State v. Edwards

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STATE OF CONNECTICUT v. EUGENE EDWARDS, JR.

(SC 19735)

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

Argued December 12, 2016—officially released April 11, 2017

Timothy H. Everett, assigned counsel, for the appel-

lant (defendant).

Jonathan M. Sousa, special deputy assistant state’s

attorney, with whom, on the brief, were Brian Preleski,

state’s attorney, and Brett J. Salafia, senior assistant

state’s attorney, for the appellee (state).

Opinion

EVELEIGH, J. The defendant, Eugene Edwards, Jr.,

appeals from the judgment of the trial court convicting

him of home invasion in violation of General Statutes

§ 53a-100aa (a) (2), robbery in the first degree in viola-

tion of General Statutes § 53a-134 (a) (2), larceny in the

second degree in violation of General Statutes § 53a-

123 (a) (3), and assault of an elderly person in the third

degree in violation of General Statutes § 53a-61a (a) (1)

arising out of an incident in Wethersfield.1 On appeal

to this court, the defendant asserts that: (1) the trial

court improperly denied his motion to suppress certain

statements that he had made to police; (2) the trial

court abused its discretion when it allowed a police

officer to present nonexpert testimony regarding cell

phone records and maps; and (3) the evidence was

insufficient to support his convictions. We agree with

the defendant that the trial court improperly allowed

the police officer to present certain testimony regarding

the cell phone records and maps, but find such error

was harmless. We disagree with the defendant’s other

claims and, accordingly, affirm the judgment of the

trial court.

The record reveals the following facts, which the jury

reasonably could have found. On June 22, 2012, the

victim, Lieslotte Worysz, went grocery shopping at a

Stop and Shop grocery store in Rocky Hill. After com-

pleting her shopping, she returned to her home in Weth-

ersfield. While driving home, the victim noticed a motor

vehicle driving behind her. The victim testified that the

vehicle was a Chrysler 300 and that she was able to

identify its make and model because she and her hus-

band previously owned Chryslers and ‘‘were into cars.’’

The victim further stated that the vehicle was ‘‘fairly

new’’ and a ‘‘light color,’’ explaining as follows: ‘‘[It]

follow[ed] me [at] a distance . . . and I admired [it]. I

figured gee, the grill, everything is beautiful. I like it.’’

Upon returning home, the victim used a remote to

open the door to her attached garage and parked her

vehicle inside. The victim noticed that the vehicle that

had been following her home was parked behind her

in the driveway. As the victim was about to exit her

vehicle, the defendant, who was the driver of the vehicle

that had follower her, approached her in the garage,

held a black gun to her stomach and demanded money.

The victim said to the defendant, ‘‘why are you doing

this to me? I didn’t do nothing to you,’’ and tried to exit

her vehicle, but the defendant pushed her back down

into the driver’s seat and said, ‘‘[Y]ou shut up. If you’re

going to scream. I’m going to hurt you. I’m going to

shoot you.’’ The defendant then took the victim’s remote

and closed the garage door with both of them inside.

The defendant grabbed the victim’s pocketbook and

took the money that was inside. He also took the vic-

tim’s diamond ring, wedding band, watch, and keys.

Afterward, the defendant opened the garage, threw the

victim’s keys and remote on the driveway, and left the

scene. The victim picked up the items that the defendant

had discarded, went into her house, and called the

police.

When the police arrived, they took several photo-

graphs of the scene. The victim told police about the

Chrysler 300 and provided a description of the driver,

but she could not identify him in a photographic array.

Detectives Christopher Morris and James Darby of the

Wethersfield Police Department processed the scene

and the victim’s belongings for fingerprints and DNA

analysis. They obtained several latent fingerprints from

the driver’s door of the victim’s vehicle and swabbed the

victim’s vehicle, remote, and wallet for DNA analysis.

Darby processed the driver’s side of the victim’s vehi-

cle for fingerprints because the victim ‘‘had reported

that as she was exiting [her vehicle], she was robbed

and made by the suspect to sit back down inside [her

vehicle].’’ Darby took six ‘‘hinge lifters’’ and marked

the locations for each lift. Morris sent the lifts to the

Hartford Police Department, which found no matches.

Morris then took the lifts to the state forensic labora-

tory. John Brunetti from the state forensic laboratory

testified regarding his analysis of two latent partial

prints obtained from the victim’s vehicle. He concluded

that they matched, respectively, the defendant’s left

middle and index fingers.

Thereafter, Morris went to the grocery store where

the victim had been shopping and obtained the security

video from the parking lot. Upon reviewing the video,

Morris noted a white vehicle following the victim out

of the parking lot. Upon further review of the video,

Morris and the other officers noted several characteris-

tics about that vehicle, namely, a black scuff mark on

the rear bumper, an E-ZPass or some other form of

transponder device on the front windshield, and a third

brake light in the center of the vehicle’s trunk that did

not appear to be functioning properly. The vehicle had

a Connecticut license plate on the front bumper, but

officers were unable to obtain the plate number from

the security video. Morris later showed the video to

employees of a Chrysler dealership, who confirmed that

the vehicle in the video was a Chrysler 300.

On June 25, 2012, Morris shared information about

the case with other police departments and the media

in order to obtain investigative leads from members of

the public. The report released by the media described

the perpetrator of the crime as a black male between

thirty and forty years old, approximately five feet ten

inches to six feet tall, medium build and short black

hair. The report also described the vehicle allegedly

used in the robbery, including that it may have had an

E-ZPass or other form of transponder device on the

front windshield.

The New Britain Police Department provided Morris

with information on three white Chrysler 300 vehicles

that had some contact with the police, including one

that belonged to the defendant. On June 25, the same

day that the media released information about the rob-

bery, Morris drove to the defendant’s address in New

Britain and photographed his white Chrysler 300. Morris

noticed that the defendant’s vehicle had a black scuff

mark on its rear bumper, which was consistent with

the mark on the vehicle in the surveillance video. Morris

then ran the vehicle’s plate number through the license

plate reader database and discovered that the Newing-

ton police had photographed the defendant’s front

license plate on June 1, 2012. Morris also discovered

that the defendant’s father, Eugene Edwards, Sr., had

an E-ZPass account and that the transponders can easily

be transferred between vehicles.

On June 27, 2012, two days after the media released

the report of the robbery, Morris asked Officer Ronald

Floyd of the Wethersfield Police Department to conduct

further surveillance on the defendant’s vehicle. Floyd

drove to the defendant’s house in New Britain and took

several photographs of the defendant’s vehicle, which

was parked approximately 200 yards from the house

in a school parking lot. Floyd’s photograph of the front

of the defendant’s vehicle showed that it no longer had

a front license plate and that material from the front

bumper where the license plate screws had been placed

was protruding, which indicated that the plate had

recently been removed. Floyd observed two vertical

marks on the front windshield, just below the rearview

mirror, which were consistent with leftover adhesive

from an E-ZPass or other similar transponder device.

In Floyd’s photograph, there was a New York Giants

bumper sticker on the rear bumper, which was not in

the photograph of the defendant’s vehicle taken two

days earlier. In addition, the photograph taken by Floyd

showed that white paint had been applied to the black

scuff mark on the rear bumper.

On June 28, 2012, officers drove to the defendant’s

home in New Britain to execute a search warrant. Inside

the defendant’s house, the officers found the front

license plate to the defendant’s Chrysler 300, which had

been hidden underneath the seat cushion of a sofa. The

officers also discovered a black handheld BB gun in a

bedroom closet.

The defendant remained outside while the police

searched his home. The defendant also volunteered

information about his vehicle to Detective Michael Pat-

koske of the Wethersfield Police Department. The

defendant said that the scratches on his rear bumper

had been there since he had purchased the vehicle, that

the New York Giants bumper sticker had been on his

rear bumper since 2011, and that he never had an E-

ZPass account. The defendant also told Patkoske that

his front license plate was under the couch and that it

had been knocked off the car as a result of a motor

vehicle accident in New York in 2011. The officers did

not, however, observe any damage to the front of the

defendant’s car or on the license plate found in the

home. Police seized the defendant’s vehicle as evidence,

and after further inspection, they determined that the

third brake light on the vehicle was functioning prop-

erly. The defendant’s nephew, Justin Collins, testified

that the defendant had told Collins to tell the police

that the BB gun was his if the police asked.

On July 3, 2012, Patkoske called the defendant and

asked him if he would be willing to speak with him

about his vehicle and his whereabouts in June, 2012.

Although they had not discussed the dates of the Weth-

ersfield or Berlin robberies; see footnote 1 of this opin-

ion; the defendant told Patkoske ‘‘I wasn’t even here

. . . when all that stuff was going on, whenever that

happened.’’ He said that he was in North Carolina from

June 19 to June 22 for his aunt’s funeral and that he

was with his girlfriend, Caryn Prince, in Virginia from

June 1 to June 9, but he was not confident of the dates.

The defendant gave Prince’s cell phone number to Pat-

koske and told him to check with her on the dates of

the Virginia trip. Patkoske then called Prince twice on

that same day to confirm the defendant’s whereabouts.

