STATE OF CONNECTICUT v. THOMAS STEELE

(AC 37956)

Alvord, Sheldon and Norcott, Js.

Syllabus

Convicted of the crimes of robbery in the first degree, conspiracy to commit

robbery in the first degree and conspiracy to commit larceny in the

third degree in connection with his conduct in robbing a bank, the

defendant appealed to this court. He challenged the sufficiency of the

evidence to support his robbery conviction and also claimed, inter alia,

that the trial court improperly admitted lay testimony from a detective,

D, concerning historic cell site analysis, a certain process that utilizes

cell phone records and cell site locations to identify the location of cell

phones at a particulartime. Specifically, he claimed that the court should

have qualified D as an expert witness before permitting him to testify

about how he used the defendant’s cell phone records to determine his

whereabouts before, during and after the bank robbery. Held:

1. There was sufficient evidence presented at trial to support the defendant’s

conviction of robbery in the first degree as a principal: the jury reasonably could have credited the testimony of M, the defendant’s friend,

that the defendant had told M that he robbed a bank but discredited

M’s testimony that she understood him to be joking, and the state

presented a variety of direct and circumstantial evidence that created

a connection between the physical attributes and possessions of the

robber and the defendant, including, inter alia, surveillance footage

of the robbery, eyewitness testimony describing what the robber was

wearing, which matched other surveillance footage that depicted the

defendant wearing similar clothing, and evidence of the defendant’s

purchase of a BB gun like the one used in the robbery; moreover,

although the evidence was not inconsistent with the defendant being

the getaway driver instead of the robber, a reasonable view of the

evidence supported a finding that the defendant acted as a principal

during the robbery, which was the only theory of liability the state

pursued at trial and on which the court instructed the jury.

2. The trial court abused its discretion by not requiring D to be qualified as

an expert witness before allowing him to testify regarding historic cell

site analysis: although that analysis is not extremely difficult to understand, the analytical process involved therein is beyond the ken of

the average juror, as call detail records can be used to determine the

approximate location of a cell phone at the time of a particular communication by determining the geographical coverage area of the cell sector

used to facilitate that communication, and that process of determining

the coverage area requires scientific and technical knowledge, which

would require a trial court, prior to admitting such testimony, to conduct

a hearing to ensure that the testimony was based on a reliable scientific

methodology, and contrary to the state’s claim, D did not merely read

from a document that was already in evidence, he explained how cell

phones and cell sites operate and, thus, broached the realm of expert

testimony; nevertheless, the admission of D’s testimony was harmless

beyond a reasonable doubt, as the state presented substantial evidence

of the defendant’s involvement in the bank robbery, including his admission to M that he robbed a bank, and D’s testimony was largely cumulative of other direct and circumstantial evidence establishing the

defendant’s locations before, during and after the robbery.

3. The defendant’s conviction of and sentences on the charges of conspiracy

to commit robbery and conspiracy to commit larceny, having arisen out

of a single agreement to rob the bank, violated his right against double

jeopardy; accordingly, his conviction of both conspiracy charges could

not stand.

Argued April 18—officially released August 29, 2017

Procedural History

Substitute information charging the defendant with
of the crimes of robbery in the first degree, conspiracy

to commit robbery in the first degree and conspiracy

to commit larceny in the third degree, brought to the

Superior Court in the judicial district of Ansonia-Milford

and tried to the jury before Markle, J.; verdict and

judgment of guilty, from which the defendant appealed

to this court. Reversed in part; judgment directed.

James B. Streeto, senior assistant public defender,

with whom, on the brief, was Maria V. Morse, certified

legal intern, for the appellant (defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Amy L. Bepko, assistant state’s attorney, for

the appellee (state).
Opinion

ALVORD, J. The defendant, Thomas Steele, appeals

from the judgment of conviction, rendered after a jury

trial, ofrobbery in the first degree in violation of General

Statutes § 53a-134 (a)(4), conspiracy to commitrobbery

in the first degree in violation of General Statutes

§§ 53a-48 (a) and 53a-134 (a) (4), and conspiracy to

commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (2). On

appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of robbery in the first degree; (2) the trial court abused its

discretion and violated his rights under the confrontation clause of the sixth and fourteenth amendments

to the United States constitution when it permitted a

detective to testify about historic cell site analysis without being qualified as an expert witness; and (3) his

cumulative conviction and sentences for conspiracy to

commit robbery and conspiracy to commit larceny violate the double jeopardy clause of the fifth and fourteenth amendments to the United States constitution.

We agree with the defendant that his cumulative convictions and sentences for conspiracy to commit robbery

and conspiracy to commit larceny violate the double

jeopardy, but we reject the defendant’s other claims.

Accordingly, we reverse the judgment in part and affirm

the judgment in part.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

In the early morning hours of Saturday, February 16,

2013, the defendant checked into a Comfort Inn in Naugatuck and paid the required $100 deposit in cash. Later

that morning, at approximately 9:30 a.m., the defendant

purchased a Beretta Airsoft BB gun (facsimile firearm),

which looked like a Beretta style handgun, at a Walmart

in Derby. Thereafter, the defendant returned to the

Comfort Inn to check out. Caitlin Mitchell and an

unidentified black male accompanied the defendant

during the checkout process. When he was informed

that he had to wait for housekeeping to check his room

before his cash deposit would be refunded, the defendant became irate, insisting that he had to be somewhere and threatening to call the police if his deposit

was notreturned. Eventually, the hotel manager calmed

the defendant down while the checkout process was

completed. At approximately 11:30 a.m., after the hotel

manager was informed that the defendant’s room was

in order, she placed the defendant’s deposit on the

counter beside her while she printed a receipt for the

defendant. The defendant reached over the counter,

grabbed the money, and left with Mitchell and the

unidentified black male before the hotel manager could

complete the checkout process. After exiting the hotel,

all three individuals entered the defendant’s green

Cadillac Deville and left.1
At 11:54 a.m., the defendant ran into the Webster

Bank in Seymour while wearing dark blue jeans, a black

ski mask, and grey gloves. He pointed his facsimile

firearm at Tara Weiss, the assistant bank manager, and

ordered everybody ‘‘[to] get to the fucking floor.’’ After

the bank employees and customers complied with his

order, the defendant jumped onto and then over the

teller counter and aimed his facsimile firearm at Danielle George, a bank teller. He ordered her to open her

cash drawer and place the money in the bag he provided. As George complied with his order, anotherteller

behind the counter began to move. The defendant aimed

his facsimile firearm at the other teller and told her

‘‘not to be a hero . . . .’’ The defendant returned his

attention to George. George continued to put money in

the defendant’s bag and managed to place a dye pack

in the bag as well.2 When George finished, the defendant

took the bag and exited the bank.

On June 4, 2013, the defendant was arrested for his

role in the bank robbery. In the operative information,

the defendant was charged with robbery in the first

degree, conspiracy to commit robbery in the first

degree, and conspiracy to commit larceny in the third

degree. After a trial, a jury found the defendant guilty

of all counts. The defendant was sentenced to a total

effective sentence often years of incarceration followed

by four years of special parole.3 This appeal followed.

Additional facts will be set forth as necessary.

I

We begin with the defendant’s claim that there was

insufficient evidence presented at trial to convict him

of robbery in the first degree as a principal, which was

the only theory of liability the state pursued at trial

and on which the court instructed the jury. The state

responds that, when viewing the evidence in the light

most favorable to sustaining the verdict, there was sufficient circumstantial evidence for a jury to reasonably

conclude that the defendant acted as a principal during

the robbery. We agree with the state.

The following additional facts are relevant to this

claim. As the robber exited the bank, he ordered Weiss

to count to 100. Weiss initially complied and began

counting. Once the robber left the bank, however, she

jumped up, ran to the doors, and locked them. Weiss

then returned to her station, pressed the bank’s panic

alarm, and called 911. After speaking with a 911 operator, Weiss reported the robbery to Webster Bank’s emergency hotline and to the branch manager, Jason

Rodriguez, who was in New York. Rodriguez immediately began driving back to Connecticut from New York.

State and federal law enforcement personnel arrived at

the bank shortly thereafter and obtained, inter alia,

surveillance footage of the robbery. Surveillance footage from inside the bank revealed that the robber wore
dark blue jeans, grey gloves, and a black ski mask.

Surveillance footage from outside the bank revealed

that a green vehicle, which was similar in appearance

to the defendant’s Cadillac, entered the bank parking

lot shortly before the robbery and picked up an individual on Spruce Street shortly after the robbery.4

After leaving the bank, the robber and his companion(s) initially drove north on Route 8, stopping in Beacon Falls to dispose of the discharged dye pack and

the cash that was burned when the dye pack discharged.

