STATE OF CONNECTICUT v. TYQUAN TURNER
SC 20186
Supreme Court of Connecticut
February 18, 2020
Rоbinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
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Syllabus
Convicted of the crimes of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree, the defendant appealed, claiming, inter alia, that his federal due process right to a fair trial was violated when the trial court improperly admitted testimony from a police officer, W, and other evidence regarding the location of the defendant‘s cell phone on the day of the victim‘s murder. The victim had been fatally shot while standing on a sidewalk when he was approached by two people who fired a series of gunshots. The victim‘s medallion and gold chain were later recovered at a nearby pawn shop. W testified that he had performed a call detail mapping analysis of the defendant‘s cell phone, which the police recovered after the shooting, and generated cell tower coverage maps and a time lapse video showing the movement of the cell phone. The state relied on the cell tower coverage maps to establish that the defendant was in the area of the crime scene at the time of the shooting and in the area of the pawn shop after the shooting. The Appellate Court concluded that the defendant‘s claim was unpreserved and unreviewable under State v. Golding (213 Conn. 233), as modified by In re Yasiel R. (317 Conn. 773), because it was evidentiary and not constitutional in nature. In addition, the Appellate Court declined to review the defendant‘s claim under the plain error doctrine, concluding that defense counsel had assented to the admission of the cell phone evidence that the defendant claimed violated his right to due process. The Appellate Court also declined to review the defendant‘s claim under its supervisory authority over the administration of justice, concluding that the defendant had failed to present extraordinary circumstances that warranted such review. Accordingly, the Appellate Court affirmed the judgment of conviction. On the granting of certification, the defendant appealed to this court, claiming, inter alia, that the Appellate Court incorrectly concluded that he was not entitled to Golding review of his unpreserved claim that the trial court violated his right to a fair trial by admitting W‘s testimony and the cell phone evidence without conducting a hearing pursuant to this court‘s decision in State v. Porter (241 Conn. 57), which held that testimony based on scientific evidence must be assessed to determine whether it is derived from and based on reliable scientific methodology. Held:
- The defendant having failed to establish that any error occurred in the admission of W‘s testimony and the cell phone evidence, he was not entitled to review of his unpreserved claim under Golding: this court having determined, contrary to the defendant‘s claim, that its recent decision in State v. Edwards (325 Conn. 97) did not obligate the trial court to conduct a Porter hearing to assess the reliability of W‘s testimony and the cell phone evidence in the absence of a party‘s request for such a hearing, and the defendant having failed to request such a hearing or to object to the admission of W‘s testimony and the cell phone evidence, his сlaim, which was evidentiary in nature, was unpreserved and there was no error, and, accordingly, the defendant could not establish that the trial court‘s failure to conduct such a hearing sua sponte was constitutional in nature or violated his constitutional rights under the second and third prongs of Golding; moreover, because the defendant failed to request a Porter hearing, the record was unclear as to what the trial court would have done if he had requested such a hearing, and this court declined to find facts not in the record or to presume that the trial court committed evidentiary error when it was never asked to decide the issue; furthermore, the record was inadequate to determine whether W‘s cell tower coverage map evidence satisfied the requirement of Porter that the proffered scientific testimony be demonstrably relevant to the facts of the case, as it was impossible to determine, without a Porter hearing or an objection to W‘s testimony and the cell phone evidence, whether the state would have been able to satisfy that requirement.
- The defendant could not prevail on his claim that the trial court‘s failure to conduct a Porter hearing cоnstituted plain error; this court declined the defendant‘s request to adopt the federal plain error standard, under which the determination of whether an error was clear is made on the basis of the law existing at the time of appeal rather than the time of trial, and, because the case law existing at the time of the defendant‘s trial did not guarantee the defendant the right to a Porter hearing regarding cell phone data, this court could not conclude that the plain error doctrine afforded the defendant any relief.
