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*********************************************** 
STATE OF CONNECTICUT v. HIRAL M. PATEL

(AC 41821)

Alvord, Bright and Bear, Js.

Syllabus

Convicted of the crimes of murder, home invasion, burglary in the first

degree as an accessory, robbery in the first degree as an accessory,

conspiracy to commit burglary in the first degree and tampering with

physical evidence in connection with the shooting death of the victim, the

defendant appealed, claiming, inter alia, that the trial court improperly

admitted into evidence certain statements by his coconspirator, C, that

inculpated the defendant, and precluded him from introducing into evidence a statement by S, a cousin of the defendant, that was against S’s

penal interest. N, a cousin of the defendant who had been charged with

narcotics offenses, enlisted the defendant and C in N’s plan to rob the

victim, with whom N previously had engaged in drug transactions. N

drove the defendant and C to an area near the victim’s home before

driving away. After the defendant and C entered the victim’s home and

tied up his mother, C went upstairs, shot the victim and ransacked his

bedroom looking for money. The defendant and C then fled into the

woods, where the defendant lost his cell phone, and they thereafter met

up with N and drove away. N subsequently was convicted of murder in

a separate trial, and this court affirmed his conviction on appeal. In the

defendant’s trial, C, in response to a question by the court and without

having been sworn in, informed the court that he would exercise his fifth

amendment privilege against self-incrimination and refuse to answer

questions if he were called to testify. The court thereafter admitted into

evidence a tape recording of a conversation between C and E, a jailhouse

informant, that was made after E told correction officials that he would

be willing to record his conversations with C without C’s knowledge.

The court further admitted into evidence testimony from C’s girlfriend,

B, about statements C had made to her and precluded the defendant’s

sister, M, from testifying that S had told her that S was with C during

the incident. Held:

1. The trial court did not abuse its discretion when it admitted C’s statements

to E and B pursuant to the dual inculpatory statement exception to the

hearsay rule under the applicable provision (§ 8-6 [4]) of the Connecticut

Code of Evidence:

a. The defendant could not prevail on his unpreserved claim that the

trial court improperly found that C was unavailable to testify because

C was not under oath when questioned about his fifth amendment

privilege; that court’s failure to have C sworn in did not violate the

defendant’s sixth amendment right to confrontation or constitute plain

error, as the defendant made no claim that C’s privilege against selfincrimination might not pertain to all of the questions that he would

have been asked, and the defendant did not contend that C would have

answered some questions or that the court’s inquiry of C as to his

personal invocation of the privilege was deficient in substance.

b. The trial court did not violate the defendant’s sixth amendment right

to confrontation when it admitted C’s statements to E, this court having

determined in N’s appeal that C’s statements to E bore none of the

characteristics of testimonial hearsay; C’s statements, which implicated

himself, N and the defendant, were made to his cellmate in an informal

setting, there was no indication that C anticipated that his statements

would be used in a criminal investigation or prosecution, and although

the evidence suggested that the recording of C’s statements was initiated

by the Department of Correction and that the police had spoken to E

prior to the recording, which was not clear from the testimony in N’s

trial, an objective witness would not reasonably believe that C’s statements could be used at a trial, as there was no indication under either

scenario that C had knowledge that he was speaking with a jailhouse

informant, the determination of whether C’s statements were testimonial

focused on the reasonable expectations of C, and nothing about the

circumstances suggested that a person in C’s position would intend his
statements to be a substitute for trial testimony.

c. This court found unavailing the defendant’s unpreserved claim that

C’s statements to E were testimonial under the due process and confrontation clauses in article first, § 8, of the state constitution, as the defendant did not identify any compelling economic or sociological concern

that supported a change in the interpretation of the confrontation clause

in article first, § 8, of the state constitution.

d. The trial court did not abuse its discretion when it admitted C’s

statements to E and B pursuant to § 8-6 (4), as that court’s findings

adequately supported its conclusion that C’s statements presented sufficient indicia of reliability to justify their admission: C made the statements to E, a fellow inmate who was facing serious charges and appeared

to be a fellow gang member, the details of the crime were related

only by C, and it was within the trial court’s discretion to evaluate the

consistencies and inconsistencies in C’s statements and to conclude,

on balance, in favor of a determination that the statements were reliable;

moreover, C had a close relationship with B, and his statements to her

were made on the day of the crime and were consistent with other

evidence, and even if C downplayed his involvement when he admitted

to B that he robbed the victim while failing to offer that he also murdered

the victim, C directly and explicitly incriminated himself by admitting

his participation in the robbery, and, thus, the statement remained

against his penal interest.

2. The trial court did not abuse its discretion when it excluded from evidence

M’s testimony concerning S’s statement to her on the ground that it was

not trustworthy and, thus, did not satisfy the requirements of § 8-6 (4):

although S’s statement that he should have been charged with murder

instead of the defendant was against his penal interest, the relationship

between M and S did not support a finding of trustworthiness, as M

acknowledged that, although they had been close while growing up, she

did not see S as much as she did before she entered medical school,

that she had seen S only twice in the past year and that it had been

years since she had more steady contact with him, and there was no

evidence that S had ever repeated his statement to M or made inculpatory

statements to others; moreover, contrary to the defendant’s assertion

that S’s statement was supported by corroborating circumstances, statements of the victim’s mother, in which she described the intruders, were

inconsistent, the lack of proof that S was at a location distant from

the crime was not necessarily corroborative of his statement, other

statements S had made did not corroborate the key portion of his statement to M but suggested merely that he was involved in the crime to

some degree, and circumstances surrounding the murder were far more

consistent with a finding that the defendant had entered the victim’s

home, rather than S.

3. The defendant could not prevail on his claim that the trial court abused

its discretion when it denied his motion to preclude the state from

offering the testimony of an agent with the Federal Bureau of Investigation about cell phone tower data analysis relative to the movement of

cell phones associated with the defendant, N and C on the day of the

murder: contrary to the defendant’s assertion that the court improperly

failed to conduct a hearing pursuant to State v. Porter (241 Conn. 57)

to determine the reliability of the agent’s methods and procedures, the

court held the functional equivalent of a Porter hearing, as there was

ample testimony bearing on the relevant Porter factors and sufficient

testimony to enable the court to determine whether the agent’s methods

were reliable, and although the court did not use the words rate of error

or peer review in its ruling, it appropriately relied on the experience of

other experts who had carried out similar work and noted that the agent’s

findings were reviewed by other experts in the same field; moreover,

the defendant’s assertion that the absence of sector analysis in the

data rendered the agent’s calculations and conclusions less precise and

accurate than they would have been with a sector-based analysis was

unavailing, as defense counsel did not identify at trial the defendant’s

alibi that he was out of state at the time of the crime as a factual

distinction requiring the court to reconsider its ruling on the issue in

N’s trial, nor did he explain to this court how sector analysis would be

more reliable, when the state, in light of the defendant’s alibi, sought

only to identify the general area in which his phone was present.

4. The evidence was sufficient to convict the defendant of murder under a

theory of liability predicated on Pinkerton v. United States (328 U.S.
640); it reasonably was foreseeable that the victim might fight back to

thwart the robbery of his proceeds from a drug sale and that C, who

was armed with a loaded gun, might, in furtherance of the conspiracy,

cause the victim’s death with the intent to do so, and the defendant’s

role in the incident was not too attenuated that it would have been

unjust to hold him responsible for the criminal conduct of C, as the

defendant had communicated with N about the crime days prior thereto,

planned to enter the victim’s home to rob him of money he had received

from a drug sale and restrained the victim’s mother after entering the

home.

Argued May 14—officially released November 12, 2019

Procedural History

Substitute information charging the defendant with

the crimes of felony murder, murder, home invasion,

burglary in the first degree as an accessory, robbery in

the first degree as an accessory, conspiracy to commit

robbery in the first degree, conspiracy to commit burglary in the first degree and tampering with physical evidence, brought to the Superior Court in the judicial district of Litchfield and tried to the jury before

Danaher, J.; thereafter, the court denied the defendant’s motions to preclude certain evidence; verdict of

guilty; subsequently, the court denied the defendant’s

motion for a new trial and granted the defendant’s

motion to vacate the verdict as to the charge of felony

murder; thereafter, the court vacated the verdict as to

the charge of conspiracy to commit robbery in the first

degree; judgment of guilty of murder, home invasion,

burglary in the first degree as an accessory, robbery

in the first degree as an accessory, conspiracy to commit

burglary in the first degree and tampering with physical evidence, from which the defendant appealed.

Affirmed.

Richard Emanuel, for the appellant (defendant).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, were David S. Shepack, state’s

attorney, and Dawn Gallo, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Hiral M. Patel, appeals

from the judgment of conviction of murder in violation

of General Statutes § 53a-54a, home invasion in violation of General Statutes § 53a-100aa (a) (1), burglary

in the first degree as an accessory in violation of General

Statutes §§ 53a-101 (a) (1) and 53a-8 (a), robbery in the

first degree as an accessory in violation of General

Statutes §§ 53a-134 (a) (2) and 53a-8 (a), conspiracy to

commit burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-48, and tampering with physical evidence in violation of General

Statutes § 53a-155 (a) (1).1 On appeal, the defendant

claims that (1) the court erred in admitting into evidence dual inculpatory statements of his coconspirator,

Michael Calabrese; (2) the court erred in precluding

the defendant from introducing into evidence a statement of Shyam Patel (Shyam), a cousin of the defendant, that was against his penal interest; (3) the court

erred in admitting historical cell site location information without conducting a Porter2 hearing; and (4) there

was insufficient evidence adduced at trial to sustain his

conviction of murder on a theory of Pinkerton3liability.

We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On June 12, 2012, police arrested Niraj Patel

(Niraj), the defendant’s cousin, after a motor vehicle

stop and seized $12,575 from his person and his vehicle.

He was charged with criminal attempt to possess more

than four ounces of marijuana, interfering with an officer, tampering with evidence, possession of drug paraphernalia, and motor vehicle charges. Following his

arrest, Niraj unsuccessfully attempted to borrow money

from family members to pay his attorney.

Niraj thereafter formed a plan to rob Luke Vitalis,

a marijuana dealer with whom Niraj had conducted

drug transactions. Vitalis lived with his mother, Rita

G. Vitalis, at 399 Cornwall Bridge Road in Sharon. On

August 3, 2012, Niraj sent a text message to the defendant, stating: ‘‘I throw you some dough to do this if you

have to bring Diva,’’ who was the defendant’s family

dog. The defendant responded by stating: ‘‘You fig a ride

out.’’ Niraj responded: ‘‘Yes.’’ The defendant replied:

‘‘Word.’’ Niraj also offered Calabrese, a friend, money

to participate in the robbery.

Niraj knew that Vitalis had sold ten pounds of marijuana from his home on August 5, 2012, and set up a

transaction with Vitalis for the following day, with the

intention of robbing Vitalis of his proceeds of the previous sale. On August 6, 2012, Niraj drove Calabrese

and the defendant to the area of Vitalis’ home and

dropped them off down the road. Calabrese and the

defendant ran through the woods to Vitalis’ home. They

watched the home and saw Vitalis’ mother come home.
At approximately 6 p.m., Calabrese and the defendant,

wearing masks, bandanas, black hats, and gloves,

entered the home, encountered Vitalis’ mother, and

restrained her using zip ties. Calabrese, armed with

a Ruger handgun that he received from Niraj, went

upstairs and encountered Vitalis in his bedroom. He

struck Vitalis with the handgun and shot him three

times, killing him. Calabrese searched the bedroom but

could find only Vitalis’ wallet with $70 and approximately one-half ounce of marijuana, both of which he

took. Calabrese and the defendant ran from the property into the woods, where the defendant lost his cell

phone. Calabrese and the defendant eventually met up

with Niraj, who was driving around looking for them.

Calabrese burned his clothing and sneakers on the side

of Wolfe Road in Warren.4

After freeing herself, Vitalis’ mother called 911. State

police troopers arrived at the scene at approximately

6:14 p.m. and found Vitalis deceased. Some of the drawers in the furniture in Vitalis’ bedroom were pulled out.

The police searched the bedroom and found $32,150.

They also found marijuana plants growing in the home

and outside, 1.7 pounds of marijuana inside Vitalis’ bedroom closet, and evidence of marijuana sales.

