State v. Montanez

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STATE OF CONNECTICUT v. ELIZARDO MONTANEZ
(AC 40359)
Alvord, Prescott and Beach, Js.
Syllabus
Convicted of the crimes of murder, conspiracy to violate the dependency-
producing drug laws, carrying a pistol without a permit and criminal
possession of a firearm, the defendant appealed. The defendant, whose
probation also was revoked, claimed, inter alia, that the trial court
violated his right to due process and a fair trial when it denied his
motion for a mistrial after the jury reported that there was a bullet hole
in a window in the jury deliberations room that had not been there the
day before. Defense counsel claimed that there was no cure for the
potential bias that may have developed in the jurors’ minds as a result
of their discovery of the bullet hole. The trial court instructed the jury
as a group that the matter was unrelated to and not part of the evidence
in the case, and that it could infer no negative inference against the
defendant as it deliberated. The court thereafter denied the defendant’s
motion for a new trial. On appeal, the defendant claimed that the trial
court’s response to the jury’s report of the bullet hole was insufficient
under State v. Brown (235 Conn. 502), and that the bullet hole incident
had resulted in substantial and irreparable prejudice to his case. The
defendant also claimed that the trial court improperly determined that
testimony by an FBI agent, W, about drive test survey data, which
measures cell phone signals in relation to the location of a crime and
plots those signals on a map, was admissible under the test for the
admissibility of scientific evidence in State v. Porter (241 Conn. 57). Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court improperly denied his motion for a mistrial, which was based on
his assertion that the court abused its discretion by inquiring of the jury
as a group as to whether it could follow the court’s instruction and
remain fair and impartial: that court complied with Brown’s mandate
that it conduct a preliminary inquiry of the jury on the record, as the
factual basis on which the court relied was established on the record
with both parties’ knowledge and participation, the jury experienced
the bullet hole incident as a group and, thus, the court properly inquired
of the jury as a group, and the defendant presented no authority that
the court was required to question the jurors individually, as a court
may fulfill its obligation under Brown by informing both parties of the
allegations, providing them with an adequate opportunity to respond
and stating on the record its reasons for conducting a limited proceeding;
moreover, the bullet hole incident was not presumptively prejudicial,
as it did not pertain directly to the merits of the matter, the court issued
a curative instruction to the jury that the bullet hole was unrelated to
the case and that the jury may infer no negative inference against the
defendant, the court reminded the jury that the deliberation process
must continue based only on the evidence that was presented, and the
jury sent the court a note after it returned to the deliberations room
that indicated that it could continue to deliberate without any prejudice
to the defendant.
2. The trial court did not abuse its discretion in concluding that W’s testimony
about drive test survey data was admissible in evidence under Porter:
W’s methodology was reliable, as he testified that he and other members
of the FBI used drive test data on a daily basis to locate fugitives, recover
evidence and find victims, he testified that the cell phone handset had
never not been where the record said it would be, and the court properly
credited his testimony that the cell phone industry routinely relies on
drive tests that are conducted in the same manner as W’s test to design,
maintain and optimize cell phone networks; moreover, W’s testimony
was relevant and satisfied the fit requirement of Porter, as W testified
that the technology, towers, sectors and azimuths were the same for
the relevant towers from the time the crime occurred through the time
when he conducted the drive test, and he testified that he expected the
signal strength to be the same during that time period, there was an
unobstructed view of the cell tower in question, day-to-day weather had
a negligible impact on cell service and older technology did not undergo a
lot of change; furthermore, even if the challenged evidence was admitted
improperly, any error was harmless and did not substantially affect the
jury’s verdict, as it was not vital to the state’s case, other unchallenged
evidence corroborated W’s testimony on material points, the defendant
did not challenge historical cell site location evidence and had a full
opportunity to cross-examine W, and even without the drive test survey
data, the state had a strong case against the defendant.
Argued April 19—officially released October 23, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder, conspiracy to violate the depen-
dency-producing drug laws, carrying a pistol without a
permit and criminal possession of a firearm, and infor-
mation charging the defendant with violation of proba-
tion, brought to the Superior Court in the judicial
district of Fairfield, where the court, Pavia, J., ordered
that the charges of criminal possession of a firearm and
violation of probation be tried to the court; thereafter,
the charges of murder, conspiracy to violate the depen-
dency-producing drug laws and carrying a pistol with-
out a permit were tried to a jury; subsequently, the
court denied the defendant’s motions to preclude cer-
tain evidence and for a mistrial; thereafter, the charge
of violation of probation was tried to the court; verdict
of guilty of murder, conspiracy to violate the depen-
dency-producing drug laws and carrying a pistol with-
out a permit; subsequently, the charge of criminal
possession of a firearm was tried to the court; there-
after, the court denied the defendant’s motion for a new
trial; judgment of guilty of murder, conspiracy to violate
the dependency-producing drug laws, carrying a pistol
without a permit and criminal possession of a firearm,
and judgment revoking the defendant’s probation, from
which the defendant appealed. Affirmed.
Erica A. Barber, assigned counsel, for the appel-
lant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Joseph T. Corradino, senior assistant
state’s attorney for the appellant (state).
Opinion
ALVORD, J. The defendant, Elizardo Montanez,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of murder in violation of General
Statutes § 53a-54a (a), conspiracy to violate the depen-
dency-producing drug laws in violation of General Stat-
utes §§ 53a-48 and 21a-277 (a), and carrying a pistol
without a permit in violation of General Statutes § 29-
35 (a), and, following a court trial, of criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a) (1). The defendant also appeals from the judg-
ment revoking his probation after the trial court found
him to be in violation of his probation in violation of
General Statutes § 53a-32. On appeal, the defendant
claims that (1) he was denied his right to due process
and trial by a fair and impartial jury when the court
denied his request for a mistrial after a bullet hole was
discovered in the jury room during deliberations, and
(2) the trial court abused its discretion in concluding
that drive test survey data is admissible under the test
for admissibility of scientific evidence set forth in 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).
We affirm the judgments of the trial court.
The jury reasonably could have found the following
facts. At the defendant’s request, Jesus Gonzalez con-
tacted the victim, Ernesto Reyes-Santos, on April 7 or
8, 2014, to ask him to bring heroin from New York
to Bridgeport. Gonzalez knew the victim through their
heroin sales together. The victim would supply Gonza-
lez with heroin, and Gonzalez would bring customers
to the victim. Gonzalez had also known the defendant
for a long time, and the defendant became involved
with Gonzalez and the victim’s heroin business. The
defendant told an acquaintance, Valerie Gomez-Dela-
vega, with whom he socialized daily, that Gonzalez had
someone coming from New York with drugs that the
defendant needed her to try. He also told her that they
were going to rob the person from New York and that
they would have to kill him so that no one would
retaliate.
On April 9, 2014, Gonzalez agreed to meet the victim
in Bridgeport on Davis Avenue, near where Gonzalez
lived. Gonzalez drove his white Jeep Cherokee to the
meeting spot at about 9 p.m., and the defendant walked
from around the corner and got into the Jeep’s front
passenger seat. The victim arrived and got into the
Jeep’s backseat, sitting behind the passenger seat. The
victim then ‘‘had words with the defendant.’’ The defen-
dant wanted to bring the heroin somewhere to have
someone try it. The victim refused and exited the Jeep.
The defendant also exited the Jeep and shot the victim,
who later died of the gunshot wound at a hospital.1
Gonzalez then drove home and, at 9:24 p.m., called
the defendant, who came to Gonzalez’ house. When he
arrived, the defendant pointed a gun at Gonzalez and
said that if Gonzalez told anyone what happened he
would kill him. The defendant also took Gonzalez’ cell
phone. The day after the victim was shot, the defendant
asked Gomez-Delavega whether she had heard about
the killing. He told her that they robbed the victim and
that he had shot and killed him. The defendant said
that he pulled the trigger and shot the victim as the
victim reached for the gun, and that the victim fell out
of the Jeep.
