State v. Jackson ( 2020 )

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STATE OF CONNECTICUT v. SEAN JACKSON
(AC 41916)
Alvord, Bright and Beach, Js.
Syllabus
The defendant, who had been found to be in violation of probation, appealed
to this court from the judgment of the trial court revoking his probation
and sentencing him to six years of incarceration. While the defendant
had been serving his probationary term, he was arrested and charged
with possession of a controlled substance and possession of a controlled
substance with intent to sell. The defendant was thereafter charged with
violation of probation on the basis of this arrest, as well as two incidents
in which he failed to report to the Office of Adult Probation. Held:
1. The defendant could not prevail on his claim that there was insufficient
evidence to support a finding that he violated his probation because there
was insufficient evidence to prove that he had constructive possession
of the narcotics that formed the basis for his arrest, and the two instances
in which he failed to report to the Office of Adult Probation were de
minimis: the state presented sufficient evidence to buttress an inference
that the defendant constructively possessed narcotics, specifically, evi-
dence was presented that the police, while conducting surveillance of
an apartment building on the basis of a confidential informant’s tip that
an individual named J was selling narcotics there, observed S, who had
a history of drug related offenses, drive up to the building, and the
defendant, the passenger in S’s vehicle, went into the building and
returned within five minutes, and the police, after conducting a motor
vehicle stop, subsequently found a razor blade and narcotics in the front
seat of S’s vehicle, leading the court reasonably to have inferred that
the defendant returned to the vehicle and placed the narcotics on the
front seat with the intention that he and S would use or distribute them
and, furthermore, sufficient evidence supported the finding of a violation
of probation on the basis of two instances in which the defendant failed
to report to the Office of Adult Probation.
2. The defendant’s unpreserved claim that hearsay testimony was admitted
at his probation revocation hearing in violation of his due process rights
was not reviewable pursuant to State v. Golding (213 Conn. 233), and
the claimed error was not so obvious and egregious that it required
reversal under the plain error doctrine; the defendant did not request
that the court conduct a balancing test pursuant to State v. Shakir (130
Conn. App. 458), when H, a police officer, testified that K, a detective,
had received information from a confidential source, the state had no
notice of the defendant’s due process claim and, accordingly, did not
present evidence regarding its reasons for not producing K at the hearing,
and, therefore, the defendant failed to sustain his burden of providing
an adequate record to review his claim; moreover, the court did not
abuse its discretion in admitting K’s hearsay statements, as the court
was not presented with any evidence that cast doubt on the reliability
of K’s statements to H, and defense counsel had the opportunity to
question H on cross-examination regarding why K had deemed the infor-
mation from the confidential informant reliable but did not do so; thus,
the court was presented with testimony that contained minimal indicia
of reliability.
3. The trial court did not abuse its discretion in imposing a sentence of six
years of incarceration; the court concluded that the defendant’s behavior
was inimical to his own rehabilitation and the safety of the public and
concluded that it did not believe that any further purpose could be
served by continuing the defendant’s probation, specifically expressing
concern that, although the defendant’s girlfriend testified that he was
providing support for their four month old daughter and assistance to
her as she recovered from a car accident, he was engaging in criminal
activity while a suspended sentence of eight and one-half years
remained outstanding.
Argued January 8—officially released June 30, 2020
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Hartford, where the case was transferred to
the judicial district of New Britain; thereafter, the case
was tried to the court, Graham, J.; judgment revoking
the defendant’s probation, from which the defendant
appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
with whom was Edward Duarte, former certified legal
intern, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Christian M. Watson, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Sean Jackson, appeals
from the judgment of the trial court revoking his proba-
tion and imposing a sentence of six years of incarcera-
tion. On appeal, the defendant claims that (1) the evi-
dence was insufficient to support a finding that he
violated his probation, (2) the court erred in admitting
hearsay testimony at the probation revocation hearing,
and (3) the court abused its discretion when it imposed
a sentence of six years of incarceration. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our consideration of the defendant’s claims on
appeal. On June 21, 2006, the defendant pleaded guilty
to one count of robbery in the first degree and one count
of conspiracy to commit robbery in the first degree,
and was sentenced to twenty years of incarceration,
execution suspended after ten years, followed by five
years of probation.1 On January 23, 2013, the defendant
was released from incarceration and began serving
his probation.
On September 23, 2013, the defendant was arrested
for assault in the third degree and disorderly conduct.
On November 12, 2013, the court found the defendant
in violation of probation on the basis of that arrest. The
court revoked the defendant’s probation and imposed
a new sentence of ten years of incarceration, execution
suspended after eighteen months, followed by fifty-four
months of probation.2 On January 16, 2015, the defen-
dant was released from incarceration and began serving
the new term of probation. The conditions of probation
that applied to the defendant when he was released on
January 16, 2015, included a requirement that he not
violate any criminal law of the United States, the state
of Connecticut or any other state or territory, and a
requirement that he report to the Office of Adult Proba-
tion as directed by the probation officer. On April 26,
2017, the defendant was arrested and charged with pos-
session of a controlled substance in violation of General
Statutes § 21a-279 (a) (1) and possession of a controlled
substance with intent to sell in violation of General
Statutes (Rev. to 2017) § 21a-278 (b). On June 15, 2017,
the defendant was charged with violation of probation
on the basis of this arrest as well as two incidents in
which he failed to report to the Office of Adult Pro-
bation.