The defendant’s parents, who were traveling out of

state on the day of the crime, owned a package store

in Madison. While the defendant’s parents were away,

the defendant was supposed to assist the store’s

employee, James Smith, and provide him with a ride

home at night. On the afternoon of the day of the crime,

Smith called the defendant to ask him to pick up single

dollar bills for the store, but could not get in touch with

him. The defendant’s parents also could not reach him

and, eventually, they called a family member, Sachin

Patel (Sachin). Sachin left his job at 6:30 p.m. and

arrived at the store at about 7 p.m. After Sachin could

not reach the defendant on his cell phone, Sachin went

to the defendant’s house in Branford, let the dog out,

and continued to call the defendant from the house

phone. Sachin left the defendant’s house at about 8:30

p.m. and returned to the store to give Smith a ride home.

On September 11, 2013, the defendant was arrested.

Following a trial, the jury, on February 1, 2017, returned

a guilty verdict on all counts. The court, thereafter,

rendered judgment in accordance with the jury’s verdict. See footnote 1 of this opinion. The court imposed

a total effective sentence of forty-five years of imprisonment, execution suspended after thirty-five years and

one day, twenty-five years of which were the mandatory

minimum, with five years of probation. This appeal

followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in

admitting into evidence ‘‘dual inculpatory statements’’
made by Calabrese. First, he contends as a threshold

matter that the state failed to prove Calabrese’s unavailability because Calabrese was not under oath when he

invoked his fifth amendment privilege. Next, he claims

that Calabrese’s statements made to a jailhouse informant, Wayne Early, were testimonial, and that the

introduction into evidence of the recording of those

statements violated his federal and state confrontation

and due process rights. He further contends that the

recording and the testimony of Britney Colwell, Calabrese’s girlfriend at the time of the crime, regarding

statements Calabrese made to her, also were inadmissible pursuant to § 8-6 (4) of the Connecticut Code of

Evidence. We consider each of these claims in turn.

A

As a threshold matter, the defendant contends that

‘‘the court erred in finding that Calabrese was ‘unavailable’ because Calabrese was not under oath when

questioned about his fifth amendment privilege.’’ The

defendant acknowledges that his claim is unpreserved

but nevertheless seeks review pursuant to the bypass

doctrine set forth by our Supreme Court in State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),

as modified by In re Yasiel R., 317 Conn. 773, 781, 120

A.3d 1188 (2015), or reversal pursuant to the plain error

doctrine.5 The state argues that the defendant’s argument is meritless, emphasizing the defendant’s ‘‘fail[-

ure] to cite a single case that holds that a trial court’s

finding of ‘unavailability’ must be based on the sworn

testimony of the purportedly unavailable witness.’’6 We

agree with the state that the court did not err in finding

Calabrese to be unavailable and, therefore, the defendant has not shown the existence of a constitutional

violation or met the stringent standard for relief pursuant to the plain error doctrine.7

The following additional procedural history is relevant. On the morning of January 4, 2017, the court stated

that defense counsel wanted a ‘‘record to be made as

to whether . . . Calabrese would be willing to testify

if he were called by either party in this case or if,

alternatively, he would seek to invoke his rights under

the fifth amendment.’’ Defense counsel represented

his understanding ‘‘that the state does not intend to call

this gentleman based on their understanding that he’s

going to invoke his fifth amendment privilege. It is my

position that, if that’s to be done, it should be done

by the witness himself . . . on the record in court;

his lawyer can’t do it for him.’’ Calabrese was present

in court with his counsel, Attorney Gerald Giaimo.

Responding to the court’s inquiry, Calabrese stated that

he had the opportunity to talk with Attorney Giaimo

about the proceeding. In response to the court’s question concerning whether he would answer questions if

he were called as a witness in the defendant’s case, he

stated that he ‘‘would plead the fifth.’’ In response to
the court’s follow-up questions, Calabrese confirmed

that he planned to invoke his rights under the fifth

amendment. The court inquired of the parties whether

there was ‘‘any question in the mind of either party

as to whether this is a valid invocation of the fifth

amendment privilege,’’ and defense counsel responded

that he had ‘‘no question about that’’ but requested

‘‘a follow-up question in terms of whether or not he

would intend to invoke his fifth amendment rights with

respect to every question he might be asked, not just

generally.’’ Defense counsel asked to inquire, and the

state objected. The court indicated that it did not think

it was necessary for defense counsel to inquire. Defense

counsel stated that he wanted to know whether Calabrese’s invocation of the fifth amendment ‘‘applie[d] to

every question that is asked of him relevant to this

case.’’ The court then asked Calabrese: ‘‘[i]f you were

to be asked questions about the facts of this case by

either party, what position would you take?’’ Calabrese

stated that he would ‘‘take the fifth.’’ The court then

asked: ‘‘Anything further?’’ Defense counsel responded:

‘‘Nothing from me.’’

The court found that Calabrese had made a valid

invocation of his fifth amendment privilege, stating that

it believed that if ‘‘Calabrese were to answer any questions relative to the facts of this case, they could have

a tendency to incriminate him.’’ The court again asked

whether there was ‘‘[a]nything further from either

party,’’ to which defense counsel responded, ‘‘[n]othing further.’’

‘‘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.’’ (Emphasis in original; internal

quotation marks omitted.) State v. Walker, 332 Conn.

678, 688, 212 A.3d 1244 (2019). We conclude that the

defendant’s claim is reviewable under the first and second prongs of Golding. Accordingly, we turn to the

third prong of Golding—namely, whether the defendant

has established a violation of his sixth amendment confrontation rights.

In support of his claim that his sixth amendment right

to confrontation was violated, the defendant cites State

v. Cecarelli, 32 Conn. App. 811, 821, 631 A.2d 862 (1993).

In Cecarelli, the trial court accepted the representation

made by counsel for a witness that the witness would

invoke his fifth amendment privilege regardless of the

question he was asked. Id., 817. The witness did not
appear in court, and the court denied the defendant’s

request for a hearing to determine whether a valid privilege properly was claimed as to questions concerning the scope and extent of the witness’ actions as

a police informant. Id., 817–18. On appeal, this court

concluded that the trial court’s failure to hold a hearing implicated the defendant’s constitutional right to

present a defense. Id., 821. Noting that ‘‘a question-byquestion invocation of the privilege against self-incrimination may not be required under all circumstances,’’

this court concluded that the sustaining of a blanket

privilege claim was not appropriate given the circumstances before the trial court, and that a hearing was

required. Id., 820.

Cecarelli is distinguishable from the present case in

that the defendant in Cecarelli challenged the witness’

assertion of his constitutional privilege on the ground

that it might not pertain to all of the questions the

defendant sought to ask regarding his entrapment

defense. Specifically, this court reasoned: ‘‘We cannot

speculate that the defendant’s entrapment defense may

be inextricably bound up with a scheme of criminality

on the part of [the witness] and that all questions asked

of [the witness] to corroborate that defense might

require answers tending to incriminate him. That determination may be reached only at a hearing for that

purpose, which would allow the trial court to explore

the basis, if any, of the witness’ refusal to testify, if he

does, in fact, invoke his privilege.’’ Id., 821. Here, the

defendant makes no claim that Calabrese’s constitutional privilege might not have pertained to all of the

questions that would have been asked of him.

On point with this case is State v. Nieves, 89 Conn.

App. 410, 417, 873 A.2d 1066, cert. denied, 275 Conn.

906, 882 A.2d 679 (2005). In Nieves, this court rejected

the defendant’s claim ‘‘that the [trial] court violated his

sixth amendment right to present a defense simply by

failing to hold a hearing, requiring [the witness] to take

the stand and personally to invoke his fifth amendment

privilege.’’ Id. In Nieves, the court permitted the witness’

counsel to represent that his client would invoke his

fifth amendment privilege against self-incrimination as

to all questions. Id., 416–17. The defendant did not

request a hearing but moved to compel the witness to

testify. Id., 416. On appeal, this court noted that ‘‘there

is no claim that [the witness] might have answered some

relevant questions that would go to the defendant’s

defense’’; id., 418–19; and found the defendant’s argument premised solely on the fact that the witness personally did not invoke the privilege at a hearing unavailing. Id., 420–21.

The defendant’s sole challenge to the court’s unavailability finding is that Calabrese had not been administered an oath prior to his testimony, during a hearing

before the court, that he would assert his fifth amend-
ment privilege not to testify. The defendant does not

contend that Calabrese would have answered some

questions or that the court’s inquiry of Calabrese as to

his personal invocation of the privilege was deficient

in substance. We cannot conclude that the court’s failure to have Calabrese sworn in violated the defendant’s

sixth amendment right to confrontation or constituted

plain error. Accordingly, the court did not err in finding

Calabrese to be unavailable.

B

Having concluded that the court did not err in finding

Calabrese to be unavailable, we now consider the defendant’s claim that the court improperly admitted into

evidence Calabrese’s statements to Colwell and Early.

The following additional facts and procedural history

are relevant. In statements made to Colwell on the day

of Vitalis’ killing, Calabrese admitted his participation

in the robbery. Subsequently, in September, 2013, Calabrese detailed the events surrounding Vitalis’ killing, implicating himself, Niraj, and the defendant, in a

recorded statement to a confidential inmate informant.

Our analysis of this issue requires discussion of filings

in Niraj’s trial on charges stemming from the same incident.8

In Niraj’s trial, he filed a motion in limine seeking

to preclude the state from introducing into evidence

out-of-court statements made by Calabrese in lieu of

his live testimony, contending that the admission of his

statements would violate the fourth, fifth, sixth and

fourteenth amendments to the United States constitution, article first, §§ 8, 9 and 10 of the Connecticut

constitution, and Practice Book § 42-15. See State v.

Patel, 186 Conn. App. 814, 831, 201 A.3d 459, cert.

denied, 331 Conn. 906, 203 A.3d 569 (2019). On December 31, 2015, the court issued a ruling denying Niraj’s

motion without prejudice.

Addressing Calabrese’s statements to Early, the court

noted the passage of time, thirteen months, as a factor

weighing against the trustworthiness of the statements.

The court further considered that Calabrese’s statements ‘‘were made to a fellow inmate who appeared to

the defendant to be a fellow gang member, and one

who was facing serious charges.’’ The court found that

the statements were ‘‘replete with specific details of

the crime,’’ and stated that inconsistencies identified

by the defendant were not as significant as they appear

and ‘‘pale[d] in comparison to the myriad details of the

crime that could only be known to a participant in the

crime.’’ Considering the extent to which the statements

were against Calabrese’s penal interest, the court noted

that Calabrese explicitly stated that he killed Vitalis and

‘‘ma[de] clear that any other person involved is less

culpable than he is.’’ The court also considered that

Calabrese had initiated the discussion about the crime

on September 3, 2015, and that Calabrese had made
statements to Colwell that were consistent with his

statements to Early. Last, the court stated that the state

offered cell phone location evidence linking Calabrese

to the crime. The court concluded that Calabrese’s

statements to Early were admissible as statements

against penal interest pursuant to § 8-6 (4) of the Connecticut Code of Evidence. The court further concluded

that Calabrese’s statements to Early were not testimonial.

Regarding Calabrese’s statements to Colwell, the

court found that the statements constituted declarations against penal interest pursuant to § 8-6 (4), in that

the ‘‘statements were made to a confidante; they were

made just before, on the day of, and the day after, the

homicide. Their trustworthiness lies in not only the

foregoing facts, but in their consistency with other physical evidence in the case, including the time of the

statements relative to the event; the specific admissions

of theft that were consistent with other evidence relative to the theft and the statements regarding clothing

that were consistent with the declarant’s efforts to

destroy clothing that might carry evidence of the

crime.’’

In the trial underlying this appeal, on August 3, 2016,

the defendant filed a similar motion in limine seeking

to preclude the state from offering into evidence Calabrese’s out-of-court statements. In his memorandum of

law in support of his motion, the defendant recognized

that the issue had been considered and ruled on by the

court in connection with Niraj’s trial. On November 8,

2016, the court, at the request of defense counsel and

without objection from the state, took judicial notice

of the totality of the filings and the transcripts in Niraj’s

trial. Later that day, the court noted that, in Niraj’s trial,

it had ruled on a motion in limine regarding Calabrese’s

statements and asked whether ‘‘there are any changes

in the law since that ruling that require a different result

and, alternatively, whether there are any factual developments that you wish to bring to my attention that

might bring about a different result.’’ Defense counsel

responded, ‘‘[n]o, as to both, Your Honor.’’ The court

indicated that ‘‘it would appear that the law of the case

would control,’’9 and the state agreed. The court asked

defense counsel whether he had anything further, and

defense counsel replied: ‘‘No, I just want to make—I

think we agree that in the event that this has to—this

case has to go beyond as proceeding subsequent to the

verdict, that Your Honor is relying—and [the] defendant

will have available the record of the Niraj Patel file—

trial . . . with respect to the arguments and the submissions.’’ The state had no objection to that request.