A couple of days later, the defendant told Gonzalez
to get rid of the Jeep and said that he would pay Gonza-
lez for it. Gonzalez parked it somewhere with the key
in it and never saw it again. When Gonzalez asked the
defendant why he did it, the defendant responded that
‘‘he was mad.’’ Gonzalez told his girlfriend, Latasha
Vieira, that the Jeep had been stolen, and Vieira reported
it stolen to the police on May 8, 2014. Sometime after
that date, the defendant went to the Walmart pharmacy
where Vieira worked to find out whether Gonzalez had
told her anything, and he asked her to leave with him
after work. Vieira said no, and the defendant grabbed
her as she walked away. She pushed him back and told
him to leave and not come back.
The defendant was arrested on July 14, 2014.2 There-
after, the defendant was tried before a jury and found
guilty of murder, conspiracy to commit a violation of
the dependency-producing drug laws, and carrying a
pistol without a permit.3 The court sentenced the defen-
dant to a total effective term of fifty-two and one-half
years of incarceration, followed by seven and one-half
years of special parole. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that he was denied his
right to a fair trial by an impartial jury after his motion
for a mistrial was denied. Specifically, he claims that
jurors, during deliberations, ‘‘discovered bullet holes in
the jury room’’ and that ‘‘there was no conceivable cure
for the potential bias that may have developed in jurors’
minds as a result of this interference into the required
solemnity of the trial process.’’ The state responds that
‘‘the jurors were not in the deliberation room when the
hole was created, and . . . there was no evidence that
the incident was related to this case. Moreover, the trial
court’s thorough canvass of the jurors confirmed that
they could continue deliberations without any prejudice
to the defendant.’’ Accordingly, the state argues that
the court acted within its discretion in denying the
motion for a mistrial. We agree with the state.
The following additional facts and procedural history
are relevant to the defendant’s claim. On the afternoon
of January 28, 2016, the jury’s second day of delibera-
tions, the jury delivered a note to the court requesting
to go home for the day. The court agreed to release
the jury for the day, and when the jury entered the
courtroom, the court released the jury for the evening.
At that time, the court asked: ‘‘Is there a question?’’
One of the jurors responded, stating: ‘‘There’s a bullet
hole in our window and the ceiling, and it’s really dis-
concerting, and it wasn’t there yesterday.’’ The court
responded: ‘‘All right. So, the maintenance has been
notified. I know that you had asked to see a marshal,
and maintenance has been notified. They’re going to
check it out. I’ll give you an update tomorrow when
we figure out exactly what it is, okay?’’ After the jurors
were released for the day and exited the courtroom,
the court addressed counsel: ‘‘Nobody has seen it yet.
We’ll have maintenance take a look. I’m not saying that
it’s a bullet hole; I don’t know what it is, but let’s have
somebody look at it and then we’ll give them an update.
They’re obviously concerned about it; they’ve men-
tioned it to the marshals; they’ve mentioned it here.
The only question is whether we use a different room,
then, for purposes of deliberation. If it’s bothering them,
I certainly don’t want to distract them or—the word
disconcerting, you know, you just don’t want that. But
I think it might make them feel better if we at least tell
them what it is, one way or the other; so, we’ll address
that tomorrow, okay?’’
The next morning, defense counsel made an oral
motion for a mistrial pursuant to Practice Book § 42-
43. He argued, in part: ‘‘The Practice Book says that
upon motion of a defendant, the judicial authority may
declare a mistrial at any time during the trial if there
occurs during the trial an error or legal defect in the
proceedings, or any conduct inside or outside the court-
room which results in substantial and irreparable preju-
dice to the defendant’s case.
‘‘And it’s very concerning that this incident could
cause irreparable damage. The jurors have not been
interviewed yet, and I don’t think we’re going to inter-
view them one by one, but there has to be a natural
concern here that a young man was on trial for a shoot-
ing death is now being—his guilt or innocence is going
to be determined by a group of twelve that believed
possibly that someone is firing a gun into the jury room.’’
The state opposed the motion, arguing that there was
no connection between the bullet hole incident and
the case before the jury. It further contended that any
potential prejudice could be avoided by an instruction
to the jury that it should not hold the incident against
the defendant and should decide the case only on the
basis of what it heard in court. In its ruling, the court
stated: ‘‘I am going to deny the motion as it stands right
now. We haven’t inquired of the jury. The jurors brought
it to our attention, and we addressed it immediately.
I’m going to give them an instruction now. I’m going
to inquire in terms of whether they’re able to follow
that instruction. I think that perhaps based on their
response to that, that may warrant further discussion
on this motion. But right now, on the four corners of
the evidence that we have, the motion is denied. Now,
I do want to put some things on the record in terms of
how this occurred and the surrounding circumstances.
But I think that perhaps first we’ll address the jury and
then just so that the record’s very clear, let’s put some
things on the record so it’s there for any further
review, okay?’’
After the jury entered the courtroom, the court gave
the following instruction: ‘‘So, in response to where we
ended yesterday, I obviously was concerned with what
you had brought to my attention. We brought that to
the attention of the police department, both the local
and the state police. It is being reviewed and investi-
gated by them right now, which is one of the main
reasons that we are not in that courtroom right now.
We also obviously don’t want that to be a distraction
to you at all. It is, as I said, being reviewed, and they
will look into that fully, and I appreciate your bringing
that to our attention.
‘‘Now, in terms of this case itself, I’m giving you this
instruction. The fact that obviously you brought this
issue to our attention, and that it is being reviewed
and investigated right now, is completely and totally
unrelated to the case at hand, all right? There is zero
suggestion that it relates to this case, and it is certainly
not part of the evidence in this case. So, I am instructing
you that you must keep that out of your mind as
you’re deliberating.
‘‘The defendant is entitled to his presumption of inno-
cence and to the fact that you can impartially look at
and review all of the evidence that has been presented
in this case. That also means that you may infer no
negative inference upon the defendant in any way in
relation to this issue.
‘‘The deliberation process must continue based only
on the evidence that was presented here in this court-
room while the court was in session. And you must not
concern yourself with this issue at all in your delibera-
tions. So, having said that, I’m going to ask all members
of the jury to go back and report to me whether or not,
and you don’t have to do this individually, this can be
done as a whole, whether or not you feel that you could
follow that instruction; whether you could at this point
continue to deliberate on this matter based only on the
evidence presented in this courtroom while the court
was in session, and not concern yourself in any manner
whatsoever with this other issue and not hold it in any
way against the defendant, all right? So, I’m going to
ask that you all retire and write that in a note to me if
you could. Thank you.’’
After the jury exited, the court inquired of counsel
whether there was ‘‘[a]nything else that you’d like me
to indicate to them . . . .’’ Both counsel responded in
the negative, and defense counsel replied: ‘‘I think you
covered it.’’ The court followed up with defense coun-
sel, remarking: ‘‘I know it’s your motion right now. If
there’s a specific inquiry that you think I didn’t make,
then obviously you could let me know.’’ Defense coun-
sel responded: ‘‘No, I think what you did is sufficient
because the ultimate question at this moment in time
is whether they can continue to serve and follow the
court’s instructions, and disregard yesterday’s incident.
That is the ultimate question. So, I think what you did
is sufficient.’’
The court then placed the following on the record:
‘‘So, one thing I wanted to address was really just the
sequence of events that the jury brought to the court’s
attention at the end of the day; the fact that they believed
that there was in fact a bullet hole through the window;
that I asked counsel to remain present so that we could
all see it for ourselves. We all did, I think both state’s
attorneys, defense, myself, went back into the jury
room. We went back into the jury room, and I wanted
to make this clear for the record. After the clerk had
gone in and taken out all of the exhibits, had taken out
the notebooks, and had been able to secure what was
a chalkboard in a situation where nobody could view
or see the chalkboard. Ultimately, that chalkboard had
to be transported down to this jury room, and what the
clerks did was, they put large paper that was secured
and taped around both sides of the chalkboard, and it
was transported in that fashion. I certainly did not see
anything, counsel did not see anything, and all of the
evidence remains secure and away from anybody’s abil-
ity to review it.’’
At this point, the jury delivered a note, which the
court read aloud and marked as the court’s exhibit
seven. The note, signed by the foreperson, stated: ‘‘We
are fine with continuing our deliberations without any
prejudice.’’ The court then indicated that it would con-
tinue making a record of the incident before hearing
any further argument from counsel.
