State v. Edwards

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STATE OF CONNECTICUT v. EUGENE EDWARDS, JR.
(SC 19735)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 12, 2016—officially released April 11, 2017
Timothy H. Everett, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Brett J. Salafia, senior assistant
state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Eugene Edwards, Jr.,
appeals from the judgment of the trial court convicting
him of home invasion in violation of General Statutes
§ 53a-100aa (a) (2), robbery in the first degree in viola-
tion of General Statutes § 53a-134 (a) (2), larceny in the
second degree in violation of General Statutes § 53a-
123 (a) (3), and assault of an elderly person in the third
degree in violation of General Statutes § 53a-61a (a) (1)
arising out of an incident in Wethersfield.1 On appeal
to this court, the defendant asserts that: (1) the trial
court improperly denied his motion to suppress certain
statements that he had made to police; (2) the trial
court abused its discretion when it allowed a police
officer to present nonexpert testimony regarding cell
phone records and maps; and (3) the evidence was
insufficient to support his convictions. We agree with
the defendant that the trial court improperly allowed
the police officer to present certain testimony regarding
the cell phone records and maps, but find such error
was harmless. We disagree with the defendant’s other
claims and, accordingly, affirm the judgment of the
trial court.
The record reveals the following facts, which the jury
reasonably could have found. On June 22, 2012, the
victim, Lieslotte Worysz, went grocery shopping at a
Stop and Shop grocery store in Rocky Hill. After com-
pleting her shopping, she returned to her home in Weth-
ersfield. While driving home, the victim noticed a motor
vehicle driving behind her. The victim testified that the
vehicle was a Chrysler 300 and that she was able to
identify its make and model because she and her hus-
band previously owned Chryslers and ‘‘were into cars.’’
The victim further stated that the vehicle was ‘‘fairly
new’’ and a ‘‘light color,’’ explaining as follows: ‘‘[It]
follow[ed] me [at] a distance . . . and I admired [it]. I
figured gee, the grill, everything is beautiful. I like it.’’
Upon returning home, the victim used a remote to
open the door to her attached garage and parked her
vehicle inside. The victim noticed that the vehicle that
had been following her home was parked behind her
in the driveway. As the victim was about to exit her
vehicle, the defendant, who was the driver of the vehicle
that had follower her, approached her in the garage,
held a black gun to her stomach and demanded money.
The victim said to the defendant, ‘‘why are you doing
this to me? I didn’t do nothing to you,’’ and tried to exit
her vehicle, but the defendant pushed her back down
into the driver’s seat and said, ‘‘[Y]ou shut up. If you’re
going to scream. I’m going to hurt you. I’m going to
shoot you.’’ The defendant then took the victim’s remote
and closed the garage door with both of them inside.
The defendant grabbed the victim’s pocketbook and
took the money that was inside. He also took the vic-
tim’s diamond ring, wedding band, watch, and keys.
Afterward, the defendant opened the garage, threw the
victim’s keys and remote on the driveway, and left the
scene. The victim picked up the items that the defendant
had discarded, went into her house, and called the
police.
When the police arrived, they took several photo-
graphs of the scene. The victim told police about the
Chrysler 300 and provided a description of the driver,
but she could not identify him in a photographic array.
Detectives Christopher Morris and James Darby of the
Wethersfield Police Department processed the scene
and the victim’s belongings for fingerprints and DNA
analysis. They obtained several latent fingerprints from
the driver’s door of the victim’s vehicle and swabbed the
victim’s vehicle, remote, and wallet for DNA analysis.
Darby processed the driver’s side of the victim’s vehi-
cle for fingerprints because the victim ‘‘had reported
that as she was exiting [her vehicle], she was robbed
and made by the suspect to sit back down inside [her
vehicle].’’ Darby took six ‘‘hinge lifters’’ and marked
the locations for each lift. Morris sent the lifts to the
Hartford Police Department, which found no matches.
Morris then took the lifts to the state forensic labora-
tory. John Brunetti from the state forensic laboratory
testified regarding his analysis of two latent partial
prints obtained from the victim’s vehicle. He concluded
that they matched, respectively, the defendant’s left
middle and index fingers.
Thereafter, Morris went to the grocery store where
the victim had been shopping and obtained the security
video from the parking lot. Upon reviewing the video,
Morris noted a white vehicle following the victim out
of the parking lot. Upon further review of the video,
Morris and the other officers noted several characteris-
tics about that vehicle, namely, a black scuff mark on
the rear bumper, an E-ZPass or some other form of
transponder device on the front windshield, and a third
brake light in the center of the vehicle’s trunk that did
not appear to be functioning properly. The vehicle had
a Connecticut license plate on the front bumper, but
officers were unable to obtain the plate number from
the security video. Morris later showed the video to
employees of a Chrysler dealership, who confirmed that
the vehicle in the video was a Chrysler 300.
On June 25, 2012, Morris shared information about
the case with other police departments and the media
in order to obtain investigative leads from members of
the public. The report released by the media described
the perpetrator of the crime as a black male between
thirty and forty years old, approximately five feet ten
inches to six feet tall, medium build and short black
hair. The report also described the vehicle allegedly
used in the robbery, including that it may have had an
E-ZPass or other form of transponder device on the
front windshield.
The New Britain Police Department provided Morris
with information on three white Chrysler 300 vehicles
that had some contact with the police, including one
that belonged to the defendant. On June 25, the same
day that the media released information about the rob-
bery, Morris drove to the defendant’s address in New
Britain and photographed his white Chrysler 300. Morris
noticed that the defendant’s vehicle had a black scuff
mark on its rear bumper, which was consistent with
the mark on the vehicle in the surveillance video. Morris
then ran the vehicle’s plate number through the license
plate reader database and discovered that the Newing-
ton police had photographed the defendant’s front
license plate on June 1, 2012. Morris also discovered
that the defendant’s father, Eugene Edwards, Sr., had
an E-ZPass account and that the transponders can easily
be transferred between vehicles.
On June 27, 2012, two days after the media released
the report of the robbery, Morris asked Officer Ronald
Floyd of the Wethersfield Police Department to conduct
further surveillance on the defendant’s vehicle. Floyd
drove to the defendant’s house in New Britain and took
several photographs of the defendant’s vehicle, which
was parked approximately 200 yards from the house
in a school parking lot. Floyd’s photograph of the front
of the defendant’s vehicle showed that it no longer had
a front license plate and that material from the front
bumper where the license plate screws had been placed
was protruding, which indicated that the plate had
recently been removed. Floyd observed two vertical
marks on the front windshield, just below the rearview
mirror, which were consistent with leftover adhesive
from an E-ZPass or other similar transponder device.
In Floyd’s photograph, there was a New York Giants
bumper sticker on the rear bumper, which was not in
the photograph of the defendant’s vehicle taken two
days earlier. In addition, the photograph taken by Floyd
showed that white paint had been applied to the black
scuff mark on the rear bumper.
On June 28, 2012, officers drove to the defendant’s
home in New Britain to execute a search warrant. Inside
the defendant’s house, the officers found the front
license plate to the defendant’s Chrysler 300, which had
been hidden underneath the seat cushion of a sofa. The
officers also discovered a black handheld BB gun in a
bedroom closet.
The defendant remained outside while the police
searched his home. The defendant also volunteered
information about his vehicle to Detective Michael Pat-
koske of the Wethersfield Police Department. The
defendant said that the scratches on his rear bumper
had been there since he had purchased the vehicle, that
the New York Giants bumper sticker had been on his
rear bumper since 2011, and that he never had an E-
ZPass account. The defendant also told Patkoske that
his front license plate was under the couch and that it
had been knocked off the car as a result of a motor
vehicle accident in New York in 2011. The officers did
not, however, observe any damage to the front of the
defendant’s car or on the license plate found in the
home. Police seized the defendant’s vehicle as evidence,
and after further inspection, they determined that the
third brake light on the vehicle was functioning prop-
erly. The defendant’s nephew, Justin Collins, testified
that the defendant had told Collins to tell the police
that the BB gun was his if the police asked.
On July 3, 2012, Patkoske called the defendant and
asked him if he would be willing to speak with him
about his vehicle and his whereabouts in June, 2012.
Although they had not discussed the dates of the Weth-
ersfield or Berlin robberies; see footnote 1 of this opin-
ion; the defendant told Patkoske ‘‘I wasn’t even here
. . . when all that stuff was going on, whenever that
happened.’’ He said that he was in North Carolina from
June 19 to June 22 for his aunt’s funeral and that he
was with his girlfriend, Caryn Prince, in Virginia from
June 1 to June 9, but he was not confident of the dates.
The defendant gave Prince’s cell phone number to Pat-
koske and told him to check with her on the dates of
the Virginia trip. Patkoske then called Prince twice on
that same day to confirm the defendant’s whereabouts.