Shortly thereafter, members of law enforcement, with

the assistance of a pedestrian, recovered the dye pack

and some of the burned and stained cash from an area

near the Beacon Falls Police Department.

Later that day, at approximately 2 p.m., the defendant

and an unidentified black male were traveling northbound on Route 8 when they stopped to dispose of a

facsimile firearm by throwing it onto the embankment

along the side of the highway. Unbeknownst to the

defendant and his companion, Rodriguez, who was also

traveling northbound on Route 8 on his way to the bank,

observed this conduct. When he neared the defendant’s

Cadillac, he immediately noticed that it was being

driven erratically. In response, he slowed down and

watched as the Cadillac swerved into the breakdown

lane, where he saw the driver throw an object over the

roof of the Cadillac and onto the embankment. Because

of the suspicious nature of this conduct and his knowledge of the recent robbery at his bank branch, Rodriguez used his cell phone to record his observations,

including the vehicle’s make, color, and license plate

number and a brief physical description of the men

in the driver’s and front passenger’s seats.5 He then

reported the incident to the police. Shortly thereafter,

officers recovered a black Beretta style facsimile firearm from the Route 8 embankment near the BridgeportTrumbull line. Notably, the tip of the recovered facsimile firearm was covered with black electrical tape.

Shortly after the incident along Route 8, the defendant purchased professional strength Goo Off and rubber cleaning gloves with cash at the Home Depot in

Derby. He then proceeded to the Post Motor Inn in

Milford where he rented a cabin in his own name and

paid for it in cash. The following morning, February 17,

2013, the defendant checked into the Super 8 Motel in

Milford with Mitchell, paying for the room with cash.

That evening, a patrol officer reported that she had

located the Cadillac involved in the Webster Bank robbery in the Super 8 Motel parking lot. Shortly thereafter,

officers investigating the bank robbery arrived. After

speaking to the employees at the front desk of the motel

and reviewing its surveillance footage, the officers

determined that the defendant was associated with the

Cadillac and that he was staying in room 206. After

about fifteen minutes of knocking on the defendant’s
door, the defendant came to the window of his room

but refused to open the door. He denied ever being in

Seymour or knowing anything about the Cadillac in the

parking lot, claiming that a friend had dropped him off

at the motel. When the detectives asked him whether

he knew anything about a bank robbery, he stated that

he did not, but added that ‘‘if [the officers] had enough

information on him, [they] would be arresting him right

now.’’ Members of the Milford Police Department then

detained the defendant and Mitchell in the lobby of the

Super 8 Motel. When special agent Lisa C. McNamara

of the Federal Bureau of Investigation arrived, she

attempted to talk to Mitchell, but the defendant kept

yelling at her: ‘‘Don’t talk to them, you don’t have to

talk to them, your parents have to be present, you don’t

have to talk to them.’’ As a result, McNamara brought

Mitchell outside of the lobby and they sat in an

unmarked police cruiser so that they could talk without

the defendant hearing.

Officers subsequently seized several items from the

Super 8 Motel. From the defendant and Mitchell’s

vacated room, they seized a hotel room key for the

room that the defendant had rented at the Comfort Inn.

From the hotel staff, they obtained surveillance footage,

which showed the defendant arriving at the motel in

his Cadillac and checking into his room. Notably, during

the course of check-in, the defendant could be seen

removing several folded bundles of cash from his pants

pockets and using that cash to pay for his room.Because

the defendant paid in cash, officers further seized from

the Super 8 Motel seventy dollars that was stained with

red dye, which they believed that the defendant used

to pay for the room. Subsequent forensic tests confirmed the presence of chemicals used in bank dye

packs on the stained cash.

In addition to retrieving several items from the Super

8 Motel staff, officers seized and searched the defendant’s Cadillac. In the Cadillac, officers found five pairs

of grey latex gloves, receipts from Walmart and Home

Depot, and a roll of black electrical tape. The latex

gloves that were recovered from the Cadillac’s glove

box were similar in appearance to the ones worn by

the individual who had robbed the Webster Bank. The

Walmart receipt helped the officers obtain surveillance

footage from Walmart, which confirmed that on the

morning of the robbery the defendant, who was wearing

dark blue jeans, arrived at Walmart in his Cadillac and

purchased a facsimile firearm of the same make and

model as the one recovered from the embankment along

Route 8. Subsequent forensic tests revealed that the

electrical tape found in the defendant’s Cadillac was

indistinguishable from the electrical tape found on the

facsimile firearm recovered from the embankment

along Route 8.

Because the defendant appeared to lead a transient
lifestyle in which he frequently moved from motel to

motel, officers checked with hotels and motels in the

area to determine whether he had stayed in them after

the robbery. When they arrived at the Post Motor Inn,

they learned that the defendant had checked into a

cabin at 2:51 p.m. on the day of the robbery. On his

registration card, the defendant had listed two people

in his party and had noted his vehicle’s make and license

plate number. The officers noticed that the sink in the

defendant’s cabin was tinted red and that the snow

behind the cabin was stained red. They took samples

of the stained snow. In the tree line near the cabin, the

officers found a garbage bag, which contained, inter

alia, rubber gloves similar to those the defendant had

purchased at Home Depot, towels with red stains on

them, and an empty bottle of soap. A Post Motor Inn

employee also gave them a black ski mask that he had

found in the snowbank approximately thirty feet from

the defendant’s cabin. Subsequent forensic tests confirmed that the gloves and towels retrieved from the

garbage bag and the seized samples of stained snow

contained traces of the chemicals used in bank dye

packs.

Finally, at trial, Mitchell testified that on the weekend

of the robbery she had seen the defendant in possession

of ‘‘a substantial amount of money’’ and cleaning ‘‘red

stuff’’ off his Cadillac. Mitchell also testified that the

defendant had told her that he ‘‘robbed a bank . . . .’’

Mitchell maintained that when the defendant stated that

he robbed a bank, he did so ‘‘jokingly’’ and, as a result,

she did not take him seriously. She admitted, however,

that the defendant was her friend and that ‘‘I don’t want

to be here with this,’’ i.e., ‘‘to testify against someone

that was close to me . . . .’’ After the parties rested

and presented closing arguments, the court instructed

the jury. With respect to the charge of robbery in the

first degree, the court instructed the jury only on principal liability.

‘‘The standard ofreview we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction

we apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the [finder of fact] reasonably could have concluded

that the cumulative force of the evidence established

guilt beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whetherthe cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt. . . .

‘‘Moreover, it does not diminish the probative force

of the evidence that it consists, in whole or in part, of

evidence that is circumstantial rather than direct. . . .

It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving

substantial circumstantial evidence. . . . In evaluating

evidence, the [finder] of fact is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [finder of fact]

may draw whatever inferences from the evidence or

facts established by the evidence it deems to be reasonable and logical. . . .

‘‘Finally, [a]s we have often noted, proof beyond a

reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable

doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found

credible by the [finder of fact], would have resulted in

an acquittal. . . . On appeal, we do not ask whether

there is a reasonable view of the evidence that would

support a reasonable hypothesis of innocence. We ask,

instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of

guilty.’’ (Internal quotation marks omitted.) State v.

Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).

We conclude that there was sufficient evidence presented at trial to support the defendant’s conviction of

robbery in the first degree. First, Mitchell testified that

the defendant told her that he ‘‘robbed a bank . . . .’’

On the basis of this testimony, the jury could have

concluded that when the defendant said that he ‘‘robbed

a bank,’’ he meant that he personally had robbed a bank.

The defendant, relying on the corpus delicti doctrine,

argues that Mitchell’s testimony cannot support his conviction because his purported confession is uncorroborated. The purpose of the corpus delicti doctrine,

however, is to protect against convictions for offenses

that have not in fact occurred. State v. Farnum, 275

Conn. 26, 33–34, 878A.2d 1095 (2005). The corpus delicti

doctrine has no bearing on the present case because it

is undisputed that the Webster Bank in Seymour was

robbed on February 16, 2013; indeed, it is undisputed

on appeal that the defendant was one of the individuals

who conspired to rob the bank.

The defendant further suggests that Mitchell’s testimony cannot support his conviction because Mitchell

testified that she did not take the defendant seriously

when he said that he ‘‘robbed a bank . . . .’’ A jury

may properly decide, however, ‘‘what—all, none, or

some—of a witness’ testimony to accept or reject.’’
(Internal quotation marks omitted.) State v. Victor C.,

145 Conn. App. 54, 61, 75 A.3d 48, cert. denied, 310

Conn. 933, 78 A.3d 859 (2013). The jury in this case

very well could have credited Mitchell’s testimony that

the defendant told her that he robbed a bank but discredited her testimony that she understood him to be

joking. Mitchell admitted that the defendant was her

friend and that she did not want ‘‘to testify against

someone that was close to [her].’’ The jury reasonably

could have concluded, therefore, that Mitchell characterized the defendant’s statement as a joke because of

her desire to protect him.

