State v. Jackson

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STATE OF CONNECTICUT v. RAASHON JACKSON
(AC 40433)
Lavine, Alvord and Beach, Js.
Syllabus
Convicted of the crimes of murder, conspiracy to commit murder and assault
in the first degree in connection with a shooting, the defendant appealed,
claiming, inter alia, that the trial court deprived him of a fair trial and
his right to present a defense when it denied his motion in limine to
preclude certain testimony of W, the state’s expert witness, pertaining
to cell phone site location data. The defendant and R, who also was
involved in the shooting, were tried jointly to a jury. R’s cousin, A, had
driven the defendant and R to and from the scene of the shooting. The
state had retained W to analyze certain global positioning system and
cell phone data to determine the locations of the defendant, R and A
at the time of the shooting. During jury selection seven days before
trial, the state disclosed to the defense a PowerPoint presentation that
W had created. The court denied the defendant’s motion in limine to
preclude W’s testimony, concluding that the state had not acted in bad
faith in making the late disclosure and that the defendant had not been
prejudiced. The court also denied the defendant’s request for a six week
continuance so that he could consult with an expert of his own. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion in limine to preclude W from testifying or in denying the defen-
dant’s request for a six week continuance to consult with his own expert:
that court determined that the state had not acted in bad faith, nor did
the defendant claim bad faith by the state, defense counsel, in clarifying
the issues that were the basis for the motion, stated that he was con-
cerned about a portion of W’s PowerPoint presentation that contained
hearsay, which the court ultimately precluded, and given that twenty-
one days had elapsed between the state’s disclosure of the PowerPoint
presentation and W’s testimony, the court reasonably could have con-
cluded that a six week continuance would have been too disruptive to
the trial; moreover, defense counsel failed to renew his request for a
continuance at the conclusion of the state’s direct examination of W,
the denial of a continuance was not so arbitrary as to vitiate logic and
was not based on improper or irrelevant factors, and although the court
improperly determined that the defendant was not prejudiced, as the
defendant was prevented from potentially presenting the testimony of
his own expert, the court ameliorated the prejudice by precluding a
portion of W’s PowerPoint presentation that defense counsel claimed
contained hearsay, and by permitting defense counsel to confer with W
regarding changes to the PowerPoint presentation, and defense counsel
conducted an effective cross-examination of W; furthermore, even if
the court abused its discretion, the defendant failed to demonstrate that
the claimed error was harmful, as the state’s case against him was
relatively strong, W’s testimony was corroborative of other testimony,
and the jury viewed surveillance video and still images from the crime
scene, as well as photographs and a text message from R that were
recovered from the defendant’s cell phone.
2. This court declined to review the defendant’s unpreserved evidentiary
claim that the trial court improperly permitted W to testify without first
conducting a hearing pursuant to State v. Porter (241 Conn. 57) as to
his qualifications and the reliability of his methodology: the defendant
failed to request a Porter hearing, he conceded to the trial court that
the evidence W offered was admissible through a proper expert and
requested to voir dire W only as to his qualifications, and although this
court has recognized that the rule set forth in State v. Edwards (325
Conn. 97)—that a police officer must be qualified as an expert witness
before testifying about cell phone data and that cell phone data evidence
is of a scientific nature requiring a Porter hearing—is retroactively appli-
cable to pending cases, that did not compel the conclusion that an
evidentiary claim made pursuant to Edwards is reviewable where, as
here, the claim is unpreserved; accordingly, because the defendant failed
to request a Porter hearing, his unpreserved evidentiary claim that the
trial court erred in failing to hold a Porter hearing was not reviewable.
3. The trial court did not abuse its discretion in precluding the defendant
from presenting testimony from his investigator to rebut W’s testimony;
it was not clear from defense counsel’s proffer whether the investigator
had sufficient knowledge regarding the cell site accessed by the defen-
dant’s phone, defense counsel did not request a hearing outside the
presence of the jury to proffer the investigator’s testimony or inform
the trial court that he intended to rely on certain of W’s conclusions,
and defense counsel’s proffer did not include whether the investigator
had knowledge as to the geographical coverage area of the cell site
at issue.
4. The defendant could not prevail on his claim that he was deprived of his
right to present a defense when the trial court prevented him from
introducing evidence that a gun used in the shooting had been found
one year later on a person who was unrelated to the shooting; the
trial court did not abuse its discretion in concluding that the proffered
evidence was too remote in time to be relevant to show a lack of identity
of the defendant as one of the shooters, as the court reasonably could
have concluded that the fact that the weapon was found in the possession
of a different individual almost one year after the crimes at issue did
not render it either certain or more probable that the defendant was
not one of the shooters.
5. The trial court did not abuse its discretion in admitting certain conscious-
ness of guilt evidence concerning the defendant’s failure to appear in
court on unrelated matters subsequent to the shootings: the jury reason-
ably could have inferred that the defendant’s failure to appear could
have been influenced by his involvement in the shootings and indicated
a consciousness of guilt in the shooting incident, and the evidence of
his failure to appear was not more prejudicial than probative, as there
was nothing in the record to indicate that it created a side issue that
unduly distracted the jury, no significant amount of time was expended
on the issue, and the jury reasonably could have inferred from a text
message sent by R to the defendant that the defendant was aware
that the police might seek him out in connection with the shootings;
moreover, even if the defendant had presented evidence that he failed
to appear in court because he had fled from the scene of an accident
in which the police found a gun in the car he had been operating, the
jury was entitled to make contrary inferences, and even if the court had
considered the transcript of a prior proceeding in which defense counsel
made representations about his unsuccessful efforts to contact the
defendant about his failure to appear in court, the transcript did not
compel the conclusion that the defendant did not have notice of the
court date.
Argued January 29—officially released July 24, 2018
Procedural History
Substitute information charging the defendant with
four counts of the crime of assault in the first degree,
and with the crimes of murder, conspiracy 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 defen-
dant’s motion to sever the charge of criminal possession
of a firearm; thereafter, the court granted the state’s
motion to consolidate the case for trial with that of
another defendant; subsequently, the matter was tried
to the jury; thereafter, the court denied in part the
defendant’s motion to preclude certain evidence, and
denied the defendant’s motions for a continuance and
a mistrial, and to introduce certain evidence; verdict of
guilty; subsequently, the court denied the defendant’s
motion for a judgment of acquittal or a new trial; there-
after, the state entered a nolle prosequi as to the charge
of criminal possession of a firearm, and the court ren-
dered judgment in accordance with the verdict, from
which the defendant appealed. Affirmed.
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
ALVORD, J. The defendant, Raashon Jackson,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of murder in violation of Gen-
eral 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). On appeal, the defendant claims that the trial
court: (1) abused its discretion and deprived him of his
rights to a fair trial and to present a defense when it
denied his motion to preclude the testimony of the
state’s belatedly disclosed expert witness and refused
to afford him a continuance to retain his own expert,
(2) abused its discretion in admitting the testimony of
the state’s expert without conducting a Porter hearing,1
(3) abused its discretion and deprived him of his right
to present a defense when it excluded exculpatory evi-
dence in the form of his investigator’s testimony, (4)
deprived him of his right to present a defense when it
excluded exculpatory evidence regarding the discovery
of a gun used in the crimes, and (5) abused its discretion
in admitting certain consciousness of guilt evidence
and instructing the jury as to that evidence. We affirm
the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On September 10, 2013, Roderick Rogers called his
cousin, David Anderson, seeking a ride. At 2:10 p.m., a
social worker, William Muniz, went to Rogers’ house
in Bridgeport to discuss a job opportunity. Rogers told
Muniz that he had to go somewhere but could be back
in one hour. Muniz asked that Rogers call him when
he returned home. As Muniz was leaving, Anderson was
arriving. Anderson was on probation at the time, and
his movements were tracked by a global positioning
system (GPS) device he wore on his ankle.
Anderson and Rogers left the house together, and
Rogers directed Anderson to drive toward Palisade Ave-
nue, a street a couple of blocks away from Rogers’
house. After turning on Palisade Avenue, Rogers saw
the defendant, who was a friend called Red Dreads.
Anderson stopped the car, and the defendant got in on
the rear passenger side. Rogers told Anderson to drive
from the east side of the city to the ‘‘Terrace,’’ located
in the north end of Bridgeport. After turning into the
Terrace, Rogers directed Anderson to turn around, park
on a side street off Reservoir Avenue, and wait because
he and the defendant would be right back. Rogers asked
Anderson if he had an extra shirt, and Anderson told
him to check the trunk. Rogers and the defendant got
out of the car, went to the open trunk, shut the trunk,
and walked down a hill.
At the time, a group of young men was gathered
outside the Beardsley Terrace public housing complex.
Rogers and the defendant approached the group and
said, ‘‘y’all just came through the Ave shooting Braz,
you all f’d up,’’2 and began shooting. Rogers and the
defendant then ran off with the weapons in their hands.
They returned to Anderson’s car, and Rogers told
Anderson to drive back down Reservoir Avenue. They
drove to the corner of Stratford Avenue and Hollister
Avenue, and Anderson parked the car. The defendant
told Rogers he thought he had dropped a clip. After
opening and shutting the car door, the defendant got
out of the car, and walked toward Stratford Avenue.
Anderson then drove Rogers home. Rogers called Muniz
at 2:46 p.m., and Muniz returned to Rogers’ home by
3 p.m.
Seven shell casings were recovered from the scene,
and forensic analysis revealed that four were fired from
one gun and three were fired from a different gun.
One of the victims, LaChristopher Pettway, died from
a gunshot wound to his mid-left back. Four others sus-
tained gunshot wounds, including Tamar Hamilton, who
was shot in the heel; Leroy Shaw, who was shot in the
arm; Jauwan Edwards, who was shot in the buttocks;
and Aijholon Tisdale, who was shot in the upper thigh.
