State v. Polanco , 165 Conn. App. 563 ( 2016 )

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STATE OF CONNECTICUT v. SHILOH POLANCO
(AC 36502)
DiPentima, C. J., and Prescott and Bishop, Js.
Argued November 30, 2015—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Danbury, Roraback, J.)
Peter G. Billings, with whom, on the brief, was Sean
P. Barrett, for the appellant (defendant).
Emily L. Graner Sexton, special deputy assistant
state’s attorney, with whom, on the brief, were Stephen
J. Sedensky III, state’s attorney, and Warren C. Murray,
supervisory assistant state’s attorney, for the appellee
(state).
Opinion
DiPENTIMA, C. J. The defendant, Shiloh Polanco,
appeals from the judgment of the trial court revoking
his probation and imposing a thirty month prison sen-
tence. On appeal, the defendant claims that he was
denied his right to due process under the fourteenth
amendment to the United States constitution1 by the
court’s admission into evidence of a laboratory report
when the author of that report was not present and
available for cross-examination. We conclude that this
claim was not preserved and that the record is inade-
quate to review it under State v. Golding, 213 Conn.
233, 239–40, 813 A.2d 567 (1989). Accordingly, we affirm
the judgment of the trial court.
The following facts are necessary for our resolution
of this appeal. On August 16, 2006, the defendant
pleaded guilty to violating General Statutes § 21a-277
(a), and was sentenced to ten years incarceration, exe-
cution suspended after three years, and five years of
probation. One of the terms of his probation was that
he not violate the criminal laws of the United States
or any state. The defendant admitted to violating his
probation on August 3, 2012, and, as a result, his term
of probation was continued and he paid a $5000 fine.
The defendant was arrested in New York state on
November 6, 2012, and charged with criminal posses-
sion of marijuana in the second degree and various
motor vehicle violations. On February 6, 2013, an arrest
warrant was issued in Connecticut for a violation of
probation.2 The defendant denied this charge and a
hearing was held over a six month period.
During the hearing, the court heard the following
testimony. On November 6, 2012, Steven Stromberg,3
a police officer employed by the Westchester County
Department of Public Safety in the state of New York,
effectuated a traffic stop after noticing a large crack in
the windshield of a vehicle driven by the defendant.
Stromberg questioned the defendant and eventually
requested that he exit the vehicle. The defendant com-
plied, and the two discussed some irregularities with
the defendant’s paperwork. Stromberg asked if he could
perform a patdown search, and the defendant objected.
At that point, the defendant placed his hand in his
pocket. Stromberg, fearing for his safety, drew his ser-
vice weapon, ordered the defendant to the ground, and
placed him in handcuffs.
Stromberg subsequently determined that the vehi-
cle’s registration had been suspended for unpaid park-
ing tickets. He elected to impound the vehicle for the
suspended registration and for having improper license
plates. Stromberg performed an inventory search of the
vehicle and found seven heat sealed bags of what he
suspected was marijuana in the trunk.
The heat sealed bags were transported to a laboratory
for testing. Stromberg received a report, which the state
sought to have admitted as an exhibit at the hearing.4
The defendant, noting that this report was actually an
affidavit from an employee of the laboratory named
Stephanie Brumley,5 objected on the basis of the United
States Supreme Court’s decision in Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.
2d 314 (2009),6 and General Statutes § 53a-32. Specifi-
cally, the defendant argued that for the report to be
admitted into evidence, its author, Brumley, had to be
present in court and subject to cross-examination. He
later clarified that his argument was not based on the
rule against hearsay,7 but the sixth amendment right to
confrontation8 and his statutory right to cross-examine
witnesses as provided in § 53a-32 (c).9
The court overruled the defendant’s objection. Spe-
cifically, it stated: ‘‘I’m going to overrule the objection
because I need to reconcile the broadly acknowledged
ability for reliable hearsay evidence to be considered
in the context of a violation of probation hearing and
I need to weigh that against the explicit language of
the statute, which says that a defendant in such a hear-
ing shall have the right to cross-examine witnesses. To
the extent that that language was read literally such
that it would operate to prohibit any hearsay evidence,
that would seem to be completely at odds with the
body of case law, which has over a long period of
time established the proposition that reliable hearsay
evidence is admissible. I think the—the way—the most
reasonable way to read the words of those statutes is to
give [the defendant] the opportunity to cross-examine
those witnesses who are here present testifying on
behalf of the state, and you’re taking advantage of that
as we speak . . . .’’