- This court declined the defendant‘s request to exercise its supervisory authority over the administration of justice to review his unpreserved claim that the trial court improperly had admitted W‘s testimony and the cell phone evidence without conducting a Porter hearing, as this case did not present the exceptional and unique circumstances that would justify the exercise of such authority, and this court‘s decision not to exercise its supervisory authority was consistent with its holding in Edwards, as Edwards entitles a defendant to a Porter hearing regarding cell phone data only upon request, and the defendant failed to request such a heаring.
Argued September 25, 2019—officially released February 18, 2020
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.; 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 to the Appellate Court, DiPentima, C. J., and Bright and Eveleigh, Js., which affirmed the trial court‘s judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.
Opinion
D’AURIA, J. In this case, we are asked to determine whether, in light of our recent decision in State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017), the defendant, Tyquan Turner, is entitled to review of his unpreserved claim that the trial court improperly failed to sua sponte conduct a hearing pursuant to 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), before admitting expert testimony regarding cell phone data and corresponding cell tower coverage maps. The defendant seeks review under (1) 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), (2) thе plain error doctrine; see Practice Book § 60-5; and (3) this court‘s supervisory authority over the administration of justice. We conclude that, because the defendant has failed to establish that any error occurred, he is not entitled to any review of this unpreserved claim. Accordingly, we affirm the Appellate Court‘s judgment.
The following facts, as set forth by the Appellate Court in State v. Turner, 181 Conn. App. 535, 187 A.3d 454 (2018), and procedural history are relevant to our review of the defendant‘s claims. 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. Id., 539. Two people approached the victim from an open parking lot alongside 10-12 Flatbush Avenue and fired two series of gunshots. Id. Shortly thereafter, the police and emergency response personnel found the victim, who was being tended to by residents of 10 Flatbush Avenue. Id. The victim later was pronounced dead at Hartford Hospital. Id. Although two eyewitnesses gave statements, the victim‘s family and friends, who were present when the shooting occurred, were unwilling to provide any information about the incident. They did, however, notify the police that the victim was missing a gold chain and a medallion. Id. The gold chain and medallion were later recovered at a pawn shop. Id., 540. At about this time, the police also received a phone call from someone who identified as a friend or family member of the victim, and who implicated the defendant in the victim‘s death. Id. Approximately one month later, while at an intersection in the north end of Hartford, Detective George Watson observed the defendant, who ” ‘took off’ ” but dropped his cell phone. Id.
Alexandra Colon, the mother of the defendant‘s child, identified the recovered cell phone as being owned by the defendant, on the basis of a crack in the phone‘s screen, and provided the police with the phone number associated with the phone. Id., 541. “With that number, [the police] 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 incomрlete and did not include any records for July 13, 2013. The subscription 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
“[The police then] 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. Weaver input that data into a computer program called Oculus GeoTime, and produced a time lapse video visually representing the movement of the defendant‘s cell phone between approximately 3:04 and 6:48 p.m. on the day of the crime. Weaver also took screenshots of the video at different times between approximately 3:24 and 5:08 p.m. on the day of the crime.” (Footnote added; footnotes omitted.) Id., 541–43.
At trial, Weaver and Ray Clark, a custodian of records at Sprint, were called to testify as prosecution witnesses. On direct examination during the state‘s case, 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. On cross-examination, Clark testified that the call detail records allow a person to determine where a call was generated and where it ended in relationship to a particular cell site. Clark clarified, however, that “you can‘t pinpoint and say [the phone] has to have been exactly here. This record simply says it had to have been in the vicinity of this particular cell site at the time the phone call began and, likewise, at the time the phone call ends.” Clark explained that a cell phone is within the vicinity of a particular cell site when it is within the range of that cell site, the range being approximately two miles in larger cities like Hartford.
