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*********************************************** 
STATE OF CONNECTICUT v. RAASHON JACKSON

(SC 20193)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins and Ecker, Js.

Syllabus

Convicted of murder, conspiracy to commit murder, and four counts of

assault in the first degree in connection with a shooting in which one

person died and four others were injured, the defendant appealed, challenging various evidentiary rulings and the trial court’s decision to deny

a motion for a continuance to allow him to retain an expert to respond

to the testimony of W, whom the state belatedly disclosed to the defense

and called as an expert witness on cell site location information. On

the day of the shooting, the defendant and his friend, R, were driven by

R’s cousin to and from a housing complex where the shooting occurred.

Approximately five to six months before his trial, the defendant filed a

motion seeking disclosure of the expert witnesses the state intended

to call and the opinions to which each witness was expected to testify.

At a hearing on that motion approximately one week later, the court

ordered the state to disclose to the defense any expert that it may

ultimately select to testify about the proximity of the defendant’s cell

phone to a particular cell tower. Approximately three months later, the

state provided the defense with a list of potential witnesses, including

W, but did not identify him as an expert witness or describe the intended

nature of his testimony. Approximately two months later, after voir dire

commenced and seven days before evidence was to begin, the state

provided the defense with W’s resume and a copy of a certain computer

software presentation that W had prepared and that purportedly charted

the locations of the defendant’s and R’s cell phones around the time

of the shooting. Thereafter, one day before evidence commenced, the

defendant filed a motion in limine, seeking to preclude W’s testimony.

At the hearing on the defendant’s motion, which the trial court conducted

several days after evidence had begun, defense counsel requested that

the court preclude W’s testimony or, alternatively, grant a reasonable

continuance of at least six weeks. The court denied the defendant’s

motion in limine insofar as he sought to exclude W’s testimony, concluding, inter alia, that the defendant had not suffered prejudice as a result

of the late disclosure. The court also denied counsel’s request for a

continuance. On appeal, the Appellate Court affirmed the judgment of

conviction, concluding, inter alia, that the trial court had not abused its

discretion in denying the motions in limine and for a continuance. On

the granting of certification, the defendant appealed to this court, claiming that, contrary to the Appellate Court’s conclusion, the trial court

had abused its discretion in permitting W to testify in light of the state’s

late disclosure of W as an expert or, alternatively, in declining counsel’s

request for a continuance to obtain his own expert on cell site location

information. Held:

1. The Appellate Court incorrectly concluded that the trial court had not

abused its discretion when it allowed W to testify without first granting

the defense a reasonable continuance so that it could retain its own

expert witness on cell site location information, and, because the trial

court’s error was harmful, the defendant was entitled to a new trial:

there was no valid reason why the disclosure of W was not made until

after voir dire began and only one week before evidence was to begin,

and the defendant was prejudiced by the late disclosure, as W’s testimony

included information that was beyond the knowledge of the average

juror, it was essential for the defense to be able to retain its own expert

in order to meaningfully understand and challenge W’s testimony, and

the two brief continuances that the trial court did afford the defense

to obtain clarification from W regarding certain changes that W had

made to his computer software presentation before he was to testify,

did not meaningfully alleviate that prejudice; moreover, contrary to

the state’s claim, defense counsel did not abandon his request for a

continuance by not renewing it after the state’s direct examination of
W, as counsel noted numerous times after W’s testimony that the defendant was prejudiced by the denial of counsel’s request for a reasonable

continuance, and counsel’s statement that he was not seeking a further

continuance was merely in response to the trial court’s misunderstanding

that the defense was seeking a continuance before proffering the testimony of its investigator on cell site location information; furthermore,

the trial court’s error of allowing W to testify without first giving the

defense a reasonable continuance to obtain its own expert was harmful

because, in view of the centrality of W’s expert testimony to the state’s

case, which was the only objective evidence placing the defendant’s

cell phone in the same area as R’s cell phone around the time of the

shooting and the only evidence identifying the defendant as the second

suspect in the shooting, this court could not conclude that it had a fair

assurance that the error did not substantially affect the verdict.

2. This court declined to address the defendant’s claims that the Appellate

Court improperly upheld the trial court’s exclusion of his investigator’s

testimony and that the Appellate Court incorrectly concluded that the

defendant had failed to preserve his claim that the trial court was

required to hold a hearing in accordance with State v. Porter (241

Conn. 57) before allowing W to testify because those claims were not

sufficiently likely to arise during the defendant’s retrial, and also declined

to address the defendant’s claim that the trial court abused its discretion

by admitting evidence regarding his failure to appear in court on unrelated criminal charges as evidence of consciousness of guilt, as the

record could look different on retrial.

Argued September 25, 2019—officially released March 3, 2020

Procedural History

Substitute information charging the defendant with

four counts of the crime of assault in the first degree,

and with one count each of 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 for trial the

defendant’s case with that of another defendant, and

the cases were tried to the jury; subsequently, the court

denied in part the defendant’s motion to preclude certain evidence and denied the defendant’s motions for

a continuance, for a mistrial, and to introduce certain

evidence; verdict of guilty; thereafter, the court denied

the defendant’s motion for a judgment of acquittal or

a new trial; subsequently, 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

to this court; thereafter, the case was transferred to the

Appellate Court, Lavine, Alvord and Beach, Js., which

affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this

court. Reversed; new trial.

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).
Opinion

McDONALD, J. The defendant, Raashon Jackson,

appeals from the Appellate Court’s judgment affirming

his conviction 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 § 53a59 (a) (5). See State v. Jackson, 183 Conn. App. 623,

627, 193 A.3d 585 (2018). The defendant claims, among

other things, that it was an abuse of discretion for the

trial court to permit the state’s expert witness on cell

site location information (CSLI) to testify as to what

that information revealed about the location of the

defendant and his associates during the time the crimes

occurred because the state disclosed the expert after

voir dire began and only one week before evidence

started, despite a court order issued six months earlier

requiring the state to disclose any experts. Alternatively,

the defendant argues that it was an abuse of discretion

for the trial court to deny his related motion for a

continuance to obtain his own CSLI expert. We conclude that it was an abuse of discretion for the trial

court to allow the state’s late disclosed expert witness

to testify without first granting the defendant a reasonable continuance to obtain his own expert. Because we

also conclude that this error was harmful, we reverse

the judgment of the Appellate Court.

