STATE OF CONNECTICUT v. THOMAS STEELE
(AC 37956)
Alvord, Sheldon and Norcott, Js.
Argued April 18-officially released August 29, 2017
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Convicted of the crimes of robbery in the first degree, conspiracy to commit robbery in the first degree and conspiracy to commit larceny in the third degree in connection with his conduct in robbing a bank, the defendant appealed to this court. He challenged the sufficiency of the evidence to support his robbery conviction and also claimed, inter alia, that the trial court improperly admitted lay testimony from a detective, D, concerning historic cell site analysis, a certain process that utilizes cell phone records and cell site locations to identify the location of cell phones at a particular time. Specifically, he claimed that the court should have qualified D as an expert witness before permitting him to testify about how he used the defendant‘s cell phone records to determine his whereabouts before, during and after the bank robbery. Held:
- There was sufficient evidence presented at trial to support the defendant‘s conviction of robbery in the first degree as a principal: the jury reasonably could have credited the testimony of M, the defendant‘s friend, that the defendant had told M that he robbed a bank but discredited M‘s testimony that she understood him to be joking, and the state presented a variety of direct and circumstantial evidence that created a connection between the physical attributes and possessions of the robber and the defendant, including, inter alia, surveillance footage of the robbery, eyewitness testimony describing what the robber was wearing, which matched other surveillance footage that depicted the defendant wearing similar clothing, and evidence of the defendant‘s purchase of a BB gun like the one used in the robbery; moreover, although the evidence was not inconsistent with the defendant being the getaway driver instead of the robber, a reasonable view of the evidence supported a finding that the defendant acted as a principal during the robbery, which was the only theory of liability the state pursued at trial and on which the court instructed the jury.
- The trial court abused its discretion by not requiring D to be qualified as an expert witness before allowing him to testify regarding historic cell site analysis: although that analysis is not extremely difficult to understand, the analytical process involved therein is beyond the ken of the average juror, as call detail records can be used to determine the approximate location of a cell phone at the time of a particular communication by determining the geographical coverage area of the cell sector used to facilitate that communication, and that process of determining the coverage area requires scientific and technical knowledge, which would require a trial court, prior to admitting such testimony, to conduct a hearing to ensure that the testimony was based on a reliable scientific methodology, and contrary to the state‘s claim, D did not merely read from a document that was already in evidence, he explained how cell phones and cell sites operate and, thus, broached the realm of expert testimony; nevertheless, the admission of D‘s testimony was harmless beyond a reasonable doubt, as the state presented substantial evidence of the defendant‘s involvement in the bank robbery, including his admission to M that he robbed a bank, and D‘s testimony was largely cumulative of other direct and circumstantial evidence establishing the defendant‘s locations before, during and after the robbery.
- The defendant‘s conviction of and sentences on the charges of conspiracy to commit robbery and conspiracy to commit larceny, having arisen out of a single agreement to rob the bank, violated his right against double jeopardy; accordingly, his conviction of both conspiracy charges could not stand.
Procedural History
Substitute information charging the defendant with
James B. Streeto, senior assistant public defender, with whom, on the brief, was Maria V. Morse, certified legal intern, for the appellant (defendant).
Rocco A. Chiarenza, assistant state‘s attorney, with whom, on the brief, were Kevin D. Lawlor, state‘s attorney, and Amy L. Bepko, assistant state‘s attorney, for the appellee (state).
ALVORD, J. The defendant, Thomas Steele, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the early morning hours of Saturday, February 16, 2013, the defendant checked into a Comfort Inn in Naugatuck and paid the required $100 deposit in cash. Later that morning, at approximately 9:30 a.m., the defendant purchased a Beretta Airsoft BB gun (facsimile firearm), which looked like a Beretta style handgun, at a Walmart in Derby. Thereafter, the defendant returned to the Comfort Inn to check out. Caitlin Mitchell and an unidentified black male accompanied the defendant during the checkout process. When he was informed that he had to wait for housekeeping to check his room before his cash deposit would be refunded, the defendant became irate, insisting that he had to be somewhere and threatening to call the police if his deposit was not returned. Eventually, the hotel manager calmed the defendant down while the checkout process was completed. At approximately 11:30 a.m., after the hotel manager was informed that the defendant‘s room was in order, she placed the defendant‘s deposit on the counter beside her while she printed a receipt for the defendant. The defendant reached over the counter, grabbed the money, and left with Mitchell and the unidentified black male before the hotel manager could complete the checkout process. After exiting the hotel, all three individuals entered the defendant‘s green Cadillac Deville and left.1
On June 4, 2013, the defendant was arrested for his role in the bank robbery. In the operative information, the defendant was charged with robbery in the first degree, conspiracy to commit robbery in the first degree, and conspiracy to commit larceny in the third degree. After a trial, a jury found the defendant guilty of all counts. The defendant was sentenced to a total effective sentence of ten years of incarceration followed by four years of special parole.3 This appeal followed. Additional facts will be set forth as necessary.