Weaver was called to testify next. The state did not disclose Weaver as an expert witness, although the trial court instructed the jury that he provided expert testimony. Weaver testified that he oversaw computer based investigations of adult and juvenile sexual assaults and missing persons, including cell phone forensics and cell phone mapping (also known as call detail mapping). He testified that he had received training in call detail mapping and had taken courses on geolocating of cell service, which included learning how to map which cell tower a particular call is routed through. He testified that he had undertaken hundreds of hours of training in call detail mapping.
In explaining the process he undertakes to conduct call detail mapping, Weaver testified that first he receives the call detail records from the cell phone company, which usually include information identifying which cell tower was routing the call, the coordinates of the tower, and which side of the tower the call was routed through. He explained that “[m]ost cell towers have . . . three sides. [Each side] primarily cover[s] a 120 degree arc. That‘s the coverage area of the—the antennas. So, you‘ll havе one tower with three antennas on it, 120 degree arc. And that‘s your 360 degree coverage area.” When the cell towers are designed, engineers map the area, determine each tower‘s coverage area, and then record that information, which is then provided to Weaver through the call detail records. This information is then inputted into a computer program called Oculus GeoTime and results in a
In describing the coverage range of the cell towers, Weaver testified that the towers are built “so they overlap about 51 percent from one tower to the next, the coverage areas. So, [they] have that seamless transmission . . . . In Hartford, with the amount of cell towers we have, we generally expect to see industry standard. We‘ve got—1.5 miles is the average coverage area.” Weaver testified that cell phone calls are routed through the tower that the phone is closest to and has the best signal from. According to Weaver, however, a cell phone would not necessarily have to be within a tower‘s coverage area to be routed through that tower. He explained that, although towers should not overlap too much, because otherwise there would be interference that would cause dropped calls, there remains some overlap so that, “if you‘re a little bit farther out [from the coverage area], you [may] 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 to you.” Weaver clarified that the cell phone data and subsequent map show only that “the phone itself was in a certain area” but do not establish that a certain person was in a certain area or provide a specific address at which the phone was located.
The maps Weaver generated in this case have an underlying map of the city of Hartford. There are orange pie shaped sections showing the coverage area of the side of the particular tower that the call data records show a particular call was routed through. The maps also identify locаtions or addresses important to the investigation of the crime at issue. Weaver explained that “[w]hat we do, once we have the towers associated on the map, the program, we add in the data that [come] from the cell phone company about the calls that were made. So, we know at . . . 3:24 in the afternoon, that . . . the cell phone [at issue] made a call, and it was routed through that pie shaped area. What we do is, the next call is routed through another tower, or it can be the same tower, in which case, you wouldn‘t show movement [on the map]. So, the—the—the movement is actually just shown of where the cell phone goes over time. So, we move it 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—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 between—from one coverage area to the next coverage area.”
The maps showed thаt, at 3:25 p.m. on the day of the shooting, the cell phone that the defendant dropped was in a particular cell coverage area, in which was 1154 Albany Avenue, the address for the pawn shop where the victim‘s gold chain and medallion were sold. At 3:53 p.m., near the time of the murder, the cell phone was located within another coverage area, near 18 Flatbush Avenue, the location of the crime scene. Although the crime scene was located just outside of the coverage area of the tower that routed the 3:53 p.m. call, as explained, Weaver testified that a cell phone may be located outside of a tower‘s coverage area but be routed through that tower if that tower had the better signal. Then, at approximately 4:17 p.m., the maps showed the cell phone again within the cell coverage area that included the location of the pawn shop.