The trial court held a hearing on the violation of
probation charge on February 5, 2018. At the hearing,
Joseph Mena, the defendant’s probation officer, testi-
fied that the defendant had failed to report to the Office
of Adult Probation on October 15, 2015, and July 7,
2016. These instances were recorded as ‘‘no call, no-
show,’’ meaning that the defendant neither notified his
probation officer that he was not going to report nor
followed up after the missed appointment. Mena further
testified that the Office of Adult Probation did not initi-
ate violation of probation proceedings solely on the
basis of these failures to report.3
Joseph Halt, who was employed as a police officer
with the city of New Britain in 2017, testified regarding
the circumstances of the defendant’s arrest on April 26,
2017. Halt testified that, on that date, he and Larry
Smith, a detective, conducted surveillance of an apart-
ment building located at 59 Daly Avenue in New Britain.
The surveillance was undertaken because of informa-
tion received from a confidential informant that an indi-
vidual nicknamed J, later identified as Jeremy Law-
rence, was selling crack cocaine from his apartment on
the first floor of 59 Daly Avenue.4 While conducting the
surveillance, Halt observed a 2013 black Toyota Camry
pull up to the building. A passenger got out of the vehicle
and went into the building. The passenger exited the
building within five minutes and returned to the vehicle.
Halt testified that, on the basis of his training and experi-
ence, such behavior was indicative of possible street
sales or narcotic sales.
Halt testified that after the passenger returned to the
vehicle, the car began to drive away, and he and Smith
followed it. After observing two motor vehicle viola-
tions, they stopped the vehicle. Once the vehicle had
pulled over, Smith approached the driver’s side and Halt
approached the passenger side. As Halt approached the
vehicle, he observed the driver, later identified as Sean
Jackson, Sr., the defendant’s father (Jackson), shifting
in his seat. When Halt and Smith asked the occupants
of the vehicle where they were coming from, the passen-
ger, later identified as the defendant, explained that
they had come from Hartford to visit J. Upon inquiry,
the defendant did not explain why his visit with J was
so brief. Jackson indicated that he had just dropped off
his son and they were on their way back. Smith asked
the defendant to exit the vehicle so that he and Jackson
could be interviewed separately. After the defendant
exited the vehicle, Halt observed Jackson reaching
between the seat and the center console. Halt also
observed that Jackson had a pocketknife on his right
hip, which Jackson handed to Halt upon request.
After Jackson handed the pocketknife to Halt, Halt
observed Jackson reaching for the center console again.
Halt asked Jackson to exit the vehicle and, once he had
done so, Halt searched that area of the vehicle and
found an ‘‘untied bag with [an] off-white, rock-like sub-
stance.’’ A field test of the substance revealed the pres-
ence of cocaine, later determined to weigh 1.9 grams.
The area where the substance was found in the vehicle
was ‘‘within an arm’s reach’’ of the defendant. The
police also found a razor blade in a small compartment
of the vehicle between the driver’s seat and the door.
Again, on the basis of his training and experience, Halt
testified that 1.9 grams of crack cocaine would be split
up by using a razor blade or some sort of sharp object.
Neither the defendant nor Jackson claimed owner-
ship of the cocaine. They both were arrested for posses-
sion of narcotics and possession of narcotics with intent
to sell. Halt testified that the defendant and Jackson
were arrested because they both had constructive pos-
session of the cocaine, which was ‘‘well within both of
their reach.’’ The defendant had $672 in various denomi-
nations in his possession at the time of his arrest. The
money was divided and the defendant had $75 in one
pocket and $595 in another pocket.5 The money was not
in a wallet. Halt testified that this would be indicative
of a very quick sale and departure from the location.
Jackson, who had numerous prior convictions for drug
related offenses, was in possession of $4895 at the time
of his arrest.
Ann Louise Lennon, a secretary with Connecticut
Media House, a marketing company, next testified
regarding the defendant’s employment. According to
Lennon, the defendant was employed by Connecticut
Media House in April, 2017, and worked approximately
twenty hours per week depending on the needs of the
business. Lennon testified that the defendant earned
minimum wage plus a commission.
At the conclusion of the hearing, the court found that
the defendant had violated his probation as to both
grounds. As to the first ground, the court found that
the defendant had violated his probation by failing to
report to the Office of Adult Probation on October 15,
2015, and July 7, 2016, without good cause. As to the
second ground, the court found that the defendant
knowingly possessed crack cocaine and possessed it
with intent to sell.6 The court thereafter revoked the
defendant’s probation and sentenced him to six years
of incarceration. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the court erred in
finding that he violated his probation, as the evidence
was insufficient to prove constructive possession of the
narcotics that formed the basis for his April 26, 2017
arrest. He also argues that the two incidents in which
he failed to report to the Office of Adult Probation were
‘‘nonviolations in the eyes of his probation officer.’’ We
will address these claims in turn.
