State v. Turner , 181 Conn. App. 535 ( 2018 )

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STATE OF CONNECTICUT v. TYQUAN TURNER
(AC 40248)
DiPentima, C. J., and Bright and Eveleigh, Js.
Syllabus
Convicted of the crimes of felony murder, robbery in the first degree and
conspiracy to commit robbery in the first degree in connection with the
shooting death of the victim, the defendant appealed. The defendant
and an accomplice, C, allegedly had approached the victim, shot him
and took a chain and medallion from around the victim’s neck. The
defendant and C then drove to a jewelry store where they sold the chain
and medallion. The day after the shooting, the police attempted to stop
a vehicle in which the defendant and C were riding, but they got out
of the vehicle and fled on foot. The police recovered a cell phone dropped
by the defendant while he was fleeing, and when C was apprehended,
he admitted to the police that he had been in possession of the chain
and medallion. The police subpoenaed the defendant’s call records from
his cell phone carrier and performed a call detail mapping analysis that
detailed the movement of the cell phone on the day of the shooting. At
trial, the defendant’s cell phone records, along with testimony from W,
the officer who had performed the call detail mapping analysis, were
admitted into evidence without objection by the defendant. Defense
counsel declined to cross-examine W, did not object to the trial court’s
qualification of W as an expert in its jury instructions and relied on
portions of W’s testimony during closing argument to the jury. On appeal,
the defendant claimed, inter alia, that the trial court improperly admitted
documentary and testimonial evidence regarding certain cell phone cov-
erage maps in violation of his federal due process right to a fair trial. Held:
1. There was sufficient evidence presented at trial to support the defendant’s
conviction of conspiracy to commit robbery in the first degree; the jury’s
conclusion that the defendant and C had agreed to engage in conduct
constituting robbery in the first degree was reasonable and logical in
light of the evidence and the inferences that could have been drawn
therefrom, as the jury reasonably could have found, inter alia, that the
defendant and C had emerged from a parking lot, robbed and shot the
victim, and then drove to the jewelry store where they sold the chain
and medallion, and that A, the mother of the defendant’s daughter,
deposited a check from the jewelry store into her bank account, with-
drew cash the next day in the amount of the check and gave it to
the defendant.
2. The defendant could not prevail on his unpreserved claim that his due
process right to a fair trial was violated when the trial court qualified
W as an expert witness and admitted the cell phone coverage maps into
evidence; the defendant’s claim was evidentiary in nature and not of
constitutional magnitude, and, thus, was not reviewable pursuant to
State v. Golding (213 Conn. 233), and there was no manifest injustice
that warranted reversal of the judgment under the plain error doctrine,
as defense counsel made a strategic decision not to object to the cell
phone evidence or to W’s qualification as an expert and then relied on
that evidence during his closing argument to the jury.
3. The defendant could not prevail on his claim that multiple instances of
prosecutorial impropriety during closing arguments deprived him of his
due process right to a fair trial: the prosecutor did not refer to facts
that were not in evidence or invite speculation when he urged the jury
to find where the defendant was at particular times on the basis of the
cell phone evidence, as the jury reasonably could have inferred from
the cell phone coverage maps and W’s testimony that the defendant
was in different areas of the city at particular times on the day of the
shooting, the prosecutor, who was arguing from the evidence presented
at trial, did not vouch for his own credibility when he commented about
the defendant’s conduct in offering a fake address and identification to
the police, and the prosecutor’s comment that the defendant did things
that pointed only to his guilt and not to his innocence did not suggest
to the jury that the defendant had the burden to prove his innocence,
as the comment was followed by references to certain of the defendant’s
actions after the shooting from which the jury could have inferred a
consciousness of guilt; moreover, the prosecutor’s one sarcastic remark
about the defendant’s ability to cash checks was not improper, as it
was made in response to defense counsel’s argument that evidence that
the defendant helped C cash the check did not prove that the defendant
committed the robbery.
4. The defendant’s unpreserved claim that the trial court’s second supplemen-
tal instruction misled the jury about the essential elements of robbery
in the first degree was unavailing; the defendant conceded that the court
properly charged the jury regarding the elements of robbery in the first
degree in its original instruction and first supplemental instruction, and
with respect to the second supplemental charge, the court properly
answered the specific question that was raised by the jury and did not
contradict either of its previous instructions, and, therefore, it was not
reasonably possible that the jury was misled by the court’s second
supplemental instruction.
Argued December 5, 2017—officially released May 1, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, robbery in the
first degree and conspiracy to commit robbery in the
first degree, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before Kwak,
J.; thereafter, the court denied the defendant’s motion
for a judgment of acquittal; verdict and judgment of
guilty of felony murder, robbery in the first degree and
conspiracy to commit robbery in the first degree, from
which the defendant appealed. Affirmed.
Ann M. Parrent, assistant public defender, for the
appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Tyquan Turner, appeals
from the judgment of conviction, rendered after a jury
trial, of felony murder in violation of General Statutes
§ 53a-54c, robbery in the first degree in violation of
General Statutes § 53a-134 (a) (2), and conspiracy to
commit robbery in the first degree in violation of Gen-
eral Statutes §§ 53a-48 and 53a-134 (a) (2). On appeal,
the defendant claims: (1) there was insufficient evi-
dence presented at trial to convict him of conspiracy
to commit robbery in the first degree; (2) the trial court
improperly admitted documentary and testimonial evi-
dence regarding cell phone coverage maps in violation
of his federal due process right to a fair trial; (3) prose-
cutorial improprieties during the state’s closing and
rebuttal arguments deprived him of his right to a fair
trial; and (4) the trial court improperly instructed the
jury with respect to robbery in the first degree.1 We
disagree and, accordingly, affirm the judgment of the
trial court.2
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On the afternoon of July 13, 2013, the victim, Miguel
Rodriguez, was standing on the sidewalk in front of
10-12 Flatbush Avenue in Hartford. Charlene Lara, a
resident of the neighboring 18 Flatbush Avenue, was
smoking a cigarette on her second floor porch. At
approximately 3:54 p.m., Lara observed two people
approach the victim from an open parking lot alongside
10-12 Flatbush Avenue, heard two series of gunshots,
and called 911. Shortly thereafter, police and emergency
response personnel found the victim, who was being
tended to by residents of 10 Flatbush Avenue. The vic-
tim later was pronounced dead at Hartford Hospital.
Approximately seven or eight friends and family
members of the victim were present when the shooting
occurred. Those who were interviewed at the scene,
although generally unwilling to provide any information
about the incident or a suspect, indicated that the victim
was missing a gold chain and medallion.3 Police officers,
however, located two eyewitnesses who were willing
to give statements regarding the incident, Lara and Jose
DeJesus.4 A firearm or spent shell casings were never
recovered.
On July 14, 2013, Dennis DeMatteo, a detective with
the Hartford Police Department, received a phone call
from an ‘‘[associate] of the family’’ who was ‘‘[o]ne of
the friends and family’’ of the victim. The caller stated
that the defendant was responsible for the victim’s
death and that the victim’s family members and associ-
ates were planning retaliation. The caller also provided
a photograph of the defendant, which DeMatteo circu-
lated within his department. On July 16, 2013, Audley
McLean, an owner of K & M Jewelry Corporation (K &
M) contacted the Hartford Police Department. McLean
stated that he had purchased a gold chain and medallion
from Lorenzo Christian between 4 p.m. and 6 p.m. on
July 13, 2013. McLean provided a photograph of the
jewelry, a copy of the check, and Christian’s state identi-
fication card to the police. Acting on that information,
DeMatteo traced the check to a Webster Bank branch,
located on Park Street in Hartford, and an account
owned by Alexandra Colon, the mother of the defen-
dant’s daughter.
