State v. Rogers

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STATE OF CONNECTICUT v. RODERICK ROGERS
(AC 40125)
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 incident that resulted
in the death of one of the victims, the defendant appealed, claiming,
inter alia, that the trial court improperly precluded him from introducing
certain evidence that a firearm used in the shooting incident had been
found in the possession of a third party. The defendant and J, who also
was involved in the shooting, were tried jointly to a jury. The defendant’s
cousin, A, had driven the defendant and J 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,
J and A at the time of the shooting. The defendant, prior to trial, had
filed a motion in limine, seeking, inter alia, to preclude the admission
of certain of the state’s evidence pertaining to cell phone towers. The
trial court did not rule on the defendant’s motion. During trial, J filed
a motion in limine to preclude W’s testimony and certain maps that W
had prepared. The court denied J’s motion after a hearing out of the
presence of the jury. The defendant did not ask questions or oppose
W’s proposed testimony during the hearing and did not object during
trial to W’s testimony or to other evidence that was admitted during
W’s testimony. The trial court also granted the state’s motion to preclude
J from introducing evidence that one of the firearms used in the shooting
had been found in the possession of a third party. The defendant’s
counsel remained silent during argument on the state’s motion and
thereafter indicated to the court that he did not intend to offer any other
evidence pertaining to the firearm. Held:
1. The defendant’s claim that the trial court improperly precluded him from
introducing evidence that a firearm that was used in the shooting was
found in the possession of a third party was not reviewable, the defen-
dant having failed to preserve the claim for review; a defendant who
wants to preserve for appeal a nonconstitutional claim that was raised
by a codefendant in a consolidated trial must join the codefendant’s
claim or separately make the claim himself, and the defendant here
conceded that he did not independently object to the state’s motion to
preclude the evidence or attempt to introduce the evidence himself.
2. The defendant could not prevail on his unpreserved claim that the trial
court violated his constitutional right to present a defense when it
precluded him from introducing certain third-party culpability evidence,
which he claimed was relevant to his theory that A was one of the
shooters; because the foundation of the defendant’s claim was a rele-
vance claim that he did not distinctly raise before the trial court, the
defendant’s constitutional claim was premised on a distinct, and unpre-
served, claim of relevance, which was an evidentiary matter, and even
if the defendant requested review of it pursuant to State v. Golding (233
Conn. 213), the claim, being evidentiary in nature, failed under the
second prong of Golding.
3. This court declined to review the defendant’s unpreserved evidentiary
claim that the trial court improperly permitted W to testify without first
holding a hearing as to the reliability of his methodology: the defendant
did not identify where in the record he had objected to W’s testimony
or requested a hearing, apart from a request contained in his motion in
limine, nor did he identify where in the record the court ruled on his
motion in limine, he did not join in J’s motion to preclude W’s testimony,
and even if he had, J’s counsel did not request such a hearing; moreover,
the defendant failed to demonstrate that W’s testimony or the maps that
W prepared had substantially affected the jury’s verdict, as that evidence
was cumulative of and paled in comparison to other unchallenged evi-
dence that was before the jury.
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 and conspiracy to com-
mit murder, brought to the Superior Court in the judicial
district of Fairfield, where the court, Kavanewsky, J.,
granted the state’s motion to consolidate the case for
trial with that of another defendant; thereafter, the mat-
ter was tried to the jury; subsequently, the court granted
the state’s motion to preclude certain evidence; verdict
and judgment of guilty, from which the defendant
appealed. Affirmed.
Megan L. Wade, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Marina L. Green, assigned counsel, Emily Graner Sex-
ton, assigned counsel, and Daniel J. Foster, assigned
counsel, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, C. Robert Satti, Jr., supervisory assistant
state’s attorney, and Pamela J. Esposito, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Roderick Rogers, appeals
from the judgment of conviction, rendered following a
consolidated jury trial,1 of one count of murder in viola-
tion of General Statutes § 53a-54a (a), one count of
conspiracy to commit murder in violation of General
Statutes §§ 53a-48 and 53a-54a (a), and four counts of
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (5). On appeal, he claims that the
trial court improperly (1) precluded the introduction
of evidence that one of the firearms used in the shooting
of the victims was eventually found in the possession
of a third party, (2) excluded evidence of a text message
conversation he claims was relevant to third-party cul-
pability in violation of his right to present a defense
pursuant to the sixth and fourteenth amendments to
the federal constitution, and (3) admitted into evidence
maps depicting the location of cell phones,2 and related
testimony, without first conducting a Porter3 hearing.