In between those two telephone calls, the defendant
called Prince and told her that the police ‘‘were trying
to frame him’’ and that, if the police called her, she
should say that ‘‘he was with [her].’’ Prince told Pat-
koske that she was with the defendant in Virginia in
May not in June. Patkoske later learned that the defen-
dant was in Connecticut on June 22, 2012, because he
had obtained a receipt from a retail store showing that
the defendant had transacted business in Connecticut
on that date.
On September 19, 2012, the defendant appeared at
the Wethersfield police station and was placed under
arrest. The defendant maintained that he was not the
perpetrator of the robberies, and he told Morris that
he had ‘‘the wrong tall, thin black male,’’ and that ‘‘no
one picked him out of a lineup . . . .’’
Thereafter, the defendant was charged, inter alia,
with home invasion in violation of § 53a-100aa (a) (2),
robbery in the first degree in violation of § 53a-134 (a)
(2), larceny in the second degree in violation of § 53a-
123 (a) (3), and assault of an elderly person in the third
degree in violation of § 53a-61a (a) (1). See footnote 1
of this opinion. After a five day trial, the jury convicted
the defendant of these charges. The trial court there-
after rendered judgment in accordance with the jury’s
verdict and sentenced the defendant to four concurrent
terms of incarceration: twenty years for home invasion,
twenty years for robbery in the first degree, one year
for assault of an elderly person in the third degree and
ten years for larceny in the second degree. This appeal
followed.2 Additional facts will be set forth as necessary.
On appeal, the defendant claims that: (1) the trial
court improperly denied his motion to suppress certain
statements that he had made to police; (2) the trial
court abused its discretion when it allowed Morris to
present certain nonexpert testimony regarding cell
phone records and maps; and (3) the evidence was
insufficient to support his convictions. We address each
of these claims in turn.
I
The defendant claims that the trial court improperly
denied his motion to suppress certain statements that
he made to the police. Specifically, the defendant
asserts that the trial court improperly denied his motion
to suppress statements made to the police during the
execution of the search warrant at his home on June
28, 2012, and after his arrest on September 19, 2012,
because he was not advised of his rights under Miranda
v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966). The state responds that the trial court
properly denied the defendant’s motion to suppress
because the statements were not made during a custo-
dial interrogation. We agree with the state.
The following additional facts are relevant to this
claim. Before trial, the defendant filed a motion to sup-
press, claiming that his statements to the police should
not be admitted at trial because the police failed to
advise him of his Miranda rights. After a hearing, the
trial court found the following facts: ‘‘As part of their
investigation, the Wethersfield Police Department
obtained a search warrant for a white Chrysler 300
registered to the defendant at 39 Nye Street, New Brit-
ain, the residence of the defendant.
‘‘On June 28, 2012 . . . Patkoske was in an
unmarked police vehicle . . . . After waiting for a
period of time, the white vehicle, believed to be the
defendant’s, was observed driving to the [defendant’s]
residence. Once the defendant’s vehicle entered the
driveway, the police vehicle’s lights were activated. The
operator, identified as [the defendant], was asked to
exit the vehicle and be subjected to a [patdown] for
weapons. The passenger in the vehicle . . . Collins
. . . was also subjected to a weapons search.
‘‘There were no weapons found [during the patdown].
The defendant was advised of the search warrants and
the intended locations of the search. Information was
obtained that there were other people in the residence.
Those individuals were asked to exit during the execu-
tion of the search warrant for the residence. A search
of the residence and the [vehicle] was conducted.
‘‘While the searches were being conducted . . . Pat-
koske testified that he remained outside of the resi-
the defendant was outside the residence, walking
around the driveway, while not under arrest, nor hand-
cuffed. Patkoske testified that during this time, the
defendant spoke to him. The nature of the conversa-
tions were: why the police were there, information con-
cerning the vehicle, [the] scratches on the vehicle, [the
New York Giants] bumper sticker, and that the vehicle
never had an [E-ZPass transponder] on the windshield.
‘‘There was also a discussion about the front marker
plate of the vehicle. . . . Patkoske testified that he
inquired of the defendant about the front plate. The
defendant stated that the plate was knocked off the
vehicle in an accident in New York, and that it [had]
been off the vehicle for about a year. The defendant
further stated that he was the only one who drives
the vehicle.
‘‘[Patkoske] testified that he remained at the 39 Nye
Road location for the duration of the approximately
two hour search of the residence and vehicle.
‘‘On September 19, 2012 . . . Morris of the Wethers-
field Police Department contacted the defendant indi-
cating that he could pick up his vehicle at the station.
This was a ruse to get the defendant to come to the
police [station] to be arrested. Upon the defendant’s
arrival, he was placed under arrest. While under arrest
and proceeding through the booking process . . . Mor-
ris indicated that he inquired of the defendant only
biographical questions.
‘‘During the processing of the [uniform arrest record]
. . . Morris testified that the defendant stated that he
was not the same person that was arrested in New York
fifteen years ago, that [that is] all they got on him, and
no one picked him out of a lineup. At the time of these
statements, the defendant was under arrest, but had
not yet been read his Miranda advisements.’’ (Internal
quotation marks omitted.) The trial court denied the
defendant’s motion to suppress in its entirety.
‘‘Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress is
[well-defined]. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]here the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision . . . .’’ (Internal quota-
tion marks omitted.) State v. Smith, 321 Conn. 278, 288,
138 A.3d 223 (2016); see also State v. Betances, 265
Conn. 493, 500, 828 A.2d 1248 (2003).
In order to establish that he was entitled to Miranda
warnings, a defendant must show that he was in custody
when he made the statements and that he made the
statements in response to police questioning. State v.
Mangual, 311 Conn. 182, 192, 85 A.3d 627 (2014). In
assessing whether a person is in custody for purposes of
Miranda, ‘‘the ultimate inquiry is whether a reasonable
person in the defendant’s position would believe that
there was a restraint on [his] freedom of movement of
the degree associated with a formal arrest. . . . Any
lesser restriction on a person’s freedom of action is not
significant enough to implicate the core . . . concerns
[of the fifth amendment to the United States constitu-
tion] that Miranda sought to address.’’ (Citation omit-
ted; footnote omitted; internal quotation marks
omitted.) Id., 194–95.
‘‘The defendant bears the burden of proving that he
was in custody for Miranda purposes. . . . Two dis-
crete inquiries are essential to determine custody: first,
what were the circumstances surrounding the interro-
gation; and second, given those circumstances, would
a reasonable person have felt he or she was not at
liberty to terminate the interrogation and leave. . . .
The first inquiry is factual, and we will not overturn
the trial court’s determination of the historical circum-
stances surrounding the defendant’s interrogation
unless it is clearly erroneous. . . . The second inquiry,
however, calls for application of the controlling legal
standard to the historical facts. . . . The ultimate
determination of whether a defendant was subjected
to a custodial interrogation, therefore, presents a mixed
question of law and fact, over which our review is de
novo.’’ (Internal quotation marks omitted.) State v.
Mitchell, 296 Conn. 449, 459, 996 A.2d 251 (2010).
‘‘[W]hether a defendant was subjected to interroga-
tion . . . involves a similar two step inquiry . . . .
Because this framework is analogous to the determina-
tion of whether a defendant is in custody, the ultimate
determination, therefore, of whether a defendant
already in custody has been subjected to interrogation
also presents a mixed question of law and fact over
which our review is plenary, tempered by our scrupu-
lous examination of the record to ascertain whether
the findings are supported by substantial evidence.’’
(Citation omitted.) State v. Mullins, 288 Conn. 345, 364,
952 A.2d 784 (2008). ‘‘Interrogation, as conceptualized
in the Miranda opinion, must reflect a measure of com-
pulsion above and beyond that inherent in custody
itself.’’ (Internal quotation marks omitted.) State v.
Vitale, 197 Conn. 396, 412, 497 A.2d 956 (1985).
A
The defendant first asserts that the trial court improp-
erly denied his motion to suppress the statements to
police on June 28, 2012, because he was subjected to
custodial interrogation.3 Specifically, the defendant
asserts that a reasonable person would not have felt
he or she was able to leave. The defendant does not
claim that the trial court’s factual findings were
clearly erroneous.
In regard to statements made by the defendant on
June 28, 2012, the trial court found as follows: ‘‘In
addressing this issue, the court reviews the testimony
presented at the October 18, 2013 hearing, which was
previously indicated in this memorandum. In reviewing
that testimony, the court considers that the defendant
was confronted and asked to exit the vehicle. . . . Pat-
koske testified that he [did not] recall whether he had
his firearm exposed, but was prepared for the potential
of the defendant being in possession of a firearm and
that he protected himself.
‘‘[Patkoske] testified that once the defendant was out
of his vehicle and the [patdown] was conducted, he
was released and free to leave. The testimony presented
was that the defendant was walking around the prop-
erty, free to leave.
