State v. Wade ( 2023 )

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STATE OF CONNECTICUT v. JAQUAN WADE
(AC 44898)
Elgo, Suarez and Clark, Js.
Syllabus
The defendant, who had been convicted of conspiracy to commit murder,
appealed to this court from the judgment of the trial court revoking his
probation and sentencing him to thirteen years of imprisonment. The
defendant had signed a form that contained conditions of probation
that required, inter alia, that he not violate any criminal laws of this
state. Thereafter, the defendant’s probation officer received information
that the defendant was a suspect in a home invasion. In the warrant
application for the defendant’s arrest, a police officer indicated that the
defendant had been positively identified in a photographic array by R,
a complaining witness to the home invasion. Prior to the probation
revocation hearing, the defendant filed three motions with the court,
seeking to suppress evidence of the photographic array identification
as well as any testimony related to R’s statements surrounding his
identification of the defendant throughout the course of the investigation
into the home invasion. The defendant specifically asked the court to
engage in the balancing test referenced in State v. Crespo (190 Conn.
App. 639), weighing the defendant’s interest in confronting R against
the state’s reasons for not producing R and the reliability of the proffered
hearsay, and to preclude testimony from any witness regarding R’s
identification of the defendant if the state did not present R as a witness.
The state later located and offered to produce R, but he indicated that,
if he were called to testify, he would invoke his fifth amendment right
against self-incrimination and, thus, the court found that he was unavail-
able to testify. After the court’s determination that R was unavailable,
defense counsel argued that Crespo no longer applied and that the
defendant’s right to due process would be violated by the court’s consid-
eration of unreliable hearsay and a total inability to confront R. The
court denied the defendant’s motions and engaged in an evaluation of
the reliability of the exhibits and subsequent testimony, finding them
to be sufficiently reliable. The court found that the defendant had vio-
lated the terms of his probation. Held:
1. This court declined to consider the merits of the defendant’s claim that
the trial court violated his due process right to confrontation under
the fourteenth amendment when it failed to apply the balancing test
referenced in Crespo, the defendant having abandoned that claim:
although the defendant maintained his objection to the admission of
R’s identification evidence based on a due process right to confrontation,
defense counsel acknowledged during the probation revocation hearing
that, because R ultimately was unavailable due to his invocation of his
right to remain silent, the ‘‘whole issue’’ was ‘‘reliability,’’ as R had
consumed both marijuana and alcohol on the night of the home invasion;
moreover, the record reflected that defense counsel changed tactics
after R invoked his fifth amendment rights, disclaimed his initial request
that the court apply the Crespo balancing test and stated that ‘‘circum-
stances have changed.’’
2. The trial court did not abuse its discretion in admitting certain hearsay
evidence relating to R’s identification of the defendant; the court engaged
in sufficient review and evaluation of the hearsay evidence to conclude
that that evidence was relevant, reliable and probative, including that,
R, in audiovisual recordings, identified the defendant with a high degree
of confidence and did not significantly vary in his explanation of what
happened or how he knew it was the defendant, that R’s identification
was corroborated by other evidence, that R’s descriptions to the police
of the home invasion included a number of statements against penal
interest, and that a video recording of the double-blind photographic
array identification revealed nothing unduly suggestive about the proce-
dure.
Argued March 8—officially released October 3, 2023
Procedural History
Substitute information charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of Fairfield, geographical area
number two, and tried to the court, Hernandez, J.;
judgment revoking the defendant’s probation, from
which the defendant appealed to this court. Affirmed.
Erica A. Barber, assistant public defender, for the
appellant (defendant).
Meryl R. Gersz, deputy assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Joseph J. Harry, senior assistant state’s
attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Jaquan Wade, appeals from
the judgment of the trial court revoking his probation
and imposing a sentence of thirteen years of incarcera-
tion.1 On appeal, the defendant argues that the due
process clause of the fourteenth amendment to the
federal constitution prohibited the admission of a wit-
ness’ out-of-court statements at his probation revoca-
tion hearing because the witness was not present and
available for cross-examination. The defendant claims
that the court improperly failed to implement the bal-
ancing test referenced in State v. Crespo, 190 Conn.