The court then stated: ‘‘Well, the law of the case is not

absolute, but under the circumstances expressed by the

defense in the motion and the responses to my questions

today, I find that the law of the case controls that the

ruling of December 31, 2015, will control this motion
as well, and the motion is denied for the reasons set

forth in that opinion.’’

On January 6, 2017, the state called Early as a witness.

Early, who remained incarcerated at the time of the

defendant’s trial, testified that while incarcerated at the

New Haven Correctional Center, he was called to the

intelligence office, informed that Calabrese was going

to be moved into Early’s cell, and asked whether he

would be willing to wear a recording device to record

Calabrese.10 Early, who previously had made confidential recordings of other inmates, indicated he would be

willing to do so, and Calabrese was moved into his cell

that evening. Later that evening, the two discussed the

crimes for which they were incarcerated. Early stopped

the conversation, however, because he knew he was

going to wear a recording device and did not want to

repeat the same conversation the next day. The next

day, Early again was called to the intelligence office

and asked whether he ‘‘ ‘could do it,’ ’’ and Early

responded that he could. The intelligence officer then

placed a telephone call to the state police, in which

Early was asked what he knew about the case. Early

responded that he did not know anything about it, and

the state police asked Early to get as many details as

possible. The intelligence officer then placed the

recording device in Early’s shirt pocket.

Early went back to his cellblock recreation area, a

lockdown was called, and he went back to his cell with

Calabrese. The two engaged in a lengthy conversation,

in which Calabrese detailed the events surrounding

Vitalis’ killing, implicating himself, Niraj, and the defendant. Over the defendant’s objection, the recording was

played for the jury during trial.11 The defendant renewed

his objection to the admission of the recording in his

motion for a new trial, which was denied.

On January 18, 2017, the state called Colwell as a

witness, who testified that in August, 2012, she lived

with her boyfriend at the time, Calabrese, at their condominium in Branford. Colwell stated that one day in

the first week of August, 2012, Calabrese was on the

telephone with Niraj. He told Colwell that Niraj ‘‘wanted

him to go up near his parents’ house . . . to rob a kid

that owed him money’’ and that Niraj told Calabrese

that he ‘‘would give him a good amount of money if he

did this.’’ Colwell stated that Calabrese was hesitant at

first but later decided ‘‘he was gonna do it.’’ Within a

couple days of the telephone call with Niraj, Calabrese

left their condominium, saying that ‘‘he was going to

pick up [the defendant] to go up near his parents’ house

to go rob the kid.’’ Colwell begged him not to go. As

the evening went on and Colwell did not hear from

Calabrese, she began calling him ‘‘a hundred times’’ and

calling everyone he knew. When Colwell spoke with

Calabrese later that evening, she asked him whether

he did what he had to do, and Calabrese responded,
‘‘yeah, but we didn’t get any money. We just got a little

bit of weed.’’ When Calabrese returned to their condominium early the next morning, he was wearing different clothes and was not wearing shoes. He told Colwell

he had been playing basketball at Niraj’s house and that

Niraj had given him a change of clothes.

1

Federal Constitutional Claim

We begin by addressing the defendant’s federal constitutional claim that his confrontation rights were violated by the introduction into evidence of the recording

of Calabrese’s statements to Early. He argues that Calabrese’s statements were testimonial. We disagree with

the defendant’s claim, which is controlled by our recent

decision in State v. Patel, supra, 186 Conn. App. 814.

‘‘The sixth amendment to the United States constitution, applicable to the states through the fourteenth

amendment, provides in relevant part: In all criminal

prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him . . . . In

Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004)], the [United States] Supreme

Court substantially revised its approach to confrontation clause claims. Under Crawford, testimonial hearsay is admissible against a criminal defendant at trial

only if the defendant had a prior opportunity for crossexamination and the witness is unavailable to testify

at trial. . . . In adopting this categorical approach, the

court overturned existing precedent that had applied

an open-ended balancing [test] . . . conditioning the

admissibility of out-of-court statements on a court’s

determination of whether the proffered statements bore

adequate indicia of reliability. . . . Although Crawford’s revision of the court’s confrontation clause jurisprudence is significant, its rules govern the admissibility

only of certain classes of statements, namely, testimonial hearsay. . . . Accordingly, the threshold inquiries

in a confrontation clause analysis are whether the statement was hearsay, and if so, whether the statement

was testimonial in nature . . . . These are questions

of law over which our review is plenary.’’ (Citations

omitted; footnote omitted; internal quotation marks

omitted.) State v. Walker, supra, 332 Conn. 689–90.

‘‘As a general matter, a testimonial statement is typically [a] solemn declaration or affirmation made for

the purpose of establishing or proving some fact. . . .

Although the United States Supreme Court did not provide a comprehensive definition of what constitutes a

testimonial statement in Crawford, the court did

describe three core classes of testimonial statements:

[1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable

to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially . . . [2] extrajudicial statements . . . contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions

[and] . . . [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available

for use at a later trial . . . . The present case concerns

only this third category form of testimonial statements.

‘‘[I]n Davis v. Washington, [547 U.S. 813, 822, 126 S.

Ct. 2266, 165 L. Ed. 2d 224 (2006)], the United States

Supreme Court elaborated on the third category and

applied a primary purpose test to distinguish testimonial from nontestimonial statements given to police

officials, holding: Statements are nontestimonial when

made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance

to meet an ongoing emergency. They are testimonial

when the circumstances objectively indicate that there

is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.

‘‘In State v. Slater, [285 Conn. 162, 172 n.8, 939 A.2d

1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L.

Ed. 2d 822 (2008)], we reconciled Crawford and Davis,

noting: We view the primary purpose gloss articulated

in Davis as entirely consistent with Crawford’s focus

on the reasonable expectation of the declarant. . . .

[I]n focusing on the primary purpose of the communication, Davis provides a practical way to resolve what

Crawford had identified as the crucial issue in determining whether out-of-court statements are testimonial, namely, whether the circumstances would lead an

objective witness reasonably to believe that the statements would later be used in a prosecution.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Walker, supra, 332 Conn. 700–702.

Although arguing that the United States Supreme

Court has yet to make an explicit post-Crawford ruling

on this issue, the defendant recognizes that the court,

in dicta, has expressed the view that ‘‘statements made

unwittingly to a [g]overnment informant’’ or ‘‘statements from one prisoner to another’’ are ‘‘clearly nontestimonial.’’ Davis v. Washington, supra, 547 U.S. 825

(citing Bourjaily v. United States, 483 U.S. 171, 181–84,

107 S. Ct. 2775, 97 L. Ed. 2d 144 [1987], and Dutton v.

Evans, 400 U.S. 74, 87–89, 91 S. Ct. 210, 27 L. Ed. 2d

213 [1970] [plurality]). The defendant further concedes

that ‘‘to date, federal and state courts have refused to

accord ‘testimonial’ status to statements made to fellow

inmates or informants.’’

This court, in resolving Niraj’s appeal, noted that our

Supreme Court had not ‘‘addressed the specific issue
of whether a recording initiated by a prisoner, who is

acting as a confidential informant, of a fellow prisoner

unwittingly making dual inculpatory statements about

himself and a coconspirator or codefendant are testimonial in nature.’’ State v. Patel, supra, 186 Conn. App. 837.

Considering this question in the context of Calabrese’s

statements, this court concluded that his statements

were nontestimonial in nature. Id. This court relied on

United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004),

cert. denied, 543 U.S. 1079, 125 S. Ct. 938, 160 L. Ed.

2d 821 (2005), in which the United States Court of

Appeals for the Second Circuit concluded ‘‘that a declarant’s statements to a confidential informant, whose true

status is unknown to the declarant, do not constitute

testimony within the meaning of Crawford’’ and decisions from other jurisdictions holding that statements to

confidential jailhouse informants were not testimonial.

See State v. Patel, supra, 840–41 (collecting cases).

We conclude that the resolution of the defendant’s

federal constitution claim is controlled by our decision

in State v. Patel, supra, 186 Conn. App. 814, in which

we concluded that Calabrese’s statements ‘‘[bore] none

of the characteristics of testimonial hearsay,’’ in that

‘‘Calabrese made these statements to his prison cellmate in an informal setting. He implicated himself, [the

defendant] and [Niraj] and there is no indication that

he anticipated that his statements would be used in a

criminal investigation or prosecution.’’ Id., 841. State v.

Patel, supra, 814, was released on January 8, 2019, after

the briefing was completed in this case.12 At oral argument before this court, the sole bases advanced by the

defendant’s appellate counsel for distinguishing Patel

were differences in the evidence presented as to the

circumstances preceding Early’s agreement to record

Calabrese.

The following additional background is relevant. In

Niraj’s trial, the court denied his motion in limine to

preclude introduction into evidence of the Calabrese

recording and noted that ‘‘the state claims that the conversations between Calabrese and the cellmate were

initiated on September 3, 2013, without the involvement

of law enforcement . . . .’’ Early testified, in that case,

that ‘‘the intelligence officer asked me if I was—if I was

willing to wear a device because I was ready—they

don’t want him because I’m trying to—I’m trying to dis

on my plate, so, I say—I say, absolutely, I will. Know

what I mean? He was in my cell. And I went to the

officer and he started speaking; the next day, I went to

the officer and said, he—he’s talking about it; know

what I mean? So, he put the device in my pocket—in

my pocket and sent me back to the cell.’’ On crossexamination, Early further testified that the night Calabrese was moved into his cell, he and Calabrese talked

about their charges, and that the following day, Early

went to security and said that he knew he could get

Calabrese to talk.13 In the present case, as described
previously, Early testified that he first was called to the

intelligence office, informed that Calabrese was going

to be placed in his cell, and asked whether he would

be willing to wear a recording device to record Calabrese. The next day, when Early again was called to

the intelligence office, he was put on a telephone call

with the state police and was asked to get as many

details as possible.

Accordingly, the evidence in the present case suggests that the recording was initiated by the Department

of Correction, which fact was not clear from the testimony during Niraj’s trial, and that the state police were

involved and had spoken to Early, facts that were not

in evidence during Niraj’s trial. We are not convinced

that factual discrepancies in Early’s testimony as to

whether it was Early or law enforcement officials who

initiated the cooperation between the two disturbs

our conclusion that Calabrese’s statements were nontestimonial. The analysis regarding whether Calabrese’s

statements were testimonial focuses on the reasonable

expectation of the declarant, Calabrese. Under either

factual scenario, there is no indication that Calabrese

had knowledge that he was speaking with a confidential jailhouse informant and, thus, an objective witness

making statements under those circumstances would

not reasonably believe that his statements later may be

used at a trial. Accordingly, as this court previously

concluded in State v. Patel, supra, 186 Conn. App. 841–

42, Calabrese’s statements to Early were nontestimonial, and the admission into evidence of the recording

did not violate the defendant’s right to confrontation

under the federal constitution.

The defendant raises one additional argument not

raised in State v. Patel, supra, 186 Conn. App. 814. The

defendant claims that the court ran afoul of Michigan

v. Bryant, 562 U.S. 344, 369–70, 131 S. Ct. 1143, 179 L.

Ed. 2d 93 (2011), in failing to give consideration to

Early’s statements and actions during his conversation

with Calabrese. He relies on Bryant’s direction that,

‘‘[i]n determining whether a declarant’s statements are

testimonial, courts should look to all of the relevant

circumstances,’’ such as ‘‘the statements and actions of

all participants.’’ Id. The state responds that ‘‘[w]hile

the circumstances leading to a declarant making his

hearsay statements can be relevant to whether they

were testimonial, nothing about the circumstances here

suggests that a person in Calabrese’s ‘position would

intend his statements to be a substitute for trial testimony,’ ’’ quoting Ohio v. Clark, U.S. , 135 S. Ct.