The defendant’s robbery conviction, however, is not

supported solely by Mitchell’s testimony. At trial, the

state presented a variety of direct and circumstantial

evidence creating a connection between the physical

attributes and possessions of the robber and the defendant. The jury had before it surveillance footage of the

robbery. When determining if the defendant was the

robber, the jurors could have compared surveillance

footage of the robber with other surveillance footage

of the defendant and their own observations of the

defendant in court to determine if there was a physical

resemblance between the robber and the defendant.

Additionally, the bank surveillance footage and eyewitness testimony established that the robber possessed

a black firearm and was wearing dark blue jeans, grey

gloves, and a black ski mask. Walmart surveillance footage depicted the defendant wearing dark blue jeans on

the morning of the robbery. The receipt and surveillance

footage from Walmart further established that while at

Walmart the defendant personally purchased a black

facsimile firearm, which was the same make and model

as the facsimile firearm an individual driving a Cadillac

disposed of later that afternoon by throwing it onto an

embankment alongside of Route 8. Five pairs of grey

latex gloves similar to those worn by the robber were

recovered from the Cadillac’s glove compartment, and

a black ski mask similar to the one worn by the robber

was recovered from a snowbank approximately thirty

feet from the defendant’s cabin at the Post Motor Inn.

Although it can be argued that this evidence is not

inconsistent with the defendant being the getaway

driver instead of the robber, ‘‘[i]n reviewing a sufficiency of the evidence claim . . . we do not ask

whether there is a reasonable view of the evidence that

would support a reasonable hypothesis of innocence.

We ask, instead, whether there is a reasonable view of

the evidence that supports the jury’s verdict of guilty.’’

(Internal quotation marks omitted.) State v. Silva, 285

Conn. 447, 459, 939 A.2d 581 (2008). Mindful that in

determining the sufficiency of the evidence we consider

its cumulative effect and construe the evidence in the

light most favorable to sustaining the verdict, we determine that there was sufficient evidence presented at

trial to support the defendant’s conviction of robbery
in the first degree.

II

The defendant next claims that the court improperly

admitted lay testimony concerning historic cell site

analysis.6 Specifically, the defendant argues that the

court should have qualified Detective Steven Ditria as

an expert witness before permitting him to testify about

how he used the defendant’s cell phone records to determine his whereabouts before, during, and afterthe bank

robbery. The defendant further contends that this evidentiary error obstructed his rights underthe confrontation clause because Ditria’s lack of training, education,

or experience with cell phones, cellular networks, and

cell site analysis prevented him from being meaningfully

cross-examined on this evidence.7 The defendant seeks

review of this unpreserved constitutional claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823

(1989); see also In re Yasiel R., 317 Conn. 773, 781, 120

A.3d 1188 (2015) (modifying third condition of Golding).8 The state responds that Ditria merely read from

a document that was already in evidence, i.e., the defendant’s cell phone records and instructions from the

cellular carrier on interpreting those records, and, thus,

his testimony was factual, not opinion.9 Alternatively,

the state argues that any error in the admission of this

testimony was harmless beyond a reasonable doubt.

We agree with the defendant that the court abused its

discretion by not requiring Ditria to be qualified as an

expert witness, but we agree with the state that this

error was harmless beyond a reasonable doubt. Accordingly, the defendant’s constitutional claim fails under

the fourth prong of Golding. See State v. Dixon, 318

Conn. 495, 511, 122 A.3d 542 (2015).

A

To understand the significance of the trial court’s

decision to permit a lay witness to testify about historic

cell site analysis, it is first necessary to understand the

manner in which cell phones and cellular networks

operate. Although the trial court did not have the benefit

of such information when it made its evidentiary ruling,

we share the view of our sister courts that such information is essential to understanding how historic cell site

data is generated and what inferences that data supports concerning the locations of a cell phone, and by

inference its user, during a communication. E.g., State

v. Payne, 440 Md. 680, 690–98, 104 A.3d 142 (2014);

Collins v. State, 172 So. 3d 724, 740–41 (Miss. 2015);

State v. Patton, 419 S.W.3d 125, 130–31 (Mo. App. 2013);

State v. Johnson, 797 S.E.2d 557, 561–62 (W. Va. 2017);

see, e.g., Commonwealth v. Augustine, 467 Mass. 230,

236–39, 4 N.E.3d 846 (2014) (reviewing cell phone technology prior to determining whether police were

required to obtain search warrant to obtain information

from defendant’s cell phone service provider); State v.

Earls, 214 N.J. 564, 574–78, 70 A.3d 630 (2013) (same).
We will rely in this overview on information and materials relied on by our sister courts when discussing cellular network technology or cell site analysis.

Cell phones are essentially sophisticated two way

radios that use cellular networks comprised of cell

sites10 and radio frequency (RF) antennae to communicate with one another. State v. Payne, supra, 440 Md.

692; J. Beck et al., ‘‘The Use of Global Positioning (GPS)

and Cell Tower Evidence to Establish a Person’s Location—Part II,’’ 49 Crim. L. Bull. Art. 8, 2 (2013). A cell

site is the fixed location that provides cellular coverage

using RF antennae, a base station, and other network

equipment. J. Beck et al., supra, 3. The geographical

coverage area of a cell site is called a cell sector.11 See

United States v. Bohannon, 824 F.3d 242, 256 (2d Cir.

2016), cert. denied, U.S. , 137 S. Ct. 628, 196 L.

Ed. 2d 517 (2017). The shape and size of a cell sector

is variable and depends on several external and internal

factors. External factors include the surrounding environment and geography, e.g., the location of buildings,

vehicles, vegetation, and land masses, which might prevent the RF signal from propagating in a uniform and

uninterrupted manner. State v. Payne, supra, 693–94;

A. Blank, ‘‘The Limitations and Admissibility of Using

Historical Cellular Site Data to Track the Location of

a Cellular Phone,’’ 18 Rich. J.L. & Tech. 3, 6–7 (2011);

see generally T. Singal, Wireless Communications 35–

65, 100 (2011) (discussing propagation patterns of radio

frequency signals). Internal factors include the technical characteristics of the cell site and the RF antennae.

State v. Payne, supra, 693; A. Blank, supra, 4–6.

There are four types of cell sites generally used by

cellular companies: macrocells, microcells, picocells,

and femtocells. M. Harris, Unison, How Cell Towers

Work 2–3 (2011), available at www.unisonsite.com/pdf

/resource-center/How%20Towers%20Work.pdf(last visited August 23, 2017) (hereinafter M. Harris, How Cell

Towers Work); Geolocation Privacy and Surveillance

(GPS) Act: Hearing on H.R. 2168 before the Subcommittee on Crime, Terrorism, Homeland Security and Investigations of the House Committee on the Judiciary,

113th Cong. 45, 54–55 (2013) (written testimony of Matthew Blaze, associate professor of computer and information science, University of Pennsylvania), available

at https://judiciary.house.gov/wp-content/uploads/

2016/02/113-34-80542.pdf (last visited August 23, 2017)

(hereinafter Blaze testimony); see also United States

v. Davis, 785 F.3d 498, 542 (11th Cir.), cert. denied,

U.S. , 136 S. Ct. 479, 193 L. Ed. 2d 349 (2015).

Macrocells are prototypical ‘‘cell towers,’’ although they

can be attached to a structure, and can cover an area

often miles in diameter or more in rural areas where

there is less signal interference. M. Harris, How Cell

Towers Work, supra, 3; Blaze testimony, supra, 54; see

also Sprint Spectrum L.P. v. Zoning Board of Adjustment, 21 F. Supp. 3d 381, 391 (D.N.J. 2014), aff’d, 606
Fed. Appx. 669 (3d Cir. 2015). Microcells typically are

used in urban or suburban settings to cover an area

that is less than one mile in diameter. M. Harris, How

Cell Towers Work, supra, 3. A picocell is a small base

station that acts like an extension cord, extending the

macrocell’s or microcell’s signal through high traffic or

obstructed areas and covering an area of less than 250

yards in diameter. Id.; M. Harris, Unison, Think Small:

Micro, Pico and Femto Cell Sites 2 (2011), available at

http://www.unisonsite.com/pdf/resource-center/Think-

%20Small%20Unison-whitepaper-7D.pdf (last visited

August 23, 2017) (hereinafter M. Harris, Think Small).

Finally, a femtocell is like a booster pack; it uses a

broadband Internet connection to ‘‘backhaul’’ mobile

calls and data traffic into a wireless carrier’s existing

cellular network. M. Harris, Think Small, supra, 2; see

also EON Corp IP Holdings LLC v. Cisco Systems, Inc.,

36 F. Supp. 3d 912, 923 (N.D. Cal. 2014), aff’d, 595 Fed.

Appx. 991 (Fed. Cir. 2015). The coverage range of these

devices is similar to that of a cordless phone base. M.