I
We begin with the defendant‘s claim that there was insufficient evidence presented at trial to convict him of robbery in the first degree as a principal, which was the only theory of liability the state pursued at trial and on which the court instructed the jury. The state responds that, when viewing the evidence in the light most favorable to sustaining the verdict, there was sufficient circumstantial evidence for a jury to reasonably conclude that the defendant acted as a principal during the robbery. We agree with the state.
The following additional facts are relevant to this claim. As the robber exited the bank, he ordered Weiss to count to 100. Weiss initially complied and began counting. Once the robber left the bank, however, she jumped up, ran to the doors, and locked them. Weiss then returned to her station, pressed the bank‘s panic alarm, and called 911. After speaking with a 911 operator, Weiss reported the robbery to Webster Bank‘s emergency hotline and to the branch manager, Jason Rodriguez, who was in New York. Rodriguez immediately began driving back to Connecticut from New York. State and federal law enforcement personnel arrived at the bank shortly thereafter and obtained, inter alia, surveillance footage of the robbery. Surveillance footage from inside the bank revealed that the robber wore
After leaving the bank, the robber and his companion(s) initially drove north on Route 8, stopping in Beacon Falls to dispose of the discharged dye pack and the cash that was burned when the dye pack discharged. Shortly thereafter, members of law enforcement, with the assistance of a pedestrian, recovered the dye pack and some of the burned and stained cash from an area near the Beacon Falls Police Department.
Later that day, at approximately 2 p.m., the defendant and an unidentified black male were traveling northbound on Route 8 when they stopped to dispose of a facsimile firearm by throwing it onto the embankment along the side of the highway. Unbeknownst to the defendant and his companion, Rodriguez, who was also traveling northbound on Route 8 on his way to the bank, observed this conduct. When he neared the defendant‘s Cadillac, he immediately noticed that it was being driven erratically. In response, he slowed down and watched as the Cadillac swerved into the breakdown lane, where he saw the driver throw an object over the roof of the Cadillac and onto the embankment. Because of the suspicious nature of this conduct and his knowledge of the recent robbery at his bank branch, Rodriguez used his cell phone to record his observations, including the vehicle‘s make, color, and license plate number and a brief physical description of the men in the driver‘s and front passenger‘s seats.5 He then reported the incident to the police. Shortly thereafter, officers recovered a black Beretta style facsimile firearm from the Route 8 embankment near the Bridgeport-Trumbull line. Notably, the tip of the recovered facsimile firearm was covered with black electrical tape.
Shortly after the incident along Route 8, the defendant purchased professional strength Goo Off and rubber cleaning gloves with cash at the Home Depot in Derby. He then proceeded to the Post Motor Inn in Milford where he rented a cabin in his own name and paid for it in cash. The following morning, February 17, 2013, the defendant checked into the Super 8 Motel in Milford with Mitchell, paying for the room with cash.
That evening, a patrol officer reported that she had located the Cadillac involved in the Webster Bank robbery in the Super 8 Motel parking lot. Shortly thereafter, officers investigating the bank robbery arrived. After speaking to the employees at the front desk of the motel and reviewing its surveillance footage, the officers determined that the defendant was associated with the Cadillac and that he was staying in room 206. After about fifteen minutes of knocking on the defendant‘s
Officers subsequently seized several items from the Super 8 Motel. From the defendant and Mitchell‘s vacated room, they seized a hotel room key for the room that the defendant had rented at the Comfort Inn. From the hotel staff, they obtained surveillance footage, which showed the defendant arriving at the motel in his Cadillac and checking into his room. Notably, during the course of check-in, the defendant could be seen removing several folded bundles of cash from his pants pockets and using that cash to pay for his room. Because the defendant paid in cash, officers further seized from the Super 8 Motel seventy dollars that was stained with red dye, which they believed that the defendant used to pay for the room. Subsequent forensic tests confirmed the presence of chemicals used in bank dye packs on the stained cash.
