State v. Armadore ( 2021 )

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STATE OF CONNECTICUT v. DARIUS ARMADORE
(SC 20248)
McDonald, D’Auria, Kahn, Ecker, Keller and Vertefeuille, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. The defendant and a friend, T, had
driven to a café, where the victim was fatally shot, and subsequently
drove to a nightclub about twelve miles away. Another individual, G,
saw T and a man who matched the defendant’s description enter the
nightclub about fifteen to twenty minutes after G received a phone call
informing him that the victim had been shot. The defendant claimed
that he was at the nightclub at the time of the shooting. After oral
argument before the Appellate Court but before that court released its
decision in the present case, the United States Supreme Court decided
Carpenter v. United States (138 S. Ct. 2206), in which the court held
that the fourth amendment requires the government to obtain a warrant
supported by probable cause before acquiring historical cell site location
information (CSLI), which reveals a cell phone user’s past physical
movements. The Appellate Court thereafter summarily denied the defen-
dant’s motion for permission to file a supplemental brief to raise a new
claim, premised on Carpenter, challenging the admission of certain CSLI
records, which the police had obtained prior to the defendant’s arrest.
The CSLI records of the defendant’s cell phone and the two cell phones
T had with him on the night of the shooting were admitted into evidence
at trial without objection. Relying on the CSLI records of T’s phones,
the state’s expert testified that T’s and the defendant’s cell phones were
located near the café at about the time of the shooting and near the
nightclub shortly thereafter. The Appellate Court upheld the defendant’s
conviction, and the defendant, on the granting of certification, appealed
to this court, claiming, inter alia, that the Appellate Court improperly
had denied his motion for permission to file a supplemental brief. Held:
1. The defendant could not prevail on his claim that the Appellate Court
improperly denied his motion for permission to file a supplemental
brief after oral argument before that court so that he could raise an
unpreserved claim premised on the new constitutional rule announced
in Carpenter, as his claim failed under the fourth prong of State v.
Golding (213 Conn. 233) because the Appellate Court’s failure to permit
the defendant to file a supplemental brief was harmless beyond a reason-
able doubt: generally, an appellate court should grant a request for
supplemental briefing when a party asks it to entertain an unpreserved
claim premised on a newly announced constitutional rule in all but the
clearest of situations in which the claim would fail under one of Golding’s
four prongs, and principles of fairness and equity required the Appellate
Court to exercise its discretion to grant the defendant’s motion; neverthe-
less, the state sustained its burden of demonstrating that any claimed
error was harmless, there having been significant evidence presented
at trial that placed the defendant at the crime scene at the time of the
shooting, including the historical CSLI records from T’s two cell phones,
which placed T at the café around the time of the shooting, T’s testimony
that he had the two cell phones throughout the night, admissions by
both T and the defendant, to the police and at trial, that they were
together that night, and testimony from other witnesses that they had
seen a man fitting the defendant’s description flee the scene of the
shooting and enter a car that matched the appearance of the car T was
driving, and there having been significant evidence linking the defendant
to the victim’s murder, including DNA and ballistics evidence, and the
defendant’s statement to his girlfriend that he had shot someone on
the night of the victim’s murder; moreover, there was no merit to the
defendant’s claim that this court could not consider the CSLI records
of T’s cell phones in determining the strength of the state’s case, as the
defendant lacked standing to challenge the admission of T’s CSLI records
on the ground that such admission violated T’s fourth amendment rights.
2. The trial court properly admitted G’s testimony about a phone call that
he had received from another individual informing him that the victim
had been shot: the Appellate Court incorrectly determined that the
defendant had not adequately preserved his claim that G’s testimony
constituted inadmissible hearsay because, although defense counsel
objected when the prosecutor asked G what was said to G during the
phone call without clarifying that the ground for the objection was
hearsay, the state and the trial court were aware of the basis of the
objection, and, thus, any failure by defense counsel to clarify the ground
for the objection did not deprive the state and the trial court of fair
notice of the defendant’s claim; moreover, G’s testimony was properly
admitted as nonhearsay, as the caller’s statements were not offered for
their truth but, rather, to show their effect on G, specifically, that the
phone call caused G to take certain actions that were relevant to establish
the state’s time line of events; furthermore, even if G’s testimony about
the call constituted inadmissible hearsay, its admission was harmless
because, even if G had not been permitted to testify about what the
caller told him, G’s other testimony, to which defense counsel did not
object, would have led a jury reasonably to infer that the victim had
been shot prior to the defendant’s and T’s arrival at the nightclub, and
because there was other evidence establishing the defendant’s guilt,
including the CSLI records of T’s phones, which, coupled with the defen-
dant’s admission that he was with T on the night of the shooting, demon-
strated that the defendant was near the café at the time of the shooting.
Argued October 20, 2020—officially released March 23, 2021*
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New London and tried to the jury
before A. Hadden, J.; verdict and judgment of guilty,
from which the defendant appealed to this court; there-
after, the case was transferred to the Appellate Court,
which denied the defendant’s motions for permission
to file a late motion for rectification and to file a supple-
mental brief; subsequently, the Appellate Court, Lavine,
Sheldon and Harper, Js., affirmed the judgment of the
trial court, and the defendant, on the granting of certifi-
cation, appealed to this court. Affirmed.
Emily Graner Sexton, assigned counsel, with whom
were Julia K. Conlin, assigned counsel, and, on the
brief, Matthew C. Eagan, assigned counsel, James P.
Sexton, assigned counsel, Megan L. Wade, assigned
counsel, and John R. Weikart, assigned counsel, for the
appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and Paul J. Narducci, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
D’AURIA, J. In this certified appeal, we are again
required to examine the effect of the United States
Supreme Court’s recent decision in Carpenter v. United
States, U.S. , 138 S. Ct. 2206, 201 L. Ed. 2d 507(2018), on a pending case. In Carpenter, the court held
that, under the fourth amendment to the United States
constitution, the government generally must obtain a
warrant supported by probable cause before acquiring
historical cell site location information (CSLI), which
provides a comprehensive chronicle of a cell phone
user’s past physical movements.
The defendant, Darius Armadore, appeals from the
Appellate Court’s judgment affirming his conviction of
murder, as either a principal or as an accessory, in
violation of General Statutes §§ 53a-8 and 53a-54a (a).
Specifically, he claims that the Appellate Court abused
its discretion by denying him permission to file a supple-
mental brief to raise a new claim pursuant to Carpenter,
which was released while his appeal was pending before
that court. He argues that the rule in Carpenter applies
retroactively to pending cases, and, thus, his failure to
raise this claim before the trial court or in his initial
brief to the Appellate Court did not bar review. Addi-
tionally, he claims that the Appellate Court incorrectly
determined that his hearsay claim regarding the testi-
mony of a key state’s witness, Eduardo Guilbert, was
unpreserved.
We agree with the defendant that our courts should
liberally grant motions seeking to file supplemental
briefs to raise claims premised on new constitutional
rules announced during the pendency of a case and
that the Appellate Court should have granted his motion
in the present case. Nevertheless, we conclude that any
error was harmless because the defendant’s Carpenter
claim fails under the fourth prong of 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). Additionally, although we agree with the defen-
dant that the Appellate Court incorrectly determined
that he did not preserve his hearsay claim regarding
Guilbert’s testimony, we agree with the state that the
trial court properly admitted the testimony as nonhear-
say because it was offered to show its effect on the
hearer and that, alternatively, any error was harmless.
Accordingly, we affirm the Appellate Court’s judgment.
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, Gerjuan Rainer
Tyus was involved in an ongoing dispute with the victim,
Todd Thomas, regarding a necklace that the victim’s
brother had given to Tyus but wanted returned. Tyus
refused to return the necklace unless the victim paid
him $10,000.
During the course of this dispute, on December 3,
2006, the victim, who was a passenger in a white Lexus
registered to his wife, fired several gunshots with a .38
caliber firearm at Tyus, who was outside his apartment
on Willetts Avenue in New London, striking him in the
leg and the back. Tyus countered by firing five gunshots
with a nine millimeter firearm at the victim. Five nine
millimeter cartridge casings were recovered from the
scene of the shooting. Later that day, Tyus was treated
for his wounds at a hospital. The defendant, a close
friend of Tyus, whom he considered to be a brother,
later went to the hospital to receive news of Tyus’
condition.1 Although the defendant and Tyus were
aware that the victim was the shooter, neither relayed
this information to the police.
Following the Willetts Avenue shooting, on Decem-
ber 15, 2006, Tyus rented a silver-colored Chevrolet
Impala. It was this vehicle that Tyus and the defendant
used to travel to Boston, Massachusetts, at approxi-
mately 7 p.m. on December 22, 2006. While in Boston,
the defendant and Tyus visited family and then picked
up three women they wanted to bring back to Connecti-
cut in the Impala. When one of the women refused to
return with them, the defendant and Tyus returned to
Connecticut with the other two women.
Later that evening, at approximately 11 p.m., the vic-
tim arrived at Ernie’s Café on Bank Street in New Lon-
don. Shortly after midnight, while the victim stood
outside the front entrance of Ernie’s Café smoking a
cigarette, he was shot in the head. A light-skinned Afri-
can American male wearing a hooded sweatshirt was
observed fleeing the scene of the crime to a municipal
parking lot, where he entered the passenger side of a
silver-colored vehicle that had been waiting there with
its motor running. The vehicle immediately sped away.
The victim was transported to Lawrence + Memorial
Hospital in New London, where he was pronounced
dead upon arrival.
After the shooting, the defendant and Tyus arrived
at Bella Notte, a nightclub in Norwich, approximately
twelve and one-half miles from Ernie’s Café. At trial,
the defendant asserted an alibi defense, testifying that
he and Tyus were at Bella Notte at the time the victim
was shot. Tracking information contained in records
produced by their cell service providers, which were
admitted into evidence without objection at trial, estab-
lished that their three cell phones—Tyus had two cell
phones in his possession and the defendant had one—
had activated cell towers near New London minutes
prior to the shooting. One of Tyus’ cell phones activated
a cell tower in New London near Ernie’s Café approxi-
mately eight times in the minutes before and after a
911 call was received reporting the shooting. Addition-
ally, the cell phones activated cell towers north of New
London, toward Norwich, from approximately 12:42 to
12:44 a.m. and activated a cell tower farther north near
Bella Notte from approximately 1:12 to 1:55 a.m. A few
hours later, Tyus dropped the defendant off at the apart-
ment the defendant shared with his then girlfriend, Rit-
chae Ebrahimi. At trial, Ebrahimi testified that, after
the defendant arrived at the apartment, they argued
over his having been with other women that night, and
that he told her he had shot someone that night.
In addition to the historical CSLI, Tyus and a man
matching the description of the defendant were seen
entering Bella Notte by Guilbert while Guilbert was in
the nightclub’s bar area. Guilbert testified that the two
men arrived after he received a phone call informing
him that the victim had been shot. Guilbert was not
sure of the precise time those events occurred, initially
telling the police that it was at about 11 p.m., which
would have been before the shooting occurred at
Ernie’s Café. See part II of this opinion.
Additionally, the police recovered one nine millime-
ter cartridge casing from the scene of the December
23, 2006 shooting. Ballistics evidence showed that this
cartridge casing had been fired from the same firearm
as the five nine millimeter cartridge casings that were
recovered from the scene of the December 3, 2006
shooting on Willetts Avenue.