‘‘The court finds the testimony of . . . Patkoske
credible. Considering the law previously indicated and
the credible facts presented, the court finds that the
defendant was not ‘in custody’ for [the purpose of
Miranda].
‘‘The court does not find ‘custody’ for the purposes
of a Miranda advisement. Therefore, the court need
not address the ‘interrogation’ aspect of custodial inter-
rogation.’’
In Mangual, we set forth ‘‘the following nonexclusive
list of factors to be considered in determining whether
a suspect was in custody for purposes of Miranda: (1)
the nature, extent and duration of the questioning; (2)
whether the suspect was handcuffed or otherwise phys-
ically restrained; (3) whether officers explained that
the suspect was free to leave or not under arrest; (4)
who initiated the encounter; (5) the location of the
interview; (6) the length of the detention; (7) the number
of officers in the immediate vicinity of the questioning;
(8) whether the officers were armed; (9) whether the
officers displayed their weapons or used force of any
other kind before or during questioning; and (10) the
degree to which the suspect was isolated from friends,
family and the public.’’ State v. Mangual, supra, 311
Conn. 196–97; see also State v. Arias, 322 Conn. 170,
177, 140 A.3d 200 (2016).
The record demonstrates that, although Patkoske
engaged in a brief patdown of the defendant and Collins,
he informed all occupants in the home, including the
defendant, that they were free to leave. The defendant
was not handcuffed or restrained after the patdown.
Indeed, the defendant was walking around the property
and many family members remained at the property,
in the backyard of the home. The record further demon-
strates that one officer remained outside in the vicinity
of the defendant’s vehicle, and that the defendant him-
self initiated the conversation with the police about
his vehicle.
The defendant asserts that the fact that the officers
arrived at the defendant’s home utilizing the police
sirens and lights, ordered the defendant and Collins out
of the vehicle and conducted a search of the home
pursuant to the search warrant is sufficient to establish
that a reasonable person would believe he was not free
to leave.4 We disagree. The trial court found that ‘‘once
the defendant was out of his vehicle and the [patdown]
was conducted, he was released and free to leave. The
testimony presented was that the defendant was walk-
ing around the property, free to leave.’’ We find the
Appellate Court’s reasoning in State v. Spence, 165
Conn. App. 110, 118–19, 138 A.3d 1048, cert. denied,
321 Conn. 927, 138 A.3d 287 (2016), persuasive on this
issue. In Spence, the Appellate Court concluded that
‘‘the police presence did not overwhelm the defendant
to the point that a reasonable person would believe
that he was in custody.’’ Id., 118. The Appellate Court
reasoned that ‘‘[t]he surroundings were familiar to the
defendant. He was in an open area of the home, and
he was surrounded by his family including other adults.
While there were as many as ten police officers in the
home assisting with the execution of the search war-
rant, they were not brandishing their weapons.’’ Id.,
118–19. Similarly, in the present case, the defendant
was outside, in the open air, able to walk around the
property, including into the area where the rest of his
family was waiting. On the basis of these factual find-
ings, we conclude that the trial court properly deter-
mined that the defendant was not in custody when he
made statements to the police on June 28, 2012.
B
The defendant next claims that the trial court improp-
erly denied his motion to suppress the statements made
to police on September 19, 2012. In regard to these
statements, the trial court found as follows: ‘‘In
addressing this issue, the court reviews the testimony
presented at the October 18, 2013 hearing . . . .
‘‘The testimony of . . . Morris was that the defen-
dant was asked to come to the Wethersfield Police
Department to retrieve his vehicle. Upon arrival, the
defendant was placed under arrest and handcuffed. The
defendant was processed through the booking pro-
cedure.
‘‘While under arrest . . . Morris indicated that the
defendant asked for [an attorney] and a bail commis-
sioner. The court has analyzed the credible testimony
against the law, as it relates to custody previously indi-
cated. After review, the court finds that the defendant
was in custody at the time he is alleged to have made
the statements sought to be suppressed. ‘‘Therefore,
the court finds custody existed for the purposes of a
Miranda advisement.
‘‘[Morris] indicated that he did not advise the defen-
dant pursuant to Miranda at that time. [Morris] testified
that the defendant asked for an attorney and a bail
commissioner. The testimony indicates that the defen-
dant made the statements sought to be suppressed.
‘‘Having addressed the issue of custody, the court
directs its attention to whether [an] interrogation, as
defined by our law, occurred. . . .
‘‘[Morris’] testimony indicates that, other than bio-
graphical questions, he made no inquiries of the defen-
dant. The defendant indicated that he was aware of a
lack of identification made by complainants and that
he was not the same person as his past criminal record
could show. There is no evidence presented that . . .
Morris interrogated the defendant as our laws define.
‘‘The court finds . . . that the defendant was in cus-
tody, but not subject to interrogation or questioning by
words or actions on the part of . . . Morris that [he]
should have known were reasonably likely to elicit
incriminating responses from [the defendant].’’ (Cita-
tions omitted.)
In support of his claim that the defendant was subject
to interrogation, the defendant asserts that the fact that
Morris used a ‘‘ruse’’ to convince the defendant to come
down to the police station is sufficient to establish that
he subjected the defendant to interrogation. Specifi-
cally, the defendant asserts that Morris should reason-
ably have known that the surprise arrest was likely to
elicit an incriminating response from the defendant.
We disagree.
It is well established that the term ‘‘interrogation’’
under Miranda ‘‘refers not only to express questioning,
but also to any words or actions on the part of the
police (other than those normally attendant to arrest
and custody) that the police should know are reason-
ably likely to elicit an incriminating response from the
suspect. . . . A practice that the police should know
is reasonably likely to evoke an incriminating response
from a suspect thus amounts to interrogation. But, since
the police surely cannot be held accountable for the
unforeseeable results of their words or actions, the
definition of interrogation can extend only to words or
actions on the part of police officers that they should
have known were reasonably likely to elicit an incrimi-
nating response.’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. Vitale, supra, 197 Conn.
411–12.
It is also clear that ‘‘[i]nterrogation, as conceptualized
in the Miranda opinion, must reflect a measure of com-
pulsion above and beyond that inherent in custody
itself. . . . Voluntary statements of any kind are not
barred by the fifth amendment.’’ (Citation omitted;
internal quotation marks omitted.) Id., 412; see also
United States v. Glen-Archila, 677 F.2d 809, 815 (11th
Cir.) (arrest does not transform situation into one of
‘‘functional interrogation’’), cert. denied, 459 U.S. 874,
103 S. Ct. 165, 74 L. Ed. 2d 137 (1982). ‘‘Any statement
given freely and voluntarily without any compelling
influences is, of course, admissible in evidence.’’
Miranda v. Arizona, supra, 384 U.S. 478.
In Vitale, this court found that statements made by
a defendant to a uniformed corrections officer after
being arrested and while confined to a cell in a correc-
tional center were not barred by Miranda. State v.
Vitale, supra, 197 Conn. 409–12. In doing so, this court
reasoned as follows: ‘‘It is clear from the record that the
statements in question were not the result of conduct
designed to elicit incriminating statements. They were
volunteered by the defendant during a general conversa-
tion between him and [the corrections officer], wherein
the defendant spoke freely about the offenses with
which he was charged. Although there is no doubt that
the defendant was in custody, his statements were not
in response to interrogation.’’ Id., 412. Similarly, in the
present case, the defendant, himself, initiated the con-
versation with Morris during the booking process. The
trial court found that, other than ‘‘biographical’’ ques-
tions, Morris ‘‘made no inquiries of the defendant.’’
Instead, the defendant volunteered that he was ‘‘not
the same person that was arrested in New York fifteen
years ago.’’ Therefore, that statement and the state-
ments that followed were admissible. See State v. Mul-
lins, supra, 288 Conn. 365–66 (no interrogation where
defendant initiated conversation with police); cf. State
v. Gonzalez, 302 Conn. 287, 297–98, 25 A.3d 648 (2011)
(officer’s statement to defendant in interview room that
‘‘it was his opportunity to tell his side of the story’’
was functional equivalent of interrogation because it
explicitly sought statements from defendant regarding
his involvement in crime).
The defendant asserts that the fact that Morris used
a ruse concerning the release of the defendant’s vehicle
to get the defendant to come to the police station dem-
onstrates a level of coercion sufficient to establish that
the statements following the arrest are barred by the
fifth amendment. We disagree. It is undisputed that
Morris intended the ruse concerning the release of the
defendant’s vehicle to subject the defendant to custody
in a location that was deemed more safe than attempting
to place the defendant in custody inside of his home;
the plan was not designed to subject the defendant to
an interrogation.