The court continued: ‘‘So, the marshals were there
for the viewing. At that point, we called in the state
police, as they do have jurisdiction. As circumstance
had it, the Bridgeport police crime scene unit came in
to have a warrant signed, and they were able to inquire
as to whether there had been any reports of shots fired
or any complaints that had occurred last night or in the
immediate vicinity to the trial. And they had indicated
that they did not, and so the state police took over the
investigation and they continued to do that throughout
the night. It is my understanding that they are in the
courtroom now. I believe the major crime squad is here.
They have blocked off the courtroom so that they can
try to secure the evidence and complete the investiga-
tion. I know that we have additional presence in the
building today in terms of just making sure that security
is okay as they continue this investigation. There is an
article that apparently just hit the [news]papers relating
to this incident.’’
The court then discussed with counsel the newspaper
articles describing the incident, and the court indicated
that the jury would be instructed that it may not review
any media reports. The court further noted that the
articles had been released after the jurors had reported
for the day, and thus, they would not have seen them.
After agreeing with the court that the record should
reflect that ‘‘it would likely be impossible for the jurors
to see’’ a particular article that included the defendant’s
name, defense counsel stated: ‘‘Other than that, I don’t
have anything else that needs to be added. I think the
court covered it well, and your review is accurate.’’ The
jury continued its deliberations until it returned with a
question regarding proximate cause. The court further
instructed the jury regarding proximate cause, and the
jury recommenced deliberations. That afternoon, Janu-
ary 29, 2016, the jury returned its verdict.
On February 1, 2016, the defendant filed a motion for
a new trial, arguing in part that the court had improperly
denied his motion for a mistrial because the bullet hole
incident had resulted in ‘‘substantial and irreparable
prejudice to the defendant’s case.’’ During oral argu-
ment on the motion for a new trial, defense counsel
represented that he became aware that the jurors had
tried to determine the direction from which the bullet
may have been shot and that the jurors had requested
a state trooper escort to their cars after returning their
verdict. The state responded by repeating that the jury
was not in the room when the bullet was fired, and that
the jury ‘‘satisfying an itch of curiosity’’ in looking at
the building could not ‘‘fairly be said to have affected
the determination on the verdict in this case.’’
The court addressed defense counsel’s argument by
remarking that no one knew when the ‘‘small hole’’
discovered by the jurors4 was made, but that ‘‘there was
no suggestion’’ that it was made while the court was
in session or while the jurors were there. The court
further stated that once it was brought to the court’s
attention, the jurors were released for the day and that
they returned to deliberations the next day in a different
room. The court had inquired of the jury and instructed
it that ‘‘the hole, whatever it turned out to be, had no
bearing upon this case or upon the defendant, [and]
that they cannot consider it for purposes of their delib-
erations.’’ The court stated that it had asked the jury
to ‘‘go back and, in fact, deliberate, so to speak, as to
whether they could continue to deliberate without any
prejudice to the defendant and with incorporating the
court’s instructions that that bullet hole had—if, in fact,
it is a bullet hole—but that hole that was found had
nothing to do with this case or with the defendant or
with anybody associated with the defendant.’’
The court continued: ‘‘The jurors did come out and
provided a note to the court in which they not only
indicated that, yes, they could continue to deliberate,
but, just to make it clear that they fully understood the
instructions, said that they could continue—that they
understood the court’s instructions and could continue
to deliberate. And they used . . . the word, to my mem-
ory right now, without any prejudice to the defendant.
So, you know, that—that certainly, one, shows that—
that they could follow the court’s instructions and, two,
that they understood that it could not have any bearing
against the defendant in terms of their deliberations.
‘‘I will also indicate that the jurors had deliberated
for a period of time. So, it’s not as if they just came in
and they were only deliberating for forty-five minutes.
They, in fact, had asked for some playback, they
received that playback both the day before and on the
day in question. So, there was more to their delibera-
tions than just that one moment in time certainly. That,
additionally, with regard to whether or not the jurors
had—had gone out to see the—the window from the
outside of the courthouse, I agree with the state that
there’s no suggestion that—that there’s any misconduct
involved. They certainly didn’t go and do any investiga-
tion with regard to an issue that they needed to deliber-
ate on. I’m going to say this because I’m not sure that
it—that this is clear for the record, that where the jurors
park in Bridgeport requires them to walk outside by
the area where you would see the window that is in
question here. So, again, I don’t think that there’s any-
thing on the record to suggest that the jurors said, let’s
go meet and look at the window, but that the record
would be that they, in fact, need to walk by it in order
to get to their cars. So, whether or not they were looking
at the window in conjunction with walking to their car,
you know, I—I can’t speak to that. But I just want it
clear for the record that that’s the way that they would
need to go.
‘‘And in terms of requesting the escort to their cars,
I think we all know, from having done cases and cer-
tainly on some of the more serious cases, that after
the verdicts are rendered, sometimes the juries do not
appreciate having to walk on their own outside where
there is some attention, both by way of media or family.
And so that request was—was certainly agreed to and
accommodated. But again, in no way was there ever a
suggestion by any party or any side that there was any
misconduct or any concern that related to that specific
bullet hole if, in fact, it is a bullet hole. So, with that
factual understanding on the record for any appellate
purposes, I am denying the motion for a new trial.’’ The
state also placed on the record that the layout of the
courthouse required the jurors to use the public
entrances and corridors, a fact with which the court
agreed.
We begin with our standard of review. ‘‘In our review
of the denial of a motion for mistrial, we have recog-
nized the broad discretion that is vested in the trial
court to decide whether an occurrence at trial has so
prejudiced a party that he or she can no longer receive
a fair trial. The decision of the trial court is therefore
reversible on appeal only if there has been an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Berrios, 320 Conn. 265, 274, 129 A.3d 696 (2016).
‘‘[J]ury impartiality is a core requirement of the right
to trial by jury guaranteed by the constitution of Con-
necticut, article first, § 8, and by the sixth amendment
to the United States constitution. . . . In essence, the
right to jury trial guarantees to the criminally accused
a fair trial by a panel of impartial, indifferent jurors.
. . . The modern jury is regarded as an institution in
our justice system that determines the case solely on
the basis of the evidence and arguments given [it] in
the adversary arena after proper instructions on the
law by the court. . . . The United States Supreme
Court has noted, however, that the [c]onstitution does
not require a new trial every time a juror has been
placed in a potentially compromising situation . . .
[because] it is virtually impossible to shield jurors from
every contact or influence that might theoretically
affect their vote. . . . Were that the rule, few trials
would be constitutionally acceptable. . . . We have
recognized, moreover, that [t]he trial court, which has
a first-hand impression of [the] jury, is generally in the
best position to evaluate the critical question of whether
the juror’s or jurors’ exposure to improper matter has
prejudiced a defendant.’’ (Internal quotation marks
omitted.) State v. Ciullo, 140 Conn. App. 393, 417–18, 59
A.3d 293 (2013), aff’d, 314 Conn. 28, 100 A.3d 779 (2014).
Appellate review of a trial court’s preliminary inquiry
into claims of jury misconduct or bias is governed by
State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995).
In Brown, our Supreme Court invoked its supervisory
authority over the administration of justice to hold that
‘‘a trial court must conduct a preliminary inquiry, on the
record, whenever it is presented with any allegations
of jury misconduct in a criminal case, regardless of
whether an inquiry is requested by counsel.’’ (Internal
quotation marks omitted.) State v. Anderson, 255 Conn.
425, 436, 773 A.2d 287 (2001). ‘‘The form and scope of
such inquiry is left to the discretion of the trial court
based on a consideration of multiple factors, including:
(1) the private interest of the defendant; (2) a risk and
value assessment of additional procedural safeguards;
and (3) the government’s interest. . . . In outlining
these factors, we also [have] acknowledged, however,
that [i]n the proper circumstances, the trial court may
discharge its obligation simply by notifying the defen-
dant and the state of the allegations, providing them
with an adequate opportunity to respond and stating
on the record its reasons for the limited form and scope
of the proceedings held. . . . Accordingly, [a]ny
assessment of the form and scope of the inquiry that
a trial court must undertake when it is presented with
allegations of jur[or] [bias or] misconduct will necessar-
ily be fact specific.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. James H., 150 Conn. App.
847, 853, 95 A.3d 524, cert. denied, 314 Conn. 913, 100
A.3d 404 (2014). ‘‘Our role as an appellate court is lim-
ited . . . to a consideration of whether the trial court’s
review of alleged jury misconduct can fairly be charac-
terized as an abuse of its discretion.’’ (Internal quotation
marks omitted.) State v. Anderson, supra, 436.
