State v. Jackson

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STATE OF CONNECTICUT v. RAASHON JACKSON
(SC 20193)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins and Ecker, Js.
Syllabus
Convicted of murder, conspiracy to commit murder, and four counts of
assault in the first degree in connection with a shooting in which one
person died and four others were injured, the defendant appealed, chal-
lenging various evidentiary rulings and the trial court’s decision to deny
a motion for a continuance to allow him to retain an expert to respond
to the testimony of W, whom the state belatedly disclosed to the defense
and called as an expert witness on cell site location information. On
the day of the shooting, the defendant and his friend, R, were driven by
R’s cousin to and from a housing complex where the shooting occurred.
Approximately five to six months before his trial, the defendant filed a
motion seeking disclosure of the expert witnesses the state intended
to call and the opinions to which each witness was expected to testify.
At a hearing on that motion approximately one week later, the court
ordered the state to disclose to the defense any expert that it may
ultimately select to testify about the proximity of the defendant’s cell
phone to a particular cell tower. Approximately three months later, the
state provided the defense with a list of potential witnesses, including
W, but did not identify him as an expert witness or describe the intended
nature of his testimony. Approximately two months later, after voir dire
commenced and seven days before evidence was to begin, the state
provided the defense with W’s resume and a copy of a certain computer
software presentation that W had prepared and that purportedly charted
the locations of the defendant’s and R’s cell phones around the time
of the shooting. Thereafter, one day before evidence commenced, the
defendant filed a motion in limine, seeking to preclude W’s testimony.
At the hearing on the defendant’s motion, which the trial court conducted
several days after evidence had begun, defense counsel requested that
the court preclude W’s testimony or, alternatively, grant a reasonable
continuance of at least six weeks. The court denied the defendant’s
motion in limine insofar as he sought to exclude W’s testimony, conclud-
ing, inter alia, that the defendant had not suffered prejudice as a result
of the late disclosure. The court also denied counsel’s request for a
continuance. On appeal, the Appellate Court affirmed the judgment of
conviction, concluding, inter alia, that the trial court had not abused its
discretion in denying the motions in limine and for a continuance. On
the granting of certification, the defendant appealed to this court, claim-
ing that, contrary to the Appellate Court’s conclusion, the trial court
had abused its discretion in permitting W to testify in light of the state’s
late disclosure of W as an expert or, alternatively, in declining counsel’s
request for a continuance to obtain his own expert on cell site location
information. Held:
1. The Appellate Court incorrectly concluded that the trial court had not
abused its discretion when it allowed W to testify without first granting
the defense a reasonable continuance so that it could retain its own
expert witness on cell site location information, and, because the trial
court’s error was harmful, the defendant was entitled to a new trial:
there was no valid reason why the disclosure of W was not made until
after voir dire began and only one week before evidence was to begin,
and the defendant was prejudiced by the late disclosure, as W’s testimony
included information that was beyond the knowledge of the average
juror, it was essential for the defense to be able to retain its own expert
in order to meaningfully understand and challenge W’s testimony, and
the two brief continuances that the trial court did afford the defense
to obtain clarification from W regarding certain changes that W had
made to his computer software presentation before he was to testify,
did not meaningfully alleviate that prejudice; moreover, contrary to
the state’s claim, defense counsel did not abandon his request for a
continuance by not renewing it after the state’s direct examination of
W, as counsel noted numerous times after W’s testimony that the defen-
dant was prejudiced by the denial of counsel’s request for a reasonable
continuance, and counsel’s statement that he was not seeking a further
continuance was merely in response to the trial court’s misunderstanding
that the defense was seeking a continuance before proffering the testi-
mony of its investigator on cell site location information; furthermore,
the trial court’s error of allowing W to testify without first giving the
defense a reasonable continuance to obtain its own expert was harmful
because, in view of the centrality of W’s expert testimony to the state’s
case, which was the only objective evidence placing the defendant’s
cell phone in the same area as R’s cell phone around the time of the
shooting and the only evidence identifying the defendant as the second
suspect in the shooting, this court could not conclude that it had a fair
assurance that the error did not substantially affect the verdict.
2. This court declined to address the defendant’s claims that the Appellate
Court improperly upheld the trial court’s exclusion of his investigator’s
testimony and that the Appellate Court incorrectly concluded that the
defendant had failed to preserve his claim that the trial court was
required to hold a hearing in accordance with State v. Porter (241
Conn. 57) before allowing W to testify because those claims were not
sufficiently likely to arise during the defendant’s retrial, and also declined
to address the defendant’s claim that the trial court abused its discretion
by admitting evidence regarding his failure to appear in court on unre-
lated criminal charges as evidence of consciousness of guilt, as the
record could look different on retrial.
Argued September 25, 2019—officially released March 3, 2020
Procedural History
Substitute information charging the defendant with
four counts of the crime of assault in the first degree,
and with one count each of the crimes of murder, con-
spiracy to commit murder, and criminal possession of
a firearm, brought to the Superior Court in the judicial
district of Fairfield, where the court, Kavanewsky, J.,
granted the defendant’s motion to sever the charge of
criminal possession of a firearm; thereafter, the court
granted the state’s motion to consolidate for trial the
defendant’s case with that of another defendant, and
the cases were tried to the jury; subsequently, the court
denied in part the defendant’s motion to preclude cer-
tain evidence and denied the defendant’s motions for
a continuance, for a mistrial, and to introduce certain
evidence; verdict of guilty; thereafter, the court denied
the defendant’s motion for a judgment of acquittal or
a new trial; subsequently, the state entered a nolle pro-
sequi as to the charge of criminal possession of a fire-
arm, and the court rendered judgment in accordance
with the verdict, from which the defendant appealed
to this court; thereafter, the case was transferred to the
Appellate Court, Lavine, Alvord and Beach, Js., which
affirmed the judgment of the trial court, and the defen-
dant, on the granting of certification, appealed to this
court. Reversed; new trial.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, C. Robert Satti, Jr., supervisory assistant state’s
attorney, and Pamela J. Esposito, senior assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Raashon Jackson,
appeals from the Appellate Court’s judgment affirming
his conviction of one count of murder in violation of
General Statutes § 53a-54a (a), one count of conspiracy
to commit murder in violation of General Statutes
§§ 53a-48 (a) and 53a-54a (a), and four counts of assault
in the first degree in violation of General Statutes § 53a-
59 (a) (5). See State v. Jackson, 183 Conn. App. 623,
627, 193 A.3d 585 (2018). The defendant claims, among
other things, that it was an abuse of discretion for the
trial court to permit the state’s expert witness on cell
site location information (CSLI) to testify as to what
that information revealed about the location of the
defendant and his associates during the time the crimes
occurred because the state disclosed the expert after
voir dire began and only one week before evidence
started, despite a court order issued six months earlier
requiring the state to disclose any experts. Alternatively,
the defendant argues that it was an abuse of discretion
for the trial court to deny his related motion for a
continuance to obtain his own CSLI expert. We con-
clude that it was an abuse of discretion for the trial
court to allow the state’s late disclosed expert witness
to testify without first granting the defendant a reason-
able continuance to obtain his own expert. Because we
also conclude that this error was harmful, we reverse
the judgment of the Appellate Court.