Indeed, the evidence established that the defendant
did not make any incriminating statements at the time
he was being arrested or when he first discovered the
ruse. Instead, the defendant made statements concern-
ing his New York arrest and that no one picked him
out of a lineup after Morris and other officers arrested
him and escorted him to the booking area. Therefore,
the ruse did not cause the defendant’s statements. Fur-
thermore, Morris testified that he never asked the defen-
dant any questions that would have elicited those
statements. To the contrary, Morris informed the defen-
dant that he would not be asking him any questions
and gave him the opportunity to contact an attorney.
On the basis of these facts, we conclude that the defen-
dant was not subjected to an interrogation before mak-
ing his statements to police on September 19, 2012.
Because the defendant was not in custody during
the search of his home on June 28, 2012, and was not
subjected to an interrogation before making his state-
ments to the police on September 19, 2012, we conclude
that the trial court properly denied the defendant’s
motion to suppress.
II
The defendant next claims that the trial court improp-
erly admitted testimony from Morris regarding cell
phone data and maps regarding cell tower coverage
areas without determining that the evidence was based
on reliable scientific principles under State v. Porter,
241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).
In response, the state does not assert that Morris did
not provide expert testimony, but instead claims that
a Porter hearing was not required because Morris did
not provide expert testimony based on scientific evi-
dence. Further, the state asserts that even if Morris’
testimony was improperly admitted into evidence, it
was harmless. We agree with the defendant that the
trial court abused its discretion by allowing Morris to
testify about cell phone data without qualifying him as
an expert witness, but find that the error was harmless.
The following additional facts are relevant to the
resolution of this issue. Prior to trial, the defendant filed
a motion in limine seeking to preclude the admission of
cell phone data and requested a hearing pursuant to
State v. Porter, supra, 241 Conn. 57. The trial court
postponed ruling on the defendant’s motion until trial.
Outside of the presence of the jury, the trial court
allowed the state to make its offer of proof regarding
the cell phone data. In its first offer of proof, the state
presented Cherylene Paddock, an employee of Verizon,
who was the custodian of records. After hearing her
testimony, the trial court ruled that Paddock could not
give an ‘‘engineering or technical opinion’’ based upon
the records. On October 25, 2013, the trial court revis-
ited whether Paddock was qualified to testify about
issues such as call strength and whether cell calls con-
nect to the cell tower closest to the cell phone.
After she was questioned further regarding her train-
ing at Verizon, the court ruled as follows: ‘‘I ruled yester-
day that . . . Paddock is an expert as to records. She
has indicated that by her testimony. She has indicated
that she is the custodian of records. She is not an expert
as to scientific or technological type issues. She’s indi-
cated that by the testimony she’s given as well as her
admissions, her statements. She has indicated and we
all note it by her testimony that she cannot testify about,
I guess for lack of a better term, I’m using her term,
engineer related questions including range from cell
phone to a particular [cell] tower because her basis of
knowledge on this topic was not experience or educa-
tion but rather someone told her what to say. The ruling
allowed initially that the records were admissible sub-
ject to some redaction. . . . Paddock testified briefly
and then continued to today.
‘‘The court continued to consider this issue about the
relevancy of the cell tower location information without
a correlation to where the cell phone would be approxi-
mately located with reference to the [cell] tower
because the basis of my understanding and thought
process if there were no range indications then a jury
would not know if a cell phone caller was standing ten
feet from the [cell] tower or ten miles away. So the
court . . . reviewed the testimony . . . of . . . Pad-
dock, and there was testimony concerning the location
of the [cell] tower with reference to a cell phone [and]
testimony [that the cell phone] would be picking up the
closest [cell] tower. I wanted to clarify that so I listened
to her testimony that was recorded and we brought her
in this morning and I appreciate the state bringing her
in for that purpose. The court inquired of her . . . basis
of knowledge to that fact being that the cell phone
calls [are] picked up by the closest [cell] tower. She’s
indicated that that was on the record but basically that
it came from her training to be a custodian of records.
So the court is still faced with the relevancy argument
not cleared up by the further testimony of . . .
Paddock.
‘‘So reviewing the records that have been offered,
cell phone information concerning . . . phone calls
made from an out-of-state location is within the records.
I think it was questioned by [defense counsel] about
roaming. So that is on the record and without a need
for specified, or specific, or expert knowledge. So the
records of cell phone calls between June [19 and 22],
the court says are relevant and are allowed. Cell phone
information from the records concerning in state, out-
of-state issues between June 12 and 14, again are they
made in state or are they made out of state. There again
is no need for specified knowledge and that is allowed.
However, the specified calls on June 1 and 22, and I’m
speaking about later in the day on June 22, are offered
for a specific cell . . . tower location and an approxi-
mate location of where the user is involves a specific
knowledge. Someone needs to come in with knowledge
and a basis of knowledge other than someone told her.’’
Thus, the court concluded as follows: ‘‘My ruling is
obviously, the records are custodian issues and the
records under a business record, but specifically . . .
Paddock is precluded from testifying about cell . . .
tower locations on the date and time of the incident.
Those are those dates that we talked about, those
five dates.’’
The state then made a second offer of proof through
Morris. Morris testified that, approximately five months
before trial, he had attended a three day training in
Massachusetts on ‘‘advanced cell phone investigations’’
and mapping of cell towers from phone call ‘‘records
that we receive from [cell phone] companies.’’ Morris
testified that he had worked with cell phone records
‘‘[n]umerous, numerous times . . . [w]ay more than
ten.’’ Morris explained that in the training he had
learned how to use computer software entitled Micro-
soft Streets and Trips to analyze data from a cellular
provider. Specifically, Morris testified that he could use
the program to map cell towers that may have handled
calls and to show the coverage area of those calls. He
briefly described the terms ‘‘azimuth’’ and ‘‘bismuth’’
and explained that those terms defined the coverage
area of the cell tower.
The state then asked Morris whether he had used
‘‘this exercise’’ on the cell phone records provided by
Verizon for the defendant’s cell phone. Morris
responded that he had used the data provided by Veri-
zon to create certain maps showing cell tower coverage.
Morris further testified that his use of the data provided
by Verizon enabled him to conclude that a cell tower
located approximately 1200 feet from the grocery store
where the victim had shopped had ‘‘handled calls made
from [the defendant’s] cell phone at three different
times’’ while the victim was shopping there. Morris fur-
ther testified that he had also completed a similar analy-
sis for the victim’s home address and had found that
there were calls from the defendant’s cell phone
accessing a cell tower nearby. Morris further indicated
that he could go ‘‘through the same exercise’’ for other
locations and that his conclusions would be based on
his ‘‘training and experience.’’ On cross-examination,
when asked how he determined an azimuth, bismuth
and something called an ‘‘optimal bismuth,’’ Morris
stated that they are provided by the records that he
obtains from any given cell provider. Morris agreed that
he had been instructed to use ‘‘extreme caution when
making any firm conclusion about coverage area’’ and
he acknowledged that network congestion, weather,
maintenance issues, natural topology, thick foliage, and
manmade structures can affect coverage.
The trial court then ruled that the state had met its
burden of establishing the reliability of the proffered
evidence and that Morris was qualified by his expertise
to analyze cell phone data provided in Verizon records.
The trial court ruled as follows: ‘‘The court and counsel
may recall that when I amended my ruling of yesterday
this morning, the crux or the keystone of the ruling
was that the specified calls on June 1 and 22 . . . are
offered for a specific cell tower location and approxi-
mate cell phone user location and involves a specific
knowledge. Someone needs to come in with knowledge
of and basis of knowledge. . . . That was what the
. . . crux [of the court’s] concern was.
‘‘After listening to [Morris], the court feels that [he]
has the education and training to competently testify
[about cell] tower[s] and how [they connect] to cell
phones. . . . I’m reviewing his experience. He’s done
it before. He’s been working on it for a while. That’s
his expertise within the police department. He has train-
ing on the job and he has educational training. He specif-
ically indicated what his educational training [is] and
it very much appears to this court that [defense counsel]
knows what that educational training is because he was
cross-examining him about what occurred at that class.
So the educational training is there. The training on the
job is there. The expertise is there. And he testified in
the offer of proof appearing to be knowledgeable of
the subject, a knowledge that would aid the finders
of fact.’’
The trial court admitted the Verizon cell phone
records as a full exhibit through Paddock. Morris then
testified before the jury. During his testimony, the state
admitted into evidence, over defense counsel’s objec-
tion, maps Morris made depicting cell towers that were
used in cell phone calls and their coverage areas.
Defense counsel then cross-examined Morris.
We begin with our standard of review. ‘‘We review a
trial court’s decision [regarding the admission of] expert
testimony for an abuse of discretion. . . . We afford
our trial courts wide discretion in determining whether
to admit expert testimony and, unless the trial court’s
decision is unreasonable, made on untenable grounds
. . . or involves a clear misconception of the law, we
will not disturb its decision. . . . Although we afford
trial courts significant discretion, [w]here it clearly
appears that an expert witness is qualified to give an
opinion, the exclusion of his testimony may be found
to be [an abuse of discretion]. . . . To the extent the
trial court makes factual findings to support its deci-
sion, we will accept those findings unless they are
clearly improper. . . . If we determine that a court
acted improperly with respect to the admissibility of
expert testimony, we will reverse the trial court’s judg-
ment and grant a new trial only if the impropriety was
harmful to the appealing party. . . .