Our Supreme Court subsequently considered
whether the preliminary inquiry required in Brown was
sufficient in cases involving allegations of racial bias
on the part of a juror. State v. Santiago, 245 Conn.
301, 340, 715 A.2d 1 (1998). Exercising its supervisory
authority, the court concluded that Brown ‘‘[did] not
go far enough’’ and held that ‘‘[s]uch inquiry should
include, at a minimum, an extensive inquiry of the per-
son reporting the conduct, to include the context of
the remarks, an interview with any persons likely to
have been a witness to the alleged conduct, and the
juror alleged to have made the remarks.’’ Id.
Our Supreme Court declined to so exercise its super-
visory authority in State v. Dixon, 318 Conn. 495, 509,
122 A.3d 542 (2015), to require a specific scope of ques-
tioning in situations involving concerns about juror bias
due to fear. In Dixon, the jury delivered a note to the
court, stating: ‘‘One of the court attendees approached/
spoke to one of the jur[ors] at a public place yesterday,
5/17 late night. The one jur[or] told that individual . . .
the jury cannot speak to anyone. Is this an issue? *We
have safety concerns.*’’ (Internal quotation marks omit-
ted.) Id., 502. With respect to the contact with the atten-
dee, the court held an in camera hearing, first
questioning under oath the jury’s foreperson, then the
author of the note, and then each of the remaining
jurors. Id., 503–504. The court inquired, inter alia,
whether the contact influenced each juror’s vote in
the verdict. Id., 508. The court also inquired of the
foreperson and the juror who authored the note about
safety concerns raised by the jurors. ‘‘Both seemed to
indicate that, although the jurors had raised questions
about the safety issues involved in serving on a jury in
a murder trial, none raised any specific concerns about
this case in particular.’’ Id. Our Supreme Court con-
cluded that the trial court did not abuse its discretion
in the manner in which it conducted a hearing to address
the note, and further reasoned that ‘‘[a]llegations of fear
do not give rise to the same concerns about prejudice
as those raised by allegations of racial bias and, there-
fore, an inquiry pursuant to State v. Brown, supra, 235
Conn. 526, is sufficient.’’ State v. Dixon, supra, 509.5
In support of the defendant’s claim on appeal that
his right to a fair trial by an impartial jury was violated
when the trial court denied his motion for a mistrial,
the defendant in the present case argues that a Brown
inquiry is not sufficient in the present case. Specifically,
he argues that ‘‘an external interference of the scope
presented here—a real, ascertainable threat to the
safety of the jury during its deliberations, as opposed to
more innocuous disruptions . . . requires a concrete,
thorough procedure to ferret out bias to the defendant.’’
Alternatively, he argues that the trial court’s response
was not sufficient to satisfy Brown. The state asserts
that these arguments are unpreserved and unreview-
able. The defendant maintains that his arguments are
preserved, but seeks review under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
in the event that this court determines otherwise.6
We conclude that the arguments raised by the defen-
dant in this appeal were not asserted before the trial
court, which had expressly asked defense counsel
whether there was any inquiry it did not make, and
therefore, such arguments are unpreserved. ‘‘Argu-
ments asserted in support of a claim for the first time
on appeal are not preserved.’’ Bharrat v. Commissioner
of Correction, 167 Conn. App. 158, 181, 143 A.3d 1106,
cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). The
defendant’s claim, however, is reviewable pursuant to
Golding because the record is adequate for our review
and the claim is of constitutional magnitude. See State
v. Biggs, 176 Conn. App. 687, 706, 171 A.3d 457, cert.
denied, 327 Conn. 975, 174 A.3d 193 (2017). The defen-
dant’s claim fails on the merits because we hold, as
further discussed, that there is no violation of constitu-
tional law.
We first conclude, pursuant to Dixon, that Brown
provides the proper framework for analyzing the defen-
dant’s claim. The defendant, in an effort to demonstrate
that the precautions taken in the present case were
‘‘wanting,’’ directs this court’s attention to cases in
which the trial court questioned jurors individually in
response to some allegation of juror misconduct or
outside influence. See State v. Berrios, supra, 320 Conn.
269–71, 298–99 (after defendant’s mother approached
juror outside courthouse to tell him that police officer
who testified was lying, court conducted individual voir
dire of jurors before determining that jury remained
fair and unbiased); State v. Anderson, supra, 255 Conn.
437–38 (after juror made statements, inter alia, that he
‘‘knew the defendant from the street’’ and that he was
‘‘not a nice guy,’’ court conducted interviews with each
juror to determine whether they could remain impar-
tial); State v. Santiago, supra, 245 Conn. 339 (hearing
inquiring into alleged racial bias would permit court to
observe juror’s demeanor under cross-examination and
to evaluate his answers in light of particular circum-
stances of case).
In the present case, as the state emphasizes, the bullet
hole incident was experienced by the jury as a group,
and, thus, the trial court did not abuse its discretion in
inquiring of the jury as a group whether it could follow
the court’s instruction and remain fair and impartial.
As our Supreme Court has noted, ‘‘[a]ny assessment of
the form and scope of the inquiry that a trial court
must undertake when it is presented with allegations
of jur[or] [bias or] misconduct will necessarily be fact
specific.’’ (Internal quotation marks omitted.) State v.
West, 274 Conn. 605, 648, 877 A.2d 787, cert. denied,
546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
Moreover, the defendant presents this court with no
authority suggesting that a trial court is required to
question jurors individually. To the contrary, Brown
makes clear that in some instances, the trial court may
fulfill its obligation by informing both parties of the
allegations, providing them with an adequate opportu-
nity to respond, and stating on the record its reasons
for conducting a limited proceeding. State v. Brown,
supra, 235 Conn. 529.
The defendant argues that the bullet hole incident
in the present case should be presumed prejudicial.7
‘‘Under Remmer [v. United States, 347 U.S. 227, 74 S.
Ct. 450, 98 L. Ed. 654 (1954)], prejudice is not presumed
unless the court is implicated in the alleged conduct,
or there was an external interference with the jury’s
deliberative process via private communication, con-
tact, or tampering with jurors that relates directly to
the matter being tried.’’ State v. Biggs, supra, 176 Conn.
App. 710; see also State v. Berrios, supra, 320 Conn.
292 (concluding that ‘‘the Remmer presumption is still
good law with respect to external interference with the
jury’s deliberative process via private communication,
contact, or tampering with jurors that relates directly
to the matter being tried’’ [footnote omitted]). ‘‘[T]he
improper contact must pertain directly to the merits of
the matter, rather than merely relate to the trial more
topically.’’ State v. Berrios, supra, 292 n.25. In the pre-
sent case, the bullet hole incident in the jury room was
determined by the court to be ‘‘completely and totally
unrelated to the case at hand,’’ and the jury was
instructed further that ‘‘[t]here is zero suggestion that
it relates to this case . . . .’’ Accordingly, we conclude
that the external interference did not pertain directly
to the merits of the matter and was not presump-
tively prejudicial.
The defendant argues that three circumstances con-
tributed to prejudice in the present case: ‘‘(1) an initial
threat in the form of gun violence; (2) a substantive
correlation between the shooting and the alleged threat-
ening involvement of the defendant; and (3) provable
fear after trial.’’ Specifically, he argues that ‘‘[t]he state’s
case-in-chief involved allegations of the defendant’s
purported efforts to silence witnesses and obstruct the
police investigation.’’ Those efforts included threaten-
ing Gonzalez at gunpoint. As we noted previously, how-
ever, the court issued a curative instruction to the jury
that the bullet hole was unrelated to the case and that
‘‘you may infer no negative inference upon the defen-
dant in any way in relation to this issue.’’8 It further
reminded the jury that ‘‘[t]he deliberation process must
continue based only on the evidence that was presented
here in this courtroom while the court was in session.’’
After receiving the curative instruction, the jury indi-
cated that it could continue to deliberate without any
prejudice to the defendant. It is well established that
‘‘[i]n the absence of an indication to the contrary, the
jury is presumed to have followed [the trial court’s]
curative instructions.’’ (Internal quotation marks omit-
ted.) State v. Necaise, 97 Conn. App. 214, 225, 904 A.2d
245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).