On September 16, 2013, Rogers was arrested. That day,
Rogers sent a text message to the defendant indicating
that ‘‘[d]ey taken [me].’’
On March 10, 2014, the defendant was arrested. He
was charged in the operative information with murder,
conspiracy to commit murder, and four counts of
assault in the first degree.3 Upon the state’s motion, the
defendant’s case was consolidated for trial with that of
Rogers. After the presentation of evidence, a jury found
the defendant guilty on all counts of the information.4
The jury also answered ‘‘yes’’ to a set of written interrog-
atories indicating that the state had proven beyond a
reasonable doubt that the defendant used a firearm
during the commission of each crime. The defendant
was sentenced to a total effective term of fifty-five years
of incarceration. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that he was ‘‘deprived of
a fair trial and of his right to present a defense when
the court denied his motion to preclude the testimony
of [Hartford Police Sergeant Andrew] Weaver.’’ The
defendant contends in the alternative that ‘‘[e]ven if the
court’s decision not to preclude Weaver’s testimony
was proper, it was certainly an abuse of discretion to
deny a reasonable continuance for [the] defendant to
consult with an expert.’’ In a supplemental brief, the
defendant further claims that ‘‘[t]he trial court abused
its discretion when it allowed . . . Weaver to testify
as an expert without ever conducting a Porter hearing
to determine if he was qualified to testify as an expert
and whether the methodology he used to support his
opinion that [the] defendant was in the same location
as Anderson and Rogers at the time of the crime was
reliable.’’ See footnote 1 of this opinion.
The following additional facts and procedural history
are relevant to these claims. The defendant served a
request for disclosure on the state in April, 2014, and
filed a ‘‘motion for disclosure and hearing re: state’s
expert witnesses’’ dated April 21, 2015. In his motion,
the defendant sought, inter alia, disclosure of the names
of each expert witness the state intended to call at trial
and the opinions to which each witness was expected
to testify. The court addressed the motion during a
hearing on April 29. The defendant anticipated that the
state might offer an expert with respect to ‘‘pin-
point[ing] cell phones relative to towers and things like
that,’’ and stated that it was ‘‘unclear’’ what that expert’s
opinion may be with respect to the defendant’s cell
phone. The defendant anticipated that if the state dis-
closed an expert on this issue, he might file a motion
in limine. The court responded: ‘‘Okay. So, what you’re
asking for is, if the state’s going to call an expert to
give opinion evidence about the proximity of [the defen-
dant’s] cell phone to a tower somewhere that you
[would] like to know who that is and [what] they’re
going to say?’’ The defendant confirmed that was the
disclosure he sought, and the state responded that it
had no objection to providing that information, but
stated that it ‘‘can’t definitively say who that might be
at this time because we’re still analyzing the data
. . . .’’ The court responded: ‘‘But, I mean, if you
selected 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.
Jury selection began on August 3, 2015. On that date,
the state provided the defendant with a list of potential
witnesses that included Weaver’s name under the head-
ing of Hartford Police Department, but did not identify
him as an expert witness. Throughout jury selection, the
state identified Weaver to venire panels as a potential
witness. On October 1, 2015, seven days before evidence
began and while jury selection was still ongoing, the
state provided the defendant with Weaver’s resume and
a file containing a PowerPoint presentation Weaver cre-
ated. On October 7, the defendant filed a motion in
limine seeking to preclude Weaver’s testimony, specifi-
cally as it related to cell site location information, or,
in the alternative, ‘‘a reasonable continuance 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 expert’s review of
necessary materials, etc.)’’. The defendant argued that
he had not been provided foundational information for
Weaver’s opinion, and that the late disclosure caused
him undue prejudice. The defendant claimed that he
needed to hire his own expert, and that he could not
identify, hire, and obtain funding for an expert, provide
the potential expert with the material for review, and
confer with the expert in the presentation of the defen-
dant’s defense in the short time before evidence was
set to begin.
The court held a hearing on the defendant’s motion
in limine on October 20, 2015. The court referred to the
defendant’s argument regarding the state’s late disclo-
sure of Weaver and then stated: ‘‘Also, from a more
substantive point of view, I understand the motion in
limine to say this . . . that Sergeant Weaver purport-
edly used . . . two devices or sets of data or software
programs—I’m not sure how to characterize them—
that the defense feels are problematic. One is cell tower
related information that is accessible to law enforce-
ment, and that’s referenced in the moving papers.
Accessible to law enforcement and it’s not reflected on
the data that’s been produced pursuant to subpoena
and witnesses here in court. And that [the] other is the
use of what I’m just going to call a GeoTime . . . com-
puter program. . . .
‘‘[T]hose are really the issues that I’m trying to give
the short version of [w]hat I see the defense raising as
problematic. And what I would like to do is to approach
it this way. Let me just say one more thing. The other
area, in fairness to the defense, is the reliability of this
GeoTime software and whether Sergeant Weaver is
qualified as an expert to do what he’s done. I think that
fairly covers everything.’’
Defense counsel then responded: ‘‘Just two things,
Your Honor. In terms of sergeant—well, I guess it’s
related. In terms of Sergeant Weaver’s qualifications to
testify as an expert and the state’s memorandum in
opposition, which seems to focus largely on the issue
of whether or not the proffer[ed] purpose of Sergeant
Weaver’s testimony was generally inadmissible . . . 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 Sergeant Weav-
er’s qualifications, we would just like to voir dire him
during his testimony if he’s allowed to testify. So, that’s
not really a basis. And then also—and I think there was
one issue. . . . One issue that we see as substantive
with respect to the—to the PowerPoint presentation
slideshow that he—that Sergeant Weaver has presented
to us for review, and that is in particular the second
page, which is that entire summary page.’’
Defense counsel then called Weaver to the witness
stand. Weaver testified that the state’s attorney’s office
had contacted him ‘‘two to three weeks ago’’ to inquire
whether he would be willing to assist with a case in
Bridgeport. The state’s attorney’s office sent Weaver
hard copies and compact discs (CDs) of call detail
records from three carriers: AT&T (for a cell phone
number the state associated with Anderson), Sprint PCS
(for a cell phone number the state associated with the
defendant), and Metro PCS (for a cell phone number
the state associated with Rogers). Weaver learned that
the Metro PCS records contained the wrong set of tower
information, and he downloaded the correct tower
information from the National Cellular Assistance Data
Center (NCADC) in the form of an Excel spreadsheet.5
Weaver included that spreadsheet on the CD he created,
made a second copy for the defense, and advised the
state attorney’s office that the records were ready.
Weaver also e-mailed the PowerPoint presentation to
the state. The state never picked up the two copies of
the CD and told Weaver that it believed that it had the
information it needed.
After the conclusion of Weaver’s testimony during
the hearing on the motion in limine, defense counsel
argued that the state violated Practice Book § 40-11
by failing to disclose Weaver.6 Defense counsel further
argued that he had never received the CDs Weaver
prepared, which contained the cell tower records in
the form of an Excel spreadsheet and a version of the
PowerPoint presentation that contained a video, rather
than a still image.7 Reciting his efforts to obtain an
expert even in the absence of the underlying tower data,
defense counsel argued that he had been prejudiced in
his ability to meaningfully challenge Weaver’s testi-
mony. Defense counsel requested that the court pre-
clude Weaver’s testimony, or in the alternative, grant
him a reasonable continuance of at least six weeks.
The state explained that it had understood the court’s
April 29, 2015 order to require the state to disclose
expert opinion evidence once the state received it. The
state claimed that it provided Weaver’s name on August
3, and that the ‘‘very first research of Sergeant Weaver
by the Internet would give certainly an indication as to
what he does.’’ The state further responded that as soon
as it became aware of Weaver’s testimony in a Milford
case, it provided the transcript to the defendant. 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 that another trial was
going forward. With respect to the CDs, the state stated
that it had ‘‘no answer’’ to explain why they were not
picked up or disclosed, and represented that it had not
seen them.
With respect to prejudice, the state argued that it had
‘‘provided information from this file’’ early on in the
case, that ‘‘everybody knew the cell phone evidence was
clearly in this case and it was part of the investigation
certainly from the early stages,’’ and that defense coun-
sel knew Anderson wore a GPS bracelet. In response
to a question from the court regarding why the state
delayed in retaining and meeting with Weaver, the state
responded that both the state and defense counsel were
preparing for other trials, and that in June, 2015, this
case had been postponed until August.
In an oral ruling, the court stated: ‘‘[T]he problem
I’m having is, while I know that 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 in October, October the first or thereabouts
and the evidence started on October the eighth. I just
don’t—you know, these 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 pre-
sent . . . it can’t prepare to, you know, meet that evi-
dence by either consulting 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. You know,
had—or have we been pressed, you know, the 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.’’
In concluding that the defendant had not suffered
prejudice, the court explained that ‘‘what the state
intends to present here by way of 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.’’ The court accordingly
denied the defendant’s motion in limine, but precluded
from evidence two slides of Weaver’s PowerPoint pre-
sentation, one depicting the video the defendant had
never received; see footnote 7 of this opinion; and
another containing hearsay. Defense counsel inquired
whether the court also was denying the defendant’s
request for a continuance, to which the court replied
that it was and that ‘‘[y]ou can renew your motion if
you need be at the . . . end of direct. 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.
Defense counsel also requested a copy of the Excel
spreadsheet, and the state indicated that it was copying
the CDs to provide to the defendant. The state further
indicated that Weaver was returning to his office to
redact the precluded information. The next afternoon,
before Weaver was set to testify before the jury, defense
counsel informed the court that in addition to making
redactions to the PowerPoint presentation, Weaver had
made other revisions, including changing the represen-
tation of cell site coverage areas from ovals to pie
wedges, which had the effect of narrowing the coverage
areas. The court ordered a ten minute recess to allow
defense counsel to confer with Weaver regarding the
changes. Back on the record, defense counsel stated
that although he had a better understanding of the
changes, he was still unclear as to the reason for them.