The defendant iterated that his objection was not
based on a claim of hearsay but on the sixth amend-
ment’s confrontation clause. The court explained that
it had overruled the objection because the admission
of the laboratory report, which was reliable hearsay
evidence in the court’s opinion, did not violate the
defendant’s right under the confrontation clause in the
context of a violation of probation hearing.
After hearing evidence and argument, the court found
that the state had proven, by a preponderance of the
evidence, that the defendant violated his probation ‘‘in
that he was in possession of a substantial amount of
marijuana, in violation of the laws of the state of New
York, where the conduct took place and that conduct
was a violation of New York law.’’ It also determined
that continued probation would not be a useful exer-
cise. The court revoked the defendant’s probation and
sentenced him to thirty months incarceration.10 This
appeal followed.
As we previously explained, the defendant argued to
the trial court that both his sixth amendment right to
confront Brumley and his statutory right to cross-exam-
ine her were violated. On appeal, however, the defen-
dant has reformulated his claim, arguing solely that
his fourteenth amendment right to due process was
violated by the admission into evidence of the labora-
tory report when Brumley was not in court and subject
to cross-examination.11 Specifically, he argues that the
court should have balanced his interest in confronting
Brumley against the reasons, if any, asserted by the
state for not presenting her as a witness. We conclude
that the record is inadequate to review the defendant’s
sole and unpreserved appellate claim.
Before addressing the specifics of this appeal, we set
forth certain principles related to probation revocation
proceedings. Our Supreme Court has explained that
probation is a penal alternative to incarceration, and
its purpose is to provide a period of grace in order
to aid in the rehabilitation of the individual. State v.
Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004). It also
noted that persons on probation do not enjoy absolute
liberty but rather ‘‘conditional liberty properly depen-
dent on observance of special [probation] restrictions.
. . . These restrictions are meant to assure that the
probation serves a period of genuine rehabilitation and
that the community is not harmed by the probationer’s
being at large.’’ (Internal quotation marks omitted.) Id.
This conditional liberty, however, is a privilege that
once granted, constitutes a constitutionally protected
interest. State v. Barnes, 116 Conn. App. 76, 79, 974
A.2d 815, cert. denied, 293 Conn. 925, 980 A.2d 913
(2009). The due process clause of the fourteenth amend-
ment mandates certain minimum procedural safeguards
before that conditional liberty interest may be
revoked.12 Id.
In State v. Shakir, 130 Conn. App. 458, 467, 22 A.3d
1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011),
we noted that the due process safeguards are codified
in Federal Rule of Criminal Procedure 32.1 and include
‘‘an opportunity to . . . question any adverse witness
unless the court determines that the interest of justice
does not require the witness to appear . . . .’’ We fur-
ther explained that the court must balance the defen-
dant’s interest in cross-examination against the state’s
good cause for denying the right to cross-examine. Id.
Specifically, we cited to case law from the United States
Court of Appeals for the Second Circuit and stated: ‘‘In
considering whether the court had good cause for not
allowing confrontation or that the interest of justice
[did] not require the witness to appeal . . . the court
should balance, on the one hand, the defendant’s inter-
est in confronting the declarant, against, on the other
hand, the government’s reasons for not producing the
witness and the reliability of the proffered hearsay.’’
(Citation omitted; internal quotation marks omitted.)
Id., 468, citing United States v. Williams, 443 F.3d 35,
45 (2d Cir. 2006); see also State v. Giovanni P., 155
Conn. App. 322, 335, 110 A.3d 442, cert. denied, 316
Conn. 909, 111 A.3d 883 (2015). Mindful of these princi-
ples, we turn to the specifics of the defendant’s appeal.
The defendant never argued to the trial court that it
was required to conduct the balancing test to determine
whether his right to due process had been violated. The
claim now before us, therefore, was not preserved for
appellate review.13 See, e.g., State v. Johnson, 143 Conn.
App. 617, 624, 70 A.3d 168, cert. denied, 310 Conn. 950,
82 A.3d 625 (2013).
The defendant also claims, however, that this claim
is reviewable pursuant to State v. Golding, supra, 233
Conn. 239–40. As we recently have noted, ‘‘[u]nder Gold-
ing review, as modified in In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015), 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 harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; internal
quotation marks omitted.) State v. D’Amato, 163 Conn.
