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State v. Jackson

Court of Appeals of Connecticut

July 24, 2018


          Argued January 29, 2018

         Procedural History

         Substitute information charging the defendant with four counts of the crime of assault in the first degree, and with the crimes of murder, conspiracy to commit murder and criminal possession of a firearm, brought to the Superior Court in the judicial district of Fairfield, where the court, Kavanewsky, J., granted the defendant's motion to sever the charge of criminal possession of a firearm; thereafter, the court granted the state's motion to consolidate the case for trial with that of another defendant; subsequently, the matter was tried to the jury; thereafter, the court denied in part the defendant's motion to preclude certain evidence, and denied the defendant's motions for a continuance and a mistrial, and to introduce certain evidence; verdict of guilty; subsequently, the court denied the defendant's motion for a judgment of acquittal or a new trial; thereafter, the state entered a nolle prosequi as to the charge of criminal possession of a firearm, and the court rendered judgment in accordance with the verdict, from which the defendant appealed. Affirmed.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, C. Robert Satti, Jr., supervisory assistant state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).

          Lavine, Alvord and Beach, Js.


          ALVORD, J.

         The defendant, Raashon Jackson, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a), one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and four counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court: (1) abused its discretion and deprived him of his rights to a fair trial and to present a defense when it denied his motion to preclude the testimony of the state's belatedly disclosed expert witness and refused to afford him a continuance to retain his own expert, (2) abused its discretion in admitting the testimony of the state's expert without conducting a Porter hearing,[1] (3) abused its discretion and deprived him of his right to present a defense when it excluded exculpatory evidence in the form of his investigator's testimony, (4) deprived him of his right to present a defense when it excluded exculpatory evidence regarding the discovery of a gun used in the crimes, and (5) abused its discretion in admitting certain consciousness of guilt evidence and instructing the jury as to that evidence. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On September 10, 2013, Roderick Rogers called his cousin, David Anderson, seeking a ride. At 2:10 p.m., a social worker, William Muniz, went to Rogers' house in Bridgeport to discuss a job opportunity. Rogers told Muniz that he had to go somewhere but could be back in one hour. Muniz asked that Rogers call him when he returned home. As Muniz was leaving, Anderson was arriving. Anderson was on probation at the time, and his movements were tracked by a global positioning system (GPS) device he wore on his ankle.

         Anderson and Rogers left the house together, and Rogers directed Anderson to drive toward Palisade Avenue, a street a couple of blocks away from Rogers' house. After turning on Palisade Avenue, Rogers saw the defendant, who was a friend called Red Dreads. Anderson stopped the car, and the defendant got in on the rear passenger side. Rogers told Anderson to drive from the east side of the city to the ‘‘Terrace, '' located in the north end of Bridgeport. After turning into the Terrace, Rogers directed Anderson to turn around, park on a side street off Reservoir Avenue, and wait because he and the defendant would be right back. Rogers asked Anderson if he had an extra shirt, and Anderson told him to check the trunk. Rogers and the defendant got out of the car, went to the open trunk, shut the trunk, and walked down a hill.

         At the time, a group of young men was gathered outside the Beardsley Terrace public housing complex. Rogers and the defendant approached the group and said, ‘‘y'all just came through the Ave shooting Braz, you all f'd up, ''[2] and began shooting. Rogers and the defendant then ran off with the weapons in their hands. They returned to Anderson's car, and Rogers told Anderson to drive back down Reservoir Avenue. They drove to the corner of Stratford Avenue and Hollister Avenue, and Anderson parked the car. The defendant told Rogers he thought he had dropped a clip. After opening and shutting the car door, the defendant got out of the car, and walked toward Stratford Avenue. Anderson then drove Rogers home. Rogers called Muniz at 2:46 p.m., and Muniz returned to Rogers' home by 3 p.m.