Defense counsel renewed his requests for preclusion
and for a mistrial. In the alternative, the defendant
sought a continuance in order to obtain the transcript
from the prior day’s hearing, or at a minimum, a continu-
ance ‘‘until tomorrow to have an opportunity to digest
all this material’’ and prepare for cross-examination the
following day. Defense counsel noted that the state had
given him CDs the day before, but that the CDs were
not responsive to the defendant’s requests and that new
CDs provided that morning had not yet been reviewed
by defense counsel. The court granted a continuance
until the following morning and asked defense counsel
whether he believed that time to confer with Weaver
would be useful to him, to which defense counsel
replied that he did. The court ordered Weaver to remain
available to defense counsel from the time it adjourned,
which appeared to be sometime after 4 p.m., until 4:45
or 4:50 p.m. The court further ordered the state to pro-
vide any of Weaver’s spreadsheets that it had not yet
provided to defense counsel.
The next morning, defense counsel informed the
court that he had spent twenty minutes or one-half hour
with Weaver, who ‘‘provided some clarification relative
to the changes in his presentation.’’ For the reasons
that he previously had offered, the defendant then
renewed his objection to the state’s late disclosure of
Weaver. Defense counsel stated: ‘‘But specific as to the
changes, I can’t say to the court that I’m not prepared
to go forward today and address those changes as
needed.’’ He further implied that the revision to the
PowerPoint presentation ‘‘just magnifies the import of
the prejudice to [the defendant] relative to not being
able to get our own expert.’’ The court inquired of
defense counsel whether ‘‘these changes in the report
impair your ability to cross-examine the witness to any
greater extent [than] you feel you may have been
impaired when you first made the motion to preclude
. . . .’’ Defense counsel responded that they did not
and represented to the court that he felt prepared to
go forward.
Evidence then resumed, and the state called Weaver
to the witness stand. After inquiring as to Weaver’s
experience and background, the state introduced Weav-
er’s PowerPoint presentation into evidence. Defense
counsel conducted a voir dire as to the PowerPoint
presentation, and ultimately did not object to the pre-
sentation. Weaver testified that the states attorney’s
office had provided him with logs for Anderson’s GPS
device and call detail records for three phone numbers,
and had asked him to map the location of Anderson’s
GPS and phone calls made and received for two of the
phone numbers, which the state attributed to Rogers
and the defendant. Using software called GeoTime,
Weaver mapped these locations, which were depicted
on the maps as a person figure in the center of 120
degree pie shaped coverage areas. Weaver’s presenta-
tion contained fifteen different snapshots of maps and
descriptions indicating Anderson’s GPS location and
whether the defendant’s or Rogers’ cell phone con-
nected to a cell site with a ‘‘generally expected coverage
area’’ in which Anderson’s GPS was also located.
Snapshots nine through thirteen showed that the
defendant’s phone connected to a cell site whose cover-
age area included Anderson’s GPS. Specifically, snap-
shot nine depicted the defendant’s phone connected to
a cell site whose coverage area included the location
of the shootings. Snapshot thirteen depicted Rogers’
and the defendant’s phones connected to a cell site that
included the area of Stratford Avenue and Hollister
Avenue, where Anderson’s GPS was also located.
Weaver opined 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 [victim’s] murder with the
Anderson GPS. And the [defendant’s] phone, the 6819
number, moved away and then when they actually made
phone calls all together . . . within this area of Strat-
ford and Hollister after the homicide.’’
At the conclusion of Weaver’s direct examination,
defense counsel did not renew the defendant’s request
for a continuance. On cross-examination, defense coun-
sel questioned Weaver about a call made from Rogers’
phone to the defendant’s phone at 2:14 p.m. Weaver
testified that he did not map the 2:14 p.m. call because
the state’s attorney’s office had asked him only to plot
the locations when the two phones were together, and
the two phones were not together at the time of that
call. Weaver also testified that he did not include any
other cell sites in the area, and thus, his presentation
did not depict any coverage overlap between towers.
Last, Weaver’s snapshots did not depict the movement
of the phones.
On December 18, 2015, the defendant filed a motion
for a judgment of acquittal or, in the alternative, a new
trial. In his memorandum of law in support of the
motion, the defendant claimed that the state’s failure
to timely disclose Weaver, and the court’s failure to
preclude Weaver’s testimony or afford the defendant a
reasonable continuance to retain his own expert,
deprived the defendant of a fair trial. The court heard
oral argument on January 22, 2016, and denied the
defendant’s motion.
A
We first address the defendant’s claim that the court
erred in permitting Weaver to testify and denying the
defendant’s alternative request for a six week continu-
ance in order to permit him to retain his own expert.
The defendant claims that the trial court’s ruling consti-
tuted an abuse of discretion, and further, that it deprived
him of a fair trial and of his right to present a defense.
We begin our analysis with the applicable legal princi-
ples and standard of review. Chapter 40 of the Practice
Book governs discovery in criminal cases. Section 40-
5 of the rules of practice provides in relevant part: ‘‘If
a party fails to comply with disclosure as required under
these rules, the opposing party may move the judicial
authority for an appropriate order. The judicial author-
ity hearing such a motion may enter such orders . . .
as it deems appropriate, including . . . (2) Granting
the moving party additional time or a continuance . . .
(4) Prohibiting the noncomplying party from introduc-
ing specified evidence . . . (5) Declaring a mistrial
. . . [or] (8) Entering such other order as it deems
proper.’’ See also State v. Rabindranauth, 140 Conn.
App. 122, 135–36, 58 A.3d 361 (affirming trial court’s
preclusion of defense expert’s testimony as sanction
for late disclosure where defendant failed to comply
with court’s order requiring disclosure of expert wit-
nesses by December 17, 2010, and did not disclose
expert until January 3, 2011, one day before commence-
ment of evidence), cert. denied, 308 Conn. 921, 62 A.3d
1134 (2013).
Practice Book § 40-5 gives ‘‘broad discretion to the
trial judge to grant an appropriate remedy for failure
to comply with discovery requirements.’’ State v. Wilson
F., 77 Conn. App. 405, 417, 823 A.2d 406, cert. denied,
265 Conn. 905, 831 A.2d 254 (2003). This court pre-
viously has held that the ‘‘court must consider appro-
priate sanctions, but is under no obligation to impose
a penalty.’’ Id., 419. ‘‘Generally, [t]he primary purpose
of a sanction for violation of a discovery order is to
ensure that the defendant’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 dis-
cretion of the trial court.’’ (Internal quotation marks
omitted.) State v. Beaulieu, 118 Conn. App. 1, 8–9, 982
A.2d 245, cert. denied, 294 Conn. 921, 984 A.2d 68 (2009).
‘‘In determining what sanction is appropriate for fail-
ure 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 prejudice by a
continuance, and any other relevant circumstances.
. . . As with any discretionary action of the trial court,
appellate review requires every reasonable presump-
tion in favor of the action, and the ultimate issue for
us is whether the trial court could have reasonably
concluded as it did.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Cooke, 134 Conn. App.
573, 578–79, 39 A.3d 1178, cert. denied, 305 Conn. 903,
43 A.3d 662 (2012). ‘‘In general, abuse of discretion
exists when a court could have chosen different alterna-
tives 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. Beaulieu, supra, 118 Conn. App. 8.
First, with respect to the defendant’s claim that the
court erred in not precluding Weaver’s testimony, we
conclude that the trial court did not abuse its discretion.
We note that even in circumstances where the state
has committed a discovery violation, ‘‘[s]uppression of
relevant, material and otherwise admissible evidence is
a severe sanction which should not be invoked lightly.’’
(Internal quotation marks omitted.) State v. Cooke,
supra, 134 Conn. App. 579; see also State v. Hamlett, 105
Conn. App. 862, 874, 939 A.2d 1256 (denial of proposed
remedy of exclusion of police officer’s field notes,
which were not previously disclosed to defense and
which affected defense strategy of contradicting victim
through police report, was not abuse of discretion),
cert. denied, 287 Conn. 901, 947 A.2d 343 (2008). More-
over, when the court offered its understanding of the
defendant’s challenges to Weaver’s qualifications and
the reliability of the software he used, defense counsel
replied that those issues were not the bases for his
motion and that he only wanted to voir dire Weaver
as to his qualifications. Substantively, defense counsel
clarified that he was concerned about a portion of Weav-
er’s PowerPoint that contained hearsay, and the court
ultimately precluded that portion.
We further conclude that the court did not abuse its
discretion in denying the defendant’s alternative request
for a six week continuance to consult with an expert.
With respect to circumstances of the untimely disclo-
sure, although the court described the late disclosure
as an ‘‘avoidable situation,’’ the court determined that
the state had not acted in bad faith. Moreover, the
defendant had not claimed that the state had acted in
bad faith, describing the focus of his motion to preclude
as ‘‘the late disclosure on accident by the state.’’ See
State v. Respass, 256 Conn. 164, 188, 770 A.2d 471(‘‘because the noncompliance in this case was inadver-
tent . . . and there was no prejudice to the defendant,
the trial court did not abuse its discretion by denying the
defendant’s motion to suppress the statement’’ [citation
omitted]), cert. denied, 534 U.S. 1002, 122 S. Ct. 478,
151 L. Ed. 2d 392 (2001).
Regarding prejudice to the defendant, the court con-
cluded that there had not been ‘‘a true prejudice visited
upon the [defendant] by these circumstances.’’ The
court’s prejudice analysis focused on the substance of
Weaver’s testimony, with the court concluding that the
proffered evidence was not ‘‘so novel or cutting edge
or unusual that the defendant would suffer prejudice
. . . .’’ That analysis overlooks the result of the late
disclosure, which was that the defendant was prevented
from consulting with, and potentially presenting the
testimony of, his own expert. Thus, it is clear that the
defendant suffered some measure of prejudice as a
result of the late disclosure. The court did take certain
steps to ameliorate the prejudice to the defendant,
including precluding one slide of Weaver’s presentation
that contained a previously undisclosed video and
recessing for the afternoon in order to permit defense
counsel to confer with Weaver regarding changes to
Weaver’s presentation.