In between those two telephone calls, the defendant

called Prince and told her that the police ‘‘were trying

to frame him’’ and that, if the police called her, she

should say that ‘‘he was with [her].’’ Prince told Pat-

koske that she was with the defendant in Virginia in

May not in June. Patkoske later learned that the defen-

dant was in Connecticut on June 22, 2012, because he

had obtained a receipt from a retail store showing that

the defendant had transacted business in Connecticut

on that date.

On September 19, 2012, the defendant appeared at

the Wethersfield police station and was placed under

arrest. The defendant maintained that he was not the

perpetrator of the robberies, and he told Morris that

he had ‘‘the wrong tall, thin black male,’’ and that ‘‘no

one picked him out of a lineup . . . .’’

Thereafter, the defendant was charged, inter alia,

with home invasion in violation of § 53a-100aa (a) (2),

robbery in the first degree in violation of § 53a-134 (a)

(2), larceny in the second degree in violation of § 53a-

123 (a) (3), and assault of an elderly person in the third

degree in violation of § 53a-61a (a) (1). See footnote 1

of this opinion. After a five day trial, the jury convicted

the defendant of these charges. The trial court there-

after rendered judgment in accordance with the jury’s

verdict and sentenced the defendant to four concurrent

terms of incarceration: twenty years for home invasion,

twenty years for robbery in the first degree, one year

for assault of an elderly person in the third degree and

ten years for larceny in the second degree. This appeal

followed.2 Additional facts will be set forth as necessary.

On appeal, the defendant claims that: (1) the trial

court improperly denied his motion to suppress certain

statements that he had made to police; (2) the trial

court abused its discretion when it allowed Morris to

present certain nonexpert testimony regarding cell

phone records and maps; and (3) the evidence was

insufficient to support his convictions. We address each

of these claims in turn.

I

The defendant claims that the trial court improperly

denied his motion to suppress certain statements that

he made to the police. Specifically, the defendant

asserts that the trial court improperly denied his motion

to suppress statements made to the police during the

execution of the search warrant at his home on June

28, 2012, and after his arrest on September 19, 2012,

because he was not advised of his rights under Miranda

v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966). The state responds that the trial court

properly denied the defendant’s motion to suppress

because the statements were not made during a custo-

dial interrogation. We agree with the state.

The following additional facts are relevant to this

claim. Before trial, the defendant filed a motion to sup-

press, claiming that his statements to the police should

not be admitted at trial because the police failed to

advise him of his Miranda rights. After a hearing, the

trial court found the following facts: ‘‘As part of their

investigation, the Wethersfield Police Department

obtained a search warrant for a white Chrysler 300

registered to the defendant at 39 Nye Street, New Brit-

ain, the residence of the defendant.

‘‘On June 28, 2012 . . . Patkoske was in an

unmarked police vehicle . . . . After waiting for a

period of time, the white vehicle, believed to be the

defendant’s, was observed driving to the [defendant’s]

residence. Once the defendant’s vehicle entered the

driveway, the police vehicle’s lights were activated. The

operator, identified as [the defendant], was asked to

exit the vehicle and be subjected to a [patdown] for

weapons. The passenger in the vehicle . . . Collins

. . . was also subjected to a weapons search.

‘‘There were no weapons found [during the patdown].

The defendant was advised of the search warrants and

the intended locations of the search. Information was

obtained that there were other people in the residence.

Those individuals were asked to exit during the execu-

tion of the search warrant for the residence. A search

of the residence and the [vehicle] was conducted.

‘‘While the searches were being conducted . . . Pat-

koske testified that he remained outside of the resi-

the defendant was outside the residence, walking

around the driveway, while not under arrest, nor hand-

cuffed. Patkoske testified that during this time, the

defendant spoke to him. The nature of the conversa-

tions were: why the police were there, information con-

cerning the vehicle, [the] scratches on the vehicle, [the

New York Giants] bumper sticker, and that the vehicle

never had an [E-ZPass transponder] on the windshield.

‘‘There was also a discussion about the front marker

plate of the vehicle. . . . Patkoske testified that he

inquired of the defendant about the front plate. The

defendant stated that the plate was knocked off the

vehicle in an accident in New York, and that it [had]

been off the vehicle for about a year. The defendant

further stated that he was the only one who drives

the vehicle.

‘‘[Patkoske] testified that he remained at the 39 Nye

Road location for the duration of the approximately

two hour search of the residence and vehicle.

‘‘On September 19, 2012 . . . Morris of the Wethers-

field Police Department contacted the defendant indi-

cating that he could pick up his vehicle at the station.

This was a ruse to get the defendant to come to the

police [station] to be arrested. Upon the defendant’s

arrival, he was placed under arrest. While under arrest

and proceeding through the booking process . . . Mor-

ris indicated that he inquired of the defendant only

biographical questions.

‘‘During the processing of the [uniform arrest record]

. . . Morris testified that the defendant stated that he

was not the same person that was arrested in New York

fifteen years ago, that [that is] all they got on him, and

no one picked him out of a lineup. At the time of these

statements, the defendant was under arrest, but had

not yet been read his Miranda advisements.’’ (Internal

quotation marks omitted.) The trial court denied the

defendant’s motion to suppress in its entirety.

‘‘Our standard of review of a trial court’s findings and

conclusions in connection with a motion to suppress is

[well-defined]. A finding of fact will not be disturbed

unless it is clearly erroneous in view of the evidence

and pleadings in the whole record . . . . [W]here the

legal conclusions of the court are challenged, we must

determine whether they are legally and logically correct

and whether they find support in the facts set out in

the memorandum of decision . . . .’’ (Internal quota-

tion marks omitted.) State v. Smith, 321 Conn. 278, 288,

138 A.3d 223 (2016); see also State v. Betances, 265

Conn. 493, 500, 828 A.2d 1248 (2003).

In order to establish that he was entitled to Miranda

warnings, a defendant must show that he was in custody

when he made the statements and that he made the

statements in response to police questioning. State v.

Mangual, 311 Conn. 182, 192, 85 A.3d 627 (2014). In

assessing whether a person is in custody for purposes of

Miranda, ‘‘the ultimate inquiry is whether a reasonable

person in the defendant’s position would believe that

there was a restraint on [his] freedom of movement of

the degree associated with a formal arrest. . . . Any

lesser restriction on a person’s freedom of action is not

significant enough to implicate the core . . . concerns

[of the fifth amendment to the United States constitu-

tion] that Miranda sought to address.’’ (Citation omit-

ted; footnote omitted; internal quotation marks

omitted.) Id., 194–95.

‘‘The defendant bears the burden of proving that he

was in custody for Miranda purposes. . . . Two dis-

crete inquiries are essential to determine custody: first,

what were the circumstances surrounding the interro-

gation; and second, given those circumstances, would

a reasonable person have felt he or she was not at

liberty to terminate the interrogation and leave. . . .

The first inquiry is factual, and we will not overturn

the trial court’s determination of the historical circum-

stances surrounding the defendant’s interrogation

unless it is clearly erroneous. . . . The second inquiry,

however, calls for application of the controlling legal

standard to the historical facts. . . . The ultimate

determination of whether a defendant was subjected

to a custodial interrogation, therefore, presents a mixed

question of law and fact, over which our review is de

novo.’’ (Internal quotation marks omitted.) State v.

Mitchell, 296 Conn. 449, 459, 996 A.2d 251 (2010).

‘‘[W]hether a defendant was subjected to interroga-

tion . . . involves a similar two step inquiry . . . .

Because this framework is analogous to the determina-

tion of whether a defendant is in custody, the ultimate

determination, therefore, of whether a defendant

already in custody has been subjected to interrogation

also presents a mixed question of law and fact over

which our review is plenary, tempered by our scrupu-

lous examination of the record to ascertain whether

the findings are supported by substantial evidence.’’

(Citation omitted.) State v. Mullins, 288 Conn. 345, 364,

952 A.2d 784 (2008). ‘‘Interrogation, as conceptualized

in the Miranda opinion, must reflect a measure of com-

pulsion above and beyond that inherent in custody

itself.’’ (Internal quotation marks omitted.) State v.

Vitale, 197 Conn. 396, 412, 497 A.2d 956 (1985).

A

The defendant first asserts that the trial court improp-

erly denied his motion to suppress the statements to

police on June 28, 2012, because he was subjected to

custodial interrogation.3 Specifically, the defendant

asserts that a reasonable person would not have felt

he or she was able to leave. The defendant does not

claim that the trial court’s factual findings were

clearly erroneous.

In regard to statements made by the defendant on

June 28, 2012, the trial court found as follows: ‘‘In

addressing this issue, the court reviews the testimony

presented at the October 18, 2013 hearing, which was

previously indicated in this memorandum. In reviewing

that testimony, the court considers that the defendant

was confronted and asked to exit the vehicle. . . . Pat-

koske testified that he [did not] recall whether he had

his firearm exposed, but was prepared for the potential

of the defendant being in possession of a firearm and

that he protected himself.

‘‘[Patkoske] testified that once the defendant was out

of his vehicle and the [patdown] was conducted, he

was released and free to leave. The testimony presented

was that the defendant was walking around the prop-

erty, free to leave.