Harris, How Cell Towers Work, supra, 3; M. Harris,

Think Small, supra, 2; Blaze testimony, supra, 55; see

also United States v. Davis, supra, 503–504 n.7.

Each of the four types of cell sites contains, inter

alia, a base station and at least one RF antenna. M.

Harris, How Cell Towers Work, supra, 2, 6. An RF

antenna can be omnidirectional or multidirectional. An

omnidirectional antenna is intended to service the

entire, 360 degree area around a cell site. T. Singal,

supra, p. 100; M. Harris, How Cell Towers Work, supra,

5–6; see also Ruckus Wireless, Inc. v. Netgear, Inc.,

Docket No. C 08-2310 PJH, 2013 WL 6627737, *1, *4

(N.D. Cal. December 16, 2013). The idealized cell sector

of a cell site with an omnidirectional antenna is a hexagon with the cell site at the center.12 E.g., T. Singal,

supra, pp. 99–100; M. Harris, How Cell Towers Work,

supra, 5. In contrast, directional antennae are intended

to service only small portions of the area around a cell

site. For example, a cellular carrier might use three

directional antennae with beam widths set at 120

degrees in order to achieve 360 degrees of coverage

around a cell site. Collins v. State, supra, 172 So. 3d

740; J. Beck et al., supra, 49 Crim. L. Bull. Art. 8, 3; see

also T. O’Connor, ‘‘Provider Side Cell Phone Forensics,’’

3 Small Scale Digital Device Forensics J. 1 (2009) (discussing and depicting typical cell site and antenna configurations), available at http://ctfdatapro.com/pdf/

celltower.pdf (last visited August 23, 2017). With this

configuration, the idealized cell sector is a wedge, with

a center angle of 120 degrees, emanating out from the

cell site. E.g., State v. Payne, supra, 440 Md. 724 (appendix C); T. O’Malley, ‘‘Using Historical Cell Site Analysis

Evidence in Criminal Trials,’’ 59 U.S. Atty. Bull. 16, 19

(2011), available at https://www.hsdl.org/?view&did

=701377 (last visited August 23, 2017). The directional

orientation of a directional antenna is called its ‘‘azi-
muth.’’13 T. O’Connor, supra, 1; United States v. Mack,

Docket No. 3:13-cr-00054 (MPS), 2014 WL 6474329, *2

(D. Conn. November 19, 2014).

Every seven seconds,regardless of whetherit is being

used, a cell phone will ‘‘register’’ with in-range cell

sites.14 J. Beck et al., supra, 49 Crim. L. Bull. Art. 8, 3; A.

Blank, supra, 18 Rich. J.L. & Tech. 5. When an individual

places a call or sends a message, the cell phone communicates with the base station at the cell site with which

it has the strongest, best quality signal. J. Beck et al.,

supra, 3–4; A. Blank, supra, 5; see also United States

v. Mack, supra, 2014 WL 6474329, *3. Through various

processes, the base station of that cell site helps the

transmitting cell phone connect to the receiving cell

phone, which will also use the cell site with the strongest, best quality signal to receive the call or message.

See generally T. O’Malley, supra, 59 U.S. Atty. Bull.

20–21. Importantly, the cell site in closest proximity to

these cell phones might not be the one producing the

strongest, best quality signal for them. J. Beck et al.,

supra, 3; see A. Blank, supra, 5. The characteristics of

the cell site, the RF antenna, and the cell phone as well

as a variety of environmental and geographic factors

influence which cell site has the strongest, best quality

signal for a cell phone.15

In addition, it is possible that during a communication

the cell site being used by either the transmitting or

the receiving cell phone will cease to be the one with

the strongest, best quality signal for that cell phone. In

this circumstance, a ‘‘handoff,’’ or ‘‘handover,’’ will

occur to ensure that the communication is not disrupted. A. Blank, supra, 18 Rich. J.L. & Tech. 5–6. Handoffs are broadly classified as being ‘‘hard’’ or ‘‘soft’’

depending on the cell phone system the cellular carrier

uses. A hard, or ‘‘break before make,’’ handoff involves

a definite decision by the cell phone to break its connection with its current cell site before, or as, it makes a

connection with a new cell site. D. Wong & T. Lim, ‘‘Soft

Handoffs in CDMA Mobile Systems,’’ IEEE Personal

Communications, 6 (1997), available at http://wireless.-

stanford.edu/papers/DWongsoftHandoff.pdf (last visited August 23, 2017); L. Paul, ‘‘Handoff/Handover

Mechanism for Mobility Improvement in Wireless Communication,’’ 13 Glob. J. Res. Engineering Elec. & Elecs.

Engineering 6, 7 (2013), available at https://globaljournals.org/GJRE Volume13/2-Handoff-Handover-Mechanism.pdf (last visited August 23, 2017).

Conversely, during a soft, or ‘‘make before break,’’

handoff a cell phone will simultaneously connect to

multiple base stations until it determines which of the

in-range cell sites is producing the strongest, best quality signal. D. Wong & T. Lim, supra, 6; L. Paul, supra, 8–9.

Every time a cell phone sends or receives a communication the base station at the cell site automatically

generates a call detail record. State v. Payne, supra,
440 Md. 695–96 and 696 n.24; In re United States for

Historical Cell Site Data, 724 F.3d 600, 611–12 (5th Cir.

2013); J. Beck et al., supra, 49 Crim. L. Bull. Art. 8, 4. The

purpose of call detail records is to enable the cellular

provider to bill a subscriber accurately for his or her

cell phone usage and to help the carrier understand the

calling patterns of their subscribers. J. Beck et al., supra,

4; see also State v. Payne, supra, 695; In re United

States for Historical Cell Site Data, supra, 611–12. Call

detail records can contain a variety of information

depending on the cellular carrier, but these records

ordinarily include some information about the cell

site(s) used to make or receive the communication.16

State v. Payne, supra, 696; J. Beck et al., supra, 4; T.

O’Malley, supra, 59 U.S. Atty. Bull. 23; Blaze testimony,

supra, 57. The call detail records in the present case

contain information about the cell sites in use when the

cell phone initiated and terminated a communication.

One form of historic cell site analysis uses the cell

site and antenna information contained in a call detail

record to determine which cell sector a cell phone was

using at the time of a certain communication and,

thereby, the geographical area the cell phone, and by

inference its user, was in at that time. The geographical

coverage area of a specific cell sector can be determined

by conducting a drive test or by estimating the cell

sector.17 Drive testing involves the use of RF mapping

equipment and software to map the actual cell sector

generated by a particular cell site and antenna. E.g., T.

O’Malley, supra, 59 U.S. Atty. Bull. 28; see also id., 29

(depicting cell sector based on drive testing). This

method was developed by cellular carriers to help them

monitor and maintain the quality of their cellular networks, but it has also been used by law enforcement

agencies to track suspects and fugitives and by attorneys at trial to establish a cell phone’s, and by inference

its user’s, approximate locations at particular dates and

times. See T-Mobile Central, LLC v. Unified Government of Wyandotte Country/Kansas City, Kan., 528 F.

Supp. 2d 1128, 1140, 1150–52, 1166–67 (D. Kan. 2007),

aff’d in part, 546 F.3d 1299 (10th Cir. 2008); T. O’Malley,

supra, 28–29.

Although the precision of drive testing makes it the

preferred method for determining the shape and size

of a cell sector, performing a drive test is not always

possible. United States v. Mack, supra, 2014 WL

6474329, *3. For example, the cell site might have been

removed or its characteristics altered by the cellular

carrier since the crime was committed. E.g., id. (federal

agent testified that drive testing was not possible

because cell site in question was no longer present

at time of his investigation). In this circumstance, the

approximate size and shape of a cell sector can be

determined by drawing a pie-wedge diagram on a map.

Id. The center angle of the pie-wedge corresponds to

the antenna’s beam width setting, e.g., 120 degrees, and
the outward boundary of the pie-wedge will extend 50

to 70 percent of the way into the opposing cell sector.

Id.; United States v. Machado-Erazo, 950 F. Supp. 2d

49, 55–56 (D.D.C. 2013); United States v. Davis, Docket

No. 11-60285-CR, 2013 WL 2156659, *5–6 (S.D. Fla. May

17, 2013); e.g., T. O’Malley, supra, 59 U.S. Atty. Bull. 28

(depicting estimated cell sector superimposed on map).