We begin our analysis by setting forth the applicable
standard of review. ‘‘[T]he purpose of a probation revo-
cation hearing is to determine whether a defendant’s
conduct constituted an act sufficient to support a revo-
cation of probation . . . rather than whether the defen-
dant had, beyond a reasonable doubt, violated a crimi-
nal law. The proof of the conduct at the hearing need
not be sufficient to sustain a violation of criminal law.
. . . Thus, a probation violation need only be proven
by a preponderance of the evidence. . . .
‘‘A violation of probation hearing is comprised of an
evidentiary phase and dispositional phase. . . . In the
evidentiary phase, [a] factual determination by a trial
court as to whether a probationer has violated a condi-
tion of probation must first be made. . . . In the dispo-
sitional phase, [i]f a violation is found, a court must
next determine whether probation should be revoked
because the beneficial aspects of probation are no
longer being served.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) State v.
Dunbar, 188 Conn. App. 635, 640–41, 205 A.3d 747, cert.
denied, 331 Conn. 926, 207 A.3d 27 (2019).
With respect to the evidentiary phase of a revocation
proceeding, ‘‘[t]o support a finding of probation viola-
tion, the evidence must induce a reasonable belief that
it is more probable than not that the defendant has
violated a condition of his or her probation. . . . In
making its factual determination, the trial court is enti-
tled to draw reasonable and logical inferences from the
evidence. . . . This court may reverse the trial court’s
initial factual determination that a condition of proba-
tion has been violated only if we determine that such
a finding was clearly erroneous. . . . A finding of fact
is clearly erroneous when there is no evidence to sup-
port it . . . or when although there is evidence to sup-
port it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed. . . . In making this determina-
tion, every reasonable presumption must be given in
favor of the trial court’s ruling. . . . A fact is more
probable than not when it is supported by a fair prepon-
derance of the evidence.’’ (Internal quotation marks
omitted.) State v. Walcott, 184 Conn. App. 863, 871, 196
A.3d 379 (2018).
We first consider whether the evidence was sufficient
to support the finding of a violation of probation on
the basis of the defendant’s arrest for drug related
offenses on April 26, 2017. ‘‘[T]o prove illegal possession
of a narcotic substance, it is necessary to establish that
the defendant knew the character of the substance,
knew of its presence and exercised dominion and con-
trol over it. . . . Where . . . the contraband is not
found on the defendant’s person, the state must proceed
on the alternat[ive] theory of constructive possession,
that is, possession without direct physical contact. . . .
Where the defendant is not in exclusive possession of
the [place] where the narcotics are found, it may not
be inferred that [the defendant] knew of the presence
of the narcotics and had control over them, unless there
are other incriminating statements or circumstances
tending to buttress such an inference. . . . [T]he state
had to prove that the defendant, and not some other
person, possessed a substance that was of narcotic
character with knowledge both of its narcotic character
and the fact that he possessed it.’’ (Internal quotation
marks omitted.) State v. Crewe, 193 Conn. App. 564,
570–71, 219 A.3d 886, cert. denied, 334 Conn. 901, 219
A.3d 800 (2019). ‘‘To mitigate the possibility that inno-
cent persons might be prosecuted for . . . possessory
offenses . . . it is essential that the state’s evidence
include more than just a temporal and spatial nexus
between the defendant and the contraband.’’ (Internal
quotation marks omitted.) State v. Davis, 84 Conn. App.
505, 510, 854 A.2d 67, cert. denied, 271 Conn. 922, 859
A.2d 581 (2004). ‘‘While mere presence is not enough
to support an inference of dominion or control, where
there are other pieces of evidence tying the defendant
to dominion and control, the [finder of fact is] entitled
to consider the fact of [the defendant’s] presence and
to draw inferences from that presence and the other
circumstances linking [the defendant] to the crime.’’