         Seven shell casings were recovered from the scene, and forensic analysis revealed that four were fired from one gun and three were fired from a different gun. One of the victims, LaChristopher Pettway, died from a gunshot wound to his mid-left back. Four others sustained gunshot wounds, including Tamar Hamilton, who was shot in the heel; Leroy Shaw, who was shot in the arm; Jauwan Edwards, who was shot in the buttocks; and Aijholon Tisdale, who was shot in the upper thigh. On September 16, 2013, Rogers was arrested. That day, Rogers sent a text message to the defendant indicating that ‘‘[d]ey taken [me].''

         On March 10, 2014, the defendant was arrested. He was charged in the operative information with murder, conspiracy to commit murder, and four counts of assault in the first degree.[3] Upon the state's motion, the defendant's case was consolidated for trial with that of Rogers. After the presentation of evidence, a jury found the defendant guilty on all counts of the information.[4]The jury also answered ‘‘yes'' to a set of written interrogatories indicating that the state had proven beyond a reasonable doubt that the defendant used a firearm during the commission of each crime. The defendant was sentenced to a total effective term of fifty-five years of incarceration. This appeal followed. Additional facts will be set forth as necessary.


         The defendant first claims that he was ‘‘deprived of a fair trial and of his right to present a defense when the court denied his motion to preclude the testimony of [Hartford Police Sergeant Andrew] Weaver.'' The defendant contends in the alternative that ‘‘[e]ven if the court's decision not to preclude Weaver's testimony was proper, it was certainly an abuse of discretion to deny a reasonable continuance for [the] defendant to consult with an expert.'' In a supplemental brief, the defendant further claims that ‘‘[t]he trial court abused its discretion when it allowed . . . Weaver to testify as an expert without ever conducting a Porter hearing to determine if he was qualified to testify as an expert and whether the methodology he used to support his opinion that [the] defendant was in the same location as Anderson and Rogers at the time of the crime was reliable.'' See footnote 1 of this opinion.

         The following additional facts and procedural history are relevant to these claims. The defendant served a request for disclosure on the state in April, 2014, and filed a ‘‘motion for disclosure and hearing re: state's expert witnesses'' dated April 21, 2015. In his motion, the defendant sought, inter alia, disclosure of the names of each expert witness the state intended to call at trial and the opinions to which each witness was expected to testify. The court addressed the motion during a hearing on April 29. The defendant anticipated that the state might offer an expert with respect to ‘‘pin-point[ing] cell phones relative to towers and things like that, '' and stated that it was ‘‘unclear'' what that expert's opinion may be with respect to the defendant's cell phone. The defendant anticipated that if the state disclosed an expert on this issue, he might file a motion in limine. The court responded: ‘‘Okay. So, what you're asking for is, if the state's going to call an expert to give opinion evidence about the proximity of [the defendant's] cell phone to a tower somewhere that you [would] like to know who that is and [what] they're going to say?'' The defendant confirmed that was the disclosure he sought, and the state responded that it had no objection to providing that information, but stated that it ‘‘can't definitively say who that might be at this time because we're still analyzing the data . . . .'' The court responded: ‘‘But, I mean, if you selected somebody and they say, look, in my opinion, this cell phone was within, like, 100 feet of this tower . . . which is on this building, you'll disclose that to the defense?'' The state replied that it would do so.

         Jury selection began on August 3, 2015. On that date, the state provided the defendant with a list of potential witnesses that included Weaver's name under the heading of Hartford Police Department, but did not identify him as an expert witness. Throughout jury selection, the state identified Weaver to venire panels as a potential witness. On October 1, 2015, seven days before evidence began and while jury selection was still ongoing, the state provided the defendant with Weaver's resume and a file containing a PowerPoint presentation Weaver created. On October 7, the defendant filed a motion in limine seeking to preclude Weaver's testimony, specifically as it related to cell site location information, or, in the alternative, ‘‘a reasonable continuance in order that a defense expert may be retained (e.g., apply for and obtain funding authorization from the Office of the Chief Public Defender, allow for expert's review of necessary materials, etc.)''. The defendant argued that he had not been provided foundational information for Weaver's opinion, and that the late disclosure caused him undue prejudice. The defendant claimed that he needed to hire his own expert, and that he could not identify, hire, and obtain funding for an expert, provide the potential expert with the material for review, and confer with the expert in the presentation of the defendant's defense in the short time before evidence was set to begin.