The Appellate Court’s opinion sets forth the facts
that the jury could reasonably have found; see id.,
627–29; which we summarize in relevant part as follows.
On September 10, 2013, Roderick Rogers called his
cousin, David Anderson, for a ride from Rogers’ home
in Bridgeport. Before Anderson arrived, a social worker,
William Muniz, came to Rogers’ house at 2:10 p.m. to
discuss a job opportunity. Rogers informed Muniz that
he had to leave but would be back in one hour. As Muniz
was leaving, Anderson arrived. Because Anderson was
on probation, he wore a global positioning system
(GPS) device that tracked his movements.
Anderson and Rogers left the house in Anderson’s
car, and Rogers directed Anderson to drive toward Pali-
sade Avenue, on the east side of Bridgeport. On Palisade
Avenue, Rogers saw the defendant, a friend whom he
called Red Dreads, and directed Anderson to stop the
car. The defendant got into the backseat of Anderson’s
car. Rogers then directed Anderson to drive to the ‘‘Ter-
race,’’ a reference to the Beardsley Terrace housing
complex located in the north end of Bridgeport. After
arriving at the housing complex, Rogers told Anderson
to park on a side street off Reservoir Avenue. Rogers
asked Anderson if he had an extra shirt, and Anderson
told him to check the trunk. Rogers asked Anderson
to wait because he and the defendant would be right
back. Rogers and the defendant got out of the car, went
to the open trunk, shut the trunk, and walked down
a hill.
At that time, a group of young men was gathered
outside the housing complex. Rogers and the defendant
approached the group, remarked, ‘‘y’all just came
through the Ave shooting Braz, you all f’ed up,’’ and
either Rogers or the defendant began shooting at the
group. One of the shooting victims, LaChristopher Pett-
way, sustained a fatal gunshot wound to his back. Four
other victims, Tamar Hamilton, Leroy Shaw, Jauwane
Edwards, and Aijahlon Tisdale, sustained nonfatal
wounds.
Rogers and the defendant then left the scene of the
shootings and returned to Anderson’s car. Rogers told
Anderson to drive down Reservoir Avenue. Anderson
then drove to the corner of Stratford Avenue and Hol-
lister Avenue, where Anderson parked the car on the
side of the street. The defendant got out of the car, and
Anderson drove Rogers home. Rogers called Muniz at
2:46 p.m., and Muniz returned to Rogers’ home by 3 p.m.
The record reveals the following procedural history.
On September 16, 2013, Rogers was arrested. That same
day, Rogers sent the defendant a text message stating
that ‘‘[d]ey taken [me].’’ Thereafter, the defendant also
was arrested and charged in the operative information
with murder, conspiracy to commit murder, and four
counts of assault in the first degree.1 The trial court
granted the state’s motion to consolidate for trial the
defendant’s case with Rogers’ case.
Anderson testified as a witness for the state. Over
defense counsel’s objection, the state also presented the
testimony of the state’s CSLI expert, Sergeant Andrew
Weaver of the Hartford Police Department, who testi-
fied to the location of Rogers’ and the defendant’s cell
phones and Anderson’s GPS monitor. The court also
took judicial notice, over the defendant’s objection, of
facts surrounding the defendant’s failure to appear in
court, on unrelated charges, following the shootings as
evidence of consciousness of guilt in this case.
The jury found the defendant guilty of all counts,2
and he was sentenced to a total effective term of fifty-
five years of incarceration. He appealed from the trial
court’s judgment, challenging various evidentiary rul-
ings and the trial court’s decision to deny his motion
for a continuance to allow him to obtain an expert to
respond to the state’s belatedly disclosed expert. The
Appellate Court rejected each of the defendant’s argu-
ments and affirmed the judgment of conviction. See
State v. Jackson, supra, 183 Conn. App. 669.
We thereafter granted the defendant’s petition for
certification to appeal, limited to the following issues:
(1) ‘‘Did the Appellate Court properly hold that the trial
court’s denial of the motion to preclude the state’s late
disclosed expert witness [on CSLI] and related motion
for continuance was not an abuse of discretion and,
even if an abuse of discretion, was not harmful error?’’
(2) ‘‘Did the Appellate Court properly [uphold] the trial
court’s exclusion of [testimony from the defendant’s
investigator on the issue of the defendant’s cell phone
location]?’’ (3) ‘‘Did the Appellate Court properly con-
clude that the trial court did not abuse its discretion
by admitting evidence regarding the defendant’s failure
to appear in court on unrelated criminal charges as
evidence of consciousness of guilt in this case?’’ And
(4) ‘‘Did the Appellate Court properly conclude that the
defendant had failed to preserve his claim that, pursuant
to State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017),
the trial court was required to hold a hearing in accor-
dance with State v. Porter, 241 Conn. 57, 698 A.2d 739
(1997) [cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140
L. Ed. 2d 645 (1998)], before allowing the state’s expert
to give expert testimony regarding the defendant’s cell
phone location?’’ State v. Jackson, 330 Conn. 922, 922–
23, 193 A.3d 1214 (2018). We conclude that it was an
abuse of discretion for the trial court to allow the state’s
late disclosed expert witness to testify without first
granting the defendant a reasonable continuance to
obtain his own expert. We also conclude that this error
was harmful. In light of this conclusion, we do not reach
the remaining, certified issues.
I
We begin with the defendant’s claim that the Appel-
late Court incorrectly concluded that the trial court
did not abuse its discretion either when it allowed the
state’s late disclosed expert witness to testify or when
it declined to grant the defendant a continuance to
obtain his own expert witness.
The record reveals the following additional facts rele-
vant to this issue. In April, 2014, the defendant served
on the state a request for disclosure, which included a
request for reports or statements of any experts. In
response, the state disclosed certain information but
did not include any information pertaining to an expert.
One year later, the defendant filed a motion, dated April
21, 2015, seeking disclosure of the expert witnesses the
state intended to call at trial and the opinions to which
each witness was expected to testify. At an April 29
pretrial hearing on the motion, defense counsel specifi-
cally stated that it was unclear whether the state had
obtained a CSLI expert and, if so, what that expert’s
opinion might be with respect to the defendant’s cell
phone location. The defendant indicated that,
depending what the opinion was, he ‘‘would anticipate
that [he] may file a motion in limine to . . . preclude
entirely or to limit the scope of the testimony . . . .’’