‘‘We also note our standards for admitting expert
testimony. Expert testimony should be admitted when:
(1) the witness has a special skill or knowledge directly
applicable to a matter in issue, (2) that skill or knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury in
considering the issues. . . . [T]o render an expert opin-
ion the witness must be qualified to do so and there must
be a factual basis for the opinion.’’ (Citations omitted;
internal quotation marks omitted.) Weaver v. McKnight,
313 Conn. 393, 405–406, 97 A.3d 920 (2014).
‘‘In Porter, we followed the United States Supreme
Court’s decision in Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993), and held that testimony based on scientific
evidence should be subjected to a flexible test to deter-
mine the reliability of methods used to reach a particu-
lar conclusion. . . . A Porter analysis involves a two
part inquiry that assesses the reliability and relevance
of the witness’ methods. . . . First, the party offering
the expert testimony must show that the expert’s meth-
ods for reaching his conclusion are reliable. A nonex-
haustive list of factors for the court to consider include:
general acceptance in the relevant scientific commu-
nity; whether the methodology underlying the scientific
evidence has been tested and subjected to peer review;
the known or potential rate of error; the prestige and
background of the expert witness supporting the evi-
dence; the extent to which the technique at issue relies
[on] subjective judgments made by the expert rather
than on objectively verifiable criteria; whether the
expert can present and explain the data and methodol-
ogy underlying the testimony in a manner that assists
the jury in drawing conclusions therefrom; and whether
the technique or methodology was developed solely
for purposes of litigation. . . . Second, the proposed
scientific testimony must be demonstrably relevant to
the facts of the particular case in which it is offered,
and not simply be valid in the abstract. . . . Put
another way, the proponent of scientific evidence must
establish that the specific scientific testimony at issue
is, in fact, derived from and based [on] . . . [scientifi-
cally reliable] methodology. . . .
‘‘Additionally, we recognized in Porter that, [t]he
actual operation of each [Porter] factor, as is the deter-
mination of which factors should be considered at all,
depends greatly on the specific context of each case
in which each particular [threshold admissibility] analy-
sis is conducted. . . . There is, however, a critical pos-
tulate that underlies the Porter factors and indeed
underlies the entire Porter analysis: in order for the
trial court, in the performance of its role as the gate-
keeper for scientific evidence, properly to assess the
threshold admissibility of scientific evidence, the pro-
ponent of the evidence must provide a sufficient articu-
lation of the methodology underlying the scientific
evidence. Without such an articulation, the trial court
is entirely ill-equipped to determine if the scientific
evidence is reliable upon consideration of the various
Porter factors. Furthermore, without a clear under-
standing as to the methodology and its workings, the
trial court also cannot properly undertake its analysis
under the fit requirement of Porter, ensuring that the
proffered scientific evidence, in fact, is based upon the
reliable methodology articulated.’’ (Citations omitted;
internal quotation marks omitted.) Fleming v. Dionisio,
317 Conn. 498, 506–507, 119 A.3d 531 (2015); see also
Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 180–
81, 847 A.2d 978 (2004).
A
We begin with the threshold issue of whether the
trial court allowed Morris to testify regarding the cell
phone data as an expert witness. The following addi-
tional facts are relevant to our resolution of this issue.
During the charging conference, the trial court engaged
in the following colloquy with the prosecutor and
defense counsel:
‘‘The Court: . . . I have listed two experts . . . Dan
Renstrom, Forensic Examiner I from the Connecticut
State Forensic Laboratory, [and] Brunetti, supervisor
from the latent prints section of [the] Connecticut State
Forensic Laboratory. Did I miss anybody?
‘‘[The Prosecutor]: I think for part of . . . Morris’
testimony, Your Honor, at least the court alluded to his
expertise in regard to the cell phone issue.
‘‘[Defense Counsel]: . . . That may have gone to
something outside the presence of the jury. I don’t
believe that there was any reference made to him being
an expert when he was called to the stand in front of
the jury.
‘‘The Court: Right. . . . I think he was considered
not an expert, but somebody, for lack of a better term,
superior knowledge on the subject matter. And I don’t
think he gave any opinions if my recollection serves me.
‘‘[The Prosecutor]: No, I don’t believe he gave any
opinions, Your Honor, but I know that the court, and
it was outside the presence of the jury, did refer to him
with that characterization.
‘‘The Court: Right. Okay. So I take it that you don’t
want to include him.
‘‘[Defense Counsel]: No, I would not include him.
‘‘The Court: All right. I did not include him because
I didn’t think he was an expert, just somebody with
superior knowledge. So I’m just going to leave it right
now with . . . Renstrom and . . . Brunetti with the
standard instruction I always give on that.’’
This court recently explained that ‘‘[e]xpert opinions
concerning scientific, technical or other specialized
knowledge may be necessary to assist the trier of fact
in understanding the evidence or in determining a fact
in issue. . . . Although expert testimony may be help-
ful in many instances, it is required only when the ques-
tion involved goes beyond the field of ordinary
knowledge and experience of the trier of fact. . . . The
trier of fact need not close its eyes to matters of com-
mon knowledge solely because the evidence includes
no expert testimony on those matters. . . . Whether
expert testimony is required in a particular case is deter-
mined on a case-by-case basis and its necessity is depen-
dent on whether the issues are of sufficient complexity
to warrant the use of the testimony as assistance to the
. . . court.’’ (Citations omitted; internal quotation
marks omitted.) State v. Buhl, 321 Conn. 688, 700, 138
A.3d 868 (2016).
This court has not had the opportunity to address
whether a police officer needed to be qualified as an
expert witness before he could be allowed to testify
regarding cell phone data, but the Court of Appeals of
Maryland addressed this issue in State v. Payne, 440
Md. 680, 700, 104 A.3d 142 (2014). In that case, the state
asserted that the police officer need not be qualified
as a witness because he ‘‘did not render an opinion as
to the location of [the defendants’] cell phones and that
he merely read [the cell phone company’s] business
records and followed its directions in interpreting the
data.’’ Id. The court rejected the state’s claim and con-
cluded that the police officer ‘‘engaged in a process to
derive his conclusion that [the defendants’] cell phones
communicated through [specific] cell towers that was
beyond the ken of an average person; his conclusions
regarding the communication path also required that
he be qualified as an expert witness. Although the [s]tate
urges that a layperson with the same phone records
and instructions could have determined the location of
the cell sites (even aside from the fact that the jury
never received the full records and that the step-by-
step instructions were developed from another source),
additional training and experience were required to par-
lay the process from which [the police officer] derived
the communication path of each call.’’ (Internal quota-
tion marks omitted.) Id., 700–701.
Similarly, in the present case, although Morris relied
on data he obtained from Verizon to conduct his analy-
sis, the process he used to arrive at his conclusions
was beyond the ken of average juror. Indeed, even the
trial court acknowledged that Morris had an expertise
that allowed him to be more knowledgeable on the
subject of cell phone data than the average juror.
The trial court explained that ‘‘Morris has the educa-
tion and training to competently testify [about cell]
tower[s] and how [they connect] to cell phones. . . .
I’m reviewing his experience. He’s done it before. He’s
been working on it for a while. That’s his expertise
within the police department. He has training on the
job and he has educational training. He specifically indi-
cated what his educational training [is] and it very much
appears to this court that [defense counsel] knows what
that educational training is because he was cross-exam-
ining him about what occurred at that class. So the
educational training is there. The training on the job is
there. The expertise is there. And he testified in the
offer of proof appearing to be knowledgeable of the
subject, a knowledge that would aid the finders of fact.’’
The trial court explicitly stated that Morris was ‘‘some-
body with superior knowledge.’’
On the basis of these findings, we conclude that the
trial court admitted Morris’ testimony as an expert wit-
ness, one who could aid the trier of fact in an area that
is ‘‘beyond the ken of the average juror.’’5 (Internal
quotation marks omitted.) State v. Williams, 317 Conn.
691, 703, 119 A.3d 1194 (2015).
B
Having determined that the testimony provided by
Morris was expert testimony, now we must examine
whether the evidence introduced through Morris was
of a scientific nature such that a hearing under State
v. Porter, supra, 241 Conn. 57, was required.
In the present case, Morris testified at trial regarding
the cell phone data provided to him by Verizon. The
data, in the form of a list of cell towers and calls made
by a cell phone that was registered to the defendant,
was introduced as a full exhibit as a business record
through Paddock, the custodian of records for Verizon.