App. 536, 543 n.9, A.3d (2016); see also State
v. Yeaw, 162 Conn. App. 382, 389, A.3d (2016);
State v. Terry, 161 Conn. App. 797, 812, 128 A.3d 958
(2015).
‘‘[U]nless the defendant has satisfied the first Golding
prong, that is, unless the defendant has demonstrated
that the record is adequate for appellate review, the
appellate tribunal will not consider the merits of the
defendant’s claim.’’ (Internal quotation marks omitted.)
State v. Dyous, 153 Conn. App. 266, 277, 100 A.3d 1004
(2014), appeal dismissed, 320 Conn. 176, 128 A.3d 505
(2016) (certification improvidently granted); see also
State v. Santana, 313 Conn. 461, 469–70, 97 A.3d 963
(2014) (appellate tribunal free to respond to defendant’s
claim by focusing on whichever prong is most relevant).
We conclude that the defendant in this case failed to
satisfy the first Golding prong, and, as a result, we do
not review the merits of his due process claim.
Our analysis is guided by State v. Brunetti, 279 Conn.
39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127
S. Ct. 1328, 167 L. Ed. 2d 85 (2007), where our Supreme
Court extensively discussed the first prong of Golding.
At the outset, it noted that ‘‘Golding is a narrow excep-
tion to the general rule that an appellate court will not
entertain a claim that has not been raised in the trial
court. The reason for the rule is obvious: to permit a
party to raise a claim on appeal that has not been raised
at trial—after it is too late for the trial court or the
opposing party to address the claim—would encourage
trial by ambuscade, which is unfair to both the trial
court and the opposing party. . . . Nevertheless,
because constitutional claims implicate fundamental
rights, it also would be unfair automatically and categor-
ically to bar a defendant from raising a meritorious
constitutional claim that warrants a new trial solely
because the defendant failed to identify the violation
at trial. Golding strikes an appropriate balance between
these competing interests: the defendant may raise such
a constitutional claim on appeal, and the appellate tribu-
nal will review it, but only if the trial court record
is adequate for appellate review. The reason for this
requirement demands no great elaboration: in the
absence of a sufficient record, there is no way to know
whether a violation of constitutional magnitude in fact
has occurred. Thus, as we stated in Golding, we will
not address an unpreserved constitutional claim [i]f the
facts revealed by the record are insufficient, unclear or
ambiguous as to whether a constitutional violation has
occurred.’’ (Citation omitted; footnotes omitted; inter-
nal quotation marks omitted.) Id., 55–56.
The legal issue in Brunetti was whether the consent
of the defendant’s father to allow a police search of a
house that the defendant lived in with his parents was
valid when the defendant’s mother had declined to sign
a consent to search form for the residence. Id., 56.
Our Supreme Court rejected the contention that the
mother’s refusal to sign the form amounted to withhold-
ing of consent to the search. ‘‘Because the refusal to
sign a consent to search form is one of several factors
to be considered in determining the validity of consent,
such refusal does not vitiate consent otherwise found
to be valid in light of all of the circumstances. . . .
Whether a [person] voluntarily has consented to a
search is a question of fact to be determined by the
trial court from the totality of the circumstances based
on the evidence that it deems credible along with the
reasonable inferences that can be drawn therefrom.
. . . Thus, no one factor is controlling on the issue of
voluntariness . . . including the fact that the person
whose consent to search was sought refused to sign a
consent form.’’ (Citations omitted; internal quotation
marks omitted.) Id., 56–57. The court then concluded
that the record was inadequate to determine a valid
consent because it did not reveal ‘‘whether the defen-
dant’s mother (1) declined to sign the form but orally
consented to the search, (2) acquiesced in her hus-
band’s consent to the search, (3) affirmatively refused
to consent to the search, or (4) took some other position
regarding the search. All we know is that she did not
sign the consent to search form.’’ Id., 58. It further
observed that as a result of the proceedings, the state
had not been placed on notice that it was required to
show that the mother had consented to the search. Id.,
59. ‘‘In such circumstances, the state bears no responsi-
bility for the evidentiary lacunae, and, therefore, it
would be manifestly unfair to the state for this court
to reach the merits of the defendant’s claim upon a
mere assumption that the defendant’s mother had
declined to consent to the search.’’ (Emphasis in origi-
nal.) Id. Moreover, ‘‘[b]ecause the state had no reason
to adduce any evidence regarding the mother’s role in
the consent to search, there was no meaningful factual
inquiry into that issue, and, consequently, we have no
idea what such an inquiry would have revealed and no
idea what the trial court would have found about the
mother’s consent or lack thereof.’’ Id., 61.