The court confirmed that, ‘‘what you’re asking for is,
if the state’s going to call an expert to give opinion
evidence about the proximity of [the defendant’s] cell
phone or a tower somewhere that you [would] like to
know who that is and [what] they’re going to say?’’ The
defendant confirmed that this was the information he
sought. The state raised no objection to this second
disclosure request but stated that it ‘‘can’t definitively
say who that might be at this time because [it is] still
analyzing the data . . . .’’ The court responded: ‘‘But
. . . if you select somebody and they say, look, in my
opinion, this cell phone was within, like, 100 feet of
this tower . . . which is on this building, you’ll disclose
that to the defense?’’ The state replied that it would
do so.
More than three months later, when jury selection
began on August 3, 2015, the state provided the defen-
dant with a list of 128 potential witnesses. The thirty-
sixth name on the list was Weaver, under the heading
‘‘Hartford Police [Department].’’ Weaver was not identi-
fied as an expert witness or described in any other way.
On October 1—nearly two months after that general
disclosure, after voir dire had commenced, and seven
days before evidence began—the state provided the
defendant with Weaver’s resume and a copy of a Pow-
erPoint computer software presentation Weaver had
prepared that purportedly charted the locations of the
cell phones associated with the defendant and Rogers,
as well as the GPS unit worn by Anderson around the
time of the shootings.
On October 7, 2015, one day before evidence com-
menced, the defendant filed a motion in limine seeking
to preclude Weaver’s testimony, ‘‘particularly as it con-
cerns [CSLI], or, at a minimum, a reasonable continu-
ance in order that a defense expert may be retained
(e.g., apply for and obtain funding authorization from
the Office of the Chief Public Defender, allow for [the]
expert’s review of necessary materials, etc.).’’ The
defendant argued that the state had not provided him
foundational information for Weaver’s opinion and that
the late disclosure unduly prejudiced him and his right
to present a defense. The defendant noted that, because
Weaver’s name had been among those that the state
had read to venire panels since the start of jury selec-
tion, nearly two months prior, ‘‘the state knew for at
least two months that it intended to call [Weaver] for
purposes of offering his PowerPoint presentation but
waited until the literal eve of trial to disclose it to the
defense, a course that deprived [the defendant] of the
opportunity to inquire about the potential impact of
cell phone data on [a venireperson’s] decision-making
and/or to ascertain [a venireperson’s] familiarity with
cell phone data and towers.’’ (Emphasis in original.)
The defendant asserted that, if Weaver were permitted
to testify, the defendant would need to obtain his own
expert and that he could not identify, hire, and obtain
funding for an expert, provide the expert with the mate-
rial for review, and confer with the expert on the presen-
tation of the defendant’s defense in the short time
before evidence was set to begin.
The trial court took no action on the motion in limine
until several days after evidence began on October 8,
2015. The court held a hearing on the motion on October
20. The court noted the defendant’s arguments regard-
ing the state’s late disclosure and stated that it under-
stood that the defendant was also challenging the relia-
bility of the software that Weaver had used to generate
the maps contained in his PowerPoint presentation and
whether he was qualified to conduct his analysis.
Defense counsel clarified, ‘‘I don’t think we ever really
contested that this type of information can be presented
to a jury if coming in through a proper expert. And in
terms of [Weaver’s] qualifications, we would just like
to voir dire him during his testimony if he’s allowed
to testify.’’3
Voir dire of Weaver then occurred outside the pres-
ence of the jury. Weaver testified that the state had first
contacted him ‘‘[t]wo to three weeks ago,’’ told him that
it had phone records and records related to a GPS
monitor that it wanted to have mapped, and provided
him with cell phone records for the defendant, Rogers,
and Anderson, and records for Anderson’s GPS monitor.
Weaver learned that the records associated with the
defendant’s phone contained the wrong set of tower
information, so he downloaded the correct information
from the National Cellular Assistance Data Center in the
form of a Microsoft Excel spreadsheet. Weaver testified
that he included that spreadsheet on a compact disc
(CD) that he created, made a copy for the defense, and
advised the Office of the State’s Attorney in Bridgeport
that the records were complete. Weaver also e-mailed
the PowerPoint presentation to the state. The state told
Weaver that it believed that it had the information it
needed based on the PowerPoint presentation and
never picked up either the original or the copy of the
CD from him in Hartford.
Following Weaver’s testimony, defense counsel
argued that the state had violated Practice Book § 40-
114 by failing to disclose Weaver as its expert in a timely
fashion. The defendant also argued that he had never
received the CD from the state that Weaver prepared,
which contained not only the Excel spreadsheet but
also a version of Weaver’s PowerPoint presentation
containing a video depicting the movement of Ander-
son’s GPS monitor, rather than a still image. Defense
counsel noted that, despite not having the underlying
data from the state, he had attempted to obtain an
expert witness following the state’s October 1 disclo-
sure but had not yet been successful. He argued that
he had been prejudiced in his ability to meaningfully
challenge Weaver’s testimony and requested that the
court preclude Weaver’s testimony or, alternatively,
grant him a ‘‘reasonable continuance . . . for at least
six weeks.’’
The state explained that it thought the court’s April
29, 2015 order required it to disclose expert opinion
evidence to the defense only after the state received it.
The state noted that it had provided the defense with
Weaver’s name on August 3, approximately two months
before the state even contacted Weaver, and that the
defendant was ‘‘aware that [CSLI data] was an issue
we were looking into.’’ The state claimed that it did not
meet with Weaver until the end of September because
it was in the process of jury selection for this trial and
it was preparing for other trials. Finally, the state noted
that it had ‘‘no answer’’ to explain why it did not pick up
the CDs from Weaver or disclose them to the defendant.
In an oral ruling, the court stated: ‘‘[T]he problem
I’m having is, while I know we are all busy people, I
don’t think it’s a fair interpretation of what the Practice
Book requires and what the court orders were in this
case to say that, okay, as soon as we have it, we’ll give
it to you notwithstanding when we have it. I mean, what
does that mean? Now, that would mean that you engage
an expert and you have the product that you intend to
offer through him the date before the evidence starts.
I know that didn’t happen here, but the product was
delivered . . . October the first or thereabout and the
evidence started on October the eighth. . . . [T]hese
obligations for . . . disclosure, which were filed,
[somewhat] generic, others were much more specific
made months ago. And while I don’t disagree with the
state that this type of evidence cannot be said to be
unanticipated, the problem is that, until the defense
knows . . . what the state is going to present . . . it
can’t prepare to . . . meet that evidence by either con-
sulting other experts or retaining other experts or what
have you. That’s the problem I have. That’s the problem
I have here.