‘‘The court finds the testimony of . . . Patkoske

credible. Considering the law previously indicated and

the credible facts presented, the court finds that the

defendant was not ‘in custody’ for [the purpose of

Miranda].

‘‘The court does not find ‘custody’ for the purposes

of a Miranda advisement. Therefore, the court need

not address the ‘interrogation’ aspect of custodial inter-

rogation.’’

In Mangual, we set forth ‘‘the following nonexclusive

list of factors to be considered in determining whether

a suspect was in custody for purposes of Miranda: (1)

the nature, extent and duration of the questioning; (2)

whether the suspect was handcuffed or otherwise phys-

ically restrained; (3) whether officers explained that

the suspect was free to leave or not under arrest; (4)

who initiated the encounter; (5) the location of the

interview; (6) the length of the detention; (7) the number

of officers in the immediate vicinity of the questioning;

(8) whether the officers were armed; (9) whether the

officers displayed their weapons or used force of any

other kind before or during questioning; and (10) the

degree to which the suspect was isolated from friends,

family and the public.’’ State v. Mangual, supra, 311

Conn. 196–97; see also State v. Arias, 322 Conn. 170,

177, 140 A.3d 200 (2016).

The record demonstrates that, although Patkoske

engaged in a brief patdown of the defendant and Collins,

he informed all occupants in the home, including the

defendant, that they were free to leave. The defendant

was not handcuffed or restrained after the patdown.

Indeed, the defendant was walking around the property

and many family members remained at the property,

in the backyard of the home. The record further demon-

strates that one officer remained outside in the vicinity

of the defendant’s vehicle, and that the defendant him-

self initiated the conversation with the police about

his vehicle.

The defendant asserts that the fact that the officers

arrived at the defendant’s home utilizing the police

sirens and lights, ordered the defendant and Collins out

of the vehicle and conducted a search of the home

pursuant to the search warrant is sufficient to establish

that a reasonable person would believe he was not free

to leave.4 We disagree. The trial court found that ‘‘once

the defendant was out of his vehicle and the [patdown]

was conducted, he was released and free to leave. The

testimony presented was that the defendant was walk-

ing around the property, free to leave.’’ We find the

Appellate Court’s reasoning in State v. Spence, 165

Conn. App. 110, 118–19, 138 A.3d 1048, cert. denied,

321 Conn. 927, 138 A.3d 287 (2016), persuasive on this

issue. In Spence, the Appellate Court concluded that

‘‘the police presence did not overwhelm the defendant

to the point that a reasonable person would believe

that he was in custody.’’ Id., 118. The Appellate Court

reasoned that ‘‘[t]he surroundings were familiar to the

defendant. He was in an open area of the home, and

he was surrounded by his family including other adults.

While there were as many as ten police officers in the

home assisting with the execution of the search war-

rant, they were not brandishing their weapons.’’ Id.,

118–19. Similarly, in the present case, the defendant

was outside, in the open air, able to walk around the

property, including into the area where the rest of his

family was waiting. On the basis of these factual find-

ings, we conclude that the trial court properly deter-

mined that the defendant was not in custody when he

made statements to the police on June 28, 2012.

B

The defendant next claims that the trial court improp-

erly denied his motion to suppress the statements made

to police on September 19, 2012. In regard to these

statements, the trial court found as follows: ‘‘In

addressing this issue, the court reviews the testimony

presented at the October 18, 2013 hearing . . . .

‘‘The testimony of . . . Morris was that the defen-

dant was asked to come to the Wethersfield Police

Department to retrieve his vehicle. Upon arrival, the

defendant was placed under arrest and handcuffed. The

defendant was processed through the booking pro-

cedure.

‘‘While under arrest . . . Morris indicated that the

defendant asked for [an attorney] and a bail commis-

sioner. The court has analyzed the credible testimony

against the law, as it relates to custody previously indi-

cated. After review, the court finds that the defendant

was in custody at the time he is alleged to have made

the statements sought to be suppressed. ‘‘Therefore,

the court finds custody existed for the purposes of a

Miranda advisement.

‘‘[Morris] indicated that he did not advise the defen-

dant pursuant to Miranda at that time. [Morris] testified

that the defendant asked for an attorney and a bail

commissioner. The testimony indicates that the defen-

dant made the statements sought to be suppressed.

‘‘Having addressed the issue of custody, the court

directs its attention to whether [an] interrogation, as

defined by our law, occurred. . . .

‘‘[Morris’] testimony indicates that, other than bio-

graphical questions, he made no inquiries of the defen-

dant. The defendant indicated that he was aware of a

lack of identification made by complainants and that

he was not the same person as his past criminal record

could show. There is no evidence presented that . . .

Morris interrogated the defendant as our laws define.

‘‘The court finds . . . that the defendant was in cus-

tody, but not subject to interrogation or questioning by

words or actions on the part of . . . Morris that [he]

should have known were reasonably likely to elicit

incriminating responses from [the defendant].’’ (Cita-

tions omitted.)

In support of his claim that the defendant was subject

to interrogation, the defendant asserts that the fact that

Morris used a ‘‘ruse’’ to convince the defendant to come

down to the police station is sufficient to establish that

he subjected the defendant to interrogation. Specifi-

cally, the defendant asserts that Morris should reason-

ably have known that the surprise arrest was likely to

elicit an incriminating response from the defendant.

We disagree.

It is well established that the term ‘‘interrogation’’

under Miranda ‘‘refers not only to express questioning,

but also to any words or actions on the part of the

police (other than those normally attendant to arrest

and custody) that the police should know are reason-

ably likely to elicit an incriminating response from the

suspect. . . . A practice that the police should know

is reasonably likely to evoke an incriminating response

from a suspect thus amounts to interrogation. But, since

the police surely cannot be held accountable for the

unforeseeable results of their words or actions, the

definition of interrogation can extend only to words or

actions on the part of police officers that they should

have known were reasonably likely to elicit an incrimi-

nating response.’’ (Emphasis omitted; internal quota-

tion marks omitted.) State v. Vitale, supra, 197 Conn.

411–12.

It is also clear that ‘‘[i]nterrogation, as conceptualized

in the Miranda opinion, must reflect a measure of com-

pulsion above and beyond that inherent in custody

itself. . . . Voluntary statements of any kind are not

barred by the fifth amendment.’’ (Citation omitted;

internal quotation marks omitted.) Id., 412; see also

United States v. Glen-Archila, 677 F.2d 809, 815 (11th

Cir.) (arrest does not transform situation into one of

‘‘functional interrogation’’), cert. denied, 459 U.S. 874,

103 S. Ct. 165, 74 L. Ed. 2d 137 (1982). ‘‘Any statement

given freely and voluntarily without any compelling

influences is, of course, admissible in evidence.’’

Miranda v. Arizona, supra, 384 U.S. 478.

In Vitale, this court found that statements made by

a defendant to a uniformed corrections officer after

being arrested and while confined to a cell in a correc-

tional center were not barred by Miranda. State v.

Vitale, supra, 197 Conn. 409–12. In doing so, this court

reasoned as follows: ‘‘It is clear from the record that the

statements in question were not the result of conduct

designed to elicit incriminating statements. They were

volunteered by the defendant during a general conversa-

tion between him and [the corrections officer], wherein

the defendant spoke freely about the offenses with

which he was charged. Although there is no doubt that

the defendant was in custody, his statements were not

in response to interrogation.’’ Id., 412. Similarly, in the

present case, the defendant, himself, initiated the con-

versation with Morris during the booking process. The

trial court found that, other than ‘‘biographical’’ ques-

tions, Morris ‘‘made no inquiries of the defendant.’’

Instead, the defendant volunteered that he was ‘‘not

the same person that was arrested in New York fifteen

years ago.’’ Therefore, that statement and the state-

ments that followed were admissible. See State v. Mul-

lins, supra, 288 Conn. 365–66 (no interrogation where

defendant initiated conversation with police); cf. State

v. Gonzalez, 302 Conn. 287, 297–98, 25 A.3d 648 (2011)

(officer’s statement to defendant in interview room that

‘‘it was his opportunity to tell his side of the story’’

was functional equivalent of interrogation because it

explicitly sought statements from defendant regarding

his involvement in crime).

The defendant asserts that the fact that Morris used

a ruse concerning the release of the defendant’s vehicle

to get the defendant to come to the police station dem-

onstrates a level of coercion sufficient to establish that

the statements following the arrest are barred by the

fifth amendment. We disagree. It is undisputed that

Morris intended the ruse concerning the release of the

defendant’s vehicle to subject the defendant to custody

in a location that was deemed more safe than attempting

to place the defendant in custody inside of his home;

the plan was not designed to subject the defendant to

an interrogation.

Indeed, the evidence established that the defendant

did not make any incriminating statements at the time

he was being arrested or when he first discovered the

ruse. Instead, the defendant made statements concern-

ing his New York arrest and that no one picked him

out of a lineup after Morris and other officers arrested

him and escorted him to the booking area. Therefore,

the ruse did not cause the defendant’s statements. Fur-

thermore, Morris testified that he never asked the defen-

dant any questions that would have elicited those

statements. To the contrary, Morris informed the defen-

dant that he would not be asking him any questions

and gave him the opportunity to contact an attorney.