The Appellate Court’s opinion sets forth the facts

that the jury could reasonably have found; see id.,

627–29; which we summarize in relevant part as follows.

On September 10, 2013, Roderick Rogers called his

cousin, David Anderson, for a ride from Rogers’ home

in Bridgeport. Before Anderson arrived, a social worker,

William Muniz, came to Rogers’ house at 2:10 p.m. to

discuss a job opportunity. Rogers informed Muniz that

he had to leave but would be back in one hour. As Muniz

was leaving, Anderson arrived. Because Anderson was

on probation, he wore a global positioning system

(GPS) device that tracked his movements.

Anderson and Rogers left the house in Anderson’s

car, and Rogers directed Anderson to drive toward Palisade Avenue, on the east side of Bridgeport. On Palisade

Avenue, Rogers saw the defendant, a friend whom he

called Red Dreads, and directed Anderson to stop the

car. The defendant got into the backseat of Anderson’s

car. Rogers then directed Anderson to drive to the ‘‘Terrace,’’ a reference to the Beardsley Terrace housing

complex located in the north end of Bridgeport. After

arriving at the housing complex, Rogers told Anderson

to park on a side street off Reservoir Avenue. Rogers

asked Anderson if he had an extra shirt, and Anderson

told him to check the trunk. Rogers asked Anderson

to wait because he and the defendant would be right

back. Rogers and the defendant got out of the car, went
to the open trunk, shut the trunk, and walked down

a hill.

At that time, a group of young men was gathered

outside the housing complex. Rogers and the defendant

approached the group, remarked, ‘‘y’all just came

through the Ave shooting Braz, you all f’ed up,’’ and

either Rogers or the defendant began shooting at the

group. One of the shooting victims, LaChristopher Pettway, sustained a fatal gunshot wound to his back. Four

other victims, Tamar Hamilton, Leroy Shaw, Jauwane

Edwards, and Aijahlon Tisdale, sustained nonfatal

wounds.

Rogers and the defendant then left the scene of the

shootings and returned to Anderson’s car. Rogers told

Anderson to drive down Reservoir Avenue. Anderson

then drove to the corner of Stratford Avenue and Hollister Avenue, where Anderson parked the car on the

side of the street. The defendant got out of the car, and

Anderson drove Rogers home. Rogers called Muniz at

2:46 p.m., and Muniz returned to Rogers’ home by 3 p.m.

The record reveals the following procedural history.

On September 16, 2013, Rogers was arrested. That same

day, Rogers sent the defendant a text message stating

that ‘‘[d]ey taken [me].’’ Thereafter, the defendant also

was arrested and charged in the operative information

with murder, conspiracy to commit murder, and four

counts of assault in the first degree.1 The trial court

granted the state’s motion to consolidate for trial the

defendant’s case with Rogers’ case.

Anderson testified as a witness for the state. Over

defense counsel’s objection, the state also presented the

testimony of the state’s CSLI expert, Sergeant Andrew

Weaver of the Hartford Police Department, who testified to the location of Rogers’ and the defendant’s cell

phones and Anderson’s GPS monitor. The court also

took judicial notice, over the defendant’s objection, of

facts surrounding the defendant’s failure to appear in

court, on unrelated charges, following the shootings as

evidence of consciousness of guilt in this case.

The jury found the defendant guilty of all counts,2

and he was sentenced to a total effective term of fiftyfive years of incarceration. He appealed from the trial

court’s judgment, challenging various evidentiary rulings and the trial court’s decision to deny his motion

for a continuance to allow him to obtain an expert to

respond to the state’s belatedly disclosed expert. The

Appellate Court rejected each of the defendant’s arguments and affirmed the judgment of conviction. See

State v. Jackson, supra, 183 Conn. App. 669.

We thereafter granted the defendant’s petition for

certification to appeal, limited to the following issues:

(1) ‘‘Did the Appellate Court properly hold that the trial

court’s denial of the motion to preclude the state’s late

disclosed expert witness [on CSLI] and related motion
for continuance was not an abuse of discretion and,

even if an abuse of discretion, was not harmful error?’’

(2) ‘‘Did the Appellate Court properly [uphold] the trial

court’s exclusion of [testimony from the defendant’s

investigator on the issue of the defendant’s cell phone

location]?’’ (3) ‘‘Did the Appellate Court properly conclude that the trial court did not abuse its discretion

by admitting evidence regarding the defendant’s failure

to appear in court on unrelated criminal charges as

evidence of consciousness of guilt in this case?’’ And

(4) ‘‘Did the Appellate Court properly conclude that the

defendant had failed to preserve his claim that, pursuant

to State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017),

the trial court was required to hold a hearing in accordance with 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 allowing the state’s expert

to give expert testimony regarding the defendant’s cell

phone location?’’ State v. Jackson, 330 Conn. 922, 922–

23, 193 A.3d 1214 (2018). We conclude that it was an

abuse of discretion for the trial court to allow the state’s

late disclosed expert witness to testify without first

granting the defendant a reasonable continuance to

obtain his own expert. We also conclude that this error

was harmful. In light of this conclusion, we do not reach

the remaining, certified issues.

I

We begin with the defendant’s claim that the Appellate Court incorrectly concluded that the trial court

did not abuse its discretion either when it allowed the

state’s late disclosed expert witness to testify or when

it declined to grant the defendant a continuance to

obtain his own expert witness.

The record reveals the following additional facts relevant to this issue. In April, 2014, the defendant served

on the state a request for disclosure, which included a

request for reports or statements of any experts. In

response, the state disclosed certain information but

did not include any information pertaining to an expert.

One year later, the defendant filed a motion, dated April

21, 2015, seeking disclosure of the expert witnesses the

state intended to call at trial and the opinions to which

each witness was expected to testify. At an April 29

pretrial hearing on the motion, defense counsel specifically stated that it was unclear whether the state had

obtained a CSLI expert and, if so, what that expert’s

opinion might be with respect to the defendant’s cell

phone location. The defendant indicated that,

depending what the opinion was, he ‘‘would anticipate

that [he] may file a motion in limine to . . . preclude

entirely or to limit the scope of the testimony . . . .’’