On August 6, 2013, Detective George Watson, while
driving an unmarked police vehicle, stopped at an inter-
section in the north end of Hartford. Watson observed
the defendant and Christian, whom he recognized from
flyers circulating within his department, pull alongside
his vehicle. The defendant then ‘‘took off.’’ Watson,
along with other Hartford police officers, pursued the
vehicle until the defendant drove into the back of a
building complex that had no exit. The defendant and
Christian abandoned the vehicle, jumped a nearby
fence, and continued on foot. The defendant was not
apprehended but dropped his cell phone as he was
exiting the vehicle. The cell phone was recovered by
Hartford police. Christian was apprehended by Hartford
police and admitted that he had been in possession of
the chain and medallion.
On August 17, 2013, DeMatteo interviewed Colon at
the Hartford Police Department. Colon admitted to
cashing a check for the defendant and Christian. Colon
also was shown the cell phone recovered on August 6,
2013, and, on the basis of a crack in the phone’s screen,
she identified it as the defendant’s and provided DeMat-
teo with the defendant’s cell phone number. With that
number, DeMatteo confirmed that Sprint Corporation
(Sprint) was the defendant’s cell phone carrier and,
thereafter, a subpoena was issued, ordering Sprint to
produce the defendant’s cell phone records from July
13, 2013, the day the homicide occurred, through August
6, 2013, the day the phone was recovered. Sprint’s
response to the initial subpoena was incomplete and
did not include any records for July 13, 2013. The sub-
scription information, however, indicated that the cell
phone number was changed on July 14, 2013, the day
after the crime, at the request of a person by the name
of ‘‘Patrick.’’ In response to a subsequent subpoena,
Sprint produced the cell phone records, associated with
that prior phone number, for July 13, 2013.
DeMatteo sent the cell phone records and locations
of investigative interest to Andrew Weaver, a sergeant in
the Hartford Police Department’s special investigations
division, who performed a call detail mapping analysis.5
Weaver input that data into a computer program called
Oculus GeoTime, and produced a time lapse video visu-
ally representing the movement of the defendant’s cell
phone between approximately 3:04 p.m. and 6:48 p.m.
on the day of the crime.6 Weaver also took screenshots
of the video at different times between approximately
3:24 p.m. and 5:08 p.m. on the day of the crime.
On August 25, 2013, the defendant was approached by
Hartford police Officer Carlos Montanez. The defendant
identified himself as Aaron Patrick and presented fake
identification under the same alias, which listed 7
Cherry Street as his residence. The defendant initially
was charged with interfering with police on the basis
of his having presented that fake identification. On Sep-
tember 11, 2013, the defendant was arrested in connec-
tion with the victim’s death and subsequently charged
with murder in violation of General Statutes § 53a-54a,
felony murder, robbery in the first degree, and conspir-
acy to commit robbery in the first degree.
A six day jury trial began on May 18, 2015. The state
presented the testimony of DeJesus,7 Lara,8 and several
members of the Hartford Police Department. The state
introduced the defendant’s cell phone records into evi-
dence during its direct examination of Ray Clark, a
custodian of records at Sprint. Clark identified the
defendant’s account subscription information, July 14,
2013 customer service record, and call detail records.
Those three documents were admitted into evidence
without objection. Thereafter, the state conducted its
direct examination of Weaver and elicited testimony
regarding the call detail mapping analysis he performed.
The state introduced the time lapse video and snapshots
that Weaver produced, which were admitted into evi-
dence without objection. On May 26, 2015, the jury
found the defendant guilty of felony murder, robbery
in the first degree, and conspiracy to commit robbery
in the first degree.9 The trial court thereafter rendered
judgment in accordance with the jury’s verdict and sen-
tenced the defendant to a total effective term of seventy
years of incarceration, thirty of which are a mandatory
minimum sentence. This appeal followed.10 Additional
facts and procedural history will be set forth as nec-
essary.
I
The defendant claims that there was insufficient evi-
dence presented at trial to convict him of conspiracy
to commit robbery in the first degree.11 Specifically,
he argues that there was ‘‘no evidence apart from the
alleged robbery from which an agreement to commit
that crime could be inferred.’’ The defendant filed a
motion for a judgment of acquittal at the close of the
state’s case but failed to renew this motion at the close
of all of the evidence. Nevertheless, he seeks review of
this unpreserved claim pursuant to 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). We review the defendant’s unpreserved suffi-
ciency of the evidence claim as though it had been
preserved. See State v. Revels, 313 Conn. 762, 777, 99
A.3d 1130 (2014) (‘‘[A]ny defendant found guilty on the
basis of insufficient evidence has been deprived of a
constitutional right, and would therefore necessarily
meet the four prongs of Golding. . . . Accordingly
. . . there is no practical significance . . . for engag-
ing in a Golding analysis.’’ [Citation omitted; internal
quotation marks omitted.]), cert. denied, U.S. ,
135 S. Ct. 1451, 191 L. Ed. 2d 404 (2015). Upon review
of the record, we conclude that there was sufficient
evidence presented at trial to convict the defendant of
conspiracy to commit robbery in the first degree.
We first set forth the relevant legal principles govern-
ing sufficiency of the evidence claims. ‘‘In reviewing
the sufficiency of the evidence to support a criminal
conviction 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 construed and the inferences reasonably drawn
therefrom the [finder of fact] 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, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], 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 evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Bush, 325 Conn. 272, 285–86, 157 A.3d 586 (2017); State
v. Steele, 176 Conn. App. 1, 10–12, 169 A.3d 797, cert.
denied, 327 Conn. 962, 172 A.3d 1261 (2017).
The crimes of conspiracy and robbery in the first
degree are codified at §§ 53a-48 and 53a-134, respec-
tively.12 To establish the defendant’s guilt with respect
to conspiracy to commit robbery in the first degree,
‘‘the state must show that there was an agreement
between two or more persons to engage in conduct
constituting [robbery in the first degree] and that the
agreement was followed by an overt act in furtherance
of the conspiracy . . . . The state must also show
intent on the part of the accused that conduct constitut-
ing [robbery in the first degree] be performed. . . . The
existence of a formal agreement between the parties
need not be proved; it is sufficient to show that they
are knowingly engaged in a mutual plan to do a forbid-
den act. . . .
‘‘Because of the secret nature of conspiracies, a con-
viction usually is based on circumstantial evidence.
. . . Consequently, it is not necessary to establish that
the defendant and his [coconspirator] signed papers,
shook hands, or uttered the words we have an
agreement. . . . [T]he requisite agreement or confed-
eration may be inferred from proof of the separate acts
of the individuals accused as coconspirators and from
the circumstances surrounding the commission of
these acts.’’ (Citations omitted; emphasis added; inter-
nal quotation marks omitted.) State v. Taft, 306 Conn.
749, 756–57, 51 A.3d 988 (2012); see also State v. Taylor,
177 Conn. App. 18, 31–32, 171 A.3d 1061 (2017), cert.
denied, 327 Conn. 998, 176 A.3d 555 (2018).
The jury reasonably could have found the following
additional facts. On the afternoon of July 13, 2013, at
approximately 3:06 p.m., the defendant left his resi-
dence at 7 Cherry Street in Hartford and drove to Lenox
Street, where Christian resided. At approximately 3:25
p.m., the defendant and Christian left the area of Lenox
Street and drove to 10-12 Flatbush Avenue in Hartford.
At approximately 3:54 p.m., the defendant and Christian
emerged from the open parking lot alongside 10-12 Flat-
bush Avenue and approached the victim. The defendant
grasped the chain and medallion around the victim’s
neck and fatally shot the victim in the abdomen with
a chrome revolver. The defendant and Christian drove
to K & M, located at 1154 Albany Avenue in Hartford.
Christian entered K & M alone, and presented the chain
and medallion to McLean. McLean conducted an
appraisal and offered to pay Christian $1134. Christian
exited K & M and consulted with the defendant about
the offer. Christian subsequently reentered K & M and
accepted McLean’s offer. After leaving K & M, the defen-
dant and Christian attempted to cash McLean’s check
but were unsuccessful. The defendant called Colon and
asked her to cash the check. The defendant and Chris-
tian picked up Colon at her house and drove to a Web-
ster Bank branch located on Park Street in Hartford,
where Colon deposited the check in her account. The
defendant then dropped off Colon and Christian at their
respective residences before returning to 7 Cherry
Street. The following day, at the defendant’s request,
Colon withdrew cash in the amount of the check and
gave it to the defendant.