In addition to retrieving several items from the Super 8 Motel staff, officers seized and searched the defendant‘s Cadillac. In the Cadillac, officers found five pairs of grey latex gloves, receipts from Walmart and Home Depot, and a roll of black electrical tape. The latex gloves that were recovered from the Cadillac‘s glove box were similar in appearance to the ones worn by the individual who had robbed the Webster Bank. The Walmart receipt helped the officers obtain surveillance footage from Walmart, which confirmed that on the morning of the robbery the defendant, who was wearing dark blue jeans, arrived at Walmart in his Cadillac and purchased a facsimile firearm of the same make and model as the one recovered from the embankment along Route 8. Subsequent forensic tests revealed that the electrical tape found in the defendant‘s Cadillac was indistinguishable from the electrical tape found on the facsimile firearm recovered from the embankment along Route 8.
Because the defendant appeared to lead a transient
Finally, at trial, Mitchell testified that on the weekend of the robbery she had seen the defendant in possession of “a substantial amount of money” and cleaning “red stuff” off his Cadillac. Mitchell also testified that the defendant had told her that he “robbed a bank . . . .” Mitchell maintained that when the defendant stated that he robbed a bank, he did so “jokingly” and, as a result, she did not take him seriously. She admitted, however, that the defendant was her friend and that “I don‘t want to be here with this,” i.e., “to testify against someone that was close to me . . . .” After the parties rested and presented closing arguments, the court instructed the jury. With respect to the charge of robbery in the first degree, the court instructed the jury only on principal liability.
“The standard of review we apply to a claim of insufficient evidence is well established. 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 defendant 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
“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 multitude 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 reasonable and logical.
“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence 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 evidence that supports the [finder of fact‘s] verdict of guilty.” (Internal quotation marks omitted.) State v. Crespo, 317 Conn. 1, 16-17, 115 A.3d 447 (2015).
We conclude that there was sufficient evidence presented at trial to support the defendant‘s conviction of robbery in the first degree. First, Mitchell testified that the defendant told her that he “robbed a bank . . . .” On the basis of this testimony, the jury could have concluded that when the defendant said that he “robbed a bank,” he meant that he personally had robbed a bank. The defendant, relying on the corpus delicti doctrine, argues that Mitchell‘s testimony cannot support his conviction because his purported confession is uncorroborated. The purpose of the corpus delicti doctrine, however, is to protect against convictions for offenses that have not in fact occurred. State v. Farnum, 275 Conn. 26, 33-34, 878 A.2d 1095 (2005). The corpus delicti doctrine has no bearing on the present case because it is undisputed that the Webster Bank in Seymour was robbed on February 16, 2013; indeed, it is undisputed on appeal that the defendant was one of the individuals who conspired to rob the bank.
The defendant further suggests that Mitchell‘s testimony cannot support his conviction because Mitchell testified that she did not take the defendant seriously when he said that he “robbed a bank . . . .” A jury may properly decide, however, “what-all, none, or some-of a witness’ testimony to accept or reject.”
The defendant‘s robbery conviction, however, is not supported solely by Mitchell‘s testimony. At trial, the state presented a variety of direct and circumstantial evidence creating a connection between the physical attributes and possessions of the robber and the defendant. The jury had before it surveillance footage of the robbery. When determining if the defendant was the robber, the jurors could have compared surveillance footage of the robber with other surveillance footage of the defendant and their own observations of the defendant in court to determine if there was a physical resemblance between the robber and the defendant. Additionally, the bank surveillance footage and eyewitness testimony established that the robber possessed a black firearm and was wearing dark blue jeans, grey gloves, and a black ski mask. Walmart surveillance footage depicted the defendant wearing dark blue jeans on the morning of the robbery. The receipt and surveillance footage from Walmart further established that while at Walmart the defendant personally purchased a black facsimile firearm, which was the same make and model as the facsimile firearm an individual driving a Cadillac disposed of later that afternoon by throwing it onto an embankment alongside of Route 8. Five pairs of grey latex gloves similar to those worn by the robber were recovered from the Cadillac‘s glove compartment, and a black ski mask similar to the one worn by the robber was recovered from a snowbank approximately thirty feet from the defendant‘s cabin at the Post Motor Inn.