Although Morris was asked to review the data and
stated that he recognized the data as that which he
had received from Verizon in an electronic format, his
testimony did not come directly from the data provided
by Verizon.6 Instead, Morris’ testimony explained vari-
ous maps that he had created by inputting the data
provided by Verizon into a computer program called
Microsoft Streets and Trips.
Morris explained the process for making the maps
as follows: ‘‘I would import the data that comes through
on a Microsoft Excel spreadsheet from Verizon . . .
into a software product that we use called Microsoft
Streets and Trips. It’s just a mapping software program
that can . . . take the latitude and longitude of the
cell tower.
‘‘Now, the latitude and longitude of the cell tower is
. . . provided to me by Verizon . . . . They give me a
list of all the cell towers that they have in the state of
Connecticut . . . the tower number that they assign to
that [cell] tower, and the latitude and longitude for that
[cell] tower.
‘‘And then . . . I look at the list to see the call that
I’m looking for, the one that I want to map onto it, so
in this case the call at 10:49 a.m., I would look there
to see which . . . cell tower did it access and which
cell face did it access and then I’d plot that on the map
using what the azimuth is. . . .
‘‘So in this particular map here, the azimuth is 270
degrees, so I start out with a red line indicating . . .
the azimuth, and then they tell me that the . . . optimal
beam width is 65.5, so I’d split that in half on either
side of the azimuth, so that gives me a pie shaped figure
of what the strongest signal of the cell phone coverage
would be. And then I would take, knowing that there’s
only three cell faces for this [cell] tower for Verizon, I
would use 60 degrees on each side, which brings us
again, to the 120 [degrees] for that particular cell face
and make a bigger pie to show that that cell face can
handle this entire area.’’
Morris further testified as follows:
‘‘[The Prosecutor]: And what does that pie . . .
tell us?
‘‘[Morris]: It tells you that . . . the call most likely
came from that . . . section in there. . . .
‘‘[The Prosecutor]: And . . . what did you mean
by that?
‘‘[Morris]: The . . . colored area that I shaded in
between the outer lines of the . . . total beam width
and the exterior coverage for . . . that [cell] tower,
anything inside those borders is where the call most
likely came from. And the way I determined the border
for how far away that call would most likely have origi-
nated from is by looking at all the other [cell] towers
on the map to see the halfway point between this [cell]
tower and the next [cell] tower over there, the halfway
point between the [cell] tower here and the next [cell]
tower over there and just all the way in a circle and
creating this—it’s not always a perfect circle because
[cell] towers are placed in different positions.’’
Morris then testified about cell phone calls made on
the dates of the Berlin and Wethersfield incidents. See
footnote 1 of this opinion. For each of these cell phone
calls, he made maps using the process previously
described. Specifically, Morris created a cell tower cov-
erage map for calls associated with the defendant’s cell
phone on June 22, 2012, at 10:05 a.m., 10:10 a.m. and
10:13 a.m., the approximate time during which the vic-
tim was inside of the grocery store. Then, in response
to questioning from the state, Morris pointed to the
location of the grocery store on the map that he had
created, showing that it was within the coverage area
of the cell tower accessed by the defendant’s cell phone
during those calls. Morris also testified that he had
created a cell tower coverage map for calls associated
with the defendant’s cell phone on June 22, 2012, at
10:41 a.m. and 10:46 a.m., the approximate time of the
attack at the victim’s home. Then, in response to ques-
tioning from the state, Morris pointed to the location
of the victim’s home on the map he created, showing
that the victim’s home was within the coverage area of
the cell tower accessed by the defendant’s cell phone
during those calls.
The defendant asserts that the trial court abused its
discretion by admitting testimonial and documentary
evidence through Morris without determining that the
evidence was based on reliable scientific methodology.
This court has not previously had the opportunity to
examine the criteria for determining the admissibility
of cell phone data. The issue has, however, been
addressed in federal court. See United States v. Mack,
United States District Court, Docket No. 3:13CR00054
(MPS) (D. Conn. November 19, 2014).
In Mack, the government ‘‘propose[d] to elicit from
[the government’s expert witness, a special agent, cer-
tain] testimony about methods that [the Cellular Analy-
sis and Survey Team within the Federal Bureau of
Investigation] uses to estimate the geographical cover-
age areas of certain cell . . . towers and, using these
methods, an opinion about the approximate areas in
which [the cell phones associated with the defendants]
were located when they made and received specific cell
phone calls around the time [of the crime].’’ Id. The
court conducted a Daubert hearing in which the agent
testified about his qualifications and the methodology
he used to arrive at his conclusions. Id. After the hear-
ing, the court concluded that the agent’s methodology
was reliable based on the fact that it was ‘‘commonly
relied upon by law enforcement and the cell phone
industry,’’ that ‘‘he himself has used those methods
many times with good results, including in kidnapping
and missing-persons investigations,’’ and that ‘‘in his
experience, it is an unusual case in which the actual
coverage area of a cell tower differs greatly from the
estimation derived from this method.’’ Id. On the basis
of the foregoing, the court concluded that the methodol-
ogy was sufficiently reliable to meet the requirements
of Daubert and that, therefore, the government’s expert
could testify regarding his conclusions. Id.The approach of the United States District Court for
the District of Connecticut is consistent with decisions
from many other federal courts that have required the
government to demonstrate that the methodology used
by their expert witness on cell phone data ‘‘clears the
hurdle imposed by Daubert . . . .’’ United States v.
Machado-Erazo, 950 F. Supp. 2d 49, 56 (D.D.C. 2013);
see also United States v. Jones, 918 F. Supp. 2d 1, 5–6
(D.D.C. 2013); United States v. Davis, United States
District Court, Docket No. 11-60285-CR (ESH) (S.D. Fla.
May 17, 2013).
On the basis of the foregoing, we conclude that the
trial court improperly admitted testimony and docu-
mentary evidence in through Morris without qualifying
him as an expert and conducting a Porter hearing in
order to ensure that his testimony was based on reliable
scientific methodology.
C
Having concluded that the trial court improperly
admitted the cell phone data and cell tower coverage
maps into evidence, we must determine whether the
error was harmless.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [W]hether
[an improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [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 substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Favoccia, 306 Conn. 770, 808–809, 51 A.3d
1002 (2012). We note that, in the present case, the defen-
dant makes no claim of constitutional error. For the
following reasons, we conclude that the trial court’s
improper admission of Morris’ testimony regarding the
cell phone data was harmless.
After reviewing the evidence in the present case, we
cannot conclude that the admission of Morris’ testi-
mony and the cell tower coverage maps substantially
affected the verdict in the present case. First and fore-
most, the defendant was charged with crimes relating to
two separate incidents and Morris’ testimony regarding
cell phone data and cell tower coverage maps regarding
both incidents was entered into evidence. Nevertheless,
the jury acquitted the defendant on all charges related
to the Berlin incident. See footnote 1 of this opinion.
The fact that the jury was able to acquit the defendant
on some charges is strong evidence that the improperly
admitted evidence did not substantially affect the ver-
dict. See State v. Medrano, 308 Conn. 604, 629, 65 A.3d
503 (2013) (‘‘[t]he fact that the jury acquitted the defen-
dant of murder and found him guilty of manslaughter
in the first degree demonstrates that the jury believed
the defendant’s testimony, regardless of the court’s
[improper] instruction’’).7
Second, even without Morris’ testimony, the jury still
could conclude from the cell phone records themselves
that the defendant’s cell phone accessed cell towers in
Rocky Hill and Wethersfield on the date of the robbery,
which coincides with the victim’s testimony that she
was followed from the grocery store in Rocky Hill and
robbed at her home in Wethersfield.
Third, defense counsel rigorously cross-examined
Morris on the accuracy of the cell phone data. As a
result, Morris acknowledged that he could not guaran-
tee that his maps accurately reflect ‘‘the state of the
network on June 22, 2012,’’ that the cell phone’s connec-
tion with a specific cell tower does not necessarily mean
that it is connecting with the cell tower closest in range
and that he could not determine from the cell phone
records the exact location of the defendant’s cell phone.
Fourth, when compared to the other evidence of
guilt—namely, the fingerprint evidence, the victim’s tes-
timony, the surveillance video showing a vehicle of the
same make and model as that owned by the defendant,
the consciousness of guilt evidence, and the defendant’s
statements to police—we cannot conclude that Morris’
testimony substantially affected the verdict. Indeed, as
more fully discussed in part III A of this opinion, the
state presented overwhelming evidence of the defen-
dant’s identity as the perpetrator of the crimes. Accord-
ingly, we cannot conclude that the trial court’s improper
admission of Morris’ testimony regarding the cell phone
data and the cell tower coverage maps substantially
affected the jury’s verdict.