‘‘I’m not saying that there was bad faith involved.
I’m just saying that, notwithstanding our schedules, I
believe that . . . this was all an avoidable situation.
. . . [T]he state could well have said, Your Honor, I
need two days off from jury selection to go meet with
expert so and so to see if we’re going to use him, and
that didn’t happen. I’m just troubled by the way that
this all unfolded. Again, not that there was bad faith
involved, but this was . . . in my mind, an avoidable
situation.’’
The court ultimately concluded, however, that the
defendant had not suffered prejudice as a result of the
late disclosure. It reasoned that ‘‘cell phone evidence,
the movement of these phones and . . . the GPS, is
not what I would call a . . . matter that is so novel or
cutting edge or unusual that the defendant would suffer
prejudice as a result of allowing its use here in court
in testimony through the witness.’’5 Accordingly, the
court denied the defendant’s motion in limine insofar
as he sought to exclude Weaver’s testimony in its
entirety, but it did preclude two slides of the Pow-
erPoint presentation, one containing the video that the
defendant never received and another containing
hearsay.
Defense counsel asked whether the court was also
denying the defendant’s request for a continuance. The
court replied, ‘‘[y]es. You can renew your motion if . . .
need be at the . . . end of direct [examination]. But
based upon what I’ve heard so far, been presented with
so far, I’m denying the request for a continuance.’’ The
defendant then moved for a mistrial, which the court
denied. The state thereafter provided the defense with
copies of Weaver’s Excel spreadsheet and CD.
The next day, before Weaver was set to testify before
the jury, defense counsel informed the court that, in
addition to redacting the precluded information from
the PowerPoint presentation, Weaver had also changed
the representation of cell site coverage areas depicted
in his visual presentation from ovals to pie wedges,
which narrowed the coverage areas. The court ordered
a ten minute recess to allow defense counsel to meet
with Weaver regarding the changes he had made to
the presentation. Following the recess, defense counsel
stated that, although he had a better understanding of
the changes to the PowerPoint presentation, he was
still unclear as to the reason for them. Defense counsel
renewed his requests for preclusion and for a mistrial,
and, in the alternative, asked for a continuance to at
least the next day to review the new material and to
prepare for cross-examination. The court granted the
continuance until the following morning.
The next morning, defense counsel stated that, out-
side of court, Weaver had provided ‘‘some clarification’’
about the changes he made to his presentation. He
renewed his objection to the late disclosure and argued
that the revised presentation magnified the prejudice
caused to the defendant because he was prevented from
obtaining his own expert. The court asked defense
counsel whether the changes to the presentation
‘‘impair your ability to cross-examine the witness to
any greater extent than you feel you may have been
impaired when [the defendant] first made the motion
to preclude . . . .’’ Defense counsel acknowledged that
the additional time had helped him prepare for cross-
examination regarding the changes to the presentation.
Thereafter, Weaver testified, and his PowerPoint pre-
sentation was shown to the jury. Weaver testified that
the state’s attorney’s office had provided him with logs
for Anderson’s GPS monitor and call records for three
phone numbers, and asked him to map the location of
both Anderson’s GPS monitor and of phone calls made
and received for two of the phone numbers, which the
state attributed to Rogers and the defendant. Using
commercial mapping software, Weaver plotted these
locations, which were depicted on the maps as a person
figure in the center of 120 degree pie shaped coverage
areas. The placement of the figure in the center did not
mean that was the exact location of the cell phone;
rather, it meant that the phone was generally within
the cell tower’s coverage area.
Weaver’s PowerPoint presentation contained fifteen
different snapshots of time. The maps and descriptions
indicated Anderson’s GPS location and whether the
defendant’s or Rogers’ cell phone connected to a cell
site with a ‘‘generally expected coverage area’’ in which
Anderson’s GPS was located. Snapshots nine through
thirteen showed that the defendant’s phone connected
to a cell site whose coverage area included Anderson’s
GPS. Specifically, snapshot nine depicted the defen-
dant’s phone connected to a cell site whose coverage
area included the location of the shootings. Snapshots
ten through twelve also showed the defendant’s phone
as being in the same coverage area as Anderson’s GPS.
Finally, snapshot thirteen showed that the defendant’s
phone, Rogers’ phone, and Anderson’s GPS were all
in the area of Stratford Avenue and Hollister Avenue.
Weaver opined that these maps showed that the
‘‘phones moved together or met with before and/or after
. . . the [victim’s] murder. They either traveled to or
traveled from. [Rogers’ phone] moved toward the [vic-
tim’s] murder with [Anderson’s] GPS. And the [defen-
dant’s] phone . . . moved away and then when they
actually made phone calls all together . . . within this
area of Stratford and Hollister after the homicide.’’
On cross-examination, Weaver admitted that the
prosecutor had directed him to map only those calls
made when the phones were in the same proximity,
and, consequently, there were several calls that had not
been mapped. Specifically, Weaver did not include a
phone call made from Rogers’ phone to the defendant’s
phone at 2:14 p.m. He explained that he was asked only
to plot the points and times when the two phones were
together, and, because the defendant’s phone was not
near Rogers’ at that time, he did not include it. He also
did not include other cell towers that were in the area,
and, as such, his presentation did not depict any cover-
age overlap between towers. Weaver’s snapshots also
did not depict the movement of the phones.
Following the jury’s verdict, the defendant filed a
motion for a judgment of acquittal or, in the alternative,
a new trial. In support of his motion, the defendant
claimed that the state’s late disclosure of Weaver and
the court’s failure to preclude Weaver’s testimony or to
afford the defendant a reasonable continuance deprived
the defendant of a fair trial. The court denied the
motion.
On appeal, the Appellate Court concluded that the
trial court had not abused its discretion in denying
the motions in limine and for a continuance. State v.
Jackson, supra, 183 Conn. App. 641. With regard to
Weaver’s testimony, the court reasoned that the sup-
pression of otherwise admissible evidence is a severe
sanction, and the defendant was not challenging Weav-
er’s qualifications or the reliability of the software he
used. Id., 641–42. With respect to the continuance, the
court concluded that the defendant was prejudiced by
the late disclosure but that this prejudice was ade-
quately mitigated by defense counsel’s effective cross-
examination of Weaver. Id., 643. It also noted that,
although ‘‘the requested continuance likely would have
cured any then existing prejudice to the defendant as
a result of the late disclosure,’’ had the trial court con-
sidered the feasibility of a continuance, it could have
concluded that the six week continuance that defense
counsel requested would be too disruptive to the trial.
Id., 644.