In closing argument, the state relied on the cell tower coverage maps to establish that the defendant was present in the area of the crime scene at the time of the crime and subsequently was present in the area
The defendant appealed to this court, and the appeal was transferred to the Appellate Court pursuant to Practice Book § 65-1. On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court improperly admitted documentary and testimonial evidence regarding cell phone coverage maps in violation of his federal due process right to a fair trial. The Appellate Court held that the defendant‘s claim was unpreserved and unreviewable under Golding because it was eviden- tiary, not constitutional, in nature. State v. Turner, supra, 181 Conn. App. 551. Additionally, the Appellаte Court declined to review this claim under the plain error doctrine “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 . . . .”2 Id., 555. Finally, the Appellate Court declined to review this claim under its supervisory authority over the administration of justice, holding that the defendant had failed to present extraordinary circumstances warranting such an exercise. Id., 555 n.17. Thus, the Appellate Court affirmed the judgment of conviction.
The defendant then petitioned for certification to appeal, which we granted, limited to the following issues: (1) “Did the Appellate Court properly determine that the petitioner was not entitled to review, under State v. Golding, [supra, 213 Conn. 233], of his unpreserved claim that the trial court improperly admitted cell tower coverage maps?” And (2) “Did the Appellate Court properly determine that the petitioner was not entitled to plain error review of his unpreserved claim that the trial court improperly admitted cell tower coverage maps?” State v. Turner, 330 Conn. 909, 193 A.3d 48 (2018).
I
To address the defendant‘s claims properly, a review of recent changes in our case law pertaining to the admissibility of expert testimony regarding cell phone data is useful.
“In Porter, we 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 that the expert‘s
“[F]or the trial court, in the performance of its role as the gatekeeper for sсientific evidence, properly to assess the threshold admissibility of scientific evidence, the proponent of the evidence must provide a sufficient articulation of the methodology underlying the scientific evidence. Without such an articulation, the trial court is entirely ill-equipped to determine if the scientific evidence is reliable upon consideration of the various Porter factors. Furthermore, without a clear understanding as to the methodology and its workings, the trial court also cannot properly undertake its analysis under the fit requirement of Porter, ensuring that the proffered scientific evidence, in fact, is based upon the reliable methodology articulated.” (Internal quotation marks omitted.) State v. Edwards, supra, 325 Conn. 125. Although it is the proponent‘s burden to satisfy the Porter requirements, the party opposing the admission of the expert testimony must object and request a Porter hearing, otherwise, any objection is waived. Weaver v. McKnight, 313 Conn. 393, 415–16, 97 A.3d 920 (2014).
Before the proponent proceeds to satisfy the Porter requirements, however, a court must initially determine whether the evidence at issue is the type of scientific evidence contemplated by Porter. See, e.g., Arthur v. Commissioner of Correction, 162 Conn. App. 606, 621–22, 131 A.3d 1267, cert. denied, 323 Conn. 915, 149 A.3d 496 (2016). At the time of the defendant‘s trial in the present case, this court had not been asked to decide whether cell phone data constituted the type of scientific evidence contemplated by Porter. The Appellate Court, however, in Arthur, considered this issue when the petitioner alleged a claim for “ineffective assistance of counsel because [his counsel had] failed to request a Porter hearing regarding the cell phone evidence offered by the state to show the petitioner‘s movements on the night of the shooting.” Id., 619. The Appellate Court noted that requests for Porter hearings regarding this kind of expert testimony were routinely denied in this state and “that numerous courts across the country have concluded that such evidence is sufficiently well established that a hearing concerning its scientific reliability is unnecessary . . . .” Id., 623 n.6. The Appellate Court concluded that the petitioner had failed to establish that cell phone data was the kind of scientific evidence contemplated by Porter and, thus, “[had] failed to show that he was prejudiced by [his counsel‘s] failure
After the defendant‘s trial in the present case, but while his appeal was pending before the Appellate Court, this court released its decision in State v. Edwards, supra, 325 Conn. 97. In Edwards, the state offered the testimony of Detective Christopher Morris of the Wethersfield Police Department regarding cell phone data and maps he generated therefrom. Id., 118– 19, 121. The defendant objected to the admission of the maps and requested a Porter hearing, which the trial court denied. Id., 118, 123.4 On appeal in Edwards, the defendant argued to this court that the trial court improperly had failed to qualify Morris as an expert and denied his request for a Porter hearing. We agreed. Id., 118. Specifically, we concluded that Morris should have been qualified as an expert witness before the court allowed him to testify regarding cell phone data because of his superior knowledge on this subject. Id., 128, 133. Additionally, we determined that expert testimony regarding cell phone data is the type of scientific evidence contemplated by Porter, and, thus, a Porter hearing was required to ensure that his testimony was based on reliable scientific methodology. Id., 129–33. Nevertheless, we applied an evidentiary harmless error analysis, concluding that these errors had not harmed the defendant. Id., 133–34.