Although it can be argued that this evidence is not inconsistent with the defendant being the getaway driver instead of the robber, “[i]n reviewing a sufficiency of the evidence claim . . . 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.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 459, 939 A.2d 581 (2008). Mindful that in determining the sufficiency of the evidence we consider its cumulative effect and construe the evidence in the light most favorable to sustaining the verdict, we determine that there was sufficient evidence presented at trial to support the defendant‘s conviction of robbery
II
The defendant next claims that the court improperly admitted lay testimony concerning historic cell site analysis.6 Specifically, the defendant argues that the court should have qualified Detective Steven Ditria as an expert witness before permitting him to testify about how he used the defendant‘s cell phone records to determine his whereabouts before, during, and after the bank robbery. The defendant further contends that this evidentiary error obstructed his rights under the confrontation clause because Ditria‘s lack of training, education, or experience with cell phones, cellular networks, and cell site analysis prevented him from being meaningfully cross-examined on this evidence.7 The defendant seeks review of this unpreserved constitutional claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third condition of Golding).8 The state responds that Ditria merely read from a document that was already in evidence, i.e., the defendant‘s cell phone records and instructions from the cellular carrier on interpreting those records, and, thus, his testimony was factual, not opinion.9 Alternatively, the state argues that any error in the admission of this testimony was harmless beyond a reasonable doubt. We agree with the defendant that the court abused its discretion by not requiring Ditria to be qualified as an expert witness, but we agree with the state that this error was harmless beyond a reasonable doubt. Accordingly, the defendant‘s constitutional claim fails under the fourth prong of Golding. See State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015).
A
To understand the significance of the trial court‘s decision to permit a lay witness to testify about historic cell site analysis, it is first necessary to understand the manner in which cell phones and cellular networks operate. Although the trial court did not have the benefit of such information when it made its evidentiary ruling, we share the view of our sister courts that such information is essential to understanding how historic cell site data is generated and what inferences that data supports concerning the locations of a cell phone, and by inference its user, during a communication. E.g., State v. Payne, 440 Md. 680, 690-98, 104 A.3d 142 (2014); Collins v. State, 172 So. 3d 724, 740-41 (Miss. 2015); State v. Patton, 419 S.W.3d 125, 130–31 (Mo. App. 2013); State v. Johnson, 797 S.E.2d 557, 561–62 (W. Va. 2017); see, e.g., Commonwealth v. Augustine, 467 Mass. 230, 236-39, 4 N.E.3d 846 (2014) (reviewing cell phone technology prior to determining whether police were required to obtain search warrant to obtain information from defendant‘s cell phone service provider); State v. Earls, 214 N.J. 564, 574–78, 70 A.3d 630 (2013) (same).
Cell phones are essentially sophisticated two way radios that use cellular networks comprised of cell sites10 and radio frequency (RF) antennae to communicate with one another. State v. Payne, supra, 440 Md. 692; J. Beck et al., “The Use of Global Positioning (GPS) and Cell Tower Evidence to Establish a Person‘s Location-Part II,” 49 Crim. L. Bull. Art. 8, 2 (2013). A cell site is the fixed location that provides cellular coverage using RF antennae, a base station, and other network equipment. J. Beck et al., supra, 3. The geographical coverage area of a cell site is called a cell sector.11 See United States v. Bohannon, 824 F.3d 242, 256 (2d Cir. 2016), cert. denied,
There are four types of cell sites generally used by cellular companies: macrocells, microcells, picocells, and femtocells. M. Harris, Unison, How Cell Towers Work 2-3 (2011), available at www.unisonsite.com/pdf/resource-center/How%20Towers%20Work.pdf (last visited August 23, 2017) (hereinafter M. Harris, How Cell Towers Work); Geolocation Privacy and Surveillance (GPS) Act: Hearing on
Each of the four types of cell sites contains, inter alia, a base station and at least one RF antenna. M. Harris, How Cell Towers Work, supra, 2, 6. An RF antenna can be omnidirectional or multidirectional. An omnidirectional antenna is intended to service the entire, 360 degree area around a cell site. T. Singal, supra, p. 100; M. Harris, How Cell Towers Work, supra, 5-6; see also Ruckus Wireless, Inc. v. Netgear, Inc., No. C 08-2310 PJH, 2013 WL 6627737, *1, *4 (N.D. Cal. Dec. 16, 2013). The idealized cell sector of a cell site with an omnidirectional antenna is a hexagon with the cell site at the center.12 E.g., T. Singal, supra, pp. 99–100; M. Harris, How Cell Towers Work, supra, 5. In contrast, directional antennae are intended to service only small portions of the area around a cell site. For example, a cellular carrier might use three directional antennae with beam widths set at 120 degrees in order to achieve 360 degrees of coverage around a cell site. Collins v. State, supra, 172 So. 3d 740; J. Beck et al., supra, 49 Crim. L. Bull. Art. 8, 3; see also T. O‘Connor, “Provider Side Cell Phone Forensics,” 3 Small Scale Digital Device Forensics J. 1 (2009) (discussing and depicting typical cell site and antenna configurations), available at http://ctfdatapro.com/pdf/celltower.pdf (last visited August 23, 2017). With this configuration, the idealized cell sector is a wedge, with a center angle of 120 degrees, emanating out from the cell site. E.g., State v. Payne, supra, 440 Md. 724 (appendix C); T. O‘Malley, “Using Historical Cell Site Analysis Evidence in Criminal Trials,” 59 U.S. Atty. Bull. 16, 19 (2011), available at https://www.hsdl.org/?view&did=701377 (last visited August 23, 2017). The directional orientation of a directional antenna is called its “azimuth.”13 T. O‘Connor, supra, 1; United States v. Mack, No. 3:13-cr-00054 (MPS), 2014 WL 6474329, *2 (D. Conn. Nov. 19, 2014).