The jury’s conclusion that the defendant and Chris-
tian agreed to engage in conduct constituting robbery
in the first degree is reasonable and logical in light of
the evidence before it and the inferences that may be
drawn therefrom. See State v. Crosswell, 223 Conn. 243,
255–56, 612 A.2d 1174 (1992) (sufficient evidence to
support finding that defendant agreed that gun would
be used during robbery when he stood by silently when
gun was displayed); State v. Louis, 163 Conn. App. 55,
68, 134 A.3d 648 (sufficient evidence to support finding
that defendant agreed to commit robbery when he
entered store with coconspirators and did not flee when
gun was displayed), cert. denied, 320 Conn. 929, 133
A.3d 461 (2016); State v. Elsey, 81 Conn. App. 738, 747,
841 A.2d 714 (sufficient evidence to support finding that
defendant agreed to conspiracy when defendant arrived
at crime with coconspirators, stayed at scene while
crimes were committed and left scene with coconspira-
tors), cert. denied, 269 Conn. 901, 852 A.2d 733 (2004).
Mindful that in determining the sufficiency of the evi-
dence we consider its cumulative effect and construe
the evidence in the light most favorable to sustaining the
verdict, we conclude that there was sufficient evidence
presented at trial to convict the defendant of conspiracy
to commit robbery in the first degree.
II
We next address the defendant’s claim that the trial
court’s qualification of Weaver as an expert witness
and admission of cell phone coverage maps deprived
him of his due process right to a fair trial. Specifically,
the defendant argues that he was convicted on the basis
of ‘‘scientific evidence that does not satisfy the reliabil-
ity safeguards now required by [State v. Edwards, 325
Conn. 97, 156 A.3d 506 (2017)].’’13 The defendant, how-
ever, failed to preserve this claim at trial and seeks
review pursuant to State v. Golding, supra, 213 Conn.
239–40, and, alternatively, the plain error doctrine. We
decline to review the merits of the defendant’s unpre-
served evidentiary claim.
A
Pursuant to the Golding doctrine, ‘‘a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail.
. . . The first two steps in the Golding analysis address
the reviewability of the claim, while the last two steps
involve the merits of the claim. . . . The appellate tri-
bunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Steele,
supra, 176 Conn. App. 15 n.8; see also State v. Biggs,
176 Conn. App. 687, 705–706, 171 A.3d 457, cert. denied,
327 Conn. 975, 174 A.3d 193 (2017). Upon review of the
record, we conclude that the defendant’s claim fails
under Golding’s second prong because it is evidentiary
in nature and not ‘‘of constitutional magnitude alleging
the violation of a fundamental right . . . .’’ State v.
Golding, supra, 213 Conn. 239–40.
In State v. Edwards, supra, 325 Conn. 97, our
Supreme Court was presented with two issues of first
impression, specifically, whether: (1) ‘‘a police officer
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]14 was required.’’ (Footnote added.) Id.,
129. The court answered those two questions in the
affirmative, concluding 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. See id., 133. The court then
conducted a harmless error analysis. See id. (‘‘[w]hen
an improper evidentiary ruling is not constitutional
in nature, the defendant bears the burden of demon-
strating that the error was harmful’’ [emphasis added;
internal quotation marks omitted]).
In the present case, the defendant, nevertheless,
argues that this evidentiary claim is of constitutional
magnitude because ‘‘it asserts that the improper admis-
sion of evidence violated [his] due process right to a
fair trial.’’ We are not persuaded by the defendant’s
attempt to ‘‘clothe an ordinary evidentiary issue in con-
stitutional garb to obtain appellate review.’’ (Internal
quotation marks omitted.) State v. Marrero-Alejandro,
159 Conn. App. 376, 398, 122 A.3d 272 (2015), appeal
dismissed, 324 Conn. 780, 154 A.3d 1005 (2017). Accord-
ingly, we decline to review the merits of the defendant’s
claim because it fails to satisfy Golding’s second prong.
B
The defendant alternatively argues that reversal of
his conviction is warranted because the trial court’s
qualification of Weaver as an expert witness and admis-
sion of cell phone coverage maps constituted plain
error.15 In response, the state argues that reversal of the
defendant’s conviction under the plain error doctrine is
unwarranted because the claim was ‘‘tactically waived.’’
We agree with the state. In the present case, because
it clearly appears that defense counsel made a strategic
decision not to object to the cell phone evidence or
Weaver’s qualification and then relied on that evidence
during his closing argument, there is no manifest injus-
tice that warrants reversal under the plain error doc-
trine. See State v. Ampero, 144 Conn. App. 706, 715, 72
A.3d 435 (defendant could not demonstrate manifest
injustice where defense counsel made strategic deci-
sion to not object to evidence and then used evidence
to defendant’s advantage), cert. denied, 310 Conn. 914,
76 A.3d 631 (2013); see also State v. Joseph, 174 Conn.
App. 260, 283–84, 165 A.3d 241 (‘‘[w]hen a party so
utilizes allegedly improper evidence, it cannot prevail
under the plain error doctrine’’), cert. denied, 327 Conn.
912, 170 A.3d 680 (2017).
As we previously detailed, defense counsel did not
object to the admission of the Sprint records or cover-
age maps into evidence. Moreover, during his cross-
examination of Clark, defense counsel elicited testi-
mony that cell site information could not be used to
determine the exact location of a cell phone at a specific
time, but could be used to establish that the phone was
in the ‘‘vicinity’’ of a cell site. That testimony prompted
the following exchange:
‘‘[Defense Counsel]: And how would you define
vicinity?
‘‘[The Witness]: Well, within the range of the cell site.
‘‘[Defense Counsel]: And do you know what the
range is?
‘‘[The Witness]: . . . [E]very cell site [is going to]
have a different range. The only way to determine more
accurate[ly] would be to map every cell site potentially
and look at one [cell site] in particular relationship to
the others to get an idea. But as a general rule of thumb
in an urban environment, up to two miles would be
the rule that I would go by if I just had to choose an
arbitrary number.’’
Moreover, during the state’s direct examination of
Weaver, defense counsel did not object to Weaver’s
qualifications or any testimony concerning his analysis.
Of import, Weaver testified that, on the basis of the cell
site and sector that a call is recorded on, he could
conclude that a cell phone was in a certain coverage
area when a call was made or received.16 Thereafter,
defense counsel declined to cross-examine Weaver and
did not object to the trial court’s qualification of Weaver
as an expert in its jury instructions.
During defense counsel’s closing argument, he relied
on portions of Weaver’s testimony. Specifically, defense
counsel argued, in relevant part: ‘‘They talk about the
movement of the phone, but they don’t tell you who
has the phone. . . . There’s no testimony saying [the
defendant] had the phone. Who could have had that
phone? Ask yourself. [Christian]? Yeah. He very well
could have. . . . He’s right by where the pawn store
is. And you look at all those [maps] . . . it’s a grid of
a mile and a half. So . . . they’re trying to cookie-cut
everything. But . . . don’t lose sight of it. How is it his
phone all of a sudden? Who says so? . . .
‘‘So, I talked about the phone, and [Weaver] said, you
know what, I can’t tell you which way they were driving.
I can’t tell you who had the phone. I can’t even tell you
really where it was. I can tell you where they weren’t.
Well, it looks like they’re back and forth.’’
Accordingly, because defense counsel assented to the
admission of the cell phone evidence that the defendant
now claims deprived him of his right to a fair trial,
and, thereafter, used it in a manner indicating that the
decision was made as a matter of trial tactics, we con-
clude that the defendant cannot prevail on his claim of
plain error.17 See Mozell v. Commissioner of Correction,
291 Conn. 62, 73, 967 A.2d 41 (2009) (‘‘[t]o allow the
[defendant] to seek reversal now that his trial strategy
has failed would amount to allowing him to induce
potentially harmful error, and then ambush the state
with that claim on appeal’’ [internal quotation marks
omitted]).