Critically, the boundaries of an estimated cell sector

are not fixed. Depending on a variety of factors, the

actual cell sector can be smaller or larger than the

estimated cell sector. T. Singal, supra, p. 100; A. Blank,

supra, 18 Rich. J.L. & Tech. 5; see also T. O’Malley,

supra, 28–29 (depicting idealized cell sector and actual

cell sector).

B

Against the foregoing scientific and technical background, we turn to the defendant’s claims on appeal.

As we previously stated, the threshold issue is whether

the court improperly permitted lay testimony concerning historic cell site analysis. The following additional

facts are relevant to our resolution of this claim. At the

time of the robbery, the defendant owned a cell phone

serviced by Sprint-Nextel (Sprint). During the course

of his investigation, Ditria subpoenaed the defendant’s

subscription information and call detail records from

Sprint, and, at trial, the state entered the materials

Sprint provided into evidence as exhibit 77.

Exhibit 77 includes, inter alia, the defendant’s call

detail records, instructions on how to interpret those

records, and a list of cell site locations. The call detail

records are in the form of a ten column chart, which,

in relevant part, has columns titled, ‘‘First Cell,’’ and,

‘‘Last Cell.’’ The ‘‘key’’ to the call detail records explains

that ‘‘First Cell’’ and ‘‘Last Cell’’ refer to the specific

cell site and ‘‘sector’’ through which the communication

was initiated and terminated. ‘‘The first digit [of the cell

site identification number] reflects the sector. The last

3-4 digits represent the [cell] site number. . . . For

example, if the number in the [First Cell or Last Cell]

column reads 2083, the cell site is 083 and the sector

is 2.’’ (Emphasis omitted.) A separate, eighteen column

chart provided by Sprint contains a variety of information about Sprint’s cell sites, including the address and

azimuth of each cell site. Exhibit 77 does not define

what a ‘‘sector’’ or ‘‘azimuth’’ is.18 Nor does it contain

any general or specific information on cellular networks, the geographical coverage areas of Sprint’s cell

sites, or the operation of cell phones and cell sites.

At trial, Ditria explained that learning the defendant’s

cell phone number was ‘‘crucial’’ because he ‘‘wanted

to learn the whereabouts of [the defendant] based on

his phone records.’’ Once he knew the defendant’s cell

phone number, Ditria testified, he subpoenaed the

defendant’s cell phone records from Sprint. Ditria identified the documents provided by Sprint, which were
entered into evidence as exhibit 77 without objection.

Ditria explained that although he understood the

‘‘[b]asic incoming and outgoing phone calls’’ when he

received the call detail records, he needed help to

understand the cell site information within them. He

contacted a Sprint representative, whose job it was to

assist law enforcement, ‘‘to learn about the communication of the cell phone and the cell tower . . . .’’

When Ditria began to explain his current understanding of ‘‘the significance of a cell tower,’’ defense counsel

objected on foundational grounds, stating: ‘‘I think he

is giving opinion testimony here regarding, I think that’s

where we’re going here.’’ The court asked the prosecutorfor a response, to which she replied: ‘‘What he understands about cell phone records now after being

educated.’’ The court overruled the objection. Thereafter, the following colloquy occurred:

‘‘[The Prosecutor]: Okay. You were explaining what

a cell phone tower is for.

‘‘[Ditria]: In order for a phone call to be made, incoming or outgoing, you have to have a cell tower, and it

dedicates the subscriber information, checking if it’s a

legitimate phone number, and with that carrier.

‘‘[The Prosecutor]: Can you make a phone call without a cell tower?

‘‘[Ditria]: Absolutely not.

‘‘[The Prosecutor]: And did you also learn how close

a cell phone has to be to a tower in order to receive

information from it?

‘‘[Ditria]: Yes.

‘‘[The Prosecutor]: And how far away can a phone

be to bounce off the tower?

‘‘[Ditria]: Anywhere from zero to thirty miles.

‘‘[The Prosecutor]: A big radius?

‘‘[Ditria]: Right.

‘‘[The Prosecutor]: So, cell phone—at thirty miles or

right next to the tower?

‘‘[Ditria]: Correct.

‘‘[The Prosecutor]: That’s the tower that’s it’s going

to bounce off of?

‘‘[Ditria]: Correct.

‘‘[The Prosecutor]: And so, did he also teach you how

to read these?

‘‘[Ditria]: Yes.

‘‘[The Prosecutor]: Okay. And so, I’m going to pick

a random page, page number two of thirty. How can

you determine from this page what cell tower you are

looking for? What column are we looking at?’’
Defense counsel objected, explaining: ‘‘I think we’re

getting into the realm of expert testimony here, and I

don’t think that the officer has been qualified as an

expert. What we’re trying to do here is to educate the

jury, and I think that’s wholly in the purview of an

expert.’’ The prosecutor replied: ‘‘The officer has indicated that he did not know how to read the records,

but now he does know how to read the records and

has demonstrated to the jury that he has the information

in front of him.’’ The court overruled the defendant’s

objection, stating that it found that proper foundation

had been laid for the admission of exhibit 77 into evidence and that ‘‘[i]t’s part of his investigation, he learned

how to interpret the data. I’ll allow him now to testify

from the document entered into evidence.

Direct examination of Ditria continued. The prosecutor asked Ditria, ‘‘[h]ow is this information helpful to

your understanding of the case,’’ and Ditria explained

that it ‘‘[b]asically, pinned down the whereabouts of

[the defendant] before, during, and after the robbery

of Webster Bank.’’ Thereafter, Ditria explained in detail

how the defendant’s call detail records helped him to

confirm the defendant’s presence near eight areas of

interest: Walmart, the Comfort Inn, the Webster Bank,

Beacon Falls, Bridgeport, Home Depot, the Post Motor

Inn, and the Super 8 Motel. In particular, Ditria testified

as to when the defendant or the bank robbery suspect

was believed to be in the area of interest, when the

communication in question was made, the address of

one of the cell sites used by the defendant’s cell phone,19

and the distance from that cell site to the area of interest.20 Afterreviewing these details, the prosecutor asked

Ditria: ‘‘So, after learning the proximity of the cell tower

locations to the places that you believe that [the defendant] was at, what does that do for your investigation?’’

Ditria responded: ‘‘It gives us a better understanding

about the whereabouts of [the defendant] during those

dates and times.’’

On cross-examination, defense counsel attempted to

explore Ditria’s understanding of cell site analysis

through the following colloquy:

‘‘[Defense Counsel]: And now, Sprint only operates

a digital cell phone system; isn’t that right?

‘‘[Ditria]: I’m not sure.

‘‘[Defense Counsel]: All right. Do you know if they

operate an analog system?

‘‘[Ditria]: I’m not sure.

‘‘[Defense Counsel]: And the phones that we use now

are all digital, right?

‘‘[Ditria]: (Indicating yes.)

‘‘[Defense Counsel]: And I think you were testifying

that the cell phones connect to a particulartower,right?
‘‘[Ditria]: Yes.

‘‘[Defense Counsel]: And didn’t they tell you that they

actually connect to more than one tower simultaneously; isn’t that right?

‘‘[Ditria]: They did not say that.

‘‘[Defense Counsel]: They didn’t say that?

‘‘[Ditria]: No. . . .

‘‘[Defense Counsel]: Do you know that the cell phone

is always looking for the strongest signal?

‘‘[Ditria]: I don’t know if it’s looking for the strongest, no.

‘‘[Defense Counsel]: Now, do you know that on a

digital cell phone, they can connect to multiple cell

sites; did you know that?

‘‘[Ditria]: I did not know that.

‘‘[Defense Counsel]: They didn’t tell you that?

‘‘[Ditria]: (Indicating no.)

‘‘[Defense Counsel]: And the representative at Sprint,

did he tell you that there’s things that can get in the

way of a signal from a cell tower?

‘‘[Ditria]: He did not say that.

‘‘[Defense Counsel]: Things like leaves, weather; did

he say that?

‘‘[Ditria]: He did not say that.

‘‘[Defense Counsel]: That the wind could impact the

coverage of a cell site; did he say that?

‘‘[Ditria]: He did not.

‘‘[Defense Counsel]: And that digital cell phones have

this thing called a soft handoff; did he tell you what

that is?

‘‘[Ditria]: No.

‘‘[Defense Counsel]: Have you ever heard of the

term triangulation?

‘‘[Ditria]: I have not.

‘‘[Defense Counsel]: They didn’t tell you or explain

that to you over the phone?

‘‘[Ditria]: No.’’