Although the late disclosure deprived the defendant
of the opportunity to consult with his own expert,
defense counsel conducted an effective cross-examina-
tion of Weaver. See State v. Cooke, supra, 134 Conn.
App. 580 (noting, in concluding that court did not abuse
its discretion in granting two day continuance for
defense counsel to prepare to cross-examine expert
regarding supplemental DNA report, that ‘‘the defen-
dant was able to raise and did raise challenges to the
credibility of the DNA results during his cross-examina-
tion’’). In the present case, defense counsel was able to
elicit testimony that the defendant’s and Rogers’ phones
were not together when Rogers called the defendant
at 2:14 p.m., shortly before the shootings. Weaver also
testified that he did not include any other cell sites in
the area, and thus, his presentation did not depict any
coverage overlap between towers or anything else that
might affect the signals or coverage area.8
Having determined that the defendant was not preju-
diced by the state’s late disclosure, the court had no
occasion to analyze the feasibility of rectifying any prej-
udice by a continuance. Although we recognize that the
requested continuance likely would have cured any then
existing prejudice to the defendant as a result of the
late disclosure; see 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, and cert. denied, 261 Conn. 915, 806 A.2d 1057(2002); we are mindful that granting the six week contin-
uance requested would have caused a substantial dis-
ruption to the trial. The state provided Weaver’s
PowerPoint presentation to defense counsel on October
1, 2015, while jury selection was ongoing. Jury selection
was initially completed on October 7, 2015, the day the
defendant filed his motion to preclude. On the morning
of October 8, the court conducted additional voir dire
after one of the jurors was excused, and evidence began
that afternoon. The hearing on the motion to preclude
was not held until October 20, 2015. By that date, the
court already had held seven days of trial, and a lengthy
continuance certainly would have affected all involved
in the trial, including the jury. See State v. Brown, 242
Conn. 445, 460, 700 A.2d 1089 (1997) (trial court took
into consideration ‘‘the length of the requested continu-
ance and its potentially negative effect on the jury’’ and
thus did not abuse its discretion in denying motion for
continuance). By October 22, when Weaver testified
before the jury, twenty-one days had elapsed since the
state’s disclosure, and the court reasonably could have
concluded, had it reached the feasibility of rectifying the
prejudice by a continuance, that a six week continuance
would have been too disruptive to the trial.
The state argues in its brief that the trial court did not
abuse its discretion in declining to order a continuance
because the defendant abandoned his request for a con-
tinuance. The state underscores the court’s instruction
to defense counsel that ‘‘[y]ou can renew your motion
if you need be at the . . . end of direct,’’ and defense
counsel’s failure to do so at that time.9 In State v. Sewell,
95 Conn. App. 815, 819, 898 A.2d 828, cert. denied, 280
Conn. 905, 907 A.2d 94 (2006), this court considered
the defendant’s claim that the trial court improperly
denied his motion for a mistrial on the basis of the
state’s failure to provide material regarding the content
of a witness’ testimony. Concluding that the trial court
had not abused its discretion, this court considered that
the trial court had ‘‘ordered a one day continuance and
indicated that it would allow defense counsel more
time if requested.’’ Id., 821. The following day, defense
counsel did not request additional time, and this court
concluded that ‘‘the continuance the [trial] court
granted was a curative action offered to remedy any
then existing prejudice to the defendant.’’ Id.; see also
State v. Cooke, supra, 134 Conn. App. 580 (noting, in
analysis of whether trial court abused its discretion
in denying motion to preclude and granting shorter
continuance than requested to prepare for cross-exami-
nation of expert witness regarding supplemental DNA
report disclosed on first day of evidence at trial, that on
day that court ultimately scheduled cross-examination,
‘‘the defendant did not object on the basis of a lack of
time or ability to have his expert review the supplemen-
tal report, and the court explicitly asked both parties’
counsel whether they wanted to be heard on any matter,
to which both replied in the negative’’).
We do not construe the defendant’s failure to repeat
his request for a continuance at the conclusion of Weav-
er’s direct examination as an abandonment of that
request. We believe it relevant, however, to the discus-
sion of whether the court abused its discretion, in that
the court expressly identified the conclusion of direct
examination as an appropriate opportunity for defense
counsel to renew his request, and defense counsel failed
to renew his request at that moment.
The question of whether the court abused its discre-
tion in failing to order a continuance in order to permit
the defendant to consult with his own expert witness
is a close one. We disagree with the trial court that the
defendant suffered no prejudice as a result of the late
disclosure. Ultimately, however, we cannot conclude
that the court’s ruling denying the request for a six
week continuance was ‘‘so arbitrary as to vitiate logic’’
or was ‘‘based on improper or irrelevant factors.’’ (Inter-
nal quotation marks omitted.) State v. Beaulieu, supra,118 Conn. App. 8. We note that the trial court did sanc-
tion the state for its late disclosure, although the sanc-
tion issued was mild in comparison to that requested
by defense counsel.10 Accordingly, we conclude that the
court did not abuse its discretion.11
We further conclude that even if the court’s denial
of the defendant’s request for a continuance constituted
an abuse of discretion, the defendant has not demon-
strated that the claimed error was harmful. ‘‘[W]hether
[an improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error.’’ (Internal quotation
marks omitted.) State v. Toro, 172 Conn. App. 810, 817,
162 A.3d 63, cert. denied, 327 Conn. 905, 170 A.3d 2(2017). ‘‘[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. Pascual, 305 Conn. 82, 93, 43
A.3d 648 (2012).
In the present case, Weaver’s testimony, although
important to the state’s case, also 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. Surveillance videos further corrobo-
rated much of Anderson’s testimony, including that the
defendant told Rogers he thought he had dropped a
clip before getting out of Anderson’s car at Stratford
Avenue and Hollister Avenue. The jury viewed surveil-
lance video and associated still images, which depicted
a man opening and closing the rear passenger door of
Anderson’s car before getting out at Stratford Avenue
and Hollister Avenue. The man appeared to have dread-
locks and was wearing a hat with a visible logo. The
state entered into evidence photographs recovered
from the defendant’s cell phone showing the defendant
with dreadlocks and wearing a hat with a similar shaped
logo; those photographs were taken on September 17,
2013, less than one week following the shootings. The
state also entered into evidence a hat matching that
worn in the photographs, which was recovered from
the defendant’s car on September 17, 2013. The jury
also heard evidence that on September 16, 2013, Rogers
was arrested and had sent the defendant a text message
indicating that ‘‘[d]ey taken [me].’’
Finally, the state’s case against the defendant was
relatively strong. The jury heard Anderson’s testimony,
as well as other circumstantial evidence, including that
of the defendant’s consciousness of guilt. See part IV
of this opinion; see also State v. Pugh, 176 Conn. App.
518, 533, 170 A.3d 710 (concluding that ‘‘the state pre-
sented a strong case against the defendant, even if some
of the evidence was circumstantial’’), cert. denied, 327
Conn. 985, 175 A.3d 43 (2017); State v. Hayward, 116
Conn. App. 511, 520, 976 A.2d 791 (concluding that
state’s case was strong despite fact that evidence with
respect to defendant’s use of dangerous instrument was
‘‘in large part circumstantial’’), cert. denied, 293 Conn.
934, 981 A.2d 1077 (2009). Accordingly, we conclude
that even if the court abused its discretion in failing to
grant the defendant’s request for a continuance, the
defendant has not demonstrated that the claimed error
was harmful.
B
Following our Supreme Court’s decision in State v.
Edwards, 325 Conn. 97, 156 A.3d 506 (2017), the defen-
dant filed a supplemental brief claiming that ‘‘[t]he trial
court abused its discretion when it allowed Sergeant
Weaver to testify as an expert without conducting a
Porter hearing12 to determine if he was qualified to
testify as an expert and whether the methodology he
used to support his opinion that [the] defendant was
in the same location as Anderson and Rogers at the
time of the crime was reliable.’’ (Footnote added.) The
defendant acknowledges that defense counsel did not
request a Porter hearing, but maintains that the claim
is reviewable because of ‘‘the presumption of retroactiv-
ity’’ of Edwards. The state responds that ‘‘[i]t is well
established that a question of whether evidence satisfies
the admissibility standards prescribed in Porter is a
claim ‘of evidentiary dimension,’ which, if unpreserved,
is not entitled to appellate review.’’ We conclude that
the defendant’s evidentiary claim is unpreserved, and
we therefore decline to afford it review.
In Edwards, our Supreme Court resolved two issues
of first impression when it held that a police officer
testifying regarding cell phone data needed to be quali-
fied as an expert witness and that the cell phone data
evidence was of a scientific nature such that a Porter
hearing was required. State v. Edwards, supra, 325
Conn. 133. In Edwards, the defendant had filed a motion
in limine ‘‘seeking to preclude the admission of cell
phone data and requested a hearing pursuant to [Por-
ter].’’ Id., 118. Although our Supreme Court has not
yet had occasion to address the question of whether
Edwards applies retroactively to pending cases, this
court twice has recognized that it does. See State v.