We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts that provide the context for this appeal. At approx-
imately 2:30 p.m. on September 10, 2013, a group of
individuals—LaChristopher Pettway, Aijholon Tisdale,
Jauwan Edwards, Leroy Shaw, and Tamar Hamilton—
congregated outside the Trumbull Gardens housing
project, located in the north end of Bridgeport. At this
same time, two men approached the group, and one of
them said, ‘‘y’all just came through the Ave shooting
Braz, you all f’d up.’’ The two men then pulled out nine
millimeter handguns and shot at the group. One bullet
struck Pettway in the back, piercing his lung; Pettway
later died from his gunshot wound. Tisdale, Edwards,
Shaw, and Hamilton were also struck by bullets; each
of them survived the assault. After the shooting, the
two men ran away toward a nearby street. During the
ensuing police investigation into the shooting, Hamil-
ton, Shaw, and Tisdale identified the defendant as one
of the men who shot at them.
By way of an amended long form information, the
state charged the defendant with one count of murder,
one count of conspiracy to commit murder, and four
counts of assault in the first degree. A jury found the
defendant guilty of all counts. The court accepted the
jury’s verdict, rendered judgment, and sentenced the
defendant to a total effective sentence of forty-five years
imprisonment.4 This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
We first address the defendant’s claim that the court
improperly precluded him from introducing evidence
that one of the firearms used in the shooting of the
victims was eventually found in the possession of a
third party. Because we conclude that the defendant
failed to preserve this evidentiary claim for appeal, we
decline to address it.
The following procedural history is relevant. On the
basis of the police investigation, the state also charged
Raashon Jackson, a codefendant, with the same crimes
as the defendant. The court consolidated their cases
for trial. During the course of the consolidated jury
trial, on October 22, 2015, the state filed a motion in
limine seeking to preclude Jackson from introducing
evidence that one of the two firearms used in the Sep-
tember 10, 2013 shooting was found in the possession
of a third party.5 The state argued that such evidence
was not relevant as third-party culpability evidence
because it failed to demonstrate a ‘‘direct connection’’
between the third party and the subject shooting.6
The court heard argument regarding the state’s
motion in limine, at which time Todd A. Bussert, coun-
sel for Jackson, made two interrelated arguments
regarding the proffered evidence. First, the firearm was
relevant simply because it was one of the firearms used
in the September 10, 2013 shooting, and second, ‘‘it is
significant that it wasn’t found in Mr. Jackson’s posses-
sion or [in] any way tied to him.’’ (Emphasis added.)
Following argument, the court granted the state’s
motion in limine and precluded the introduction of such
evidence. The defendant and his counsel, James J. Past-
ore, remained silent throughout oral argument. When
the court inquired whether ‘‘either defendant intend[s]
to put on any other evidence [regarding the firearm
found in the third party’s possession]’’; (emphasis
added); Bussert and Pastore both indicated that they
did not.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly.’’ (Internal quotation marks omitted.) State v.
Miranda, 327 Conn. 451, 464–65, 174 A.3d 770 (2018).
The defendant concedes that he did not indepen-
dently object to the state’s motion in limine. He also
concedes that he did not attempt to introduce the evi-
dence proffered by Jackson. Nonetheless, he argues
that he ‘‘was not . . . required to obtain a second ruling
on the same issue in order to preserve the record for
review.’’ We disagree. A defendant who wants to pre-
serve a nonconstitutional issue for appeal raised by a
codefendant in a consolidated trial must either join the
claim advanced by his or her codefendant or otherwise
separately make the claim. See State v. Gould, 241 Conn.
1, 9 n.3, 695 A.3d 1022 (1997) (defendant did not advance
codefendant’s claim at trial; ‘‘[w]hen a defendant does
not join a codefendant’s motion for tactical or other
reasons, the defendant cannot later complain of the
procedure on appeal’’); State v. Walton, 227 Conn. 32,
55 n.20, 630 A.2d 990 (1993) (defendant did not join
codefendants’ midtrial motions for separate trial, nor
did he make his own similar motion; Supreme Court
‘‘presume[d] that his silence in the face of a similar
midtrial motion by [a codefendant], specifically joined
by [a second codefendant], was for tactical or other
reasons he deemed to be valid’’); State v. Tok, 107 Conn.