         The court held a hearing on the defendant's motion in limine on October 20, 2015. The court referred to the defendant's argument regarding the state's late disclosure of Weaver and then stated: ‘‘Also, from a more substantive point of view, I understand the motion in limine to say this . . . that Sergeant Weaver purportedly used . . . two devices or sets of data or software programs-I'm not sure how to characterize them- that the defense feels are problematic. One is cell tower related information that is accessible to law enforcement, and that's referenced in the moving papers. Accessible to law enforcement and it's not reflected on the data that's been produced pursuant to subpoena and witnesses here in court. And that [the] other is the use of what I'm just going to call a GeoTime . . . computer program. . . .

         ‘‘[T]hose are really the issues that I'm trying to give the short version of [w]hat I see the defense raising as problematic. And what I would like to do is to approach it this way. Let me just say one more thing. The other area, in fairness to the defense, is the reliability of this GeoTime software and whether Sergeant Weaver is qualified as an expert to do what he's done. I think that fairly covers everything.''

         Defense counsel then responded: ‘‘Just two things, Your Honor. In terms of sergeant-well, I guess it's related. In terms of Sergeant Weaver's qualifications to testify as an expert and the state's memorandum in opposition, which seems to focus largely on the issue of whether or not the proffer[ed] purpose of Sergeant Weaver's testimony was generally inadmissible . . . I don't think we ever really contested that this type of information can be presented to a jury if coming in through a proper expert. And in terms of Sergeant Weaver's qualifications, we would just like to voir dire him during his testimony if he's allowed to testify. So, that's not really a basis. And then also-and I think there was one issue. . . . One issue that we see as substantive with respect to the-to the PowerPoint presentation slideshow that he-that Sergeant Weaver has presented to us for review, and that is in particular the second page, which is that entire summary page.''

         Defense counsel then called Weaver to the witness stand. Weaver testified that the state's attorney's office had contacted him ‘‘two to three weeks ago'' to inquire whether he would be willing to assist with a case in Bridgeport. The state's attorney's office sent Weaver hard copies and compact discs (CDs) of call detail records from three carriers: AT&T (for a cell phone number the state associated with Anderson), Sprint PCS (for a cell phone number the state associated with the defendant), and Metro PCS (for a cell phone number the state associated with Rogers). Weaver learned that the Metro PCS records contained the wrong set of tower information, and he downloaded the correct tower information from the National Cellular Assistance Data Center (NCADC) in the form of an Excel spreadsheet.[5]Weaver included that spreadsheet on the CD he created, made a second copy for the defense, and advised the state attorney's office that the records were ready. Weaver also e-mailed the PowerPoint presentation to the state. The state never picked up the two copies of the CD and told Weaver that it believed that it had the information it needed.

         After the conclusion of Weaver's testimony during the hearing on the motion in limine, defense counsel argued that the state violated Practice Book § 40-11 by failing to disclose Weaver.[6] Defense counsel further argued that he had never received the CDs Weaver prepared, which contained the cell tower records in the form of an Excel spreadsheet and a version of the PowerPoint presentation that contained a video, rather than a still image.[7] Reciting his efforts to obtain an expert even in the absence of the underlying tower data, defense counsel argued that he had been prejudiced in his ability to meaningfully challenge Weaver's testimony. Defense counsel requested that the court preclude Weaver's testimony, or in the alternative, grant him a reasonable continuance of at least six weeks.