The defendant requested to make a motion outside

the presence of the jury. After the jury was excused, the

defendant moved to strike Ditria’s testimony regarding

‘‘the cell phone coverage’’ because he was not competent to testify on that topic. The court disagreed,

explaining: ‘‘There was never any offer that he is an

expert, and he did not offer any opinions. He is simply

interpreting or translating the data that was given to

him.’’ The state agreed, adding: ‘‘[I]t just goes to the
weight of his testimony.’’ The court overruled defense

counsel’s objection, but it stated, in response to a question from defense counsel, that it was ‘‘perfectly fine’’

for defense counsel to explore the defendant’s education, or lack thereof, with respect to cell phones and

cellular networks on cross-examination. Thereafter,

defense counsel continued his cross-examination, during which he explored Ditria’s lack of education and

training concerning cell phones and cellular networks.

After Ditria’s testimony, both parties rested and presented closing arguments. During her opening argument, the prosecutor referred to Ditria’s testimony

concerning the location of the defendant’s cell phone,

highlighting in particular the short distance between

cell sites used by the defendant’s cell phone and the

areas of interest. In response, defense counsel during

his closing argument emphasized that Ditria ‘‘didn’t

have any expertise as to how these things actually

work.’’ During her rebuttal argument, the prosecutor

made the following relevant remarks: ‘‘Ditria said that

he had no formal education in cell phone tower mechanics, but he did have the wherewithal to call somebody

who did, right? And we found out that a cell tower is

in a fixed location and that cell phones are mobile,

mobile phones, right? So, if you know where the cell

tower is, and that’s in a fixed location, and a cell phone

is mobile, but you know that there are these otherthings

that are fixed locations, like Walmart; Walmart is not

mobile, right? Walmart is where it is. Home Depot is

where it is. The Super 8 is not moving without some

significant effort, okay? So, if you have [the defendant]

pinned down in those places, then you could also coordinate the fact that his cell phone is pinging off cell

towers in a fixed location all within a mile. Does Ditria

really need all that technological expertise to explain

it to you, okay?’’

‘‘We review a trial court’s decision [regarding the

admission of] expert testimony for an abuse of discretion. . . . If we determine that a court acted improperly with respect to the admissibility of expert

testimony, we will reverse the trial court’s judgment

and grant a new trial only if the impropriety was harmful

to the appealing party.’’ (Internal quotation marks omitted.) State v. Edwards, 325 Conn. 97, 123, 124, 156

A.3d 506 (2017). A lay witness may not provide opinion

testimony ‘‘unless the opinion is rationally based on the

perception of the witness . . . .’’ Conn. Code Evid. § 7-

1. In orderfor a witness to testify concerning ‘‘scientific,

technical or other specialized knowledge,’’ the witness

must be ‘‘qualified as an expert by knowledge, skill,

experience, training, [or] education . . . .’’ Conn. Code

Evid. § 7-2. ‘‘Experttestimony should be admitted when:

(1) the witness has a special skill or knowledge directly

applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3)

the testimony would be helpful to the court or jury in
considering the issues. . . . [T]o render an expert opinion the witness must be qualified to do so and there must

be a factual basis for the opinion.’’ (Internal quotation

marks omitted.) State v. Williams, 317 Conn. 691, 702,

119 A.3d 1194 (2015).

Our analysis of the evidentiary issue presented by the

defendant is informed by our Supreme Court’s recent

decision in State v. Edwards, supra, 325 Conn. 97. In

Edwards, the state sought to elicit testimony from

Detective Christopher Morris concerning how he used

the defendant’s call detailrecords to determine his location at certain points in time and to offer into evidence

maps that Morris created showing the estimated cell

sectors of the cell sites in question. Id., 119–22. As part

of the state’s offer of proof, Morris testified as to his

training and experience conducting historic cell site

analysis. Id., 121. ‘‘The trial court then ruled that the

state had met its burden of establishing the reliability

of the proffered evidence and that Morris was qualified

by his expertise to analyze cell phone data provided in

Verizon records.’’ Id., 122.

On appeal, our Supreme Court agreed with the defendant that ‘‘the trial court improperly admitted testimony

and documentary evidence through Morris without

qualifying him as an expert and conducting a Porter

hearing21 in orderto ensure that his testimony was based

on [a] reliable scientific methodology.’’ (Footnote

added.) Id., 133. In reaching this conclusion, the court

observed that it ‘‘has not had the opportunity to address

whether a police officer needed to be qualified as an

expert witness before he could be allowed to testify

regarding cell phone data . . . .’’ Id., 127. Relying on

State v. Payne, supra, 440 Md. 680, the court concluded

that Morris’ testimony concerning historic cell site analysis constituted expert testimony and, therefore, Morris

should have been qualified as an expert witness. State v.

Edwards, supra, 325 Conn. 128, 133. The court observed

that ‘‘although Morris relied on data he obtained from

Verizon to conduct his analysis [of the defendant’s call

detail records], the process he used to arrive at his

conclusions [concerning the approximate coverage

areas of the cell sites in question] was beyond the ken

of [an] average [person].’’ Id., 128.

We conclude that Edwards is controlling as to this

issue on appeal.22 Although historic cell site analysis is

not extremely difficult to understand, we agree with

the court in Edwards that this analytical process is

beyond the ken of the average juror. As we discussed

in part II A of this opinion, call detail records can be

used to determine the approximate location of a cell

phone at the time of a particular communication by

determining the geographical coverage area of the cell

sector used to facilitate that communication. This process of determining the actual or approximate geographical coverage area of a cell sector requires
scientific and technical knowledge. Specifically, it

requires an understanding of how cell sites and RF

antennae operate, and knowledge of all of the internal

and external factors that influence the size and shape

of a cell sector. Indeed, in recognition of the scientific

underpinnings of historic cell site analysis, our Supreme

Court in Edwards held that a court must conduct a

Porter hearing prior to admitting testimonial or documentary evidence of historic cell site analysis. Id., 132–

33. For these reasons, we conclude that the court

abused its discretion by not requiring Ditria to be qualified as an expert witness.

The state nonetheless urges that ‘‘when Ditria’s testimony is reviewed in relation to the cell phone records

themselves, a document that was admitted as a full

exhibit without objection, it is clear that the substance

of his testimony, i.e., the particular cell tower that the

defendant’s cell phone connected with at particular

times, did not constitute ‘expert’ testimony at all, but

was the equivalent of Ditria merely reading from a document that was already in evidence.’’ We disagree; Ditria

did not merely read from exhibit 77. Ditria testified that

in order to make a phone call, a cell phone must use

a cell site. Ditria then explained that in order to use a

cell site, a cell phone must be within thirty miles of it.

Ditria further agreed with the prosecutor that, because

of these principles, if a cell phone is ‘‘at thirty miles or

right next to’’ a cell site, then that is the cell site that

the cell phone is going to use to make or receive a call.

None of this information is contained in Exhibit 77. By

explaining to the jury how cell phones and cellular sites

operate and the geographical coverage area of Sprint’s

cell sites, Ditria broached the realm of expert testimony.

Having concluded that the court abused its discretion

by not requiring Ditria to be qualified as an expert

witness, we turn to the defendant’s confrontation clause

claim. Because the defendant seeks Golding review of

this unpreserved constitutional claim, we do not need

to determine whetherthe court’s failure to qualify Ditria

as an expert witness obstructed the defendant’s confrontation rights if this error was harmless beyond a

reasonable doubt. See State v. Dixon, supra, 318

Conn. 511.

‘‘[W]hether [an improper evidentiary ruling] is harmless in a particular case depends upon a number of

factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony

was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and, of course, the overall strength

of the prosecution’s case. . . . Most importantly, we

must examine the impact of the . . . evidence on the

trier of fact and the result of the trial. . . . [T]he proper

standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s

verdict was substantially swayed by the error.’’(Internal

quotation marks omitted.) State v. Edwards, supra, 325

Conn. 133; accord State v. Santos, 318 Conn. 412, 425,

121 A.3d 697 (2015). For the purposes of our analysis,

we assume that this evidentiary error was of constitutional magnitude and, therefore, the burden is on the

state to prove that this error was harmless beyond a

reasonable doubt. See State v. Santos, supra, 425.

We conclude that the admission of Ditria’s testimony

was harmless beyond a reasonable doubt. As we discussed in part II of this opinion, the state presented

substantial and varied evidence of the defendant’s

involvement in the bank robbery, including the defendant’s admission to Mitchell that he robbed a bank.