App. 241, 245 n.2, 945 A.2d 558 (defendant could not
raise unpreserved evidentiary claim on appeal based
on codefendant’s objection, citing Gould), cert. denied,
287 Conn. 919, 951 A.2d 571 (2008). Accordingly, the
defendant did not preserve this issue for appeal and,
therefore, we decline to address it.7
II
The defendant next claims that the trial court improp-
erly precluded him from introducing certain third-party
culpability evidence in violation of his right to present
a defense pursuant to the sixth and fourteenth amend-
ments to the federal constitution. He argues that the
trial court improperly prevented him from cross-exam-
ining David Anderson, a witness for the state, about a
text message conversation that allegedly appeared on
Anderson’s cell phone. According to the defendant,
‘‘[e]vidence that . . . Anderson had been seeking
ammunition eight days before the shooting would have
been relevant to support the defendant’s theory that
. . . Anderson was one of the shooters . . . .’’ In
response, the state contends that the defendant did not
raise the specific relevance claim he pursues on appeal
and, therefore, that the evidentiary basis for his claim
is unreviewable. Alternatively, the state argues that,
even if we were to review the defendant’s claim in
accordance with Golding,8 it fails to satisfy Golding’s
second, third, and fourth prongs. Because we conclude
that the defendant’s claim hinges on an unpreserved
relevancy argument, we agree with the state.
Anderson, the defendant’s cousin, testified at trial on
behalf of the state. According to him, on September 10,
2013, he drove the defendant and Jackson in his white
2004 Nissan Maxima to the north end of Bridgeport at
approximately 2 p.m. The defendant instructed him to
drive to an area near the Trumbull Gardens housing
project.9 While Anderson was driving on a street near
the Trumbull Gardens housing project, the defendant
said that ‘‘he [had] seen someone he knew,’’ and that
Anderson should park the car and then wait for him
and Jackson until they returned. The defendant and
Jackson then exited the car and headed toward whom-
ever the defendant recognized. Shortly thereafter,
Anderson heard ‘‘firecracker sounds.’’ Approximately
two minutes after Anderson parked his car, the defen-
dant and Jackson returned and entered Anderson’s Nis-
san Maxima, and the defendant told Anderson, ‘‘[a]ll
right, go ahead.’’ Anderson heard sirens as he then drove
the defendant and Jackson away from the area.
During cross-examination, Pastore, counsel for the
defendant, sought to question Anderson about a text
message conversation that allegedly appeared on
Anderson’s cell phone. Pastore asked Anderson, ‘‘[w]ho
is Popa Anderson?’’ Anderson did not answer that ques-
tion, however, as the prosecutor immediately objected
and claimed that the inquiry was not relevant. Outside
the presence of the jury, Pastore represented to the
court: ‘‘There’s a text message from Mr. Anderson’s
phone from a Popa Anderson to another individual by
the name of Los Des, and I’m asking and inquiring of
who those individuals are.’’ The following colloquy then
took place:
‘‘The Court: Well, what else—what else would you
have though to make that relevant?
‘‘[Pastore]: Well, depending on how the person
answers the questions, the relevancy—
‘‘The Court: I mean, what’s your proffer? Do you
know?
‘‘[Pastore]: The relevancy is, there’s a—there’s a chat
between those individuals regarding—
‘‘The Court: Between?
‘‘[Pastore]: Anderson—this Popa Anderson and this
Los Des regarding thirty-two shells or a request for [.38
caliber] shells.
‘‘The Court: Okay.
‘‘[Pastore]: On September 2, eight days before the
alleged incident here.
‘‘The Court: Okay. And spit it out for me. How’s that
relevant to what’s on the trial here?
‘‘[Pastore]: Well, some of the casings that were recov-
ered were [.38 caliber shells].
‘‘The Court: Okay.
‘‘[Pastore]: So, I’m inquiring of this witness, first of
all, who those individuals are, and then whether or not
he’s—whether he’s aware that that chat occurred.
‘‘The Court: Is there anything more than that?
‘‘[Pastore]: No, Your Honor.
‘‘The Court: Right now?
‘‘[Pastore]: No, Your Honor.
‘‘The Court: So, you have these text messages from
these two individuals you want to—and you’re saying
that on his phone there’s a request by this witness?
‘‘[Pastore]: It was a request by someone entitled
Popa Anderson.
‘‘The Court: For?
‘‘[Pastore]: The exact text is: Yo, bitch, do you know
anybody with [.38] shells?
‘‘The Court: So, it’s not even this witness who’s mak-
ing the request for the [.38 shells], it’s somebody pur-
portedly texting him?