2173, 2182, 192 L. Ed. 2d 306 (2015). The state directs

this court’s attention to post-Bryant decisions from the

United States Court of Appeals for the Fourth and Fifth

Circuits that have continued to engage in a declarant

focused analysis. See United States v. Dargan, 738 F.3d

643, 650 (4th Cir. 2013) (‘‘[t]he primary determinant of a

statement’s testimonial quality is whether a reasonable
person in the declarant’s position would have expected

his statements to be used at trial—that is, whether the

declarant would have expected or intended to bear

witness against another in a later proceeding’’ [internal

quotation marks omitted]). In Dargan, the United States

Court of Appeals for the Fourth Circuit held that jailhouse disclosures to a cellmate were plainly nontestimonial, where the statements were made to a casual

acquaintance, his cellmate, in an informal setting, and

were not made with an eye toward trial, where the

declarant ‘‘had no plausible expectation of ‘bearing witness’ against anyone.’’ Id., 651; see also Brown v. Epps,

686 F.3d 281, 287–88 (5th Cir. 2012) (noting, in postBryant decision, that ‘‘several district courts in this

Circuit have held that statements unknowingly made

to an undercover officer, confidential informant, or

cooperating witness are not testimonial in nature

because the statements are not made under circumstances which would lead an objective witness to reasonably believe that the statements would be available

for later use at trial. Many other Circuits have come

to the same conclusion, and none disagree’’ [footnote

omitted; internal quotation marks omitted]). Considering these decisions in factually similar circumstances,

we are not persuaded that the court erred in engaging

in a declarant focused analysis.14

2

State Constitutional Claim

For the first time, on appeal, the defendant argues

that ‘‘[a]s an independent ground for relief, this court

should conclude that Calabrese’s statement was ‘testimonial’ for purposes of the due process and confrontation clauses in article first, § 8, of the Connecticut constitution.’’ The defendant concedes that this issue is

unpreserved, but nevertheless seeks review pursuant

to the bypass doctrine set forth by our Supreme Court

in State v. Golding, supra, 213 Conn. 239–40. We conclude that the record is adequate for review, and the

defendant’s claim, on its face, is of constitutional magnitude. The claim fails to satisfy the third prong of

Golding, however, because the defendant has not established that a constitutional violation exists.

‘‘In determining the contours of the protections provided by our state constitution, we employ a multifactor

approach that we first adopted in [State v. Geisler, 222

Conn. 672, 684–85, 610 A.2d 1225 (1992)]. The factors

that we consider are (1) the text of the relevant constitutional provisions; (2) related Connecticut precedents;

(3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into

the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and

sociological norms [otherwise described as public policies]. . . . We have noted, however, that these factors

may be inextricably interwoven, and not every [such]
factor is relevant in all cases.’’ (Citations omitted; internal quotation marks omitted.) State v. Skok, 318 Conn.

699, 708, 122 A.3d 608 (2015).

At the outset, we conclude that five Geisler factors—

the first through the fifth—do not support the defendant’s claim that the admission into evidence of Calabrese’s statements violated his rights under article first,

§ 8, and indeed, the defendant, in his principal brief to

this court, concedes as much. Moreover, our Supreme

Court has stated that ‘‘with respect to the right to confrontation within article first, § 8, of our state constitution, its language is nearly identical to the confrontation

clause in the sixth amendment to the United States

constitution. The provisions have a shared genesis in

the common law. . . . Moreover, we have acknowledged that the principles of interpretation for applying

these clauses are identical.’’ (Citations omitted.) State

v. Lockhart, 298 Conn. 537, 555, 4 A.3d 1176 (2010).

As to the sixth Geisler factor—contemporary economic and sociological considerations, including relevant public policy—the defendant argues that ‘‘[t]he

Department of Correction should not serve as a Department of Interrogation.’’ He argues: ‘‘This is a case in

which . . . correctional officers . . . acting at the

behest of [the] state police . . . purposely relocated a

targeted inmate by moving him to a particular cell so

that . . . a ‘wired’ informant could interrogate the targeted inmate and record the interrogation for later use

in a criminal prosecution.’’ He maintains that the law

enforcement involved in planning the recording knew

or should have known that ‘‘under existing law’’ the

recording would likely be admissible at trial if the

declarant were unavailable as a witness ‘‘and would

thereby deprive any codefendant who had been implicated by the declarant of his or her right to confront

their accuser.’’ Citing prosecutorial discretion in the

determination of the order in which cases are brought

to trial, the defendant argues that ‘‘prosecutors can

effectively manipulate the system to deprive defendants

of their confrontation rights.’’

The state responds, inter alia, that ‘‘short of precluding the use of any taped recording of inmate to inmate

communication, it is unclear how the defendant’s proposed constitutional rule would work in practice. Yet,

recording of inmate confessions should be encouraged,

not forbidden, given the distrust with which our courts

historically have viewed jailhouse informant testimony.’’ We conclude that the defendant has not identified any compelling economic or sociological concern

supporting a change in the interpretation of our confrontation clause and therefore conclude that the sixth

Geisler factor does not lend support to the defendant’s claim.

In light of the foregoing, we conclude that the admission into evidence of Calabrese’s statements did not
violate the defendant’s rights under article first, § 8, of

the Connecticut constitution.

3

Evidentiary Claim

The defendant also claims that the court abused its

discretion when it concluded that Calabrese’s statements to Early and Colwell were admissible as dual

inculpatory statements pursuant to § 8-6 (4) of the Connecticut Code of Evidence. We disagree.

‘‘A dual inculpatory statement is admissible as a statement against penal interest under § 8-6 (4) of the Connecticut Code of Evidence, which carves out an

exception to the hearsay rule for an out-of-court statement made by an unavailable declarant if the statement

at the time of its making . . . so far tended to subject

the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not

have made the statement unless believing it to be true.’’

(Internal quotation marks omitted.) State v. Pierre, 277

Conn. 42, 67, 890 A.2d 474, cert. denied, 547 U.S. 1197,

126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). ‘‘In short, the

admissibility of a hearsay statement pursuant to § 8-6

(4) . . . is subject to a binary inquiry: (1) whether [the]

statement . . . was against [the declarant’s] penal

interest and, if so, (2) whether the statement was sufficiently trustworthy.’’ (Internal quotation marks omitted.) State v. Bonds, 172 Conn. App. 108, 117, 158 A.3d

826, cert. denied, 326 Conn. 907, 163 A.3d 1206 (2017).

The defendant concedes that Calabrese’s statements to

Early and Colwell were against his penal interest and

challenges only the court’s finding that the statements

were trustworthy.

‘‘In determining the trustworthiness of a statement

against penal interest, the court shall consider (A) the

time the statement was made and the person to whom

the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which

the statement was against the declarant’s penal interest.

. . . Conn. Code Evid. § 8-6 (4). Additionally, when

evaluating a statement against penal interest, the trial

court must carefully weigh all of the relevant factors

in determining whether the statement bears sufficient

indicia of reliability to warrant its admission. . . .

[W]hen viewing this issue through an evidentiary lens,

we examine whether the trial court properly exercised

its discretion.’’ (Citations omitted; internal quotation

marks omitted.) State v. Pierre, supra, 277 Conn. 68;

see also State v. Bonds, supra, 172 Conn. App. 123

(‘‘[w]e review for an abuse of discretion the court’s

determination that the statement was trustworthy and,

thus, admissible at trial’’). ‘‘[N]o single factor for

determining trustworthiness . . . is necessarily conclusive. . . . Rather, the trial court is tasked with

weighing all of the relevant factors set forth in § 8-6
(4) . . . .’’ (Citation omitted; internal quotation marks

omitted.) State v. Bonds, supra, 125.

The defendant argues that Calabrese’s statements to

Early were not trustworthy. With respect to the first

factor, the defendant argues that statements to fellow

inmates traditionally have been considered untrustworthy, Calabrese and Early did not know each other, and

most of Calabrese’s statements were prompted and

induced by Early’s questioning.15 We disagree that this

factor weighs against a finding of reliability. The court

found relevant that Calabrese made the statements ‘‘to

a fellow inmate who appeared to . . . be a fellow gang

member, and one who was facing serious charges.’’16

In State v. Smith, 289 Conn. 598, 633, 960 A.2d 993

(2008), our Supreme Court concluded that the trial

court’s findings adequately supported its conclusion

that a witness’ statements to his cellmate, in which he

implicated himself in an unsolved murder, presented

sufficient indicia of reliability to justify their admission,

noting ‘‘the camaraderie that arises’’ between those who

are incarcerated and facing criminal charges. Id. The

court in Smith also considered that the witness ‘‘did

not induce [the declarant] to share the details of the

crime.’’ Id. It noted the trial court’s finding that although

‘‘at times [the witness] seemed to lead some of the

discussion,’’ the declarant was ‘‘a willing and active

participant . . . who provided nearly all of the substance of the discussion.’’ (Internal quotation marks

omitted.) Id., 616–17. In the present case, although Early

continually asked Calabrese questions, Early testified

that he did not know anything about the crime before

talking to Calabrese. Thus, the details of the crime were

related only by Calabrese. Accordingly, the person to

whom the statements were made weighs in favor of a

finding of trustworthiness.

As to the second factor, the defendant recognizes

that Calabrese recited ‘‘specific details of the crime’’ but

contends that his statements also ‘‘contained numerous

facts that were contradicted by his other statements or

by physical evidence.’’ Specifically, he emphasizes that

Calabrese told Early that Vitalis had come at him with

a large knife, but there was no evidence of any knife.

Rather than setting forth and analyzing the remainder

of the alleged inconsistencies, the defendant merely

‘‘incorporates . . . the list of contradictory and inconsistent statements listed in the trial memoranda filed

by Niraj . . . and the defendant.’’ (Citation omitted.)

It was within the trial court’s discretion to evaluate the

consistencies and inconsistencies to conclude that, on

balance, the second factor weighed in favor of a determination that the statements are reliable. Indeed, the

trial court noted the inconsistencies identified by the

defendant and found that they ‘‘pale[d] in comparison

to the myriad details of the crime that could only be

known to a participant in the crime.’’ Accordingly, our

examination of the relevant factors17 leads us to con-
clude that the trial court’s findings adequately support

its conclusion that Calabrese’s statements to Early presented sufficient indicia of reliability to justify their

admission. See State v. Smith, supra, 289 Conn. 631.

The defendant also argues that Calabrese’s statements to Colwell were not trustworthy because he ‘‘was

seeking to misinform his girlfriend about his involvement in the incident; he downplayed his participation,

admitting to the robbery but denying involvement in

the death of . . . Vitalis. He even told Early that he

had lied to Colwell.’’ The state responds that Calabrese

actually had not denied killing Vitalis in his statement

hours after the murder, and that ‘‘Calabrese’s statement

about ‘‘rob[bing] the kid,’’ made before the incident,

was not inconsistent with the state’s theory, which

allowed for the possibility that the gunman’s intent to

kill may have been formed moments before the actual

murder.’’

With regard to the first factor, Calabrese made his

statements to Colwell on the day of the crime, both

when he was leaving their condominium to commit the

crime and later that night after having committed the

crime. ‘‘In general, declarations made soon after the

crime suggest more reliability than those made after

a lapse of time where a declarant has a more ample

opportunity for reflection and contrivance.’’ (Internal

quotation marks omitted.) State v. Camacho, 282 Conn.

328, 361, 924 A.2d 99 (statements made within one week

of murders trustworthy), cert. denied, 552 U.S. 956, 128

S. Ct. 388, 169 L. Ed. 2d. 273 (2007); see State v. Pierre,

supra, 277 Conn. 71 (statements made within ‘‘couple

of weeks’’ trustworthy). The statements also were made

to Calabrese’s girlfriend, a person with whom Calabrese

had a close relationship. See State v. Camacho, supra,

361–62 (statement made to neighbor, who was also

friend, indicative of statement’s reliability). As to the

second factor, the statements were consistent with

other evidence in the case, in that Calabrese told Colwell they ‘‘didn’t get any money,’’ which was consistent

with the police, upon conducting a search, finding

$32,150 in Vitalis’ bedroom. As to the third factor, even

if Calabrese downplayed his involvement by admitting

that he robbed Vitalis while failing to offer that he also

had murdered Vitalis, the statement remained against

his penal interest to a significant extent, in that he

‘‘directly and explicitly incriminated himself by admitting his own participation in’’ the robbery. State v.

Bonds, supra, 172 Conn. App. 123. Thus, the trial court’s

findings adequately support its conclusion that Calabrese’s statements to Colwell presented sufficient indicia of reliability to justify their admission. See State v.

Smith, supra, 289 Conn. 631.