Nonetheless, the court acknowledged that the ques-
tion of whether the trial court abused its discretion in
failing to order a continuance was a ‘‘close one.’’ Id.,
646. It therefore went on to conclude that, even if the
denial of the continuance was an abuse of discretion,
the defendant had not demonstrated that the error was
harmful. Id., 648. It explained that ‘‘Weaver’s testimony,
although important to the state’s case, also was corrob-
orative of other testimony presented to the jury,’’ such
as Anderson’s detailed description of the events on the
day of the shootings and surveillance videos. Id., 648–49.
It also noted that the ‘‘state’s case against the defendant
was relatively strong’’ based on Anderson’s testimony,
as well as other circumstantial evidence, including con-
sciousness of guilt evidence. Id., 649.
On appeal to this court, the defendant claims that
the trial court’s failure to order any sanction for the
state’s late disclosure was an abuse of discretion
because he should not have been obligated to anticipate
Weaver’s testimony and the state offered no good rea-
son for its dilatory inaction. The defendant argues that
permitting the state’s expert to testify without providing
him an opportunity to secure his own expert was harm-
ful because it deprived him of the opportunity to effec-
tively undermine Weaver’s expert opinion, and the
state’s case was not strong without Weaver’s testimony.
The state claims that the Appellate Court correctly
concluded that the trial court did not abuse its discre-
tion because the trial court afforded the defendant brief
continuances to permit review of any belatedly dis-
closed materials, and it allowed extensive cross-exami-
nation. It further argues that the facts of this case do not
warrant the ‘‘draconian remedy’’ of precluding Weaver’s
testimony. The state also argues that the trial court
did not abuse its discretion when it denied defense
counsel’s request for a six week continuance because,
‘‘in substance, it granted two brief continuances, after
which the defendant abandoned his request for a length-
ier one.’’ Finally, the state argues that, even if the admis-
sion of Weaver’s testimony was an abuse of discretion,
such error was harmless because his testimony was
corroborative of other testimony and evidence and the
state’s case was ‘‘remarkably strong . . . .’’
Resolution of this issue is controlled by well settled
principles. Pursuant to Practice Book § 40-11 (a) (3),
upon written request by a defendant, the state shall
disclose any ‘‘reports or statements of experts made in
connection with the offense charged including results
of . . . scientific tests, experiments or comparisons
which are material to the preparation of the defense
or are intended for use by the prosecuting authority as
evidence in chief at the trial . . . .’’ The state has a
continuing duty to disclose such documents, and, if
there is a failure to comply with disclosure, the trial
court must take appropriate action, including the impo-
sition of an appropriate sanction. See, e.g., State v.
Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980); see also
Practice Book §§ 40-3 and 40-5.
Practice Book § 40-5 gives broad discretion to the
trial judge to fashion an appropriate remedy for non-
compliance with discovery. See, e.g., State v. Respass,
256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S.
1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). The
court may enter such orders ‘‘as it deems appropriate,
including . . . (2) Granting the moving party addi-
tional time or a continuance . . . (4) Prohibiting the
noncomplying party from introducing specified evi-
dence . . . (5) Declaring a mistrial . . . [or] (8) Enter-
ing such other order as it deems proper.’’ Practice Book
§ 40-5. ‘‘[T]he primary purpose of a sanction for viola-
tion of a discovery order is to ensure that the defen-
dant’s rights are protected, not to exact punishment on
the state for its allegedly improper conduct. As we have
indicated, the formulation of an appropriate sanction
is a matter within the sound discretion of the trial court.
. . . In determining what sanction is appropriate for
failure to comply with [court-ordered] discovery, the
trial court should consider the reason why disclosure
was not made, the extent of prejudice, if any, to the
opposing party, the feasibility of rectifying that preju-
dice by a continuance, and any other relevant circum-
stances.’’ (Internal quotation marks omitted.) State v.
Respass, supra, 186. As with any discretionary action
of the trial court, appellate review requires every rea-
sonable presumption in favor of the action, and ‘‘ ‘the
ultimate issue is whether the trial court could reason-
ably conclude as it did.’ ’’ State v. Arthur H., 288 Conn.
582, 595, 953 A.2d 630 (2008). ‘‘In general, abuse of
discretion exists when a court could have chosen differ-
ent alternatives but has decided the matter so arbitrarily
as to vitiate logic, or has decided it based on improper or
irrelevant factors.’’ (Internal quotation marks omitted.)
State v. O’Brien-Veader, 318 Conn. 514, 555, 122 A.3d
555 (2015).
The determination of whether to grant a request for
a continuance is similarly within the discretion of the
trial court. See, e.g., State v. Hamilton, 228 Conn. 234,
239, 636 A.2d 760 (1994). The court, in exercising its
discretion, may weigh various factors in considering a
request for a continuance, including ‘‘the likely length
of the delay . . . the impact of delay on the litigants,
witnesses, opposing counsel and the court . . . the
perceived legitimacy of the reasons proffered in support
of the request . . . [and] the likelihood that the denial
would substantially impair the defendant’s ability to
defend himself . . . .’’ (Internal quotation marks omit-
ted.) State v. Lopez, 280 Conn. 779, 787, 911 A.2d 1099
(2007). ‘‘In the event that the trial court acted unreason-
ably in denying a continuance, the reviewing court must
also engage in harmless error analysis.’’ State v. Hamil-
ton, supra, 242.
In the present case, we need not decide whether the
trial court’s decision to permit the state’s late disclosed
expert witness to testify was, in and of itself, an abuse
of discretion. Instead, we conclude that this action was
an abuse of discretion in the absence of affording the
defendant a reasonable continuance to obtain his own
expert. Cf. State v. Festo, supra, 181 Conn. 266 (it is
appropriate for trial court to afford ‘‘the defendants
more time to examine and analyze the [late disclosed]
evidence in lieu of granting their motions for a mistrial
and motions for suppression of evidence’’).
The state disclosed Weaver as an expert on October
1—only seven days before evidence began—despite
knowing for at least two months that it may call Weaver,
a Hartford police sergeant unconnected to the legal
investigation of a Bridgeport crime, to testify.6 The
defendant had filed a motion for disclosure of the state’s
expert witnesses more than five months prior to the
state’s disclosure. Pursuant to Practice Book § 40-11
(a) (3) and the trial court’s April 29 discovery order,
the state was required to timely disclose to the defen-
dant that it anticipated calling a CSLI expert. As we
have explained, the rules of practice impose ‘‘on parties
to a criminal proceeding a continuing duty to disclose
material previously requested. . . . Practice Book
[§ 40-3] requires notification as soon as practicable
under the prevailing circumstances.’’ (Emphasis
added.) State v. Gunning, 183 Conn. 299, 306, 439 A.2d
339 (1981).
The trial court concluded that the late disclosure
was avoidable, rejecting the state’s explanations for the
timing—that it was involved in jury selection for this
case and preparing for other cases, and that it interpre-
ted the court’s April 29, 2015 discovery order to require
the state to disclose expert opinion evidence only when
the state received it. We agree that there was no valid
reason why disclosure was not made until after voir
dire began and only one week before evidence began.
