State v. Jackson, AC 40433

• Decision Date: 24 July 2018
• Docket Number: AC 40433
• Citation: 193 A.3d 585,183 Conn.App. 623
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Raashon JACKSON

183 Conn.App. 623

193 A.3d 585

STATE of Connecticut

v.Raashon JACKSON

AC 40433

Appellate Court of Connecticut.

Argued January 29, 2018

Officially released July 24, 2018

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

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

Lavine, Alvord and Beach, Js.

ALVORD, J.

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

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

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

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

Seven shell casings were recovered from the scene, and forensic analysis revealed that four were fired from one gun and three were fired from a different gun. One of the victims, LaChristopher Pettway, died from a gunshot wound

to his mid-left back. Four others sustained gunshot wounds, including Tamar Hamilton, who was shot in the heel; Leroy Shaw, who was shot in the arm; Jauwan Edwards, who was shot in the buttocks; and Aijholon Tisdale, who was shot in the upper thigh. On September 16, 2013, Rogers was arrested. That day, Rogers sent a text message to the defendant indicating that "[d]ey taken [me]."

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

I

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

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

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

The court held a hearing on the defendant's motion in limine on October 20, 2015. The court referred to the defendant's argument regarding the state's late disclosure of Weaver and then stated: "Also, from a more substantive point of view, I understand the motion in limine to say this ... that Sergeant Weaver purportedly used ... two devices or sets of data or software programs—I'm not sure how to characterize them—that the defense feels are problematic. One is cell tower related information that is accessible to law enforcement, and that's referenced in the moving...