On the basis of these facts, we conclude that the defen-

dant was not subjected to an interrogation before mak-

ing his statements to police on September 19, 2012.

Because the defendant was not in custody during

the search of his home on June 28, 2012, and was not

subjected to an interrogation before making his state-

ments to the police on September 19, 2012, we conclude

that the trial court properly denied the defendant’s

motion to suppress.

II

The defendant next claims that the trial court improp-

erly admitted testimony from Morris regarding cell

phone data and maps regarding cell tower coverage

areas without determining that the evidence was based

on reliable scientific principles under State v. Porter,

241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert. denied,

523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

In response, the state does not assert that Morris did

not provide expert testimony, but instead claims that

a Porter hearing was not required because Morris did

not provide expert testimony based on scientific evi-

dence. Further, the state asserts that even if Morris’

testimony was improperly admitted into evidence, it

was harmless. We agree with the defendant that the

trial court abused its discretion by allowing Morris to

testify about cell phone data without qualifying him as

an expert witness, but find that the error was harmless.

The following additional facts are relevant to the

resolution of this issue. Prior to trial, the defendant filed

a motion in limine seeking to preclude the admission of

cell phone data and requested a hearing pursuant to

State v. Porter, supra, 241 Conn. 57. The trial court

postponed ruling on the defendant’s motion until trial.

Outside of the presence of the jury, the trial court

allowed the state to make its offer of proof regarding

the cell phone data. In its first offer of proof, the state

presented Cherylene Paddock, an employee of Verizon,

who was the custodian of records. After hearing her

testimony, the trial court ruled that Paddock could not

give an ‘‘engineering or technical opinion’’ based upon

the records. On October 25, 2013, the trial court revis-

ited whether Paddock was qualified to testify about

issues such as call strength and whether cell calls con-

nect to the cell tower closest to the cell phone.

After she was questioned further regarding her train-

ing at Verizon, the court ruled as follows: ‘‘I ruled yester-

day that . . . Paddock is an expert as to records. She

has indicated that by her testimony. She has indicated

that she is the custodian of records. She is not an expert

as to scientific or technological type issues. She’s indi-

cated that by the testimony she’s given as well as her

admissions, her statements. She has indicated and we

all note it by her testimony that she cannot testify about,

I guess for lack of a better term, I’m using her term,

engineer related questions including range from cell

phone to a particular [cell] tower because her basis of

knowledge on this topic was not experience or educa-

tion but rather someone told her what to say. The ruling

allowed initially that the records were admissible sub-

ject to some redaction. . . . Paddock testified briefly

and then continued to today.

‘‘The court continued to consider this issue about the

relevancy of the cell tower location information without

a correlation to where the cell phone would be approxi-

mately located with reference to the [cell] tower

because the basis of my understanding and thought

process if there were no range indications then a jury

would not know if a cell phone caller was standing ten

feet from the [cell] tower or ten miles away. So the

court . . . reviewed the testimony . . . of . . . Pad-

dock, and there was testimony concerning the location

of the [cell] tower with reference to a cell phone [and]

testimony [that the cell phone] would be picking up the

closest [cell] tower. I wanted to clarify that so I listened

to her testimony that was recorded and we brought her

in this morning and I appreciate the state bringing her

in for that purpose. The court inquired of her . . . basis

of knowledge to that fact being that the cell phone

calls [are] picked up by the closest [cell] tower. She’s

indicated that that was on the record but basically that

it came from her training to be a custodian of records.

So the court is still faced with the relevancy argument

not cleared up by the further testimony of . . .

Paddock.

‘‘So reviewing the records that have been offered,

cell phone information concerning . . . phone calls

made from an out-of-state location is within the records.

I think it was questioned by [defense counsel] about

roaming. So that is on the record and without a need

for specified, or specific, or expert knowledge. So the

records of cell phone calls between June [19 and 22],

the court says are relevant and are allowed. Cell phone

information from the records concerning in state, out-

of-state issues between June 12 and 14, again are they

made in state or are they made out of state. There again

is no need for specified knowledge and that is allowed.

However, the specified calls on June 1 and 22, and I’m

speaking about later in the day on June 22, are offered

for a specific cell . . . tower location and an approxi-

mate location of where the user is involves a specific

knowledge. Someone needs to come in with knowledge

and a basis of knowledge other than someone told her.’’

Thus, the court concluded as follows: ‘‘My ruling is

obviously, the records are custodian issues and the

records under a business record, but specifically . . .

Paddock is precluded from testifying about cell . . .

tower locations on the date and time of the incident.

Those are those dates that we talked about, those

five dates.’’

The state then made a second offer of proof through

Morris. Morris testified that, approximately five months

before trial, he had attended a three day training in

Massachusetts on ‘‘advanced cell phone investigations’’

and mapping of cell towers from phone call ‘‘records

that we receive from [cell phone] companies.’’ Morris

testified that he had worked with cell phone records

‘‘[n]umerous, numerous times . . . [w]ay more than

ten.’’ Morris explained that in the training he had

learned how to use computer software entitled Micro-

soft Streets and Trips to analyze data from a cellular

provider. Specifically, Morris testified that he could use

the program to map cell towers that may have handled

calls and to show the coverage area of those calls. He

briefly described the terms ‘‘azimuth’’ and ‘‘bismuth’’

and explained that those terms defined the coverage

area of the cell tower.

The state then asked Morris whether he had used

‘‘this exercise’’ on the cell phone records provided by

Verizon for the defendant’s cell phone. Morris

responded that he had used the data provided by Veri-

zon to create certain maps showing cell tower coverage.

Morris further testified that his use of the data provided

by Verizon enabled him to conclude that a cell tower

located approximately 1200 feet from the grocery store

where the victim had shopped had ‘‘handled calls made

from [the defendant’s] cell phone at three different

times’’ while the victim was shopping there. Morris fur-

ther testified that he had also completed a similar analy-

sis for the victim’s home address and had found that

there were calls from the defendant’s cell phone

accessing a cell tower nearby. Morris further indicated

that he could go ‘‘through the same exercise’’ for other

locations and that his conclusions would be based on

his ‘‘training and experience.’’ On cross-examination,

when asked how he determined an azimuth, bismuth

and something called an ‘‘optimal bismuth,’’ Morris

stated that they are provided by the records that he

obtains from any given cell provider. Morris agreed that

he had been instructed to use ‘‘extreme caution when

making any firm conclusion about coverage area’’ and

he acknowledged that network congestion, weather,

maintenance issues, natural topology, thick foliage, and

manmade structures can affect coverage.

The trial court then ruled that the state had met its

burden of establishing the reliability of the proffered

evidence and that Morris was qualified by his expertise

to analyze cell phone data provided in Verizon records.

The trial court ruled as follows: ‘‘The court and counsel

may recall that when I amended my ruling of yesterday

this morning, the crux or the keystone of the ruling

was that the specified calls on June 1 and 22 . . . are

offered for a specific cell tower location and approxi-

mate cell phone user location and involves a specific

knowledge. Someone needs to come in with knowledge

of and basis of knowledge. . . . That was what the

. . . crux [of the court’s] concern was.

‘‘After listening to [Morris], the court feels that [he]

has the education and training to competently testify

[about cell] tower[s] and how [they connect] to cell

phones. . . . I’m reviewing his experience. He’s done

it before. He’s been working on it for a while. That’s

his expertise within the police department. He has train-

ing on the job and he has educational training. He specif-

ically indicated what his educational training [is] and

it very much appears to this court that [defense counsel]

knows what that educational training is because he was

cross-examining him about what occurred at that class.

So the educational training is there. The training on the

job is there. The expertise is there. And he testified in

the offer of proof appearing to be knowledgeable of

the subject, a knowledge that would aid the finders

of fact.’’

The trial court admitted the Verizon cell phone

records as a full exhibit through Paddock. Morris then

testified before the jury. During his testimony, the state

admitted into evidence, over defense counsel’s objec-

tion, maps Morris made depicting cell towers that were

used in cell phone calls and their coverage areas.

Defense counsel then cross-examined Morris.

We begin with our standard of review. ‘‘We review a

trial court’s decision [regarding the admission of] expert

testimony for an abuse of discretion. . . . We afford

our trial courts wide discretion in determining whether

to admit expert testimony and, unless the trial court’s

decision is unreasonable, made on untenable grounds

. . . or involves a clear misconception of the law, we

will not disturb its decision. . . . Although we afford

trial courts significant discretion, [w]here it clearly

appears that an expert witness is qualified to give an

opinion, the exclusion of his testimony may be found

to be [an abuse of discretion]. . . . To the extent the

trial court makes factual findings to support its deci-

sion, we will accept those findings unless they are

clearly improper. . . . If we determine that a court

acted improperly with respect to the admissibility of

expert testimony, we will reverse the trial court’s judg-

ment and grant a new trial only if the impropriety was

harmful to the appealing party. . . .