(Internal quotation marks omitted.) State v. Williams,
110 Conn. App. 778, 785–86, 956 A.2d 1176, cert. denied,
289 Conn. 957, 961 A.2d 424 (2008).
The defendant relies primarily on State v. Fermaint,
91 Conn. App. 650, 881 A.2d 539, cert. denied, 276 Conn.
922, 888 A.2d 90 (2005), an appeal from the judgment
of violation of probation, in support of his claim that
the evidence was insufficient to prove that he had con-
structive possession of the narcotics found in the vehi-
cle. He argues that the evidence in that case, which
was held not to be sufficient, had greater weight than
that offered in the present case.7 Specifically, the defen-
dant argues that, in Fermaint, the confidential infor-
mant provided the identity of the suspected drug dealer
and the vehicle in which she and others were driving; in
the present case, by contrast, the confidential informant
indicated only that someone named J was selling drugs
in the apartment building but did not identify the defen-
dant or his father. The defendant points out that in
Fermaint, the police observed the defendant making
furtive movements as they approached the vehicle,
while in the present case, although Jackson made fur-
tive movements, the police did not observe the defen-
dant making any such movements. The defendant also
contends that there was a physical barrier that partially
blocked his access to the location of the drugs and that
the paraphernalia and a majority of the currency were
inaccessible to him. He notes that he did not make any
incriminating statements to the officers and he did not
own the vehicle in which the cocaine was found. He
points out that no DNA or fingerprint analysis is avail-
able in this case. Finally, the defendant argues that the
court’s finding that he had a weekly income of $220 was
clearly erroneous in that it conflicted with testimony
regarding additional hours that he might have worked
as well as commissions that he received.
In State v. Crewe, supra, 193 Conn. App. 574, an
appeal from the judgment of conviction of possession
of a narcotic substance, the defendant also relied pri-
marily on State v. Fermaint, supra, 91 Conn. App. 650,
to support his contention that the evidence presented
at trial was insufficient to establish that he was in con-
structive possession of narcotics at the time of his
arrest. In considering the defendant’s argument, we
noted that ‘‘[r]eview of a claim of insufficient evidence
is necessarily fact specific and . . . the evaluation of
the strength of inferences involves an exercise of judg-
ment.’’ State v. Crewe, supra, 575. We noted that,
although some factors, viewed in a vacuum, may mili-
tate against a finding of constructive possession, the
fact finder reasonably could have inferred, on the basis
of the totality of the circumstances, that the defendant
knew of the presence of the narcotics and that he exer-
cised dominion and controI over them. Id., 574. We also
emphasize that, unlike appeals from criminal judgments
of convictions for which the state is required to prove
possession beyond a reasonable doubt, in a revocation
of probation case, the state is required to prove a viola-
tion only by a preponderance of the evidence. State v.
Walcott, supra, 184 Conn. App. 876.
With these principles in mind, we conclude that the
state presented the court with sufficient evidence of
incriminating circumstances to buttress an inference
that the defendant constructively possessed the narcot-
ics that formed the basis for his arrest on April 26,
2017. See State v. Crewe, supra, 193 Conn. App. 575.
Specifically, the evidence established that the police
received information that an individual named J was
selling crack cocaine from his apartment building. The
police conducted surveillance and observed Jackson,
who had a history of drug related offenses, drive up to
the building. The defendant, who was the passenger in
Jackson’s vehicle, went into the building and returned
within five minutes. The defendant’s behavior was con-
sistent with ‘‘possible street sales or narcotic sales.’’
The defendant indicated that they had come from Hart-
ford to visit J. Upon inquiry, however, he did not explain
why the visit was so short.
After Jackson handed his pocketknife to the police,
he reached over to the center console, where the police
found the open bag of narcotics. The defendant was
‘‘within arm’s reach’’ of the narcotics. At the time of
his arrest, the defendant had $672 in his possession.
The money was not in a wallet; rather, it was divided
into two pockets, which behavior is ‘‘indicative of a
very quick sale and then leaving the location.’’8 The
police also found a razor blade in the vehicle. Halt
testified that the amount of cocaine that was found in
the vehicle would be split up using a razor blade or
some sort of sharp object. On the basis of the foregoing,
the court reasonably could have inferred that Jackson
drove the defendant to the apartment building and, once
they arrived, the defendant went inside to make the
purchase. The court then reasonably could have
inferred that once he was done, the defendant returned
to the vehicle and placed the narcotics on the front
seat with the intention that he and Jackson would use
them or distribute them. Giving every reasonable pre-
sumption in favor of the trial court’s ruling; see State v.
Walcott, supra, 184 Conn. App. 871; we cannot conclude
that the evidence was insufficient to prove that the
defendant violated his probation by committing a crime
on April 26, 2017.
We next consider whether the evidence was sufficient
to support the court’s conclusion that the defendant
violated his probation on the basis of the defendant’s
failure to report to the Office of Adult Probation on
two occasions. It is undisputed that the defendant failed
to report to the Office of Adult Probation on October
15, 2015, and July 7, 2016. According to the defendant,
these failures were de minimis and ‘‘would not generate
a violation of probation.’’ The defendant’s argument
overlooks the fact that ‘‘[a] critical element of probation
is the supervisory role of the state. . . . That role can-
not be diluted by a claim that one or more of the condi-
tions were not substantial. All of the conditions at issue
related to the state’s interest in supervising the defen-
dant, and were not, therefore, mere technical viola-
tions.’’ (Internal quotation marks omitted.) State v.
Johnson, 75 Conn. App. 643, 656, 817 A.2d 708 (2003);
id. (declining to hold that one violation of condition of
probation was merely ‘‘ ‘minor transgression’ ’’). We,
therefore, conclude that the evidence was sufficient to
support the finding of a violation of probation on the
basis of the two instances in which the defendant failed
to report to the Office of Adult Probation.