In addition, it is possible that during a communication the cell site being used by either the transmitting or the receiving cell phone will cease to be the one with the strongest, best quality signal for that cell phone. In this circumstance, a “handoff,” or “handover,” will occur to ensure that the communication is not disrupted. A. Blank, supra, 18 Rich. J.L. & Tech. 5-6. Handoffs are broadly classified as being “hard” or “soft” depending on the cell phone system the cellular carrier uses. A hard, or “break before make,” handoff involves a definite decision by the cell phone to break its connection with its current cell site before, or as, it makes a connection with a new cell site. D. Wong & T. Lim, “Soft Handoffs in CDMA Mobile Systems,” IEEE Personal Communications, 6 (1997), available at http://wireless.stanford.edu/papers/DWongsoftHandoff.pdf (last visited August 23, 2017); L. Paul, “Handoff/Handover Mechanism for Mobility Improvement in Wireless Communication,” 13 Glob. J. Res. Engineering Elec. & Elecs. Engineering 6, 7 (2013), available at https://globaljournals.org/GJRE_Volume13/2-Handoff-Handover-Mechanism.pdf (last visited August 23, 2017).
Conversely, during a soft, or “make before break,” handoff a cell phone will simultaneously connect to multiple base stations until it determines which of the in-range cell sites is producing the strongest, best qual-ity signal. D. Wong & T. Lim, supra, 6; L. Paul, supra, 8-9.
Every time a cell phone sends or receives a communication the base station at the cell site automatically generates a call detail record. State v. Payne, supra,
One form of historic cell site 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. The geographical coverage area of a specific cell sector can be determined by conducting a drive test or by estimating the cell sector.17 Drive testing involves the use of RF mapping equipment and software to map the actual cell sector generated by a particular cell site and antenna. E.g., T. O‘Malley, supra, 59 U.S. Atty. Bull. 28; see also id., 29 (depicting cell sector based on drive testing). This method was developed by cellular carriers to help them monitor and maintain the quality of their cellular networks, but it has also been used by law enforcement agencies to track suspects and fugitives and by attorneys at trial to establish a cell phone‘s, and by inference its user‘s, approximate locations at particular dates and times. See T-Mobile Central, LLC v. Unified Government of Wyandotte Country/Kansas City, Kan., 528 F. Supp. 2d 1128, 1140, 1150–52, 1166–67 (D. Kan. 2007), aff‘d in part, 546 F.3d 1299 (10th Cir. 2008); T. O‘Malley, supra, 28-29.
Although the precision of drive testing makes it the preferred method for determining the shape and size of a cell sector, performing a drive test is not always possible. United States v. Mack, supra, 2014 WL 6474329, *3. For example, the cell site might have been removed or its characteristics altered by the cellular carrier since the crime was committed. E.g., id. (federal agent testified that drive testing was not possible because cell site in question was no longer present at time of his investigation). In this circumstance, the approximate size and shape of a cell sector can be determined by drawing a pie-wedge diagram on a map. Id. The center angle of the pie-wedge corresponds to the antenna‘s beam width setting, e.g., 120 degrees, and
B
Against the foregoing scientific and technical background, we turn to the defendant‘s claims on appeal. As we previously stated, the threshold issue is whether the court improperly permitted lay testimony concerning historic cell site analysis. The following additional facts are relevant to our resolution of this claim. At the time of the robbery, the defendant owned a cell phone serviced by Sprint-Nextel (Sprint). During the course of his investigation, Ditria subpoenaed the defendant‘s subscription information and call detail records from Sprint, and, at trial, the state entered the materials Sprint provided into evidence as exhibit 77.
Exhibit 77 includes, inter alia, the defendant‘s call detail records, instructions on how to interpret those records, and a list of cell site locations. The call detail records are in the form of a ten column chart, which, in relevant part, has columns titled, “First Cell,” and, “Last Cell.” The “key” to the call detail records explains that “First Cell” and “Last Cell” refer to the specific cell site and “sector” through which the communication was initiated and terminated. “The first digit [of the cell site identification number] reflects the sector. The last 3-4 digits represent the [cell] site number. . . . For example, if the number in the [First Cell or Last Cell] column reads 2083, the cell site is 083 and the sector is 2.” (Emphasis omitted.) A separate, eighteen column chart provided by Sprint contains a variety of information about Sprint‘s cell sites, including the address and azimuth of each cell site. Exhibit 77 does not define what a “sector” or “azimuth” is.18 Nor does it contain any general or specific information on cellular networks, the geographical coverage areas of Sprint‘s cell sites, or the operation of cell phones and cell sites.