The court confirmed that, ‘‘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 or a tower somewhere that you [would] like to
know who that is and [what] they’re going to say?’’ The

defendant confirmed that this was the information he

sought. The state raised no objection to this second

disclosure request but stated that it ‘‘can’t definitively

say who that might be at this time because [it is] still

analyzing the data . . . .’’ The court responded: ‘‘But

. . . if you select 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.

More than three months later, when jury selection

began on August 3, 2015, the state provided the defendant with a list of 128 potential witnesses. The thirtysixth name on the list was Weaver, under the heading

‘‘Hartford Police [Department].’’ Weaver was not identified as an expert witness or described in any other way.

On October 1—nearly two months after that general

disclosure, after voir dire had commenced, and seven

days before evidence began—the state provided the

defendant with Weaver’s resume and a copy of a PowerPoint computer software presentation Weaver had

prepared that purportedly charted the locations of the

cell phones associated with the defendant and Rogers,

as well as the GPS unit worn by Anderson around the

time of the shootings.

On October 7, 2015, one day before evidence commenced, the defendant filed a motion in limine seeking

to preclude Weaver’s testimony, ‘‘particularly as it concerns [CSLI], or, at a minimum, 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 [the]

expert’s review of necessary materials, etc.).’’ The

defendant argued that the state had not provided him

foundational information for Weaver’s opinion and that

the late disclosure unduly prejudiced him and his right

to present a defense. The defendant noted that, because

Weaver’s name had been among those that the state

had read to venire panels since the start of jury selection, nearly two months prior, ‘‘the state knew for at

least two months that it intended to call [Weaver] for

purposes of offering his PowerPoint presentation but

waited until the literal eve of trial to disclose it to the

defense, a course that deprived [the defendant] of the

opportunity to inquire about the potential impact of

cell phone data on [a venireperson’s] decision-making

and/or to ascertain [a venireperson’s] familiarity with

cell phone data and towers.’’ (Emphasis in original.)

The defendant asserted that, if Weaver were permitted

to testify, the defendant would need to obtain his own

expert and that he could not identify, hire, and obtain

funding for an expert, provide the expert with the material for review, and confer with the expert on the presentation of the defendant’s defense in the short time

before evidence was set to begin.
The trial court took no action on the motion in limine

until several days after evidence began on October 8,

2015. The court held a hearing on the motion on October

20. The court noted the defendant’s arguments regarding the state’s late disclosure and stated that it understood that the defendant was also challenging the reliability of the software that Weaver had used to generate

the maps contained in his PowerPoint presentation and

whether he was qualified to conduct his analysis.

Defense counsel clarified, ‘‘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 [Weaver’s] qualifications, we would just like

to voir dire him during his testimony if he’s allowed

to testify.’’3

Voir dire of Weaver then occurred outside the presence of the jury. Weaver testified that the state had first

contacted him ‘‘[t]wo to three weeks ago,’’ told him that

it had phone records and records related to a GPS

monitor that it wanted to have mapped, and provided

him with cell phone records for the defendant, Rogers,

and Anderson, and records for Anderson’s GPS monitor.

Weaver learned that the records associated with the

defendant’s phone contained the wrong set of tower

information, so he downloaded the correct information

from the National Cellular Assistance Data Center in the

form of a Microsoft Excel spreadsheet. Weaver testified

that he included that spreadsheet on a compact disc

(CD) that he created, made a copy for the defense, and

advised the Office of the State’s Attorney in Bridgeport

that the records were complete. Weaver also e-mailed

the PowerPoint presentation to the state. The state told

Weaver that it believed that it had the information it

needed based on the PowerPoint presentation and

never picked up either the original or the copy of the

CD from him in Hartford.

Following Weaver’s testimony, defense counsel

argued that the state had violated Practice Book § 40-

114 by failing to disclose Weaver as its expert in a timely

fashion. The defendant also argued that he had never

received the CD from the state that Weaver prepared,

which contained not only the Excel spreadsheet but

also a version of Weaver’s PowerPoint presentation

containing a video depicting the movement of Anderson’s GPS monitor, rather than a still image. Defense

counsel noted that, despite not having the underlying

data from the state, he had attempted to obtain an

expert witness following the state’s October 1 disclosure but had not yet been successful. He argued that

he had been prejudiced in his ability to meaningfully

challenge Weaver’s testimony and requested that the

court preclude Weaver’s testimony or, alternatively,

grant him a ‘‘reasonable continuance . . . for at least

six weeks.’’

The state explained that it thought the court’s April
29, 2015 order required it to disclose expert opinion

evidence to the defense only after the state received it.

The state noted that it had provided the defense with

Weaver’s name on August 3, approximately two months

before the state even contacted Weaver, and that the

defendant was ‘‘aware that [CSLI data] was an issue

we were looking into.’’ 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

it was preparing for other trials. Finally, the state noted

that it had ‘‘no answer’’ to explain why it did not pick up

the CDs from Weaver or disclose them to the defendant.

In an oral ruling, the court stated: ‘‘[T]he problem

I’m having is, while I know 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 . . . October the first or thereabout and the

evidence started on October the eighth. . . . [T]hese

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 . . . 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.

. . . [T]he 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.’’

The court ultimately concluded, however, that the

defendant had not suffered prejudice as a result of the

late disclosure. It reasoned that ‘‘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.’’5 Accordingly, the

court denied the defendant’s motion in limine insofar

as he sought to exclude Weaver’s testimony in its

entirety, but it did preclude two slides of the Pow-
erPoint presentation, one containing the video that the

defendant never received and another containing

hearsay.

Defense counsel asked whether the court was also

denying the defendant’s request for a continuance. The

court replied, ‘‘[y]es. You can renew your motion if . . .

need be at the . . . end of direct [examination]. 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. The state thereafter provided the defense with

copies of Weaver’s Excel spreadsheet and CD.