‘‘[Pastore]: No. The text is from an individual named
Popa Anderson.
‘‘The Court: Who’s the one requesting or asking about
the [.38 shells]?
‘‘[Pastore]: Popa Anderson.
‘‘The Court: Not this witness?
‘‘[Pastore]: I don’t—I don’t—
‘‘The Court: The witness is being inquired of by Popa
Anderson about [.38] shells.
‘‘[Pastore]: No. No.
‘‘The Court: That’s what—
‘‘[Pastore]: Well, that’s why—I think I first need to
establish who that individual is, and so that’s my first
question to this witness.
***
‘‘The Court: So, it’s a text between two other people
about [.38] caliber shells that somehow appears up on
his phone.
‘‘[Pastore]: Correct.
‘‘The Court: Sustained. Bring the jurors back in.’’
Following the court’s ruling, Pastore cross-examined
Anderson on different matters. The defendant now
claims on appeal that the trial court deprived him of his
right to present a defense under the sixth and fourteenth
amendments to the federal constitution.
‘‘It is fundamental that the defendant’s rights to con-
front the witnesses against him and to present a defense
are guaranteed by the sixth amendment to the United
States constitution. . . . A defendant’s right to present
a defense is rooted in the compulsory process and con-
frontation clauses of the sixth amendment. . . . Fur-
thermore, the sixth amendment rights to confrontation
and to compulsory process are made applicable to state
prosecutions through the due process clause of the
fourteenth amendment. . . .
‘‘These sixth amendment rights, although substantial,
do not suspend the rules of evidence . . . . A court
is not required to admit all evidence presented by a
defendant; nor is a court required to allow a defendant
to engage in unrestricted cross-examination. . . .
Instead, [a] defendant is . . . bound by the rules of
evidence in presenting a defense . . . . Nevertheless,
exclusionary rules of evidence cannot be applied mech-
anistically to deprive a defendant of his rights . . . .
Thus, [i]f the proffered evidence is not relevant . . .
the defendant’s right[s] to confrontation [and to present
a defense are] not affected, and the evidence was prop-
erly excluded.’’ (Citation omitted; internal quotation
marks omitted.) State v. Holley, 327 Conn. 576, 593–94,
175 A.3d 514 (2018). We review an evidentiary ruling
by the trial court for an abuse of discretion. See, e.g.,
State v. Calabrese, 279 Conn. 393, 406–407, 902 A.2d
1044 (2006).
It is also well established that ‘‘[a]ppellate review of
evidentiary rulings is ordinarily limited to the specific
legal [ground] raised by . . . trial counsel. . . . To
permit a party to raise a different ground on appeal
than [that] raised during trial would amount to trial by
ambuscade, unfair both to the trial court and to the
opposing party.’’ (Internal quotation marks omitted.)
State v. Jones, 115 Conn. App. 581, 601, 974 A.2d 72,
cert. denied, 293 Conn. 916, 979 A.2d 492 (2009); see
also State v. Adorno, 121 Conn. App. 534, 548 n.4, 996
A.2d 746 (‘‘[o]rdinarily, we will not consider a theory
of relevance that was not raised before the trial court’’),
cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).
On appeal, the defendant claims that the trial court’s
ruling preventing him from asking Anderson, ‘‘[w]ho is
Popa Anderson,’’ and continuing that inquiry, deprived
him of the opportunity to present relevant evidence
that Anderson ‘‘was one of the shooters . . . .’’ More
specifically, he maintains that such evidence was rele-
vant third-party culpability evidence that ‘‘raise[d] more
than a bare suspicion that Mr. Anderson was one of
the two shooters.’’ He did not, however, distinctly assert
this claim of relevance at trial, notwithstanding the
opportunity to do so after the court repeatedly asked
defense counsel to state the relevance of the proffered
evidence. Rather, Pastore maintained that such evi-
dence was more generally relevant because ‘‘some of
the casings that were recovered [from the scene of the
shooting were the same caliber as those discussed in
the text message conversation].’’ The defendant’s con-
stitutional claim is therefore premised on a distinct,
and unpreserved, claim of relevance, an evidentiary
matter. See State v. Jones, supra, 115 Conn. App. 601(declining to review relevance claim raised for first time
on appeal within context of defendant’s claim that trial
court deprived him of his constitutional right to cross-
examine witnesses).