III
We next address the defendant’s claims that prosecu-
torial improprieties during closing arguments deprived
him of his due process right to a fair trial. Specifically,
the defendant claims that the prosecutor improperly:
(1) commented on the cell phone evidence in the record;
(2) injected his personal credibility into the case; (3)
suggested to the jury that it could rely on the absence
of innocent explanations for the defendant’s conduct
as evidence of his guilt; and (4) used sarcasm in
response to defense counsel’s closing argument. The
state contends that none of the challenged statements
was improper and, even if this court were to determine
otherwise, the defendant failed to establish that he was
denied a fair trial.
Although the defendant did not object to the prosecu-
tor’s closing argument, we will review his claims of
prosecutorial impropriety. ‘‘It is well established law
. . . that a defendant who fails to preserve claims of
prosecutorial [impropriety] need not seek to prevail
under the specific requirements of [State v. Golding,
supra, 213 Conn. 239–40], and, similarly, it is unneces-
sary for a reviewing court to apply the four-pronged
Golding test.’’ (Internal quotation marks omitted.) State
v. Franklin, 175 Conn. App. 22, 48, 166 A.3d 24, cert.
denied, 327 Conn. 961, 172 A.3d 801 (2017).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’18 (Internal
quotation marks omitted.) State v. Campbell, 328 Conn.
444, 541–42, A.3d (2018); see also State v. Elmer
G., 176 Conn. App. 343, 363–64, 170 A.3d 749, cert.
granted on other grounds, 327 Conn. 971, 173 A.3d 952
(2017). ‘‘[W]hen a defendant raises on appeal a claim
that improper remarks by the prosecutor deprived the
defendant of his constitutional right to a fair trial, the
burden is on the defendant to show . . . that the
remarks were improper . . . .’’ (Internal quotation
marks omitted.) State v. Maguire, 310 Conn. 535, 552,
78 A.3d 828 (2013).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however] [c]ounsel must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment and fair comment cannot be determined precisely
by rule and line, and something must be allowed for
the zeal of counsel in the heat of argument. . . . Thus,
as the state’s advocate, a prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based [on] the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical devices is simply fair
argument. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
. . . While the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or
to comment [on], or to suggest an inference from, facts
not in evidence, or to present matters which the jury
ha[s] no right to consider.’’ (Internal quotation marks
omitted.) Id., 553–54; State v. Thomas, 177 Conn. App.
369, 406, 173 A.3d 430, cert. denied, 327 Conn. 985, 175
A.3d 43 (2017). Guided by these legal principles, we
consider each instance of prosecutorial impropriety
alleged by the defendant.
A
The defendant first claims that the prosecutor
‘‘argued facts not in evidence by urging the jury to find
where [the defendant] was at particular times based on
the cell phone evidence’’ and ‘‘invited sheer speculation
unconnected to evidence.’’ (Internal quotation marks
omitted.) We reject the defendant’s claim because the
prosecutor’s arguments were supported by the
evidence.
We begin by setting forth the prosecutor’s closing
and rebuttal arguments, emphasizing those parts the
defendant challenges. In his closing argument, the pros-
ecutor stated in relevant part: ‘‘[T]he strongest piece of
evidence is the phone. . . . [T]he phone records that
came from it gave us a treasure trove of information.
. . . Now, you have a virtual map as to what hap-
pened. . . . We have a start time, and you can see at
3:06 in the afternoon on July 13, the person holding
this phone leaves the area of 7 Cherry Street. Again,
information is that the defendant lives at 7 Cherry
Street. . . . And he travels up toward Albany Avenue.
There’s a quick stop, as you can see. And by about 3:25
[p.m.], he’s moving from that area. You heard evidence
that right within that area is Lenox Street. You have
clear evidence that . . . [Christian] lives on Lenox
Street. [The defendant] picks [Christian] up. . . .
‘‘At [3:54 p.m.] a 911 [call is made] to the police . . .
recording that a shooting happened. The defendant and
his phone are on top of the shooting scene at the upper
portion of Flatbush Avenue. . . . And then there is
flight, leaving from the area of Flatbush Avenue and
going up towards 1154 Albany Avenue. . . . [T]he
defendant’s phone stays as is, connected to that area
for quite some time. And we all know why, ladies and
gentlemen, because it took time to conduct the transac-
tion with the pawn shop, selling the medallion and neck-
lace. In fact, [McLean] tells us that [Christian] came
into the pawn shop, worked out a deal, ultimately found
out what [McLean] would offer him, and [Christian]
said, I’ll be right back. This is where we all use our
logical common sense and understand that [Christian]
went outside to see if that deal was all right. . . . He
went outside to ask [the defendant] if that amount was
all right. Because after that period of time, the defen-
dant, with his phone, moves about the city of Hartford.
‘‘Finally, at about . . . [5:24 p.m.] . . . [the defen-
dant] stops in the area of 438 Hillside Avenue, not
a coincidence that [Colon] says that he stopped with
[Christian] and asked her to cash that check. And then
she went with them, and attempts were made to cash
it. And notice . . . there is a return to that area, ulti-
mately dropping off [Christian]. [It is] my argument
that that evidence support[s] that . . . [Christian] is
dropped off, because the person holding this phone at
the end of the evening on July 13, ultimately will come
to stay on Cherry Street, the defendant’s address.’’
(Emphasis added.) Thereafter, in rebuttal argument, the
prosecutor stated that ‘‘this phone and its records loop
around the crime scene and every point of interest
related to the [investigation].’’ (Emphasis added.)
With the prosecutor’s arguments in mind, we set forth
the guiding law. It is well established that ‘‘[a] prosecu-
tor may invite the jury to draw reasonable inferences
from the evidence; however, he . . . may not invite
sheer speculation unconnected to evidence.’’ State v.
Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002). ‘‘A
prosecutor, in fulfilling his duties, must confine himself
to the evidence in the record. . . . [A] lawyer shall not
. . . [a]ssert his personal knowledge of the facts in
issue, except when testifying as a witness. . . . State-
ments as to facts that have not been proven amount to
unsworn testimony, which is not the subject of proper
closing argument.’’ (Internal quotation marks omitted.)
Id., 717.
The defendant contends that the prosecutor argued
facts not in evidence by ‘‘urging the jury to find where
[the defendant] was at particular times based on the
cell phone evidence.’’ We disagree. The prosecutor did
not propose an unreasonable or unfair inference by
arguing that the defendant’s phone ‘‘loop[s] around
. . . every point of interest . . . .’’ As we previously
summarized in footnote 6 of this opinion, on the basis
of the coverage maps and Weaver’s testimony regarding
the location of the defendant’s cell phone, the jury rea-
sonably could have inferred that the defendant was in
different areas of Hartford at particular times on the
day of the crime. To the extent that the defendant claims
that the remark, ‘‘[t]he defendant and his phone are
on top of the shooting scene,’’ was improper, we also
disagree. The jury heard testimony from two witnesses,
both of whom made out-of-court and in-court identifica-
tions of the defendant. See footnotes 4, 7 and 8 of this
opinion. We therefore conclude that the prosecutor’s
arguments did not unfairly present the cell phone evi-
dence and simply invited the jury to draw reasonable
inferences therefrom.
B
We next address the defendant’s claim that the prose-
cutor improperly injected his own credibility into the
case when he remarked, ‘‘I’m not the one that passed
the fake ID that said I live at 7 Cherry Street.’’ The
defendant claims that this remark was improper
because it ‘‘drew a comparison between [the prosecu-
tor’s] credibility and [the defendant’s] allegedly decep-
tive conduct.’’ We disagree with the defendant.
It is well established that ‘‘[a] prosecutor may not
express his own opinion, directly or indirectly, as to
the credibility of the witnesses. . . . Such expressions
of personal opinion are a form of unsworn and
unchecked testimony, and are particularly difficult for
the jury to ignore because of the prosecutor’s special
position. . . . [I]t is not improper [however] for the
prosecutor to comment upon the evidence presented at
trial and to argue the inferences that the jurors might
draw therefrom . . . . We must give the jury the credit
of being able to differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand.’’ (Emphasis added; inter-
nal quotation marks omitted.) State v. Perkins, 271
Conn. 218, 268, 856 A.2d 917 (2004); see also State v.
