State v. Council

• Decision Date: 26 July 2022
• Docket Number: SC 20513
• Parties: STATE of Connecticut v. Joshua COUNCIL
• Court: Connecticut Supreme Court

344 Conn. 113

277 A.3d 1251

STATE of Connecticut

v.Joshua COUNCIL

SC 20513

Supreme Court of Connecticut.

Argued March 22, 2022

Officially released July 26, 2022

Richard S. Cramer, Hartford, for the appellant (defendant).

Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, chief state's attorney, and Stacey Miranda, supervisory assistant state's attorney, for the appellee (state).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

McDONALD, J.

In this appeal, we are asked to determine whether the trial court properly precluded the proffered testimony of the defendant's expert on cell phone location data. The defendant, Joshua Council, appeals from the judgment of conviction, rendered after a jury trial, of murder and criminal possession of a firearm by a convicted felon. At trial, defense counsel proffered testimony from an expert witness as to the defendant's location during certain relevant times on the basis of cell phone carrier data. The trial court precluded the witness from testifying on the grounds that (1) the evidence was immaterial and irrelevant, (2) the witness did not articulate sufficient qualifications to provide expert opinion on the data, and (3) the testimony did not establish the reliability of the data. On appeal, the defendant contends that the trial court improperly excluded the testimony because the witness was qualified as an expert pursuant to § 7-2 of the Connecticut Code of Evidence.¹ We dismiss the defendant's appeal as moot because he has not challenged all of the trial court's bases for its evidentiary ruling, and, therefore, this court cannot provide him practical relief.

The jury reasonably could have found the following facts. In January, 2018, the defendant encountered the victim, Kenneth Cooper, in the parking lot of a gas station in New Haven. After a brief interaction, the victim attempted to reenter his vehicle when the defendant fired eight shots from a .45 caliber firearm at him. The victim later died from multiple gunshot wounds to the torso and extremities. The defendant was subsequently arrested and charged with murder and criminal possession of a firearm by a convicted felon.

At trial, the state presented an expert witness, James J. Wines, to testify as to the defendant's location and movements at times relevant to the shooting. Wines is a special agent with the Federal Bureau of Investigation and an expert in historical cell site analysis. Using cell phone tower data, Wines plotted the defendant's cell phone use and determined that the defendant's phone used cell towers near the gas station around the time of the shooting.

The defendant's theory of the case was predicated on his testimony that he was not present at the gas station at the time of the shooting. To corroborate the defendant's theory, and to counter the testimony from the state's witnesses, defense counsel proffered his own evidence concerning data from cell site locations. Specifically, defense counsel presented two witnesses: Linda Thomas, a trial analyst and custodian of records for AT&T, and James Oulundsen, an investigator for a private investigation company.

During the proffer, which was held outside the presence of the jury, Thomas testified that the defendant's cell phone records contained AT&T network location system or network location service (NELOS) data. Thomas testified that NELOS data comprise "historical precision location information" collected by AT&T engineers to "help maintain the network ...." The examination of Thomas revealed that NELOS data are "best estimate[s] of where the device was based on the unverifiable sources" that the data were retrieved from. Thomas cited possible use of the data in customer billing or customer complaints of dropped calls. Thomas was unable to articulate the sources of the NELOS points or to verify the accuracy of the points. The NELOS data records from AT&T that were the subject of Thomas’ testimony contained a printed disclaimer warning that the user should "exercise caution in using [the] records for investigative purposes as location data [are] sourced from various databases [that] may cause location results to be less than exact."

Thereafter, Oulundsen testified, during the proffer, that he was a digital forensic investigator for a private investigation company and had received training in cell phone analytics. He offered testimony and an accompanying report that detailed his mapping of the NELOS points and their respective latitude and longitude over Google Maps to estimate the defendant's location at times relevant to the shooting.² Oulundsen was unable to verify the accuracy of the NELOS data or the methodology used to arrive at those NELOS points. Throughout Oulundsen's testimony, the prosecutor objected on the grounds of lack of foundation, lack of expert qualifications concerning the NELOS data and the accompanying exhibits,³ and lack of reliability of the methodology.

Following arguments from the prosecutor and defense counsel regarding the admissibility of the testimony and accompanying exhibits, the court sustained the prosecutor's objections. As a result, the testimony and exhibits were excluded and were not presented to the jury. Initially, the court based its ruling on the relevance and materiality of the evidence under § 4-1 of the Connecticut Code of Evidence, concluding: "The court is not persuaded that using the methods ... [and] the information [the witness] testified to has been adequately explained to be material and relevant for the purpose for which it's being offered." The court reasoned that the evidence was speculative and that it would not "have a logical tendency to aid the jury in determining where the cell phone was located." The next day, before returning to the presentation of evidence, the court amplified its ruling, adding that, in addition to the relevance and materiality concerns, "none of the factors in [ State v. Edwards , 325 Conn. 97, 156 A.3d 506 (2017) ], or [ State v. Steele , 176 Conn. App. 1, 169 A.3d 797, cert. denied, 327 Conn. 962, 172 A.3d 1261 (2017) ],⁴ [was] presented or articulated with a sufficient evidentiary basis on the record given the testimony from ... Thomas and ... Oulundsen, separately and in combination ...." (Footnote added.) The court also "was not persuaded ... that ... Oulundsen possessed any articulated background or specific training ... using the so-called NELOS data that qualified him to render opinions on that topic."

At the conclusion of trial, the jury found the defendant guilty on both counts, and the trial court sentenced the defendant to a total effective sentence of seventy years of incarceration. This appeal followed.

On appeal, the defendant contends that the trial court violated his sixth amendment right to present a defense⁵ by precluding Oulundsen's testimony and related exhibits regarding the NELOS data.⁶ Although the defendant acknowledges that his right to present a defense is limited by the rules of evidence; see, e.g., State v. Cerreta , 260 Conn. 251, 260–61, 796 A.2d 1176 (2002) ; he argues that the admissibility of Oulundsen's testimony is governed by § 7-2 of the Connecticut Code of Evidence, which permits testimony by qualified experts when the testimony will assist the fact finder in understanding the evidence or in determining a disputed fact. The defendant asserts that Oulundsen's testimony was admissible pursuant to § 7-2 because Oulundsen was a qualified expert with specialized knowledge and training in cell phone analysis and his testimony, if allowed, would have assisted the trier of fact in understanding the evidence. The defendant further asserts that the nature of the NELOS data, including flaws in accuracy or specificity, goes to weight and not to admissibility.

The state argues that the defendant's claim on appeal is not reviewable because the defendant failed to challenge all of the independent bases for the trial court's evidentiary ruling. Specifically, the state contends that the defendant failed to challenge the trial court's conclusions that the evidence was immaterial, irrelevant and not reliable. The state also argues that the defendant's unpreserved claim is not reviewable under State v. Golding , 213 Conn. 233, 39–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015), "because a trial court's ruling on the proper evidentiary foundation for admitting evidence is not an issue of constitutional dimension." Alternatively, the state maintains that, even if the defendant's claim is reviewable, the trial court acted well within its discretion in excluding the proffered expert testimony from Oulundsen because, during the proffer, defense counsel failed to establish Oulundsen's expertise, the reliability of the testimony or data points, and the relevance of the evidence under § 4-1 of the Connecticut Code of Evidence. We agree with the state that the defendant failed to challenge all of the independent bases of the trial court's evidentiary ruling, and, therefore, the defendant's claim on appeal is moot.

The issue of mootness presents a threshold question of justiciability that we must determine prior to a review on the merits because it implicates this court's subject matter jurisdiction. See,...