At trial, Ditria explained that learning the defendant‘s cell phone number was “crucial” because he “wanted to learn the whereabouts of [the defendant] based on his phone records.” Once he knew the defendant‘s cell phone number, Ditria testified, he subpoenaed the defendant‘s cell phone records from Sprint. Ditria identified the documents provided by Sprint, which were
When Ditria began to explain his current understanding of “the significance of a cell tower,” defense counsel objected on foundational grounds, stating: “I think he is giving opinion testimony here regarding, I think that‘s where we‘re going here.” The court asked the prosecutor for a response, to which she replied: “What he understands about cell phone records now after being educated.” The court overruled the objection. Thereafter, the following colloquy occurred:
“[The Prosecutor]: Okay. You were explaining what a cell phone tower is for.
“[Ditria]: In order for a phone call to be made, incoming or outgoing, you have to have a cell tower, and it dedicates the subscriber information, checking if it‘s a legitimate phone number, and with that carrier.
“[The Prosecutor]: Can you make a phone call without a cell tower?
“[Ditria]: Absolutely not.
“[The Prosecutor]: And did you also learn how close a cell phone has to be to a tower in order to receive information from it?
“[Ditria]: Yes.
“[The Prosecutor]: And how far away can a phone be to bounce off the tower?
“[Ditria]: Anywhere from zero to thirty miles.
“[The Prosecutor]: A big radius?
“[Ditria]: Right.
“[The Prosecutor]: So, cell phone-at thirty miles or right next to the tower?
“[Ditria]: Correct.
“[The Prosecutor]: That‘s the tower that‘s it‘s going to bounce off of?
“[Ditria]: Correct.
“[The Prosecutor]: And so, did he also teach you how to read these?
“[Ditria]: Yes.
“[The Prosecutor]: Okay. And so, I‘m going to pick a random page, page number two of thirty. How can you determine from this page what cell tower you are looking for? What column are we looking at?”
Direct examination of Ditria continued. The prosecutor asked Ditria, “[h]ow is this information helpful to your understanding of the case,” and Ditria explained that it “[b]asically, pinned down the whereabouts of [the defendant] before, during, and after the robbery of Webster Bank.” Thereafter, Ditria explained in detail how the defendant‘s call detail records helped him to confirm the defendant‘s presence near eight areas of interest: Walmart, the Comfort Inn, the Webster Bank, Beacon Falls, Bridgeport, Home Depot, the Post Motor Inn, and the Super 8 Motel. In particular, Ditria testified as to when the defendant or the bank robbery suspect was believed to be in the area of interest, when the communication in question was made, the address of one of the cell sites used by the defendant‘s cell phone,19 and the distance from that cell site to the area of interest.20 After reviewing these details, the prosecutor asked Ditria: “So, after learning the proximity of the cell tower locations to the places that you believe that [the defendant] was at, what does that do for your investigation?” Ditria responded: “It gives us a better understanding about the whereabouts of [the defendant] during those dates and times.”
On cross-examination, defense counsel attempted to explore Ditria‘s understanding of cell site analysis through the following colloquy:
“[Defense Counsel]: And now, Sprint only operates a digital cell phone system; isn‘t that right?
“[Ditria]: I‘m not sure.
“[Defense Counsel]: All right. Do you know if they operate an analog system?
“[Ditria]: I‘m not sure.
“[Defense Counsel]: And the phones that we use now are all digital, right?
“[Ditria]: (Indicating yes.)
“[Defense Counsel]: And I think you were testifying that the cell phones connect to a particular tower, right?
“[Defense Counsel]: And didn‘t they tell you that they actually connect to more than one tower simultaneously; isn‘t that right?
“[Ditria]: They did not say that.
“[Defense Counsel]: They didn‘t say that?
“[Ditria]: No. . . .
“[Defense Counsel]: Do you know that the cell phone is always looking for the strongest signal?
“[Ditria]: I don‘t know if it‘s looking for the strongest, no.
“[Defense Counsel]: Now, do you know that on a digital cell phone, they can connect to multiple cell sites; did you know that?
“[Ditria]: I did not know that.
“[Defense Counsel]: They didn‘t tell you that?