App. 639, 647, 211 A.3d 1027 (2019), when it admitted
the witness’ out-of-court statements relating to the iden-
tification of the defendant in order to establish that the
defendant violated the condition of his probation that
he not violate any criminal laws. The defendant thus
contends that, without this improper hearsay evidence,
the evidence was insufficient to support the court’s
finding that he violated that condition.2 We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. The defendant was
serving a term of probation pursuant to a sentence
imposed in 2013 following his conviction for conspiracy
to commit murder in violation of General Statutes
§§ 53a-48 and 53a-54a (a). The defendant was sentenced
to a total effective sentence of twenty years of incarcer-
ation, execution suspended after seven years, followed
by five years of probation. In 2018, the defendant was
released from the custody of the Department of Correc-
tion, signed a conditions of probation form,3 and began
serving his probation on February 23, 2018.
On May 14, 2019, the defendant’s probation officer
received information that the defendant was a suspect
in a home invasion in Stratford in violation of the condi-
tion of probation that he not violate any criminal laws.
On June 17, 2019, the court issued an arrest warrant
for the defendant for violation of probation pursuant to
General Statutes § 53a-32.4 The defendant was arrested
pursuant to that warrant on July 2, 2019.5
A probation revocation hearing was held over the
course of two days in May, 2021. The state presented
seven witnesses, including the defendant’s probation
officer, two eyewitnesses to the Stratford home inva-
sion, and the detective who investigated the defendant’s
alleged involvement in the home invasion.
At the outset of the hearing, the defendant filed three
motions with the court: (1) a motion to suppress identi-
fication testimony in connection with the home inva-
sion; (2) a motion in limine to preclude testimony about
the identification; and (3) a motion regarding his right
to confront the home invasion complaining witness,
Lawrence Rainey, at the violation of probation hearing.
Through these motions, the defendant sought to sup-
press evidence of a photographic array identification
by Rainey and Rainey’s statements surrounding his
identification of the defendant throughout the course
of the investigation. In the motion concerning his right
to confrontation, the defendant specifically asked the
court to engage in the balancing test referenced in State
v. Crespo, supra, 190 Conn. App. 647, and to preclude
any testimony from any witness regarding Rainey’s
identification of the defendant if the state did not pre-
sent Rainey as a witness. The state filed an omnibus
response to the defendant’s motions, arguing that the
Connecticut Code of Evidence does not apply to proba-
tion revocation hearings and that the defendant has no
absolute right to confront witnesses in such proceed-
ings. In the absence of an objection from the parties,
the court opted to consider the evidence that was the
subject of the pending motions during the course of
the violation of probation hearing because the parties
agreed that the same evidence would be the subject of
the revocation hearing and the defendant’s motions.
During the revocation hearing, the testimony included
evidence of the defendant’s alleged involvement in the
home invasion that occurred in Stratford on May 13,
2019. The court heard testimony from two eyewitnesses
to the incident: Eric Rodriguez and Rebecca Thompson.
At the time of the incident, Rodriguez, Rainey, and a
man named Angel were living in the home. According
to Rodriguez, Rainey sold marijuana from the home and
made several sales a day. Rodriguez and Thompson
testified that, on the evening of May 12, 2019, the three
men and Thompson were hanging out with several
friends in the home, all drinking alcohol and smoking
marijuana.6 In the early morning hours of May 13, 2019,
the only people remaining in the residence were Rodri-
guez and Thompson, who were on the couch in the
living room, while Rainey was upstairs and Angel was
upstairs asleep. At approximately 2 a.m., three men in
masks and dark clothing entered the home unan-
nounced. One man had a gun and two of the men held
knives. The men with the knives ran upstairs where
they encountered Rainey. Downstairs, the third man
approached Rodriguez and Thompson with a gun and
ordered them onto the ground. Rodriguez fought with
the man for the gun and a scuffle occurred between
the two that led into the kitchen. Once in the kitchen, the
man dropped the gun, grabbed a knife, and attempted
to stab Rodriguez. Rodriguez rushed toward the man
and grabbed the blade of the knife and the man’s wrist.