II
The defendant first claims that the Appellate Court incorrectly determined he was not entitled to Golding review of his unpreserved claim that the trial court violated his right to a fair trial by admitting Wеaver‘s testimony and cell tower coverage maps without conducting a Porter hearing. More specifically, he argues that (1) the admission of Weaver‘s testimony and cell tower coverage maps without a Porter hearing violated the new rule announced in Edwards, and (2) Weaver‘s cell tower coverage maps did not satisfy the Porter “fit” prong because they were not derived from his stated methodology and were incapable of proving the proposition for which they were offered—that the defendant was at specific locations at specific times. The defendant acknowledges that the trial court‘s failure to conduct a Porter hearing and exclude the maps from evidence were, at best, unpreserved evidentiary errors. He nonetheless argues that the Appellate Court improperly failed to address his argument that these evidentiary errors were significant and crucial enough that they implicated his due process right to a fair trial and, thus, were constitutional in nature under Golding‘s second prong. The state concedes that an evidentiary error may rise to the level of a constitutional violation but contends that the defеndant failed to establish that the alleged evidentiary errors exist, let alone rise to that level. We agree with the state.
It is undisputed that the defendant did not preserve his claim at trial
Under the second prong of Golding, an unpreserved evidentiary error generally is not reviewable. See, e.g., State v. Toccaline, 258 Conn. 542, 550, 783 A.2d 450 (2001). Because “the admissibility of expert testimony is a matter of state evidentiary law . . . in the absence of timely objection, [it] does not warrant appellate review under [Golding] . . . because it does not, per se, raise a question of constitutional significance.” State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993). Thus, an unpreserved claim that the trial court improperly failed to conduct a Porter hearing, which involves the admissibility of expert testimony, generally is not reviewable. See State v. Natal, 113 Conn. App. 278, 285, 966 A.2d 331 (2009).
Nevertheless, this court has recognized that an unpreserved evidentiary claim may be constitutional in nature if “there is a resultant denial of fundamental fairness or the denial of a specific constitutional right . . . .” (Internal quotation marks omitted.) State v. Toccaline, supra, 258 Conn. 550; see also State v. Crespo, 303 Conn. 589, 609 n.15, 35 A.3d 243 (2012). This is consistent with federal jurisprudence, which recognizes that an evidentiary error may be of constitutional magnitude if “the error was so pervasive as to have denied [the defendant] a fundamentally fair trial . . . . [T]he standard . . . [is] whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been ‘crucial, critical, [and] highly significant . . . .’ ” (Citations omitted.) Collins v. Scully, 755 F.2d 16, 18–19 (2d Cir. 1985); see also McKinnon v. Superintendent, Great Meadow Correctional Facility, 422 Fed. Appx. 69, 72 (2d Cir. 2011), cert. denied sub nom. McKinnon v. LaValley, 565 U.S. 1181, 132 S. Ct. 1151, 181 L. Ed. 2d 1024 (2012); Smith v. Greiner, 117 Fed. Appx. 779, 781 (2d Cir. 2004), cert. denied sub nom. Smith v. Fischer, 544 U.S. 984, 125 S. Ct. 1853, 161 L. Ed. 2d 741 (2005).