In the present case, the state had no notice of the
defendant’s due process claim, and, accordingly, did
not present evidence regarding its reasons for not pro-
ducing Brumley at the hearing. In this circumstance, the
state was not responsible for this evidentiary lacunae. It
would be patently unfair to address the defendant’s due
process claim on the basis of this record.
We are further guided by our decision in State v.
Shakir, supra, 130 Conn. App. 458. In that case, the
defendant argued that his fourteenth amendment right
to due process was violated at his probation revocation
hearing when a video was admitted into evidence with-
out his being able to confront and cross-examine an
adverse witness. Id., 465. After setting forth the relevant
law on probation revocation hearings, his due process
rights, and the balancing test, we concluded that the
record was inadequate to review his unpreserved claim.
Id., 466–68. Specifically, we stated: ‘‘In the present case,
the factual underpinnings for the minor complainant’s
not being produced to testify that might amount to good
cause were not developed via evidence on the record
demonstrating whether producing her would cause
great difficulty, expense or risk of harm. Consequently,
we conclude that the record is inadequate for our review
under Golding.’’ Id., 468.
Guided by this precedent, we conclude that the defen-
dant in the present case failed to sustain his burden of
providing this court with an adequate record to review
his claim of a due process violation. Specifically, the
record is silent as to the state’s reasons for not produc-
ing Brumley as a witness at the probation revocation
hearing and as to whether those reasons amount to
good cause. Accordingly, we decline to review the
defendant’s unpreserved claim on the basis of an inade-
quate record.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The fourteenth amendment to the United States constitution provides
in relevant part: ‘‘All persons born or naturalized in the United States, and
subject to the jurisdiction therefore, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty or property,
without due process of law; nor deny to any person within its jurisdiction
the equal protection of the law . . . .’’ (Emphasis added.)
2
General Statutes § 53a-32 (a) provides in relevant part: ‘‘At any time
during the period of probation or conditional discharge, the court or any
judge thereof may issue a warrant for the arrest of a defendant for violation
of any of the conditions of probation or conditional discharge, or may issue
a notice to appear to answer to a charge of such violation, which notice
shall be personally served upon the defendant. . . .’’
3
The court found Stromberg credible. During his testimony, Stromberg,
a law enforcement officer for over eleven years, opined that, on the basis
of his training and experience, the substance in the trunk of the defendant’s
vehicle appeared to be marijuana. He also noted that a canine trained in
narcotic detection made a positive indication of the presence of contraband.
Further, Stromberg stated that the defendant appeared to become more
nervous during the course of their interaction.
4
The report indicated that there was a total of approximately two pounds
of marijuana in the seven bags.
5
In this report, Brumley swore that she was a forensic scientist employed
by the Westchester County Department of Laboratories and Research, Divi-
sion of Forensic Sciences, and that she performed an analysis on the items
received from the Westchester County Police Department. She indicated
that the presence of marijuana was confirmed by microscopic examination,
color test, and thin layer chromatography. She noted that ‘‘[t]his report does
not constitute the entire case file. Copies of notes, worksheets and other
supporting materials related to this case are available upon request.’’
6
In Melendez-Diaz v. Massachusetts, supra, 557 U.S. 309–311, the United
States Supreme Court held that a certificate of analysis, sworn before a
notary public, that showed the results of a forensic analysis of a substance
determined to be cocaine was a testimonial statement and the defendant
had a sixth amendment right to confront the analyst unless there was a
showing that the analyst was unavailable to testify and the defendant had
a prior opportunity to cross-examine him. See also Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The holding of Melendez-
Diaz was extended in Bullcoming v. New Mexico, U.S. , 131 S. Ct.
2705, 2717, 180 L. Ed. 2d 610 (2011), which held that the absence of an
oath was not determinative of whether an analyst’s report constituted a
testimonial statement for purposes of the sixth amendment and Crawford.
7
See State v. Osbourne, 162 Conn. App. 364, 379, 131 A.3d 277 (2016);
Conn. Code Evid. § 8-2.
8
The sixth amendment to the United States constitution provides: ‘‘In all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascer-
tained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel
for his defense.’’