“[Ditria]: (Indicating no.)
“[Defense Counsel]: And the representative at Sprint, did he tell you that there‘s things that can get in the way of a signal from a cell tower?
“[Ditria]: He did not say that.
“[Defense Counsel]: Things like leaves, weather; did he say that?
“[Ditria]: He did not say that.
“[Defense Counsel]: That the wind could impact the coverage of a cell site; did he say that?
“[Ditria]: He did not.
“[Defense Counsel]: And that digital cell phones have this thing called a soft handoff; did he tell you what that is?
“[Ditria]: No.
“[Defense Counsel]: Have you ever heard of the term triangulation?
“[Ditria]: I have not.
“[Defense Counsel]: They didn‘t tell you or explain that to you over the phone?
“[Ditria]: No.”
The defendant requested to make a motion outside the presence of the jury. After the jury was excused, the defendant moved to strike Ditria‘s testimony regarding “the cell phone coverage” because he was not competent to testify on that topic. The court disagreed, explaining: “There was never any offer that he is an expert, and he did not offer any opinions. He is simply interpreting or translating the data that was given to him.” The state agreed, adding: “[I]t just goes to the
After Ditria‘s testimony, both parties rested and presented closing arguments. During her opening argument, the prosecutor referred to Ditria‘s testimony concerning the location of the defendant‘s cell phone, highlighting in particular the short distance between cell sites used by the defendant‘s cell phone and the areas of interest. In response, defense counsel during his closing argument emphasized that Ditria “didn‘t have any expertise as to how these things actually work.” During her rebuttal argument, the prosecutor made the following relevant remarks: “Ditria said that he had no formal education in cell phone tower mechanics, but he did have the wherewithal to call somebody who did, right? And we found out that a cell tower is in a fixed location and that cell phones are mobile, mobile phones, right? So, if you know where the cell tower is, and that‘s in a fixed location, and a cell phone is mobile, but you know that there are these other things that are fixed locations, like Walmart; Walmart is not mobile, right? Walmart is where it is. Home Depot is where it is. The Super 8 is not moving without some significant effort, okay? So, if you have [the defendant] pinned down in those places, then you could also coordinate the fact that his cell phone is pinging off cell towers in a fixed location all within a mile. Does Ditria really need all that technological expertise to explain it to you, okay?”
“We review a trial court‘s decision [regarding the admission of] expert testimony for an abuse of discretion. . . . If we determine that a court acted improperly with respect to the admissibility of expert testimony, we will reverse the trial court‘s judgment and grant a new trial only if the impropriety was harmful to the appealing party.” (Internal quotation marks omitted.) State v. Edwards, 325 Conn. 97, 123, 124, 156 A.3d 506 (2017). A lay witness may not provide opinion testimony “unless the opinion is rationally based on the perception of the witness . . . .”
Our analysis of the evidentiary issue presented by the defendant is informed by our Supreme Court‘s recent decision in State v. Edwards, supra, 325 Conn. 97. In Edwards, the state sought to elicit testimony from Detective Christopher Morris concerning how he used the defendant‘s call detail records to determine his location at certain points in time and to offer into evidence maps that Morris created showing the estimated cell sectors of the cell sites in question. Id., 119-22. As part of the state‘s offer of proof, Morris testified as to his training and experience conducting historic cell site analysis. Id., 121. “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.” Id., 122.
On appeal, our Supreme Court agreed with the defendant that “the trial court improperly admitted testimony and documentary evidence through Morris without qualifying him as an expert and conducting a Porter hearing21 in order to ensure that his testimony was based on [a] reliable scientific methodology.” (Footnote added.) Id., 133. In reaching this conclusion, the court observed that it “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 . . . .” Id., 127. Relying on State v. Payne, supra, 440 Md. 680, the court concluded that Morris’ testimony concerning historic cell site analysis constituted expert testimony and, therefore, Morris should have been qualified as an expert witness. State v. Edwards, supra, 325 Conn. 128, 133. The court observed that “although Morris relied on data he obtained from Verizon to conduct his analysis [of the defendant‘s call detail records], the process he used to arrive at his conclusions [concerning the approximate coverage areas of the cell sites in question] was beyond the ken of [an] average [person].” Id., 128.