Ivan G. S., 154 Conn. App. 246, 255–56, 105 A.3d 905
(2014), cert. denied, 315 Conn. 923, 108 A.3d 1123
(2015).
‘‘Although prosecutors generally should try to avoid
using phrases that begin with the pronoun I, such as I
think or I believe, we recognize that the use of the word
I is part of our everyday parlance and . . . because of
established speech patterns, it cannot always easily be
eliminated completely from extemporaneous elocution.
. . . Furthermore, [t]he state’s attorney should not be
put in the rhetorical [straitjacket] of always using the
passive voice, or continually emphasizing that he is
simply saying I submit to you that this is what the
evidence shows.’’ (Citations omitted; internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 436, 902
A.2d 636 (2006).
With these legal principles in mind, we turn to the
defendant’s claim that the prosecutor improperly
placed his own credibility at issue during trial. We dis-
agree. During his closing argument, the prosecutor
reminded the jury that, although the cell phone was
prepaid and did not indicate the name of the subscriber,
the evidence presented at trial supported the inference
that the defendant owned the cell phone and possessed
it on the day of the crime. Specifically, the prosecutor
stated: ‘‘[W]hen a person calls on July 14, 2013, to
change the phone number of this phone, he uses the
name Patrick. You’ll recall that [Montanez] stopped [the
defendant], and [the defendant] said his name was
Aaron Patrick. And he gave [Montanez] a fake ID that
says he was Aaron Patrick of 7 Cherry Street in Hartford.
. . . [A]t 3:06 in the afternoon on July [13, 2013], the
person holding this phone leaves the area of 7 Cherry
Street [and returns at around 7 p.m.]. Again [the] infor-
mation is that the defendant lives at 7 Cherry Street.’’
Thereafter, during rebuttal argument and in response
to defense counsel’s argument that the state had not
proven that the cell phone was owned or possessed
by the defendant, the prosecutor made the following
remarks: ‘‘We don’t have a phone that says this belongs
to [the defendant] the way it used to be in little kids’
clothing. No. But when you consider all of the facts
and circumstances, I’m not the one that passed the fake
ID that said I live at 7 Cherry Street. And that was not
the only piece of evidence. [DeMatteo] said that . . .
his in-house [records] check . . . has [the defendant]
living at 7 Cherry Street . . . .’’ (Emphasis added.) We
conclude that the prosecutor did not improperly vouch
for his own credibility because he was arguing from
the evidence presented at trial. See State v. Luster,
supra, 279 Conn. 436 (‘‘if it is clear that the prosecutor
is arguing from the evidence presented at trial, instead
of giving improper unsworn testimony with the sugges-
tion of secret knowledge, his . . . occasional use of
the first person does not constitute [impropriety]’’); see
State v. Gibson, 302 Conn. 653, 655, 31 A.3d 346 (2011)
(‘‘prosecutor’s two uses of the words I think while mar-
shaling the evidence during closing argument . . . .
[was] not improper’’ [internal quotation marks
omitted]).
C
We next address the defendant’s claim that the prose-
cutor improperly posed the following question to the
jury: ‘‘Why does the defendant do a series of things that
only point to his guilt and not point to his innocence?’’
The defendant contends that the prosecutor’s argument
improperly shifted the burden of proof by suggesting
to the jury that the burden was on the defendant to
prove his innocence. In response, the state argues that
the prosecutor’s ‘‘comment expressly referred to the
defendant’s guilty conduct after the crime was commit-
ted.’’ We agree with the state.
‘‘A comment that the defendant was without a reason-
able explanation or had no reasonable explanation to
show why he was innocent is not necessarily a comment
that the jury would naturally and necessarily interpret
as related to the defendant’s constitutional and statu-
tory right to decline to testify. A prosecutor also may
comment on the failure of a defendant to support his
factual theories.’’ State v. Smalls, 78 Conn. App. 535,
543, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d
806 (2003); see also State v. Joseph R. B., 173 Conn.
App. 518, 531–34, 164 A.3d 718 (prosecutor’s closing
argument not improper where comments based on evi-
dence and did not draw attention to defendant’s failure
to testify), cert. denied, 326 Conn. 923, 169 A.3d 234
(2017); State v. Colon, 70 Conn. App. 707, 713, 799 A.2d
317 (prosecutor’s argument regarding lack of explana-
tion for defendant’s flight from crime scene not
improper), cert. denied, 261 Conn. 933, 806 A.2d 1067
(2002).
The record in the present case indicates that the
prosecutor during his closing argument did not com-
ment on the defendant’s failure to testify at trial or on
the burden of proof. Instead, immediately following
the statement at issue, the prosecutor referenced three
actions taken by the defendant following the crime.
Specifically, the prosecutor stated that the defendant:
(1) knew the importance of the phone records and,
therefore, changed his phone number the day after the
crime; (2) evaded police custody on August 6, 2013;
and (3) gave an alias and presented fake identification
when approached by police on August 25, 2013. There-
fore, because the prosecutor’s argument was based on
the evidence presented at trial and referred to the defen-
dant’s actions from which the jury could infer con-
sciousness of guilt, we conclude that his comment was
not improper. See State v. Joseph R. B., supra, 173 Conn.
App. 537 (‘‘prosecutor’s [closing argument not improper
because it was] based on the evidence presented and
refer[red] to a lack of explanation in the evidence, other
than guilt, for a range of behavior’’); State v. Colon,
supra, 70 Conn. App. 713 (‘‘prosecutor’s remarks during
. . . closing argument were merely an attack on the
defendant’s theory of defense and not improper com-
ment regarding the defendant’s failure to testify’’).
D
The defendant’s final claim of impropriety concerns
the prosecutor’s use of sarcasm during his rebuttal argu-
ment. Specifically, the prosecutor remarked that
‘‘maybe [the defendant] was out on the corner selling
lemonade, and he had a little placard that said, I also
have the ability to cash checks, all within an hour and
a half.’’ The defendant claims this sarcastic remark
improperly ‘‘encouraged the jurors to view with disdain,
rather than reasoned and moral judgment, the reason-
able inference, consistent with [the defendant’s] inno-
cence, that he responded to [Christian’s] request for
help in cashing the check without having been involved
in the shooting or any robbery.’’ We disagree.
‘‘It is well settled that [a] prosecutor may not seek
to sway the jury by unfair appeals to emotion and preju-
dice . . . . [O]ur Supreme Court has recognized that
repetitive and excessive use of sarcasm is one method
of improperly swaying the fact finder. . . . Addition-
ally, we have recognized that the excessive use of sar-
casm may improperly influence a jury. . . . A
prosecutor’s frequent and gratuitous use of sarcasm
can [call on] the jurors’ feelings of disdain, and likely
sen[d] them the message that the use of sarcasm, rather
than reasoned and moral judgment, as a method of
argument [is] permissible and appropriate for them to
use. . . . Although we neither encourage nor condone
the use of sarcasm, we also recognize that not every
use of rhetorical language or device is improper. . . .
The occasional use of rhetorical devices is simply fair
argument.’’ (Citations omitted; internal quotation marks
omitted.) State v. Holley, 144 Conn. App. 558, 569, 72
A.3d 1279, cert. denied, 310 Conn. 946, 80 A.3d 907
(2013); see also State v. Grant, 154 Conn. App. 293,
321, 112 A.3d 175 (2014) (‘‘[s]ome use of sarcastic and
informal language, when intended to forcefully criticize
a defense theory on the permissible bases of the evi-
dence and the common sense of the jury, is not neces-
sarily improper’’ [internal quotation marks omitted]),
cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).
Applying those principles to the present case, we
conclude that the prosecutor’s one sarcastic remark
during his rebuttal argument was not improper. See
State v. Marrero-Alejandro, supra, 159 Conn. App.