9
General Statutes § 53a-32 (c) provides in relevant part: ‘‘[T]he court shall
cause the defendant to be brought before it without unnecessary delay for
a hearing on the violation charges. At such hearing the defendant shall be
informed of the manner in which such defendant is alleged to have violated
the conditions of such defendant’s probation or conditional discharge, shall
be advised by the court that such defendant has the right to retain counsel
and, if indigent, shall be entitled to the services of a public defender, and
shall have the right to cross-examine witnesses and to present evidence in
such defendant’s own behalf. . . .’’ (Emphasis added.)
10
‘‘[U]nder § 53a-32, a probation revocation hearing has two distinct com-
ponents. . . . The trial court must first conduct an adversarial evidentiary
hearing to determine whether the defendant has in fact violated a condition
of probation. . . . If the trial court determines that the evidence has estab-
lished a violation of a condition of probation, then it proceeds to the second
component of probation revocation, the determination of whether the defen-
dant’s probationary status should be revoked. On the basis of its consider-
ation of the whole record, the trial court may continue or revoke the sentence
of probation . . . [and] . . . require the defendant to serve the sentence
imposed or impose any lesser sentence. . . . In making this second determi-
nation, the trial court is vested with broad discretion.’’ (Internal quotation
marks omitted.) State v. Sherrod, 157 Conn. App. 376, 381–82, 115 A.3d 1167,
1171, cert. denied, 318 Conn. 904, 122 A.3d 633 (2015); see also State v.
Santos T., 146 Conn. App. 532, 534–35, 77 A.3d 931, cert. denied, 310 Conn.
965, 83 A.3d 345 (2013).
11
The defendant has not pursued his statutory claim as such on appeal.
12
In State v. Baxter, 19 Conn. App. 304, 311–12, 563 A.2d 721 (1989), we
recited the minimum due process requirements for revocation of probation
as identified by the United States Supreme Court: ‘‘Morrissey v. Brewer,
[408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)], held that the minimum
due process requirements for revocation of parole include written notice
of the claimed parole violation, disclosure to the parolee of the evidence
against him, the opportunity to be heard in person and to present witnesses
and documentary evidence, the right to confront and cross-examine adverse
witnesses in most instances, a neutral hearing body, and a written statement
as to the evidence for and reasons for parole revocation. The court also
held that there should be a preliminary hearing by a detached body to
determine if probable cause exists to detain the parolee pending a final
decision on revocation. Gagnon v. Scarpelli, [411 U.S. 778, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1972)], extended the holding in Morrissey to probationers
because there is no difference relevant to the guarantee of due process
between the revocation of parole and the revocation of probation . . . .’’
(Internal quotation marks omitted). See also State v. Shakir, 130 Conn. App.
458, 467, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).
13
During the proceedings at trial, the defendant objected to the admission
of the report on the ground that his sixth amendment right to confrontation
was violated. In support of his argument that the confrontation clause was
applicable in a violation of probation hearing, the defendant referenced
§ 53a-32 (c), which grants a defendant the right to cross-examine witnesses
at a violation of probation hearing. At the time that the court issued its oral
ruling on the admissibility of the report, the defendant further clarified that
his ‘‘objection was based on the confrontation clause.’’ Thus, to the extent
that the defendant mentioned § 53a-32 (c) in his objection, it was not refer-
enced as an independent basis for excluding the report, nor was it associated
with the defendant’s fourteenth amendment due process right to cross-
examine witnesses.
On appeal, the defendant now argues that because § 53a-32 (c) codifies
his fourteenth amendment due process right to cross-examine witnesses
and because he mentioned the statute in his objection, he properly raised
a due process claim before the trial court, and, thus, the claim is preserved.
We note that the defendant has not offered any authority for his contention
that § 53a-32 (c) codifies his fourteenth amendment due process right to
cross-examine witnesses at a violation of probation hearing. We further
note that there may be a case in which a due process claim is raised properly
by the defendant’s objection to the admission of hearsay evidence at a
violation of probation hearing on the ground that § 53a-32 (c) guarantees
him the right to cross-examine adverse witnesses. See State v. Kevalis, 313
Conn. 590, 602, 99 A.3d 196 (2014) (suggestion that § 53a-32 [c] codifies due
process clause). The present case, however, given the context in which the
statute was mentioned, is not such a case. We decline to hold that a party
properly raised a due process claim by merely mentioning § 53a-32 (c).