In November, 2012, the defendant and Tyus were
arrested and charged with murder in violation of § 53a-
54a.2 The state thereafter filed long form informations
charging the defendant and Tyus each with murder,
both as a principal and as an accessory, in violation of
§§ 53a-8 and 53a-54a (a). The state subsequently filed
a motion to join the cases for trial, which the trial court
granted over the objections of the defendant and Tyus.
The defendant and Tyus were tried together before a
single jury, which returned guilty verdicts as to both
men without specifying whether the verdicts were
based on principal or accessorial liability. The court
sentenced the defendant to a term of sixty years of
incarceration.
The defendant appealed from his conviction to this
court, which transferred the appeal to the Appellate
Court. See General Statutes § 51-199 (c); Practice Book
§ 65-1.3 Before the Appellate Court, the defendant
claimed that ‘‘(1) . . . the trial court abused its discre-
tion in granting the state’s motion to join his case with
the case of his codefendant . . . Tyus; (2) . . . 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 unavailable to testify
at trial; (3) . . . he was deprived of a fair trial when
he was identified for the first time in court by Cindalee
Torres without a prior nonsuggestive identification; and
(4) . . . the court abused its discretion by admitting
certain hearsay statements into evidence.’’ State v. Arm-
adore, 186 Conn. App. 140, 142, 198 A.3d 586 (2018).
After oral argument before the Appellate Court, the
United States Supreme Court released its decision in
Carpenter.
Approximately six weeks after the release of the Car-
penter decision but prior to the Appellate Court’s
release of its decision in this case, the defendant moved
in the Appellate Court for permission to file a supple-
mental brief to raise a new claim, premised on the
new rule in Carpenter, challenging the admission of his
historical CSLI, which was obtained through an ex parte
order, along with the related testimony of James J.
Wines, the state’s expert in historical CSLI analysis. The
defendant also moved for permission to file a motion
for rectification with the trial court to have the ex parte
order marked as a court exhibit because it was not
introduced or admitted at trial. The Appellate Court sum-
marily denied both motions.
The Appellate Court affirmed the trial court’s judg-
ment of conviction,4 and the defendant sought certifica-
tion to appeal to this court, which we granted, limited
to the following issues: (1) ‘‘Did the Appellate Court
properly deny the defendant’s motion to file a late
motion for rectification and the defendant’s motion for
permission to file a supplemental brief, which would
have allowed the defendant to present an issue before
the Appellate Court that the defendant claims is con-
trolled by the retroactive application of [Carpenter]?’’
And (2) ‘‘Did the Appellate Court properly decline to
review the defendant’s evidentiary claim on the basis
that it was not properly preserved?’’5 State v. Armadore,
330 Conn. 965, 200 A.3d 188 (2019). Prior to the parties’
filing their briefs, this court sua sponte ordered them
to address the merits of the defendant’s Carpenter claim
in addition to whether the Appellate Court properly
denied the defendant’s motion for permission to file a
supplemental brief on the Carpenter issue. After oral
argument before this court, we sua sponte ordered the
parties to file additional supplemental briefs on the
issue of whether this court could consider historical
CSLI relating to Tyus’ two cell phones in assessing
harmless error under Golding’s fourth prong. We will
present additional facts and procedural history as
required.
I
The defendant first claims that the Appellate Court
improperly denied his motion for permission to file a
supplemental brief after oral argument in that court so
that he could raise an unpreserved claim premised on
the new constitutional rule announced in Carpenter.
Specifically, he argues 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 or included in his initial brief on appeal,
and, thus, the Appellate Court’s failure to review the
claim was ‘‘a per se abuse of discretion . . . .’’ The state
responds that, although an unpreserved constitutional
claim may be reviewed under Golding, the defendant
still had to comply with the rules governing appellate
procedure, regardless of the rules regarding retroactiv-
ity, and, thus, he abandoned his Carpenter claim when
he failed to raise it in his initial brief in the Appellate
Court. According to the state, the defendant could raise
his abandoned Carpenter claim only if he could estab-
lish that the new constitutional rule in Carpenter over-
ruled clearly established precedent, thereby rendering
his procedural default excusable. The state contends
that, because case law prior to Carpenter did not pro-
hibit the defendant from seeking to suppress his histori-
cal CSLI under the fourth amendment, he cannot
overcome his procedural default.
Before addressing this claim, we must review the
pertinent facts and procedural history. Prior to the
defendant’s arrest, Detective Franklin S. Jarvis of the
New London Police Department prepared ex parte
orders pursuant to General Statutes § 54-47aa (b),
which requires only ‘‘a reasonable and articulable suspi-
cion that a crime has been or is being committed,’’ to
obtain historical CSLI associated with the defendant’s
cell phone and Tyus’ two cell phones, from the day of
the murder to the day after the murder. Detective Rich-
ard Curcuro of the New London Police Department
subsequently received those records. The records were
then sent to Wines, an agent with the Federal Bureau
of Investigation’s cellular analysis survey team, who
analyzed the records and prepared a slideshow presen-
tation detailing his analysis. Neither the defendant nor
Tyus sought to suppress these records before trial, at
which the CSLI, the slideshow, and Wines’ expert testi-
mony were admitted without objection.6
This evidence showed that all three cell phones acti-
vated cell towers in or near New London from between
approximately 12:04 and 12:15 a.m., within minutes of
when a 911 call was received at 12:09 a.m. reporting
the shooting. Most importantly, one of Tyus’ cell phones
activated a cell tower in New London close to Ernie’s
Café eight times from approximately 12:04 to 12:14 a.m.
Additionally, this evidence 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.
The jury found the defendant guilty on November 19,
2015. The trial court sentenced him on January 15, 2016,
after denying his postverdict motions for acquittal and
for a new trial, but granted his request for a fee waiver
and appointment of appellate counsel. The defendant
appealed on September 2, 2016, filed his Appellate Court
reply brief on March 7, 2018, and that court heard oral
argument on May 15, 2018.
The defendant did not raise a claim in his briefs to
the Appellate Court challenging the admission of his
historical CSLI. The United States Supreme Court
released its decision in Carpenter on June 22, 2018,
after oral argument in the Appellate Court in the present
case. On August 3, 2018, the defendant moved for per-
mission to file a supplemental brief in the Appellate
Court to raise a new claim premised on the new consti-
tutional rule in Carpenter. The Appellate Court sum-
marily denied the motion on August 27, 2018, and, on
November 13, 2018, released its decision, affirming the
defendant’s conviction.
In addressing this claim, it is necessary for us to
clarify the standard governing our appellate courts’
exercise of discretion under these circumstances. We
determine that the policies underlying the requirement
that new constitutional rules apply retroactively to
pending cases weigh in favor of our courts’ liberally
permitting supplemental briefing to raise unpreserved
claims premised on those new constitutional rules when
they are announced during the pendency of a case.
Thus, as a general rule, there is a presumption in favor
of granting such motions. Only if it is clear that the
claim would fail under one of the four prongs of Gold-
ing, thereby eliminating the need for briefing, should an
appellate court deny a request for supplemental briefing
under those circumstances. Nevertheless, in the present
case, although we conclude that the Appellate Court
abused its discretion by denying the defendant’s motion
for permission to file a supplemental brief, we deter-
mine that this error was harmless because the defen-
dant’s Carpenter claim fails under the fourth prong
of Golding.
A
Our rules of practice do not specifically discuss
motions for permission to file a supplemental brief.
Pursuant to Practice Book § 60-2, however, an appellate
court may, ‘‘on its own motion or upon motion of any
party . . . (5) order that a party for good cause shown
may file a late appeal, petition for certification, brief
or any other document unless the court lacks jurisdic-
tion to allow the late filing . . . .’’ (Emphasis added.)
Additionally, Practice Book § 60-3 provides that, ‘‘[i]n
the interest of expediting decision, or for other good
cause shown, the court in which the appellate matter
is pending may suspend the requirements or provisions
of any of these rules on motion of a party or on its own
motion and may order proceedings in accordance with
its direction.’’
We previously have not articulated a standard of
review for an appellate court’s decision to grant or deny
a motion for permission to file a supplemental brief.
This gap in our law is hardly surprising. Although it
would be an overstatement to suggest that supplemen-
tal briefing is routinely granted or ordered in appellate
cases, such briefs are filed with some regularity, both
before and after oral argument and upon both the
court’s order or a party’s motion. See, e.g., State v.
White, 334 Conn. 742, 769 and n.14, 224 A.3d 855 (2020)
(granting parties permission to file supplemental briefs
to address effect of decision released after initial briefs
filed); State v. McCleese, 333 Conn. 378, 411 n.15, 215
A.3d 1154 (2019) (granting defendant’s request to file
supplemental brief to address effect of decision
released after defendant filed initial brief); Petrucelli
v. Meriden, 198 Conn. App. 838, 846 n.7, 234 A.3d 981(2020) (court sua sponte ordered supplemental briefing
after oral argument); Nonhuman Rights Project, Inc.
v. R.W. Commerford & Sons, Inc., 197 Conn. App. 353,
359, 231 A.3d 1171 (granting petitioner’s request for
supplemental briefing), cert. denied, 335 Conn. 929, 235
A.3d 525 (2020). Despite this regularity, our research
does not reveal any cases in which a party has chal-
lenged an appellate court’s decision not to permit sup-
plemental briefing.
We have recognized repeatedly that our rules of prac-
tice vest broad authority in the Appellate Court for the
management of its docket. See, e.g., Novak v. Levin,
287 Conn. 71, 80, 951 A.2d 514 (2008). Additionally, this
court has applied the abuse of discretion standard of
review to the Appellate Court’s rulings under Practice
Book § 60-2. See id. (applying abuse of discretion stan-
dard in reviewing decision to grant late motion for
reconsideration, which was included within scope of
‘‘any other document’’ under Practice Book (2006) § 60-
2 (6) (now § 60-2 (5)); Alliance Partners, Inc. v. Voltarc
Technologies, Inc., 263 Conn. 204, 210, 820 A.2d 224(2003) (Appellate Court has discretion to determine
whether party has established good cause to file late
appeal under Practice Book (2003) § 60-2 (6) (now § 60-
2 (5)); Ramos v. Commissioner of Correction, 248
Conn. 52, 59, 61, 727 A.2d 213 (1999) (Appellate Court’s
decision to deny motion for permission to file late
appeal under Practice Book (1999) § 60-2 (6) (now § 60-
2 (5)) subject to abuse of discretion standard of review).
A supplemental brief is similarly a document filed out
of time, subject to the good cause standard, and, there-
fore, a ruling on its filing is appropriately reviewed for
abuse of discretion.
To determine whether the Appellate Court appropri-
ately exercised this discretion in the present case, we
must first review the reason that court was asked to
grant supplemental briefing—the United States Supreme
Court’s decision in Carpenter—along with our recent
decision in State v. Brown, 331 Conn. 258, 261–62, 202
A.3d 1003 (2019), in which we applied Carpenter. ‘‘In
Carpenter, the court considered whether the state con-
ducts a search under the [f]ourth [a]mendment when
it accesses historical cell phone records that provide a
comprehensive chronicle of the user’s past movements.
. . . The court answered that question in the affirma-
tive and held that an individual maintains a legitimate
expectation of privacy in the record of his physical
movements as captured through CSLI. . . . Accord-
ingly, the state must generally obtain a warrant sup-
ported by probable cause before acquiring such
records.’’ (Citations omitted; internal quotation marks
omitted.) Id., 272.
Prior to the release of the decision in Carpenter, the
defendant in Brown was arrested and charged with
numerous offenses, including burglary, after the police
obtained his historical and prospective CSLI pursuant
to multiple ex parte orders. Id., 262, 268–69. Prior to
trial, the defendant filed motions to suppress the CSLI
on the ground that the ex parte orders violated both
§ 54-47aa and his rights under the fourth amendment.