The “crucial, critical, [and] highly significant” stan- dard—which elevates evidentiary error into constitutional error in some circumstances—has created some confusion as to which prong of Golding is implicated in the analysis: “This stems from confusion over the proper application of the second and third prongs. . . . [Because] any claim of evidentiary error . . . premised on a generalized
In the present case, the defendant claims that the trial court improperly admitted the cell tower coverage maps, violating his due process right to a fair trial because the maps were crucial to the state‘s case. Specifically, he asserts two evidentiary errors in support of his argument that the trial court improperly admitted the cell tower maps. First, he argues that the trial court improperly failed to conduct a Porter hearing because this court‘s recent decision in Edwards required the court to do so. Second, he argues that, even without a Porter hearing, the trial court improperly admitted Weaver‘s cell tower coverage maps because it is clear from the record that the maps did not satisfy the Porter “fit” requirements that they be derived from the expert‘s stated methodology and that they prove the propоsition for which they were offered—that the defendant was at specific locations at specific times.5 He argues that the record is adequate to review the two alleged errors.
The state responds that, under Edwards, the defendant was required to request a Porter hearing, and, thus, the trial court need not have conducted such a hearing sua sponte. Accordingly, the state contends that the defendant‘s first alleged error fails under the second and third prongs of Golding. Additionally, because there was no Porter hearing, the state argues that the record is inadequate to determine whether the cell tower coverage maps would have satisfied the Porter “fit” prong. As a result, the state argues, the defendant‘s second alleged error fails under the first, second, and third prongs of Golding because he has failed to establish
As to the first alleged error, the defendant argues that, under the new rule announced by this court in Edwards, a trial court is required to conduct a Porter hearing to assess the reliability of the expert testimony regarding cell phone data and that this new rule applies retroactively to the present case. The defendant argues that the recоrd in the present case is similar to the record in Edwards, in which this court held that the trial court improperly failed to hold a Porter hearing, even though there was no record regarding the expert‘s qualifications or methodology.
But, in fact, the record in Edwards was different from the record in the present case in one critical respect: the defendant in Edwards raised the claim to the trial court. In fact, the defendant in Edwards, on multiple occasions, specifically objected to the admission of the expert testimony and corresponding cell coverage maps, and requested that the trial court conduct a Porter hearing. State v. Edwards, supra, 325 Conn. 118–19. We held that the trial court‘s refusal to grant the request for a Porter hearing was error. Id., 133. Even though we agree with the Appellate Court that the rule in Edwards applies retroactively,6 we did not hold in Edwards that trial courts were bound to have, sua sponte, held Porter hearings in every case involving expert testimony on cell phone data in the absence of an objection or request to do so.
Rather, a court is obligated to conduct a Porter hearing only when a party requests one. See, e.g., Prentice v. Dalco Electric, Inc., supra, 280 Conn. 352 (trial court was obligated to hold Porter hearing once defendant objected to expert testimony and requested hearing); see also State v. Sullivan, 244 Conn. 640, 651 n.14, 712 A.2d 919 (1998) (“[w]e never have held that a trial court has an independent obligation to order, sua sponte, a hearing on an evidentiary matter, in the absence of both a request for a hearing and an adequate offer of proof“).
This is consistent with this court‘s previously stated rule that parties waive their right to a Porter hearing if no request is made. See Weaver v. McKnight, supra, 313 Conn. 415–16 (“To raise a Porter claim, the party opposing the admission
Thus, even though the new rule in Edwards applies retroactively, its retroactive application to pending cases does not compel the conclusion that a trial court is required to conduct a Porter hearing sua sponte in the absence of a request for one. Retroactivity of new, nonconstitutional evidentiary rules does not relieve a defendant of his obligation to preserve the claim. In other cases in which a new, nonconstitutional evidentiary rule has been applied retroactively, the defendant still was required to preserve his claim at trial in order to be entitled to review. See State v. Martinez, 95 Conn. App. 162, 166 n.3, 896 A.2d 109 (concluding that, even if new jury instruction rule announced in State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005), which was not of constitutional dimension, was retroactive, court would decline to review defendant‘s unpreserved evidentiary claim that trial court failed to give jury instruction regarding credibility of jailhouse informants because defendant did not raise claim during trial), cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006); cf. State v. Steele, 176 Conn. App. 1, 24, 27, 31, 169 A.3d 797 (2017) (applying rule in Edwards retroactively when defendant preserved claim that court improperly permitted lay testimony concerning historic cell site analysis where defendant had objected), cert. denied, 327 Conn. 962, 172 A.3d 1261 (2017); State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000) (applying new rule retroactively where preservation was not at issue).