         The state explained that it had understood the court's April 29, 2015 order to require the state to disclose expert opinion evidence once the state received it. The state claimed that it provided Weaver's name on August 3, and that the ‘‘very first research of Sergeant Weaver by the Internet would give certainly an indication as to what he does.'' The state further responded that as soon as it became aware of Weaver's testimony in a Milford case, it provided the transcript to the defendant. The state claimed that it did not meet with Weaver until the ‘‘end of September'' because it was in the process of jury selection for this trial and that another trial was going forward. With respect to the CDs, the state stated that it had ‘‘no answer'' to explain why they were not picked up or disclosed, and represented that it had not seen them.

         With respect to prejudice, the state argued that it had ‘‘provided information from this file'' early on in the case, that ‘‘everybody knew the cell phone evidence was clearly in this case and it was part of the investigation certainly from the early stages, '' and that defense counsel knew Anderson wore a GPS bracelet. In response to a question from the court regarding why the state delayed in retaining and meeting with Weaver, the state responded that both the state and defense counsel were preparing for other trials, and that in June, 2015, this case had been postponed until August.

         In an oral ruling, the court stated: ‘‘[T]he problem I'm having is, while I know that we are all busy people, I don't think it's a fair interpretation of what the Practice Book requires and what the court orders were in this case to say that, okay, as soon as we have it we'll give it to you notwithstanding when we have it. I mean, what does that mean? Now, that would mean that you engage an expert and you have the product that you intend to offer through him the date before the evidence starts. I know that didn't happen here, but the product was delivered in October, October the first or thereabouts and the evidence started on October the eighth. I just don't-you know, these obligations for disclosure, which were filed, [somewhat] generic, others were much more specific made months ago. And while I don't disagree with the state that this type of evidence cannot be said to be unanticipated, the problem is that until the defense knows . . . what the state is going to present . . . it can't prepare to, you know, meet that evidence by either consulting other experts or retaining other experts or what have you. That's the problem I have. That's the problem I have here.

         ‘‘I'm not saying that there was bad faith involved. I'm just saying that notwithstanding our schedules, I believe that . . . this was all an avoidable situation. You know, had-or have we been pressed, you know, the state could well have said, Your Honor, I need two days off from jury selection to go meet with expert so and so to see if we're going to use him, and that didn't happen. I'm . . . just troubled by the way that this all unfolded. Again, not that there was bad faith involved, but this was . . . in my mind, an avoidable situation.''

         In concluding that the defendant had not suffered prejudice, the court explained that ‘‘what the state intends to present here by way of cell phone evidence, the movement of these phones and . . . the GPS, is not what I would call a . . . matter that is so novel or cutting edge or unusual that the defendant would suffer prejudice as a result of allowing its use here in court in testimony through the witness.'' The court accordingly denied the defendant's motion in limine, but precluded from evidence two slides of Weaver's PowerPoint presentation, one depicting the video the defendant had never received; see footnote 7 of this opinion; and another containing hearsay. Defense counsel inquired whether the court also was denying the defendant's request for a continuance, to which the court replied that it was and that ‘‘[y]ou can renew your motion if you need be at the . . . end of direct. But based upon what I've heard so far, been presented with so far, I'm denying the request for a continuance.'' The defendant then moved for a mistrial, which the court denied.

         Defense counsel also requested a copy of the Excel spreadsheet, and the state indicated that it was copying the CDs to provide to the defendant. The state further indicated that Weaver was returning to his office to redact the precluded information. The next afternoon, before Weaver was set to testify before the jury, defense counsel informed the court that in addition to making redactions to the PowerPoint presentation, Weaver had made other revisions, including changing the representation of cell site coverage areas from ovals to pie wedges, which had the effect of narrowing the coverage areas. The court ordered a ten minute recess to allow defense counsel to confer with Weaver regarding the changes. Back on the record, defense counsel stated that although he had a better understanding of the changes, he was still unclear as to the reason for them. Defense counsel renewed his requests for preclusion and for a mistrial. In the alternative, the defendant sought a continuance in order to obtain the transcript from the prior day's hearing, or at a minimum, a continuance ‘‘until tomorrow to have an opportunity to digest all this material'' and prepare for cross-examination the following day. Defense counsel noted that the state had given him CDs the day before, but that the CDs were not responsive to the defendant's requests and that new CDs provided that morning had not yet been reviewed by defense counsel. The court granted a continuance until the following morning and asked defense counsel whether he believed that time to confer with Weaver would be useful to him, to which defense counsel replied that he did. The court ordered Weaver to remain available to defense counsel from the time it adjourned, which appeared to be sometime after 4 p.m., until 4:45 or 4:50 p.m. The court further ordered the state to provide any of Weaver's spreadsheets that it had not yet provided to defense counsel.