We conclude that Edwards is controlling as to this issue on appeal.22 Although historic cell site analysis is not extremely difficult to understand, we agree with the court in Edwards that this analytical process is beyond the ken of the average juror. As we discussed in part II A of this opinion, call detail records can be used to determine the approximate location of a cell phone at the time of a particular communication by determining the geographical coverage area of the cell sector used to facilitate that communication. This process of determining the actual or approximate geographical coverage area of a cell sector requires
The state nonetheless urges that “when Ditria‘s testimony is reviewed in relation to the cell phone records themselves, a document that was admitted as a full exhibit without objection, it is clear that the substance of his testimony, i.e., the particular cell tower that the defendant‘s cell phone connected with at particular times, did not constitute ‘expert’ testimony at all, but was the equivalent of Ditria merely reading from a document that was already in evidence.” We disagree; Ditria did not merely read from exhibit 77. Ditria testified that in order to make a phone call, a cell phone must use a cell site. Ditria then explained that in order to use a cell site, a cell phone must be within thirty miles of it. Ditria further agreed with the prosecutor that, because of these principles, if a cell phone is “at thirty miles or right next to” a cell site, then that is the cell site that the cell phone is going to use to make or receive a call. None of this information is contained in Exhibit 77. By explaining to the jury how cell phones and cellular sites operate and the geographical coverage area of Sprint‘s cell sites, Ditria broached the realm of expert testimony.
Having concluded that the court abused its discretion by not requiring Ditria to be qualified as an expert witness, we turn to the defendant‘s confrontation clause claim. Because the defendant seeks Golding review of this unpreserved constitutional claim, we do not need to determine whether the court‘s failure to qualify Ditria as an expert witness obstructed the defendant‘s confrontation rights if this error was harmless beyond a reasonable doubt. See State v. Dixon, supra, 318 Conn. 511.
“[W]hether [an improper evidentiary ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting 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 eviden-
We conclude that the admission of Ditria‘s testimony was harmless beyond a reasonable doubt. As we discussed in part II of this opinion, the state presented substantial and varied evidence of the defendant‘s involvement in the bank robbery, including the defendant‘s admission to Mitchell that he robbed a bank. Moreover, Ditria‘s testimony was largely cumulative evidence of the defendant‘s location before, during, and after the robbery. Specifically, Ditria‘s testimony was used to corroborate the defendant‘s presence near eight areas of interest: Walmart, the Comfort Inn, the Webster Bank, Beacon Falls, Bridgeport, Home Depot, the Post Motor Inn, and the Super 8 Motel. The state established the defendant‘s presence at all of these locations through other direct and circumstantial evidence. For example, surveillance footage established the defendant‘s presence at Walmart and the Super 8 Motel as well as the presence of a vehicle similar in appearance to the defendant‘s Cadillac at the Webster Bank during the robbery. The Walmart and Home Depot receipts recovered from the defendant‘s Cadillac corroborated the defendant‘s presence at those stores. Rodriguez’ testimony and the recovered facsimile firearm, which was the same make and model as the one the defendant purchased from Walmart, established the defendant‘s and his Cadillac‘s presence on Route 8 near the Bridgeport-Trumbull line. To establish the defendant‘s presence at various hotels, the state admitted into evidence registration forms, in the defendant‘s own name, for the Comfort Inn, the Post Motor Inn, and the Super 8 Motel and presented the testimony of employees from those hotels who confirmed that guests must present a driver‘s license when checking into those establishments. Finally, all of the direct and circumstantial evidence of the defendant‘s participation in the robbery corroborates his presence in Beacon Falls, where the dye pack associated with George‘s cash drawer was recovered shortly after the robbery.
As a result, even though we conclude that the court abused its discretion by not requiring Ditria to be qualified as an expert witness, we also conclude that this error was harmless beyond a reasonable doubt. Therefore, the defendant‘s constitutional claim fails under the fourth prong of Golding.
III
The defendant‘s final claim is that his cumulative
The appropriate remedy for this due process violation is to reverse the judgment of conviction as to both counts of conspiracy and to remand the case to the trial court with direction to vacate the defendant‘s conviction of conspiracy to commit larceny and to render judgment on the defendant‘s remaining conviction of conspiracy to commit robbery. See id., 829-30; see also State v. Lee, 325 Conn. 339, 345, 157 A.3d 651 (2017); State v. Padua, 273 Conn. 138, 171–73, 869 A.2d 192 (2005). The defendant further requests that we direct the trial court to resentence him with respect to his remaining conviction of conspiracy to commit robbery. Cf. State v. Wright, supra, 320 Conn. 830. We cannot order the trial court to resentence the defendant, however, because vacatur of the defendant‘s conviction and sentence for conspiracy to commit larceny will not alter his total effective sentence. See State v. Johnson, 316 Conn. 34, 42-43, 111 A.3d 447 (2015); see footnote 3 of this opinion.
The judgment is reversed only with respect to the conviction of conspiracy to commit larceny in the third degree and the case is remanded with direction to vacate the judgment as to that conviction. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.