‘‘We also note our standards for admitting expert

testimony. Expert testimony should be admitted when:

(1) the witness has a special skill or knowledge directly

applicable to a matter in issue, (2) that skill or knowl-

edge is not common to the average person, and (3)

the testimony would be helpful to the court or jury in

considering the issues. . . . [T]o render an expert opin-

ion the witness must be qualified to do so and there must

be a factual basis for the opinion.’’ (Citations omitted;

internal quotation marks omitted.) Weaver v. McKnight,

313 Conn. 393, 405–406, 97 A.3d 920 (2014).

‘‘In Porter, we followed the United States Supreme

Court’s decision in Daubert v. Merrell Dow Pharmaceu-

ticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d

469 (1993), and held that testimony based on scientific

evidence should be subjected to a flexible test to deter-

mine the reliability of methods used to reach a particu-

lar conclusion. . . . A Porter analysis involves a two

part inquiry that assesses the reliability and relevance

of the witness’ methods. . . . First, the party offering

the expert testimony must show that the expert’s meth-

ods for reaching his conclusion are reliable. A nonex-

haustive list of factors for the court to consider include:

general acceptance in the relevant scientific commu-

nity; whether the methodology underlying the scientific

evidence has been tested and subjected to peer review;

the known or potential rate of error; the prestige and

background of the expert witness supporting the evi-

dence; the extent to which the technique at issue relies

[on] subjective judgments made by the expert rather

than on objectively verifiable criteria; whether the

expert can present and explain the data and methodol-

ogy underlying the testimony in a manner that assists

the jury in drawing conclusions therefrom; and whether

the technique or methodology was developed solely

for purposes of litigation. . . . Second, the proposed

scientific testimony must be demonstrably relevant to

the facts of the particular case in which it is offered,

and not simply be valid in the abstract. . . . Put

another way, the proponent of scientific evidence must

establish that the specific scientific testimony at issue

is, in fact, derived from and based [on] . . . [scientifi-

cally reliable] methodology. . . .

‘‘Additionally, we recognized in Porter that, [t]he

actual operation of each [Porter] factor, as is the deter-

mination of which factors should be considered at all,

depends greatly on the specific context of each case

in which each particular [threshold admissibility] analy-

sis is conducted. . . . There is, however, a critical pos-

tulate that underlies the Porter factors and indeed

underlies the entire Porter analysis: in order for the

trial court, in the performance of its role as the gate-

keeper for scientific evidence, properly to assess the

threshold admissibility of scientific evidence, the pro-

ponent of the evidence must provide a sufficient articu-

lation of the methodology underlying the scientific

evidence. Without such an articulation, the trial court

is entirely ill-equipped to determine if the scientific

evidence is reliable upon consideration of the various

Porter factors. Furthermore, without a clear under-

standing as to the methodology and its workings, the

trial court also cannot properly undertake its analysis

under the fit requirement of Porter, ensuring that the

proffered scientific evidence, in fact, is based upon the

reliable methodology articulated.’’ (Citations omitted;

internal quotation marks omitted.) Fleming v. Dionisio,

317 Conn. 498, 506–507, 119 A.3d 531 (2015); see also

Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 180–

81, 847 A.2d 978 (2004).

A

We begin with the threshold issue of whether the

trial court allowed Morris to testify regarding the cell

phone data as an expert witness. The following addi-

tional facts are relevant to our resolution of this issue.

During the charging conference, the trial court engaged

in the following colloquy with the prosecutor and

defense counsel:

‘‘The Court: . . . I have listed two experts . . . Dan

Renstrom, Forensic Examiner I from the Connecticut

State Forensic Laboratory, [and] Brunetti, supervisor

from the latent prints section of [the] Connecticut State

Forensic Laboratory. Did I miss anybody?

‘‘[The Prosecutor]: I think for part of . . . Morris’

testimony, Your Honor, at least the court alluded to his

expertise in regard to the cell phone issue.

‘‘[Defense Counsel]: . . . That may have gone to

something outside the presence of the jury. I don’t

believe that there was any reference made to him being

an expert when he was called to the stand in front of

the jury.

‘‘The Court: Right. . . . I think he was considered

not an expert, but somebody, for lack of a better term,

superior knowledge on the subject matter. And I don’t

think he gave any opinions if my recollection serves me.

‘‘[The Prosecutor]: No, I don’t believe he gave any

opinions, Your Honor, but I know that the court, and

it was outside the presence of the jury, did refer to him

with that characterization.

‘‘The Court: Right. Okay. So I take it that you don’t

want to include him.

‘‘[Defense Counsel]: No, I would not include him.

‘‘The Court: All right. I did not include him because

I didn’t think he was an expert, just somebody with

superior knowledge. So I’m just going to leave it right

now with . . . Renstrom and . . . Brunetti with the

standard instruction I always give on that.’’

This court recently explained that ‘‘[e]xpert opinions

concerning scientific, technical or other specialized

knowledge may be necessary to assist the trier of fact

in understanding the evidence or in determining a fact

in issue. . . . Although expert testimony may be help-

ful in many instances, it is required only when the ques-

tion involved goes beyond the field of ordinary

knowledge and experience of the trier of fact. . . . The

trier of fact need not close its eyes to matters of com-

mon knowledge solely because the evidence includes

no expert testimony on those matters. . . . Whether

expert testimony is required in a particular case is deter-

mined on a case-by-case basis and its necessity is depen-

dent on whether the issues are of sufficient complexity

to warrant the use of the testimony as assistance to the

. . . court.’’ (Citations omitted; internal quotation

marks omitted.) State v. Buhl, 321 Conn. 688, 700, 138

A.3d 868 (2016).

This court has not had the opportunity to address

whether a police officer needed to be qualified as an

expert witness before he could be allowed to testify

regarding cell phone data, but the Court of Appeals of

Maryland addressed this issue in State v. Payne, 440

Md. 680, 700, 104 A.3d 142 (2014). In that case, the state

asserted that the police officer need not be qualified

as a witness because he ‘‘did not render an opinion as

to the location of [the defendants’] cell phones and that

he merely read [the cell phone company’s] business

records and followed its directions in interpreting the

data.’’ Id. The court rejected the state’s claim and con-

cluded that the police officer ‘‘engaged in a process to

derive his conclusion that [the defendants’] cell phones

communicated through [specific] cell towers that was

beyond the ken of an average person; his conclusions

regarding the communication path also required that

he be qualified as an expert witness. Although the [s]tate

urges that a layperson with the same phone records

and instructions could have determined the location of

the cell sites (even aside from the fact that the jury

never received the full records and that the step-by-

step instructions were developed from another source),

additional training and experience were required to par-

lay the process from which [the police officer] derived

the communication path of each call.’’ (Internal quota-

tion marks omitted.) Id., 700–701.

Similarly, in the present case, although Morris relied

on data he obtained from Verizon to conduct his analy-

sis, the process he used to arrive at his conclusions

was beyond the ken of average juror. Indeed, even the

trial court acknowledged that Morris had an expertise

that allowed him to be more knowledgeable on the

subject of cell phone data than the average juror.

The trial court explained that ‘‘Morris has the educa-

tion and training to competently testify [about cell]

tower[s] and how [they connect] to cell phones. . . .

I’m reviewing his experience. He’s done it before. He’s

been working on it for a while. That’s his expertise

within the police department. He has training on the

job and he has educational training. He specifically indi-

cated what his educational training [is] and it very much

appears to this court that [defense counsel] knows what

that educational training is because he was cross-exam-

ining him about what occurred at that class. So the

educational training is there. The training on the job is

there. The expertise is there. And he testified in the

offer of proof appearing to be knowledgeable of the

subject, a knowledge that would aid the finders of fact.’’

The trial court explicitly stated that Morris was ‘‘some-

body with superior knowledge.’’

On the basis of these findings, we conclude that the

trial court admitted Morris’ testimony as an expert wit-

ness, one who could aid the trier of fact in an area that

is ‘‘beyond the ken of the average juror.’’5 (Internal

quotation marks omitted.) State v. Williams, 317 Conn.

691, 703, 119 A.3d 1194 (2015).

B

Having determined that the testimony provided by

Morris was expert testimony, now we must examine

whether the evidence introduced through Morris was

of a scientific nature such that a hearing under State

v. Porter, supra, 241 Conn. 57, was required.

In the present case, Morris testified at trial regarding

the cell phone data provided to him by Verizon. The

data, in the form of a list of cell towers and calls made

by a cell phone that was registered to the defendant,

was introduced as a full exhibit as a business record

through Paddock, the custodian of records for Verizon.

Although Morris was asked to review the data and

stated that he recognized the data as that which he

had received from Verizon in an electronic format, his

testimony did not come directly from the data provided

by Verizon.6 Instead, Morris’ testimony explained vari-

ous maps that he had created by inputting the data

provided by Verizon into a computer program called

Microsoft Streets and Trips.

Morris explained the process for making the maps

as follows: ‘‘I would import the data that comes through

on a Microsoft Excel spreadsheet from Verizon . . .

into a software product that we use called Microsoft

Streets and Trips. It’s just a mapping software program

that can . . . take the latitude and longitude of the

cell tower.

‘‘Now, the latitude and longitude of the cell tower is

. . . provided to me by Verizon . . . . They give me a

list of all the cell towers that they have in the state of

Connecticut . . . the tower number that they assign to

that [cell] tower, and the latitude and longitude for that

[cell] tower.