The defendant also points to the fact that jurors
requested a police escort to their cars after returning
their verdict. The trial court addressed this claim by
noting that it is not uncommon for jurors in cases involv-
ing serious charges to feel uncomfortable leaving the
courthouse, walking by media and family, after
returning their verdict. We reiterate that ‘‘[t]he trial
court, which has a first-hand impression of [the] jury,
is generally in the best position to evaluate the critical
question of whether the juror’s or jurors’ exposure to
improper matter has prejudiced a defendant.’’ (Internal
quotation marks omitted.) State v. Ciullo, supra, 140
Conn. App. 418. Accordingly, we decline to disturb the
trial court’s assessment.
We conclude that the initial inquiry in the present
case complies with Brown’s mandate that the court
conduct ‘‘a preliminary inquiry, on the record . . . .’’
State v. Brown, supra, 235 Conn. 526. We note that the
factual basis on which the court relied was established
on the record, with both parties’ knowledge and partici-
pation. See State v. Stuart, 113 Conn. App. 541, 555,
967 A.2d 532 (concluding that court did not abuse its
discretion in concluding that no further inquiry was
required beyond ‘‘limited inquiry’’ to the jury and cura-
tive instruction, where ‘‘on the record, the court imme-
diately informed counsel of the submission to the jury
of the exhibits at issue, [which had been marked as
an exhibit for identification only] and extended the
opportunity to comment’’), cert. denied, 293 Conn. 922,
980 A.2d 914 (2009); cf. State v. Kamel, 115 Conn. App.
338, 348, 972 A.2d 780 (2009) (‘‘court’s ex parte interac-
tions with the jurors and its unilateral determination
that they did not consider the brass knuckles [which
had been marked for identification only] during their
deliberations further failed to fulfill the requirements
of Brown because any preliminary inquiry must be con-
ducted on the record’’).
Moreover, the court noted, just before issuing its
inquiry to the jury, that ‘‘perhaps based on their
response’’ to the court’s question, it ‘‘may warrant fur-
ther discussion on this motion.’’ The inquiry itself
addressed the central issue, whether the jury believed
that it could follow the court’s instruction and continue
to deliberate based only on the evidence presented in
the courtroom, and not concern itself in any manner
with the bullet hole and not hold it against the defen-
dant. After issuing the question, the court again sought
counsel’s input, specifically requesting that defense
counsel let the court know if he thought there was any
inquiry it did not make. Defense counsel responded:
‘‘No, I think what you did is sufficient because the
ultimate question at this moment in time is whether
they can continue to serve and follow the court’s
instructions, and disregard yesterday’s incident. That
is the ultimate question. So, I think what you did is suf-
ficient.’’
The jury responded to the court’s question that it
was ‘‘fine with continuing our deliberations without any
prejudice.’’ In light of the court’s curative instruction,
the jury’s assurance that it could deliberate without
prejudice to the defendant, the input the court sought
from counsel, and the defendant’s failure to request any
further inquiry, the court did not abuse its discretion
in conducting its inquiry. See State v. Necaise, supra,
97 Conn. App. 225 (noting that defendant did not request
further inquiry in concluding that ‘‘this case is one of
those in which the failure to hold an evidentiary hearing
does not violate the defendant’s constitutional rights’’);
State v. Bangulescu, 80 Conn. App. 26, 51, 832 A.2d
1187 (noting defendant’s failure to seek any additional
questioning or investigation by court despite opportuni-
ties to do so in concluding that court did not abuse its
discretion in conducting cursory inquiry), cert. denied,
267 Conn. 907, 840 A.2d 1171 (2003). Moreover, after
the jury answered the court’s question and the court
placed additional facts on the record, defense counsel
responded to the court: ‘‘I think the court covered it
well, and your review is accurate.’’
As stated previously, ‘‘[o]ur Supreme Court has recog-
nized that [t]he trial court, which has a first-hand
impression of [the] jury, is generally in the best position
to evaluate the critical question of whether the juror’s
or jurors’ exposure to improper matter has prejudiced
a defendant.’’ (Internal quotation marks omitted.) State
v. Ciullo, supra, 140 Conn. App. 419. We conclude that
the court did not abuse its discretion in denying the
defendant’s motion for a mistrial.
II
The defendant’s second claim on appeal is that the
trial court abused its discretion in concluding that drive
test survey data was admissible because it was reliable
and relevant under State v. Porter, supra, 241 Conn. 57.
We conclude that the trial court did not abuse its dis-
cretion.
The following additional facts and procedural history
are relevant to the defendant’s claim. On January 18,
2016, the state disclosed that it intended to proffer the
expert testimony of Special Agent James J. Wines of
the New Haven bureau of the Federal Bureau of Investi-
gation (FBI) regarding cell site location information
and drive test survey data. The next day, the defendant
filed a motion to preclude Wines’ testimony and a
request for a Porter hearing as to Wines’ testimony
regarding the drive test survey data, arguing that such
testimony was neither generally accepted nor relevant
to the case. Specifically, the defendant argued that the
drive test was not conducted until December, 2015,
approximately twenty months following the shooting
in April, 2014.
The court held a hearing outside of the presence of
the jury on January 25, 2016. Defense counsel repre-
sented at the outset that the defendant was not challeng-
ing the use of cell site technology evidence. Rather, the
motion solely challenged the drive test survey data.
The court granted the defendant’s request for a Porter
hearing, and the state proffered Wines’ testimony.
Wines, a member of the FBI’s cellular analysis survey
team (CAST), explained the drive test he conducted.
After placing a scanner in his car, Wines conducted the
test by driving around the Black Rock area where the
crime occurred and surrounding areas while the tool
is ‘‘scanning the environment and taking measurements
of all of the signals from the different cell phone towers
that it sees as it’s driving around.’’ The measurements
were then ‘‘plotted using a mapping software program
to give the actual coverage area of a particular tower.’’9
Wines testified that he believed a drive test would pro-
duce ‘‘an accurate representation of the coverage area
of the particular sectors’’ in which he was interested
because ‘‘the towers, the sectors, the orientation tech-
nology and the azimuths of the particular towers . . .
had not changed from April of 2014 until December of
2015.’’ Using one Sprint tower as an example, he testi-
fied that ‘‘the tower itself was the same, the sectors
were the same, and the azimuths were the same, and
the technology was the same. So, based upon that and
based upon my training and experience, I would expect
that the . . . radio frequency [RF] footprint of that par-
ticular tower or that particular sector would be the
same in December of 2015 as it was in April of 2014.’’10
For purposes of the hearing only, the state marked
an exhibit containing seven slides that Wines prepared
depicting the drive test survey data. The slides illus-
trated the dominant and possible coverage areas for
one Sprint cell sector, one AT&T cell sector, and one
T-Mobile cell sector. The first slide showed the domi-
nant and possible coverage area of Sprint tower 533,
sector 3, azimuth 205. Wines testified that a handset
making a call registering on that sector likely would be
in the dominant coverage area, which has the ‘‘strongest
clearest signal . . . .’’ Within the possible coverage
area, Wines stated that ‘‘there are other towers and
sectors which would have dominant coverage,’’ which
creates ‘‘an overlap area.’’
Wines testified that the cell phone industry routinely
relies on drive test analysis, conducted in the same
manner that he conducted his drive test, to ‘‘design,
maintain and optimize their network so that they can
provide the best coverage to their customers.’’ He stated
that drive test analysis was not developed solely for
purposes of litigation but rather for carriers to optimize
and maintain their cell networks. He testified: ‘‘[T]he
cell phone industry is a multibillion-dollar industry, and
there’s a lot of competition between carriers. So, for
example, if I had a Sprint phone and I kept dropping
calls when I moved from one area to another, I would
likely port my number over to another carrier, say,
Verizon or T-Mobile, with the expectation I would get
better cell phone coverage. So, the carriers don’t want
to lose customers. They don’t want to lose their revenue
stream, so they spend a considerable amount of time,
effort, and resources to optimize their networks to pro-
vide the best coverage possible.’’