We also note that the defendant now raises an unpre-
served constitutional claim on appeal—without
requesting Golding review. We agree with the state,
however, that even if we were to apply Golding to the
defendant’s unpreserved constitutional claim; see State
v. Elson, 311 Conn. 726, 754–55, 91 A.3d 862 (2014)
(overruling ‘‘affirmative request’’ requirement); the
defendant’s claim fails to satisfy Golding’s second
prong. See State v. Golding, 213 Conn. 233, 239, 567
A.2d 823 (1989) (second prong requires claim to be of
constitutional magnitude), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). As pre-
viously stated, the foundation of the defendant’s consti-
tutional claim regarding the proffered evidence is a
relevance claim that the trial court did not distinctly
have before it.10 The defendant, therefore, clothes the
issue in constitutional garb, but it is actually evidentiary
in nature. See State v. Jones, supra, 115 Conn. App.
602 (defendant’s constitutional claim failed to satisfy
second prong of Golding because ‘‘[i]t [was] . . .
merely a claim of relevance’’). Accordingly, the defen-
dant cannot prevail on his claim.
III
The defendant’s final claim is that the trial court
improperly admitted into evidence maps depicting the
location of cell phones and related testimony. More
specifically, he argues that the court improperly
declined to hold a Porter hearing to determine the
admissibility of testimony and maps developed by
Andrew Weaver, a witness for the state, which
described the defendant’s movements on September 10,
2013, according to his cell phone use. The defendant
maintains that the court was required to hold a Porter
hearing ‘‘to determine whether the software program
. . . Weaver used to create the map[s] showing the
location of the defendant’s cell phone was reliable.’’
According to the defendant, the court abused its discre-
tion when it failed to do so, and such evidence substan-
tially affected the verdict. The state argues that the
defendant’s claim is unreviewable and, alternatively,
that any error was harmless. We agree with the state
that the claim is unreviewable and, even if it were
reviewable, any error was harmless.
The following additional facts, which the jury reason-
ably could have found, and procedural history are rele-
vant to this claim. Prior to trial, the defendant filed a
motion in limine seeking to ‘‘[preclude] the admission
of cellular telephone tower ‘ping’ evidence. In the alter-
native, the defendant request[ed] a hearing pursuant to
. . . Porter to determine the scientific reliability of said
evidence.’’ The defendant’s motion was dated July 17,
2014, and was filed with the court that same day.11
On October 20, 2015, after trial began, the court held
a hearing outside the presence of the jury in connection
‘‘with the motion in limine to preclude testimony of
Sergeant Andrew Weaver filed by Mr. Jackson’s coun-
sel, dated October 7 [2015].’’ (Emphasis added.) The
court initially understood Jackson’s motion to challenge
Weaver’s testimony as being based on two grounds.
First, the state’s disclosure of Weaver’s anticipated tes-
timony was late or incomplete, and second, the software
used by Weaver to generate certain maps was ‘‘problem-
atic.’’ The court also noted: ‘‘The other area [it wanted
to address], in fairness to the defense, is the reliability
of this GeoTime software [used by Weaver] and whether
. . . Weaver is qualified as an expert to do what he’s
done.’’
Responding to the court’s statements, Bussert stated
in relevant part: ‘‘Just two things, Your Honor. . . . In
terms of . . . 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 purpose of . . . 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 . . . Weaver’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 Ser-
geant Weaver has presented to us for review, and that
is in particular the second page, which is that entire
summary page.’’
Weaver testified during the hearing and, following
the hearing, the court denied the motion in limine and
permitted the state to introduce Weaver’s testimony
and the maps he created. Although he was present dur-
ing this hearing, Pastore did not ask any questions, nor
did he oppose Weaver’s proposed testimony or the maps
he had prepared.12
The state thereafter called Weaver to testify at trial.
He testified, on direct examination, that he had pre-
pared certain maps based on ‘‘GPS [global positioning
system] material for a person by the name of Mr. Ander-
son’’ and ‘‘data from three different cell phones’’ pro-
vided by the state.13 According to Weaver, the maps,
which were contained in a PowerPoint presentation
that was admitted into evidence, portrayed Anderson’s
specific movements before and after the September 10,
2013 shooting. Weaver testified that those maps were
partially based on location data he received from the
state that derived from a GPS bracelet Anderson wore
on his ankle. Weaver also testified that the maps
depicted, generally, where the defendant and Jackson
made or received certain calls on their cell phones
before and after the shooting.14 These maps demon-
strated that Anderson, the defendant, and Jackson were
in the area of the shooting when it took place, and left
the area soon after the shooting. At trial, the defendant
did not object to Weaver’s testimony, nor did he object
to the PowerPoint presentation containing the maps
Weaver prepared using the GeoTime software.