388–89 (prosecutor’s sarcastic comments in response
to defendant’s closing argument not improper); State
v. John M., 87 Conn. App. 301, 314–15, 865 A.2d 450
(2005) (prosecutor’s use of sarcasm twice in rebuttal
argument not improper), aff’d, 285 Conn. 822, 942 A.2d
323 (2008). The record indicates that this remark was
made in response to defense counsel’s closing argu-
ment, in which he argued that evidence that the defen-
dant helped Christian cash the check did not prove that
the defendant committed the robbery. Accordingly, we
conclude that this isolated remark was not improper.
IV
We next address the defendant’s claim that the trial
court’s second supplemental instruction misled the jury
by ‘‘omitt[ing] and misdescrib[ing]’’ the essential ele-
ments of first degree robbery. The defendant’s argu-
ments in support of this claim are threefold.
Specifically, the defendant argues that the court’s sec-
ond supplemental instruction: (1) ‘‘repudiated the origi-
nal instruction by stating that the state did not have to
prove the defendant committed the elements of rob-
bery’’ (emphasis omitted); (2) erroneously charged the
jury that the defendant could be found guilty as an
‘‘active participant’’ when ‘‘[t]he state charged [the
defendant] as a principal and did not request an instruc-
tion on accessorial liability’’; and (3) ‘‘suggest[ed] that
there were two participants [which] intruded on the
jury’s function’’ to decide issues of fact.
The defendant concedes that this claim was not prop-
erly preserved at trial because defense counsel failed
to object to the second supplemental charge and now
seeks review of this claim pursuant to State v. Golding,
supra, 213 Conn. 239–40. In the present case, the record
is adequate for our review because it contains the full
transcript of the defendant’s criminal proceedings.19
Moreover, ‘‘[a]n improper instruction on an element of
an offense . . . is of constitutional dimension.’’ (Inter-
nal quotation marks omitted.) State v. DeJesus, 260
Conn. 466, 472–73, 797 A.2d 1101 (2002). Although
reviewable, the defendant’s instructional claim fails
under the third prong of Golding because it is not rea-
sonably possible that the jury was misled by the court’s
second supplemental instruction.
The following procedural history is relevant to our
resolution of this claim. On May 21, 2015, the trial court
delivered its initial charge to the jury. The defendant
concedes that the trial court’s initial charge was correct
because ‘‘it accurately informed the jury of the elements
required to convict the defendant of [robbery in the
first degree] as a principal . . . .’’ The jury began its
deliberations that afternoon and, thereafter, sent the
following note to the court: ‘‘On page [twenty-three] of
the jury charge, does the sentence ‘[i]f any person who
participated in the crime was armed with a deadly
weapon while in immediate flight from the crime, then
all participants in the robbery would be just as guilty
of first degree robbery as if they themselves actually
done so’ refer only to element [three] or override all
elements? That is, did the defendant himself need to
use physical force (element [two]) if a gun was present?
Or do all three elements need to be proven?’’
In response to that note, the court charged the jury
in relevant part: ‘‘And your question regarding page
twenty-three of the jury charge . . . that portion that
you talked about, that only applies to [the third element
of robbery in the first degree]. Element three requires
the possession of a weapon or a deadly instrument.
. . . So, that needs to be proven beyond a reasonable
doubt. And, obviously, all three elements need to be
proved beyond a reasonable doubt for you to reach a,
in your minds, a verdict of guilty. If . . . any of the
elements are not proven, then you must return a verdict
of not guilty.’’ Defense counsel did not take exception
to this supplemental instruction and, on appeal, the
defendant concedes that the first supplemental instruc-
tion was correct.
The defendant’s challenge, therefore, is limited to
the trial court’s second supplemental instruction, which
was given in response to the following jury note: ‘‘For
robbery in the [first degree] to be proven, does the
defendant himself need to (1) commit larceny (physi-
cally deprive another of property) and (2) use or
threaten physical force, or can another participant
[commit] one and two, while he (the defendant) is in
the proximity? I.e., if the robbery is a team effort, do
both participants become equally guilty of robbery in
the first [degree]?’’ (Emphasis in original.) The court
noted that both the prosecutor and defense counsel
had read the jury’s note, and that a discussion took
place in chambers. The following exchange subse-
quently occurred on the record:
‘‘The Court: . . . I reviewed the statute, which spe-
cifically states that robbery in the first degree can be
committed by the defendant, himself, or another partici-
pant. So, I’m going to instruct the jury that . . . the
state does not have to prove beyond a reasonable doubt
it was the defendant, himself, who actually took the
object. That it could be any one of the two, and that’s
sufficient. Is that your understanding of our discussion
[in chambers]?
‘‘[The Prosecutor]: It is. It is. I would just ask that
the court augment it by also saying that you have to
find that he was an active participant. My concern on
that is based on—
‘‘The Court: Right. The proximity.
‘‘[The Prosecutor]: —note saying, proximity.
‘‘The Court: I agree with you.
‘‘[The Prosecutor]: And . . . the court may even
want to say when you write something like proximity,
refer them to the section of mere presence—
‘‘The Court: Right.
‘‘[The Prosecutor]: —as part of your instructions.
‘‘The Court: [Defense Counsel]?
‘‘[Defense Counsel]: Nothing to add. Thank you,
Your Honor.’’20
The court then charged the jury as follows: ‘‘[T]he
gist of [your question] is, does the state have to prove
that the defendant, himself, committed the larceny and/
or with the use of physical force or the threat of physical
force. And the answer to that is, no. [B]ecause there
was a participant, either of those two, if they committed
the larceny, as well as the physical force or the threat
of physical force, then you can find the defendant guilty,
if you think there’s enough evidence for that beyond a
reasonable doubt to do so. But you also have to find
that the defendant was an active participant . . . in
the crime, not, [as] you wrote in here, in the proximity.
That’s not enough. . . . [T]he state has to prove that
he actively participated in the . . . robbery itself.’’
With the entirety of the court’s jury instructions in
mind, we next set forth the legal principles that guide
our analysis. ‘‘[I]ndividual jury instructions should not
be judged in artificial isolation, but must be viewed in
the context of the overall charge. . . . The pertinent
test is whether the charge, read in its entirety, fairly
presents the case to the jury in such a way that injustice
is not done to either party under the established rules
of law. . . . Thus, [t]he whole charge must be consid-
ered from the standpoint of its effect on the [jurors] in
guiding them to the proper verdict . . . and not criti-
cally dissected in a microscopic search for possible
error. . . . Accordingly, [i]n reviewing a constitutional
challenge to the trial court’s instruction, we must con-
sider the jury charge as a whole to determine whether
it is reasonably possible that the instruction misled the
jury. . . . In other words, we must consider whether
the instructions [in totality] are sufficiently correct in
law, adapted to the issues and ample for the guidance
of the jury.’’ (Internal quotation marks omitted.) State
v. Revels, supra, 313 Conn. 784.
On the basis of our review of the entire jury charge,
we conclude that it is not reasonably possible that the
jury was misled by the court’s second supplemental
instruction. See State v. Delgado, 247 Conn. 616, 627,
725 A.2d 306 (1999) (not reasonably possible that jury
was misled where trial court did not contradict conced-
edly correct initial and first supplemental charges in
challenged second supplemental charge). In this case,
the defendant concedes that the trial court properly
charged the jury regarding the elements of robbery in
the first degree in its original instruction and first sup-
plemental instruction. With respect to the second sup-
plemental charge, the court properly answered the
specific question that was raised by the jury; see Prac-
tice Book § 42-27;21 and did not contradict either of its
previous instructions. See State v. Delgado, supra, 627.
We conclude, therefore, that the defendant’s claim fails
under the third prong of Golding because he has failed
to demonstrate that a constitutional violation exists and
deprived him of a fair trial.22
The judgment is affirmed.
In this opinion the other judges concurred.
1
Additionally, the defendant claims that he was harmed by the cumulative
impact of the improper admission of the cell tower evidence, the prosecu-
torial improprieties, and the instructional error because they ‘‘combined to
permit the jury to convict [him] if [it] believed [he] was ‘involved’ in the
crimes, but not that he actually committed the elements of robbery.’’ We
disagree.