II
The defendant next claims that the court erred in
admitting hearsay testimony during the probation revo-
cation hearing. He contends that the testimony was
uncorroborated, unreliable, not admissible under any
hearsay exception and admitted in violation of his due
process rights. The state counters that our review of
the defendant’s due process claim is precluded by State
v. Shakir, 130 Conn. App. 458, 22 A.3d 1285, cert. denied,
302 Conn. 931, 28 A.3d 345 (2011), and its progeny,
and that the hearsay evidence at issue was sufficiently
reliable for admission. We agree with the state.
The following facts are necessary for the resolution
of this claim. At the probation revocation hearing, Halt
testified that the surveillance at 59 Daly Avenue was
based on information that Detective Kiely, another
member of his unit, had received from a confidential
source. The defendant objected on the basis that this
testimony was hearsay. The court indicated that hear-
say can be admissible in a violation of probation hearing
provided there are some indicia of reliability. Halt then
testified that this information came from another police
officer who had received it from a confidential source.
When the court asked whether the informant was
deemed reliable by the other police officer, Halt
answered: ‘‘Correct or we wouldn’t have used it.’’ The
court then overruled the defendant’s objection and Halt
testified that Kiely had received information from a
confidential source that an individual nicknamed J was
selling crack cocaine from the first floor of 59 Daly
Avenue.9 Halt further testified that Kiely was able to
confirm that J was Jeremy Lawrence who resided on
the first floor of 59 Daly Avenue.
During cross-examination, Halt indicated that he did
not investigate Lawrence’s criminal history prior to or
during the surveillance. The defendant then introduced
into evidence, over the state’s objection, a copy of Law-
rence’s criminal record, which contained no criminal
history of narcotics violations. Halt acknowledged on
cross-examination that confidential sources are not
always the most reliable sources and they might give
erroneous information based on personal bias.10 The
defendant contends that there was no evidence regard-
ing how Kiely knew who Lawrence was, where Law-
rence resided in the apartment building, or that Law-
rence was a drug dealer of any kind. Neither Kiely nor
the confidential informant testified at the hearing.11
A
We first consider the defendant’s claim that Halt’s
testimony was admitted in violation of his due process
rights. The defendant acknowledges that he did not
raise a due process violation in his objection to the
admission of the evidence. In the event that we should
find the issue inadequately preserved, the defendant
requests review of this claim pursuant to State v. Gold-
ing, 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, alternatively, reversal under the
plain error doctrine, codified at Practice Book § 60-5.
We conclude that the defendant’s claim was not pre-
served, that it is not reviewable pursuant to Golding
and that the claimed error is not so obvious and egre-
gious that it requires reversal under the plain error
doctrine.
‘‘Pursuant to 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 constitu-
tional 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. . . . [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 con-
sider the merits of the defendant’s claim.’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) State v. Tucker, 179 Conn. App. 270, 279, 178
A.3d 1103, cert. denied, 328 Conn. 917, 180 A.3d 963(2018).
‘‘Probation revocation proceedings fall within the
protections guaranteed by the due process clause of
the fourteenth amendment to the federal constitution
. . . . Probation itself is a conditional liberty and a
privilege that, once granted, is a constitutionally pro-
tected interest . . . . The revocation proceeding must
comport with the basic requirements of due process
because termination of that privilege results in a loss
of liberty. . . . [T]he minimum due process require-
ments for revocation of [probation] include written
notice of the claimed [probation] violation, disclosure
to the [probationer] of the evidence against him, the
opportunity to be heard in person and to present wit-
nesses 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 [a probation] violation.
. . . Despite that panoply of requirements, a probation
revocation hearing does not require all of the procedural
components associated with an adverse criminal pro-
ceeding.’’ (Citation omitted; internal quotation marks
omitted.) State v. Dunbar, supra, 188 Conn. App. 650.
‘‘In State v. Shakir, [supra, 130 Conn. App. 467], 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. . . .
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 [appear] . . . 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.) State v. Polanco, 165 Conn. App.
563, 570–71, 140 A.3d 230, cert. denied, 322 Conn. 906,
139 A.3d 708 (2016).
‘‘This court has determined, however, that where the
defendant does not request that the court conduct the
Shakir balancing test, or make a good cause finding,
the record is inadequate for review of a due process
claim under the first prong of Golding.’’ State v. Tucker,
supra, 179 Conn. App. 281–82, citing State v. Shakir,
supra, 130 Conn. App. 468; see also State v. Randy G.,
195 Conn. App. 467, 475, n.3, 225 A.3d 702, cert. denied,
335 Conn. 911, A.3d (2020); State v. Dunbar,
supra, 188 Conn. App. 652; State v. Esquilin, 179 Conn.
App. 461, 477–78, 179 A.3d 238 (2017); State v. Polanco,
supra, 165 Conn. App. 576.