We now set forth the legal principles governing our
review of the defendant’s claim. ‘‘We review a trial
court’s decision [regarding the admission of] expert
testimony for an abuse of discretion. . . . If we deter-
mine that a court acted improperly with respect to the
admissibility of expert testimony, we will reverse the
trial court’s judgment and grant a new trial only if the
impropriety was harmful to the appealing party.’’ (Inter-
nal quotation marks omitted.) State v. Steele, 176 Conn.
App. 1, 32, 169 A.3d 797, cert. denied, 327 Conn. 962,
172 A.3d 1261 (2017). ‘‘It is [also] well settled that this
court is not bound to consider any claimed error unless
it appears on the record that the question was distinctly
raised at trial and was ruled upon and decided by the
court adversely to the appellant’s claim.’’ (Internal quo-
tation marks omitted.) Peeler v. Commissioner of Cor-
rection, 170 Conn. App. 654, 677, 155 A.3d 772, cert.
denied, 325 Conn. 901, 157 A.3d 1146 (2017).
The defendant relies on our Supreme Court’s decision
in State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017),
in which the court ‘‘was presented with two issues of
first impression, specifically, whether: (1) ‘a police offi-
cer needed to be qualified as an expert witness before
he could be allowed to testify regarding cell phone data’;
id., 127; and (2) ‘the evidence introduced through [the
police officer] was of a scientific nature such that a
[Porter hearing] was required.’ . . . The court
answered those two questions in the affirmative, con-
cluding that the trial court improperly admitted cell
phone data and cell tower coverage maps into evidence
without qualifying the police officer as an expert and
conducting a Porter hearing to determine whether the
officer’s testimony was based on a reliable scientific
methodology.’’ (Citations omitted; footnote omitted.)
State v. Turner, 181 Conn. App. 535, 550–51, A.3d
(2018).
We conclude that the defendant failed to preserve
his evidentiary claim for appeal. Although he directs
our attention to points in the record where the court
ruled on Jackson’s October 7, 2015 motion in limine,
he does not direct our attention to where in the record
the court distinctly ruled on his July 17, 2014 motion
in limine.15 Nor does he direct our attention to where
he objected to the introduction of Weaver’s testimony
or where he requested a Porter hearing, apart from the
request contained in his July 17, 2014 motion in limine.
The defendant also did not join Jackson’s motion in
limine and, even if he had, counsel for Jackson did not
request a Porter hearing. See State v. Jackson, 183 Conn.
App. 623, 650, A.3d (2018). Finally, our indepen-
dent review of the record fails to reveal where the court
either ruled on the defendant’s motion in limine or
otherwise denied his request for a Porter hearing.
Accordingly, the defendant’s evidentiary claim is unpre-
served.16 See, e.g., Peeler v. Commissioner of Correc-
tion, supra, 170 Conn. App. 677; see also State v. Turner,
supra, 181 Conn. App. 551 (dictates of Edwards raise
evidentiary concerns); State v. Stephen O., 106 Conn.
App. 717, 723 n.4, 943 A.2d 477 (evidentiary claim unpre-
served for appeal because, ‘‘[a]though [the defendant’s
pretrial motion in limine] arguably encompassed the
evidence at issue . . . the record does not reflect that
the court at any time acted on this motion’’), cert.
denied, 287 Conn. 916, 951 A.2d 568 (2008).17
Even if the defendant’s claim was properly before
this court, he has failed to demonstrate that Weaver’s
testimony or the maps he created substantially affected
the verdict. ‘‘When an improper evidentiary ruling is
not constitutional in nature, the defendant bears the
burden of demonstrating that the error was harmful.
. . . [W]hether [an improper evidentiary ruling] is
harmless in a particular case depends upon a number
of factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the . . . evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) State v. Edwards, supra, 325
Conn. 133.
The testimony from Weaver and the maps depicting
the location of the cell phones were cumulative and
paled in comparison to other unchallenged evidence
before the jury. Anderson testified that he picked up
the defendant and Jackson in his white Nissan Maxima,
drove them to an area near the September 10, 2013
shooting at the Trumbull Gardens housing project,
dropped them off at a nearby street at approximately
the same time the shooting occurred, and then drove
them away from the area after hearing ‘‘firecracker
sounds’’ and approaching sirens. See, e.g., State v.