The man pulled away and the knife cut Rodriguez’ hand,
resulting in serious injuries that required fifty-five
stitches and at least one corrective surgery. The man
then forced Rodriguez to his knees and held the knife
to his throat. The intruder ordered Rodriguez and
Thompson to lie on the ground in the kitchen and empty
their pockets, from which the intruder took Rodriguez’
car keys and both of their cell phones. The altercation
lasted approximately ten minutes and, shortly there-
after, all three men fled the home.
Rodriguez further testified that his friend, Rashaun
Richards, previously asked Rodriguez to assist him with
robbing Rainey. Additional investigation by the police
department revealed that Richards’ mother, who was
also the defendant’s stepmother, owned a vehicle that
was at the home at the time of the incident and was
used as the getaway car. Further, without objection
from the defense, Detective Jason Delauri, the investi-
gating officer for the home invasion, testified that Rich-
ards sent Facebook Messenger text messages to the
defendant around the time of the incident, which indi-
cated to Detective Delauri that Richards was acting ‘‘as
a lookout’’ and appeared to warn the defendant when
a car pulled up on the street. Richards was later arrested
in connection with the home invasion. Over the defen-
dant’s objection,7 Rodriguez also testified that, after the
incident, Rainey told him that he had a hunch that an
individual named Pharaoh Eaton and his friend commit-
ted the crime because Eaton and the friend came to
the home to purchase marijuana from Rainey the day
before and, during the home invasion, the men seemed
to know where to go and the location of everything
they intended to steal. The defendant’s probation officer
testified that the defendant told him that he needed
money in order to travel to Texas and, in fact, the
defendant was scheduled to leave for Texas on May 14,
2019, the day after the home invasion.
Detective Delauri also testified during the first day
of the probation revocation hearing. At the time of
Detective Delauri’s testimony, the state was unable to
locate Rainey and did not intend to call him as a witness.
As a result, facts pertaining to Rainey’s identification
of the defendant primarily came from the testimony of
Detective Delauri, who had interviewed Rainey. During
Detective Delauri’s testimony, the state sought to admit
into evidence several exhibits relating to Rainey’s iden-
tification of the defendant. The state offered (1) exhibit
4, the video recording of the police station interview
between Detective Delauri and Rainey; (2) exhibit 5,
the video recording of Rainey’s identification of the
defendant which occurred by means of a photographic
array administered by Detective Todd Moore and pre-
sented to Rainey; and (3) exhibit 7, the photographic
array presented to Rainey. Subject to the defendant’s
objections as to those exhibits and any related testi-
mony, Detective Delauri was provisionally allowed to
testify that, during his initial interview at police head-
quarters, Rainey indicated that, although he did not
know the man’s name at the time, he was able to identify
one of the two suspects because he had contact with
him one or two days prior to the incident when Eaton
visited the home to purchase marijuana. Detective
Delauri also testified that Rainey indicated that he was
able to see the person’s face through the mask in order
to recognize the individual and, at one point, Rainey
identified a person with the nickname ‘‘Quan’’ as the
person who accompanied Eaton to purchase marijuana
on the day prior to the home invasion. On the basis of
this information, Detective Delauri interviewed Rainey
again, accompanied by Detective Moore, to conduct a
photographic array to identify suspects for the home
invasion. In a double-blind procedure,8 Detective Moore
showed Rainey a photographic array for identification,
which contained the defendant’s photograph. At that
time, Rainey identified the defendant as the man
involved in the home invasion.
In objecting to the entry of the proffered exhibits, as
well as the state’s questions and Detective Delauri’s
testimony regarding Rainey’s identification of the defen-
dant, the defendant asserted grounds of hearsay and a
violation of his due process right to confrontation. In
response, the court reserved ruling with respect to the
admissibility of the evidence in order to review the
audiovisual exhibits before the second day of the hear-
ing.
