [541 U.S. 36, 59, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004)], hearsay statements of
an unavailable witness that are testimonial in nature
may be admitted in accordance with the confrontation
clause only if the defendant previously has had the
opportunity to cross-examine the unavailable witness.’’
State v. Smith, 289 Conn. 598, 618, 960 A.2d 993 (2008).
‘‘Nontestimonial [hearsay] statements, however, are not
subject to the confrontation clause and may be admitted
under state rules of evidence’’ if they fall under a hear-
say exception. Id. A threshold inquiry of whether the
admission of the statement presents a constitutional
due process claim is whether the hearsay statement
was testimonial in nature, which presents a question
of law over which our review is plenary. See, e.g., id.,618–19.
We recently addressed an almost identical claim, also
involving expert testimony by Stephenson, who acted
as a technical reviewer for Petillo in State v. Lebrick,
334 Conn. 492, 521–22, 223 A.3d 333 (2020). In Lebrick,
we held that ‘‘Stephenson’s testimony was admissible,
even if predicated in material part on testimonial hear-
say, as long as the underlying hearsay was not admitted
into evidence or otherwise put before the jury for the
truth of the matter asserted.’’ Id., 527. In that case, we
concluded that, ‘‘[a]lthough the jury was informed that
Stephenson had reviewed ‘a number of reports and
photographs in preparation for [his] testimony,’ the con-
tents of those reports were not presented to the jury.
When the state attempted to elicit information regarding
‘which reports [Stephenson had] reviewed,’ the defen-
dant objected to this line of inquiry, and the trial court
implicitly sustained the defendant’s objection, ruling
that Stephenson’s testimony must be limited to ‘his own
conclusions.’ Thus, the jury was not informed of the
nature of the reports on which Stephenson had relied,
who generated the reports, what information they con-
tained, or whether Stephenson’s expert opinions were
consistent with the reports.’’ Id. As such, we concluded
that the trial court did not err in allowing Stephenson’s
testimony. See id.
Stephenson’s testimony in the present case is, how-
ever, meaningfully different from his testimony in Lebrick.
In the present case, Stephenson testified before the jury
that, in his role as the technical reviewer of the primary
examiner’s analysis, he reviewed Petillo’s initial notes.
In addition, he informed the jury that, if his independent
conclusions, as a technical reviewer, had not matched
the primary examiner’s (Petillo’s), findings, the results
would have been considered inconclusive. The defen-
dant claims that, from this general testimony, the jury
could have readily inferred that, because the results
reached were not considered inconclusive, Petillo’s
results must have matched Stephenson’s. Although it
is unclear how the jury would have known whether any
aspects of Petillo’s findings were deemed inconclusive
without his actual conclusions or report having been
directly admitted, what made Stephenson’s testimony
in this case problematic was his direct testimony about
Petillo’s findings. During Stephenson’s direct examina-
tion, the prosecutor specifically inquired if he had
reviewed Petillo’s findings as to specific conclusions,
rather than focusing on Stephenson’s own independent
analysis and conclusions. For example, at the outset of
Stephenson’s testimony relating to the examination of
specific cartridges, the following colloquy occurred:
‘‘Q: And who was the original examiner in this particu-
lar case?
‘‘A: . . . Petillo.
‘‘Q: And what was your role with respect to the exami-
nation of those cartridge cases?
‘‘A: Reviewing the cartridge cases in the comparison
microscope to make a determination [as to] whether
his conclusions were correct at the time.
‘‘Q: And did you come to an opinion as to what his
conclusions were?
‘‘A: I did.
‘‘Q. Did you also come to a conclusion as to whether
or not, to a reasonable degree of certainty in the field
of ballistics or firearms examination, as to whether or
not those were all fired from the same clip?
‘‘A: I did.
‘‘Q: And what was your conclusion with respect to
that?
‘‘A: They had been fired in the same firearm.’’