Id., 269. Reaching only the statutory grounds for the
motions, the trial court granted the defendant’s motions,
holding that the ex parte orders violated § 54-47aa and
that suppression was the proper remedy. Id. ‘‘Following
the granting of the defendant’s motions to suppress,
the state entered nolles prosequi on all of the charges
against the defendant in the pending cases. In response,
the defendant made an oral motion to dismiss all
charges, which the trial court granted.’’ Id., 270–71. The
state then appealed to this court. ‘‘In their original briefs
and arguments to this court, the parties focused primar-
ily on whether the trial court properly granted the defen-
dant’s motions on the basis of its conclusion that the
state obtained the prospective and historical CSLI in
violation of § 54-47aa, and that suppression of the
records was the appropriate remedy.’’ Id., 263. ‘‘Follow-
ing oral argument, however, this court stayed the appeal
pending the decision of the United States Supreme
Court in Carpenter and ordered the parties to submit
supplemental briefs concerning the relevance of that
decision to [the] appeal.’’ Id.
After the decision in Carpenter was released, this
court released its decision in Brown, in which we
applied the new rule in Carpenter and concluded that
the CSLI had been obtained illegally. Id., 271. Specifi-
cally, as to the ex parte order authorizing the disclosure
of approximately three months of the defendant’s his-
torical CSLI,7 we concluded that the order violated his
fourth amendment rights because the records were
obtained without a warrant. Id., 273. Next, we con-
cluded that the trial court properly determined that
suppression was the appropriate remedy. Id., 277.
Although, in Brown, this court applied the new rule
from Carpenter retroactively to a pending case, we did
not need to address any preservation issue because the
defendant had moved to suppress the CSLI prior to
trial. Additionally, we did not address the effect, if any,
of a defendant’s failure to raise a Carpenter claim in
his initial brief on appeal because the defendant in
Brown had prevailed in the trial court on the statutory
claim and argued in his initial brief, as an alternative
ground for affirming the trial court’s judgment, that the
CSLI was obtained without a warrant in violation of
the fourth amendment.
Yet, although the new constitutional rule in Carpen-
ter was not discussed in detail in Brown, it is clear that
we applied the rule retroactively to that pending case
on appeal. In Griffith v. Kentucky, 479 U.S. 314, 322–23,
107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the United States
Supreme Court had explained that, ‘‘at 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 adjudication. First . . . after we have
decided a new rule in the case selected, the integrity
of judicial review requires that we apply that rule to
all similar cases pending on direct review. . . . If we
do not resolve all cases before us on direct review in
light of our best understanding of governing constitu-
tional principles, it is difficult to see why we should
so adjudicate any case at all. . . . Second, selective
application of new rules violates the principle of treat-
ing similarly situated defendants the same. . . . [T]he
problem with not applying new rules to cases pending
on direct review is the actual inequity that results when
the [c]ourt chooses which of many similarly situated
defendants should be the chance beneficiary of a new
rule.’’ (Citations omitted; emphasis omitted; footnote
omitted; internal quotation marks omitted.) Id.This court repeatedly has recognized and applied the
Griffith rule regarding the retroactive application of
new constitutional rules to pending cases. See, e.g.,
State v. Dickson, 322 Conn. 410, 449–51, 141 A.3d 810(2016) (applying new rule regarding first time, in-court
identifications to pending cases under Griffith), cert.
denied, U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713(2017); State v. Sanseverino, 287 Conn. 608, 620 n.11,
949 A.2d 1156 (2008) (applying new rule in State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), to pend-
ing cases), overruled in part on other grounds by State
v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), and
superseded in part after reconsideration, 291 Conn. 574,
969 A.2d 710 (2009); State v. Coleman, 38 Conn. App.
531, 536, 662 A.2d 150 (‘‘[The] Supreme Court announced
a new rule under our state constitution when it declared
that the [balancing test enunciated in State v. Asher-
man, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied,
470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985),
which requires the weighing of the reasons for the
unavailability of evidence against the degree of preju-
dice to the defendant caused by that unavailability]
must be used in cases involving a claim of violation of
due process because of the loss or destruction of physi-
cal evidence. Because direct review is pending as to
the defendant [under Griffith], it is mandated that the
new rule be applied in this case.’’), cert. denied, 235
Conn. 906, 665 A.2d 903 (1995). In these cases, however,
there was no discussion of how the retroactivity rule
in Griffith interacted with preservation and procedural
requirements, which were not at issue in these cases.
Rather, in these cases, the court merely had to apply
the new constitutional rule to a preexisting, properly
raised claim.
Additionally, when a new constitutional rule has been
announced after the parties have filed their briefs on
appeal, consistent with the principles underlying the
Griffith retroactivity rule, this court has granted par-
ties’ motions for permission to file a supplemental brief
to analyze the new rule at issue. See State v. Ryerson,
201 Conn. 333, 337, 339, 514 A.2d 337 (1986). In fact,
our Appellate Court has recognized that supplemental
briefing is most common and appropriate in this circum-
stance: ‘‘Perhaps most frequently, supplemental brief-
ing is ordered when a decision in another case or a
change in law intervenes between the time of initial
briefing and [an] appellate court’s decision.’’ Gosselin
v. Gosselin, 110 Conn. App. 142, 153 n.4, 955 A.2d 60(2008). In these cases, however, the litigant preserved
the issue at trial and/or raised it in his initial brief on
appeal; thus, the supplemental briefing on the new con-
stitutional rule related back to a preexisting claim. See
State v. Ryerson, supra, 337.
The application of the Griffith retroactivity rule is
more complicated when the claim premised on the new
rule is unpreserved. This court and the Appellate Court,
both before and after Griffith, have allowed defendants
to raise claims on appeal that were unpreserved at trial
but were premised on a new constitutional rule that
applied retroactively to the pending case.8 Prior to 1989,
we recognized as an exception to our preservation
requirement ‘‘two situations that may constitute ‘excep-
tional circumstances’ such that newly raised claims can
and will be considered by this court. The first is . . .
where a new constitutional right not readily foreseeable
has arisen between the time of trial and appeal. . . .
The second ‘exceptional circumstance’ may arise where
the record adequately supports a claim that a litigant
has clearly been deprived of a fundamental constitu-
tional right and a fair trial.’’ (Citation omitted.) State v.
Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see State
v. Vars, 154 Conn. 255, 269–72, 224 A.2d 744 (1966)
(holding that new constitutional claims need not be
preserved at trial to be raised on appeal but not
addressing whether such claims must be raised in initial
brief on appeal).
In 1989, in State v. Golding, supra, 213 Conn. 239–40,
‘‘we reformulated the guidelines for appellate review
of unpreserved constitutional claims articulated in
[Evans],’’ adopting the now familiar four part Golding
standard. State v. Ortiz, 217 Conn. 648, 659, 588 A.2d
127 (1991). Under Golding, a party’s failure to preserve
a constitutional claim before the trial court does not
prevent review as long as the record is adequate for
review and the claim is not waived.9 See State v. Fabri-
catore, 281 Conn. 469, 482, 915 A.2d 872 (2007) (waived
constitutional claims are not reviewable under third
prong of Golding). Nevertheless, the state argues that
the defendant is not entitled to review of his unpre-
served Carpenter claim unless it was unforeseeable at
the time of trial.10 The state’s argument presumes that
the first exceptional circumstance articulated in Evans
remains the standard that is applicable when a defen-
dant seeks to raise an unpreserved constitutional claim
premised on a new constitutional rule. This is incorrect.
It is true that, in a footnote in Golding, this court
explained that, only the second, not the first, excep-
tional circumstance stated in Evans was at issue in that
case. See State v. Golding, supra, 213 Conn. 239 n.8.
We did not indicate, however, that the new standard
applied only to the second exceptional circumstance
but, instead, stated that we were articulating ‘‘guidelines
designed to facilitate a less burdensome, more uniform
application of the present Evans standard in future
cases involving alleged constitutional violations that
are raised for the first time on appeal.’’ Id., 239. We
made the Golding standard applicable to all future
cases involving alleged constitutional violations, not
just to future cases raising constitutional violations pur-
suant to the second exceptional circumstance of Evans.
Thus, the standard articulated in Golding fully replaced
the exceptional circumstances standard articulated in
Evans.
We recognize, however, that there has been apparent
confusion over whether the Golding standard applies
only to the second exceptional circumstance articulated
in Evans and, thus, whether the Evans standard remains
for unpreserved constitutional claims premised on new
constitutional rules announced during the pendency of
a case. See State v. Shinn, 47 Conn. App. 401, 408–409,
704 A.2d 816 (1997) (although defendant asserted that
unpreserved claim, which was based on new rule
announced while case was pending, was reviewable
under both Golding and Evans standards, court reviewed
claim under Golding without addressing Evans), cert.
denied, 244 Conn. 913, 713 A.2d 832 (1998), and cert.
denied, 244 Conn. 914, 713 A.2d 833 (1998); id., 419(Foti, J., dissenting) (stating that defendant argued that
his claim satisfied first exceptional circumstance in
Evans); see also State v. Correa, 185 Conn. App. 308,
322 and 322–23 n.10, 197 A.3d 393 (2018) (holding that
unpreserved claim based on new rule announced in
State v. Kono, 324 Conn. 80, 152 A.3d 1 (2016), was
reviewable under first two prongs of Golding but failed
to satisfy third prong, and that claim would fail for same
reasons under Evans exception for new constitutional
rules that were not readily foreseeable), cert. granted,
330 Conn. 959, 199 A.3d 19 (2019); cf. State v. Adams,
139 Conn. App. 540, 545–46, 56 A.3d 747 (2012) (‘‘there
is no basis in our case law for the proposition that,
following Golding, Evans provides an independent or
distinct avenue for review for unpreserved claims of
error’’), cert. denied, 308 Conn. 928, 64 A.3d 121 (2013);
State v. Clark, 48 Conn. App. 812, 827 n.13, 713 A.2d
834 (‘‘[b]ecause Golding encompasses the exceptional
circumstances of Evans, it is not necessary for us to
review the defendant’s claims under Evans’’), cert.
denied, 245 Conn. 921, 717 A.2d 238 (1998). To the
extent that Golding leaves any doubt, we clarify that
the Golding standard fully replaced the Evans standard.
This is the only rational reading of Golding for three
reasons.
First, as explained previously, the plain language of
our opinion in Golding makes clear that this court
intended to replace completely the Evans standard with
a more uniform standard that would apply to all unpre-
served claims of constitutional violations. Second,
replacing the Evans standard with the Golding standard
is in conformance with the policies underlying the retro-
activity rule in Griffith. The Griffith rule would be
rendered practically meaningless if it applied only when
a claim premised on the new rule had been preserved
at trial, a challenging—albeit not impossible—task
when the new constitutional rule did not exist. Third,
under the Golding standard, unpreserved constitutional
claims premised on settled law—which are clearly fore-
seeable—are granted review as long as the record is
adequate. It would be illogical to afford review to those
claims, but not to unpreserved constitutional claims
premised on new constitutional rules, regardless of
whether the new rule was foreseeable.