The next day, before Weaver was set to testify before

the jury, defense counsel informed the court that, in

addition to redacting the precluded information from

the PowerPoint presentation, Weaver had also changed

the representation of cell site coverage areas depicted

in his visual presentation from ovals to pie wedges,

which narrowed the coverage areas. The court ordered

a ten minute recess to allow defense counsel to meet

with Weaver regarding the changes he had made to

the presentation. Following the recess, defense counsel

stated that, although he had a better understanding of

the changes to the PowerPoint presentation, he was

still unclear as to the reason for them. Defense counsel

renewed his requests for preclusion and for a mistrial,

and, in the alternative, asked for a continuance to at

least the next day to review the new material and to

prepare for cross-examination. The court granted the

continuance until the following morning.

The next morning, defense counsel stated that, outside of court, Weaver had provided ‘‘some clarification’’

about the changes he made to his presentation. He

renewed his objection to the late disclosure and argued

that the revised presentation magnified the prejudice

caused to the defendant because he was prevented from

obtaining his own expert. The court asked defense

counsel whether the changes to the presentation

‘‘impair your ability to cross-examine the witness to

any greater extent than you feel you may have been

impaired when [the defendant] first made the motion

to preclude . . . .’’ Defense counsel acknowledged that

the additional time had helped him prepare for crossexamination regarding the changes to the presentation.

Thereafter, Weaver testified, and his PowerPoint presentation was shown to the jury. Weaver testified that

the state’s attorney’s office had provided him with logs

for Anderson’s GPS monitor and call records for three

phone numbers, and asked him to map the location of

both Anderson’s GPS monitor and of phone calls made

and received for two of the phone numbers, which the

state attributed to Rogers and the defendant. Using

commercial mapping software, Weaver plotted these

locations, which were depicted on the maps as a person

figure in the center of 120 degree pie shaped coverage
areas. The placement of the figure in the center did not

mean that was the exact location of the cell phone;

rather, it meant that the phone was generally within

the cell tower’s coverage area.

Weaver’s PowerPoint presentation contained fifteen

different snapshots of time. The maps and descriptions

indicated 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 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. Snapshots

ten through twelve also showed the defendant’s phone

as being in the same coverage area as Anderson’s GPS.

Finally, snapshot thirteen showed that the defendant’s

phone, Rogers’ phone, and Anderson’s GPS were all

in the area of Stratford Avenue and Hollister Avenue.

Weaver opined that these maps showed 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 [Anderson’s] GPS. And the [defendant’s] phone . . . moved away and then when they

actually made phone calls all together . . . within this

area of Stratford and Hollister after the homicide.’’

On cross-examination, Weaver admitted that the

prosecutor had directed him to map only those calls

made when the phones were in the same proximity,

and, consequently, there were several calls that had not

been mapped. Specifically, Weaver did not include a

phone call made from Rogers’ phone to the defendant’s

phone at 2:14 p.m. He explained that he was asked only

to plot the points and times when the two phones were

together, and, because the defendant’s phone was not

near Rogers’ at that time, he did not include it. He also

did not include other cell towers that were in the area,

and, as such, his presentation did not depict any coverage overlap between towers. Weaver’s snapshots also

did not depict the movement of the phones.

Following the jury’s verdict, the defendant filed a

motion for a judgment of acquittal or, in the alternative,

a new trial. In support of his motion, the defendant

claimed that the state’s late disclosure of Weaver and

the court’s failure to preclude Weaver’s testimony or to

afford the defendant a reasonable continuance deprived

the defendant of a fair trial. The court denied the

motion.

On appeal, the Appellate Court concluded that the

trial court had not abused its discretion in denying

the motions in limine and for a continuance. State v.

Jackson, supra, 183 Conn. App. 641. With regard to

Weaver’s testimony, the court reasoned that the sup-
pression of otherwise admissible evidence is a severe

sanction, and the defendant was not challenging Weaver’s qualifications or the reliability of the software he

used. Id., 641–42. With respect to the continuance, the

court concluded that the defendant was prejudiced by

the late disclosure but that this prejudice was adequately mitigated by defense counsel’s effective crossexamination of Weaver. Id., 643. It also noted that,

although ‘‘the requested continuance likely would have

cured any then existing prejudice to the defendant as

a result of the late disclosure,’’ had the trial court considered the feasibility of a continuance, it could have

concluded that the six week continuance that defense

counsel requested would be too disruptive to the trial.

Id., 644.

Nonetheless, the court acknowledged that the question of whether the trial court abused its discretion in

failing to order a continuance was a ‘‘close one.’’ Id.,

646. It therefore went on to conclude that, even if the

denial of the continuance was an abuse of discretion,

the defendant had not demonstrated that the error was

harmful. Id., 648. It explained that ‘‘Weaver’s testimony,

although important to the state’s case, also was corroborative of other testimony presented to the jury,’’ such

as Anderson’s detailed description of the events on the

day of the shootings and surveillance videos. Id., 648–49.

It also noted that the ‘‘state’s case against the defendant

was relatively strong’’ based on Anderson’s testimony,

as well as other circumstantial evidence, including consciousness of guilt evidence. Id., 649.

On appeal to this court, the defendant claims that

the trial court’s failure to order any sanction for the

state’s late disclosure was an abuse of discretion

because he should not have been obligated to anticipate

Weaver’s testimony and the state offered no good reason for its dilatory inaction. The defendant argues that

permitting the state’s expert to testify without providing

him an opportunity to secure his own expert was harmful because it deprived him of the opportunity to effectively undermine Weaver’s expert opinion, and the

state’s case was not strong without Weaver’s testimony.

The state claims that the Appellate Court correctly

concluded that the trial court did not abuse its discretion because the trial court afforded the defendant brief

continuances to permit review of any belatedly disclosed materials, and it allowed extensive cross-examination. It further argues that the facts of this case do not

warrant the ‘‘draconian remedy’’ of precluding Weaver’s

testimony. The state also argues that the trial court

did not abuse its discretion when it denied defense

counsel’s request for a six week continuance because,

‘‘in substance, it granted two brief continuances, after

which the defendant abandoned his request for a lengthier one.’’ Finally, the state argues that, even if the admission of Weaver’s testimony was an abuse of discretion,
such error was harmless because his testimony was

corroborative of other testimony and evidence and the

state’s case was ‘‘remarkably strong . . . .’’