III
Finally, the defendant claims that there was insuffi-
cient evidence to support his convictions. Specifically,
the defendant asserts that there was insufficient evi-
dence to support his convictions of home invasion, rob-
bery in the first degree, larceny in the second degree,
and assault of an elderly person in the third degree
because the state failed to establish the element of
identity. The defendant also asserts that there was insuf-
ficient evidence to support his conviction of home inva-
sion because the state failed to establish that he was
armed with a deadly weapon. The state responds that
there was sufficient evidence to support the defendant’s
convictions on all counts. We agree with the state.
In reviewing a sufficiency of the evidence claim, we
apply a two part test. ‘‘First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . . Moreover,
[w]here a group of facts are relied upon for proof of
an element of the crime it is their cumulative impact
that is to be weighed in deciding whether the standard
of proof beyond a reasonable doubt has been met and
each individual fact need not be proved in accordance
with that standard. It is only where a single fact is
essential to proof of an element, however, such as iden-
tification by means of fingerprint evidence, that such
evidence must support the inference of that fact beyond
a reasonable doubt. . . .
‘‘As we have often noted, however, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier, would have resulted in an
acquittal. . . . On appeal, we do not ask whether there
is a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty. . . . Furthermore,
[i]t is immaterial to the probative force of the evidence
that it consists, in whole or in part, of circumstantial
rather than direct evidence.’’ (Internal quotation marks
omitted.) State v. Gonzalez, 311 Conn. 408, 419–20, 87
A.3d 1101 (2014); see also State v. Otto, 305 Conn. 51,
65–66, 43 A.3d 629 (2012).
A
The defendant asserts that there was insufficient evi-
dence to support the jury’s finding that the defendant
was the perpetrator of the crimes for which he was
convicted. Specifically, the defendant asserts that this
court’s prior holding in State v. Payne, 186 Conn. 179,
440 A.2d 280 (1982), requires reversal in the present
case. In response, the state claims that the evidence
was sufficient to establish identity and that State v.
Payne, supra, 186 Conn. 179, does not require reversal
because the defendant’s conviction in the present case
was not based on fingerprint evidence alone. We agree
with the state.
We begin with a review of State v. Payne, supra, 186
Conn. 179. In that case, the defendant claimed that the
evidence against him was insufficient as a matter of law
because ‘‘of the [well established] rule that a conviction
may not stand on fingerprint evidence alone unless the
prints were found under such circumstances that they
could only have been impressed at the time the crime
was perpetrated.’’ Id., 182. In considering the defen-
dant’s claim, this court acknowledged that it had pre-
viously recognized and relied on the rule asserted by
the defendant. Id.Indeed, this court previously had reversed a convic-
tion that was based primarily upon fingerprint evidence
in State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972),
concluding ‘‘[t]he fact that the defendant’s fingerprints
were on the rearview mirror of the abandoned vehicle,
in and of itself, is of no moment. Unless it can be shown
that the circumstances are such that the fingerprints
could have been impressed only at the time the crime
was perpetrated, the presence of the defendant’s finger-
prints on the rearview mirror does not establish his
connection with the crime charged.’’ In Mayell, because
the defendant was ‘‘regularly employed to drive the
vehicle and was rightfully in it six hours before the time
the crime was committed,’’ this court concluded that
the presence of the fingerprints on the rearview mirror
were not sufficient to establish his connection with the
crime. Id.In State v. Payne, supra, 186 Conn. 179, the state did
not challenge the rule used in Mayell and relied upon
by the defendant, nor did the state assert that the defen-
dant’s fingerprints could only have been impressed dur-
ing the commission of the crime. Indeed, the state did
not ‘‘present any evidence dating the defendant’s finger-
prints or otherwise limiting their impression to the cir-
cumstances of the crime.’’ Id., 183. Instead, the state
asserted that the rule applied in Mayell was not applica-
ble because the state had presented other evidence of
identity upon which the jury could have relied in reach-
ing their verdict against the defendant. Id. Specifically,
the state asserted that a statement by the victim describ-
ing ‘‘one of the perpetrators as a short, black male no
more than sixteen or seventeen years old’’ provided
other evidence of identity. Id.This court rejected this claim, concluding that
‘‘[a]lthough the description relied upon by the state
arguably fits the defendant, it is far too general to pro-
vide any corroboration of the fingerprint evidence. That
the general description is insufficient to tie the defen-
dant to the crime is readily apparent when it is recalled
that the victim, the very one who provided that descrip-
tion, was unable to identify the defendant as the person
he described.’’ (Footnote omitted.) Id., 184. This court
therefore reversed the conviction of the defendant, con-
cluding that ‘‘the [well established] rule that a convic-
tion may not stand on fingerprint evidence alone unless
the prints were found under such circumstances that
they could only have been impressed at the time the
crime was perpetrated’’ applied. Id., 182, 184.
In the present case, the evidence establishing the
identity of the defendant was not based on the finger-
print evidence alone.8 To the contrary, the state pre-
sented numerous other key pieces of evidence to
establish the element of identity. First, the state pre-
sented evidence regarding the victim’s description of
the perpetrator of the crime and that the defendant fit
that description.
Second, the state presented evidence regarding the
vehicle that the victim identified as being driven by the
perpetrator of the crime. The evidence established that
the defendant owned a vehicle that was the same make
and model as the vehicle the victim identified as being
driven by the perpetrator of the crime.
Third, the state presented evidence regarding the
vehicle that drove out of the parking lot behind the
victim in the surveillance video from the grocery store.
The evidence established that the defendant’s vehicle
was the same make and model as the vehicle in the
surveillance video from the grocery store on the date
of the crime. The evidence also established that the
defendant’s vehicle had other identifiable characteris-
tics—namely, a black scuff mark on the rear bumper
and the prior indication of an E-ZPass or other transpon-
der device attached to the windshield—as the vehicle
in the surveillance video.
Fourth, the state offered evidence of consciousness
of guilt. The evidence established that the defendant
engaged in verbal and nonverbal conduct, such as
changing his vehicle’s appearance, offering unsolicited
details to the police and attempting to distance himself
from the crime that can fairly be inferred to have been
influenced by the criminal act. See State v. Weinberg,
215 Conn. 231, 255, 575 A.2d 1003 (‘‘he engaged in verbal
and nonverbal conduct, such as changing both his per-
sonal appearance and his car’s appearance and offering
unsolicited details to the police, that can fairly be
inferred to have been influenced by the criminal act’’),
cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d
413 (1990). In the present case, the state introduced
evidence to establish that the defendant made changes
to his vehicle’s appearance after the police released a
statement to the media containing a description of the
vehicle involved in the incident. Specifically, Morris and
Floyd testified that the front license plate had been
recently removed. Morris also testified that a New York
Giants bumper sticker had been placed on the vehicle’s
rear bumper and that paint had been applied to the
black scuff mark on the rear bumper after the media
released the report with a description of the vehicle.
Furthermore, the state also introduced evidence to
establish that the defendant volunteered statements to
the police regarding the changes to his vehicle. Specifi-
cally, while officers were executing the search warrant
of his home, the defendant volunteered that the New
York Giants bumper sticker had been on his vehicle’s
rear bumper since 2011, which is inconsistent with the
photograph taken by Morris on June 25, 2012. During
this time, the defendant also told police that his front
license plate had been knocked off the vehicle as a
result of a motor vehicle accident in 2011, which was
inconsistent with photographs obtained from the state
license plate reader database on June 1, 2012, in which
his vehicle’s front license plate was intact and there
appeared to be no damage to the front end of his vehicle.
The state also introduced evidence that the defendant
attempted to distance himself from the crime. Specifi-
cally, the defendant instructed Collins to claim owner-
ship of the BB gun if the police asked about it and
instructed Prince to say that he was out of state with
her on the day of the incident. It is well established
that ‘‘[i]n a criminal trial, it is relevant to show the
conduct of an accused, as well as any statement made
by him subsequent to the alleged criminal act, which
may fairly be inferred to have been influenced by the
criminal act. . . . The state of mind which is character-
ized as guilty consciousness or consciousness of guilt is
strong evidence that the person is indeed guilty . . . .’’
(Citations omitted; internal quotation marks omitted.)
State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984);
see id., 656 (attempt to fabricate alibi reflects conscious-
ness of guilt); see also 2 J. Wigmore, Evidence (Chad-
bourn Rev. 1979) § 273, p. 115.
On the basis of the foregoing evidence, we cannot
conclude that State v. Payne, supra, 186 Conn. 179,
requires the reversal of the defendant’s conviction.
Unlike that case, the present case is not one in which
the only evidence of identity is fingerprint evidence. To
the contrary, construing the evidence in the light most
favorable to sustaining the verdict, and the inferences
reasonably drawn therefrom, the jury reasonably could
have concluded that the cumulative force of the evi-
dence established the element of identity beyond a rea-
sonable doubt.