This reading of Golding is consistent with this court’s
and the Appellate Court’s application of Golding under
these circumstances. Since Golding, when a new consti-
tutional rule has been announced after a defendant’s
trial, but while his case remains pending, the Appellate
Court has allowed the defendant to raise an unpre-
served claim that was premised on the new rule. See
State v. Correa, supra, 185 Conn. App. 322–23 and n.10
(holding that unpreserved claim based on new rule in
State v. Kono, supra, 324 Conn. 80, was reviewable
under first two prongs of Golding but failed under third
prong); State v. William L., 126 Conn. App. 472, 480,
11 A.3d 1132 (‘‘new constitutional claims are reviewable
under [Golding]’’), cert. denied, 300 Conn. 926, 15 A.3d
628 (2011); State v. Shinn, supra, 47 Conn. App. 408–409
(unpreserved claim based on new rule announced while
case was pending was reviewable under Golding).11
We note, however, that, in cases in which an appellate
court has reviewed under Golding an unpreserved claim
premised on a new constitutional rule, the defendant
raised the issue in the initial brief on appeal, which the
defendant did not do here. See State v. William L.,
supra, 126 Conn. App. 480; cf. State v. Vars, supra, 154
Conn. 269–72. The state concedes that, if the defendant
had done so, he would have been entitled to review
under Golding, as long as the record was adequate.
Less clear is how the rule in Griffith interacts with
our rules of appellate procedure that deem a claim
abandoned if it is not raised in a party’s initial brief on
appeal. See State v. Elson, 311 Conn. 726, 766, 91 A.3d
862 (2014) (‘‘to receive review, a claim must be raised
and briefed adequately in a party’s principal brief, and
. . . the failure to do so constitutes the abandonment
of the claim’’); State v. Thompson, 98 Conn. App. 245,
248, 907 A.2d 1257 (‘‘[o]ur practice requires an appellant
to raise claims of error in his original brief’’ (internal
quotation marks omitted)), cert. denied, 280 Conn. 946,
912 A.2d 482 (2006). A claim otherwise reviewable
under Golding may be abandoned if it is improperly
briefed. Although, in Evans, this court stated that our
procedural rules ‘‘must yield to the authority’’ of new
constitutional rules if, ‘‘at the time of trial, [the claim]
appeared to lack semblance of merit because it was
clearly contrary to settled state law,’’ thereby excusing
any noncompliance with procedural rules; State v.
Evans, supra, 165 Conn. 67–68; it is not clear whether
an unpreserved claim premised on a new constitutional
rule that arguably was foreseeable must satisfy our
appellate procedural rules.
Although, generally, we are not bound to review
claims that were not raised in a party’s initial brief on
appeal, ‘‘[w]e have never held . . . that we are pre-
cluded from doing so.’’ State v. Joyce, 229 Conn. 10, 17,
639 A.2d 1007 (1994). Rather, appellate courts have
discretion to consider a claim that was not raised in a
party’s initial brief, as long as ‘‘concerns regarding
unfair surprise and inadequate argumentation can be
alleviated by an order requiring the parties to file supple-
mental briefs.’’ State v. Elson, supra, 311 Conn. 766.
This is consistent with the discretion our appellate
courts have to suspend appellate procedural rules for
good cause and to permit supplemental briefing of a
claim that was not raised in the initial brief on appeal.
See Practice Book §§ 60-2 and 60-3. Thus, both this
court and the Appellate Court have exercised this dis-
cretion to permit supplemental briefing of a claim that
was not raised initially on appeal when that claim was
premised on a new constitutional rule announced dur-
ing the pendency of the appeal. See State v. Hampton,
293 Conn. 435, 457–58, 988 A.2d 167 (2009) (permitting
defendant to file supplemental brief raising new claim in
light of new constitutional rule announced in Salamon,
which was released after defendant filed initial brief
on appeal); State v. Sanders, 54 Conn. App. 732, 743,
738 A.2d 674 (permitting defendant to file supplemental
brief raising unpreserved claim in light of new constitu-
tional rule announced in State v. Schiappa, 248 Conn.
132, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct.
152, 145 L. Ed. 2d 129 (1999), which was released after
initial briefing in Sanders), cert. denied, 251 Conn. 913,
739 A.2d 1250 (1999)). Such an exercise of discretion is
reasonable in light of the policies underlying Griffith’s
retroactivity rule. Specifically, as explained previously,
under Griffith, applying new constitutional rules to
pending cases promotes both judicial integrity and
equity. See Griffith v. Kentucky, supra, 479 U.S. 322–23.
Not to do so may violate ‘‘basic norms of constitutional
adjudication.’’12 Id., 322. Because these policies require
retroactive application of new constitutional rules, a
newly announced constitutional rule provides good
cause for a party to seek permission to file a supplemen-
tal brief raising a claim premised on that new constitu-
tional rule.
Thus, in the present case, not only did the Appellate
Court have discretion to grant the defendant’s motion
for permission to file a supplemental brief,13 but princi-
ples of fairness weighed heavily in favor of granting the
motion, as it was premised on a new constitutional rule
announced during the pendency of the appeal. In such
cases, it is difficult to imagine a situation in which
supplemental briefing should not be granted.
Nevertheless, even in cases in which a court has
allowed supplemental briefing to raise a claim that was
based on a new constitutional rule, the defendant must
establish that the unpreserved claim is entitled to
review under Golding’s first two prongs and merits
relief under Golding’s second two prongs. See State v.
Sanders, supra, 54 Conn. App. 743 n.9, 743–44 (supple-
mental briefing was permitted for purpose of raising
unpreserved claim premised on new constitutional rule,
and claim was reviewable under Golding’s first two
prongs but failed under Golding’s third prong); see also
State v. Davis, 269 So. 3d 1123, 1134–35 (La. App.)
(holding that, even if unpreserved claim premised on
new constitutional rule in Carpenter was not waived
and was reviewable, claim failed, as any error was harm-
less), cert. denied, 282 So. 3d 229 (La. 2019); People v.
Crum, 184 App. Div. 3d 454, 455, 126 N.Y.S.3d 7 (holding
that Carpenter claim was not preserved and was, thus,
unreviewable but, alternatively, holding that, ‘‘regard-
less of the admissibility of the [CSLI], there was over-
whelming evidence, including [the] defendant’s
confession, as well as videotapes that independently
established his guilt’’), appeal denied, 35 N.Y.3d 1065,
152 N.E.3d 1206, 129 N.Y.S.3d 404 (2020). As a result,
even if supplemental briefing is granted, the defendant’s
claim ultimately may be unreviewable or fail on the
merits.
Because a defendant raising an unpreserved constitu-
tional claim premised on a new constitutional rule must
satisfy all four prongs of Golding, in limited circum-
stances, an appellate court may consider a defendant’s
clear inability to satisfy one of these prongs in determin-
ing whether it should exercise its discretion to permit
supplemental briefing to raise this claim. See State v.
Watson, 47 Conn. App. 771, 772, 706 A.2d 1368 (1998)
(defendant denied permission to file supplemental brief
to raise unpreserved claim premised on new federal
interpretation of jury instruction language because,
even if claim were allowed, it clearly would fail on
merits, as it was settled law that state law controlled
defendant’s claim). We presume, however, that such
cases are rare, as a determination of whether a claim
satisfies the four prongs of Golding usually requires
considerable reference to the record and relevant case
law, thereby necessitating briefing.
Therefore, as a general rule, an appellate court ought
to grant a request for supplemental briefing when a party
asks it to entertain an unpreserved claim premised on a
newly announced constitutional rule. The briefing should
address both the merits of the new constitutional rule
and whether it applies to the defendant, as well as
whether the claim fails under one of the four prongs
of Golding. We imagine that briefing would be appro-
priate in all but the clearest of situations in which the
claim would fail under one of Golding’s four prongs.
See id.In the present case, because the Appellate Court sum-
marily denied the defendant’s motion for permission to
file a supplemental brief, we do not know whether it
exercised its discretion on the basis of its belief that the
defendant’s Carpenter claim clearly would fail under
Golding. This case does not clearly fall within the lim-
ited category of cases in which the new rule clearly
does not apply because it would fail under one of Gold-
ing’s four prongs. It is not the kind of case that does
not require briefing to flesh out the record and unre-
solved legal issues in light of this new constitutional
rule. This is made clear by the fact that this court had
to request supplemental briefing regarding the fourth
prong of Golding after oral argument. Additionally,
there is the unresolved legal issue of whether Carpenter
applies when the CSLI covers a period of less than
seven days, which could apply to both the merits of
the claim and the third prong of Golding. See Carpenter
v. United States, supra, 138 S. Ct. 2217 n.3; id., 2224,
2233 (Kennedy, J., dissenting).
Thus, we conclude that principles of fairness and
equity required the Appellate Court to exercise its dis-
cretion to grant the defendant’s motion for permission
to file a supplemental brief. Nevertheless, we conclude
that the Appellate Court’s erroneous denial of the defen-
dant’s motion was harmless, because, even if we
assume, without deciding, that the defendant’s Carpen-
ter claim is reviewable under the first two prongs of
Golding, it fails under the fourth prong.
B
A defendant may prevail on an unpreserved claim
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.’’ (Footnote omitted.) State v. Golding, supra, 213
Conn. 239–40; see In re Yasiel R., supra, 317 Conn. 781.
‘‘The first two [prongs of Golding] involve a determina-
tion 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 that the defendant’s Carpenter
claim is reviewable under the first two prongs of Gold-
ing and that a constitutional violation exists that
deprived him of a fair trial under the third prong, we
nevertheless conclude that the state has sustained its
burden of demonstrating that any claimed error was
harmless beyond a reasonable doubt. ‘‘It is well settled
that constitutional search and seizure violations are not
structural improprieties requiring reversal, but rather,
are subject to harmless error analysis.’’ State v. Esarey,
308 Conn. 819, 832, 67 A.3d 1001 (2013). Whether any
error ‘‘is harmless in a particular case depends upon a
number of factors, such as the importance of the wit-
ness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting 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 evi-
dence on the trier of fact and the result of the trial. . . .
If the evidence may have had a tendency to influence the
judgment of the jury, it cannot be considered harmless.’’
(Internal quotation marks omitted.) State v. Smith, 289
Conn. 598, 628, 960 A.2d 993 (2008).