Resolution of this issue is controlled by well settled

principles. Pursuant to Practice Book § 40-11 (a) (3),

upon written request by a defendant, the state shall

disclose any ‘‘reports or statements of experts made in

connection with the offense charged including results

of . . . scientific tests, experiments or comparisons

which are material to the preparation of the defense

or are intended for use by the prosecuting authority as

evidence in chief at the trial . . . .’’ The state has a

continuing duty to disclose such documents, and, if

there is a failure to comply with disclosure, the trial

court must take appropriate action, including the imposition of an appropriate sanction. See, e.g., State v.

Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980); see also

Practice Book §§ 40-3 and 40-5.

Practice Book § 40-5 gives broad discretion to the

trial judge to fashion an appropriate remedy for noncompliance with discovery. See, e.g., State v. Respass,

256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S.

1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). The

court may enter such orders ‘‘as it deems appropriate,

including . . . (2) Granting the moving party additional time or a continuance . . . (4) Prohibiting the

noncomplying party from introducing specified evidence . . . (5) Declaring a mistrial . . . [or] (8) Entering such other order as it deems proper.’’ Practice Book

§ 40-5. ‘‘[T]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant’s rights are protected, not to exact punishment on

the state for its allegedly improper conduct. As we have

indicated, the formulation of an appropriate sanction

is a matter within the sound discretion of the trial court.

. . . In determining what sanction is appropriate for

failure to comply with [court-ordered] discovery, the

trial court should consider the reason why disclosure

was not made, the extent of prejudice, if any, to the

opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.’’ (Internal quotation marks omitted.) State v.

Respass, supra, 186. As with any discretionary action

of the trial court, appellate review requires every reasonable presumption in favor of the action, and ‘‘ ‘the

ultimate issue is whether the trial court could reasonably conclude as it did.’ ’’ State v. Arthur H., 288 Conn.

582, 595, 953 A.2d 630 (2008). ‘‘In general, abuse of

discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily

as to vitiate logic, or has decided it based on improper or

irrelevant factors.’’ (Internal quotation marks omitted.)

State v. O’Brien-Veader, 318 Conn. 514, 555, 122 A.3d

555 (2015).

The determination of whether to grant a request for
a continuance is similarly within the discretion of the

trial court. See, e.g., State v. Hamilton, 228 Conn. 234,

239, 636 A.2d 760 (1994). The court, in exercising its

discretion, may weigh various factors in considering a

request for a continuance, including ‘‘the likely length

of the delay . . . the impact of delay on the litigants,

witnesses, opposing counsel and the court . . . the

perceived legitimacy of the reasons proffered in support

of the request . . . [and] the likelihood that the denial

would substantially impair the defendant’s ability to

defend himself . . . .’’ (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 787, 911 A.2d 1099

(2007). ‘‘In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must

also engage in harmless error analysis.’’ State v. Hamilton, supra, 242.

In the present case, we need not decide whether the

trial court’s decision to permit the state’s late disclosed

expert witness to testify was, in and of itself, an abuse

of discretion. Instead, we conclude that this action was

an abuse of discretion in the absence of affording the

defendant a reasonable continuance to obtain his own

expert. Cf. State v. Festo, supra, 181 Conn. 266 (it is

appropriate for trial court to afford ‘‘the defendants

more time to examine and analyze the [late disclosed]

evidence in lieu of granting their motions for a mistrial

and motions for suppression of evidence’’).

The state disclosed Weaver as an expert on October

1—only seven days before evidence began—despite

knowing for at least two months that it may call Weaver,

a Hartford police sergeant unconnected to the legal

investigation of a Bridgeport crime, to testify.6 The

defendant had filed a motion for disclosure of the state’s

expert witnesses more than five months prior to the

state’s disclosure. Pursuant to Practice Book § 40-11

(a) (3) and the trial court’s April 29 discovery order,

the state was required to timely disclose to the defendant that it anticipated calling a CSLI expert. As we

have explained, the rules of practice impose ‘‘on parties

to a criminal proceeding a continuing duty to disclose

material previously requested. . . . Practice Book

[§ 40-3] requires notification as soon as practicable

under the prevailing circumstances.’’ (Emphasis

added.) State v. Gunning, 183 Conn. 299, 306, 439 A.2d

339 (1981).

The trial court concluded that the late disclosure

was avoidable, rejecting the state’s explanations for the

timing—that it was involved in jury selection for this

case and preparing for other cases, and that it interpreted the court’s April 29, 2015 discovery order to require

the state to disclose expert opinion evidence only when

the state received it. We agree that there was no valid

reason why disclosure was not made until after voir

dire began and only one week before evidence began.

The state’s failure to prepare for trial in a timely fashion
is not a valid reason for a late disclosure of an expert

witness to the defense. Late disclosure rendered the

defendant’s opportunity to prepare a meaningful

defense effectively nonexistent. The same exigency the

state cited—that it was involved in jury selection in

this case—was true for the defense as well. The only

meaningful difference between the state and the

defense was that the state was afforded the opportunity

to disclose its expert late, but the defendant was not

similarly afforded a reasonable continuance to adjust

his trial strategy to respond to that eleventh hour disclosure. Indeed, we have explained that timely disclosure

is designed to prevent this precise situation. See, e.g.,

State v. Festo, supra, 181 Conn. 265 (‘‘[t]he purpose of

criminal discovery is to prevent surprise and to afford

the parties a reasonable opportunity to prepare for

trial’’).

We also conclude that the defendant was prejudiced

as a result of the late disclosure. As the Appellate Court

properly recognized, ‘‘the defendant was prevented

from consulting with, and potentially presenting the

testimony of, his own expert.’’7 State v. Jackson, supra,

183 Conn. App. 643. This is not a case in which the

reasons the defendant proffered in support of the continuance were speculative. Cf. State v. Delgado, 261

Conn. 708, 714–15, 805 A.2d 705 (2002) (‘‘trial court

does not act arbitrarily or unreasonably when it denies

a motion for a continuance that is supported by mere

speculation’’).