Although Stephenson was asked about his own analy-
sis and conclusions, there were other times during his
direct examination when he was shown other pieces of
evidence, such as two bullets contained in state’s exhib-
its 62 and 116, which he had no recollection of indepen-
dently reviewing. When Stephenson was specifically
asked about that evidence, he relied on Petillo’s find-
ings. Thus, by inquiring directly about Petillo’s report
with respect to particular pieces of evidence that Ste-
phenson did not have any recollection of independently
reviewing, the state indirectly communicated Petillo’s
findings to the jury through Stephenson’s testimony.13
We, therefore, disagree with the Appellate Court that
‘‘the only inculpatory conclusions or statements regard-
ing the firearms evidence that were presented to the
jury were made by Stephenson . . . .’’ State v. Tyus,
supra, 184 Conn. App. 682. Because the defendant was
deprived of the opportunity to cross-examine Petillo
with respect to Petillo’s conclusions, his constitutional
right to confrontation was violated.
B
Having concluded that the trial court committed error
by permitting Stephenson to implicitly testify as to Pet-
illo’s conclusions, we next turn to the question of whether
that particular error requires reversal of the defendant’s
conviction, when considered in the context of the record
as a whole. Because the defendant’s claim is constitu-
tional in nature, the state bears the burden of establish-
ing that this error was harmless beyond a reasonable
doubt. See, e.g., State v. Edwards, 334 Conn. 688, 706–
707, 224 A.3d 504 (2020). ‘‘That determination must be
made in light of the entire record [including the strength
of the state’s case without the evidence admitted in
error]. . . . Additional factors . . . . include the
importance of the challenged evidence to the prosecu-
tion’s case, whether it is cumulative, the extent of cross-
examination permitted, and the presence or absence of
corroborating or contradicting evidence or testimony.’’
(Citation omitted; internal quotation marks omitted.)
Id., 707.
Stephenson’s testimony about Petillo’s findings and
conclusions was redundant to other evidence presented
at trial. First, Stephenson’s testimony about his own
independent observations and conclusions provided
powerful evidence from which the jury could have rea-
sonably concluded that the firearm that the defendant
used to fire back at the victim after the December 3,
2006 shooting was the same weapon used to shoot
and kill the victim three weeks later. Second, even if
Stephenson’s testimony had been omitted in its entirety,
Johnson’s testimony and the physical casings, which
were submitted into evidence at trial, firmly established
the fact that a nine millimeter semiautomatic firearm
was used by the defendant to fire back at the victim
on Willetts Avenue. It is likewise undisputed that a
casing from a nine millimeter semiautomatic firearm
was discovered at the scene of the victim’s murder.
Thus, even without a detailed forensic examination of
the casings admitted into evidence, the jury would still
have had a strong evidentiary basis to conclude that
the defendant had ready access to the type of firearm
that was subsequently used to kill the victim.
As we noted in part II of this opinion, there was also
other compelling evidence, including Armadore’s CSLI
that placed the defendant close to the scene of the
crime at the time of the murder, a getaway car that
resembled the car rented by the defendant, a bloodlike
substance with DNA similar to that of the victim that
was found in that car, and a confession by Armadore.
There was also strong evidence of motive in that the
victim and the defendant had an ongoing dispute over
the return of jewelry in the defendant’s possession. That
feud resulted in two prior shooting incidents, including
one in which the victim shot and wounded the defen-
dant three weeks before his murder.
Because Stephenson’s testimony regarding Petillo’s
conclusions was cumulative of other evidence, and
because the state presented other significant evidence
of intent and of the defendant’s guilt and participation
in the crime, we conclude that the state met its burden
of showing that the admission of that evidence was
harmless beyond a reasonable doubt.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
At trial, Colebut testified that she did not remember any of these events.
In response, the state introduced Colebut’s prior statement to the police
into evidence pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
2
We note that Armadore’s counsel challenged the admission of this state-
ment on appeal by claiming that the witness who overhead this statement
had improperly identified him as the speaker for the first time in court, in
violation of State v. Dickson, 322 Conn. 410, 426, 141 A.3d 810 (2016), cert.
denied, U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017). State v.
Armadore, 186 Conn. App. 140, 153, 198 A.3d 586 (2018), aff’d, 338 Conn.
407, 258 A.3d 601 (2021). The Appellate Court agreed, holding that the
identification was improper but concluding that the error was harmless. Id.,156–58. We note that defense counsel made no objection to the admission
of this statement.
3
Betts and the defendant rented a car because Betts, who was pregnant
at the time, needed a vehicle in order to get to medical appointments. The
defendant was no longer in possession of the blue Range Rover by the time
that the shooting occurred, as it had been taken into evidence by the police
following the prior shooting on Willetts Avenue.