Turner, 181 Conn. App. 535, 549 n.13, A.3d
(2018) (stating that Edwards ‘‘retroactively applies to
the present case because ‘a rule enunciated in a case
presumptively applies retroactively to pending
cases’ ’’); State v. Steele, 176 Conn. App. 1, 34, 169 A.3d
797 (concluding that ‘‘Edwards is controlling as to this
[evidentiary] issue on appeal’’), cert. denied, 327 Conn.
962, 172 A.3d 1261 (2017).
In the present case, the defendant did not request a
Porter hearing. Moreover, when the court took up the
defendant’s motion in limine and reviewed its under-
standing of the defendant’s issues with respect to the
state’s late disclosure of Weaver, it stated that ‘‘from
a more substantive point of view’’ it understood the
defendant’s motion to include issues surrounding ‘‘the
reliability of this GeoTime software and whether Ser-
geant Weaver is qualified as an expert to do what he’s
done.’’ Defense counsel responded: ‘‘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 Sergeant Weaver’s qualifica-
tions, we would just like to voir dire him during his
testimony if he’s allowed to testify. So, that’s not really
a basis.’’
Notwithstanding his failure to request a Porter hear-
ing, his concession to the court that the evidence was
admissible through a proper expert, and his request
to voir dire Weaver only as to his qualifications, the
defendant argues on appeal that his evidentiary claim
that the court failed to hold a Porter hearing is review-
able on the basis of the presumption of retroactivity.
He claims that because defense counsel could not have
anticipated our Supreme Court’s holding in Edwards,
he ‘‘could not have known that a Porter hearing was
required before Weaver was allowed to testify, and
therefore, could not possibly have waived any such
claim.’’ In support of this argument, the defendant cites
decisions of our Supreme Court, including State v.
Hampton, 293 Conn. 435, 457, 988 A.2d 167 (2009), in
which the court retroactively applied its decision in
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008),
to a pending appeal despite the defendant’s failure to
preserve the constitutional challenge to the trial court’s
instruction, citing ‘‘the general rule that judgments that
are not by their terms limited to prospective application
are presumed to apply retroactively . . . to cases that
are pending . . . .’’ (Internal quotation marks omitted.)
State v. Hampton, supra, 462 n.16. The defendant pro-
vides this court with no authority for the proposition
that this general rule extends beyond constitutional
challenges to evidentiary claims, and our appellate case
law suggests that it does not. See State v. Turner, supra,
181 Conn. App. 549–50 (declining to review merits of
unpreserved claim that defendant’s due process right
to fair trial was violated by introduction of expert testi-
mony regarding call detail mapping analysis and admis-
sion of cell phone coverage maps because claim failed
to satisfy Golding’s second prong in that it was eviden-
tiary in nature and not of constitutional magnitude).
We conclude that this court’s recognition that the
rule announced in Edwards is retroactively applicable
to pending cases does not compel the conclusion that
an evidentiary claim made pursuant to Edwards is
reviewable in the event the claim has not been pre-
served. See State v. Martinez, 95 Conn. App. 162, 166
n.3, 896 A.2d 109 (concluding that even if new jury
instruction rule announced in State v. Patterson, 276
Conn. 452, 886 A.2d 777 [2005], which was not of consti-
tutional dimension, was retroactive, this court would
decline to review defendant’s unpreserved evidentiary
claim that trial court failed to give jury instruction
regarding credibility of jailhouse informants), cert.
denied, 279 Conn. 902, 901 A.2d 1224 (2006); cf. State
v. Steele, supra, 176 Conn. App. 24, 27, 31 (reviewing
preserved claim that court improperly permitted lay
testimony concerning historic cell site analysis where
defendant had objected, inter alia, on ground that offi-
cer was ‘‘ ‘getting into the realm of expert testimony’ ’’
and had not been qualified as an expert and separately
had made a motion to strike testimony regarding ‘‘ ‘cell
phone coverage’ ’’ because officer was not competent
to testify on that topic). Here, because the defendant
failed to request a Porter hearing, we decline to review
the defendant’s unpreserved evidentiary claim that the
court erred in failing to hold a Porter hearing.
II
The defendant claims that the court deprived him of
his right to present a defense by precluding William
Smith, the defendant’s investigator, from providing tes-
timony to rebut Weaver’s testimony.
The following additional facts and procedural history
are relevant to this second claim. At the conclusion
of Weaver’s testimony on October 22, 2015, defense
counsel informed the court that he proposed to offer
Smith’s testimony regarding the unmapped 2:14 p.m.
phone call made from Rogers’ phone to the defendant’s
phone. Noting that he had not been able to retain his
own expert because of the state’s delayed disclosure,
defense counsel represented that Smith had identified
the latitude and longitude of the cell site associated
with the 2:14 p.m. call in the same call detail records
Weaver had used, put the latitude and longitude into
Google Maps to plot the location, traveled to that loca-
tion on the west side of Bridgeport, and photographed
the building and the cell site located on top of the
building. The court confirmed that the defendant was
not seeking a continuance, and defense counsel repre-
sented that he could have his witness testify that after-
noon. Defense counsel claimed that this evidence would
show the defendant’s presence on the west side of
Bridgeport at the time of the 2:14 p.m. phone call, which
made it practically impossible for Anderson to have
picked him up minutes later on the other side of town.
The state had no objection to the defendant putting on
this witness.
The court, however, questioned whether the testi-
mony was ‘‘supposed to be representative of something
that existed back in 2013 at the time this happened
. . . .’’ The court further inquired whether Smith would
‘‘be able to testify the tower was up, that the tower
wasn’t down for repairs? Is he going to be able to testify
about whether this was, you know, the words were one
zone or eight zones or three zones?’’ Defense counsel
responded that he thought that Weaver testified that all
the relevant towers were three sided. Defense counsel
further responded that Smith relied on the same records
Weaver used to obtain the latitude and longitude, and
had put that information into Google Maps, which he
represented that Weaver had testified was an appro-
priate method to locate a point on a map. The court
remarked that defense counsel could not represent that
it was the exact tower, to which defense counsel
replied: ‘‘Is this the tower? I don’t know. But it’s all I
can offer, Your Honor.’’ Defense counsel argued: ‘‘And
again, I’m prejudiced . . . .’’
Accepting defense counsel’s representation as to the
substance of Smith’s testimony, the court stated that
even if it were to accept the testimony as true, the
court did not think it was ‘‘definitive enough, complete
enough and material enough to’’ change its decision
regarding a continuance. Defense counsel responded
that he understood the court’s ruling would not change
with respect to the continuance, but that he was
attempting to ameliorate the harm occasioned by the
court’s denial of his motion in limine by introducing
evidence of the cell site location associated with the
2:14 p.m. phone call. Defense counsel noted that in the
event the court was excluding Smith’s testimony, the
defendant would renew his request for a mistrial on
the ground that the information as to the 2:14 p.m.
phone call was exculpatory and that the failure to dis-
close it constituted a Brady violation.
The court then ruled: ‘‘Okay. I don’t think it’s been
shown to be exculpatory. I don’t think that it’s any
cause for a mistrial and you were very effective on
cross in eliciting from Sergeant Weaver that the scope
of what he was asked to do was very narrow. He could
have taken this universe of information he had and
done more with it, but I heard from the witness many
times that all I was asked to do was to focus on certain
dates and times and locations. Times and locations.
And that was at the direction of the state. Be it they—
they asked him to focus on what he acknowledged to
be a much greater, you know, source—sources that are
available to him. So, I understand that.’’ In his memoran-
dum of law in support of his motion for a new trial, the
defendant argued that the court’s preclusion of Smith’s
testimony constituted material error warranting a
new trial.
‘‘[T]he federal constitution require[s] that criminal
defendants be afforded a meaningful opportunity to
present a complete defense. . . . The sixth amend-
ment . . . [guarantees] the right to offer the testimony
of witnesses, and to compel their attendance, if neces-
sary, [and] is in plain terms the right to present a
defense, the right to present the defendant’s version of
the facts as well as the prosecution’s to the jury so that
it may decide where the truth lies. . . . When defense
evidence is excluded, such exclusion may give rise to
a claim of denial of the right to present a defense. . . .
A defendant is, however, bound by the rules of evidence
in presenting a defense. . . . Although exclusionary
rules of evidence cannot be applied mechanistically to
deprive a defendant of his rights, the constitution does
not require that a defendant be permitted to present
every piece of evidence he wishes.’’ (Internal quotation
marks omitted.) State v. Sampson, 174 Conn. App. 624,
635, 166 A.3d 1, cert. denied, 327 Conn. 920, 171 A.3d
57 (2017). ‘‘[T]he proffering party bears the burden of
establishing the relevance of the offered testimony.
Unless a proper foundation is established, the evidence
is irrelevant.’’ (Internal quotation marks omitted.) Dee-
gan v. Simmons, 100 Conn. App. 524, 540, 918 A.2d
998, cert. denied, 282 Conn. 923, 925 A.2d 1103 (2007).
We conclude that the court did not abuse its discre-
tion in precluding Smith’s testimony. Although the basis
the court relied on in precluding Smith’s testimony was
not clearly articulated, the court’s questions to defense
counsel were addressed to the foundation for Smith’s
testimony. It was not clear from defense counsel’s prof-
fer whether Smith had sufficient knowledge to be exam-
ined and cross-examined regarding the cell site
accessed by the defendant’s phone, and defense counsel
did not request a hearing outside of the presence of the
jury to proffer Smith’s testimony. Nor did he inform
the court that he intended to rely on certain of Weaver’s
conclusions with respect to the generally expected cov-
erage area of the cell site. Specifically, although defense
counsel sought to introduce Smith’s testimony as to the
location of the cell site to which the defendant’s cell
phone connected, defense counsel’s proffer did not
include whether Smith had any knowledge as to the
geographical coverage area of the cell site in question.