The trial court’s prejudice analysis focused on the

substance of Weaver’s testimony, and the court concluded that Weaver’s testimony was not ‘‘so novel or

cutting edge or unusual.’’ This conclusion is inconsistent with this court’s decision in State v. Edwards,

supra, 325 Conn. 97. In Edwards, we concluded that

the process of analyzing CSLI data is ‘‘ ‘beyond the ken

of the average juror.’ ’’8

Id., 128. In order to meaningfully

understand and challenge Weaver’s testimony, it was

essential for the defendant to be able to obtain his own

CSLI expert. We are not persuaded that the two brief

continuances the trial court gave to the defendant to

obtain clarification from Weaver meaningfully alleviated the prejudice because they did not afford the defendant sufficient time to obtain funding for an expert from

the Office of the Chief Public Defender and, subsequently, to secure his own CSLI expert. Consultation

with the opposing expert is not a promising means of

obtaining information about the weaknesses of that

expert’s views, which is why adverse parties typically

retain their own experts.

A reasonable continuance almost undoubtedly would

have rectified the prejudice. See, e.g., State v. Cooke,

134 Conn. App. 573, 579, 39 A.3d 1178 (granting continuance to allow defendant’s expert to review late disclosed supplemental DNA report alleviated any preju-
dice to defendant), cert. denied, 305 Conn. 903, 43 A.3d

662 (2012); State v. Van Eck, 69 Conn. App. 482, 498–99,

795 A.2d 582 (court did not abuse discretion in electing

to continue matter for almost one month for defendant

to obtain records, which were not previously disclosed

to him), cert. denied, 260 Conn. 937, 802 A.2d 92 (2002),

and cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002).

As we have explained, ‘‘[a] continuance is ordinarily

the proper method for dealing with a late disclosure.

. . . A continuance serves to minimize the possibly

prejudicial effect of a late disclosure . . . .’’ (Citations

omitted; internal quotation marks omitted.) Rullo v.

General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279

(1988). The Appellate Court also acknowledged as

much. See State v. Jackson, supra, 183 Conn. App. 644

(‘‘we recognize that the requested continuance likely

would have cured any then existing prejudice to the

defendant as a result of the late disclosure’’).

The Appellate Court nonetheless concluded that

granting a six week continuance would have caused a

substantial disruption to the trial, which was well under

way. See id. This problem, however, was not of the

defendant’s making, but only he shouldered the burden

of the problem created by the state’s late disclosure.

The defendant filed the motion in limine only six days

after the state disclosed Weaver’s PowerPoint presentation and one day before evidence began. It is unclear

why the court did not hold a hearing on the motion

until thirteen days later, after the start of trial, just

before Weaver was called to testify. The court was on

notice before trial began that the defendant sought a

continuance as an alternative form of relief.

In the defendant’s motion, he requested a ‘‘reasonable

continuance.’’ It was only during the hearing on the

motion that he suggested that a reasonable continuance

would be for ‘‘at least six weeks.’’ Had the trial court

concluded—despite not holding a hearing on the motion

until thirteen days after the defendant filed it—that it

would be too disruptive to the proceedings to grant a

six week continuance, the court could have granted a

shorter continuance. See, e.g., State v. Nelson, 118 Conn.

App. 831, 846, 986 A.2d 311 (it was not abuse of discretion for court to grant one month continuance when

defendant asked for two month continuance), cert.

denied, 295 Conn. 911, 989 A.2d 1074 (2010); United

States v. Turner, 897 F.3d 1084, 1101–1102 (9th Cir.

2018) (it was not abuse of discretion to provide shorter

continuance than requested), cert. denied, U.S. ,

139 S. Ct. 1234, 203 L. Ed. 2d 247 (2019); see also State

v. Respass, supra, 256 Conn. 186 (court has broad discretion to afford remedy under Practice Book § 40-5).

We acknowledge that defense counsel failed to adequately explain specifically why his request for a six

week continuance was reasonable or to request a continuance for a shorter period of time. Nonetheless,

defense counsel’s failure to engage in such a discussion
with the trial court does not excuse the resulting prejudice to the defendant. Accordingly, we conclude that

it was an abuse of discretion for the trial court to allow

the state’s late disclosed expert witness to testify without first providing the defendant with a reasonable continuance to obtain his own expert.

The state argues that the trial court did not abuse its

discretion in declining to order a continuance because

defense counsel abandoned his request by not renewing

it after the state’s direct examination of Weaver, as

the court had suggested. The state notes that defense

counsel proceeded with his cross-examination of

Weaver and, subsequently, proffered his own investigator as a witness on cell phone location. The state points

out that, when defense counsel proffered the investigator’s testimony, he stated, ‘‘I’m not seeking a further

continuance.’’

We agree with the Appellate Court that defense counsel did not abandon his request for a continuance. See

State v. Jackson, supra, 183 Conn. 646. Defense counsel

noted numerous times after Weaver’s testimony that

the defendant was prejudiced by the denial of counsel’s

request for a continuance. Defense counsel’s statement

that he was ‘‘not seeking a further continuance’’ was

in response to the trial court’s misunderstanding that

the defense was seeking a continuance before proffering the testimony of its investigator on CSLI. The

court stated that, ‘‘before [Weaver] took the stand yesterday and today . . . you had said that you were not

looking for a further continuance, that you were ready

to go forward preserving your grounds for the motion

to preclude that you had articulated before.’’ (Emphasis

added.) In response, defense counsel stated, ‘‘I’m not

seeking a further continuance. We would be able to call

[the investigator] this afternoon.’’9

Having concluded that it was an abuse of discretion

for the trial court to allow the state’s late disclosed

expert witness to testify without first giving the defendant a reasonable continuance to obtain his own expert,

we must now determine whether that error was harmful. ‘‘[W]hether [an improper 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 evidentiary ruling

is harmless should be whether the jury’s verdict was

substantially swayed by the error.’’ (Internal quotation

marks omitted.) State v. Eleck, 314 Conn. 123, 129, 100
A.3d 817 (2014). ‘‘[A] nonconstitutional error is harmless when an appellate court has a fair assurance that

the error did not substantially affect the verdict.’’ (Internal quotation marks omitted.) State v. Pascual, 305

Conn. 82, 93, 43 A.3d 648 (2012).