Thus, we conclude that our holding in Edwards did not obligate the trial court in the present case to hold a Porter hearing sua sponte. In the absence of error, the defendant has not established that the trial court‘s failure to hold a Porter hearing was constitutional in nature or violated his constitutional rights under the second and third prongs of Golding.
The defendant contends that we should overlook his failure to request a Porter hearing because, before Edwards, requests for Porter hearings regarding cell tower data routinely had been denied, so there was no reason to believe that the trial
Like the defendant in Edwards, who also did not have the benefit of our decision in that case, the defendant in the present case could have objected to the admission of the cell data evidence and requested a Porter hearing, but he did not do so. Because the defendant did not request a Porter hearing, the record is bereft of what the trial court would have done if he had. We will not find facts not in the record or presume evidentiary error on the part of the trial court when it was never asked to decide this issue.7
The defendant next argues that the trial court improperly admitted the cell tower coverage maps because, even without a Porter hearing, it is clear on the record that the maps did not satisfy the Porter “fit” requirement.8 Specifically, he argues that the maps were not derived from Weaver‘s stated methodology.9 Additionally, the defendant argues that the maps were incapable of proving the proposition for which they were offered—that the defendant was at specific locations at speсific times—because Weaver‘s testimony extensively qualified the maps’ ability to prove the defendant‘s location, clarifying that the maps showed only the general area where the phone was located, not the specific address where the defendant was located.
As this court previously has explained, however, without the defendant‘s having objected to Weaver‘s testimony and requested a Porter hearing, it is impossible to determine whether the state would have been able to satisfy the “fit” requirements of Porter or whether the admission of the maps was more prejudicial than probative. See Weaver v. McKnight, supra, 313 Conn. 416. Even if we assume that the state cannot satisfy the “fit” requirement on the current record in this case, we have no way of knowing whether the state would have presented additional evidence to support Weaver‘s methodology and to show that the cell tower coverage maps were derived from this methodology if the defendant had requested a Porter hearing.
The defendant contends that the state would not have been able to present any
The defendant has failed to establish that the trial court erred in admitting Weaver‘s cell tower coverage maps and that this error was crucial, critical, and highly significant such that it impliсated his due process right to a fair trial. Accordingly, the defendant‘s claim fails under Golding.