‘‘And then . . . I look at the list to see the call that

I’m looking for, the one that I want to map onto it, so

in this case the call at 10:49 a.m., I would look there

to see which . . . cell tower did it access and which

cell face did it access and then I’d plot that on the map

using what the azimuth is. . . .

‘‘So in this particular map here, the azimuth is 270

degrees, so I start out with a red line indicating . . .

the azimuth, and then they tell me that the . . . optimal

beam width is 65.5, so I’d split that in half on either

side of the azimuth, so that gives me a pie shaped figure

of what the strongest signal of the cell phone coverage

would be. And then I would take, knowing that there’s

only three cell faces for this [cell] tower for Verizon, I

would use 60 degrees on each side, which brings us

again, to the 120 [degrees] for that particular cell face

and make a bigger pie to show that that cell face can

handle this entire area.’’

Morris further testified as follows:

‘‘[The Prosecutor]: And what does that pie . . .

tell us?

‘‘[Morris]: It tells you that . . . the call most likely

came from that . . . section in there. . . .

‘‘[The Prosecutor]: And . . . what did you mean

by that?

‘‘[Morris]: The . . . colored area that I shaded in

between the outer lines of the . . . total beam width

and the exterior coverage for . . . that [cell] tower,

anything inside those borders is where the call most

likely came from. And the way I determined the border

for how far away that call would most likely have origi-

nated from is by looking at all the other [cell] towers

on the map to see the halfway point between this [cell]

tower and the next [cell] tower over there, the halfway

point between the [cell] tower here and the next [cell]

tower over there and just all the way in a circle and

creating this—it’s not always a perfect circle because

[cell] towers are placed in different positions.’’

Morris then testified about cell phone calls made on

the dates of the Berlin and Wethersfield incidents. See

footnote 1 of this opinion. For each of these cell phone

calls, he made maps using the process previously

described. Specifically, Morris created a cell tower cov-

erage map for calls associated with the defendant’s cell

phone on June 22, 2012, at 10:05 a.m., 10:10 a.m. and

10:13 a.m., the approximate time during which the vic-

tim was inside of the grocery store. Then, in response

to questioning from the state, Morris pointed to the

location of the grocery store on the map that he had

created, showing that it was within the coverage area

of the cell tower accessed by the defendant’s cell phone

during those calls. Morris also testified that he had

created a cell tower coverage map for calls associated

with the defendant’s cell phone on June 22, 2012, at

10:41 a.m. and 10:46 a.m., the approximate time of the

attack at the victim’s home. Then, in response to ques-

tioning from the state, Morris pointed to the location

of the victim’s home on the map he created, showing

that the victim’s home was within the coverage area of

the cell tower accessed by the defendant’s cell phone

during those calls.

The defendant asserts that the trial court abused its

discretion by admitting testimonial and documentary

evidence through Morris without determining that the

evidence was based on reliable scientific methodology.

This court has not previously had the opportunity to

examine the criteria for determining the admissibility

of cell phone data. The issue has, however, been

addressed in federal court. See United States v. Mack,

United States District Court, Docket No. 3:13CR00054

(MPS) (D. Conn. November 19, 2014).

In Mack, the government ‘‘propose[d] to elicit from

[the government’s expert witness, a special agent, cer-

tain] testimony about methods that [the Cellular Analy-

sis and Survey Team within the Federal Bureau of

Investigation] uses to estimate the geographical cover-

age areas of certain cell . . . towers and, using these

methods, an opinion about the approximate areas in

which [the cell phones associated with the defendants]

were located when they made and received specific cell

phone calls around the time [of the crime].’’ Id. The

court conducted a Daubert hearing in which the agent

testified about his qualifications and the methodology

he used to arrive at his conclusions. Id. After the hear-

ing, the court concluded that the agent’s methodology

was reliable based on the fact that it was ‘‘commonly

relied upon by law enforcement and the cell phone

industry,’’ that ‘‘he himself has used those methods

many times with good results, including in kidnapping

and missing-persons investigations,’’ and that ‘‘in his

experience, it is an unusual case in which the actual

coverage area of a cell tower differs greatly from the

estimation derived from this method.’’ Id. On the basis

of the foregoing, the court concluded that the methodol-

ogy was sufficiently reliable to meet the requirements

of Daubert and that, therefore, the government’s expert

could testify regarding his conclusions. Id.

The approach of the United States District Court for

the District of Connecticut is consistent with decisions

from many other federal courts that have required the

government to demonstrate that the methodology used

by their expert witness on cell phone data ‘‘clears the

hurdle imposed by Daubert . . . .’’ United States v.

Machado-Erazo, 950 F. Supp. 2d 49, 56 (D.D.C. 2013);

see also United States v. Jones, 918 F. Supp. 2d 1, 5–6

(D.D.C. 2013); United States v. Davis, United States

District Court, Docket No. 11-60285-CR (ESH) (S.D. Fla.

May 17, 2013).

On the basis of the foregoing, we conclude that the

trial court improperly admitted testimony and docu-

mentary evidence in through Morris without qualifying

him as an expert and conducting a Porter hearing in

order to ensure that his testimony was based on reliable

scientific methodology.

C

Having concluded that the trial court improperly

admitted the cell phone data and cell tower coverage

maps into evidence, we must determine whether the

error was harmless.

‘‘When an improper evidentiary ruling is not constitu-

tional in nature, the defendant bears the burden of dem-

onstrating that the error was harmful. . . . [W]hether

[an improper ruling] is harmless in a particular case

depends upon a number of factors, such as the impor-

tance of the witness’ testimony in the prosecution’s

case, whether the testimony was cumulative, the pres-

ence or absence of evidence corroborating or contra-

dicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s

case. . . . Most importantly, we must examine the

impact of the . . . evidence on the trier of fact and

the result of the trial. . . . [T]he proper standard for

determining whether an erroneous evidentiary ruling

is harmless should be whether the jury’s verdict was

substantially swayed by the error. . . . Accordingly, a

nonconstitutional error is harmless when an appellate

court has a fair assurance that the error did not substan-

tially affect the verdict.’’ (Internal quotation marks omit-

ted.) State v. Favoccia, 306 Conn. 770, 808–809, 51 A.3d

1002 (2012). We note that, in the present case, the defen-

dant makes no claim of constitutional error. For the

following reasons, we conclude that the trial court’s

improper admission of Morris’ testimony regarding the

cell phone data was harmless.

After reviewing the evidence in the present case, we

cannot conclude that the admission of Morris’ testi-

mony and the cell tower coverage maps substantially

affected the verdict in the present case. First and fore-

most, the defendant was charged with crimes relating to

two separate incidents and Morris’ testimony regarding

cell phone data and cell tower coverage maps regarding

both incidents was entered into evidence. Nevertheless,

the jury acquitted the defendant on all charges related

to the Berlin incident. See footnote 1 of this opinion.

The fact that the jury was able to acquit the defendant

on some charges is strong evidence that the improperly

admitted evidence did not substantially affect the ver-

dict. See State v. Medrano, 308 Conn. 604, 629, 65 A.3d

503 (2013) (‘‘[t]he fact that the jury acquitted the defen-

dant of murder and found him guilty of manslaughter

in the first degree demonstrates that the jury believed

the defendant’s testimony, regardless of the court’s

[improper] instruction’’).7

Second, even without Morris’ testimony, the jury still

could conclude from the cell phone records themselves

that the defendant’s cell phone accessed cell towers in

Rocky Hill and Wethersfield on the date of the robbery,

which coincides with the victim’s testimony that she

was followed from the grocery store in Rocky Hill and

robbed at her home in Wethersfield.

Third, defense counsel rigorously cross-examined

Morris on the accuracy of the cell phone data. As a

result, Morris acknowledged that he could not guaran-

tee that his maps accurately reflect ‘‘the state of the

network on June 22, 2012,’’ that the cell phone’s connec-

tion with a specific cell tower does not necessarily mean

that it is connecting with the cell tower closest in range

and that he could not determine from the cell phone

records the exact location of the defendant’s cell phone.

Fourth, when compared to the other evidence of

guilt—namely, the fingerprint evidence, the victim’s tes-

timony, the surveillance video showing a vehicle of the

same make and model as that owned by the defendant,

the consciousness of guilt evidence, and the defendant’s

statements to police—we cannot conclude that Morris’

testimony substantially affected the verdict. Indeed, as

more fully discussed in part III A of this opinion, the

state presented overwhelming evidence of the defen-

dant’s identity as the perpetrator of the crimes. Accord-

ingly, we cannot conclude that the trial court’s improper

admission of Morris’ testimony regarding the cell phone

data and the cell tower coverage maps substantially

affected the jury’s verdict.

III

Finally, the defendant claims that there was insuffi-

cient evidence to support his convictions. Specifically,

the defendant asserts that there was insufficient evi-

dence to support his convictions of home invasion, rob-

bery in the first degree, larceny in the second degree,

and assault of an elderly person in the third degree

because the state failed to establish the element of

identity. The defendant also asserts that there was insuf-

ficient evidence to support his conviction of home inva-

sion because the state failed to establish that he was

armed with a deadly weapon. The state responds that

there was sufficient evidence to support the defendant’s

convictions on all counts. We agree with the state.