The defendant, appearing to acknowledge that our Supreme Court has
yet to adopt the cumulative error doctrine under state law; see State v.
Campbell, 328 Conn. 444, A.3d (2018); argues that because the ‘‘claim
asserts a violation of [his] federal due process right to a fair trial, [it]
does not depend on acceptance of a state law cumulative error doctrine.’’
‘‘[F]ederal case law in which the cumulative unfairness doctrine . . . has
required reversal of a conviction essentially seems to fall into one or more
of the following categories: (1) the errors directly related to and impacted
an identified right essential to a fair trial . . . (2) at least one of the errors
was so significant as to render it highly doubtful that the defendant had
received a fair trial and the remaining errors created the additional doubt
necessary to establish that there was serious doubt about the fairness of
the trial, which is necessary to reverse a conviction; or (3) the errors were
pervasive throughout the trial.’’ (Internal quotation marks omitted.) Id., 557;
see also Hinds v. Commissioner of Correction, 321 Conn. 56, 95, 136 A.3d
596 (2016).
As we subsequently conclude in parts II and IV of this opinion, the court
did not improperly admit the cell phone coverage maps into evidence or
improperly instruct the jury with respect to robbery in the first degree.
Moreover, as we conclude in part III of this opinion, the prosecutor’s remarks
during closing argument were not improper. We conclude, therefore, that,
‘‘even if we were to recognize the cumulative error doctrine as articulated
in the federal courts . . . the [alleged] trial improprieties in the present
case would not justify relief under that doctrine.’’ (Internal quotation marks
omitted.) State v. Campbell, supra, 328 Conn. 557; Hinds v. Commissioner
of Correction, supra, 321 Conn. 95.
2
Because we affirm the judgment of the trial court, we need not address
the defendant’s claim that his acquittal on the charge of murder precludes
retrial for any offense that would require the state to prove his identity as
the gunman who caused the victim’s death.
3
The victim’s family members described the medallion as a Daffy Duck
caricature holding two bags of money.
4
Lara gave a sworn statement at the Hartford Police Department on
August 15, 2013. Lara was shown an array of nine photographs and selected
the third photograph, that of the defendant. Lara indicated that she was
‘‘very confident’’ that it was the individual shown in photograph three who
shot the victim.
DeJesus lived on the first floor of 10-12 Flatbush Avenue. DeJesus was
inside and witnessed the shooting through a front window. DeJesus gave
an oral statement on July 14, 2013, and a sworn statement at the Hartford
Police Department on August 17, 2013. DeJesus was shown an array of
nine photographs and selected the fifth photograph, that of the defendant,
indicating that he was ‘‘pretty sure’’ that the individual in photograph five
was the shooter.
5
In State v. Steele, 176 Conn. App. 1, 169 A.3d 797, cert. denied, 327
Conn. 962, 172 A.3d 1261 (2017), this court summarized cellular network
technology, how call detail records and cell site information are generated,
and how that data can be analyzed: ‘‘Cell phones are essentially sophisticated
two way radios that use cellular networks comprised of cell sites [often
referred to as cell towers] and radio frequency (RF) antennae to communi-
cate with one another. . . . A cell site is the fixed location that provides
cellular coverage using RF antennae, a base station, and other network
equipment. . . . The geographical coverage area of a cell site is called a
cell sector. . . . The shape and size of a cell sector is variable and depends
on several external and internal factors. . . . When an individual places a
call or sends a message, the cell phone communicates with the base station
at the cell site with which it has the strongest, best quality signal. . . .
Importantly, the cell site in closest proximity to these cell phones might
not be the one producing the strongest, best quality signal for them. . . .
The characteristics of the cell site, the RF antenna, and the cell phone as
well as a variety of environmental and geographic factors influence which
cell site has the strongest, best quality signal for a cell phone. . . .
‘‘Every time a cell phone sends or receives a communication the base
station at the cell site automatically generates a call detail record. . . . The
purpose of call detail records is to enable the cellular provider to bill a
subscriber accurately for his or her cell phone usage and to help the carrier
understand the calling patterns of their subscribers. . . . Call detail records
can contain a variety of information depending on the cellular carrier, but
these records ordinarily include some information about the cell site(s)
used to make or receive the communication. . . . The call detail records
in the present case contain information about the cell sites in use when the
cell phone initiated and terminated a communication. [This analysis] uses
the cell site and antenna information contained in a call detail record to
determine which cell sector a cell phone was using at the time of a certain
communication and, thereby, the geographical area the cell phone, and by
inference its user, was in at that time. . . . [T]he approximate size and
shape of a cell sector can be determined by drawing a pie-wedge diagram
on a map. . . . The center angle of the pie-wedge corresponds to the anten-
na’s beam width setting, e.g., 120 degrees, and the outward boundary of the
pie-wedge will extend 50 to 70 percent of the way into the opposing cell
sector. . . . Critically, the boundaries of an estimated cell sector are not
fixed. Depending on a variety of factors, the actual cell sector can be smaller
or larger than the estimated cell sector.’’ (Citations omitted; footnotes omit-
ted.) Id., 17–24.
6
The video depicted an underlying map of the city of Hartford, overlaid
by the coverage area of a specific cell site and sector, as well as the areas of
interest to the police investigation, including 7 Cherry Street, 10-12 Flatbush
Avenue, 1154 Albany Avenue, and Colon’s residence, 438 Hillside Avenue.
The time lapse video reveals the following: at approximately 3:04 p.m., the
defendant’s cell phone connected to a cell site sector covering 7 Cherry
Street. At approximately 3:24 p.m., the defendant’s cell phone connected
to a cell site sector covering Christian’s residence on Lenox Street. At
approximately 3:51 p.m., the defendant’s cell phone connected to a cell site
sector with coverage area encroaching on, but not covering, 10-12 Flatbush
Avenue. At approximately 4:17 p.m., the defendant’s cell phone connected
to a cell site sector covering K & M and, in the half hour thereafter, numerous
phone calls were made within that same coverage area. At approximately
5:08 p.m., a call was made from the defendant’s cell phone within a coverage
area that included the Webster Bank branch on Park Street. Between approx-
imately 5:39 p.m. and 6:27 p.m., the defendant’s cell phone connected to
various cell site sectors covering the north end of Hartford, including Lenox
Street. Finally, at approximately 6:48 p.m., the defendant’s cell phone con-
nected to a cell site sector covering 7 Cherry Street.
7
At trial, DeJesus identified the defendant as the person who shot the
victim.
8
Lara testified that she had given a statement to the police and selected
the victim’s shooter from a photographic array. See footnote 4 of this opinion.
Lara explained that she had wanted to give that statement but did not want
to testify. During cross-examination by defense counsel, Lara stated that
she was ‘‘done talking’’; thereafter, she was held in contempt of court. Lara
subsequently purged herself of the order of contempt and defense counsel
continued his cross-examination. When asked if she could identify the defen-
dant as the person who shot the victim, Lara replied, ‘‘[y]es.’’ When asked
to reaffirm her identification, however, she stated, ‘‘I don’t know.’’
9
The jury found the defendant not guilty of murder.
10
On March 20, 2017, our Supreme Court, pursuant to Practice Book § 65-
1, transferred the defendant’s appeal to this court.
11
We address the defendant’s sufficiency of the evidence claim before we
address any other claims because if a defendant prevails on such a claim,
the proper remedy is to direct a judgment of acquittal. See State v. Ramos,
178 Conn. App. 400, 404, 175 A.3d 1265 (2017), cert. denied, 327 Conn. 1003,
176 A.3d 1195 (2018).
12
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in pursuance of such con-
spiracy.’’
General Statutes § 53a-134 provides in relevant part: ‘‘(a) 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: (1) Causes serious physical
injury to any person who is not a participant in the crime; or (2) is armed
with a deadly weapon; or (3) uses or threatens the use of a dangerous
instrument; or (4) displays or threatens the use of what he represents by
his words or conduct to be a . . . revolver . . . or other firearm . . . .’’