Edwards, supra, 325 Conn. 134 (evidentiary error
deemed harmless because, even without improperly
admitted cell phone data and maps, jury could conclude
that defendant was in area when robberies occurred
based on other unchallenged evidence). Although the
defendant disputes Anderson’s credibility on appeal, he
does not challenge the admissibility of his testimony.
Additionally, during the police investigation and at trial,
some of the victims positively identified the defendant
as one of the men who shot them. See, e.g., State v.
Bouknight, 323 Conn. 620, 627–29, 149 A.3d 975 (2016)
(evidentiary error deemed harmless based on multiple
eyewitnesses identifying defendant as shooter).18
Other evidence before the jury further corroborated
the maps depicting the location of the cell phones pre-
sented through Weaver. The maps Weaver created dem-
onstrated that Anderson was in the area of the shooting
when it happened, based on a GPS ankle bracelet that
Anderson wore at the time. According to Weaver, the
GPS logs provided the ‘‘[s]pecific’’ location of an individ-
ual. On appeal, the defendant does not challenge the
admissibility of this GPS evidence. The state also intro-
duced surveillance camera footage depicting Ander-
son’s white Nissan Maxima traveling toward the
Trumbull Gardens housing project at approximately the
time of the shooting, being within ninety-one yards of
the shooting approximately when it happened, and that
two men exited the car at approximately 2:31 p.m.
Weaver also testified that cell phone data can only
approximate the cell phone’s location to a general ‘‘cov-
erage area.’’ In other words, he acknowledged the lim-
ited accuracy of the challenged evidence. Bussert even
cross-examined him on the fact that cell phone data
can only provide an ‘‘approximation’’ as to a cell phone’s
location. And although Pastore’s cross-examination of
Weaver was limited, Weaver acknowledged that the
location of the defendant’s cell phone was not depicted
in some of the slides contained in Weaver’s PowerPoint
presentation. See, e.g., State v. Edwards, supra, 325
Conn. 135 (improperly admitted evidence deemed
harmless due, in part, to rigorous cross-examination
‘‘on the accuracy of the cell phone data’’). Accordingly,
we cannot conclude that admitting into evidence Weav-
er’s testimony and the maps depicting the location of
the cell phones, even if improper, substantially affected
the verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The present appeal is a companion case to an appeal filed by Raashon
Jackson, the codefendant in the consolidated jury trial. See State v. Jackson,
183 Conn. App. 623, A.3d (2018).
2
The defendant refers to the challenged evidence as ‘‘cellular telephone
tower ping data,’’ ‘‘maps,’’ and related testimony. The challenged evidence
consisted of testimony and documentary evidence regarding maps depicting
the location of certain cell phones based on the historical billing records
for those cell phones.
3
See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).
4
On the charge of murder, the court sentenced the defendant to forty-
five years imprisonment; on the charge of conspiracy to commit murder,
the court sentenced the defendant to twenty years imprisonment; and on
each of the four charges of assault in the first degree, the court sentenced
the defendant to twenty years imprisonment. The sentences ran concurrently
with one another.
5
The subject firearm was found in the possession of Terrance Clark on
August 23, 2014—approximately eleven months after the September 10, 2013
shooting—when he was arrested on unrelated charges.
6
In Connecticut, third-party culpability evidence may be deemed relevant
and admissible only if the defendant first demonstrates a ‘‘direct connection’’
between the charged crime and a third party. See footnote 10 of this opinion.
7
The defendant’s reliance on State v. Velky, 263 Conn. 602, 614–15, 821
A.2d 752 (2003) (jury trial with one defendant; clear indication that defen-
dant’s efforts would have been futile based on trial court’s pretrial confer-
ence statements regarding specific evidentiary claim raised on appeal), and
People v. Mezon, 80 N.Y.2d 155, 160–61, 603 N.E.2d 943, 589 N.Y.S.2d 838(1992) (jury trial with one defendant; trial court ‘‘stated unequivocally that
it would permit oral motion,’’ notwithstanding state’s opposition), fails to
persuade us to reach a different result.
8
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
9
Anderson testified that the state had charged him with conspiracy to
commit murder in connection with the September 10, 2013 shooting.