In reviewing a sufficiency of the evidence claim, we

apply a two part test. ‘‘First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so con-

strued and the inferences reasonably drawn therefrom

the jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defen-

dant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is

permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whether the cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt. . . . Moreover,

[w]here a group of facts are relied upon for proof of

an element of the crime it is their cumulative impact

that is to be weighed in deciding whether the standard

of proof beyond a reasonable doubt has been met and

each individual fact need not be proved in accordance

with that standard. It is only where a single fact is

essential to proof of an element, however, such as iden-

tification by means of fingerprint evidence, that such

evidence must support the inference of that fact beyond

a reasonable doubt. . . .

‘‘As we have often noted, however, proof beyond

a reasonable doubt does not mean proof beyond all

possible doubt . . . nor does proof beyond a reason-

able doubt require acceptance of every hypothesis of

innocence posed by the defendant that, had it been

found credible by the trier, would have resulted in an

acquittal. . . . On appeal, we do not ask whether there

is a reasonable view of the evidence that would support

a reasonable hypothesis of innocence. We ask, instead,

whether there is a reasonable view of the evidence that

supports the jury’s verdict of guilty. . . . Furthermore,

[i]t is immaterial to the probative force of the evidence

that it consists, in whole or in part, of circumstantial

rather than direct evidence.’’ (Internal quotation marks

omitted.) State v. Gonzalez, 311 Conn. 408, 419–20, 87

A.3d 1101 (2014); see also State v. Otto, 305 Conn. 51,

65–66, 43 A.3d 629 (2012).

A

The defendant asserts that there was insufficient evi-

dence to support the jury’s finding that the defendant

was the perpetrator of the crimes for which he was

convicted. Specifically, the defendant asserts that this

court’s prior holding in State v. Payne, 186 Conn. 179,

440 A.2d 280 (1982), requires reversal in the present

case. In response, the state claims that the evidence

was sufficient to establish identity and that State v.

Payne, supra, 186 Conn. 179, does not require reversal

because the defendant’s conviction in the present case

was not based on fingerprint evidence alone. We agree

with the state.

We begin with a review of State v. Payne, supra, 186

Conn. 179. In that case, the defendant claimed that the

evidence against him was insufficient as a matter of law

because ‘‘of the [well established] rule that a conviction

may not stand on fingerprint evidence alone unless the

prints were found under such circumstances that they

could only have been impressed at the time the crime

was perpetrated.’’ Id., 182. In considering the defen-

dant’s claim, this court acknowledged that it had pre-

viously recognized and relied on the rule asserted by

the defendant. Id.

Indeed, this court previously had reversed a convic-

tion that was based primarily upon fingerprint evidence

in State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972),

concluding ‘‘[t]he fact that the defendant’s fingerprints

were on the rearview mirror of the abandoned vehicle,

in and of itself, is of no moment. Unless it can be shown

that the circumstances are such that the fingerprints

could have been impressed only at the time the crime

was perpetrated, the presence of the defendant’s finger-

prints on the rearview mirror does not establish his

connection with the crime charged.’’ In Mayell, because

the defendant was ‘‘regularly employed to drive the

vehicle and was rightfully in it six hours before the time

the crime was committed,’’ this court concluded that

the presence of the fingerprints on the rearview mirror

were not sufficient to establish his connection with the

crime. Id.

In State v. Payne, supra, 186 Conn. 179, the state did

not challenge the rule used in Mayell and relied upon

by the defendant, nor did the state assert that the defen-

dant’s fingerprints could only have been impressed dur-

ing the commission of the crime. Indeed, the state did

not ‘‘present any evidence dating the defendant’s finger-

prints or otherwise limiting their impression to the cir-

cumstances of the crime.’’ Id., 183. Instead, the state

asserted that the rule applied in Mayell was not applica-

ble because the state had presented other evidence of

identity upon which the jury could have relied in reach-

ing their verdict against the defendant. Id. Specifically,

the state asserted that a statement by the victim describ-

ing ‘‘one of the perpetrators as a short, black male no

more than sixteen or seventeen years old’’ provided

other evidence of identity. Id.

This court rejected this claim, concluding that

‘‘[a]lthough the description relied upon by the state

arguably fits the defendant, it is far too general to pro-

vide any corroboration of the fingerprint evidence. That

the general description is insufficient to tie the defen-

dant to the crime is readily apparent when it is recalled

that the victim, the very one who provided that descrip-

tion, was unable to identify the defendant as the person

he described.’’ (Footnote omitted.) Id., 184. This court

therefore reversed the conviction of the defendant, con-

cluding that ‘‘the [well established] rule that a convic-

tion may not stand on fingerprint evidence alone unless

the prints were found under such circumstances that

they could only have been impressed at the time the

crime was perpetrated’’ applied. Id., 182, 184.

In the present case, the evidence establishing the

identity of the defendant was not based on the finger-

print evidence alone.8 To the contrary, the state pre-

sented numerous other key pieces of evidence to

establish the element of identity. First, the state pre-

sented evidence regarding the victim’s description of

the perpetrator of the crime and that the defendant fit

that description.

Second, the state presented evidence regarding the

vehicle that the victim identified as being driven by the

perpetrator of the crime. The evidence established that

the defendant owned a vehicle that was the same make

and model as the vehicle the victim identified as being

driven by the perpetrator of the crime.

Third, the state presented evidence regarding the

vehicle that drove out of the parking lot behind the

victim in the surveillance video from the grocery store.

The evidence established that the defendant’s vehicle

was the same make and model as the vehicle in the

surveillance video from the grocery store on the date

of the crime. The evidence also established that the

defendant’s vehicle had other identifiable characteris-

tics—namely, a black scuff mark on the rear bumper

and the prior indication of an E-ZPass or other transpon-

der device attached to the windshield—as the vehicle

in the surveillance video.

Fourth, the state offered evidence of consciousness

of guilt. The evidence established that the defendant

engaged in verbal and nonverbal conduct, such as

changing his vehicle’s appearance, offering unsolicited

details to the police and attempting to distance himself

from the crime that can fairly be inferred to have been

influenced by the criminal act. See State v. Weinberg,

215 Conn. 231, 255, 575 A.2d 1003 (‘‘he engaged in verbal

and nonverbal conduct, such as changing both his per-

sonal appearance and his car’s appearance and offering

unsolicited details to the police, that can fairly be

inferred to have been influenced by the criminal act’’),

cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d

413 (1990). In the present case, the state introduced

evidence to establish that the defendant made changes

to his vehicle’s appearance after the police released a

statement to the media containing a description of the

vehicle involved in the incident. Specifically, Morris and

Floyd testified that the front license plate had been

recently removed. Morris also testified that a New York

Giants bumper sticker had been placed on the vehicle’s

rear bumper and that paint had been applied to the

black scuff mark on the rear bumper after the media

released the report with a description of the vehicle.

Furthermore, the state also introduced evidence to

establish that the defendant volunteered statements to

the police regarding the changes to his vehicle. Specifi-

cally, while officers were executing the search warrant

of his home, the defendant volunteered that the New

York Giants bumper sticker had been on his vehicle’s

rear bumper since 2011, which is inconsistent with the

photograph taken by Morris on June 25, 2012. During

this time, the defendant also told police that his front

license plate had been knocked off the vehicle as a

result of a motor vehicle accident in 2011, which was

inconsistent with photographs obtained from the state

license plate reader database on June 1, 2012, in which

his vehicle’s front license plate was intact and there

appeared to be no damage to the front end of his vehicle.

The state also introduced evidence that the defendant

attempted to distance himself from the crime. Specifi-

cally, the defendant instructed Collins to claim owner-

ship of the BB gun if the police asked about it and

instructed Prince to say that he was out of state with

her on the day of the incident. It is well established

that ‘‘[i]n a criminal trial, it is relevant to show the

conduct of an accused, as well as any statement made

by him subsequent to the alleged criminal act, which

may fairly be inferred to have been influenced by the

criminal act. . . . The state of mind which is character-

ized as guilty consciousness or consciousness of guilt is

strong evidence that the person is indeed guilty . . . .’’

(Citations omitted; internal quotation marks omitted.)

State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984);

see id., 656 (attempt to fabricate alibi reflects conscious-

ness of guilt); see also 2 J. Wigmore, Evidence (Chad-

bourn Rev. 1979) § 273, p. 115.

On the basis of the foregoing evidence, we cannot

conclude that State v. Payne, supra, 186 Conn. 179,

requires the reversal of the defendant’s conviction.

Unlike that case, the present case is not one in which

the only evidence of identity is fingerprint evidence. To

the contrary, construing the evidence in the light most

favorable to sustaining the verdict, and the inferences

reasonably drawn therefrom, the jury reasonably could

have concluded that the cumulative force of the evi-

dence established the element of identity beyond a rea-

sonable doubt.

B

The defendant next asserts that the state failed to

present sufficient evidence that he was ‘‘ ‘armed with

a deadly weapon,’ ’’ an element required for his convic-

tions of both home invasion and robbery in the first

degree. Specifically, the defendant claims that, although

the evidence established that he owned an operable BB

gun, it failed to establish that he used the BB gun in

the attack. The defendant claims that, without this con-

nection, the jury reasonably could not have concluded

that he was ‘‘armed with a deadly weapon’’ for purposes

of §§ 53a-100aa (a) (2)9 and 53a-134 (a) (2).10 The state

responds that the evidence sufficiently established that

the defendant committed the crimes with the BB gun

that was later found in his residence. We agree with

the state.