Moreover, Ditria’s testimony was largely cumulative

evidence of the defendant’s location before, during, and

after the robbery. Specifically, Ditria’s testimony was

used to corroborate the defendant’s presence near eight

areas of interest: Walmart, the Comfort Inn, the Webster

Bank, Beacon Falls, Bridgeport, Home Depot, the Post

Motor Inn, and the Super 8 Motel. The state established

the defendant’s presence at all of these locations

through other direct and circumstantial evidence. For

example, surveillance footage established the defendant’s presence at Walmart and the Super 8 Motel as

well as the presence of a vehicle similar in appearance

to the defendant’s Cadillac at the Webster Bank during

the robbery. The Walmart and Home Depot receipts

recovered from the defendant’s Cadillac corroborated

the defendant’s presence at those stores. Rodriguez’

testimony and the recovered facsimile firearm, which

was the same make and model as the one the defendant

purchased from Walmart, established the defendant’s

and his Cadillac’s presence on Route 8 near the Bridgeport-Trumbull line. To establish the defendant’s presence at various hotels, the state admitted into evidence

registration forms, in the defendant’s own name, for

the Comfort Inn, the Post Motor Inn, and the Super 8

Motel and presented the testimony of employees from

those hotels who confirmed that guests must present

a driver’s license when checking into those establishments. Finally, all of the direct and circumstantial evidence of the defendant’s participation in the robbery

corroborates his presence in Beacon Falls, where the

dye pack associated with George’s cash drawer was

recovered shortly after the robbery.

As a result, even though we conclude that the court

abused its discretion by not requiring Ditria to be qualified as an expert witness, we also conclude that this

error was harmless beyond a reasonable doubt. Therefore, the defendant’s constitutional claim fails under

the fourth prong of Golding.

III

The defendant’s final claim is that his cumulative
convictions and sentences for conspiracy to commit

robbery and conspiracy to commit larceny violated his

right against double jeopardy. The defendant seeks

Golding review of this unpreserved constitutional

claim. The defendant’s claim is reviewable under Golding because the record is adequate to review the alleged

claim of error and the claim is of constitutional magnitude alleging the violation of a fundamental right. See

State v. Dixon, supra, 318 Conn. 511. As the state concedes, the defendant is further entitled to reversal of

one of his conspiracy convictions under Golding

because both convictions arose out of a single

agreement to rob the Webster Bank in Seymour. See

State v. Wright, 320 Conn. 781, 829, 135 A.3d 1 (2016)

(‘‘it is a double jeopardy violation to impose cumulative

punishments for conspiracy offenses if they arise from

a single agreement with multiple criminal objectives’’).

The appropriate remedy forthis due process violation

is to reverse the judgment of conviction as to both

counts of conspiracy and to remand the case to the

trial court with direction to vacate the defendant’s conviction of conspiracy to commit larceny and to render

judgment on the defendant’s remaining conviction of

conspiracy to commit robbery. See id., 829–30; see also

State v. Lee, 325 Conn. 339, 345, 157 A.3d 651 (2017);

State v. Padua, 273 Conn. 138, 171–73, 869 A.2d 192

(2005). The defendant further requests that we direct

the trial court to resentence him with respect to his

remaining conviction of conspiracy to commit robbery.

Cf. State v. Wright, supra, 320 Conn. 830. We cannot

order the trial court to resentence the defendant, however, because vacatur of the defendant’s conviction and

sentence for conspiracy to commit larceny will not alter

his total effective sentence. See State v. Johnson, 316

Conn. 34, 42–43, 111 A.3d 447 (2015); see footnote 3 of

this opinion.

The judgment is reversed only with respect to the

conviction of conspiracy to commit larceny in the third

degree and the case is remanded with direction to

vacate the judgment as to that conviction. The judgment

is affirmed in all other respects.

In this opinion the other judges concurred.

1 At trial, the defendant disputed possessing or operating the Cadillac,

which was registered to and insured by Wardell Eaddy. The state presented

substantial evidence, however, that although Eaddy registered the Cadillac

in his own name as a favor to the defendant, the defendant possessed and

operated the Cadillac at the time of the robbery.

2 A ‘‘dye pack’’ is a bank security feature that is made up of a stack of

actual currency with its center removed and a dye pack put in its place.

The dye pack is designed to release red dye, tear gas, and smoke at a

designated period of time after the device has been removed from the bank.

When the dye pack explodes, it becomes very hot and can burn currency

it comes in contact with it. The serial numbers of the devices and the bills

used on the top and bottom of the stack are recorded to pair specific packets

with specific teller stations inside a bank.

3 For both his conviction of robbery in the first degree and his conviction

of conspiracy to commit robbery, the defendant was sentenced to ten years

of incarceration followed by four years of special parole. For his conviction

of conspiracy to commitlarceny,the defendant was sentenced to five years of
incarceration. The court further ordered that the defendant’s three sentences

were to be served concurrently.

4 Raider, a canine trained and certified in tracking humans, tracked a

scent from the front door of the Webster Bank where the robber was last

seen to the corner of Garden Street and Spruce Street where he lost the

trail. Raider’s handler testified that he observed fresh tire tracks in the area

where Raider lost the scent trail.

5 Rodriguez testified that the driver, who threw the object, had a thin

mustache and that the passenger, whom he did not get a good look at, was

wearing a hat.In surveillance footage from Walmart and a hotelthe defendant

stayed at the day after the robbery, the defendant is seen with a thin black

mustache and a light grey beard.

6 Historic cell site analysis involves the use of cell phone records and cell

site locations to determine, within some range of error, a cell phone’s

approximate location at a particular time. United States v. Natal, 849 F.3d

530, 534 (2d Cir. 2017).

7

It is unclear whether the defendant also claims that Ditria’s testimony

concerning what he learned from a Sprint representative about how cell

phones and cellular networks operate was improper and constituted a confrontation violation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004). In the ‘‘legal standard’’ section of his opening

appellate brief, the defendant briefly reviewed the principles of Crawford

and, in one paragraph, argues why ‘‘the ‘interpretations of the data’ offered

through Detective Ditria constituted testimonial hearsay’’ in violation of

Crawford. The defendant did not thereafter advance, in his briefs or at oral

argument before this court, a claim that a Crawford violation occurred.

Indeed, the defendant’s briefs and oral argument focused principally on his

claim that Ditria should have been qualified as an expert witness and that

the court’s failure to do so obstructed his confrontation rights. As a result,

we conclude that, to the extent the defendant alleges a Crawford violation,

this claim is inadequately briefed. See State v. Buhl, 321 Conn. 688, 724,

138 A.3d 868 (2016).

8

‘‘Under Golding, a defendant can prevail on a claim of constitutional

error not preserved at trial only if all of the following conditions are met:

(1) the record is adequate to review the alleged claim of error; (2) the claim

is of constitutional magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation . . . exists and . . . deprived the

defendant of a fair trial; and (4) if subject to harmless error analysis, the

state has failed to demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt. In the absence of any one of these

conditions, the defendant’s claim will fail.’’ (Internal quotation marks omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015). ‘‘The first two

steps in the Golding analysis address the reviewability of the claim, while

the last two steps involve the merits of the claim.’’ (Internal quotation marks

omitted.) State v. Britton, 283 Conn. 598, 615, 929 A.2d 312 (2007). ‘‘The

appellate tribunal is free, therefore, to respond to the defendant’s claim by

focusing on whichever condition is most relevant in the particular circumstances.’’ (Internal quotation marks omitted.) State v. Dixon, supra, 511.

9 The state further argues that the defendant has abandoned or, alternatively, inadequately briefed any evidentiary claim because he ‘‘appears to

limit his appellate claims to his assertion that his constitutional right to

confrontation was violated.’’ The state is correct that the defendant framed

this issue in his statement of the issues as ‘‘whether the defendant’s sixth

amendment right to confrontation was violated when Detective Ditria testified without specialized knowledge regarding the whereabouts of the defendant based upon his interpretation of cell phone records.’’ In advancing this

claim, however, the defendant has consistently argued that the violation of

his confrontation rights stems from the court’s evidentiary errorin permitting

Ditria to interpret his cell phone records without qualifying him as an expert

witness. The defendant has thoroughly briefed why testimony concerning

cell site analysis should be admitted only through an expert witness. Accordingly, we conclude that the defendant has not abandoned or inadequately

briefed this threshold evidentiary claim.

10 ‘‘Cell sites’’ are often referred to as ‘‘cell towers.’’ We believe that the

term cell site is more precise. The primary purpose of a cell site ‘‘is to

elevate antennas that transmit and receive radio-frequency (RF) signals

from’’ cell phones. M. Harris, Unison, How Cell Towers Work (2011), available at www.unisonsite.com/pdf/resource-center/How%20Towers%20

Work.pdf (last visited August 23, 2017). This purpose can be accomplished

by building an independent tower or by placing the cell site in common
structures such as buildings, water towers, bridges, tunnels, streetlights,

traffic lights, stadium lights, and billboards. Id.

11 This geographical coverage area is also known as a ‘‘cell,’’ ‘‘sector,’’ and

‘‘footprint.’’ See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 997

n.11 (9th Cir. 2009) (‘‘ ‘coverage footprint’ ’’); State v. Payne, supra, 440 Md.