In the present case, the defendant failed to request
that the court conduct a balancing test pursuant to State
v. Shakir, supra, 130 Conn. App. 467, when Halt testified
that Kiely had received information from a confidential
source. The defendant, rather, simply stated: ‘‘I’m going
to object, Your Honor. It’s hearsay.’’ The state had no
notice of the defendant’s due process claim and, accord-
ingly, did not present evidence regarding its reasons
for not producing Kiely at the hearing. The defendant,
therefore, failed to sustain his burden of providing this
court with an adequate record to review his due process
claim. ‘‘In this circumstance, the state was not responsi-
ble for this evidentiary lacunae. It would be patently
unfair to address the defendant’s due process claim on
the basis of this record.’’ State v. Polanco, supra, 165
Conn. App. 575. Accordingly, we decline to review the
defendant’s unpreserved due process claim on the basis
of an inadequate record.12
The defendant similarly cannot prevail under the
plain error doctrine. ‘‘[T]he plain error] doctrine, codi-
fied at Practice Book § 60-5, is an extraordinary remedy
used by appellate courts to rectify errors committed at
trial that, although unpreserved, are of such monumen-
tal proportion that they threaten to erode our system
of justice and work a serious and manifest injustice on
the aggrieved party. . . . [T]he 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. . . . Plain error is a doctrine
that should be invoked sparingly.’’ (Internal quotation
marks omitted.) State v. Tucker, supra, 179 Conn. App.
282. On the basis of our review of the record, we con-
clude that the defendant has not demonstrated an error
so obvious that it requires reversal under the plain
error doctrine.
B
We next consider the defendant’s claim that the court
abused its discretion in admitting Kiely’s hearsay state-
ments because the statements were unreliable and
uncorroborated. We conclude that the court did not
abuse its discretion in admitting the hearsay statements.
‘‘It is well settled that probation revocation proceed-
ings are informal and that strict rules of evidence do
not apply to them. . . . Hearsay evidence may be
admitted in a probation revocation hearing if it is rele-
vant, reliable and probative. . . . At the same time,
[t]he process . . . is not so flexible as to be completely
unrestrained; there must be some indication that the
information presented to the court is responsible and
has some minimal indicia of reliability.’’ (Internal quota-
tion marks omitted.) State v. Megos, 176 Conn. App.
133, 146, 170 A.3d 120 (2017).
‘‘Regarding challenges to the trial court’s evidentiary
rulings, our standard of review is that these rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice. . . . In reviewing claims that
the trial court abused its discretion, great weight is
given to the trial court’s decision and every reasonable
presumption is given in favor of its correctness. . . .
We will reverse the trial court’s ruling only if it could
not reasonably conclude as it did.’’ (Internal quotation
marks omitted.) Id., 147.
The defendant contends that no corroborating evi-
dence was offered to support Kiely’s statement to Halt
and that it was unreliable. We disagree. At the hearing,
Halt testified, over objection, that Kiely had received
information from a confidential source that Lawrence
sold crack cocaine from the first floor of 59 Daly Ave-
nue. When the court questioned Halt regarding whether
the informant was deemed reliable, Halt responded:
‘‘Correct or we wouldn’t have used it.’’ The court was
not presented with any evidence casting doubt on the
reliability of Kiely’s statement to Halt. During cross-
examination, defense counsel had the opportunity to
question Halt regarding why Kiely had deemed the infor-
mation from the confidential informant reliable but did
not do so. Defense counsel, rather, asked questions
about the reliability of confidential informants in gen-
eral. The court, therefore, was presented with testimony
that contained ‘‘some minimal indicia of reliability.’’
(Internal quotation marks omitted.) State v. Megos,
supra, 176 Conn. App. 146. We conclude, therefore, that
the court did not abuse its discretion in admitting the
statement of Halt regarding the information that he had
received from Kiely.
III
The defendant’s final claim is that the court abused
its discretion in imposing a sentence of six years of
incarceration. In support of this claim, the defendant
contends that he was doing well on probation, the evi-
dence was insufficient to establish possession of narcot-
ics, and the remaining violations were de minimis.13
We disagree.
‘‘If the trial court determines that the evidence has
established a violation of a condition of probation, then
it proceeds to the second component of probation revo-
cation, the determination of whether the defendant’s
probationary status should be revoked. On the basis of
its consideration 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 determination, 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, cert. denied, 318 Conn. 904, 122 A.3d 633 (2015).
‘‘In determining whether to revoke probation, the trial
court shall consider the beneficial purposes of proba-
tion, namely rehabilitation of the offender and the pro-
tection of society. . . . The important interests in the
probationer’s liberty and rehabilitation must be bal-
anced, however, against the need to protect the public.’’
(Internal quotation marks omitted.) State v. Megos,
supra, 176 Conn. App. 149.
The record reveals that the trial court balanced the
defendant’s interests in liberty and rehabilitation
against the need to protect the public. During the sen-
tencing phase of the hearing, the court heard the testi-
mony of Jerrica Vega, the defendant’s girlfriend, who
testified that the defendant was providing support for
their four month old daughter and assistance to her as
she recovered from a car accident. Vega testified that
the defendant was ‘‘a great person, a good father.’’