B
The defendant next asserts that the state failed to
present sufficient evidence that he was ‘‘ ‘armed with
a deadly weapon,’ ’’ an element required for his convic-
tions of both home invasion and robbery in the first
degree. Specifically, the defendant claims that, although
the evidence established that he owned an operable BB
gun, it failed to establish that he used the BB gun in
the attack. The defendant claims that, without this con-
nection, the jury reasonably could not have concluded
that he was ‘‘armed with a deadly weapon’’ for purposes
of §§ 53a-100aa (a) (2)9 and 53a-134 (a) (2).10 The state
responds that the evidence sufficiently established that
the defendant committed the crimes with the BB gun
that was later found in his residence. We agree with
the state.
As charged in the present case, both §§ 53a-100aa (a)
(2) and 53a-134 (a) (2) required proof that the defendant
was armed with a deadly weapon. The defendant and
the state do not dispute what the term ‘‘armed with a
deadly weapon’’ means. It is undisputed that the term
‘‘armed’’ means that the defendant physically possessed
the weapon. See State v. Tinsley, 181 Conn. 388, 399–
400, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086,
101 S. Ct. 874, 66 L. Ed. 2d 811 (1981), overruled in part
on other grounds by State v. Pinnock, 220 Conn. 765,
788, 601 A.2d 521 (1992). A ‘‘ ‘[d]eadly weapon’ ’’ is ‘‘any
weapon, whether loaded or unloaded, from which a
shot may be discharged . . . .’’ General Statutes § 53a-
3 (6). Thus, if the weapon is a firearm, the state must
prove that it is operable, meaning that it is capable of
firing a shot. See General Statutes § 53a-3 (19) (defining
firearm as weapon from which shot may be discharged).
Furthermore, it is undisputed that an operable BB gun
is a deadly weapon. State v. Grant, 294 Conn. 151,
157–61, 982 A.2d 169 (2009).
At trial, the victim testified that, during the robbery,
the perpetrator held a ‘‘black gun’’ in his hand. When the
police executed the search warrant at the defendant’s
residence, they seized a black handheld BB gun, which
was later determined to be capable of discharging a
shot. The appearance of the BB gun matched the vic-
tim’s description of the gun used during the robbery.
We conclude that the fact that a BB gun matching
the victim’s description of the gun used during the rob-
bery was found in the defendant’s residence is sufficient
to establish that the BB gun was used in the robbery.
See, e.g., State v. Miles, 97 Conn. App. 236, 241, 903
A.2d 675 (2006) (gun recovered months after crime met
witness’ description of ‘‘small silver handgun’’ seen at
crime); State v. Hardy, 85 Conn. App. 708, 717, 858 A.2d
845 (2004) (victim’s testimony that gun was ‘‘ ‘a little
silver’ ’’ in color and silver air pistol found in defendant’s
apartment sufficient to establish that air pistol was gun
used in robbery), aff’d, 278 Conn. 113, 896 A.2d 755(2006).
Moreover, the state presented evidence that the
defendant told Collins to tell the police that the BB gun
belonged to Collins. The jury reasonably could have
inferred that the defendant instructed Collins in this
manner because the defendant knew that the BB gun
was involved in the robbery.
The defendant relies on State v. Coleman, 35 Conn.
App. 279, 287, 646 A.2d 213, cert. denied, 231 Conn. 928,
648 A.2d 879 (1994), to support his claim that the state
was required to prove a nexus between the BB gun
found in the defendant’s home and the gun used in the
robbery in order for the BB gun to have probative value.
We find State v. Coleman, supra, 35 Conn. App. 279, to
be unpersuasive. First, in Coleman, the Appellate Court
concluded that the trial court had abused its discretion
in admitting testimony about knives found in the defen-
dant’s car without any evidence linking them to the
robbery, but the admission was nevertheless harmless.
Id., 285–89. In the present case, however, the defen-
dant’s claim is based on insufficient evidence, not that
the trial court improperly admitted evidence related to
the BB gun. Furthermore, in a different appeal involving
the same defendant and similar facts, this court con-
cluded that the Appellate Court had improperly con-
cluded that the trial court abused its discretion in
admitting testimony relating to the knives. State v. Cole-
man, 241 Conn. 784, 789, 699 A.2d 91 (1997). This court
reasoned as follows: ‘‘The trial testimony indicated that
the defendant had entered the victim’s apartment by
way of slits made in the window screen by a sharp
cutting instrument. The state introduced evidence of
the knives to show that the defendant, twenty-two hours
after the offense, had a number of sharp cutting instru-
ments at his immediate disposal.’’ Id., 789–90. This court
further explained that ‘‘[i]t is the generally accepted
rule that in a case in which the defendant is charged
with the offense of burglary, after proof of the burglary
has been introduced the prosecution may show that
the defendant had burglar tools or implements in his
possession soon after the time of the commission of
the offense and may introduce such tools or implements
in evidence. . . . Sanders v. United States, 238 F.2d
145, 147 (10th Cir. 1956); see also State v. Thomas, [205
Conn. 279, 283, 533 A.2d 553 (1987)] (where victim
bound by rope, testimony regarding clothesline in
defendant’s basement admissible to show defendant
had access to rope); State v. Miller, 202 Conn. 463, 482,
522 A.2d 249 (1987) (where victim bound by handcuffs,
evidence that handcuffs were used at defendant’s work-
place admissible to show defendant’s access to hand-
cuffs); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874(1985) (where defendant threatened victim with gun,
evidence that gun with similar appearance was in defen-
dant’s possession shortly after crime admissible to
show defendant’s access to gun); State v. Paoletto, 181
Conn. 172, 184–86, 434 A.2d 954 (1980) (in burglary case
where entry was gained by forcibly tearing down door
of building, evidence of pry bar and screwdriver found
in defendant’s possession admissible to show defen-
dant’s access to type of burglary tools used).’’ (Internal
quotation marks omitted.) State v. Coleman, supra, 241
Conn. 790.
On the basis of the foregoing, we conclude that the
evidence of the BB gun found in the defendant’s home,
which matched the description of the weapon used by
the perpetrator of the crime, was sufficient for the jury
reasonably to have determined that the defendant was
armed with a deadly weapon.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant was also charged with home invasion in violation of § 53a-
100aa (a) (2), robbery in the first degree in violation of § 53a-134 (a) (2)
and larceny in the second degree in violation of § 53a-123 (a) (3) arising
out of an incident in Berlin. The trial court consolidated the two cases for
trial. After trial, the jury acquitted the defendant of all charges arising out
of the incident in Berlin.
2
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3
In its brief, the state asserts that the defendant does not claim that he
was subjected to interrogation on June 28, 2012. We disagree, and conclude
that the defendant asserts that he was both in custody and subjected to
interrogation on June 28, 2012. Nevertheless, because we conclude that the
trial court properly determined that the defendant was not in custody when
he made statements to the police on June 28, 2012, we need not reach the
issue of whether he was subjected to interrogation.
4
The defendant asserts that he and Collins were ordered out of the vehicle
at gun point. The evidence at the suppression hearing was not definitive
and the trial court credited Patkoske’s testimony that he could not remember
whether he had brandished a weapon. The defendant has not challenged
that factual finding as clearly erroneous.
5
The defendant does not claim that the trial court’s failure to include
Morris in its instruction on expert witnesses was improper. Therefore, we
do not address that issue.
6
Although Morris indicated that the data he received from Verizon in an
electronic format was the same as that contained in state’s exhibit 58, he
also testified that the data he received from Verizon included information
about ‘‘which face on that cell tower the call is dealing with’’ and ‘‘something
called beam width,’’ we cannot find any information contained within state’s
exhibit 58 that clearly contains information regarding cell tower faces or
beam width.
7
The defendant asserts that the fact that the jury asked to hear Morris’
testimony regarding the cell phone data during deliberation demonstrates
that the testimony affected the verdict. We disagree. In the present case,
the jury asked approximately eight questions, some of which had multiple
parts, during deliberation. Most of those questions involved requests to
rehear portions of testimony. The jury’s request to rehear Morris’ testimony
was one of many portions of evidence that the jury asked to review during
deliberations. Under the facts of the present case, we cannot conclude that
the jury’s request to hear Morris’ testimony relating to the cell phone data
demonstrates that the evidence substantially affected the verdict.
8
Even assuming that there was no other evidence establishing the identity
of the defendant, the present case is distinguishable from State v. Mayell,
supra, 163 Conn. 419, and State v. Payne, supra, 186 Conn. 179, because
there is no other explanation for the presence of the defendant’s fingerprints
on the victim’s vehicle. Unlike the facts of Mayell, the fingerprints in the
present case were found under such circumstances that they ‘‘could have
been impressed only at the time the crime was perpetrated . . . .’’ State v.
Mayell, 426.
9
General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is
guilty of home invasion when such person enters or remains unlawfully in
a dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein, and, in the
course of committing the offense . . . (2) such person is armed with explo-
sives or a deadly weapon or dangerous instrument.’’
10
General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (2) is armed with a
deadly weapon . . . .’’