As charged in the present case, both §§ 53a-100aa (a)

(2) and 53a-134 (a) (2) required proof that the defendant

was armed with a deadly weapon. The defendant and

the state do not dispute what the term ‘‘armed with a

deadly weapon’’ means. It is undisputed that the term

‘‘armed’’ means that the defendant physically possessed

the weapon. See State v. Tinsley, 181 Conn. 388, 399–

400, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086,

101 S. Ct. 874, 66 L. Ed. 2d 811 (1981), overruled in part

on other grounds by State v. Pinnock, 220 Conn. 765,

788, 601 A.2d 521 (1992). A ‘‘ ‘[d]eadly weapon’ ’’ is ‘‘any

weapon, whether loaded or unloaded, from which a

shot may be discharged . . . .’’ General Statutes § 53a-

3 (6). Thus, if the weapon is a firearm, the state must

prove that it is operable, meaning that it is capable of

firing a shot. See General Statutes § 53a-3 (19) (defining

firearm as weapon from which shot may be discharged).

Furthermore, it is undisputed that an operable BB gun

is a deadly weapon. State v. Grant, 294 Conn. 151,

157–61, 982 A.2d 169 (2009).

At trial, the victim testified that, during the robbery,

the perpetrator held a ‘‘black gun’’ in his hand. When the

police executed the search warrant at the defendant’s

residence, they seized a black handheld BB gun, which

was later determined to be capable of discharging a

shot. The appearance of the BB gun matched the vic-

tim’s description of the gun used during the robbery.

We conclude that the fact that a BB gun matching

the victim’s description of the gun used during the rob-

bery was found in the defendant’s residence is sufficient

to establish that the BB gun was used in the robbery.

See, e.g., State v. Miles, 97 Conn. App. 236, 241, 903

A.2d 675 (2006) (gun recovered months after crime met

witness’ description of ‘‘small silver handgun’’ seen at

crime); State v. Hardy, 85 Conn. App. 708, 717, 858 A.2d

845 (2004) (victim’s testimony that gun was ‘‘ ‘a little

silver’ ’’ in color and silver air pistol found in defendant’s

apartment sufficient to establish that air pistol was gun

used in robbery), aff’d, 278 Conn. 113, 896 A.2d 755

(2006).

Moreover, the state presented evidence that the

defendant told Collins to tell the police that the BB gun

belonged to Collins. The jury reasonably could have

inferred that the defendant instructed Collins in this

manner because the defendant knew that the BB gun

was involved in the robbery.

The defendant relies on State v. Coleman, 35 Conn.

App. 279, 287, 646 A.2d 213, cert. denied, 231 Conn. 928,

648 A.2d 879 (1994), to support his claim that the state

was required to prove a nexus between the BB gun

found in the defendant’s home and the gun used in the

robbery in order for the BB gun to have probative value.

We find State v. Coleman, supra, 35 Conn. App. 279, to

be unpersuasive. First, in Coleman, the Appellate Court

concluded that the trial court had abused its discretion

in admitting testimony about knives found in the defen-

dant’s car without any evidence linking them to the

robbery, but the admission was nevertheless harmless.

Id., 285–89. In the present case, however, the defen-

dant’s claim is based on insufficient evidence, not that

the trial court improperly admitted evidence related to

the BB gun. Furthermore, in a different appeal involving

the same defendant and similar facts, this court con-

cluded that the Appellate Court had improperly con-

cluded that the trial court abused its discretion in

admitting testimony relating to the knives. State v. Cole-

man, 241 Conn. 784, 789, 699 A.2d 91 (1997). This court

reasoned as follows: ‘‘The trial testimony indicated that

the defendant had entered the victim’s apartment by

way of slits made in the window screen by a sharp

cutting instrument. The state introduced evidence of

the knives to show that the defendant, twenty-two hours

after the offense, had a number of sharp cutting instru-

ments at his immediate disposal.’’ Id., 789–90. This court

further explained that ‘‘[i]t is the generally accepted

rule that in a case in which the defendant is charged

with the offense of burglary, after proof of the burglary

has been introduced the prosecution may show that

the defendant had burglar tools or implements in his

possession soon after the time of the commission of

the offense and may introduce such tools or implements

in evidence. . . . Sanders v. United States, 238 F.2d

145, 147 (10th Cir. 1956); see also State v. Thomas, [205

Conn. 279, 283, 533 A.2d 553 (1987)] (where victim

bound by rope, testimony regarding clothesline in

defendant’s basement admissible to show defendant

had access to rope); State v. Miller, 202 Conn. 463, 482,

522 A.2d 249 (1987) (where victim bound by handcuffs,

evidence that handcuffs were used at defendant’s work-

place admissible to show defendant’s access to hand-

cuffs); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874

(1985) (where defendant threatened victim with gun,

evidence that gun with similar appearance was in defen-

dant’s possession shortly after crime admissible to

show defendant’s access to gun); State v. Paoletto, 181

Conn. 172, 184–86, 434 A.2d 954 (1980) (in burglary case

where entry was gained by forcibly tearing down door

of building, evidence of pry bar and screwdriver found

in defendant’s possession admissible to show defen-

dant’s access to type of burglary tools used).’’ (Internal

quotation marks omitted.) State v. Coleman, supra, 241

Conn. 790.

On the basis of the foregoing, we conclude that the

evidence of the BB gun found in the defendant’s home,

which matched the description of the weapon used by

the perpetrator of the crime, was sufficient for the jury

reasonably to have determined that the defendant was

armed with a deadly weapon.

The judgment is affirmed.

In this opinion the other justices concurred.

1

The defendant was also charged with home invasion in violation of § 53a-

100aa (a) (2), robbery in the first degree in violation of § 53a-134 (a) (2)

and larceny in the second degree in violation of § 53a-123 (a) (3) arising

out of an incident in Berlin. The trial court consolidated the two cases for

trial. After trial, the jury acquitted the defendant of all charges arising out

of the incident in Berlin.

2

The defendant appealed from the judgment of the trial court to the

Appellate Court, and we transferred the appeal to this court pursuant to

General Statutes § 51-199 (c) and Practice Book § 65-1.

3

In its brief, the state asserts that the defendant does not claim that he

was subjected to interrogation on June 28, 2012. We disagree, and conclude

that the defendant asserts that he was both in custody and subjected to

interrogation on June 28, 2012. Nevertheless, because we conclude that the

trial court properly determined that the defendant was not in custody when

he made statements to the police on June 28, 2012, we need not reach the

issue of whether he was subjected to interrogation.

4

The defendant asserts that he and Collins were ordered out of the vehicle

at gun point. The evidence at the suppression hearing was not definitive

and the trial court credited Patkoske’s testimony that he could not remember

whether he had brandished a weapon. The defendant has not challenged

that factual finding as clearly erroneous.

5

The defendant does not claim that the trial court’s failure to include

Morris in its instruction on expert witnesses was improper. Therefore, we

do not address that issue.

6

Although Morris indicated that the data he received from Verizon in an

electronic format was the same as that contained in state’s exhibit 58, he

also testified that the data he received from Verizon included information

about ‘‘which face on that cell tower the call is dealing with’’ and ‘‘something

called beam width,’’ we cannot find any information contained within state’s

exhibit 58 that clearly contains information regarding cell tower faces or

beam width.

7

The defendant asserts that the fact that the jury asked to hear Morris’

testimony regarding the cell phone data during deliberation demonstrates

that the testimony affected the verdict. We disagree. In the present case,

the jury asked approximately eight questions, some of which had multiple

parts, during deliberation. Most of those questions involved requests to

rehear portions of testimony. The jury’s request to rehear Morris’ testimony

was one of many portions of evidence that the jury asked to review during

deliberations. Under the facts of the present case, we cannot conclude that

the jury’s request to hear Morris’ testimony relating to the cell phone data

demonstrates that the evidence substantially affected the verdict.

8

Even assuming that there was no other evidence establishing the identity

of the defendant, the present case is distinguishable from State v. Mayell,

supra, 163 Conn. 419, and State v. Payne, supra, 186 Conn. 179, because

there is no other explanation for the presence of the defendant’s fingerprints

on the victim’s vehicle. Unlike the facts of Mayell, the fingerprints in the

present case were found under such circumstances that they ‘‘could have

been impressed only at the time the crime was perpetrated . . . .’’ State v.

Mayell, 426.

9

General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is

guilty of home invasion when such person enters or remains unlawfully in

a dwelling, while a person other than a participant in the crime is actually

present in such dwelling, with intent to commit a crime therein, and, in the

course of committing the offense . . . (2) such person is armed with explo-

sives or a deadly weapon or dangerous instrument.’’

10

General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is

guilty of robbery in the first degree when, in the course of the commission

of the crime of robbery as defined in section 53a-133 or of immediate flight

therefrom, he or another participant in the crime . . . (2) is armed with a

deadly weapon . . . .’’