In light of the preceding factors, we conclude that

the court did not abuse its discretion when it admitted

Calabrese’s statements to Early and Colwell pursuant
to the dual inculpatory statement exception to the hearsay rule.

II

The defendant’s second claim on appeal is that the

‘‘court erred in ruling that the defense could not elicit

testimony from Salony [Majmudar], the defendant’s sister, that Shyam had confessed to her that it was he,

not the defendant, who had accompanied Calabrese

into the Vitalis home on August 6.’’ He claims that the

exclusion of Majmudar’s testimony regarding Shyam’s

statement constituted evidentiary error under § 8-6 (4)

of the Connecticut Code of Evidence, and violated his

federal and state constitutional rights to present a

defense and to due process of law. We disagree.

The following additional facts and procedural history

are relevant to our resolution of this claim. On January

25, 2017, Majmudar, the defendant’s sister, testified that

Shyam visited her home unannounced one evening

during the last two weeks of September, 2013. When

defense counsel sought to elicit the substance of the

conversation, the state asked for a proffer outside the

presence of the jury. The jury was excused, and Majmudar testified that Shyam asked to borrow $50,000 to

help make Niraj’s bond. Majmudar testified that she

told Shyam that she could not help him because she

needed to have money ready for the defendant’s bond

and attorney’s fees. Majmudar testified: ‘‘I told him that

[the defendant] didn’t do this, that [the defendant] was

innocent, he was in Boston with me. He didn’t look

surprised. I asked him if he knew who was with [Calabrese] during the robbery. He stayed silent, and he

avoided making eye contact with me. I asked him again

if he knew who was with [Calabrese] during the robbery, and he still stayed silent and looked away. I

directly asked him if he was with [Calabrese] during

the robbery. That’s when he started to break down in

tears, and he admitted that he and [Calabrese] tried to

rob [Vitalis] that night.’’18 Majmudar testified that she

told only the defendant about Shyam’s confession.

The following morning, the court heard argument on

the issue of whether Shyam’s statements to Majmudar

were admissible as statements against penal interest

under § 8-6 (4) of the Connecticut Code of Evidence.

Analyzing the trustworthiness of the statements, the

court considered a number of factors that it determined

weighed against admissibility, including that the confession was made thirteen months after the crime; the

witness, Majmudar, told no one other than the defendant for more than three and one-half years after the

statement was made; the statements were made to only

one person, Majmudar; the nature of the relationship

between Majmudar and Shyam, in that she had only

seen Shyam approximately twice in the preceding year

or so; and Majmudar was highly motivated to assist her

brother. The court concluded that there was insufficient
evidence corroborating the statement to render it trustworthy and, therefore, the statement did not satisfy the

requirements of § 8-6 (4).19

As set forth in part I B 3 of this opinion, we review

for an abuse of discretion the court’s determination

of the trustworthiness of a statement against penal

interest. See State v. Pierre, supra, 277 Conn. 68. ‘‘In

determining the trustworthiness of a statement against

penal interest, the court shall consider (A) the time

the statement was made and the person to whom the

statement was made, (B) the existence of corroborating

evidence in the case, and (C) the extent to which the

statement was against the declarant’s penal interest.

. . . Conn. Code Evid. § 8-6 (4).’’ (Citation omitted;

internal quotation marks omitted.) State v. Pierre,

supra, 68.

We begin with the third factor, pursuant to which

the defendant argues that ‘‘there is no question that

Shyam’s statement was against penal interest.’’ The

court described Shyam’s statement as being ‘‘to the

effect that he should be charged with murder instead

of the defendant.’’ We agree with the defendant that

the statement was against Shyam’s penal interest to a

significant extent, such that this factor weighs in favor

of a finding of trustworthiness.

As to the first factor, the defendant argues on appeal

that Shyam’s statement was trustworthy in that it was

made to ‘‘someone with whom he had a close personal

relationship, and with whose family he had resided for

two years while in high school.’’ We cannot conclude

that the court erred in determining that the relationship

between Majmudar and Shyam did not support a finding

of trustworthiness.20 Although Majmudar testified that

Shyam had shared confidences with her, that she and

Shyam were close growing up, and that the two grew

even closer when Shyam stayed with her family for his

junior and senior years of high school, she acknowledged that she did not see him as much as she did

before medical school and residency. She also testified

that she had seen Shyam only twice in the past year or

so and that it had ‘‘been years’’ since she had more

steady contact with Shyam.21 Moreover, there was no

evidence presented that Shyam ever had repeated the

statement or had made inculpatory statements to persons other than Majmudar. See State v. Rivera, 221

Conn. 58, 70, 602 A.2d 571 (1992) (considering that

there was no evidence declarant repeated statement to

anyone else and testified to the contrary at probable

cause hearing); State v. Mayette, 204 Conn. 571, 578, 529

A.2d 673 (1987) (delay in making statements combined

with lack of reiteration of statements weigh against

reliability); see also State v. Lopez, 254 Conn. 309, 321,

757 A.2d 542 (2000) (considering, under second factor,

that there was no evidence declarant had repeated statement or made inculpatory statements to any other
person).

As to the second factor, the defendant argues that

Shyam’s statement was supported by a number of corroborating circumstances. First, he points to Vitalis’

mother’s indication, at one point, that Shyam was one

of the intruders. Although Vitalis’ mother did not testify

at trial, a joint stipulation signed by the prosecutor,

Dawn Gallo, and the defendant, by defense counsel,

William F. Dow III, was entered into evidence and read

aloud to the jury. The joint stipulation provided, in

relevant part, that Vitalis’ mother gave multiple statements with different descriptions of the intruders, first

stating that both men were white and later stating that

they could have been Hispanic. In January, 2016, Vitalis’

mother told an inspector with the state’s attorney’s

office that she believed one of the two men was an

Indian male and that she believed this person to be

Shyam Patel. At the time of the incident, she knew Niraj

and Shyam, but did not know the defendant. In January,

2017, Vitalis’ mother told an inspector that she did not

know who either of the two intruders were for certain.

Because the statements of Vitalis’ mother were inconsistent with each other, they are not sufficiently corroborative of Shyam’s statement.

Second, the defendant argues that ‘‘[t]here was no

irrefutable proof that Shyam was at some distant location at the time of the crime, so he clearly had the

opportunity to participate in it.’’ In support of this argument, he cites State v. Gold, 180 Conn. 619, 636, 431

A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66

L. Ed. 2d 148 (1980), in which our Supreme Court noted

that the declarant had the opportunity to commit the

murders, citing, as corroborating circumstances, that

two witnesses had testified during the defendant’s offer

of proof that the declarant was in the state on the day

of the murders and was absent from his home at the

approximate time of the crimes. No such testimony

existed in the present case, and the lack of proof that

Shyam was at a distant location is not necessarily corroborative of Shyam’s statement.

The defendant further argues that Shyam’s statement

is corroborated by his access to the Pathfinder after

the crime, evidence suggesting that it was he who had

the car cleaned,22 and searches he conducted online for

information about criminal penalties.23 Although this

evidence may ‘‘reinforce the idea of his active criminal

involvement,’’ as the defendant argues, these circumstances do not necessarily corroborate the key portion

of Shyam’s statement that he entered Vitalis’ home with

Calabrese but, rather, they suggest merely that he was

involved in the crime to some degree.

The defendant further suggests that ‘‘the court’s

admissibility ruling was based in part on an improper

consideration, i.e., the court’s own opinion as to the

credibility of Shyam’s statement against penal interest.’’
(Emphasis omitted.) He cites the court’s remarks that

the evidence pointed ‘‘more to Michael Calabrese and

this defendant than it does to Shyam Patel having been

the person to enter the Vitalis home. The circumstances

surrounding the event are far more consistent with this

defendant entering the Vitalis’ home than Shyam Patel

entering that home.’’ (Emphasis omitted.) We are not

persuaded that the challenged remarks demonstrate

that the court exceeded its gatekeeping function in

determining whether Shyam’s statements were sufficiently trustworthy to be admitted into evidence. The

court referenced defense counsel’s point ‘‘that it is

important to not confuse the issue of credibility with

admissibility,’’ and stated that it was ‘‘fully cognizant

of that’’ and ‘‘kept that in mind . . . in making [its]

ruling . . . .’’

On the basis of the foregoing, we conclude that the

court did not abuse its discretion by excluding from

evidence Majmudar’s testimony as to Shyam’s statement because it was not trustworthy and, therefore,

did not satisfy the requirements of § 8-6 (4).24

III

The defendant’s third claim on appeal is that ‘‘[t]he

court erred when it denied the defendant’s motion to

preclude ‘cellular telephone tower evidence’—more formally known as ‘historical cell[ular] site location information (CSLI)’—and refused to require the state to

demonstrate the reliability of such evidence at a hearing

held pursuant to State v. Porter, 241 Conn. 57, 698 A.2d

739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384,

140 L. Ed. 2d 645 (1998).’’ (Footnote omitted.) We

disagree.

The following additional facts and procedural history

are relevant to our resolution of this claim. Again, our

analysis of this issue requires discussion of filings and

testimony in Niraj’s trial. See footnote 9 of this opinion.

In Niraj’s trial, Niraj filed a motion to preclude the state

from introducing ‘‘cellular telephone tower evidence

or, in the alternative, that the state be required to demonstrate the evidence’s reliability at a hearing pursuant

to Porter.’’ The court held a hearing on the motion on

December 23, 2015. Noting the many ways in which

cell tower technology has been used, the court stated

that ‘‘it would seem to me that it would make sense to

hear from the witness whom the state would offer at

trial. I’m not turning this into deposition, I’m not turning

this into a Porter hearing, but . . . th[e] first question

is whether this is an innovative scientific technique.

That’s the first question. If what is being offered is

something that’s been used uncritically for ten years

that’s one thing, if no one has ever used this type of

evidence anywhere then we might need a Porter hearing.’’ Defense counsel then stated that the innovative

scientific technique he sought to challenge was the theory that the cell phone ‘‘must hit the closest tower.’’
The state then presented the testimony of Special

Agent James J. Wines of the Federal Bureau of Investigation (FBI) and a member of its Cellular Analysis Survey Team (CAST), whose responsibilities as a CAST

member included ‘‘analyz[ing] records obtained by law

enforcement agencies related to specific crimes and

then using those records [to] conduct an analysis using

cell tower information as to the approximate location

of a cell phone at a particular time.’’ Wines testified that

CAST members have testified in hundreds of federal

and state trials. As to Wines’ personal experience, he

stated that he has used historical call detail records

with cell site information since 2003, spent ‘‘thousands

of hours reviewing call detail records,’’ and has used

that information ‘‘to locate subjects in [his] investigations, to locate and apprehend fugitives, to assist in

the recovery of evidence, to locate victims of child

prostitution, a variety of different . . . scenarios.’’

Wines explained that his reports and presentations are

subject to internal peer review, usually by a more senior

member of CAST, who reviews his analysis for accuracy

and completeness. Wines testified that in his experience, ‘‘the individual or the phone has always been in

the area where the call detail records indicated the

phone would be.’’

Wines testified that cell phone providers use call

detail records for a number of purposes, including ‘‘for

billing records, so that they can accurately bill their

customers for the amount of network resources that

their customers use, and they also use it to assist in

optimizing the network to provide the best possible

coverage for their . . . customers.’’ Wines stated that

cell phone carriers ‘‘are constantly trying to ensure the

reliability and the quality of their networks so that they

don’t lose customers.’’ Wines testified that he had

received training from AT&T, Verizon, Sprint, and TMobile, the four major cell phone providers that provide

cell phone service in Connecticut, and that he maintains

regular contact with their ‘‘legal compliance people as

well as engineers’’ regarding ‘‘how their call detail records are populated and maintained as well as how their

networks are optimized.’’

In the present case, Wines analyzed the movement

of cell phones associated with Niraj, Calabrese, and the

defendant on August 6, 2012. He plotted the cell towers

each phone utilized, which showed ‘‘the movement of

two phones [associated with Niraj] coming up from

the area of Queens, New York, to the area of Sharon,

Connecticut, and . . . two other phones [associated

with Calabrese and the defendant] moving up from the

area of Branford, Connecticut, down on the shoreline,

again, up to the area of Sharon, Connecticut. And while

these phones are moving they’re often in contact with

one another as they proceed north.’’