Both to determine whether the defendant’s historical
CSLI was cumulative and to evaluate the strength of
the state’s case, we must examine the other evidence
admitted at trial. The defendant, however, argues that
we cannot consider certain admitted evidence in under-
taking this analysis, specifically, Tyus’ historical CSLI,
the admission of which, he claims, violated Tyus’ fourth
amendment rights. When codefendants are tried jointly,14
the defendant contends, and there is harm to one code-
fendant, the court also may consider the effect of that
harm on the other codefendant.15
1
The defendant’s argument is premised on an alleged
violation of Tyus’ fourth amendment rights. A defendant
must have a reasonable expectation of privacy in the
property that was unlawfully searched to have standing
to challenge the admission of evidence obtained during
that search. See, e.g., State v. Davis, 283 Conn. 280,
323–24, 929 A.2d 278 (2007). Both this court and the
United States Supreme Court repeatedly have explained
that, ‘‘[t]he rights guaranteed by the fourth amendment
are personal rights, and, therefore, only one whose own
protection was infringed by a search and seizure may
enforce those rights.’’ (Internal quotation marks omit-
ted.) State v. Houghtaling, 326 Conn. 330, 341, 163 A.3d
563 (2017), cert. denied, U.S. , 138 S. Ct. 1593,
200 L. Ed. 2d 776 (2018); accord Rawlings v. Kentucky,
448 U.S. 98, 106, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).
Because a party must have a reasonable expectation
of privacy in the property searched, a party generally
lacks standing to challenge an illegal search of a third
party’s property. See, e.g., State v. Houghtaling, supra,
352 (defendant lacked reasonable expectation of pri-
vacy in property he owned but leased to third party);
State v. Iban C., 275 Conn. 624, 665, 881 A.2d 1005 (2005)
(‘‘a party is precluded from asserting the constitutional
rights of another’’ (internal quotation marks omitted));16
State v. Castle, 161 Conn. 570, 572, 287 A.2d 744 (1971)
(‘‘the defendant had no standing to object to the use
of the evidence taken from his brother’s room since
the defendant had no possessory interest in either the
room searched or the evidence seized and was not
present when his brother’s room was searched and the
seizure [was] made’’); see also State v. Davis, supra,
321 (rejecting automatic standing doctrine under state
constitution, in part because defendant may not raise
constitutional right of third party). ‘‘[S]uppression of
the product of a [f]ourth [a]mendment violation can be
successfully urged only by those whose rights were
violated by the search itself, not by those who are
aggrieved solely by the introduction of damaging evi-
dence.’’ (Internal quotation marks omitted.) United
States v. Padilla, 508 U.S. 77, 81–82, 113 S. Ct. 1936,
123 L. Ed. 2d 635 (1993).
Although neither this court nor our Appellate Court
has had the opportunity to apply these principles in
relation to the new rule in Carpenter, federal courts
consistently have held that a defendant may not raise
a Carpenter claim concerning the historical CSLI of a
third party unless he can establish his own reasonable
expectation of privacy in the cell phone. See United
States v. Beverly, 943 F.3d 225, 238 (5th Cir. 2019) (‘‘[The
defendant] lacks standing to assert that the search of
[the alleged coconspirator’s] phone records was uncon-
stitutional. [The defendant] had no expectation of pri-
vacy in [the alleged coconspirator’s] phone data, even
if the search was unconstitutional as to [the alleged
coconspirator].’’), cert. denied, U.S. , 140 S. Ct.
2550, 206 L. Ed. 2d 485 (2020); United States v. Brewer,
708 Fed. Appx. 96, 99 (3d Cir. 2017) (holding that defen-
dant lacked standing to suppress cell phone records
obtained from phone that was in codefendant’s posses-
sion and control), cert. denied, U.S. , 139 S. Ct.
1395, 203 L. Ed. 2d 625 (2019); see also United States
v. Dore, 586 Fed. Appx. 42, 46 (2d Cir.) (in decision
released prior to Carpenter, court held that defendant
failed to establish legitimate expectation of privacy in
cell phone and, thus, lacked standing to move to sup-
press CSLI records), cert. denied, 574 U.S. 1002, 135 S.
Ct. 505, 190 L. Ed. 2d 380 (2014); cf. United States v.
Lauria, Docket Nos. 19-CR-449-01 (NSR), 19-CR-449-
02 (NSR) and 19-CR-449-03 (NSR), 2020 WL 5743523,
*5 (S.D.N.Y. September 25, 2020) (‘‘the defendant must
establish ownership or another possessory interest in
the phone at the time for which the data [are]
searched’’); United States v. Serrano, Docket No. 13
CR. 58 (KBF), 2014 WL 2696569, *7 (S.D.N.Y. June 10,
2014) (‘‘The defendant has not proffered an affidavit
that he has a privacy interest in that phone or the data
on that phone. . . . Accordingly, the defendant’s
motion to preclude or suppress the cell site data is
denied on the basis that the defendant has not estab-
lished the requisite standing to bring the motion.’’). But
see United States v. Herron, 2 F. Supp. 3d 391, 400–401
(E.D.N.Y. 2014) (defendant had legitimate expectation
of privacy in cell phone registered to another individual
but used exclusively by defendant and, thus, had stand-
ing to move to suppress historical CSLI obtained from
that phone), aff’d, 762 Fed. Appx. 25 (2d Cir. 2019),
petition for cert. filed (U.S. November 17, 2020) (No.
20-6428).
These courts have extended this rule to cases in
which the defendant challenged the search of property
belonging to a codefendant, even when the codefen-
dants were tried jointly, explaining that ‘‘[coconspira-
tors] and codefendants have been accorded no special
standing.’’ (Internal quotation marks omitted.) United
States v. Padilla, supra, 508 U.S. 82; see United States
v. Turner, 781 F.3d 374, 382 (8th Cir. 2015) (‘‘[The defen-
dant] has failed to establish that he has standing to
challenge the issuance of the warrants for [precise loca-
tion information] for phones belonging to [two cocon-
spirators]. [He] does not assert that he owned,
possessed, or used either of these cell phones; nor does
he describe any other legitimate expectation of privacy
in these phones or in the [precise location information]
obtained from them.’’), cert. denied, 577 U.S. 889, 136
S. Ct. 208, 193 L. Ed. 2d 160 (2015), and cert. denied,
577 U.S. 912, 136 S. Ct. 280, 193 L. Ed. 2d 204 (2015),
and cert. denied, 577 U.S. 980, 136 S. Ct. 493, 193 L. Ed.
2d 359 (2015); United States v. Forest, 355 F.3d 942,
948 (6th Cir.) (defendant lacked standing to challenge
admission of codefendant’s CSLI, even though defen-
dant was in vehicle with codefendant during time period
reflected in CSLI), vacated and remanded sub nom.
Garner v. United States, 543 U.S. 1100, 125 S. Ct. 1050,
160 L. Ed. 2d 1001 (2005); United States v. Anthony,
354 F. Supp. 3d 607, 619–20 (E.D. Pa. 2018) (‘‘[d]efen-
dant . . . has not demonstrated that he had the reason-
able expectation of privacy in the CSLI data of
[codefendants]’’), appeal filed (3d Cir. December 28,
2018) (No. 18-3812); DeMartino v. United States,
Docket No. 07 CV 1412 (NG), 2010 WL 3023896, *9
(E.D.N.Y. August 2, 2010) (defendant had no expecta-
tion of privacy and thus no standing to challenge admis-
sion of information from codefendant’s cell phone,
despite having been tried jointly with codefendant);
United States v. Grissom, 760 Fed. Appx. 448, 454 (7th
Cir. 2019) (defendant did not have legitimate expecta-
tion of privacy in codefendant’s CSLI); United States
v. Wilford, 689 Fed. Appx. 727, 730 (4th Cir. 2017)
(defendant lacked standing to challenge use of cell site
stimulator to show location of coconspirator’s cell
phone), cert. denied, U.S. , 138 S. Ct. 2707, 201
L. Ed. 2d 1100 (2018);17 see also United States v. Capra,
501 F.2d 267, 281 (2d Cir. 1974) (applying rule that
‘‘[c]oconspirators and codefendants have been
accorded no special standing to enforce the exclusion-
ary rule’’ when codefendants sought to suppress
records of wiretapped calls on which only other code-
fendants were participants), cert. denied, 420 U.S. 990,
95 S. Ct. 1424, 43 L. Ed. 2d 670 (1975).
Although our Appellate Court has not yet addressed
whether a defendant may challenge a Carpenter viola-
tion relating to a codefendant, it has ruled consistent
with this federal precedent on similar issues. See State
v. Bethea, 187 Conn. App. 263, 277, 202 A.3d 429 (even
if defendant’s unpreserved challenge to warrant for
search of girlfriend’s cell phone were reviewed, claim
would fail because defendant lacked standing to move
to suppress girlfriend’s cell phone records), cert.
denied, 332 Conn. 904, 208 A.3d 1239 (2019); State v.
Stanley, 161 Conn. App. 10, 29, 125 A.3d 1078 (2015)
(defendant lacked standing to suppress victim’s cell
phone records), cert. denied, 320 Conn. 918, 131 A.3d
1154 (2016). In the present case, consistent with these
lines of cases, we conclude that the defendant lacked
standing to challenge the admission of Tyus’ historical
CSLI and, thus, cannot successfully argue that we can-
not consider the evidence these records yielded when
considering the strength of the state’s case for purposes
of our harmless error analysis under Golding’s fourth
prong.
Nevertheless, the defendant contends that prior case
law supports his contention that, in determining harm,
this court must not consider the evidence from the
illegally obtained records of Tyus’ historical CSLI. Spe-
cifically, he argues that he does not need to establish
standing to challenge the admission of Tyus’ historical
CSLI ‘‘because, [when] there is harm to one codefen-
dant, federal jurisdictions, including the United States
Supreme Court, have considered the harm of that error
on the other codefendant.’’ In support of his argument,
the defendant cites cases stemming from the United
States Supreme Court’s holding in McDonald v. United
States, 335 U.S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153(1948). We find these cases to be not only distinguish-
able, but of questionable validity.
In McDonald, the petitioners, Earl McDonald and
Joseph Washington, were tried jointly on charges of
carrying on a lottery known as ‘‘the numbers game
. . . .’’ Id., 452. Before trial, McDonald moved to sup-
press unlawfully seized evidence that included adding
machines found during a warrantless search of his room
inside a rooming house.18 Id., 452–53. McDonald also
sought the return of the adding machines. Id., 456. The
trial court denied McDonald’s motion, and, after both
petitioners were convicted, they appealed, challenging
the denial of the motion to suppress. Id. In a five to
three decision, the United States Supreme Court held
that ‘‘McDonald’s motion for suppression of the evi-
dence and the return of the property to him should
have been granted.’’ Id. As to Washington, the opinion
announcing the judgment noted that ‘‘the unlawfully
seized evidence was used not only against McDonald
but against Washington as well, the two being tried
jointly. Apart from this evidence, there seems to have
been little or none against Washington. Even though
we assume, without deciding, that Washington, who
was a guest of McDonald, had no right of privacy that
was [invaded] when the officers searched McDonald’s
room without a warrant, we think that the denial of
McDonald’s motion was error that was prejudicial to
Washington as well . . . [because] the unlawfully
seized materials were the basis of evidence used against
[Washington, and] [i]f] the property had been returned
to McDonald, it would not have been available for use
at the trial.’’ (Citations omitted.) Id. Two justices, how-
ever, did not agree that the court had to address whether
the denial of McDonald’s motion to suppress was harm-
ful to Washington. Rather, they reasoned that Washing-
ton also had a privacy interest in the property searched
because he was a guest in McDonald’s room in the
rooming house at the time of the search. See id., 461(Jackson, J., concurring).
Although some courts since McDonald have held that
its holding meant that a defendant may challenge the
admission of evidence illegally obtained from a codefen-
dant when tried jointly; see, e.g., Rosencranz v. United
States, 334 F.2d 738, 740 (1st Cir. 1964); the United
States Court of Appeals for the Second Circuit has lim-
ited McDonald’s holding to its unique facts. Specifically,
in United States v. Lee Wan Nam, 274 F.2d 863 (2d
Cir.), cert. denied, 363 U.S. 803, 80 S. Ct. 1236, 4 L. Ed.
2d 1147 (1960), the defendant sought to suppress heroin
seized in violation of his codefendant’s fourth amend-
ment rights, arguing that McDonald’s holding trumped
any standing requirement. Id., 865–66. The court in that
case disagreed, holding that the defendant lacked stand-
ing to object to the admission of the heroin because
he had no possessory interest in it. Id. The court distin-
guished the case before it from McDonald because the
codefendant never moved to suppress the heroin, as
McDonald had, and because the holding in McDonald
‘‘hinged upon the fact that the trial court committed
error in failing to return the evidence to McDonald.’’