Although acknowledging that the defendant had been
helpful to Vega, the court concluded that the defen-
dant’s behavior was ‘‘inimical to his own rehabilitation
as well as the safety of the public’’ and that it did not
believe that any further purpose could be served by
continuing the defendant’s probation. Specifically, the
court expressed concern that, at the same time that
the defendant was helping Vega, he was engaging in
criminal activity while a suspended sentence of eight
and one-half years remained outstanding. According to
the court, this demonstrated a ‘‘lack of appreciation for
the consequences of further unlawful activity.’’ On the
basis of this record, we conclude that the court did
not abuse its discretion in revoking the defendant’s
probation and imposing a sentence of six years of incar-
ceration.14
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s plea was part of a global plea bargain involving nine
files, including the file underlying the present appeal. The court imposed nine
concurrent sentences of twenty years of incarceration, execution suspended
after ten years, with five years of probation.
2
The court terminated the defendant’s probation on all of his cases other
than the present case.
3
On cross-examination, Mena acknowledged that two failures to report
in a two and one-half year period was ‘‘not bad.’’
4
Halt testified that another police officer, Detective Kiely, received the
information from the confidential informant. The defendant objected on the
basis that this evidence constituted inadmissible hearsay. The trial court
overruled the objection. As discussed in part II of this opinion, we conclude
that the court properly admitted the evidence regarding information received
from the confidential informant.
5
Although Halt testified that the defendant had $672 in his possession at
the time of his arrest, the record is unclear whether he had $670 or $672.
6
In its decision, the court stated: ‘‘[O]n April 26, 2017, in New Britain,
the defendant, having driven from Hartford, entered 59 Daly Avenue for
between two and five minutes, visited the residence of a reputed crack
dealer and returned to a car driven by the defendant’s father, who himself
has a history of narcotics violations.
‘‘The defendant, himself, is not drug dependent. The defendant, when
stopped, had $672 in his pockets in his possession and that is separate from
his wallet, a reliable indicia of a quick drug sell. The evidence indicates
the defendant’s legitimate employment at that time, the only established
legitimate employment, would garner an income of approximately $220
a week.
‘‘The police found 1.9 grams of crack cocaine within the car as well as
a razor blade with cocaine residue. Now, the latter was on the father’s side
of the car, the father being the driver. Now, the former was adjacent to the
console on the driver’s side of the console but within reach of the defendant.
‘‘Now more importantly, it is a reasonable inference now that the defen-
dant in leaving the car, visiting his friend Jeremy for a very brief period of
time, Jeremy being a reputed crack dealer, and returning to the car trans-
ported crack cocaine.
‘‘In doing so, he knowingly possessed crack cocaine and possessed it
with an attempt to deliver constituting sale within the meaning of [General
Statutes (Rev. to 2017) § 21a-278 (b)]. The possession by itself, of course,
is a violation of . . . [§] 21a-279.
‘‘So there is a violation of the probation on both of those grounds using
the standard of preponderance of the evidence, which is, of course, a lower
standard than beyond a reasonable doubt.’’
7
‘‘In Fermaint, the police received a tip from a confidential informant
that the owner of a vehicle possessed crack cocaine and that she was
accompanied by two males, one of whom the informant identified as ‘Hector.’
. . . After locating and stopping the vehicle, officers observed the occupants
of the vehicle engaging in furtive movements, including the defendant’s
bending from the [backseat] toward the front seat passenger. . . . As one
officer approached, the front seat passenger was observed putting something
in her pants. . . . An officer observed several crumbs of a rock like sub-
stance, which later tested positive for cocaine, on the [backseat] next to
the defendant. . . . The officer testified that it was possible that the defen-
dant could have sat in the [backseat] without noticing the crumbs. . . . A
green leafy substance, later found to be marijuana, was found in the front
carpet area. . . . A plastic bag containing a large rock like substance, which
tested positive for cocaine, and $120 were found on the person of the front
passenger. . . . An address book and $2 were found on the person of the
defendant, but no drugs. . . . This court reversed the trial court’s judgment
revoking the defendant’s probation. . . . It held that the minimal nexus
between the defendant and the drugs, along with the perhaps ambiguous
movements observed by the officers, was insufficient to establish construc-
tive possession of a narcotic substance.’’ (Citations omitted.) State v. Crewe,
supra, 193 Conn. App. 574–75.
8
The defendant contends that the court’s calculation of his income as
$220 per week is clearly erroneous and omits the fact that he may have
worked additional hours and earned commissions. We conclude that the
court nonetheless reasonably could have inferred that the $672 that the
defendant had in his possession upon arrest was a product of the sale of
drugs rather than his employment. ‘‘[O]ur courts regularly have regarded a
criminal defendant’s quantum of cash as circumstantial evidence of his
intent to sell drugs.’’ State v. Garcia, 108 Conn. App. 533, 540, 949 A.2d 499,
cert. denied, 289 Conn. 916, 957 A.2d 880 (2008).