After reviewing the evidence in the present case, we

cannot conclude that we have a fair assurance that the

admission of Weaver’s testimony, without affording the

defendant a reasonable continuance to obtain his own

expert to meaningfully challenge Weaver’s testimony,

did not substantially affect the verdict in this case. The

state’s case was based primarily on the testimony of

Weaver and Anderson. There is no doubt that Weaver’s

expert testimony was central to the state’s case because

his testimony and PowerPoint presentation were the

only objective evidence that placed the defendant’s

phone in the same area as Rogers’ phone and Anderson’s GPS around the time of the shootings. Although

several eyewitnesses identified Rogers as a shooter, the

identity of the second suspect was a central issue in

the case, and the only objective evidence identifying the

defendant as the second suspect was Weaver’s expert

testimony.10 There can be little doubt that jurors would

have viewed as highly convincing Weaver’s expert opinion; the testimony was presented in technical terms and

used impressive visual displays to convey important

information, and it came from a law enforcement officer

unconnected to the department that investigated the

crime. Cf. State v. Boyd, 295 Conn. 707, 744, 992 A.2d

1071 (2010) (evidentiary error was harmless because,

among other things, ‘‘cell phone records provided

strong evidence that the defendant had been in the

area’’ where murder occurred), cert. denied, 562 U.S.

1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011). No

eyewitnesses identified the defendant as one of the

perpetrators. Moreover, the defendant’s DNA was never

found in Anderson’s car.

The Appellate Court acknowledged that Weaver’s testimony was ‘‘important to the state’s case’’ but concluded that it was ‘‘corroborative of other testimony

presented to the jury. The jury heard Anderson’s

detailed description of the events on the day of the

shootings. Anderson identified the defendant as the

man he picked up on Palisade Avenue on the afternoon

of the shootings. Anderson testified that he dropped

the defendant and Rogers off near the scene of the

shootings and heard ‘firecracker sounds’ while they

were gone.’’ State v. Jackson, supra, 183 Conn. App.

648–49. Anderson, however, had both a motive to testify

falsely and credibility issues. When Anderson first met

with the police, they asked if he knew anyone called

‘‘Red Dreads,’’11 and Anderson asked if they meant ‘‘Little Red.’’ The police then asked him if he knew someone

called ‘‘Little Red Dreads,’’ and he replied no. During

a second meeting with the police eight days later, the

police showed Anderson a photographic array con-
taining the defendant’s picture, but Anderson did not

identify the defendant. It was not until nearly five

months later, after Anderson had been charged with

conspiracy to commit murder and was being held in

prison, that he requested a third meeting with the police,

at which he identified the defendant as the individual

he had picked up. Prior to that third meeting, Anderson

had attended a court proceeding where he saw the

defendant and heard people calling the defendant ‘‘Red

Dreads.’’ After requesting the third meeting with the

police, Anderson asked the police whether Red Dreads

was the name of the individual they had previously

asked him about. He then chose the defendant’s photograph from an array, asserting that he was Red Dreads.

Anderson signed an agreement that gave him immunity

for anything he told to the police, and the state promised

it would let the judge know how he performed as a

witness against the defendant and Rogers when he was

sentenced. After the defendant was sentenced, the state

dismissed Anderson’s conspiracy to commit murder

charge, and he pleaded guilty to hindering prosecution

in the second degree, for which he received an unconditional discharge.

The Appellate Court also noted that surveillance videos corroborated much of Anderson’s testimony. Id.,

649. The surveillance videos, however, do not clearly

depict the backseat passenger in Anderson’s car. The

footage that the state points to as depicting the backseat

passenger, state’s exhibit 34, simply depicts a figure

that appears to be a man opening and closing the rear

passenger door of Anderson’s car and then exiting the

car at Stratford Avenue and Hollister Avenue, approximately fifteen minutes after the shootings. That individual appears to have dreadlocks and is wearing a hat

with a logo. Although the state introduced evidence

that the defendant had dreadlocks and a hat with a

similar logo, no eyewitnesses to the shootings described

the second suspect as wearing a hat or having dreadlocks. In fact, the video shows the individual that exited

Anderson’s car was wearing jeans, while some eyewitness testimony described the second suspect as wearing

khaki pants. Finally, the video captured the period

approximately fifteen minutes after the shootings,

which allows for the possibility that the individual exiting the car at Stratford Avenue and Hollister Avenue

is not the second suspect involved in the shootings

but, rather, someone else who subsequently entered

Anderson’s car.12

In sum, the defendant was prevented from meaningfully challenging the state’s late disclosed expert witness because he could not obtain his own expert. Given

the centrality of Weaver’s expert testimony to the state’s

case—because it was the only objective evidence placing the defendant in the same area as Rogers around

the time of the shootings—we cannot conclude, with

a fair assurance, that the error did not substantially
affect the verdict. Accordingly, we conclude that the

error was harmful and that the defendant is entitled to

a new trial.

II

Although our conclusion in part I of this opinion

is dispositive of the appeal, in the interest of judicial

economy, we consider whether any of the other claims

raised by the defendant are sufficiently likely to arise

in a new trial that we should address them. See, e.g.,

State v. Norman P., 329 Conn. 440, 454, 186 A.3d 1143

(2018); State v. Chyung, 325 Conn. 236, 260 n.21, 157

A.3d 628 (2017). The defendant’s claim that the Appellate Court improperly upheld the trial court’s exclusion

of his investigator’s testimony is not likely to occur in

a new trial because the defendant sought to introduce

this testimony to ‘‘ameliorate the harm’’ caused by his

inability to secure his own expert. The defendant will

be able to obtain his own CSLI expert on retrial. The

defendant’s fourth claim is not likely to arise in a new

trial because, pursuant to State v. Edwards, supra, 325

Conn. 97, if the defendant requests a hearing in accordance with State v. Porter, supra, 241 Conn. 57, prior

to the admission of CSLI expert testimony, the trial

court would be required to hold one.