With respect to the towers accessed by the cell phone
associated with the defendant on August 6, 2012, Wines

explained that prior to 6:04 p.m., the phone accessed

tower 1025, which is located on the top of Mohawk

Mountain, for a series of phone calls. Wines testified

that there were no outgoing calls or messages from the

cell phone associated with the defendant after 6:04 p.m.

on August 6, 2012, which, he observed, indicated ‘‘either

that the phone was off or that it was . . . in an area

where it could not receive any cell signal,’’ or that

‘‘something could have happened to the phone that

rendered it unable’’ to receive a cellular signal.

Wines explained that he had used an AT&T engineering phone25 and had ‘‘detected energy from tower

1025’’ in the front yard and inside Vitalis’ home on a

staircase. This meant that were the engineering phone

to make a call, ‘‘it would have utilized resources from

tower 1025.’’ Wines performed this test once. Wines

stated that tower 1025 was not the closest tower to the

Vitalis residence and explained why a cell phone might

use a tower other than the closest tower. Wines stated

that a cell phone is ‘‘constantly evaluating its network,

and it’s scanning the area and determining the strength

and clarity of the signals it’s receiving from the cell

towers in the area. And in doing that analysis it is looking for the strongest, cleanest signal, and that’s the

tower that it’s going to select when it requests resources

to make or receive a call or make or receive a text

message. The factors that can affect the strength and

clarity can be terrain features, can be obstructions, can

be the way that the antennas are oriented—the downtilt of particular antennas. In driving in this area in

preparing my analysis, what I did note that it is an

extremely hilly area, and there are significant terrain

features, peaks and valleys that could affect the strength

of signal coming from towers, which could cause a

phone to select a tower that would not necessarily be

the closest tower, but would be the strongest, clearest

signal.’’ Wines testified that tower 1025 is between seven

and eight miles from the crime scene and that the tower

likely had a maximum range of eight miles, which would

cover approximately 200 square miles.26

Wines further testified that ‘‘when a cell phone selects

a cell tower, it has to be within the RF [radio frequency]

footprint of that particular tower in order to request

resources from that tower to complete either a call or

an SMS [short message service] message’’ and, therefore, his analysis also can show where a cell phone

was not located. Wines acknowledged that cell towers

provide 360 degree coverage and that they are often

broken down into sectors. Wines stated that because

he ‘‘was simply trying to show movement over . . . a

large area,’’ he did not ‘‘break it down into sectors’’ and

that he conducted his analysis ‘‘simply using the

towers.’’

Wines testified that the tower a cell phone utilizes is
recorded automatically and electronically in the call

details records, and that he was not aware of any situation in which a cell tower site noted in a call detail

record was incorrect. Although he had never seen a

study from outside law enforcement in which the methodology was tested, he stated that ‘‘it’s tested in a practical, real world sense every day when myself and other

members of my unit find fugitives, recover evidence,

recover kidnap victims that it’s—it works.’’

Following Wines’ testimony, the court heard argument on Niraj’s motion in limine. The court then ruled

that the evidence offered did not involve an innovative

scientific technique and, therefore, a Porter hearing was

not appropriate. It further stated that ‘‘[e]ven if a hearing

were warranted and the findings I just made and all the

findings I make are based on the evidence presented

by this witness, the objection to the technique does not

succeed. The evidence offered is scientifically valid; it’s

rooted in the methods of procedures of science. It is

far more than a subjective belief or unsupported speculation; it is therefore sufficiently reliable to be admitted

into evidence.’’ The court based its findings ‘‘not only

on the testimony of the witness in general, but in particular the witness’ long experience in this type of analysis, the nature of the evidence that’s being offered, the

experience of other experts who carry out similar work,

the fact that this witness has had significant training

and experience in this area, and that his findings are

reviewed by other experts in the same field.’’ The court

noted Niraj’s objection to Wines’ methodology but

stated that it ‘‘did not hear an argument from the defendant as to an alternate methodology that should have

been used in this case, nor is there any evidence, offered

by the defendant, by any other expert in this field that

some other methodology should have been used.’’ Last,

the court found the evidence relevant ‘‘in that it purports

to show the movement of parties allegedly connected

with the homicide . . . on or about the date and time

of the homicide . . . .’’

In the present case, the defendant filed a motion in

limine and memorandum of law in support thereof that

virtually was identical to those filed by Niraj. The court

heard argument on the motion on November 8, 2016.

Defense counsel agreed with the court that his motion

paralleled that filed in Niraj’s case. Noting that it had

ruled on the motion in Niraj’s case from the bench on

December 23, 2015, and that its ruling was ‘‘based upon

the testimony provided . . . at a hearing, specifically,

testimony by agent Wines,’’ the court inquired of

defense counsel whether there were ‘‘any changes in

the law or factual developments that would cause me

to reconsider that ruling.’’ Defense counsel responded:

‘‘None that I’m aware of, Your Honor.’’ The court then

stated: ‘‘[F]or the reasons stated with regard to the

Calabrese statement motion, I will deny this motion as

well, pursuant to the law of the case.27 And that’s based
upon, in part, the representations made by the defense

this morning that there are no material factual changes

or changes in the law that would warrant a different

result. And so the motion in limine to preclude admission of cellular telephone tower evidence is denied.’’

(Footnote added.)

At trial, Wines testified as to the movement of cell

phones associated with Niraj, and one cell phone each

associated with Shyam, the defendant, and Calabrese

over the course of August 6, 2012, and the state introduced into evidence three PowerPoint presentations

depicting the movement of those phones to and from

the Sharon area, movement in the Sharon area on the

afternoon and evening of August 6, 2012, and the activity

of cell phones associated with the defendant’s family

members. Wines testified that from 3:57 p.m. through

6:04 p.m. on August 6, 2012, all activity on the cell phone

associated with the defendant utilized tower 1025,

which Wines’ engineering phone had detected as the

‘‘strongest, highest quality signal’’ at the crime scene

and which an AT&T drive test conducted two and onehalf weeks prior to the crime ‘‘along route 4 approximately two and a quarter to two and a half miles southeast of the crime scene also detect[ed] signal from tower

1025 as being the strongest, highest quality signal in

that area.’’

In his February 6, 2017 motion for a new trial, the

defendant claimed that the court, without requiring a

sufficient showing of reliability, improperly admitted

evidence ‘‘purporting to establish instances of mobile

telephone communications between the defendant and

other accused parties as well as their whereabouts and

movements . . . .’’ The state objected, arguing that the

court properly admitted the evidence ‘‘after having held

a Porter hearing in State v. [Patel, supra, 186 Conn.

App. 814], then again hearing argument in [this case],

which incorporated by agreement of the parties the

evidence and argument presented in State v. [Patel,

supra, 814].’’ The court denied the motion on April

28, 2017.

In a supplemental written ruling issued on June 20,

2017, the court addressed our Supreme Court’s decision, released following the jury’s verdict in the present

case, in State v. Edwards, 325 Conn. 97, 133, 156 A.3d

506 (2017), which held that the trial court improperly

admitted testimony and documentary evidence of historic cell site analysis, including cell tower coverage

maps, through a detective without qualifying him as an

expert and conducting a Porter hearing in order to

ensure that his testimony was based on reliable scientific methodology. The court in Edwards relied on the

approach by the United States District Court for the

District of Connecticut in United States v. Mack, Docket

No. 3:13-cr-00054 (MPS), 2014 WL 6474329 (D. Conn.

November 19, 2014), in which the court conducted a
hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993), and concluded that the FBI agent’s

methodology was sufficiently reliable to meet the

requirements of Daubert and, therefore, the agent could

testify regarding his conclusions.

The court in the present case stated that ‘‘the state

presented an expert witness with qualifications equal

to those of the witness who testified in Mack, as

opposed to the limited qualifications of the state’s witness in Edwards.’’ The court explained that Wines demonstrated in detail the methodology that he used in

completing his analysis. The court stated: ‘‘More significantly, even though this court found that a Porter hearing was not required relative to the cell tower data

analysis, it effectively carried out a Porter hearing out

of the presence of the jury in the proceeding against

Niraj and concluded that, even if a Porter hearing was

required, the evidence proffered by the state was scientifically valid in that it was rooted in the methods and

procedures of science. Thus, this court made the findings that were lacking in Edwards and that the District

Court did make in Mack.’’28

On appeal, the defendant argues that ‘‘[t]his court

should not countenance the trial court’s attempt, in its

June 20, 2017 ruling, to retroactively ‘reclassify’ the

offer of proof at Niraj’s trial as ‘effectively’ constituting

a Porter hearing.’’ The state responds that the court

‘‘conducted the functional equivalent of a Porter hearing

and, most importantly, made the findings required by

Porter.’’ We agree with the state that the court held the

functional equivalent of a Porter hearing.

‘‘In Porter, we followed the United States Supreme

Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., [supra, 509 U.S. 579], and held that testimony based on scientific evidence should be subjected

to a flexible test to determine the reliability of methods

used to reach a particular conclusion. . . . A Porter

analysis involves a two part inquiry that assesses the

reliability and relevance of the witness’ methods. . . .

First, the party offering the expert testimony must show

that the expert’s methods for reaching his conclusion

are reliable. A nonexhaustive list of factors for the court

to consider include: general acceptance in the relevant

scientific community; whether the methodology underlying the scientific evidence has been tested and subjected to peer review; the known or potential rate of

error; the prestige and background of the expert witness

supporting the evidence; the extent to which the technique at issue relies [on] subjective judgments made by

the expert rather than on objectively verifiable criteria;

whether the expert can present and explain the data

and methodology underlying the testimony in a manner

that assists the jury in drawing conclusions therefrom;

and whether the technique or methodology was devel-
oped solely for purposes of litigation. . . . 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.

‘‘[I]t is well established that [t]he trial court has broad

discretion in ruling on the admissibility [and relevancy]

of evidence. . . . [Accordingly] [t]he trial court’s ruling

on evidentiary matters will be overturned only upon a

showing of a clear abuse of the court’s discretion. . . .

Because a trial court’s ruling under Porter involves the

admissibility of evidence, we review that ruling on

appeal for an abuse of discretion.’’ (Citation omitted;

internal quotation marks omitted.) State v. Montanez,

185 Conn. App. 589, 619, 197 A.3d 959 (2018), cert.

denied, 332 Conn. 907, 209 A.3d 643 (2019).

We first consider whether the hearing conducted in

Niraj’s case was, in substance, a Porter hearing. Our

review of the transcript reveals that there was ample

testimony before the court bearing on the relevant Porter factors and that there was sufficient testimony to

enable the court to determine whether Wines’ methods

were reliable. Specifically, Wines testified, inter alia,

that, although he had not seen a study from outside law

enforcement that tested his methodology, ‘‘it’s tested

in a practical, real world sense’’ when CAST members

find fugitives and recover kidnap victims and evidence,

his work is subject to an internal peer review process

where another CAST member reviews his analysis for

accuracy and completeness, his personal experience

with the accuracy of the technology was such that ‘‘the

individual or the phone has always been in the area

where the call detail records indicated the phone would

be,’’ he has had personal experience using historical

call detail records with cell site information since 2003

and has received training from the major cell phone

providers; and the technology was developed for a number of purposes, including to assist cell phone carriers

in optimizing their networks to provide the best possible

coverage for their customers.

The defendant contends, however, that the court ‘‘did

not make adequate Porter findings . . . .’’29 Specifically, he argues that the court’s ruling failed to address

‘‘the known or potential rate of error’’ and the ‘‘peer

review’’ factor. (Internal quotation marks omitted.)

Although the court did not use the words ‘‘rate of error’’

or ‘‘peer review,’’ it expressly relied on ‘‘the experience

of other experts who carry out similar work’’ and noted

that Wines’ ‘‘findings are reviewed by other experts in

the same field,’’ both appropriate considerations under

the flexible Porter test. See United States v. Mack,
supra, 2014 WL 6474329, *4 (citing testimony that estimation procedures ‘‘are commonly relied upon by law

enforcement and the cell phone industry when more

precise methods of estimation are unavailable’’ and noting that CAST member had testified that, ‘‘in his experience, it is an unusual case in which the actual coverage

area of a cell tower differs greatly from the estimation

derived from this method’’). Last, we note that each of

these factors is ‘‘only one of several nonexclusive factors . . . . No single Porter factor is dispositive.’’

(Internal quotation marks omitted.) State v. Montanez,

supra, 185 Conn. App. 620–21.