The state’s failure to prepare for trial in a timely fashion
is not a valid reason for a late disclosure of an expert
witness to the defense. Late disclosure rendered the
defendant’s opportunity to prepare a meaningful
defense effectively nonexistent. The same exigency the
state cited—that it was involved in jury selection in
this case—was true for the defense as well. The only
meaningful difference between the state and the
defense was that the state was afforded the opportunity
to disclose its expert late, but the defendant was not
similarly afforded a reasonable continuance to adjust
his trial strategy to respond to that eleventh hour disclo-
sure. Indeed, we have explained that timely disclosure
is designed to prevent this precise situation. See, e.g.,
State v. Festo, supra, 181 Conn. 265 (‘‘[t]he purpose of
criminal discovery is to prevent surprise and to afford
the parties a reasonable opportunity to prepare for
trial’’).
We also conclude that the defendant was prejudiced
as a result of the late disclosure. As the Appellate Court
properly recognized, ‘‘the defendant was prevented
from consulting with, and potentially presenting the
testimony of, his own expert.’’7 State v. Jackson, supra,
183 Conn. App. 643. This is not a case in which the
reasons the defendant proffered in support of the con-
tinuance were speculative. Cf. State v. Delgado, 261
Conn. 708, 714–15, 805 A.2d 705 (2002) (‘‘trial court
does not act arbitrarily or unreasonably when it denies
a motion for a continuance that is supported by mere
speculation’’).
The trial court’s prejudice analysis focused on the
substance of Weaver’s testimony, and the court con-
cluded that Weaver’s testimony was not ‘‘so novel or
cutting edge or unusual.’’ This conclusion is inconsis-
tent with this court’s decision in State v. Edwards,
supra, 325 Conn. 97. In Edwards, we concluded that
the process of analyzing CSLI data is ‘‘ ‘beyond the ken
of the average juror.’ ’’8 Id., 128. In order to meaningfully
understand and challenge Weaver’s testimony, it was
essential for the defendant to be able to obtain his own
CSLI expert. We are not persuaded that the two brief
continuances the trial court gave to the defendant to
obtain clarification from Weaver meaningfully allevi-
ated the prejudice because they did not afford the defen-
dant sufficient time to obtain funding for an expert from
the Office of the Chief Public Defender and, subse-
quently, to secure his own CSLI expert. Consultation
with the opposing expert is not a promising means of
obtaining information about the weaknesses of that
expert’s views, which is why adverse parties typically
retain their own experts.
A reasonable continuance almost undoubtedly would
have rectified the prejudice. See, e.g., State v. Cooke,
134 Conn. App. 573, 579, 39 A.3d 1178 (granting continu-
ance to allow defendant’s expert to review late dis-
closed supplemental DNA report alleviated any preju-
dice to defendant), cert. denied, 305 Conn. 903, 43 A.3d
662 (2012); State v. Van Eck, 69 Conn. App. 482, 498–99,
795 A.2d 582 (court did not abuse discretion in electing
to continue matter for almost one month for defendant
to obtain records, which were not previously disclosed
to him), cert. denied, 260 Conn. 937, 802 A.2d 92 (2002),
and cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002).
As we have explained, ‘‘[a] continuance is ordinarily
the proper method for dealing with a late disclosure.
. . . A continuance serves to minimize the possibly
prejudicial effect of a late disclosure . . . .’’ (Citations
omitted; internal quotation marks omitted.) Rullo v.
General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279
(1988). The Appellate Court also acknowledged as
much. See State v. Jackson, supra, 183 Conn. App. 644
(‘‘we recognize that the requested continuance likely
would have cured any then existing prejudice to the
defendant as a result of the late disclosure’’).
The Appellate Court nonetheless concluded that
granting a six week continuance would have caused a
substantial disruption to the trial, which was well under
way. See id. This problem, however, was not of the
defendant’s making, but only he shouldered the burden
of the problem created by the state’s late disclosure.
The defendant filed the motion in limine only six days
after the state disclosed Weaver’s PowerPoint presenta-
tion and one day before evidence began. It is unclear
why the court did not hold a hearing on the motion
until thirteen days later, after the start of trial, just
before Weaver was called to testify. The court was on
notice before trial began that the defendant sought a
continuance as an alternative form of relief.
In the defendant’s motion, he requested a ‘‘reasonable
continuance.’’ It was only during the hearing on the
motion that he suggested that a reasonable continuance
would be for ‘‘at least six weeks.’’ Had the trial court
concluded—despite not holding a hearing on the motion
until thirteen days after the defendant filed it—that it
would be too disruptive to the proceedings to grant a
six week continuance, the court could have granted a
shorter continuance. See, e.g., State v. Nelson, 118 Conn.
App. 831, 846, 986 A.2d 311 (it was not abuse of discre-
tion for court to grant one month continuance when
defendant asked for two month continuance), cert.
denied, 295 Conn. 911, 989 A.2d 1074 (2010); United
States v. Turner, 897 F.3d 1084, 1101–1102 (9th Cir.
2018) (it was not abuse of discretion to provide shorter
continuance than requested), cert. denied, U.S. ,
139 S. Ct. 1234, 203 L. Ed. 2d 247 (2019); see also State
v. Respass, supra, 256 Conn. 186 (court has broad dis-
cretion to afford remedy under Practice Book § 40-5).
We acknowledge that defense counsel failed to ade-
quately explain specifically why his request for a six
week continuance was reasonable or to request a con-
tinuance for a shorter period of time. Nonetheless,
defense counsel’s failure to engage in such a discussion
with the trial court does not excuse the resulting preju-
dice to the defendant. Accordingly, we conclude that
it was an abuse of discretion for the trial court to allow
the state’s late disclosed expert witness to testify with-
out first providing the defendant with a reasonable con-
tinuance to obtain his own expert.
The state argues that the trial court did not abuse its
discretion in declining to order a continuance because
defense counsel abandoned his request by not renewing
it after the state’s direct examination of Weaver, as
the court had suggested. The state notes that defense
counsel proceeded with his cross-examination of
Weaver and, subsequently, proffered his own investiga-
tor as a witness on cell phone location. The state points
out that, when defense counsel proffered the investiga-
tor’s testimony, he stated, ‘‘I’m not seeking a further
continuance.’’