Id., 866. Thus, the Second Circuit ruled that McDonald
applied only if there was a timely motion to suppress
by a party with standing and if the evidence at issue
would not have been available for the government to
use against all codefendants had the court granted the
motion to suppress and returned the evidence. See id.;
see also United States v. Serrano, 317 F.2d 356, 356–57
(2d Cir. 1963) (because neither defendant made timely
motion to suppress or had standing to do so, narcotics
evidence seized from codefendant, who later was sev-
ered from case, was properly admitted). As in Lee Wan
Nam, in the present case, Tyus, the only person with
standing, made no timely motion to suppress, and, thus,
the present case is distinguishable from McDonald.
Moreover, in Alderman v. United States, 394 U.S.
165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), a case the
defendant did not cite to us, the United States Supreme
Court explicitly questioned the validity of the holding in
McDonald. See id., 173 n.7. In Alderman, the petitioners,
William Israel Alderman and Felix Antonio Alderisio,
were tried jointly and convicted of conspiring to trans-
mit murderous threats in interstate commerce. Id., 167.
The record included evidence collected by illegal elec-
tronic surveillance of Alderisio’s place of business. Id.,
167–68. On appeal, ‘‘each petitioner demand[ed] retrial
if any of the evidence used to convict him was the
product of unauthorized surveillance, regardless of
whose [f]ourth [a]mendment rights the surveillance vio-
lated. At the very least, it is urged that if evidence
is inadmissible against one defendant or conspirator,
because tainted by electronic surveillance illegal as to
him, it is also inadmissible against his codefendant or
coconspirator.’’ Id., 171. The court, however, explained
that evidence may be inadmissible against one defen-
dant but not against another, even if they were tried
jointly. Id., 172–74. The court explained that, to chal-
lenge the legality of a search, the defendant must estab-
lish that ‘‘he himself was the victim of an invasion of
privacy.’’ (Internal quotation marks omitted.) Id., 173.
‘‘Fourth [a]mendment rights are personal rights which
. . . may not be vicariously asserted. . . . There is no
necessity to exclude evidence against one defendant in
order to protect the rights of another. No rights of the
victim of an illegal search are at stake when the evi-
dence is offered against some other party.’’ (Citations
omitted.) Id., 174.
The court in Alderman went on to explain that
McDonald ‘‘is not authority to the contrary. It is not at
all clear that the McDonald opinion would automatically
extend standing to a codefendant. Two of the five [j]us-
tices joining the majority opinion did not read the opin-
ion to do so and found the basis for the codefendant’s
standing to be the fact that he was a guest on the
premises searched.’’ Id., 173 n.7.
Although Alderman did not explicitly overrule McDon-
ald, multiple courts since Alderman have treated Alder-
man as controlling, and the few courts that continue
to apply McDonald have limited its scope to its unique
facts. See, e.g., United States v. Palazzo, 488 F.2d 942,
947 (5th Cir. 1974); Bretti v. Wainwright, 439 F.2d 1042,
1047 (5th Cir.), cert. denied, 404 U.S. 943, 92 S. Ct. 293,
30 L. Ed. 2d 257 (1971); United States v. Parrott, 434
F.2d 294, 296 (10th Cir. 1970), cert. denied, 401 U.S.
979, 91 S. Ct. 1211, 28 L. Ed. 2d 330 (1971); United
States v. Nasse, 432 F.2d 1293, 1302–1303 (7th Cir. 1970),
cert. denied, 401 U.S. 938, 91 S. Ct. 928, 28 L. Ed. 2d
217 (1971), and cert. denied sub nom. Tocco v. United
States, 401 U.S. 938, 91 S. Ct. 927, 28 L. Ed. 2d 217 (1971),
and cert. denied sub nom. David v. United States, 402
U.S. 983, 91 S. Ct. 1657, 29 L. Ed. 2d 148 (1971); United
States v. James, 432 F.2d 303, 306 (5th Cir. 1970), cert.
denied, 403 U.S. 906, 91 S. Ct. 2214, 29 L. Ed. 2d 682(1971); State v. Wallen, Docket No. 9-09-22, 2010 WL
529864, *4 (Ohio App. February 16, 2010), appeal
denied, 125 Ohio St. 3d 1463, 928 N.E.2d 738 (2010);
see also United States v. Tortorello, 533 F.2d 809, 814
n.5 (2d Cir.) (‘‘the Supreme Court has rejected a reading
of McDonald which would automatically extend stand-
ing to a [codefendant]’’), cert. denied, 429 U.S. 894, 97
S. Ct. 254, 50 L. Ed. 2d 177 (1976); United States v.
Graham, 391 F.2d 439, 445 (6th Cir. 1968) (McDonald
applies only if defendant with standing made timely
motion to suppress that was improperly denied), cert.
denied, 393 U.S. 941, 89 S. Ct. 307, 21 L. Ed. 2d 278(1968), and cert. denied sub nom. Tucker v. United
States, 390 U.S. 1035, 88 S. Ct. 1433, 20 L. Ed. 2d 294(1968). Thus, under Alderman, the defendant cannot
challenge the admission of Tyus’ historical CSLI, and,
to the extent that McDonald remains good law, it is
distinguishable and, thus, inapplicable to the present
case. Accordingly, we may consider Tyus’ historical
CSLI in determining harm.
2
We now turn to the evidence presented at trial and
conclude that the Appellate Court’s failure to permit
the defendant to file a supplemental brief was harmless
beyond a reasonable doubt. There was significant evi-
dence admitted at trial that placed the defendant at the
crime scene at the time of the shooting. The historical
CSLI from Tyus’ two cell phones was admitted into
evidence and relied on by Wines, who testified that
these cell phones were located near Ernie’s Café in
New London at approximately the time of the shooting
and then were located near Bella Notte in Norwich at
approximately 12:45 a.m. Tyus admitted at trial that he
had these cell phones with him throughout the night
of the shooting. Additionally, both the defendant and
Tyus admitted, to the police and at trial, that they were
together on the night the victim was shot and killed.
There was other evidence as well from which the
jury reasonably could have inferred that Tyus and the
defendant arrived at Bella Notte after the shooting,
thereby contradicting the defendant’s alibi. Specifically,
Guilbert testified that he saw Tyus and a man matching
the defendant’s description—a thinner, taller, lighter-
skinned, African American male—enter Bella Notte
together approximately fifteen to twenty minutes after
Guilbert received a phone call informing him that the
victim had been shot. See part II of this opinion. Thus,
the records of the defendant’s historical CSLI were
cumulative of this other evidence showing that the
defendant was near Ernie’s Café at approximately mid-
night.
Moreover, there was significant other evidence of the
defendant’s guilt, either as a principal or as an acces-
sory. There was evidence that the defendant and Tyus
went to Boston on the night of the shooting in a silver-
colored Impala that Tyus previously had rented. Multi-
ple witnesses testified that, immediately after the shoot-
ing, a man fitting the defendant’s general description—a
light-skinned, African American man wearing a hooded
sweatshirt—ran from the scene of the shooting and
entered the passenger side of a silver-colored vehicle
matching the appearance of Tyus’ rented Impala. The
defendant’s DNA was retrieved from the Impala’s pas-
senger side. As to motive, there was evidence that the
victim shot Tyus three weeks prior to the victim’s death,
that both the defendant and Tyus were aware that the
victim had been the shooter, and that the defendant
was upset over this attack on his friend, whom he con-
sidered a brother. Further, the firearms evidence the
state presented showed that the gun that Tyus used to
fire back at the victim on December 3, 2006, was the
same weapon used to shoot and kill the victim three
weeks later. And perhaps most damaging to the defen-
dant was Ebrahimi’s testimony that, hours after the
shooting, he confessed to her that he had shot someone
that night.19 See Lapointe v. Commissioner of Correc-
tion, 316 Conn. 225, 323 n.70, 112 A.3d 1 (2015) (‘‘[t]his
court has long recognized that confessions represent
the most damaging evidence of guilt’’ (internal quota-
tion marks omitted)).
Because the admission of the defendant’s historical
CSLI was cumulative of other evidence establishing that
the defendant was near Ernie’s Café at the time of
the shooting, and because the state presented other
significant evidence of guilt, we conclude that the
admission of these records was harmless beyond a rea-
sonable doubt. Therefore, the defendant’s unpreserved
Carpenter claim fails under the fourth prong of Golding,
thereby rendering harmless the Appellate Court’s
improper denial of the defendant’s motion for permis-
sion to file a supplemental brief.
II
We next address whether the Appellate Court cor-
rectly determined that the defendant did not adequately
preserve his hearsay objection to Guilbert’s testimony
about having received a phone call from Charlene
Thomas informing him that the victim had been shot.
He argues that both the state and the trial court under-
stood his general objection to be based on hearsay and
treated it as such. Additionally, he argues that, if the
Appellate Court had reviewed his claim, it would have
determined that the trial court improperly admitted the
contested statement as nonhearsay and that this error
was harmful. The state agrees that the defendant ade-
quately preserved his hearsay objection but contends
that the trial court properly admitted the statement to
show the effect on Guilbert’s subsequent actions, which
were relevant because they established the time line as
to when the defendant and Tyus arrived at Bella Notte.
The state also argues that, to the extent there was error,
it was harmless. We agree with the state that the trial
court properly admitted the statement to show its effect
on the hearer and that, regardless, any error was
harmless.
A
The following additional facts and procedural history
are relevant to our review of whether the defendant’s
hearsay objection to the statement at issue sufficed to
preserve this issue. At trial, Guilbert testified that he
was at Bella Notte on the night when the victim was
shot and that, while there, he received a phone call from
Charlene Thomas, who has no relation to the victim.
The prosecutor then asked: ‘‘And what was relayed to
you on that phone call?’’ Both the defendant’s counsel
and Tyus’ counsel objected, stating only, ‘‘[o]bjection.’’
The prosecutor immediately responded: ‘‘Your Honor,
I’m going to claim it on the effect of the hear[er]—and
will explain what . . . Guilbert then did.’’ Without
hearing further argument, the trial court ruled: ‘‘All
right. Given that claim, I’m going to overrule the objec-
tions and allow the testimony.’’
Once the court overruled the objections, Guilbert
testified as follows: Charlene Thomas told him that the
victim had been shot and that he should call the victim’s
wife to let her know. After talking with Charlene
Thomas, he called the victim’s wife and told her that
she should go to the hospital. No objection was made
to Guilbert’s testifying as to what he told the victim’s
wife. Guilbert then testified that, after talking with the
victim’s wife, he remained sitting at the bar at Bella
Notte for approximately fifteen to twenty minutes when
he saw Tyus and a taller, lighter-skinned, African Ameri-
can man come in from the front entrance. Guilbert had
not seen them in Bella Notte prior to that moment. Tyus
approached Guilbert, greeted him, and offered to buy
him a drink. Guilbert responded that he was getting
ready to leave and did not want a drink. Guilbert then
left Bella Notte and went to the hospital to see the vic-
tim.
‘‘[T]o preserve an evidentiary ruling for review, trial
counsel must object properly by articulat[ing] the basis
of the objection so as to apprise the trial court of the
precise nature of the objection and its real purpose
. . . . [T]he determination of whether a claim has been
properly preserved will depend on a careful review of
the record to ascertain whether the claim on appeal
was articulated below with sufficient clarity to place
the trial court on reasonable notice of that very same
claim.’’ (Internal quotation marks omitted.) State v.
Best, 337 Conn. 312, 317 n.1, 253 A.3d 458 (2020). Appel-
late review of the record may show that opposing coun-
sel’s response to the objection clarified whether counsel
and the trial court understood the basis of the objection.