         The next morning, defense counsel informed the court that he had spent twenty minutes or one-half hour with Weaver, who ‘‘provided some clarification relative to the changes in his presentation.'' For the reasons that he previously had offered, the defendant then renewed his objection to the state's late disclosure of Weaver. Defense counsel stated: ‘‘But specific as to the changes, I can't say to the court that I'm not prepared to go forward today and address those changes as needed.'' He further implied that the revision to the PowerPoint presentation ‘‘just magnifies the import of the prejudice to [the defendant] relative to not being able to get our own expert.'' The court inquired of defense counsel whether ‘‘these changes in the report impair your ability to cross-examine the witness to any greater extent [than] you feel you may have been impaired when you first made the motion to preclude . . . .'' Defense counsel responded that they did not and represented to the court that he felt prepared to go forward.

         Evidence then resumed, and the state called Weaver to the witness stand. After inquiring as to Weaver's experience and background, the state introduced Weaver's PowerPoint presentation into evidence. Defense counsel conducted a voir dire as to the PowerPoint presentation, and ultimately did not object to the presentation. Weaver testified that the states attorney's office had provided him with logs for Anderson's GPS device and call detail records for three phone numbers, and had asked him to map the location of Anderson's GPS and phone calls made and received for two of the phone numbers, which the state attributed to Rogers and the defendant. Using software called GeoTime, Weaver mapped these locations, which were depicted on the maps as a person figure in the center of 120 degree pie shaped coverage areas. Weaver's presentation contained fifteen different snapshots of maps and descriptions indicating Anderson's GPS location and whether the defendant's or Rogers' cell phone connected to a cell site with a ‘‘generally expected coverage area'' in which Anderson's GPS was also located.

         Snapshots nine through thirteen showed that the defendant's phone connected to a cell site whose coverage area included Anderson's GPS. Specifically, snapshot nine depicted the defendant's phone connected to a cell site whose coverage area included the location of the shootings. Snapshot thirteen depicted Rogers' and the defendant's phones connected to a cell site that included the area of Stratford Avenue and Hollister Avenue, where Anderson's GPS was also located. Weaver opined that the ‘‘phones moved together or met with before and/or after . . . the [victim's] murder. They either traveled to or traveled from. [Rogers' phone] moved toward the [victim's] murder with the Anderson GPS. And the [defendant's] phone, the 6819 number, moved away and then when they actually made phone calls all together . . . within this area of Stratford and Hollister after the homicide.''

         At the conclusion of Weaver's direct examination, defense counsel did not renew the defendant's request for a continuance. On cross-examination, defense counsel questioned Weaver about a call made from Rogers' phone to the defendant's phone at 2:14 p.m. Weaver testified that he did not map the 2:14 p.m. call because the state's attorney's office had asked him only to plot the locations when the two phones were together, and the two phones were not together at the time of that call. Weaver also testified that he did not include any other cell sites in the area, and thus, his presentation did not depict any coverage overlap between towers. Last, Weaver's snapshots did not depict the movement of the phones.

         On December 18, 2015, the defendant filed a motion for a judgment of acquittal or, in the alternative, a new trial. In his memorandum of law in support of the motion, the defendant claimed that the state's failure to timely disclose Weaver, and the court's failure to preclude Weaver's testimony or afford the defendant a reasonable continuance to retain his own expert, deprived the ...

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