Moreover, the court in Mack found that the CAST

member’s inability to provide a precise numerical error

rate in the context of estimating the coverage area of

cell towers did not negate his qualitative testimony, nor

did the lack of scientific peer review render his methods

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

6474329, *4; see also State v. Montanez, supra, 185

Conn. App. 621 (noting, in context of determining coverage areas of particular towers through drive test analysis, that certain federal courts have declined to find

drive test data unreliable on basis of lack of scientific

testing and publications).

Last, the defendant contends that ‘‘the most fundamental omission is the court’s failure to consider the

absence of ‘sector’ analysis and how that absence

affected Wines’ ability to provide objective rather than

subjective data.’’ Specifically, he emphasizes that ‘‘[t]he

absence of sector analysis means that Wines’ calculations and conclusions were less precise and less accurate than they would have been with a sector-based

analysis.’’ As the defendant recognizes, defense counsel

in Niraj’s trial conceded that Niraj, whose alibi was that

he was at his parents’ house in Warren, was within the

radius of coverage of tower 1025. The defendant in the

present case states that he ‘‘did not make any such

concession.’’ Indeed, the defendant’s alibi in the present

case was that he was at Majmudar’s house in Boston,

plainly outside of tower 1025’s uncontested coverage

area of 200 square miles.30 When the court in the present

case asked whether there were any factual developments that would cause it to reconsider the ruling rendered in Niraj’s case, defense counsel did not identify

his out-of-state alibi as a factual distinction requiring

reconsideration. Nor does he explain in his appellate

brief how the greater precision of a sector analysis

would be more reliable, where the state, in light of the

defendant’s alibi that he was in Boston, sought only to

identify the general area in which his phone was

present.

Accordingly, the defendant has not demonstrated

that the court abused its discretion in denying his

motion to preclude CSLI evidence.

IV
The defendant’s final claim on appeal is that there

was insufficient evidence to convict him of murder

predicated on Pinkerton liability. The defendant

acknowledges that he ‘‘actively participated in the

planned burglary and robbery’’ but argues that ‘‘there

is no evidence that he or any [coconspirator] ever contemplated the death of [Vitalis].’’ He further argues that

his ‘‘participation in the conspiracy and Calabrese’s

murder of [Vitalis] was so attenuated or remote . . .

that it would be unjust to hold the defendant responsible

for the criminal conduct of his coconspirator.’’ (Internal

quotation marks omitted.) We disagree.

We first set forth our standard of review. ‘‘The standard of review employed in a sufficiency of the evidence

claim is well settled. [W]e 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.

. . . This court cannot substitute its own judgment for

that of the jury if there is sufficient evidence to support

the jury’s verdict. . . . In conducting our review, we

are mindful that the finding of facts, the gauging of

witness credibility and the choosing among competing

inferences are functions within the exclusive province

of the jury, and, therefore, we must afford those determinations great deference.’’ (Internal quotation marks

omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892

A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39

(2006).

We next set forth the scope of Pinkerton liability.

‘‘Under the Pinkerton doctrine . . . a conspirator may

be held liable for criminal offenses committed by a

coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the

conspiracy. . . . The rationale for the principle is that,

when the conspirator [has] played a necessary part in

setting in motion a discrete course of criminal conduct,

he should be held responsible, within appropriate limits,

for the crimes committed as a natural and probable

result of that course of conduct. . . . [W]here . . . the

defendant was a full partner in the illicit venture and the

coconspirator conduct for which the state has sought

to hold him responsible was integral to the achievement

of the conspiracy’s objectives, the defendant cannot

reasonably complain that it is unfair to hold him vicariously liable, under the Pinkerton doctrine, for such

criminal conduct. . . .

‘‘In analyzing vicarious liability under the Pinkerton

doctrine, we have stated that the Pinkerton doctrine

constitutionally may be, and, as a matter of state policy,

should be, applied in cases in which the defendant did
not have the level of intent required by the substantive

offense with which he was charged. The rationale for

the doctrine is to deter collective criminal agreement

and to protect the public from its inherent dangers by

holding conspirators responsible for the natural and

probable—not just the intended—results of their conspiracy. . . . This court previously has recognized that

[c]ombination in crime makes more likely the commission of crimes unrelated to the original purpose for

which the group was formed. In sum, the danger which a

conspiracy generates is not confined to the substantive

offense which is the immediate aim of the enterprise.

. . . In other words, one natural and probable result

of a criminal conspiracy is the commission of originally

unintended crimes. . . . Indeed, we specifically have

contrasted Pinkerton liability, which is predicated on

an agreement to participate in the conspiracy, and

requires the substantive offense to be a reasonably foreseeable product of that conspiracy . . . with accessorial liability, which requires the defendant to have the

specific mental state required for the commission of

the substantive crime. . . .

‘‘Thus, the focus in determining whether a defendant

is liable under the Pinkerton doctrine is whether the

coconspirator’s commission of the subsequent crime

was reasonably foreseeable, and not whether the defendant could or did intend for that particular crime to

be committed. In other words, the only mental states

that are relevant with respect to Pinkerton liability are

that of the defendant in relation to the conspiracy itself,

and that of the coconspirator in relation to the offense

charged. If the state can prove that the coconspirator’s

conduct and mental state satisfied each of the elements

of the subsequent crime at the time that the crime was

committed, then the defendant may be held liable for

the commission of that crime under the Pinkerton doctrine if it was reasonably foreseeable that the coconspirator would commit that crime within the scope of and

in furtherance of the conspiracy.’’ (Citations omitted;

emphasis in original; internal quotation marks omitted.)

State v. Coward, 292 Conn. 296, 307–309, 972 A.2d

691 (2009).

Accordingly, ‘‘[u]nder the Pinkerton doctrine . . . a

defendant may not be convicted of murder unless one

of his criminal associates, acting foreseeably and in

furtherance of the conspiracy, caused the victim’s death

with the intent to do so. . . . [U]nder Pinkerton, a

coconspirator’s intent to kill may be imputed to a defendant who does not share that intent, provided, of course,

that the nexus between the defendant’s role and his

coconspirator’s conduct was not so attenuated or

remote . . . that it would be unjust to hold the defendant responsible . . . .’’ (Citation omitted; emphasis

in original; internal quotation marks omitted.) State v.

Coltherst, 263 Conn. 478, 494, 820 A.2d 1024 (2003).
Our Supreme Court has acknowledged, however, that

‘‘there may be occasions when it would be unreasonable

to hold a defendant criminally liable for offenses committed by his coconspirators even though the state has

demonstrated technical compliance with the Pinkerton

rule. . . . For example, a factual scenario may be envisioned in which the nexus between the defendant’s role

in the conspiracy and the illegal conduct of a coconspirator is so attenuated or remote, notwithstanding the

fact that the latter’s actions were a natural consequence

of the unlawful agreement, that it would be unjust to

hold the defendant responsible for the criminal conduct

of his coconspirator. In such a case, a Pinkerton charge

would not be appropriate.’’ (Internal quotation marks

omitted.) Id., 493.

The defendant cursorily maintains that Vitalis’ murder was not reasonably foreseeable. We disagree. Giving

deference, as we must, to the reasonable inferences of

the jury, it reasonably was foreseeable that Vitalis, who

was home with his mother at the time of the crime,

might resist or fight back to thwart the robbery of his

proceeds from a large drug sale, and that the defendant’s coconspirator, Calabrese, who was armed with

a loaded gun, might, in furtherance of the conspiracy,

cause Vitalis’ death with the intent to do so. See State

v. Coward, supra, 292 Conn. 312 (quoting State v. Rossi,

132 Conn. 39, 44, 42 A.2d 354 [1945], for proposition

that ‘‘crimes against the person like robbery . . . are,

in common experience, likely to involve danger to life

in the event of resistance by the victim or the attempt

of the perpetrator to make good his escape and conceal

his identity’’); State v. Taylor, 177 Conn. App. 18, 33,

171 A.3d 1061 (2017) (Sufficient evidence to support the

defendant’s conviction of murder under the Pinkerton

doctrine existed where the ‘‘court reasonably found, on

the basis of the evidence presented and the reasonable

inferences drawn therefrom, that the defendant and [his

alleged coconspirator] robbed the victim, who fought

back, and that they did so in furtherance of an agreement to commit a robbery while at least one of them

was armed with a deadly weapon. Because the murder

of the victim was committed in furtherance of that

conspiracy, and was a reasonably foreseeable consequence thereof, such proof of conspiracy also supported the defendant’s conviction for murder under the

Pinkerton doctrine.’’), cert. denied, 327 Conn. 998, 176

A.3d 555 (2018); see also State v. Gonzalez, 311 Conn.

408, 427, 87 A.3d 1101 (2014) (noting that had the state

sought to prove the defendant’s liability for manslaughter in the first degree with a firearm under Pinkerton,

evidence that the defendant possessed a loaded gun

when he was together with an individual selling drugs

‘‘could well have been probative circumstantial evidence of the existence of a conspiracy between them

to sell drugs at [the housing complex], of which the

death of an interfering party could be a foreseeable,
natural, and probable consequence’’).

Moreover, we disagree that the defendant’s role was

too attenuated, such that it would be unfair to apply

Pinkerton. Viewing the evidence in the light most favorable to sustaining the verdict, the defendant communicated with Niraj via text message regarding the crime

days prior to it. The defendant, presumably aware, as

was Calabrese, that Vitalis was a drug dealer who

recently received a large amount of cash from a drug

sale, planned to enter Vitalis’ home to rob him of that

money. Moreover, before the defendant and Calabrese

entered the home, they saw Vitalis’ mother arrive home.

Once inside, the defendant restrained her using zip ties.

Cf. State v. Coward, supra, 292 Conn. 311 (considering,

among other evidence, that the ‘‘plan called for [the

defendant’s coconspirator] and the defendant to invade

an occupied home and to ‘use force’ to commit the

robbery’’). Under these circumstances, we conclude

that the extent of the defendant’s participation was not

so attenuated and remote that it would be unjust to

hold him responsible for the criminal conduct of his

coconspirator, Calabrese.31

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also was convicted of felony murder and conspiracy to

commit robbery in the first degree. The trial court vacated his conviction

of those charges to avoid double jeopardy concerns. See footnote 31 of

this opinion.

2 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).

3 See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed.

1489 (1946).

4 The burnt clothing and sneakers later were discovered, and subsequent

forensic testing revealed that footwear imprints from the crime scene probably were made by the right sneaker.

5

‘‘The plain error doctrine is based on Practice Book § 60-5, which provides in relevant part: The court shall not be bound to consider a claim

unless it was distinctly raised at the trial or arose subsequent to the trial.

The court may in the interests of justice notice plain error not brought to

the attention of the trial court. . . . The plain error doctrine is reserved

for truly extraordinary situations [in which] the existence of the error is so

obvious that it affects the fairness and integrity of and public confidence

in the judicial proceedings. . . . A party cannot prevail under [the] plain

error [doctrine] unless [he] has demonstrated that the failure to grant relief

will result in manifest injustice.’’ (Internal quotation marks omitted.) Cator

v. Commissioner of Correction, 181 Conn. App. 167, 177 n.3, 185 A.3d 601,

cert. denied, 329 Conn. 902, 184 A.3d 1214 (2018).

6 The state also responds that the defendant’s challenge is ‘‘unreviewable

because he never asserted in the trial court that Calabrese needed to be

sworn in before responding to the trial court’s questions.’’ We disagree that

the claim is unreviewable. See State v. Nieves, 89 Conn. App. 410, 414–15,

873 A.2d 1066 (reviewing, pursuant to Golding, unpreserved claim that court

failed to hold hearing and require witness personally to invoke privilege

against self-incrimination), cert. denied, 275 Conn. 906, 882 A.2d 679 (2005).

7 The defendant makes only passing reference in his appellate briefs to

his right to confrontation as the constitutional right violated.

8 Niraj also was arrested on September 11, 2013. State v. Patel, 186 Conn.

App. 814, 820, 201 A.3d 459, cert. denied, 331 Conn. 906, 203 A.3d 569 (2019).

The trial court, Danaher, J., presided over Niraj’s jury trial, which was held

in January and February, 2016. Niraj was convicted on multiple charges and

appealed from the judgment of conviction to this court, which affirmed his

conviction. Id., 857.

Judge Danaher also presided over the defendant’s trial. At the request of
defense counsel, Judge Danaher took judicial notice of the totality of the

filings and the transcripts of Niraj’s case. During the defendant’s trial, the

court also referred to certain rulings issued in Niraj’s trial.

Accordingly, this opinion references certain decisions, motions, and testimony from Niraj’s trial where necessary to our consideration of the issues

presented in this appeal.