See id. A party may ‘‘ ‘functionally preserve’ ’’ a claim
even if the objection at trial did not incorporate the
precise wording of the claim on appeal. Id.; see also
State v. Santana, 313 Conn. 461, 467, 97 A.3d 963 (2014)
(‘‘this court has expressed a willingness to review
claims that a party did not explicitly raise to the trial
court if it is clear from the record that the substance
of the claim was raised’’). A hearsay objection is ade-
quately preserved as long as the parties and the court
had ‘‘ ‘fair notice’ ’’ that a hearsay objection was being
raised. State v. Benedict, 313 Conn. 494, 505–506, 98
A.3d 42 (2014).
In the present case, although defense counsel merely
stated, ‘‘[o]bjection,’’ without clarifying that the ground
for it was that Guilbert’s testimony was hearsay, the
prosecutor’s response that he ‘‘claim[ed] it on the effect
of the hear[er],’’ a recognized exclusion from the rule
against hearsay; see part II B of this opinion; shows that
the state was aware that the objection was premised
on hearsay. Similarly, the fact that the trial court then
ruled that, ‘‘[g]iven that claim [by the state], I’m going
to overrule the objections,’’ shows that the court, too,
was aware of the basis for the objection. Considering
that both the state and the trial court were aware of
the basis of the defendant’s objection, any failure to
clarify the basis of the objection did not deprive the
state or the trial court of fair notice of his claim. Thus,
we conclude that the defendant functionally preserved
his hearsay claim.
B
Next, we turn to the merits of the defendant’s claim
that Guilbert’s testimony regarding what Charlene
Thomas told him over the phone was impermissible
hearsay. The defendant argues that the statement was
hearsay because it was relevant only if it was true—
specifically, whether the defendant and Tyus entered
Bella Notte after the phone call was relevant only if the
victim already had been shot; otherwise, the phone call
did not relate to the timing of the shooting or to the
defendant’s alibi, which was that he was already at
Bella Notte at the time of the shooting. The state
responds that it did not offer Guilbert’s testimony to
establish its truth—that the victim had been shot, which
already had been established by other evidence admit-
ted at trial—but to show its effect on Guilbert—namely,
that this phone call caused him to take certain actions,
which were relevant to establish the state’s time line
of events. We agree with the state.
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the [Connecticut]
Code of Evidence, our standard of review is plenary.
For example, whether a challenged statement properly
may be classified as hearsay and whether a hearsay
exception properly is identified are legal questions
demanding plenary review. . . . We review the trial
court’s decision to admit evidence, if premised on a
correct view of the law, however, for an abuse of discre-
tion. . . . In other words, only after a trial court has
made the legal determination that a particular statement
is or is not hearsay, or is subject to a hearsay exception,
is it vested with the discretion to admit or to bar the
evidence based upon relevancy, prejudice, or other
legally appropriate grounds related to the rule of evi-
dence under which admission is being sought.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Miguel C., 305 Conn. 562, 571–72, 46 A.3d 126 (2012).
‘‘Hearsay means a statement, other than one made
by the declarant while testifying at the proceeding,
offered in evidence to establish the truth of the matter
asserted. Conn. Code Evid. § 8-1 (3). The hearsay rule
forbids evidence of out-of-court assertions to prove the
facts asserted in them. If the statement is not an asser-
tion or is not offered to prove the facts asserted, it is
not hearsay. . . . This exclusion from hearsay includes
utterances admitted to show their effect on the hearer.’’
(Citation omitted; internal quotation marks omitted.)
State v. Miguel C., supra, 305 Conn. 572.
Although ‘‘[s]tatements admitted to show the effect
on the hearer are not hearsay . . . they should not be
admitted for that purpose unless it is clear that the
hearer’s state of mind or subsequent conduct is rele-
vant.’’ (Internal quotation marks omitted.) O’Shea v.
Mignone, 35 Conn. App. 828, 833–34, 647 A.2d 37(although statement was offered to show effect on
hearer—police officer—it was not relevant, as officer’s
subsequent actions were not at issue and did not tend
to show whether defendant was operating vehicle that
struck plaintiff), cert. denied, 231 Conn. 938, 651 A.2d
263 (1994). ‘‘Because . . . the effect on the hearer
rationale may be misapplied to admit facts that are not
relevant to the issues at trial; C. Tait & E. Prescott,
Connecticut Evidence (4th Ed. 2008) § 8.8.2, pp. 472–73;
courts have an obligation to ensure that a party’s pur-
ported nonhearsay purpose is indeed a legitimate
one.’’20 State v. Miguel C., supra, 305 Conn. 574. To be
relevant, evidence must ‘‘[tend] to establish a fact in
issue or . . . corroborate other direct evidence in the
case. . . . Accordingly, an out-of-court statement is
admissible to prove the effect on the hearer only when
it is relevant for the specific, permissible purpose for
which it is offered.’’ (Citation omitted; emphasis omit-
ted; internal quotation marks omitted.) Id. ‘‘The prof-
fering party bears the burden of establishing the
relevance of the offered testimony.’’ (Internal quotation
marks omitted.) Farrell v. Johnson & Johnson, 335
Conn. 398, 408, 238 A.3d 698 (2020). Nevertheless, ‘‘[t]he
trial court has broad discretion on questions of rele-
vance.’’ State v. Watson, 26 Conn. App. 151, 156, 599
A.2d 385 (1991), cert. denied, 221 Conn. 907, 600 A.2d
1362 (1992).
The crux of the defendant’s hearsay claim is that
Guilbert’s testimony was relevant only if Charlene
Thomas’ statement was true. We disagree. Charlene
Thomas’ statement to Guilbert that the victim had been
shot was not offered to establish that the victim had
been shot—a fact that was not disputed and that the
state had established through other evidence. Rather,
the purpose of Guilbert’s testimony was to show how
Charlene Thomas’ statement to him affected his subse-
quent actions, i.e., that he called the victim’s wife and
then decided to leave Bella Notte to go to the hospital
to check on the victim. From Guilbert’s testimony that
the defendant and Tyus arrived at Bella Notte after the
two phone calls and that Guilbert thereafter decided to
go to the hospital to visit the victim, the jury reasonably
could have inferred that the defendant and Tyus arrived
at Bella Notte after the victim had been shot. This,
in turn, tended to corroborate other direct evidence
admitted at trial, such as the defendant’s testimony that
he was with Tyus that night and Tyus’ historical CSLI
showing that he did not arrive at Bella Notte until after
the shooting. Thus, Guilbert’s testimony was relevant
both to establish when the defendant and Tyus arrived
at Bella Notte, which was central both to the state’s case
and to the defendant’s alibi, and to show the effect on
the hearer’s subsequent actions, which also were rele-
vant. Accordingly, this evidence was properly admitted
as nonhearsay.
C
Finally, even if we assume that Guilbert’s statement
that Charlene Thomas told him that the victim had been
shot was hearsay, we agree with the state that its admis-
sion was harmless. ‘‘When an improper evidentiary rul-
ing is not constitutional in nature, the defendant bears
the burden of demonstrating that the error was harmful.
. . . [T]he proper standard for determining whether
an erroneous evidentiary ruling is harmless should be
whether the jury’s verdict was substantially swayed by
the error. . . . Accordingly, a nonconstitutional error
is harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) State v. Bouknight,
323 Conn. 620, 626–27, 149 A.3d 975 (2016). In determin-
ing the harm of an erroneous evidentiary ruling, we
examine the same factors as we do in determining the
harm of an erroneous constitutional ruling. Id.The defendant argues that, without Guilbert’s testi-
mony about what he was told by Charlene Thomas, the
state had no means to establish its proposed time line
of events and to contradict his alibi because the jury
would have heard only Guilbert’s testimony that he saw
Tyus and a man matching the defendant’s description
arrive at Bella Notte at about 11 p.m. Thus, Guilbert’s
testimony would have supported the defendant’s alibi,
rather than contradicting it, and would thereby estab-
lish that it is more probable than not that the contested
statement affected the verdict. We disagree.
We first note that, even if Guilbert had not been
allowed to testify as to what Charlene Thomas told
him, there was no objection to the other portions of
Guilbert’s testimony—namely, that he received a call,
that because of that call he called the victim’s wife and
decided to leave Bella Notte to go to the hospital to
check on the victim, and that, approximately fifteen to
twenty minutes after those calls, he saw Tyus and
another man matching the defendant’s description enter
Bella Notte. From this evidence, the jury reasonably
could have inferred that the victim had been shot prior
to the defendant’s and Tyus’ entering Bella Notte. See,
e.g., State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003(jury is permitted to draw inferences from evidence
admitted at trial as long as those inferences are reason-
able), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L.
Ed. 2d 413 (1990). Even without the contested state-
ment, the jury nevertheless would have been able to
reasonably infer that Tyus and the defendant arrived
at Bella Notte after the victim was shot because Guilbert
consistently stated that, although he thought the two
men arrived at about 11 p.m., he was not looking at his
watch, but they arrived after the two phone calls.
We recognize that, although reasonable, these infer-
ences would not be as strong if the jury had heard
Charlene Thomas’ statement that the victim had been
shot. Contrary to the defendant’s contention, however,
Charlene Thomas’ statement to Guilbert was not the
only evidence that established the state’s time line of
events. The defendant’s argument presumes that the
records of Tyus’ historical CSLI should have been sup-
pressed. But, as discussed in part I B 1 of this opinion,
those records may be considered in determining whether
any error, constitutional or evidentiary, harmed the
defendant. Those records, coupled with the defendant’s
own admission that he was with Tyus on the night
of the shooting, establish that the defendant was near
Ernie’s Café at the time of the shooting and that only
then did he and Tyus travel north to Norwich, arriving
near Bella Notte at approximately 12:45 a.m. Addition-
ally, as discussed in part I B 2 of this opinion, there
was substantial other evidence admitted at trial that
established the defendant’s guilt. Thus, even if the con-
tested statement was inadmissible hearsay, it did not
substantially affect the jury’s verdict.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* March 23, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
At trial, Cindalee Torres, the mother of Tyus’ son, testified that she also
went to the hospital to check on Tyus and that, while there, overheard the
defendant state that ‘‘we’re gonna get them niggas . . . .’’ She also testified,
however, that she never met or saw the defendant prior to that night in the
hospital. On appeal to the Appellate Court, the defendant claimed that Torres
improperly identified him as the speaker of this overheard statement 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). The Appellate Court agreed, holding that the identification
was improper but that the error was harmless. State v. Armadore, 186
Conn. App. 140, 156–58, 198 A.3d 586 (2018). The defendant did not seek
certification to appeal as to this issue. Thus, for purposes of our review,
we do not consider Torres’ testimony that she heard the defendant make
this statement.
2
Both the defendant and Tyus also were charged with conspiracy to
commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, but
those charges were later dismissed on the ground that they were barred by
the statute of limitations.
3
Tyus has filed a separate appeal, which is pending in this court under
Docket No. SC 20462.
4
The Appellate Court held that (1) the trial court did not abuse its discre-
tion by granting the state’s motion to join the defendant’s trial with that of
Tyus, (2) the defendant’s constitutional right to confrontation was not vio-
lated when a state firearms examiner testified about the findings and conclu-
sions made by another firearms examiner who was unavailable to testify,
(3) although the defendant was improperly identified for the first time in
court by Torres as the speaker of a statement she overheard at the hospital
where she went to check on Tyus after he had been shot, this error was
harmless; see footnote 1 of this opinion; and (4) the defendant’s general
objection to the alleged hearsay testimony of Guilbert was insufficient to
preserve his claim for review. See State v. Armadore, supra, 186 Conn. App.