9
Halt testified as follows:
‘‘[The Prosecutor]: And why is it that you came to start surveillance around
59 Daly Avenue in New Britain?
‘‘[Halt]: Another member of our unit, Detective Kiely, had received infor-
mation from a confidential source—
‘‘[Defense Counsel]: I’m going to object, Your Honor. It’s hearsay.
‘‘[The Prosecutor]: Hearsay’s admissible at a violation of probation hear-
ing, Your Honor.
‘‘The Court: Yeah, hearsay can be admissible, provided it’s—there’s some
indicia of reliability. You got it from a confidential information source. Is
that correct?
‘‘[Halt]: This came from another police officer.
‘‘The Court: Another police officer.
‘‘[Halt]: Who had gotten it from a confidential source.
‘‘The Court: Okay. Do you know whether that [confidential informant]
was deemed reliable by the other police officer?
‘‘[Halt]: Correct or we wouldn’t have used it.
‘‘The Court: All right. I will overrule the objection.
‘‘[The Prosecutor]: And that was going to be my next question, Your Honor.
‘‘The Court: All right. Go ahead.
‘‘[The Prosecutor]: Thank you for asking. . . . So after you—what infor-
mation did you obtain from Officer—or Detective Kiely?
‘‘[Halt]: That the—there was [a] gentleman that went by the nickname J
who was selling crack cocaine from the first floor of 59 Daly Avenue.’’
10
Halt testified as follows:
‘‘[Defense Counsel]: Now, Officer, let’s face it, confidential sources are
hardly the most reliable people in the world, isn’t that correct?
‘‘[Halt]: I would say it depends on what—what we’re talking about.
‘‘[Defense Counsel]: Good point. Very often they’re desperate people.
They’ve been arrested. They have a long criminal history. They’re trying to
curry favor with the police department in some respect. Correct?
‘‘[Halt]: That’s correct.
‘‘[Defense Counsel]: But they will lie. Sometimes confidential sources give
you erroneous information based upon their personal bias. It has happened,
hasn’t it?
‘‘[Halt]: Correct.’’
11
In his initial appellate brief the defendant challenged the state’s failure
to present Kiely or the confidential informant as a live witness. In his
reply brief, however, the defendant acknowledges that his hearsay claim is
confined to the statements of Kiely.
12
The defendant contends that the Shakir line of cases is distinguishable
and that the record in the present case is sufficient, clear and unambiguous
as to whether a constitutional violation has occurred. He contends that the
difficulties for the state in calling the witnesses in Shakir and its progeny
were obvious while in the present case, there is no acceptable justification
for the state not to call a local detective to testify on a statement that was
vital to the state’s case. We disagree and conclude that the defendant in
this case has failed to sustain his burden of providing this court with an
adequate record to review his due process claim.
The defendant also argues that the Shakir standard should be modified
to allow for Golding review of unpreserved Shakir claims. We previously
denied the defendant’s motion for consideration of this matter en banc to
consider whether to modify Shakir. ‘‘To the extent that the defendant’s
argument suggests that our [holding] in Shakir . . . should be overruled
as conflicting with United States and Connecticut Supreme Court precedent,
that is not within the province of a three judge panel of the Appellate Court.
We note that this court’s policy dictates that one panel should not, on its
own, [overrule] the ruling of a previous panel. The [overruling] may be
accomplished only if the appeal is heard en banc.’’ (Internal quotation marks
omitted.) State v. Tucker, supra, 179 Conn. App. 279 n.4.
13
In his reply brief, the defendant indicates that the principal reason for
raising this claim is that, if this court concludes that the trial court errone-
ously found a violation of probation on the basis of the narcotics offenses,
a remand would be necessary for resentencing based only on the defendant’s
failures to appear. As we conclude in part I of this opinion, however, the
evidence was sufficient to support the court’s conclusion that the defendant
violated his probation on the basis of the narcotics offenses.
14
To the extent that the defendant claims, however, that the sentence
imposed by the trial court was excessive, this claim is not reviewable on
appeal and should be made through the sentence review process pursuant
to General Statutes § 51-195. See State v. Wells, 112 Conn. App. 147, 160
n.3, 962 A.2d 810 (2009) (‘‘To the extent that the defendant also claims that
the five year sentence imposed by the court was excessive, we deem such
argument to be misplaced. An appeal following a revocation proceeding is
not the proper forum in which to challenge the length of such sentence.’’),
citing State v. Fagan, 280 Conn. 69, 107 n.24, 905 A.2d 1101 (2006), cert.
denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007); see also
State v. Ricketts, 140 Conn. App. 257, 264 n.5, 57 A.2d 893 (‘‘to the extent
that the defendant challenges the length of the sentence, we cannot review
such claims because those claims should be made through the sentence
review process under . . . § 51-595’’), cert. denied, 308 Conn. 909, 61 A.3d
531 (2013).