Accordingly, in light of the limited foundation, we con-
clude that the court did not abuse its discretion in
precluding Smith’s testimony.13
III
The defendant next claims that the court deprived
him of his ‘‘right to present a defense when it prevented
him from introducing highly relevant information that
one of the guns used in the shooting was found on a
person named Terrance Clark when he was arrested in
August, 2014.’’ The defendant claims that ‘‘[t]his was
the only evidence connecting a particular gun to the
shooting and, significantly, it was not connected to
the defendant.’’
The following additional facts and procedural history
are relevant to this claim. On October 22, 2015, the state
filed a motion in limine to preclude the defendant from
introducing testimonial evidence of Bridgeport Police
Officer Mark Martocchio and Marshall Robinson from
the state forensic laboratory regarding the recovery of
a firearm from Clark upon his arrest on August 23, 2014.
Specifically, the state argued that the proposed third-
party culpability evidence was not relevant, as the
weapon was not found in Clark’s possession until
almost one year after the crime. The court took up the
motion in limine, stating that it understood that the
defendant wanted to present the testimony of Martoc-
chio, who would testify that he recovered the weapon
from Clark on August 23, 2014, and Robinson, who
would testify that the shell casings in evidence were
discharged from the weapon found in Clark’s posses-
sion. Defense counsel argued that the evidence was
‘‘fundamentally relevant to our defense’’ in that the
weapon was not found in the defendant’s possession
or tied to him in any way. The state responded that it
understood the claim of relevancy to be with respect
to third-party culpability and argued that the evidence
was not relevant because it lacked a direct connection.
Clark’s name previously had never come up during the
trial, and thus there was no indication that he was
present at the scene of the crime. The court rejected
defense counsel’s argument that the delay in finding
the weapon went to the weight of the evidence, not its
admissibility. Granting the state’s motion in limine, the
court stated that it was concerned about the ‘‘fundamen-
tal relevance’’ of the evidence and questioned how it
could assist the jury in determining the issues in this
case.
We note at the outset that the defendant did not
challenge before the trial court the state’s view of the
evidence as purported third-party culpability evidence.
In fact, defense counsel noted during oral argument
before the trial court: ‘‘As [the state] recognizes, we
haven’t submitted, which, we intend, a third-party cul-
pability instruction, particularly as to Mr. Clark.’’
(Emphasis added.) In its brief to this court, the state
argued that the trial court ‘‘properly excluded the prof-
fered testimony as irrelevant to establish third-party
culpability.’’ The defendant did not file a reply brief.
During the rebuttal portion of his oral argument before
this court, the defendant represented that he had not
offered the evidence to show third-party culpability,
but rather to show simply that the gun was found in
the possession of a third party and was not connected
to the defendant.
The trial court clearly found that the proposed evi-
dence was not relevant to the issues in the case. Given
that the ‘‘admissibility of evidence of [third-party] culpa-
bility is governed by the rules relating to relevancy’’;
(internal quotation marks omitted) State v. Schovanec,
326 Conn. 310, 319, 163 A.3d 581 (2017); the court was
not required to proceed further in its analysis, whether
the court understood the claim to be one of general
relevance or one in furtherance of a defense of third-
party culpability. ‘‘Determining whether evidence is rel-
evant and material to critical issues in a case is an
inherently fact-bound inquiry. . . . As a general princi-
ple, evidence is relevant if it has a tendency to establish
the existence of a material fact. One fact is relevant to
another fact whenever, according to the common
course of events, the existence of the one, taken alone
or in connection with other facts, renders the existence
of the other either certain or more probable.’’ (Internal
quotation marks omitted.) State v. Rodriguez, 107 Conn.
App. 685, 710, 946 A.2d 294, cert. denied, 288 Conn. 904,
953 A.2d 650 (2008).
‘‘Although the standard for relevancy is quite low, it
is often applied with some rigor. . . . Evidence is irrel-
evant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.
. . . The determination of relevance must be made
according to reason and judicial experience.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Thomas, 177 Conn. App. 369, 395–96, 173 A.3d 430, cert.
denied, 327 Conn. 985, 175 A.3d 43 (2017). ‘‘[T]he trial
court’s ruling on the relevancy of . . . evidence will
be reversed on appeal only if the court has abused its
discretion or an injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Rodriguez,
supra, 107 Conn. App. 710.
The defendant argues that because the sole issue
before the jury was ‘‘whether or not the defendant was
one of the shooters,’’ the proffered evidence was ‘‘rele-
vant to show a lack of identity as to the defendant.’’
We disagree. The trial court reasonably could have con-
cluded that the fact that the weapon was found in the
possession of a different individual on August 23, 2014,
almost one year after the crimes at issue, did not render
it ‘‘either certain or more probable’’ that the defendant
was not one of the shooters on September 10, 2013.
See Sullivan v. Metro-North Commuter Railroad Co.,
96 Conn. App. 741, 749, 901 A.2d 1258 (2006) (report,
offered ‘‘to support the plaintiff’s contention that the
decedent’s death was foreseeable to the defendant on
the basis of its knowledge of the statistical data con-
tained in the report concerning reported crimes at Con-
necticut [railroad] stations,’’ was not relevant in part
because it was based on data compiled from 1985
through 1987, and decedent’s death did not occur until
1992), rev’d on other grounds, 292 Conn. 150, 971 A.2d
676 (2009); State v. Skidd, 104 Conn. App. 46, 63, 932
A.2d 416 (2007) (‘‘[T]he court properly ruled that the
map was not relevant because it did not depict the
parking lot as it existed in July, 2003. The court correctly
determined that the inferences that could be drawn
from the map would be relevant only if the events had
occurred in 2001, when the map was created, and were
not relevant to the incident of July, 2003.’’). Accordingly,
we conclude that the court did not abuse its discretion
in concluding that the proffered evidence was too
remote in time to be relevant to show a lack of identity.14
IV
The defendant’s final claim is that the court abused its
discretion in admitting consciousness of guilt evidence
that ‘‘on two occasions after the shooting, [the] defen-
dant did not appear in court on an unrelated matter.’’
The following additional facts and procedural history
are relevant to this claim. Prior to September 17, 2013,
the defendant had scheduled court dates in Norwalk
Superior Court on matters unrelated to the shootings.
On September 17, 2013, one week after the shootings,
the defendant was driving a motor vehicle in Bridgeport
when he was involved in an accident. He left the scene
of the accident before police arrived. Detective Martin
Heanue of the Bridgeport Police Department responded
to the accident and collected evidence from the vehicle,
including the defendant’s cell phone, two criminal
appearance bonds for cases unrelated to the shootings,
and a gun. Heanue learned the phone number of the
cell phone, and applied for a search warrant for the
call detail records. Heanue eventually identified the
driver of the vehicle as the defendant.
Before Heanue had testified to his investigation of
the accident, the state had sought to introduce evidence
that the defendant had failed to appear for two court
dates in Norwalk as consciousness of guilt evidence,
and defense counsel objected on the ground of rele-
vance. In argument outside the presence of the jury, the
state claimed that the two criminal appearance bonds
found in the vehicle showed that the defendant had
notice of the Norwalk court dates. Defense counsel
responded to the state’s argument by positing that the
defendant had not appeared in court because he knew
that the police had recovered a gun from the vehicle
and that the police were investigating him in connection
with that gun. Defense counsel further argued that he
was put in an ‘‘impossible position’’ because he did not
want to introduce the evidence about the gun.
The court, recognizing that the jury had not yet heard
any connection between the appearance bonds and the
car at issue, ruled that the appearance bonds could
not yet be admitted as full exhibits, but advised that
assuming the state could provide the connection, the
criminal appearance bonds would be admissible subject
to redaction of the listed offenses. The court further
stated: ‘‘I understand that the defense has another argu-
ment they could put forward but simply because he
can’t put that argument forward, I don’t think that the
state is precluded from asking the jury to infer that he
did not appear and argue later that the reason he did
was because of his implication in a shooting that
occurred days before.’’ The court indicated that defense
counsel could renew his objection when the state later
moved to admit the appearance bonds into evidence,
and the court would reconsider its ruling if there was
reason to do so.
On October 22, 2015, the state and defense counsel
alerted the court that they had reached an agreement
regarding the defendant’s failures to appear for his court
dates. Defense counsel again noted that she objected
to the evidence coming in at all as ‘‘unduly prejudicial
and not probative of anything that is pertinent to this
case, particularly given the lapse in time between the
incident . . . and the date that [the defendant] didn’t
appear.’’ Defense counsel further argued that defense
counsel in the unrelated proceedings had not notified
the defendant of one of the two court dates. After put-
ting those arguments on the record, the state and
defense counsel requested, in the presence of the jury,
that the court take judicial notice of the following
facts.15 On September 11, 2013, and September 16, 2013,
the defendant was scheduled to appear in Norwalk
Superior Court and he did appear on both of those
dates. The defendant was scheduled to appear in court
on October 2, 2013, but he failed to appear on that date.
He was scheduled to appear in court on October 9, 2013,
on which date the defendant again failed to appear, and
he was ordered rearrested. The defendant was arrested
and taken into custody on October 17, 2013. The nature
of the charges at issue in the Norwalk proceedings was
not disclosed to the jury.
The court agreed to take judicial notice of the facts
represented and instructed the jury that these matters
were unrelated to the shootings, and that the jury was
to draw no adverse inferences against the defendant.
The court explained that the facts were not offered to
show that the defendant is a person of bad character.