145, 151, 156, 158, 160.
5
We declined to grant the defendant certification to appeal as to whether
the trial court violated his right to confrontation by admitting expert testi-
mony from a state firearms examiner; see footnote 4 of this opinion; and
whether this court should adopt the doctrine of cumulative error. The defen-
dant did not seek certification to appeal on the issue of whether the trial
court improperly granted the state’s motion to join his trial with that of Tyus.
6
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 state had Wines redact the defendant’s name insofar as it concerned 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 one of these phone numbers was
connected to a cell phone registered to the defendant and that the other
two phone numbers were connected to cell phones registered to or used
by Tyus.
7
As to the ex parte orders concerning the defendant’s prospective CSLI,
we held that ‘‘[t]he state’s concession that the prospective orders were
issued in violation of § 54-47aa resolves that question for the two prospective
orders.’’ State v. Brown, supra, 331 Conn. 271.
8
We note that there is some debate among courts in some jurisdictions
regarding whether the retroactivity rule in Griffith is meant to trump state
appellate procedural rules. Some courts have held that this rule does not
trump procedural rules, and, thus, a defendant may not raise a claim prem-
ised on a new constitutional rule—even if his case was pending at the time
the rule was announced—if he failed to raise the claim before the trial court
or in his initial appeal. See United States v. McCrimmon, 443 F.3d 454,
461–63 (5th Cir.) (defendant failed to raise claim on direct appeal), cert.
denied, 547 U.S. 1120, 126 S. Ct. 1931, 164 L. Ed. 2d 679 (2006); see also United
States v. Levy, 391 F.3d 1327, 1332 (11th Cir. 2004) (Hull, J., concurring in
the denial of rehearing en banc) (request for rehearing en banc was denied
because defendant failed to comply with rule requiring that all issues must
be raised in initial appellate brief).
Other courts have permitted review under the federal plain error doctrine
embodied in Fed. R. Crim. P. 52 (b) or rejected arguments that a defendant
‘‘ ‘waived’ a claim based on a then-recent Supreme Court decision by failing
to object at trial or advance the claim in his initial brief.’’ United States v.
Levy, supra, 1342 (Tjoflat, J., dissenting from the denial of rehearing en
banc); id., 1342–43 (Tjoflat, J., dissenting from the denial of rehearing en
banc) (discussing cases in which claims were considered under plain error
standard); see also United States v. Pree, 408 F.3d 855, 874 (7th Cir. 2005)
(claim premised on new rule announced after defendant filed original briefs
on appeal reviewed for plain error despite defendant’s having failed to raise
claim at trial or in original appellate briefs); United States v. Delgado, 256
F.3d 264, 280 (5th Cir. 2001) (plain error review afforded claim raised pursu-
ant to new rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), when claim was first made in supplemental
brief after defendant failed to object at sentencing or to raise issue in initial
appellate brief); United States v. Cernobyl, 255 F.3d 1215, 1216, 1218 (10th
Cir. 2001) (same); cf. United States v. Rogers, 118 F.3d 466, 471 (6th Cir.
1997) (claim failed to meet requirements for review of plain error).
Thus, courts in some jurisdictions have held that a defendant’s failure to
preserve a Carpenter claim at trial prevents review of that claim, despite
the fact that the new rule was not announced until after the defendant’s
trial but while the case remained pending. See State v. Lewis, Docket Nos.
A-2411-15T3, A-2550-15T1 and A-2551-15T3, 2019 WL 149907, *6 (N.J. App.
Div. January 7, 2019) (declining to review unpreserved Carpenter claim
even though appeal was pending when Carpenter was released), cert. denied,
238 N.J. 432, 211 A.3d 723 (2019), and cert. denied, 238 N.J. 433, 211 A.3d
724 (2019), and cert. denied, 238 N.J. 437, 211 A.3d 726 (2019); People v.
Crum, 184 App. Div. 3d 454, 455, 126 N.Y.S.3d 7 (holding that failure to
preserve Carpenter claim at trial precluded appellate review even though
Carpenter was decided after defendant’s conviction), appeal denied, 35
N.Y.3d 1065, 152 N.E.3d 1206, 129 N.Y.S.3d 404 (2020).
In light of this court’s Golding jurisprudence, which permits review of
unpreserved constitutional claims, we need not join the fray to determine
whether Griffith was intended to trump state procedural rules.
9
The state does not argue that the defendant waived his unpreserved
Carpenter claim under Golding’s third prong. See, e.g., State v. Foster, 293
Conn. 327, 337–38, 977 A.2d 199 (2009) (‘‘For certain fundamental rights,
the defendant must personally make an informed waiver. . . . For other
rights, however, waiver may be effected by action of counsel [such as
consenting to or expressing satisfaction with the ruling at issue].’’ (Internal
quotation marks omitted.)).
10
As part of this argument, the state contends that, because the defendant
failed to raise a Carpenter claim in his initial appeal, the claim is abandoned
and that, under our procedural default rule, he has no right to review unless
he establishes that prior law made the claim unavailable to him. See Hinds
v. Commissioner of Correction, 321 Conn. 56, 71, 136 A.3d 596 (2016)
(discussing procedural default standard applied in habeas corpus cases);
see also United States v. David, 83 F.3d 638, 644–45 (4th Cir. 1996) (as
exception to procedural default rule, defendant may raise unpreserved claim
based on new constitutional rule if claim would have been implausible
before new rule).
The state appears to conflate our procedural default rule and the first
exceptional circumstance articulated under Evans. To the extent that the
state conflates these doctrines, as we explain in this opinion, the Golding
standard fully replaced the Evans standard, and, thus, to be entitled to
Golding review, the defendant is not required to establish that his unpre-
served constitutional claim was not readily foreseeable. To the extent that
the state attempts to apply the procedural default rule to the circumstances
of this case, we note that this court normally applies the procedural default
rule on collateral review. We have been unable to find any cases in which
we have applied this rule on direct review, and, thus, we decline to do so now.
11
Although none of these cases explicitly addresses whether the new rule
at issue had to be ‘‘not readily foreseeable’’ to entitle a litigant to review
under Golding, two of these cases involved unpreserved claims that were
at least arguably foreseeable. See State v. Correa, supra, 185 Conn. App.
322–23 n.10 (unpreserved claim based on recent rule announced in State v.
Kono, supra, 324 Conn. 93, which did not reverse any established precedent
but, rather, followed existing case law from United States Court of Appeals
for Second Circuit); State v. Shinn, supra, 47 Conn. App. 408–409 (affording
Golding review to unpreserved claim, which was based on new rule that
arguably was not unforeseeable or that applied established rule to new set
of facts); State v. Shinn, supra, 419–20 (Foti, J., dissenting) (concluding
that, contrary to defendant’s claim, new constitutional right was not created
while his case was pending and that right that defendant claimed was violated
was readily foreseeable to him).
We note that, although this court granted certification to appeal in Correa
on the issue of whether, under Kono, article first, § 7, of the Connecticut
constitution prohibits the police from conducting a warrantless canine sniff
of the exterior door to a motel room for the purpose of detecting the presence
of illegal drugs inside the room; see State v. Correa, 330 Conn. 959, 959–60,
199 A.3d 19 (2019); no party challenges the applicability of Golding to the
unpreserved claim in Correa.
12
Additionally, as noted previously, the retroactivity rule in Griffith
ensures that similarly situated defendants are treated equally. Griffith v.
Kentucky, supra, 479 U.S. 323. This principle is particularly important in
the present case, as Tyus, likewise, has an appeal pending before this court
under Docket No. SC 20462, in which this court granted certification to
appeal regarding the merits of his Carpenter claim; see State v. Tyus, 335
Conn. 907, 227 A.3d 77 (2020); although he, too, raised this claim after
oral argument in the Appellate Court in a motion for permission to file a
supplemental brief, which was denied.
13
The defendant also argues that the Appellate Court abused its discretion
by denying his motion to supplement the record. Because the defendant’s
claim would fail under the fourth prong of Golding even if we were to
assume that the record was adequate for review, we hold that, to the extent
that the Appellate Court abused its discretion by denying the defendant’s
request to supplement the record, the error was harmless.
14
We note that, in his petition for certification to appeal, the defendant
did not seek to challenge the trial court’s granting of the state’s motion to
join his trial with that of Tyus.
15
In his supplemental brief concerning whether this court may consider
Tyus’ historical CSLI in determining harm under Golding’s fourth prong,
the defendant, for the first time, raises a claim that this court, in determining
harm, also cannot consider Ebrahimi’s testimony that, on the night of the
shooting, the defendant told her that he had shot someone because Ebrah-
imi’s testimony constituted a fruit of the poisonous tree.
Specifically, the defendant contends that Ebrahimi made this statement
only years later, after Detective Curcuro showed her his case file, which
would have included the defendant’s historical CSLI, thereby reminding her
that the defendant had been with other women that night and giving her
motive to fabricate her testimony. The state has moved to strike this portion
of the supplemental brief, arguing that it went beyond the scope of the
question on which this court requested supplemental briefs from the parties.
We agree with the state that this claim is beyond the scope of any of the
questions we certified for review or our request for supplemental briefs,
and we decline to address it.
Nevertheless, we note that the connection between the defendant’s histori-
cal CSLI and Ebrahimi’s statement inculpating the defendant is so attenuated
as to dissipate any taint. Ebrahimi already knew that the defendant had
been with other women that night; it was not news to her. And, at the time
of her statement, Detective Curcuro’s file had significant other evidence
showing that the defendant was with other women that night. See State v.
Spencer, 268 Conn. 575, 599–600, 848 A.2d 1183, cert. denied, 543 U.S. 957,
125 S. Ct. 409, 160 L. Ed. 2d 320 (2004).
16
We note that there are certain limited exceptions to this rule, such as
third-party standing, but that none has been asserted in the present case.
See State v. Bradley, 195 Conn. App. 36, 51, 223 A.3d 62 (2019), cert. granted,
334 Conn. 925, 223 A.3d 379 (2020).
17
See General Statutes § 54-47aa (a) (3) (defining cell site stimulator
device).
18
At the time of the warrantless search, McDonald was inside his room,
along with Washington, who was his guest. McDonald v. United States,
supra, 335 U.S. 456.
19
Although defense counsel on cross-examination tried to show that
Ebrahimi had fabricated this confession years after the shooting in response
to Detective Curcuro’s threats, Ebrahimi responded affirmatively to the
prosecutor’s question as to whether, ‘‘notwithstanding anything that Detec-
tive Curcuro may have said’’ to her, she heard the defendant tell her that
he had shot someone.
Additionally, the state rehabilitated her testimony in two ways. First,
on redirect examination, the state established that Ebrahimi feared the
defendant when he had been drinking or had been mad at her, and that the
defendant previously had hit her, which provided an alternative reason for
why she did not inform the police sooner about his confession. Second,
Ebrahimi testified that, two months after the victim’s death, she told her
mother that the defendant had shot someone. The state also elicited testi-
mony from Ebrahimi’s mother that, near the end of 2006, Ebrahimi told her
that the defendant had shot someone and that Ebrahimi ‘‘was a mess’’
about it.
20
Although defense counsel functionally objected to the contested state-
ment on hearsay grounds, not on relevancy grounds, because we have held
that trial courts have an obligation to ensure that statements offered for
the effect on the hearer are relevant, and because the prosecutor specified
on the record before the trial court why he believed the statement was
relevant—to show the effect on Guilbert’s subsequent actions—we review
both whether the statement was hearsay and whether it was relevant.