692 (‘‘cell’’); United States v. Mack, Docket No. 3:13-cr-00054 (MPS), 2014

WL 6474329, *3 (D. Conn. November 19, 2014) (‘‘sector’’); United States v.

Davis, Docket No. 11-60285-CR, 2013 WL 2156659, *5 (S.D. Fla. May 17,

2013) (‘‘footprints of the sectors’’); T. Singal, Wireless Communications 99

(2011) (‘‘cell’’ or ‘‘footprint’’).

12 ‘‘Cells [or cell sectors] are always drawn as hexagons because it makes

it simpler and easier to show adjacent cells without any overlap. In reality,

the cell shape is closer to a circle but it may be affected by surrounding

buildings and other geographic features.’’ T. Singal, supra, p. 101.

13 ‘‘Commonly a cell [site] will have the first of the three antennas centered

on due North or 0 degrees. This antenna has a nominal area 120 degrees

wide which [covers] 60 degrees each side of due north. This antenna’s

nominal field [extends] from 300 degrees (-60 degrees) to 60 degrees and

is called either the north facing antenna or the Alpha antenna. The second

antenna is centered at 120 degrees and has a nominal coverage area [that

extends] from 60 degrees to 180 degrees, this antenna is referred to as the

southeast facing antenna or the Beta antenna. The third antenna nominally

covers the remaining area of the field; it is centered on 240 degrees and

nominally [extends] from 180 degrees to 300 degrees, this antenna is called

either the southwest facing antenna or the gamma antenna.’’ T. O’Connor,

supra, 3 Small Scale Digital Device Forensics J. 1; see also id., 1, 3 (depicting

different antenna orientation models).

14 The only way to prevent registration is by turning the cell phone off,

by putting it in ‘‘Airplane Mode,’’ or by placing it in a shielded container,

such as a Faraday bag. J. Beck et al., supra, 49 Crim. L. Bull. Art. 8, 3.

15 Cell site characteristics include whether maintenance or repairs are

being performed on a given cell site, the range of coverage, the wattage

output, the call capacity of a cell site, and the number and closeness of

neighboring cell sites that will be competing with the cell site in question

to produce the strongest, best quality signal in the area. A. Blank, supra, 18

Rich. J.L. & Tech. 6; J. Beck et al., supra, 49 Crim. L. Bull. Art. 8, 5–6.

Antenna characteristics include the number of antenna on the cell site, the

antenna’s height, the direction and angle of the antenna, and the call volume

of the antenna at any given time. A. Blank, supra, 4. Cell phone specific

characteristics include the wattage output and the generation of the cell

phone’s broadband capability. Id. Last, environmental and geographical factors include the weather, topography (e.g., height above sea level), and

density of physical structures in the area. Id., 6–7; J. Beck et al., supra, 5–6.

16 The information contained in call detail records is sometimes referred

to as cellular site location information, or CSLI. E.g., State v. Smith, 156

Conn. App. 537, 540, 554 n.4, 113 A.3d 103, cert. denied, 317 Conn. 910, 115

A.3d 1106 (2015); see also Commonwealth v. Estabrook, 472 Mass. 852, 853

n.2, 38 N.E.3d 231 (2015).

17 The methodology of estimating the shape and size of a cell sector is

sometimes referred to as ‘‘cell identification’’; Collins v. State, supra, 172

So. 3d 740; or ‘‘mapping’’; e.g., State v. Edwards, 325 Conn. 97, 121, 156

A.3d 506 (2017); United States v. Mack, supra, 2014 WL 6474329, *3; United

States v. Machado-Erazo, 950 F. Supp. 2d 49, 55–56 (D.D.C. 2013).

18 It appears that ‘‘sector’’ in these instructions refers to the RF antenna,

and thereby the cell sector, used. The instructional page titled ‘‘Sector

Layout’’ explains that ‘‘Sprint . . . cell sites can be set-up in a variety of

ways. . . . [N]ot every cell site has three sectors. Some may have two

sectors or may be omni sites. . . . The direction that the sector faces

depends on the need for coverage in a particular area.’’ The instructions

further explain Sprint’s labeling schemes for determining the directional

orientation of the azimuth’s face, which are designated as being an alpha

sector, beta sector, or gamma sector. None of the information provided by

Sprint explains the nautical directions associated with a particular sector

type (e.g., north, south, east, or west). Cf. T. O’Connor, supra, 3 Small Scale

Digital Device Forensics J. 1; footnote 14 of this opinion.

19 We observe that of the eight phone calls analyzed by Ditria, five had

different cell sites listed for the initiation and termination of the call. For

four of these calls, Ditria provided the address of only the first cell site,

and for one of these calls Ditria provided the address of only the last cell

site. Ditria did not explain to the jury that a cell phone might use multiple
cell sites or antennae during the course of a call or that he was, in some

instances, providing them with the address of only one of the cell sites used.

20 First, Ditria testified that around the time indicated on the Walmart

receipt the defendant’s cell phone ‘‘was hitting off the South Cliff Street

tower approximately one mile from the Walmart in Derby located in Ansonia.’’ Second, Ditria testified that around the time that the defendant checked

into the Comfort Inn, the defendant’s cell phone used a cell site located

‘‘on 280 Elm Street in Naugatuck, approximately point six miles from the

Comfort Inn motel.’’ Third, Ditria testified that around the time of the robbery, the defendant’s cell phone used a cell site located on ‘‘Rimmon Street

in Seymour . . . approximately point eight miles from the Webster Bank.’’

Fourth, Ditria testified that at 12:20 p.m. on the day of the robbery, the

defendant’s cell phone used a cell site at ‘‘236 Pent Road in Beacon Falls,’’

which was ‘‘[a]pproximately 1000 feet, under a quarter of a mile’’ from the

Beacon Falls Police Department. Fifth, Ditria testified that at approximately

1 p.m. on the day of the robbery, the defendant’s cell phone used a cell site

at ‘‘1875 Noble Avenue in Bridgeport,’’ which was ‘‘[a]pproximately a quarter

mile.’’ Ditria did not explain what this cell site was a quarter mile from, but

it appears he was alluding to the area where the facsimile firearm was

recovered. Sixth, Ditria testified that around the time indicated on the Home

Depot receipt, the defendant’s cell phone used a cell site at ‘‘134 Roosevelt

Drive in Derby . . . approximately point six miles from the Home Depot

in Derby.’’ Seventh, Ditria testified that around the time that the defendant

checked into the Post Motor Inn, the defendant’s cell phone used a cell site

at ‘‘28 Orange Road in Orange,’’ which was ‘‘[a]pproximately point eight

miles from the Post Motor Inn.’’ Finally, Ditria testified that around the time

the defendant checked into the Super 8 Motel the defendant’s cell phone

was using a cell site located at ‘‘160 Wampus Lane in Milford,’’ which was

‘‘[a]pproximately one mile’’ from the Super 8 Motel.

21 See 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).

‘‘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 methods for reaching his

conclusion are reliable. . . . Second, the proposed scientific testimony

must be demonstrably relevant to the facts of the particular case in which

it is offered, and not simply be valid in the abstract. . . . Put another way,

the proponent of scientific evidence must establish that the specific scientific

testimony at issue is, in fact, derived from and based [on] . . . [scientifically

reliable] methodology.’’ (Internal quotation marks omitted.) State v.

Edwards, supra, 325 Conn. 124.

22 We recognize that in Edwards ‘‘the state [did] not assert that Morris

did not provide expert testimony’’; State v. Edwards, supra, 325 Conn. 118;

and the court elsewhere concluded that ‘‘the trial court admitted Morris’

testimony as an expert witness . . . .’’ Id., 128. Indeed, the court initially

framed the issue presented on appeal only as whether the trial court improperly admitted Morris’ testimony and maps ‘‘without determining that the

evidence was based on reliable scientific principles under State v. Porter,

241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118

S. Ct. 1384, 140 L. Ed. 2d 645 (1998).’’ State v. Edwards, supra, 118.

Nevertheless, our Supreme Court’s holding does not appear to be dicta

because this discussion was not ‘‘merely [a] passing commentary’’ that went

‘‘beyond the facts at issue’’ and was ‘‘unnecessary to the holding in the

case.’’ (Internal quotation marks omitted.) Voris v. Molinaro, 302 Conn. 791,

797 n.6, 31 A.3d 363 (2011). Instead, the court was intentionally taking up,

discussing, and deciding a question germane to, though not necessarily

decisive of the controversy before it, i.e., whether historic cell site analysis

is the kind of scientific evidence that requires expert testimony and a Porter

hearing to ensure the reliability of the scientific principles underlying it.

See id. Moreover, even if our Supreme Court’s statements concerning the

need to qualify a witness as an expert before permitting him to testify

about historic cell site analysis was dicta, we conclude that it is persuasive

precedent. See id.