We agree with the Appellate Court that defense coun-
sel did not abandon his request for a continuance. See
State v. Jackson, supra, 183 Conn. 646. Defense counsel
noted numerous times after Weaver’s testimony that
the defendant was prejudiced by the denial of counsel’s
request for a continuance. Defense counsel’s statement
that he was ‘‘not seeking a further continuance’’ was
in response to the trial court’s misunderstanding that
the defense was seeking a continuance before prof-
fering the testimony of its investigator on CSLI. The
court stated that, ‘‘before [Weaver] took the stand yes-
terday and today . . . you had said that you were not
looking for a further continuance, that you were ready
to go forward preserving your grounds for the motion
to preclude that you had articulated before.’’ (Emphasis
added.) In response, defense counsel stated, ‘‘I’m not
seeking a further continuance. We would be able to call
[the investigator] this afternoon.’’9
Having concluded that it was an abuse of discretion
for the trial court to allow the state’s late disclosed
expert witness to testify without first giving the defen-
dant a reasonable continuance to obtain his own expert,
we must now determine whether that error was harm-
ful. ‘‘[W]hether [an improper ruling] is harmless in a
particular case depends upon a number of factors, such
as the importance of the witness’ testimony in the prose-
cution’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 per-
mitted, and, of course, the overall strength of the prose-
cution’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.’’ (Internal quotation
marks omitted.) State v. Eleck, 314 Conn. 123, 129, 100
A.3d 817 (2014). ‘‘[A] nonconstitutional error is harm-
less when an appellate court has a fair assurance that
the error did not substantially affect the verdict.’’ (Inter-
nal quotation marks omitted.) State v. Pascual, 305
Conn. 82, 93, 43 A.3d 648 (2012).
After reviewing the evidence in the present case, we
cannot conclude that we have a fair assurance that the
admission of Weaver’s testimony, without affording the
defendant a reasonable continuance to obtain his own
expert to meaningfully challenge Weaver’s testimony,
did not substantially affect the verdict in this case. The
state’s case was based primarily on the testimony of
Weaver and Anderson. There is no doubt that Weaver’s
expert testimony was central to the state’s case because
his testimony and PowerPoint presentation were the
only objective evidence that placed the defendant’s
phone in the same area as Rogers’ phone and Ander-
son’s GPS around the time of the shootings. Although
several eyewitnesses identified Rogers as a shooter, the
identity of the second suspect was a central issue in
the case, and the only objective evidence identifying the
defendant as the second suspect was Weaver’s expert
testimony.10 There can be little doubt that jurors would
have viewed as highly convincing Weaver’s expert opin-
ion; the testimony was presented in technical terms and
used impressive visual displays to convey important
information, and it came from a law enforcement officer
unconnected to the department that investigated the
crime. Cf. State v. Boyd, 295 Conn. 707, 744, 992 A.2d
1071 (2010) (evidentiary error was harmless because,
among other things, ‘‘cell phone records provided
strong evidence that the defendant had been in the
area’’ where murder occurred), cert. denied, 562 U.S.
1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011). No
eyewitnesses identified the defendant as one of the
perpetrators. Moreover, the defendant’s DNA was never
found in Anderson’s car.
The Appellate Court acknowledged that Weaver’s tes-
timony was ‘‘important to the state’s case’’ but con-
cluded that it was ‘‘corroborative of other testimony
presented to the jury. The jury heard Anderson’s
detailed description of the events on the day of the
shootings. Anderson identified the defendant as the
man he picked up on Palisade Avenue on the afternoon
of the shootings. Anderson testified that he dropped
the defendant and Rogers off near the scene of the
shootings and heard ‘firecracker sounds’ while they
were gone.’’ State v. Jackson, supra, 183 Conn. App.
648–49. Anderson, however, had both a motive to testify
falsely and credibility issues. When Anderson first met
with the police, they asked if he knew anyone called
‘‘Red Dreads,’’11 and Anderson asked if they meant ‘‘Lit-
tle Red.’’ The police then asked him if he knew someone
called ‘‘Little Red Dreads,’’ and he replied no. During
a second meeting with the police eight days later, the
police showed Anderson a photographic array con-
taining the defendant’s picture, but Anderson did not
identify the defendant. It was not until nearly five
months later, after Anderson had been charged with
conspiracy to commit murder and was being held in
prison, that he requested a third meeting with the police,
at which he identified the defendant as the individual
he had picked up. Prior to that third meeting, Anderson
had attended a court proceeding where he saw the
defendant and heard people calling the defendant ‘‘Red
Dreads.’’ After requesting the third meeting with the
police, Anderson asked the police whether Red Dreads
was the name of the individual they had previously
asked him about. He then chose the defendant’s photo-
graph from an array, asserting that he was Red Dreads.
Anderson signed an agreement that gave him immunity
for anything he told to the police, and the state promised
it would let the judge know how he performed as a
witness against the defendant and Rogers when he was
sentenced. After the defendant was sentenced, the state
dismissed Anderson’s conspiracy to commit murder
charge, and he pleaded guilty to hindering prosecution
in the second degree, for which he received an uncondi-
tional discharge.
The Appellate Court also noted that surveillance vid-
eos corroborated much of Anderson’s testimony. Id.,
649. The surveillance videos, however, do not clearly
depict the backseat passenger in Anderson’s car. The
footage that the state points to as depicting the backseat
passenger, state’s exhibit 34, simply depicts a figure
that appears to be a man opening and closing the rear
passenger door of Anderson’s car and then exiting the
car at Stratford Avenue and Hollister Avenue, approxi-
mately fifteen minutes after the shootings. That individ-
ual appears to have dreadlocks and is wearing a hat
with a logo. Although the state introduced evidence
that the defendant had dreadlocks and a hat with a
similar logo, no eyewitnesses to the shootings described
the second suspect as wearing a hat or having dread-
locks. In fact, the video shows the individual that exited
Anderson’s car was wearing jeans, while some eyewit-
ness testimony described the second suspect as wearing
khaki pants. Finally, the video captured the period
approximately fifteen minutes after the shootings,
which allows for the possibility that the individual exit-
ing the car at Stratford Avenue and Hollister Avenue
is not the second suspect involved in the shootings
but, rather, someone else who subsequently entered
Anderson’s car.12
In sum, the defendant was prevented from meaning-
fully challenging the state’s late disclosed expert wit-
ness because he could not obtain his own expert. Given
the centrality of Weaver’s expert testimony to the state’s
case—because it was the only objective evidence plac-
ing the defendant in the same area as Rogers around
the time of the shootings—we cannot conclude, with
a fair assurance, that the error did not substantially
affect the verdict. Accordingly, we conclude that the
error was harmful and that the defendant is entitled to
a new trial.