In its final charge, the court instructed the jury as to
consciousness of guilt evidence and stated that the
‘‘state claims that in October, 2013, after the shootings
in Bridgeport, [the defendant] allegedly did not appear
for an unrelated case he had in Norwalk.’’16 Defense
counsel took an exception to the instruction ‘‘for rea-
sons previously stated that are unduly focusing on a
piece of notice and it being too attenuated to the
crime.’’17
On appeal, the defendant claims that ‘‘there was sim-
ply no basis for concluding that defendant’s failure to
appear in court in Norwalk was motivated by an attempt
to evade apprehension for the shooting.’’ In support of
this claim, he argues that: (1) there was no evidence
that the defendant was under investigation at the time
or that he was aware he was under investigation; (2)
the court was aware that the police had found a gun
in the car when he fled the scene of the accident; and (3)
the court was aware that the transcript of the October
9, 2013 proceeding showed that the defendant did not
have notice of that court date. We are not persuaded
by the defendant’s arguments.
We begin our analysis with a review of the applicable
legal principles. ‘‘Relevant evidence is evidence that has
a logical tendency to aid the trier in the determination
of an issue. . . . One fact is relevant to another if in
the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evi-
dence is irrelevant or too remote if there is such a want
of open and visible connection between the evidentiary
and principal facts that, all things considered, the for-
mer is not worthy or safe to be admitted in the proof
of the latter. . . . Evidence is not rendered inadmissi-
ble because it is not conclusive. All that is required is
that the evidence tend to support a relevant fact even
to a slight degree, so long as it is not prejudicial or
merely cumulative.’’ (Internal quotation marks omit-
ted.) State v. Coccomo, 302 Conn. 664, 669, 31 A.3d
1012 (2011).
‘‘In a criminal trial, it is relevant to show the conduct
of an accused, as well as any statement made by him
subsequent to the alleged criminal act, which may fairly
be inferred to have been influenced by the criminal act.
. . . Generally speaking, all that is required is that . . .
evidence [of consciousness of guilt] have relevance,
and the fact that ambiguities or explanations may exist
which tend to rebut an inference of guilt does not render
[such] evidence . . . inadmissible but simply consti-
tutes a factor for the jury’s consideration. . . . The fact
that the evidence might support an innocent explana-
tion as well as an inference of a consciousness of guilt
does not make [the admission of evidence of conscious-
ness of guilt] erroneous. . . . [T]he court [is] not
required to enumerate all the possible innocent explana-
tions offered by the defendant. . . . [I]t is the province
of the jury to sort through any ambiguity in the evidence
in order to determine whether [such evidence] warrants
the inference that [the defendant] possessed a guilty
conscience. . . . Moreover, evidence of a defendant’s
consciousness of guilt is admissible only if its probative
value outweighs its prejudicial effect.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Gonza-
lez, 315 Conn. 564, 593–94, 109 A.3d 453, cert. denied,
U.S. , 136 S. Ct. 84, 193 L. Ed. 2d 73 (2015).
‘‘We review a trial court’s evidentiary rulings for
abuse of discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion. . . . [Thus, our] review of such rulings is limited
to the questions of whether the trial court correctly
applied the law and reasonably could have reached
the conclusion that it did.’’ (Citation omitted; internal
quotation marks omitted.) Id., 593.
Applying these principles to the present case, we
conclude that the defendant’s failure to appear on two
dates following the shootings ‘‘may fairly be inferred
to have been influenced by the criminal act’’ of causing
the death of one person and the assault of four others.
(Internal quotation marks omitted.) State v. Coccomo,
supra, 302 Conn. 671. The jury reasonably could have
inferred that the defendant’s failure to appear for his
court dates indicated consciousness of guilt in the multi-
ple shootings. See State v. Davis, 98 Conn. App. 608,
626–30, 911 A.2d 753 (2006) (jury reasonably could have
inferred that evidence that defendant had complied with
terms of his parole and attended monthly meetings with
his parole officer prior to shooting but missed meetings
after shooting indicated consciousness of guilt), aff’d,
286 Conn. 17, 942 A.2d 373 (2008), overruled in part by
State v. Payne, 303 Conn. 538, 549, 34 A.3d 370 (2012).
Although that was not the only possible explanation
for the defendant’s conduct, ‘‘[t]he fact that the evi-
dence might support an innocent explanation as well
as an inference of a consciousness of guilt does not
make [the admission of such evidence] erroneous.’’
(Internal quotation marks omitted.) State v. Coccomo,
supra, 672.
We further conclude that the evidence was not more
prejudicial than probative. Our Supreme Court ‘‘has
identified four factors relevant to determining whether
the admission of otherwise probative evidence is unduly
prejudicial. These are: (1) where the facts offered may
unduly arouse the [jurors’] emotions, hostility or sympa-
thy, (2) where the proof and answering evidence it
provokes may create a side issue that will unduly dis-
tract the jury from the main issues, (3) where the evi-
dence offered and the counterproof will consume an
undue amount of time, and (4) where the defendant,
having no reasonable ground to anticipate the evidence,
is unfairly surprised and unprepared to meet it.’’ (Inter-
nal quotation marks omitted.) State v. Hill, 307 Conn.
689, 698, 59 A.3d 196 (2013). ‘‘[A]ll adverse evidence
is [by definition] damaging to one’s case, but [such
evidence] is inadmissible only if it creates undue preju-
dice so that it threatens an injustice were it to be admit-
ted.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Coccomo, supra, 302 Conn. 673.
In the present case, the facts of the failures to appear
do not rise to the level of prejudice identified in any of
the four factors. In his brief to this court, the defendant
argues only that he was prejudiced because ‘‘the evi-
dence created side issues that unduly distracted the
jury from the main issue.’’ We disagree. There is nothing
in the record to support the defendant’s argument that
the court’s taking judicial notice of the failures to appear
created an unduly distracting side issue. Furthermore,
no significant amount of time was expended on this
issue, which was brief in the context of a trial that
spanned more than ten days.
We further reject as contrary to our case law the
defendant’s argument that the evidence was improperly
admitted because there was no evidence that he was
under investigation for the shootings at the time or that
he was aware he was under investigation. See State v.
Hill, supra, 307 Conn. 700–702 (rejecting claim that
evidence defendant fled from police when they tried to
stop his vehicle ‘‘prior to the issuance of an arrest war-
rant and before the police were actively searching for
[the defendant] in connection with the . . . shootings’’
was not probative of consciousness of guilt). ‘‘[T]he
state is not required, as a matter of law, to establish
that the defendant had actual knowledge that he was
being charged with a criminal offense before introduc-
ing evidence of his flight.’’ (Internal quotation marks
omitted.) State v. Barnes, 112 Conn. App. 711, 730, 963
A.2d 1087 (2009) (‘‘[t]he court properly [allowed] the
state to present evidence of the defendant’s flight even
if the state failed to introduce direct or inferential evi-
dence that the defendant knew that he was wanted by
the police’’ [internal quotation marks omitted]); see also
State v. Holmes, 64 Conn. App. 80, 87, 778 A.2d 253(‘‘the state was not required to show that the defendant
had knowledge that the police were actively looking
for him for the evidence of flight to be introduced to
the jury to infer consciousness of guilt’’), cert. denied,
258 Conn. 911, 782 A.2d 1249 (2001). In any event, the
jury heard evidence that on September 16, 2013, Rogers
was arrested and had sent the defendant a text message
indicating that ‘‘[d]ey taken [me].’’ From this evidence,
the jury reasonably could have inferred that the defen-
dant was aware that the police might seek him out in
connection with the shootings.
We also reject the defendant’s argument that the jury
could not reasonably have concluded that he failed to
appear because he had a guilty conscience as to the
shootings. The defendant maintains that he actually
failed to appear because the police found a gun that
he illegally possessed in the car that he owned and that
he fled following the accident. The defendant chose, as
a matter of trial strategy, not to present this alternative
explanation to the jury because he concluded that the
evidence regarding the gun was damaging. Had he cho-
sen to present his explanation, the jury reasonably
could have inferred that the defendant failed to appear
because of the presence of the gun in the car he was
operating, but it was also entitled to make contrary
inferences. See State v. Watts, 71 Conn. App. 27, 36, 800
A.2d 619 (2002) (evidence that the defendant procured
false identification badge, which defendant claimed he
used in another incident, unrelated to charges at issue,
was properly admitted as consciousness of guilt evi-
dence, where ‘‘[e]ven if the jury reasonably could have
inferred on the state of this record that the defendant
had used the identification badge exclusively in an unre-
lated activity, it was entitled to make contrary infer-
ences’’ [emphasis in original]).
Last, regarding the defendant’s argument that the
court was aware that the transcript of the October 9,
2013 proceeding showed that the defendant did not
have notice of that court date, we conclude that the
defendant has not demonstrated that the evidence was
improperly admitted on this basis. In the transcript of
the October 9, 2013 proceeding, defense counsel repre-
sented that he had ‘‘not spoken to’’ the defendant and
that he ‘‘did reach out’’ but had not ‘‘heard from him.’’
Notwithstanding that the state and defense counsel
requested that the court take judicial notice of the
defendant’s court proceedings in Norwalk rather than
introducing the transcripts of those proceedings into
evidence, even if the court were to consider the repre-
sentations of defense counsel during the October 9 pro-
ceeding, the transcript does not compel the conclusion
that the defendant did not have notice of the court date.
Accordingly, we cannot conclude that the court abused
its discretion in admitting consciousness of guilt evi-
dence of the defendant’s failure to appear in court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See 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).Following our Supreme
Court’s decision in State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017),
the defendant filed a supplemental brief setting forth this claim.
2
One of the victims, Aijholon Tisdale, understood Rogers and the defen-
dant to be showing disrespect by calling them ‘‘a Brazzie’’ because that is
what they call people from the east end of Bridgeport.