13
State v. Edwards, supra, 325 Conn. 97, retroactively applies to the
present case because ‘‘a rule enunciated in a case presumptively applies
retroactively to pending cases.’’ (Internal quotation marks omitted.) State
v. Elias G., 302 Conn. 39, 45, 23 A.3d 718 (2011).
14
‘‘In [State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523
U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)], [our Supreme Court]
followed the United States Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, 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 determine the reliability of methods used to
reach a particular 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 the expert’s
methods for reaching his conclusion are reliable. . . . Second, the proposed
scientific testimony must be demonstrably relevant to the facts of the particu-
lar case in which it is offered, and not simply be valid in the abstract. . . .
Put another way, the proponent of scientific evidence must establish that
the specific scientific testimony at issue is, in fact, derived from and based
[on] . . . [scientifically reliable] methodology.’’ (Internal quotation marks
omitted.) State v. Edwards, supra, 325 Conn. 124.
15
‘‘[P]lain error . . . is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires reversal of the trial court’s
judgment, for reasons of policy. . . . [It] is reserved for truly extraordinary
situations where the existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked sparingly.’’ (Internal
quotation marks omitted.) State v. Ampero, 144 Conn. App. 706, 714, 72
A.3d 435, cert. denied, 310 Conn. 914, 76 A.3d 631 (2013). ‘‘A [defendant]
cannot prevail under [the] plain error [doctrine] unless [he] has demon-
strated that the failure to grant relief will result in manifest injustice.’’
(Internal quotation marks omitted.) State v. Vega, 128 Conn. App. 20, 29
n.3, 17 A.3d 1060, cert. denied, 301 Conn. 919, 21 A.3d 463 (2011).
16
Weaver testified in part: ‘‘I can’t tell you that a person was in a certain
area. I can’t tell you a street address that they were on. Moreso, what I can
tell you is, where they weren’t. So, if you make a phone call right now . . .
your phone is [going to] go through a coverage area that covers this court-
house. It’s not [going to] show you were in Hamden, Connecticut. . . . Your
[call is going to] show where you were. So, I can determine not only where
the call was routed through, but more . . . likely where you weren’t when
that call was routed.
***
‘‘[T]he movement is actually just shown of where the cell phone goes
over time. So, [it moves] from the center of one coverage area to the center
of the next coverage area. I can’t tell you which streets were driven down.
The . . . only thing we can be 100 percent sure of is, the phone calls were
made and that at some point the cell phone traveled . . . from one coverage
area to the next coverage area.’’
We also highlight the following exchange between the prosecutor and
Weaver:
‘‘[The Prosecutor]: Now, let me ask you . . . do you see [Colon’s res-
idence]?
‘‘[The Witness]: Yes.
‘‘[The Prosecutor]: Do you see that it’s outside of the [coverage area] that
you’ve drawn?
‘‘[The Witness]: It is.
‘‘[The Prosecutor]: Based on your training, experience, understanding of
the range of cell [sites], cell phone companies and the information they
report to you, would the phone necessarily have to be in the orange or
brown area?
‘‘[The Witness]: No.
‘‘[The Prosecutor]: And explain why not?
‘‘[The Witness]: Well, the [cell sites] . . . are put into . . . place and [the
cell phone companies] . . . regulate the power output of the antenna. They
don’t want it to go too far, because they don’t want to . . . interfere with
other [cell sites]. [I]f you have [too much] interference from . . . these
overlapping [cell sites] . . . you get dropped calls. So, what you’ll see is
primarily we like to use the [one and one-half] mile analogy here in Hartford,
because that is kind of where we’re at. That does not mean that if you’re
a little bit farther out that you won’t still connect with that tower. There
might be a better line of sight, or you might have a building in the way and
that tower is the best tower as opposed to the one that might be closer . . . .
‘‘[The Prosecutor]: Does this go back to what you previously said, that
it’s a . . . range . . . or an area? And . . . while it potentially can say
where someone may have been, it more definitively can say where some-
one wasn’t?
‘‘[The Witness]: Yes.
‘‘[The Prosecutor]: Or where someone’s phone wasn’t.
‘‘[The Witness]: Exactly, sir.’’
17
Additionally, the defendant asks us to review this claim under this
court’s supervisory authority; we, however, decline to do so. Our Supreme
Court has explained that, ‘‘bypass doctrines permitting the review of unpre-
served claims such as [Golding] . . . and plain error . . . are generally
adequate to protect the rights of the defendant and the integrity of the
judicial system . . . . [T]he supervisory authority of this state’s appellate
courts is not intended to serve as a bypass to the bypass, permitting the
review of unpreserved claims of case specific error—constitutional or not—
that are not otherwise amenable to relief under Golding or the plain error
doctrine. . . . Consistent with this general principle, we will reverse a [judg-
ment] under our supervisory powers only in the rare case that fairness and
justice demand it. [T]he exercise of our supervisory powers is an extraordi-
nary remedy to be invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitutional violation, is
nonetheless of [the] utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of the judicial system as
a whole.’’ (Citations omitted; internal quotation marks omitted.) State v.
Reyes, 325 Conn. 815, 822–23, 160 A.3d 323 (2017). The defendant’s case
presents no such circumstances.
18
As we conclude subsequently, the prosecutor’s remarks during his clos-
ing and rebuttal arguments were not improper. We, therefore, need not
determine whether any improper conduct by the state’s attorney violated
the defendant’s right to a fair trial under the factors set forth in State v.
Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
19
The state argues that this claim fails to satisfy Golding’s first prong
‘‘because the record is devoid of any instruction nullifying the concededly
correct original charge . . . .’’ The state, relying on State v. Dyson, 238
Conn. 784, 793, 680 A.2d 1306 (1996) (‘‘review of the record fail[ed] to
reveal a jury instruction that expressly sanctioned a nonunanimous verdict’’),
argues that because ‘‘the defendant is alleging that the trial court stated
something that affirmatively eliminated the jury’s need to consider elements
it must find in order to convict after it had given the correct instruction
. . . the record should reflect that the trial court actually did something so
drastic.’’ We do not find support for the state’s proposition in Dyson. A
thorough reading of our Supreme Court’s opinion in that case indicates that
the defendant’s claim was not analyzed pursuant to Golding. See State v.
Dyson, supra, 791–94. Moreover, the fact that ‘‘the record does not support
[a defendant’s] claim,’’ as the state argues, does not mean that the record
is inadequate and, therefore, undeserving of Golding review. See, e.g., State
v. Montanez, 277 Conn. 735, 743–44, 894 A.2d 928 (2006).
20
The state contends that the defendant’s instructional claim was waived
because ‘‘the trial court reviewed [the second supplemental instruction]
with the state and defense counsel in chambers and both indicated that it
was an appropriate response to the jury’s question.’’ Because we conclude
that it is not reasonably possible that the jury was misled by the court’s
second supplemental instruction, we need not address the state’s waiver
argument. See State v. Tarasiuk, 125 Conn. App. 544, 547 n.5, 8 A.3d 550
(2010) (‘‘The state argues that this claim was waived because the defendant
approved of the instructions at trial. Because we find that the charge as
stated was proper, we decline to address the issue of waiver.’’).
21
Practice Book § 42-27 provides: ‘‘If the jury, after retiring for delibera-
tions, requests additional instructions, the judicial authority, after providing
notice to the parties and an opportunity for suggestions by counsel, shall
recall the jury to the courtroom and give additional instructions to respond
properly to the request or to direct the jury’s attention to a portion of the
original instructions.’’
22
Alternatively, the defendant seeks review of this claim pursuant to the
plain error doctrine; see Practice Book § 60-5; or under this court’s supervi-
sory authority over the administration of justice. Because the trial court
correctly instructed the jury with respect to robbery in the first degree,
there is no manifest injustice that warrants reversal pursuant to the plain
error doctrine. See State v. Jaynes, 36 Conn. App. 417, 430, 650 A.2d 1261
(1994), cert. denied, 233 Conn. 908, 658 A.2d 980 (1995). Additionally, we
decline to exercise our supervisory powers to review the defendant’s claim
of instructional error. See footnote 17 of this opinion.