4
Although Guilbert, who had consumed several alcoholic beverages that
night, could not recall the precise time these events occurred and initially
told the police that the defendant may have arrived at Ernie’s Café around
11 p.m., he clearly testified that he had learned of the victim’s death before
the defendant’s arrival. He further testified that the defendant offered to
buy him a drink but that he declined because he was about to leave. He
left and went to the hospital to meet the victim’s family.
5
The jury did not specify whether its verdict against the defendant was
based on principal or accessorial liability.
6
Armadore filed a separate appeal, and his conviction and sentence were
affirmed in State v. Armadore, 338 Conn. 407, 258 A.3d 601 (2021).
7
The defendant also claims that the Appellate Court improperly upheld
the trial court’s refusal to give a limiting instruction concerning the firearms
examiner’s testimony. We agree with the Appellate Court that the trial court’s
general instruction on expert testimony was sufficient to guide the jury in
its assessment of Stephenson’s testimony. See State v. Tyus, supra 184 Conn.
App. 682. As the Appellate Court aptly noted, the defendant’s requested
instruction that ‘‘Stephenson’s opinions in this case are not to be treated
by [the jury] as scientifically definitive’’ and ‘‘that the probability of [Stephen-
son’s] opinion being correct is for [the jury] . . . alone to determine’’ is
substantially similar to the instruction that was actually given. (Internal
quotation marks omitted.) Id., 684–85. The jury was instructed that ‘‘[s]uch
[expert] testimony is presented to you to assist you in your deliberations.
No such testimony is binding upon you, however, and you may disregard
such testimony either in whole or in part. It is for you to consider the
testimony with the other circumstances in the case, and using your best
judgment, determine whether you will give any weight to it, and, if so, what
weight you will give to it. The testimony is entitled to such weight as you
find the expert’s qualifications in his or her field entitle it to receive, and
it must be considered by you, but it is not controlling upon your judgment.’’
(Internal quotation marks omitted.) Id. Thus, the trial court properly
instructed the jury that it alone could assess the credibility of the expert
witnesses, including Stephenson. For this reason, we conclude that this
claim is wholly without merit.
8
In his brief to this court and before the Appellate Court, the defendant
claimed, for the first time, that the admission of ‘‘inflammatory evidence
pertaining [solely] to Armadore’’ unfairly prejudiced [the defendant] because
it made him appear violent and guilty by association. The evidence he
points to relates to Armadore’s testimony about domestic violence incidents
between Armadore and his girlfriend. Defense counsel neither objected to
any of the evidence that the defendant now claims prejudiced him at trial
nor asked the trial court for a limiting instruction regarding that evidence.
Because those claims are not properly preserved, we decline to address
them. See, e.g., State v. Cabral, 275 Conn. 514, 530–31, 881 A.2d 247 (‘‘[t]he
standard for the preservation of a claim alleging an improper evidentiary
ruling at trial is well settled. This court is not bound to consider claims of
law not made at the trial. . . . In order to preserve an evidentiary ruling
for review, trial counsel must object properly. . . . In objecting to evidence,
counsel must properly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection and its real purpose, in
order to form an adequate basis for a reviewable ruling.’’ (Internal quotation
marks omitted.)), cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d
600 (2005).
9
Specifically, as the Appellate Court noted, defense counsel assumed, in
his objection to the state’s motion for joinder, that ‘‘the state will be able
to show that Armadore’s statement was made (1) while the conspiracy was
ongoing and (2) in furtherance of the conspiracy.’’ (Internal quotation marks
omitted.) State v. Tyus, supra, 184 Conn. App. 677 n.5. Counsel also
‘‘assume[d] that the state will also have made the threshold showing of the
existence of a conspiracy in order that this statement [may] be properly
offered, let alone admitted.’’ (Internal quotation marks omitted.) Id.10
Carpenter was decided approximately one month after the defendant’s
appeal was argued before the Appellate Court. As such, the defendant also
claims that, because the rule announced in Carpenter is a new constitutional
rule, it applies to all pending cases, regardless of whether the claim was
preserved at trial. The state argues that the defendant is not entitled to
retroactive application of Carpenter because he did not pursue any claim,
before either the trial court or the Appellate Court, that his CSLI data should
have been suppressed. This court first applied the holding of Carpenter in
State v. Brown, 331 Conn. 258, 202 A.3d 1003 (2019). In Brown, the police
had obtained two months of the defendant’s CSLI pursuant to an ex parte
order. Id., 265–66. The defendant moved to suppress the CSLI. Id., 268. The
appeal in Brown was pending before the Appellate Court when Carpenter
was decided. In Brown, this court applied Carpenter and held that obtaining
CSLI without a warrant violated the defendant’s fourth amendment rights.