III
The defendant next claims that, even if he is not entitled to Golding review of his unpreserved claim, he is entitled to reversal of his conviction because the trial court‘s failure to conduct a Porter hearing constituted plain error. Specifically, he asks this court to adopt the federal plain error standard, which requires a determination of whether an error was clear on the basis of the law existing at the time of appeal, not the time of trial. See, e.g., Henderson v. United States, 568 U.S. 266, 269, 133 S. Ct. 1121, 185 L. Ed. 2d 85 (2013) (addressing temporal aspect of
“An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate rеcord, [and] also . . . so obvious that it [is not debatable and] affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [Additionally, a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . It is axiomatic that . . . [t]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility.” (Citations omitted; emphasis
This court has explained that whether an error is clear is premised on the law existing at the time of trial. See State v. Darryl W., 303 Conn. 353, 374, 33 A.3d 239 (2012) (“[i]t is axiomatic that the trial court‘s proper application of the law existing at the time of trial cannot constitute reversible error under the plain error doctrine” (internal quotation marks omitted)); State v. Diaz, 302 Conn. 93, 104 n.8, 25 A.3d 594 (2011) (same); see also State v. Bellamy, 323 Conn. 400, 458 n.6, 147 A.3d 655 (2016) (Rogers, C. J., concurring) (“[i]t is axiomatic that the trial court‘s proper application of the law existing at the time of trial cannot constitute reversible error under the plаin error doctrine” (internal quotation marks omitted)). The defendant, nevertheless, urges this court to adopt the federal plain error standard, in which clear error is assessed on the basis of the law existing at the time of appeal. See, e.g., Henderson v. United States, supra, 568 U.S. 271 (“[T]he general rule . . . is that an appellate court must apply the law in effect at the time it renders its decision. . . . This principle favors assessing plainness at the time of review.” (Citations omitted; internal quotation marks omitted.)); United States v. Bruno, 383 F.3d 65, 79 (2d Cir. 2004) (“[a]n error is ‘plain’ if it is ‘clear’ or ‘obvious’ at the time of appellate consideration (emphasis omitted)).
This court has declined to adopt the federal plain error rule, however, concluding that federal case law is “inapposite and unpersuasive” in determining the scope of plain error review. State v. McClain, supra, 324 Conn. 813 n.8. This is because of the “fundamental differences” between federal and state law regarding the plain error doctrine. Id. “Under federal law, an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant‘s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” (Emphasis in original; internal quotation marks omitted.) Id. Thus, clear error is just one aspect of the federal plain error doctrine, even if measured as of the time of the appeal. “By contrast . . . Connecticut‘s plain error doctrine is a rule of reversibility, mandating reversal when plain error is found.” (Emphasis added.) Id.; see also State v. Bellamy, supra, 323 Conn. 435–39 (explaining differ- ences between federal and Connecticut plain error doctrines). Unlike federal courts, Connecticut appellate courts do not have discretion to reverse a conviction for plain error, and the defendant does not ask this court to grant appellate courts this discretion.
In light of this distinction between the federal plain error doctrine and Connecticut‘s plain error doctrine, we continue to decline to adopt the federal plain error standard and, thus, decline to extend our plain error doctrine to errors that were not clear at the time of trial and require reversal in cases in which both the trial court and the parties properly applied the law existing at the time of trial.11 Accordingly, because this court had not issued its decision in Edwards at the time of the defendant‘s trial and the existing case law
IV
Finally, the defendant requests that this court exercise its supervisory authority over the administration of justice to review his unpreserved claim that the trial court improperly admitted Weaver‘s testimony and corresponding cell tower coverage maps without conducting a Porter hearing.13 The defendant argues that this is an exceptional case in which the interests of justice and consistency of the law weigh in favor of this court‘s exercising its supervisory authority, because, otherwise this court‘s new rule in Edwards will be inconsistently applied. We are not persuaded.
“[B]ypass doctrines permitting the review of unpreserved claims such as [Golding] . . . and plain error [claims], 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 conviction under our supervisory powers only in the rare case [in which] fairness and justice demand it. . . . [The issue at hand must be] 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;
The present case does not present the exceptional and unique circumstances that would justify this court‘s exercising its supervisory authority. Without an adequate record to determine that an evidentiary error exists, let alone wаs harmful, we are not inclined to reverse the defendant‘s conviction. Additionally, we are not persuaded by the defendant‘s argument that the consistent application of Edwards compels this court to exercise its supervisory authority. As explained in part I of this opinion, Edwards entitles a defendant to a Porter hearing regarding cell phone data only upon request. Edwards does not obligate a trial court to conduct a Porter hearing sua sponte. Because the defendant in the present case did not request a Porter hearing, our decision not to exercise our supervisory authority is entirely consistent with our holding in Edwards—only defendants who request a Porter hearing are entitled to one.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.