9 The trial court referred to two rulings in Niraj’s trial as the ‘‘law of the

case’’ when ruling on similar motions in the defendant’s trial. See part III

of this opinion. Aside from the defendant’s accurate notation in a footnote

in his principal brief that the law of the case doctrine is not applicable,

neither party on appeal raises a claim of error in the court’s presumably

inartful reference to its rulings in Niraj’s trial as the law of the case in the

defendant’s trial.

10 Early did not know whether Calabrese was moved into his cell for the

sole purpose of being recorded. Early testified: ‘‘I don’t know if he was

comin’ in just for that reason. I know he got moved out [of] the dorm

because of some, some foolishness he did in the dorm. So, when he came

to my cellblock, the officer told me, I want you to try to see if you can get

him . . . because I done it before.’’

11 Defense counsel indicated his objection to the recording’s introduction

into evidence. The court noted that it had written an opinion on this issue

in the trial of Niraj and indicated that it had not written the same opinion

for this trial, but that it already had ruled on the issue. Defense counsel

agreed that the motion was the same in both trials and indicated his understanding that the ‘‘ruling . . . stands,’’ but advised that he planned to formally object in front of the jury to make a record.

12 In his brief, the defendant relies on several factors, which he contends

support a conclusion that Calabrese’s statements were testimonial. First,

he argues that there was no ongoing emergency and that the primary purpose

of the interrogation, conducted thirteen months after the crime, was ‘‘to

establish or prove past events potentially relevant to later criminal prosecution.’’ Davis v. Washington, supra, 547 U.S. 822. Second, as to the ‘‘objective

analysis of the circumstances of [the] encounter’’; Michigan v. Bryant, 562

U.S. 344, 360, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); he contends that

Calabrese intentionally was moved to a specific cell in order to enable Early

to gather evidence for the state to use against Calabrese in a criminal

prosecution. Third, emphasizing that Early ‘‘was not a neutral listening

device,’’ the defendant states that Early interrogated Calabrese by asking

‘‘at least 200 questions.’’ Fourth, the defendant places weight on the fact

that Early had been asked by correctional staff and the state police to serve

as a confidential informant, which, he contends, rendered Early an agent

of law enforcement. Last, the defendant argues that ‘‘any reasonable person

objectively would have known that such statements could be used against

him. Indeed, Early confirmed that all prisoners are aware of the possibility of

someone ‘snitching them out’ and becom[ing] a state’s witness against them.’’

13 Accordingly, this court, in State v. Patel, supra, 186 Conn. App. 831,

recited the circumstances leading to Early’s recording as follows: ‘‘After

Calabrese was arrested, he and his cellmate were talking about the charges

that were pending against them. Thereafter, the cellmate approached a

security officer and offered to record Calabrese. The cellmate was set up

with a recording device, and he recorded his conversation with Calabrese,

who was unaware that he was being recorded.’’

14 We also do not find persuasive the defendant’s citation to a single

unreported case from Texas in which the court found testimonial a declarant’s statements made to his aunt while she was wearing a wire. Cazares

v. State, Docket No. 15-00266-CR, 2017 WL 3498483, *11 (Tex. App. August

16, 2017), review refused, Texas Court of Criminal Appeals, Docket No. PD0204-18 (May 23, 2018), U.S. , 139 S. Ct. 422, 202 L. Ed. 2d 324 (2018).

15 The court found that the passage of thirteen months between the crime

and Calabrese’s statements weighs against the trustworthiness of the

statements.

16 The defendant argues that ‘‘Early would not have appeared to . . . be

a fellow gang member,’’ and points to Early’s encouraging Calabrese to

become a member of the ‘‘blood’’ gang. (Internal quotation marks omitted.)

After Early told Calabrese he could ‘‘make shit happen’’ for him, Calabrese

responded: ‘‘[I]t’s basically the same shit anyway. Fuckin all my boys are

fuckin bloods every time there’s fucking something goin on I get fucking

sucked into fuckin going.’’ Even if Early would not have appeared to be ‘‘a

fellow gang member,’’ the evidence suggested that he was a member of a

gang, with which all of Calabrese’s friends were affiliated. Thus, the court

did not err in considering this relationship in support of a finding of reliability.

17 As to the third factor, the extent to which the statement was against
the declarant’s penal interest, the defendant does not challenge the court’s

finding that Calabrese explicitly stated that he killed Vitalis and ‘‘ma[de]

clear that any other person involved is less culpable than he is.’’

18 Majmudar testified to the remainder of the conversation as follows: ‘‘So,

I asked him why they robbed [Vitalis]. He said that they needed money to

pay for Niraj’s attorney fees. He said that [Calabrese] was supposed to rob

Luke alone, that Niraj dropped [Calabrese] off near Luke’s house first. When

Luke’s mom got home, [Calabrese] got cold feet and refused to rob [Vitalis]

until Shyam showed up last minute.

‘‘I asked him what happened during the robbery. He said the robbery

went bad; [Vitalis] got shot. Shyam said he panicked, ran out of the house

back to the car. [Calabrese] was still in the house looking for that money.

Shyam didn’t want to wait around and get caught, so he drove home as fast

as he could to change his clothes.

‘‘I asked him what happened to [Calabrese]. He said that he and Niraj

drove around with the Pathfinder and eventually picked up [Calabrese] from

the woods, and they burned everything they wore in different locations.

‘‘I asked him if [Calabrese] used [the defendant’s] phone during the robbery. He said yes. He said that he and [Calabrese] didn’t use their own

phones, cars or gun during the robbery. He said that Niraj was stupid to

use his own phone to contact [Vitalis] that day. I asked him where they left

their phones. He said [Calabrese’s] phone was with Niraj. Shyam said he

left his phone at home.

‘‘I asked him why my parents’ two black [sport utility vehicles] were

seized. He said they used the black Saab [sport utility vehicle] from New

York during the robbery.

‘‘I asked him what happened to the gun. He said that he and Niraj gave

the gun to [their cousin] to get rid of.

‘‘I asked him if [the defendant] ever came to Warren earlier that day. He

said he never came that day, he came two weeks later.

‘‘I asked him why he was charged with so little, with hindering prosecution

and tampering with evidence, why his bond was only fifty thousand when

everyone else’s was at least one million or more. He said that he threatened

[Calabrese], threatened to go after his sister if [Calabrese] ever gave him up.

‘‘I was infuriated. I told Shyam that he needed to come forward and

confess. He said that he couldn’t do that to his parents, that Niraj may go

down for this and his parents couldn’t lose him as well.

‘‘I told him that he needed to leave, and I never saw Shyam again.’’

19 The court also indicated that it did not ‘‘believe there’s been a sufficient

showing that Shyam Patel is unavailable’’ but stated that ‘‘the decision I am

rendering does not at all turn on that fact.’’ Because we conclude that the

court did not abuse its discretion in determining that Shyam’s statement

was not trustworthy, we need not address the court’s finding that the defendant had not established that Shyam was unavailable.

20 Likewise, the court did not err in determining that the thirteen month

time period between the crime and Shyam’s statement weighed against a

finding of trustworthiness, notwithstanding that his statement was made

within a few weeks of his arrest. See State v. Lopez, 254 Conn. 309, 317,

757 A.2d 542 (2000).

21 The court also noted Majmudar’s relationship to the defendant in its

consideration of the person to whom Shyam’s statement was made. ‘‘[A]

trial court may not consider the credibility of the testifying witness in

determining the trustworthiness of a declaration against penal interest.’’

State v. Rivera, 268 Conn. 351, 372, 844 A.2d 191 (2004). Our Supreme Court

has considered the witness’ relationship to the defendant, however, as a

factor ‘‘ ‘coloring’ ’’ the trustworthiness of the proffered statements. State

v. Payne, 219 Conn. 93, 115, 591 A.2d 1246 (1991) (agreeing with trial court’s

conclusion that long-standing relationship between defendant and witness

would not lead to conclusion of trustworthiness).

22 There was evidence at trial that Shyam sent the following text messages

to Niraj at 8:13 p.m. on August 6, 2012: ‘‘U want me to come to the station

in pathfinder?’’; ‘‘?’’; ‘‘Lemme know . . . I got keys.’’ A white Pathfinder,

registered at the home Shyam shared with his parents and, occasionally,

Niraj, was seized by police. The vehicle smelled clean and seemingly had

new floor mats. A receipt dated August 31, 2012, at 10:40 a.m. from Personal

Touch Car Wash in New Milford was found in a bedroom at Shyam’s home,

and Shyam’s cell phone utilized two cell towers in the vicinity of the car

wash around the date and time printed on the receipt.

23 There was evidence at trial that there were Google searches conducted

on Shyam’s computer for the terms ‘‘conspiracy to commit murder in Con-
necticut’’ and ‘‘conspiracy to kill,’’ along with searches for penalties for

those crimes.

24 The defendant also claims that the court’s exclusion of Shyam’s statement violated his constitutional rights to present a defense and to due

process of law. We disagree. ‘‘The defendant’s rights to present a defense

and to due process do not give him the prerogative to present any testimony

or evidence he chooses. In the exercise of his constitutional rights, the

accused, as required of the [s]tate, must comply with the established rules

of procedure and evidence designed to assure both fairness and reliability

in the ascertainment of guilt and innocence.’’ (Internal quotation marks

omitted.) State v. Rosado, 218 Conn. 239, 249–50, 588 A.2d 1066 (1991).

25 Wines testified that an engineering phone is ‘‘a phone that’s set up to

show you the—the signals that it’s receiving from the tower. It shows you

what’s happening on your cell phone in the background that you don’t see.

It presents it on the screen, so that you can kind of spot check and confirm

what a particular phone from a particular carrier—what it sees as the

strongest, cleanest signal at a particular time.’’

26 In situations in which a cell phone connects to a tower that is not the

closest tower to the cell phone, Wines stated, he would try to conduct a

drive test ‘‘if the network was still in the same condition that it was in at

the time the crime occurred.’’ In the present case, Wines stated that there

had been changes to the AT&T network, so a drive test was not possible.

A drive test had been conducted three weeks prior to the homicide, however,

and a signal from tower 1025 was present along Route 4, approximately

two miles southeast of the crime scene.

27 See footnote 9 of this opinion.

28 The defendant does not dispute that he agreed at trial that the court

could rely on the evidence presented at the hearing on the motion in limine

in Niraj’s trial.

29 In a one sentence footnote in his appellate brief, the defendant argues

that ‘‘[t]he state did not meet its burden of showing that Wines was qualified

as an expert . . . and the court never expressly decided that ‘preliminary

question.’ ’’ (Citation omitted.) This argument is inadequately briefed and,

accordingly, we decline to review it. See State v. Prosper, 160 Conn. App.

61, 74–75, 125 A.3d 219 (2015).

30 Majmudar testified that she and the defendant celebrate Raksha Bandhan, an annual religious festival celebrating the bonds between brothers

and sisters, and that the 2012 festival was scheduled for August 2. Majmudar

testified that because she was out of town on August 2, she and the defendant

arranged to meet at her home on August 6. According to Majmudar, after

notifying the defendant that she would arrive home late, Majmudar arrived

at about 7 p.m. The defendant was parked with his car door open and was

looking for something, which she thought was his cell phone. She stated

that they then went inside her home and performed the ceremony, which

took no longer than five minutes, and that the defendant left within two

hours to return home to Branford to let the dog out. Majmudar testified

that she learned about the homicide two days after the defendant was

arrested on September 11, 2013. According to Majmudar’s testimony, she

realized that the defendant came to see her on the day of the homicide and

then she told her mother that he could not have been involved.

31 We further note that the jury also found the defendant guilty of felony

murder. See footnote 1 of this opinion. Upon motion of the defendant, the

court vacated the conviction of felony murder to avoid double jeopardy

concerns. Consequently, even if there was insufficient evidence to sustain

the defendant’s conviction of murder predicated on Pinkerton liability, the

felony murder conviction could be reinstated on remand. See State v.

Miranda, 317 Conn. 741, 753–54, 120 A.3d 490 (2015) (‘‘[W]e see no substantive obstacle to resurrecting a cumulative conviction that was once vacated

on double jeopardy grounds—provided that the reasons for overturning the

controlling conviction would not also undermine the vacated conviction.

. . . [A] jury necessarily found that all the elements of the cumulative offense

were proven beyond a reasonable doubt. Put differently, although the cumulative conviction goes away with vacatur, the jury’s verdict does not.’’).