Id., 273. Thus, it is clear that we apply the rule from Carpenter retroactively
to cases pending on appeal, subject to review under 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). See Griffith v. Kentucky, 479 U.S.
314, 322, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) (‘‘[A]t a minimum, all
defendants whose cases [are] still pending on direct appeal at the time of
[a law changing] decision should be entitled to invoke the new rule. . . .
[F]ailure to apply a newly declared constitutional rule to criminal cases
pending on direct review violates basic norms of constitutional adjudica-
tion.’’ (Citations omitted; footnote omitted; internal quotation marks
omitted.))
11
We note that there was an objection to the labeling on the printout of
Wines’ slideshow presentation that identified the defendant by name in
relation to the cell phone numbers from which calls were made and received
on the night of the shooting. The trial court sustained the objection, and
the prosecutor had Wines redact the defendant’s name, insofar as it revealed
to whom the cell phone numbers were registered or by whom they were
used. The printout, thus, showed only which cell phone numbers were
activated and where and when they were activated. However, there was
other evidence admitted at trial that established that two of these phone
numbers were connected to a cell phone registered to or used by the defen-
dant and that the other phone number was connected to a cell phone
registered to Armadore.
12
We observe that there may not be a meaningful distinction between the
state’s obtaining more or less than seven days of CSLI without a warrant.
See Carpenter v. United States, supra, 138 S. Ct. 2217 (‘‘time-stamped data
[provides] an intimate window into a person’s life, revealing not only his [or
her] particular movements, but through them his [or her] familial, political,
professional, religious, and sexual associations’’ (internal quotation marks
omitted)). Allowing CSLI collection for a period of three days, in the absence
of compelling reasons or exigent circumstances, may not adequately alleviate
those concerns. See id., 2222. Indeed, several of our sister states have
concluded that obtaining less than seven days of CSLI may constitute a
search for which a warrant is required. See, e.g., Commonwealth v. Wilker-
son, 486 Mass. 159, 165–66, 156 N.E.3d 754 (2020) (‘‘[c]ollecting more than
six hours of CSLI data invades a defendant’s reasonable expectation of
privacy, and, therefore, under the [f]ourth [a]mendment to the United States
[c]onstitution . . . requires a warrant supported by a showing of probable
cause); People v. Simpson, 62 Misc. 3d 374, 380, 88 N.Y.S.3d 763 (2018)
(‘‘this [c]ourt finds that the period of time in Carpenter—seven days—is
less significant to the ultimate decision by the [c]ourt than the underlying
rationale supporting the [c]ourt’s express holding’’); State v. Gibbs, Docket
No. 2017-001846, 2020 WL 4814266, *4 (S.C. App. August 19, 2020) (conclud-
ing that CSLI obtained by authorities over five day period constituted search
under fourth amendment).
13
We recognize that, in some cases in which, due to the passage of time
and the unavailability of the evidence, such as bodily fluids or DNA samples,
a subsequent examiner may by necessity be limited to a review of the
analysis of the original examiner, the subsequent examiner should testify
only as to his or her own independent conclusions based on the review of
the analysis conducted by the prior examiner. See, e.g., Williams v. Illinois,
567 U.S. 50, 56–58, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (expert testimony
did not violate defendant’s right to confrontation when expert reached
independent conclusions after relying on DNA report generated by third-
party laboratory from rape kit). In this case, Stephenson’s direct testimony
was not so limited by the state. By contrast, in Lebrick, Stephenson testified
only about his own conclusions based on comparisons of photographs of
the ballistics evidence, without any reference to Petillo’s conclusions. State
v. Lebrick, supra, 334 Conn. 527. Although defense counsel did cross-examine
Stephenson about Petillo’s findings, this is not a situation in which defense
counsel opened the door to the admission of Petillo’s findings, because the
prosecutor indirectly introduced them during Stephenson’s direct exami-
nation.