Finally, we decline to address the defendant’s third

claim, namely, that the trial court abused its discretion

by admitting evidence regarding the defendant’s failure

to appear in court on unrelated criminal charges as

evidence of consciousness of guilt in this case. We recognize that whether the trial court abused its discretion

by admitting this consciousness of guilt evidence presents an interesting question, but we need not address

it here because the record could look different on

retrial. Cf. State v. Rizzo, 266 Conn. 171, 250 n.44, 833

A.2d 363 (2003). We leave it to the trial court to further

evaluate the issue if the state pursues it on remand.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

reverse the judgment of the trial court and to remand

the case to that court for a new trial.

In this opinion the other justices concurred.

1 The defendant also was charged with one count of criminal possession

of a firearm. The court granted the defendant’s motion to sever that count

from the state’s information. The state subsequently entered a nolle prosequi

as to that count.

2 The jury also found Rogers guilty of the same offenses. See State v.

Rogers, 183 Conn. App. 669, 671–72, 193 A.3d 612 (2018), petition for cert.

filed (Conn. September 28, 2018) (No. 180205). Rogers’ conviction is not at

issue in this appeal.

3 Because the defendant does not challenge Weaver’s qualifications as an

expert, we do not evaluate those qualifications or assess whether he would

be qualified to testify as an expert.

4 Practice Book § 40-11 (a) provides in relevant part: ‘‘Upon written request

by a defendant filed in accordance with Section 41-5 and without requiring

any order of the judicial authority, the prosecuting authority, subject to

Section 40-40 et seq., shall promptly, but no later than forty-five days from

the filing of the request, unless such time is extended by the judicial authority

for good cause shown, disclose in writing the existence of, provide photocop-
ies of, and allow the defendant in accordance with Section 40-7, to inspect,

copy, photograph and have reasonable tests made on any of the following

items . . . (3) Any reports or statements of experts made in connection

with the offense charged including results of physical and mental examinations and of scientific tests, experiments or comparisons which are material

to the preparation of the defense or are intended for use by the prosecuting

authority as evidence in chief at the trial . . . .’’

5 The court did not explain why, if CSLI evidence was not ‘‘novel or cutting

edge or unusual,’’ the state would nonetheless require an expert to present

this evidence. We note, however, that, when the trial court denied the

defendant’s motion in limine, it did not have the benefit of our decision in

State v. Edwards, supra, 325 Conn. 97. In Edwards, we held that a court

must conduct a hearing pursuant to State v. Porter, supra, 241 Conn. 57,

before admitting testimony and evidence regarding CSLI because ‘‘the process [the CSLI witness] used to arrive at his conclusions [is] beyond the

ken of [the] average juror.’’ State v. Edwards, supra, 128, 133.

6 The state contends that the trial court did not abuse its discretion in

denying the request for a continuance because the ‘‘coordinates (except

those in the . . . spreadsheet related to Rogers’ phone) had been provided

through discovery well before trial,’’ and, thus, the defendant could have

secured an expert witness to review the records. We are not persuaded.

The disclosure of the cell phone records did not give the defendant notice

that the state would call an expert who would generate a PowerPoint presentation and testify that he believed the defendant was in the area at the time

of the shootings. As the trial court noted, ‘‘the problem is that, until the

defense knows . . . what the state is going to present . . . it can’t prepare

to . . . meet that evidence by either consulting other experts or retaining

other experts . . . .’’

7 The Appellate Court also noted, however, that, ‘‘[a]lthough the late disclosure deprived the defendant of the opportunity to consult with his own

expert, defense counsel conducted an effective cross-examination of

Weaver.’’ State v. Jackson, supra, 183 Conn. App. 643. We agree with the

defendant that the fact that he elicited some favorable testimony during

cross-examination does not remedy the fact that he was deprived of the

opportunity to present his own expert witness who might have opined that

the defendant was not in the area at the time of the shooting and who might

have provided assistance to his attorney by identifying other areas in which

he should question Weaver. The expert also might have explained why

Weaver’s opinion and methodology were faulty.

8 As we previously noted, at the time the trial court denied the defendant’s

motion in limine, it did not have the benefit of our decision in State v.

Edwards, supra, 325 Conn. 97. See footnote 5 of this opinion.

9 Defense counsel explained that he was calling his investigator to ‘‘ameliorate the harm [in] some limited way to be able to put what we’ve identified

in terms of . . . where that cell tower was located [at the 2:14 p.m. call].’’

Specifically, defense counsel sought to have his investigator testify that,

based on CSLI data, the defendant’s cell phone was on the west side of

Bridgeport during the 2:14 p.m. call with Rogers, which would have made

it ‘‘practically impossible’’ for him to get to the east side of the city where

Anderson had allegedly picked him up shortly after the call. The state did

not object to this testimony. Nevertheless, the court subsequently precluded

the defendant’s investigator from testifying. Thus, to the extent there was

any further opportunity for the court to mitigate the prejudice from the

state’s late disclosure of Weaver by permitting the defendant’s investigator

to testify, it was lost.

10 The state contends that the state’s case was ‘‘remarkably strong,’’ based

on Anderson’s testimony and because the defendant was ‘‘linked to Rogers

through cell phone call logs,’’ a bandana found in Rogers’ home, and the

text Rogers sent to the defendant when he was arrested. This evidence,

however, establishes nothing more than an association between Rogers and

the defendant, and does not establish that the defendant was a passenger

in Anderson’s car at the time of the shootings.

11 Anderson subsequently testified that Red Dreads was the defendant

and that Red Dreads was the individual he picked up on Palisade Avenue.

Anderson also testified, however, that the individual he picked up was

wearing sunglasses and that Anderson did not know him.

12 We note that state’s exhibit 29, a surveillance video taken from

Grandview Avenue around the time of the shootings, depicts Anderson’s

car pulling to the side of the road and two individuals exiting the car. One

individual is wearing dark colored pants and a hooded sweatshirt with the
hood pulled over his head, and the other individual is wearing khaki pants. No

distinguishing features of the backseat passenger are depicted in the video.