3
The court previously had granted the defendant’s motion to sever the
count of criminal possession of a firearm from the state’s long form informa-
tion. The state later entered a nolle prosequi as to that count.
4
The jury also found Rogers guilty of the same offenses: one count of
murder in violation of § 53a-54a (a), one count of conspiracy to commit
murder in violation of §§ 53a-48 (a) and 53a-54a (a), and four counts of
assault in the first degree in violation of § 53a-59 (a) (5). Rogers and the
defendant have appealed separately. See State v. Rogers, 183 Conn. App.
669, A.3d (2018).
5
We note that Weaver initially testified during the hearing on the defen-
dant’s motion in limine that Sprint PCS sent him the wrong set of tower
information. During his testimony before the jury, however, he stated that
he had made a mistake in his earlier testimony and that Metro PCS was the
carrier that sent him the wrong tower data. Accordingly, the data that Weaver
downloaded from the NCADC database in the form of an Excel spreadsheet
corresponded to Rogers’ cell phone, not the defendant’s cell phone.
6
Practice Book § 40-11 provides in relevant part: ‘‘(a) 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 examinations and
of scientific tests, experiments or comparisons which are material to the
preparation of the defense or are intended for use by the prosecuting author-
ity as evidence in chief at the trial . . . .’’
7
One of the slides of Weaver’s presentation contained a video depicting
the movement of Anderson’s GPS unit. Because Weaver had e-mailed the
presentation as a PDF file, however, the video was not viewable. The video
could only be viewed by opening the records contained on the CDs that
were never picked up.
8
Weaver testified that coverage areas may also be mapped by hand.
Weaver testified that a coverage area often extends approximately 60 to 70
percent into the next closest coverage area, [96] and therefore a more precise
coverage area may be determined by measuring 51 or 61 percent into the next
closest coverage area, a process Weaver described as ‘‘[v]ery difficult . . . .’’
9
We note that defense counsel had made a similar request to preclude
the testimony of another of the state’s expert witnesses, Heather Degnan.
The court denied the motion to preclude but stated: ‘‘At the end of her
direct examination I will excuse the jury for a moment and if you feel you
need to renew the motion or make any other requests for relief I will hear
that.’’ At the end of direct examination, the court held a sidebar conference,
after which defense counsel cross-examined Degnan. After another witness
testified and the jury was excused for lunch, defense counsel put on the
record a further objection to Degnan’s testimony as to the ability to conduct
DNA testing on shell casings.
The court then stated: ‘‘[I]n terms of the examination of Mrs. Degnan,
Heather Degnan, I made my ruling before. Counsel’s just putting [on] the
record why she believes that ruling creates prejudice to her client. But I
would say this much, too, in fairness to the court, I—I expressly said before
the start of the examination of Mrs. Degnan, after I made my ruling that at
the end of her testimony, direct, that I would excuse the jury and give
counsel an opportunity to be heard further for reconsideration of the ruling
or for any further relief. I called counsel up to sidebar, and I believe I said,
correct me if I’m wrong, do you want me to excuse the jury now so you
can be heard on that matter. This was at sidebar. And counsel did say no,
we’ll go forward with cross-examination and put it on the record at a later
time what you just put on the record. . . .
‘‘So, you know, there was no request to excuse the jury to say, Judge,
we ask you to reconsider your ruling and strike the testimony, we ask for
a continuance in our cross-examination of the witness so that we can look
into this further. I’m just—you know, I need to complete the record, too,
as to what did occur. Counsel elected to go directly to cross-examination.
So, I understand your position, but I just want the record to be complete
in all respects.’’
10
As noted previously, the court first precluded one slide of Weaver’s
PowerPoint presentation that depicted the movement of Anderson’s GPS
unit, on the basis of the state’s failure to provide the video to defense
counsel. Thereafter, upon learning that Weaver had made changes to his
presentation, the court suspended testimony for the afternoon to permit
defense counsel to meet with Weaver to prepare for cross-examination.
11
Our determination that the court did not abuse its discretion leads us
to conclude further that the court’s failure to grant a continuance or preclude
Weaver’s testimony did not violate the defendant’s constitutional rights to
a fair trial and to present evidence in his defense. In his brief, the defendant
argues that ‘‘[t]his claim implicates his constitutional rights to a fair trial
and to present a defense and, therefore, is of constitutional magnitude.’’
The two cases he cites involve the trial court’s exclusion of evidence offered
by defendants in their defense, rather than evidence offered by the state,
and do not support his argument. See State v. Barletta, 238 Conn. 313,
322–23, 680 A.2d 1284 (1996) (concluding that trial court’s exclusion of
defendant’s proffered expert testimony did not constitute error of constitu-
tional dimension, where defendant sought to introduce expert testimony to
impeach witness who had already, in her own testimony, provided jury
with ‘‘substantial reason to question her reliability and credibility’’); In re
Adalberto S., 27 Conn. App. 49, 56–57, 604 A.2d 822 (trial court deprived
defendant of his right to present a defense, which was offered when it
excluded evidence of alleged beating he sustained at hands of police when
they apprehended him in support of his defense of justification to charge
of interfering with officer), cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992).
The defendant presents no authority to support his contention that the
trial court’s failure to preclude Weaver’s testimony or to grant a continuance
implicates his constitutional rights to a fair trial or to present a defense.
Furthermore, this court has previously suggested that a trial court’s failure
to issue sanctions on the basis of a discovery violation does not implicate
a defendant’s constitutional rights. See State v. Stanley, 161 Conn. App. 10,
33 n.9, 125 A.3d 1078 (2015) (‘‘[w]hether the court imposes sanctions on
the state [for discovery violations] does not implicate the defendant’s consti-
tutional rights’’), cert. denied, 320 Conn. 918, 131 A.3d 1154 (2016); see also
State v. Colon, 71 Conn. App. 217, 241, 800 A.2d 1268 (‘‘Where discovery
concerns inculpatory evidence, there exists no constitutional right to the
disclosure of such evidence and, therefore, the rules of the court regulate
any such disclosure. . . . In that event, [t]he trial court has broad discretion
in applying sanctions for failure to comply with discovery orders.’’ [Citation
omitted; internal quotation marks omitted.]), cert. denied, 261 Conn. 934,
806 A.2d 1067 (2002). Accordingly, we conclude that the defendant has not
shown a violation of his constitutional right to a fair trial or to present
a defense.
12
See 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). ‘‘A Porter analysis
involves a two part inquiry that assesses the reliability and relevance of the
witness’ methods. . . . First, the party offering the expert testimony must
show that the expert’s methods for reaching his conclusion are reliable. . . .
Second, the proposed scientific testimony must be demonstrably relevant
to the facts of the particular case in which it is offered, and not simply be
valid in the abstract. . . . Put another way, the proponent of scientific
evidence must establish that the specific scientific testimony at issue is, in
fact, derived from and based [on] . . . [scientifically reliable] methodol-
ogy.’’ (Internal quotation marks omitted.) State v. Steele, 176 Conn. App. 1,
33 n.21, 169 A.3d 797, cert. denied, 327 Conn. 962, 172 A.3d 1261 (2017).
13
Our conclusion that the court properly precluded the evidence leads
us to conclude further that the preclusion of the evidence did not violate
the defendant’s constitutional right to present evidence in his defense. See
footnote 14 of this opinion.
14
Our conclusion that the court properly precluded the evidence on the
ground of relevance leads us to conclude further that the preclusion of the
evidence did not violate the defendant’s constitutional rights to a fair trial
and to present evidence in his defense. See State v. Davis, 298 Conn. 1, 11,
1 A.3d 76 (2010) (‘‘[i]f, after reviewing the trial court’s evidentiary rulings,
we conclude that the trial court properly excluded the proffered evidence,
then the defendant’s constitutional claims necessarily fail’’); State v. Adorno,
121 Conn. App. 534, 547–48, 996 A.2d 746 (if proffered evidence is not
relevant, right of confrontation is not affected and evidence is properly
excluded), cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).
15
The court asked the parties whether they were referring to a stipulation.
The prosecutor responded that ‘‘[w]e’re not asking it be designated as a
stipulation, merely an agreement for the record.’’ The prosecutor further
stated: ‘‘What I mean is that the court is going to take judicial notice. In
other words, [defense counsel] and I agreed that if the court takes judicial
notice of the following facts that would be acceptable as a presentation to
the jury.’’ The court agreed to do so, and after counsel recited the agreed
on facts before the jury, the court instructed the jury that it was ‘‘taking
judicial notice of what’s just been represented because they represent official
court proceedings within Norwalk.’’ The court further instructed the jury
that it could accept the representations as true ‘‘without the need for offering
further evidence on the matters.’’
16
The court instructed, in relevant part: ‘‘Now, in any criminal trial it is
permissible for the state to show that conduct or statements made by a
defendant after the time of the alleged offense may have been influenced
by the criminal act itself; that is, the conduct or statements show a conscious-
ness of guilt.
‘‘The state claims that the following conduct is evidence of consciousness
of guilt . . . as to Raashon Jackson, the state claims that in October, 2013,
after the shootings in Bridgeport, he allegedly did not appear for an unrelated
case he had in Norwalk.
‘‘Such acts or statements do not, however, raise a presumption of guilt.
If you find the evidence proved and you also find that the acts or statements
were influenced by the criminal act and not by any other reason, you may,
but are not required to, infer from this evidence that the defendant was
acting from a guilty [conscience]. Remember, though, that you must limit
your consideration of this type of evidence to only the particular defendant
against whom it is alleged.
‘‘It is up to [you] as judges of the facts to decide whether either of the
defendants’ acts or statements, if proved, reflect a consciousness of guilt and
to consider such in your deliberations in conformity with these instructions.’’
17
Defense counsel reiterated his argument on the consciousness of guilt
evidence in his motion for a new trial.