10
Although third-party culpability evidence is governed generally by rules
relating to relevancy, specific requirements determine its admissibility. See,
e.g., State v. Hedge, 297 Conn. 621, 635, 1 A.3d 1051 (2010) (‘‘[t]he defendant
must . . . present evidence that directly connects a third party to the
crime’’); State v. Arroyo, 284 Conn. 597, 609, 935 A.2d 975 (2007) (proffered
third-party evidence must ‘‘establish a direct connection to a third party,
rather than raise merely a bare suspicion regarding a third party’’). The
record does not indicate that the trial court sustained the state’s objection
on the ground that the defendant failed to meet these strict requirements.
Cf. State v. Hedge, supra, 633 (claim that defendant’s constitutional right to
present defense was violated deemed reviewable because, ‘‘although the
defendant initially sought to introduce the evidence for a more limited
purpose, the trial court treated the proffered testimony as third party culpa-
bility evidence’’ and because, following court’s ruling, ‘‘the defense treated
the testimony as giving rise to a third party culpability claim’’).
11
Although the record is unclear, it appears that Pastore, in a pretrial
proceeding, had asked the court to address his motion in limine at trial.
12
At the start of the hearing, the court noted that it would permit Pastore
to cross-examine Weaver in connection with the hearing on Jackson’s motion
in limine.
13
Bussert initially conducted a voir dire of Weaver regarding the Pow-
erPoint presentation of the maps he created. Pastore, however, indicated
that he did not have an objection to the admissibility of Weaver’s Pow-
erPoint presentation.
14
For a comprehensive review of how law enforcement uses cell phone
call records to approximate the locations of an individual at a particular
time, see, e.g., State v. Steele, 176 Conn. App. 1, 14–24, 169 A.3d 797, cert.
denied, 327 Conn. 962, 172 A.3d 1261 (2017).
15
In support of his argument that his claim is preserved, the defendant
relies on the following portion of the court’s oral ruling: ‘‘[E]xcept to an
extent that I’m going to say right now, I’m going to deny the motion in
limine because I don’t feel that there’s been true—a true prejudice visited
upon the defendants by these circumstances. I won’t go back to how I feel
about those circumstances.’’ (Emphasis added.) We note that the court was
particularly concerned with the alleged late disclosure of Weaver’s testimony
and his PowerPoint presentation, and its oral ruling makes no mention of
a Porter hearing. Indeed, Bussert did not request such a hearing. See State
v. Jackson, supra, 183 Conn. App. 650. Accordingly, we are unpersuaded
that the defendant’s evidentiary claim is properly preserved by this excerpt
of the court’s ruling.
16
The defendant also contends that his evidentiary claim is reviewable
because our Supreme Court’s decision in Edwards, which was decided while
his appeal was pending, applies retroactively to pending cases. See, e.g.,
State v. Hampton, 293 Conn. 435, 457, 988 A.2d 167 (2009) (‘‘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]). Although this court has recognized that the rule announced in
Edwards is retroactively applicable; see State v. Turner, supra, 181 Conn.
App. 549 n.13 (stating that Edwards ‘‘retroactively applies to the present
case because ‘a rule enunciated in a case presumptively applies retroactively
to pending cases’ ’’); we are unpersuaded that the defendant’s claim is review-
able. See State v. Jackson, supra, 183 Conn. App. 652–53 (recognizing retroac-
tivity of Edwards, but declining to review unpreserved evidentiary claim
pursuant to Edwards).
17
The state also argues that the defendant’s claim regarding the cell phone
coverage maps is unreviewable because his motion in limine sought only
to preclude cell phone tower ‘‘ping’’ evidence, rather than the maps created
by Weaver based on ‘‘historical billing records.’’ According to the state,
‘‘Ping evidence is completely different from the mapping of a defendant’s
location using historical billing records.’’ Thus, the state maintains that the
defendant failed, at trial, to challenge the specific evidence presented by
the state through Weaver. We need not address this argument and therefore
express no opinion on it.
18
The state’s case against the defendant also consisted of consciousness
of guilt evidence. Anderson testified that, although he had been untruthful
with investigating officers at times, the defendant had told him to say certain
things to the police. According to Anderson, the defendant told him: ‘‘If
anyone asks [where he was at the time of the shooting], tell them that he
was with me.’’ See, e.g., State v. Schmidt, 92 Conn. App. 665, 675–76, 886
A.2d 854 (2005) (consciousness of guilt evidence goes to defendant’s state
of mind and ‘‘may be inferred to have been influenced by the criminal act’’
[internal quotation marks omitted]), cert. denied, 277 Conn. 908, 894 A.2d
989 (2006).