On cross-examination, Wines testified that although
he was not aware of any scientific publications or schol-
arly articles addressing drive test analysis, he was aware
that ‘‘radio frequency theory has been in existence for
150 years; cell phones have been [in] existence . . .
since the 1980s, and the way that cell phones communi-
cate with towers has been generally accepted. All the
drive test is, is a measurement of signal and plotting
that signal on a map. I don’t know of a scientific review;
it’s simply a collection or measurement of signal and
then plotting that signal on a map.’’ He further testified
that ‘‘on a daily basis around the country, myself and
other members of my team use drive test data . . . to
locate fugitives, recover evidence, find victims; it works
in a real world setting on a daily basis.’’ In response to
questioning regarding a rate of error, Wines stated: ‘‘I
don’t know about a rate of error, but in my own personal
experience the handset has never not been where the
record said it would be.’’ With respect to the factors
affecting whether a cell phone would connect with the
closest tower, Wines testified that although topography
could be a factor, ‘‘in this particular case there’s a clear
line of sight from the tower to the location where the
incident occurred, so topography would not be an issue
in this particular case.’’ Wines stated that ‘‘day-to-day
weather has negligible effect on cell service,’’ but that
a ‘‘catastrophic weather event’’ that physically damaged
the tower could play a role. He further testified that
call overload to a tower would not send a handset to
a different tower—if the tower was at capacity, the call
would not go through.
Wines testified that he would not have conducted a
drive test analysis in this case if something was different
as to a tower.11 Regarding signal strength between April,
2014, and December, 2015, Wines testified: ‘‘I could not
say that they are exactly the same, but I would expect
them to be very similar.’’ Wines testified that he reviews
the status of the towers through lists provided by the
carriers, and that although he did not specifically know
whether any improvements were made to the equip-
ment, some of the technology from the Sprint and AT&
T towers were 2G and 3G, and that is ‘‘not a technology
that undergoes a lot of change because it’s an older tech-
nology.’’
The court issued an oral ruling, finding that Wines’
drive test analysis satisfied the first prong of Porter, in
that it was ‘‘a procedure rooted in science,’’ and was
‘‘supported and followed by police, law enforcement,
FBI as well as the phone companies . . . .’’ It further
found that ‘‘it has been used for many years in a whole
variety of means and methods,’’ and that it was ‘‘not
based on any subjective or speculative analysis.’’ Turn-
ing to the second prong, the court found, for purposes
of the initial inquiry, that the proffered evidence was
relevant. The court noted: ‘‘I am not saying that every-
thing that was addressed here or that the state indicated
that they intended to question this witness on are neces-
sarily permissible. I think we have to see what is
objected to and what’s not objected to.’’ The court fur-
ther found that ‘‘the issues of its effectiveness or its
reliability go more to weight than it does to admissibil-
ity; but again, anytime that the defense deems it appro-
priate with regard to each individual question, they
should in fact object if they think that the evidence is
not properly admissible.’’
Following the court’s ruling, the jury returned to the
courtroom, and the state began its direct examination
of Wines. Wines testified as to the historical cell site
analysis and drive test he conducted. The state intro-
duced a PowerPoint presentation created by Wines,
which depicted the cell site analysis and drive test sur-
vey data.12 Defense counsel did not object to the intro-
duction of the presentation, nor did he object to any
of the state’s questions to Wines.
According to the defendant, Wines ‘‘claimed to be
able to eliminate the possibility that the cellular handset
associated with the defendant was anywhere other than
within the coverage area of a cell tower near the loca-
tion of the shooting during the relevant time period.’’
Through Wines’ drive test survey data, the state posits
that it was able to show that Gonzalez’ phone ‘‘was
located somewhere in the coverage area of the BJ’s
[Wholesale Club] tower just before the shooting and
that the crime scene was also in that coverage area.’’13
According to the state, ‘‘[t]he drive test results further
showed that both [Gonzalez’] and the defendant’s
phones were located somewhere in the coverage area
of the BJ’s tower minutes after the shooting, and that
the crime scene was also in that coverage area.’’ Wines
testified that while ‘‘the call detail record reflects which
tower the handset selected . . . the drive test results
reflect the RF footprint of that particular tower and
sector, and the handset could not have been anyplace
else except within that RF footprint in order to make
or receive a call.’’
Before addressing the merits of the defendant’s argu-
ment, we begin with the applicable legal principles and
standard of review governing our analysis. In State v.
Porter, supra, 241 Conn. 57, ‘‘this court followed . . .
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held
that scientific evidence should be subjected to a flexible
test, with differing factors that are applied on a case-by-
case basis, to determine the reliability of the scientific
evidence. . . . Following [Porter], scientific evidence,
and expert testimony based thereon, usually is to be
evaluated under a threshold admissibility standard
[relating to] the reliability of the methodology underly-
ing the evidence . . . .
‘‘[I]n State v. Porter, supra, 241 Conn. 78–80, we
expressly recognized that, because the term scientific
evidence houses such a large and diverse variety of
topics, the formulation of a mechanical evidentiary
standard of admissibility designed to apply universally
to the many forms scientific evidence may take is an
unworkable concept. Rather, the better formulation is
a general, overarching approach to the threshold admis-
sibility of scientific evidence . . . . In accordance with
this philosophy, we set forth in Porter a number of
different factors, nonexclusive and whose application
to a particular set of circumstances could vary, as rele-
vant in the determination of the threshold admissibility
of scientific evidence. . . . In particular, we recog-
nized the following considerations: general acceptance
in the relevant scientific community; whether the meth-
odology 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 evidence; the extent
to which the technique at issue relies [on] subjective
judgments made by the expert rather than on objec-
tively verifiable criteria; whether the expert can present
and explain the data and methodology 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 liti-
gation. . . .
‘‘In Porter, we also set forth a fit requirement for
scientific evidence. . . . We stated that 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.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Guilbert, 306
Conn. 218, 231–32, 49 A.3d 705 (2012).
‘‘[I]t is well established that [t]he trial court has broad
discretion in ruling on the admissibility [and relevancy]
of evidence. . . . [Accordingly] [t]he trial court’s ruling
on evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion.’’
(Internal quotation marks omitted.) State v. Haughey,
124 Conn. App. 58, 72, 3 A.3d 980, cert. denied, 299
Conn. 912, 10 A.3d 529 (2010). ‘‘Because a trial court’s
ruling under Porter involves the admissibility of evi-
dence, we review that ruling on appeal for an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Victor O., 301 Conn. 163, 173, 20 A.3d 669, cert. denied,
565 U.S. 1039, 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011).
On appeal, the defendant argues that the state failed
to ‘‘meet its burden of showing that its drive test survey
data met even minimal reliability and relevance require-
ments under Porter.’’ With respect to reliability, the
defendant argues that the state (1) presented no studies
supporting the accuracy of Wines’ technique, (2) ‘‘pro-
vided no basis for Wines’ conclusions about the cell
site coverage at the time of the shooting in April, 2014,’’
and (3) ‘‘did not provide information by which the trial
court could judge the reliability of the method Wines
used to arrive at his conclusions,’’ where Wines con-
ceded that certain factors may interfere with towers’
signal strength. With respect to relevancy, the defendant
argues that the state did not meet its burden, where
‘‘all the drive test survey data revealed was the coverage
area of selected cell towers nearly two years after the
incident at issue,’’ and therefore the evidence lacked a
valid scientific connection to the question before the
jury.
With respect to reliability, we conclude that the court
did not err in concluding that Wines’ methodology satis-
fied Porter’s first prong. The defendant challenges
Wines’ testimony on grounds that the state did not pre-
sent any studies in support of his technique and that
Wines himself could not provide a rate of error, thereby
failing to demonstrate the accuracy of his approach.14
We first note that ‘‘[p]eer review and publication is . . .
only one of several nonexclusive factors. . . . No sin-
gle Porter factor is dispositive.’’ (Citation omitted.)
Hayes v. Decker, 263 Conn. 677, 685 n.2, 822 A.2d 228
(2003); id. (trial court ‘‘improperly treated Porter as a
mechanical factor test’’ in ruling that expert opinion
was inadmissible because it was not supported by trea-
tises or studies).
Although our appellate courts have yet to address
the issue of reliability of drive test survey data, this
court has previously remarked generally that ‘‘the preci-
sion of drive testing makes it the preferred method for
determining the shape and size of a cell sector . . . .’’