II
Although our conclusion in part I of this opinion
is dispositive of the appeal, in the interest of judicial
economy, we consider whether any of the other claims
raised by the defendant are sufficiently likely to arise
in a new trial that we should address them. See, e.g.,
State v. Norman P., 329 Conn. 440, 454, 186 A.3d 1143
(2018); State v. Chyung, 325 Conn. 236, 260 n.21, 157
A.3d 628 (2017). The defendant’s claim that the Appel-
late Court improperly upheld the trial court’s exclusion
of his investigator’s testimony is not likely to occur in
a new trial because the defendant sought to introduce
this testimony to ‘‘ameliorate the harm’’ caused by his
inability to secure his own expert. The defendant will
be able to obtain his own CSLI expert on retrial. The
defendant’s fourth claim is not likely to arise in a new
trial because, pursuant to State v. Edwards, supra, 325
Conn. 97, if the defendant requests a hearing in accor-
dance with State v. Porter, supra, 241 Conn. 57, prior
to the admission of CSLI expert testimony, the trial
court would be required to hold one.
Finally, we decline to address the defendant’s third
claim, namely, that the trial court abused its discretion
by admitting evidence regarding the defendant’s failure
to appear in court on unrelated criminal charges as
evidence of consciousness of guilt in this case. We rec-
ognize that whether the trial court abused its discretion
by admitting this consciousness of guilt evidence pre-
sents an interesting question, but we need not address
it here because the record could look different on
retrial. Cf. State v. Rizzo, 266 Conn. 171, 250 n.44, 833
A.2d 363 (2003). We leave it to the trial court to further
evaluate the issue if the state pursues it on remand.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion the other justices concurred.
1
The defendant also was charged with one count of criminal possession
of a firearm. The court granted the defendant’s motion to sever that count
from the state’s information. The state subsequently entered a nolle prosequi
as to that count.
2
The jury also found Rogers guilty of the same offenses. See State v.
Rogers, 183 Conn. App. 669, 671–72, 193 A.3d 612 (2018), petition for cert.
filed (Conn. September 28, 2018) (No. 180205). Rogers’ conviction is not at
issue in this appeal.
3
Because the defendant does not challenge Weaver’s qualifications as an
expert, we do not evaluate those qualifications or assess whether he would
be qualified to testify as an expert.
4
Practice Book § 40-11 (a) provides in relevant part: ‘‘Upon written request
by a defendant filed in accordance with Section 41-5 and without requiring
any order of the judicial authority, the prosecuting authority, subject to
Section 40-40 et seq., shall promptly, but no later than forty-five days from
the filing of the request, unless such time is extended by the judicial authority
for good cause shown, disclose in writing the existence of, provide photocop-
ies of, and allow the defendant in accordance with Section 40-7, to inspect,
copy, photograph and have reasonable tests made on any of the following
items . . . (3) Any reports or statements of experts made in connection
with the offense charged including results of physical and mental examina-
tions and of scientific tests, experiments or comparisons which are material
to the preparation of the defense or are intended for use by the prosecuting
authority as evidence in chief at the trial . . . .’’
5
The court did not explain why, if CSLI evidence was not ‘‘novel or cutting
edge or unusual,’’ the state would nonetheless require an expert to present
this evidence. We note, however, that, when the trial court denied the
defendant’s motion in limine, it did not have the benefit of our decision in
State v. Edwards, supra, 325 Conn. 97. In Edwards, we held that a court
must conduct a hearing pursuant to State v. Porter, supra, 241 Conn. 57,
before admitting testimony and evidence regarding CSLI because ‘‘the pro-
cess [the CSLI witness] used to arrive at his conclusions [is] beyond the
ken of [the] average juror.’’ State v. Edwards, supra, 128, 133.
6
The state contends that the trial court did not abuse its discretion in
denying the request for a continuance because the ‘‘coordinates (except
those in the . . . spreadsheet related to Rogers’ phone) had been provided
through discovery well before trial,’’ and, thus, the defendant could have
secured an expert witness to review the records. We are not persuaded.
The disclosure of the cell phone records did not give the defendant notice
that the state would call an expert who would generate a PowerPoint presen-
tation and testify that he believed the defendant was in the area at the time
of the shootings. As the trial court noted, ‘‘the problem is that, until the
defense knows . . . what the state is going to present . . . it can’t prepare
to . . . meet that evidence by either consulting other experts or retaining
other experts . . . .’’
7
The Appellate Court also noted, however, that, ‘‘[a]lthough the late disclo-
sure deprived the defendant of the opportunity to consult with his own
expert, defense counsel conducted an effective cross-examination of
Weaver.’’ State v. Jackson, supra, 183 Conn. App. 643. We agree with the
defendant that the fact that he elicited some favorable testimony during
cross-examination does not remedy the fact that he was deprived of the
opportunity to present his own expert witness who might have opined that
the defendant was not in the area at the time of the shooting and who might
have provided assistance to his attorney by identifying other areas in which
he should question Weaver. The expert also might have explained why
Weaver’s opinion and methodology were faulty.
8
As we previously noted, at the time the trial court denied the defendant’s
motion in limine, it did not have the benefit of our decision in State v.
Edwards, supra, 325 Conn. 97. See footnote 5 of this opinion.
9
Defense counsel explained that he was calling his investigator to ‘‘amelio-
rate the harm [in] some limited way to be able to put what we’ve identified
in terms of . . . where that cell tower was located [at the 2:14 p.m. call].’’
Specifically, defense counsel sought to have his investigator testify that,
based on CSLI data, the defendant’s cell phone was on the west side of
Bridgeport during the 2:14 p.m. call with Rogers, which would have made
it ‘‘practically impossible’’ for him to get to the east side of the city where
Anderson had allegedly picked him up shortly after the call. The state did
not object to this testimony. Nevertheless, the court subsequently precluded
the defendant’s investigator from testifying. Thus, to the extent there was
any further opportunity for the court to mitigate the prejudice from the
state’s late disclosure of Weaver by permitting the defendant’s investigator
to testify, it was lost.
10
The state contends that the state’s case was ‘‘remarkably strong,’’ based
on Anderson’s testimony and because the defendant was ‘‘linked to Rogers
through cell phone call logs,’’ a bandana found in Rogers’ home, and the
text Rogers sent to the defendant when he was arrested. This evidence,
however, establishes nothing more than an association between Rogers and
the defendant, and does not establish that the defendant was a passenger
in Anderson’s car at the time of the shootings.
11
Anderson subsequently testified that Red Dreads was the defendant
and that Red Dreads was the individual he picked up on Palisade Avenue.
Anderson also testified, however, that the individual he picked up was
wearing sunglasses and that Anderson did not know him.
12
We note that state’s exhibit 29, a surveillance video taken from
Grandview Avenue around the time of the shootings, depicts Anderson’s
car pulling to the side of the road and two individuals exiting the car. One
individual is wearing dark colored pants and a hooded sweatshirt with the
hood pulled over his head, and the other individual is wearing khaki pants. No
distinguishing features of the backseat passenger are depicted in the video.