State v. Steele, 176 Conn. App. 1, 23–24, 169 A.3d 797,
cert. denied, 327 Conn. 962, 172 A.3d 1261 (2017). Cer-
tain federal courts have had occasion to consider the
admissibility of drive test survey data under the Daubert
standard, and have declined to find drive test data unre-
liable on the basis of a lack of scientific testing and
publications. See, e.g., United States v. Morgan, 292 F.
Supp. 3d 475, 484 (D.D.C. 2018) (noting, in finding drive
testing testimony sufficiently reliable, that ‘‘the Daubert
inquiry is flexible, and a [c]ourt should not automati-
cally exclude evidence because it is too new, or of too
limited outside interest, to generate extensive indepen-
dent research or peer-reviewed publications’’); United
States v. Allums, Docket No. 2:08-CR-30 TS, 2009 WL
806748, *2 (D. Utah March 24, 2009) (finding drive test
methodology admissible despite expert being unable to
identify rate of error or any peer review process the
methodology has undergone); see also United States v.
Mack, Docket No. 3:13-cr-00054 (MPS), 2014 WL
6474329, *4 (D. Conn. November 19, 2014) (concluding,
in different context of estimating coverage area, that
expert’s methods were ‘‘not rendered unreliable merely
because they have not been validated by scientific
peer review’’).
Courts considering drive test survey data have looked
to evidence presented that the data is successfully used
to locate missing persons and fugitives as a type of
‘‘field testing’’ that can demonstrate reliability. See
United States v. Allums, supra, 2009 WL 806748, *2
(‘‘the [c]ourt finds that the success achieved by [the
agent] and others in catching fugitives while using this
methodology is sufficient to establish the methodolo-
gy’s reliability’’); see also State v. Steele, supra, 176
Conn. App. 23 (noting that drive testing has been used
by law enforcement agencies to track suspects and
fugitives). Ultimately, a number of courts have deter-
mined that drive test survey data satisfies the Daubert
factors. See, e.g., United States v. Frazier, Docket No.
2:15-cr-044-GMN-GWF, 2016 WL 4994956, *3 (D. Nev.
September 16, 2016).
We find these federal decisions persuasive in evaluat-
ing whether the trial court properly determined that
Wine’s methodology was reliable. Here, Wines testified
during the Porter hearing that he and other members
of the FBI CAST team use drive test data on a daily
basis to locate fugitives, recover evidence, and find
victims. He also testified to his own personal experience
with the accuracy of drive testing, that ‘‘the handset
has never not been where the record said it would be.’’
We also find no error in the trial court’s crediting, as
a consideration weighing in favor of reliability, Wines’
testimony that the cell phone industry routinely relies
on drive tests, conducted in the same manner that he
conducted his test, to ‘‘design, maintain and optimize
their network . . . .’’ See T-Mobile Central, LLC v.
Unified Government of Wyandotte County/Kansas
City, Kansas, 528 F. Supp. 2d 1128, 1166 (D. Kan. 2007)
(noting that ‘‘drive tests are widely used throughout
the wireless industry and are generally recognized as
reliable and accurate’’), aff’d in part, 546 F.3d 1299 (10th
Cir. 2008).
Although the defendant argues that Wines’ alleged
inability to account for ‘‘various factors [that] may inter-
fere with the signal strength of cell towers’’ goes to
both reliability and relevancy, it more appropriately is
analyzed under the relevance prong of Porter. See
United States v. Morgan, supra, 292 F. Supp. 3d 485.15
In fact, during the Porter hearing, defense counsel
acknowledged the issue as one of relevancy.
We conclude that the trial court did not err in conclud-
ing that the state’s proffered evidence was relevant.
Wines testified that the technology, towers, sectors, and
azimuths16 were the same for the relevant towers from
April, 2014, when the crime occurred, through Decem-
ber, 2015, when he conducted the drive test. He also
testified that weather has a negligible impact on cell
service and that there was an unobstructed view of the
tower in question, such that topography would not be
a factor in this case. Wines did not know ‘‘specifically
whether or not there were any improvements’’ to the
towers, but he was able to opine that ‘‘for example,
with the Sprint tower, the type of [2G] technology . . .
is not a technology that undergoes a lot of change
because it’s an older technology.’’ Wines further opined
that although he could not say that signal strength was
exactly the same from April, 2014, to December, 2015,
he ‘‘would expect them to be very similar.’’ Such testi-
mony is sufficient to satisfy the fit requirement of
Porter.
We reiterate that ‘‘the purpose of the Porter hearing
is to ascertain the validity, not the weight, of the meth-
odology underlying the proffered scientific evidence.’’
(Emphasis in original.) Fleming v. Dionisio, 317 Conn.
498, 512, 119 A.3d 531 (2015). Challenges to Wines’
alleged inadequacies in accounting for different vari-
ables were legitimate material for cross-examination of
Wines at trial. See United States v. Allums, supra, 2009
WL 806748, *2 (arguments that expert failed to account
for weather conditions or possibility of high call vol-
umes on days that defendant placed calls ‘‘would be
appropriately raised on cross-examination’’).
We conclude that the court did not abuse its discre-
tion in admitting the state’s scientific evidence under
Porter. The court therefore properly denied the defen-
dant’s motion in limine. Moreover, even if we assume,
arguendo, that the challenged evidence was improperly
admitted, the defendant has failed to show that any
such impropriety was harmful.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the [impropriety] was harmful.’’
(Internal quotation marks omitted.) State v. Guilbert,
supra, 306 Conn. 265. ‘‘[W]hether [an improper ruling]
is harmless in a particular case depends upon a number
of factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness 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 eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Edwards, 325 Conn.
97, 133, 156 A.3d 506 (2017).
We first note that the disputed evidence, ‘‘while com-
pelling, was not vital to the state’s case.’’ State v.
Bonner, 290 Conn. 468, 501, 964 A.2d 73 (2009). The
heart of the challenged evidence before the jury con-
sisted of Wines’ conclusion, on the basis of his drive
test survey data, that the cell phone associated with
the defendant accessed a tower with a coverage area
near the location of the shooting during the relevant
time period, and that the phone could not have been
anywhere else except within that coverage area in order
to make that connection. There was, however, signifi-
cant unchallenged evidence corroborating Wines’ testi-
mony on material points. See State v. Bouknight, 323
Conn. 620, 628, 149 A.3d 975 (2016) (any error harmless
where, inter alia, state presented ample evidence cor-
roborating challenged exhibits). Although the defen-
dant challenged Wines’ use of the drive test survey data,
the defendant expressly did not challenge the historical
cell site location evidence, from which the jury could
conclude that shortly after the shooting, the defendant’s
cell phone accessed a tower that was located 0.39 miles
from the crime scene. See State v. Edwards, supra,
325 Conn. 134 (erroneous admission of police officer’s
testimony as to historical cell site location evidence
was harmless, where ‘‘the jury still could conclude from
the cell phone records themselves that the defendant’s
cell phone accessed cell towers in Rocky Hill and Weth-
ersfield 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’’). Further, the court did not limit the
defendant’s ability to challenge Wines’ drive test survey
data evidence. The defendant had a full opportunity to
cross-examine Wines. See State v. Bonner, supra, 501
(any error harmless where defendant had ‘‘full opportu-
nity to cross-examine’’ witnesses whose testimony
was challenged).
Finally, even without the drive test survey data, the
state had a strong case against the defendant. The jury
had before it evidence that on the night of the shooting,
the defendant was in telephone contact with Gonzalez,
who was also in contact with the victim. Gonzalez’
testimony put the defendant at the scene of the crime,
and, as referenced previously, the historical cell site
location evidence showed the defendant’s phone
accessing a cell tower near the crime scene shortly after
the shooting. The jury also had before it the testimony
of a number of individuals regarding incriminating state-
ments the defendant had made both before and after the
murder. See id. (error harmless where witness testified
that defendant had confessed guilt to her). Gomez-Dela-
vega testified that the defendant told her he was plan-
ning to rob the victim and that he would have to kill
him to prevent retaliation. Moreover, after the murder,
the defendant told Gomez-Delavega that he had, in fact,
shot and killed the victim. The defendant also told Gon-
zalez that he would kill him if he told anyone and made
Gonzalez get rid of the Jeep. The jury also heard testi-
mony from Vieira that the defendant had approached
her at her job, asking her whether Gonzalez had told
her anything.
For the previously discussed reasons, we conclude
that any improper admission of the drive test survey
evidence did not substantially affect the jury’s verdict
and it therefore was harmless.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Police officers were dispatched to the scene and arrived to find the
victim lying in the street. The victim was transported to the hospital where
he died. The cause of death was determined by autopsy as ‘‘a gunshot wound
to the trunk.’’
2
Gonzalez, who testified that he was originally charged with a number
of offenses arising out of the events on April 9, 2014, including murder and
conspiracy to commit murder, entered into a cooperation agreement with
the state and ultimately pleaded guilty as a second offender to sale of
narcotics in violation of General Statutes § 21a-277 (a).
3
The defendant was tried before the court and convicted of criminal
possession of a firearm and violation of probation.
4
The defendant’s principal brief to this court also includes a photograph
above an explanatory caption depicting the affected window. The photo-
graph was not made an exhibit at trial.
5
The defendant requests that this court ‘‘reconsider’’ the determination
made in Dixon. ‘‘It is axiomatic that, [a]s an intermediate appellate court,
we are bound by Supreme Court precedent and are unable to modify it
. . . . [W]e are not at liberty to overrule or discard the decisions of our
Supreme Court but are bound by them. . . . [I]t is not within our province
to reevaluate or replace those decisions.’’ (Internal quotation marks omit-
ted.) State v. Madera, 160 Conn. App. 851, 861–62, 125 A.3d 1071 (2015).
6
Under State v. Golding, supra, 213 Conn. 239–40, ‘‘[a defendant] can
prevail on a claim of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt.’’ (Emphasis in original; internal quotation marks omitted.) State v.
Biggs, 176 Conn. App. 687, 705–706, 171 A.3d 457, cert. denied, 327 Conn.
975, 174 A.3d 193 (2017).
7
The defendant also proffers a related argument that certain intrusions
are so disruptive that no actual prejudice must be demonstrated. He argues:
‘‘Where exposure to extreme prejudicing circumstances may have a deleteri-
ous effect on the jury’s ability to remain fair and objective, a new trial
may be necessary, even absent an affirmative showing that the verdict was
affected.’’ The cases cited by the defendant in support of this proposition
are distinguishable. See Sheppard v. Maxwell, 384 U.S. 333, 353, 355, 86 S.
Ct. 1507, 16 L. Ed. 2d 600 (1966) (no showing of prejudice required where
‘‘bedlam reigned’’ during trial, jurors were ‘‘forced to run a gauntlet of
reporters’’ every time they entered or exited the courtroom, and photos of
jurors along with addresses were published in newspaper resulting in jurors
receiving anonymous letters, which ‘‘should have made the judge aware
that this publicity seriously threatened the jurors’ privacy’’); Estes v. Texas,
381 U.S. 532, 538, 544, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (finding
extensive television coverage had ‘‘set [the case] apart in the public mind
as an extraordinary case’’ and holding such coverage was inconsistent with
concepts of due process, where forty-eight states and federal rules had
deemed use of television improper in the courtroom, and four of selected
jurors had viewed all or part of broadcasts of previous hearings in the case);
Turner v. Louisiana, 379 U.S. 466, 468, 473, 85 S. Ct. 546, 13 L. Ed. 2d 424
(1965) (two key witnesses for the prosecution, who were deputy sheriffs
and whose credibility was central issue in trial, were also in charge of jury
throughout trial, ate meals with jury, ran errands for them, and drove them
to their lodgings each night; Irvin v. Dowd, 366 U.S. 717, 728–29, 81 S. Ct.
1639, 6 L. Ed. 2d 751 (1961) (The court vacated the judgments of conviction
where ‘‘[t]wo-thirds of the jurors had an opinion that petitioner was guilty
and were familiar with the material facts and circumstances involved, includ-
ing the fact that other murders were attributed to him, some going so far
as to say that it would take evidence to overcome their belief. One said that
he could not . . . give the defendant the benefit of the doubt that he is
innocent. Another stated that he had a somewhat certain fixed opinion as
to petitioner’s guilt.’’ [Internal quotation marks omitted.]).
8
To the extent that the defendant challenges the trial court’s finding that
the bullet hole was unrelated to his case, he failed to object to the court’s
instruction on this basis. Moreover, at the conclusion of the trial court’s
recitation of its findings on the record, defense counsel replied: ‘‘I think
you covered it.’’
9
Wines testified that he received training from the FBI regarding how to
set up and use the scanner to collect measurements. Another component
of his training involved conducting drive tests and presenting the results in
a moot court. Wines testified that although he had participated in a drive
test for one prior case, this case was his first time testifying in court as to
his analysis. He explained that other CAST members conduct and testify as
to drive tests ‘‘on a regular basis all around the country.’’
10
Wines testified that the cell signal comes off the tower as a radio wave,
and the RF footprint of the signal is what is measured by the scanner.
11
Wines gave the following example: ‘‘About two months [ago] I did an
analysis on a case in New London that . . . involved analyzing Nextel phone
records, and I did not conduct a drive test in that case because the Nextel
network is no longer in existence.’’
12
Wines’ analysis relied on call detail records from Sprint and AT&T for
two cell phone numbers associated with Gonzalez, and call detail records
from T-Mobile for a cell phone number associated with the defendant.
13
Wines testified that cell towers for T-Mobile, Sprint, and AT&T were
located on a water tower in the BJ’s parking lot, which was 0.39 miles from
the crime scene.
14
We find the sole case cited by the defendant regarding reliability in the
context of cell site location evidence distinguishable, given that it does not
address drive test survey data, but rather involves ‘‘granulization theory,’’
a method of estimating ‘‘the range of each antenna’s coverage based on the
proximity of the tower to other towers in the area’’ and predicting ‘‘where
the coverage area of one tower will overlap with the coverage area of
another.’’ United States v. Evans, 892 F. Supp. 2d 949, 952 (N.D. Ill. 2012).
Moreover, other courts considering the issue have reached the opposite
conclusion of the court in Evans. See United States v. Machado-Erazo, 950
F. Supp. 2d 49, 57 (D.D.C. 2013); United States v. Davis, Docket No. 11-
60285-CR, 2013 WL 2156659, *6–7 (S.D. Fla. May 17, 2013).
15
We note that courts have treated arguments regarding variables that
could affect signal strength in different manners, some analyzing the issue
as either one of reliability or relevance under Daubert, and others treating
such arguments as going to the weight of the evidence to be raised on
cross-examination. One federal court addressed the reliability of drive test
testimony in the context of a fifteen month delay between the date of the
crime and the date the FBI agent conducted the drive test. United States
v. Cervantes, Docket No. CR 12-792 YGR, 2015 WL 7734281, *11 (N.D. Cal.
December 1, 2015). The court originally found the government’s explanation
inadequate that the agent ‘‘would not have conducted the . . . drive-test’’
if any of the towers or antennas had been replaced or adjusted in the
intervening period. (Internal quotation marks omitted.) United States v.
Cervantes, Docket No. 12-cr-00792-YGR, 2015 WL 5569276, *4 (N.D. Cal.
September 22, 2015). The court permitted the government to submit a supple-
mental declaration to the extent that it intended to offer opinions that
were based on the drive tests. Id. The government thereafter submitted a
supplemental affidavit, in which the agent stated that the ‘‘cell towers at
issue were located at the same locations at the time of the crime as at the
time of the field experiment.’’ United States v. Cervantes, supra, 2015 WL
7734281, *11. The declaration further stated that ‘‘cell tower locations and
sector azimuths during the time frame of the crime were examined and
compared to cell tower locations and sector azimuths during the time frame
of the measurements.’’ (Internal quotation marks omitted.) Id. In light of
the declaration, the court denied the defendant’s motion to exclude or limit
the FBI agent’s testimony. Id., *12.
The court in Morgan addressed the claim that ‘‘any testimony regarding
the drive test results is based on the incorrect premise that a drive test
conducted six months after an alleged event, at a different time of year and
at a different time of day, can accurately depict the coverage area of a cell
sector.’’ (Emphasis in original.) United States v. Morgan, supra, 292 F. Supp.
3d 485–86. The court concluded that cross-examination of the expert and
presentation of conflicting expert testimony would cure any possible preju-
dice. Id., 486.
16
Wines defined the azimuth as ‘‘the direction that the signal is coming
off of a particular sector.’’