At the close of evidence on the first day of the hearing,
the court also heard arguments from the defense and
the state regarding the defendant’s motions. At that
time, defense counsel specifically mentioned that, in
his motion regarding the defendant’s right to confronta-
tion, he asked the court to engage in the balancing test
referenced in State v. Crespo, supra, 190 Conn. App.
647. The defendant also directed the court’s attention
to § 53a-32 (c),9 which enumerates a right to confronta-
tion via cross-examination in violation of probation
hearings. In acknowledging the balancing test, the court
specifically asked the state what steps it took to locate
the witness given that it was required to balance the
defendant’s confrontation right against the state’s
stated reason for not producing him. After the state
indicated that it would need additional time to subpoena
the witnesses relevant to the court’s inquiry, the matter
was subsequently continued for additional testimony
on that issue.
On the second day of the hearing, the state offered
to produce Rainey, who, after speaking with a special
public defender, indicated that he intended to invoke
his fifth amendment right against self-incrimination.10
The court thus found that Rainey was unavailable to
testify. After making this finding, the court heard from
counsel on the defendant’s motions. During argument,
defense counsel argued that, ‘‘[a]t the time that [the]
motions were filed and at the time of the first day of
the hearing the circumstances were such that the state
had been unable to identify, locate and speak with Mr.
Rainey. Obviously, the circumstances have now
changed. As we first addressed this morning the state
did speak with Mr. Rainey. Counsel was appointed as
the court indicated, and Mr. Rainey has decided to
assert his fifth amendment privilege against self-incrim-
ination. . . . [T]he due process clause to the federal
constitution is controlling here. The right of an accused
in a criminal trial . . . is in essence the right to a fair
opportunity to defend against the state’s accusations,
the right to confront and cross-examine witnesses have
long been recognized as essential to due process. And
that’s what our argument is here.
‘‘That . . . change in circumstance, the invocation of
the fifth amendment right, has completely undermined
[the defendant’s] ability to engage in a meaningful cross-
examination or confrontation with the critical witness
in this circumstance. And, as such, the consideration
of that evidence would amount to a violation of due
process. . . .
‘‘Our argument is simply that the evaluation of the
confrontation rights here under the due process clause
after doing so allow[ed] the state to benefit from that
evidence to [the defendant’s] detriment in that he could
not confront the critical witness in this . . . case and
not addressing the issue of probation at this time would
violate his due process rights.’’
In response, the state asserted that the applicable
evidentiary principles differ in a probation revocation
hearing, specifically with regard to the defendant’s right
to confrontation. In support of its position, the state
argued that the exhibits and testimony presented during
the hearing were reliable and corroborated by the evi-
dence and testimony from the two eyewitnesses. The
state also argued that the court is required to make a
finding of good cause only when the state does not call
a witness. Thus, the state argued that, because Rainey
was unavailable to both the state and defense counsel
in the present case, the court is left only with a ‘‘balanc-
ing test between what [the court determines] as reliable
and probative.’’
In his rebuttal argument, defense counsel responded
that, with regard to the motion to suppress, ‘‘the whole
issue there is reliability.’’ The defendant then argued
that the court should find the exhibits and any testimony
stemming from those exhibits and Rainey’s identifica-
tion of the defendant to be unreliable. Specifically,
defense counsel argued the following to the court:
‘‘The state . . . referenced a balancing test from
Crespo. And again, Your Honor, I think the circum-
stances have changed a bit. Crespo governs when the
state . . . does not call a witness. And, up until Thurs-
day at the conclusion of the hearing, the state had indi-
cated it could not find Mr. Rainey, did not speak to Mr.
Rainey. . . . The difference is . . . not that they’re
just not calling him as a witness, it’s that he’s now
unavailable. . . . Effectively cross-examination, con-
frontation is denied there wholly and completely. . . .
The court’s analysis is, I believe, governed by the due
process clause of the federal constitution, which
ensures minimum safeguards in connection with a hear-
ing such as this one, a violation of probation hearing.
‘‘And the minimum—a part of those minimum safe-
guards, as I mentioned enumerated in our statute but
also in case law, are that there is at least a minimum
right to confront evidence against you, cross-examine
witnesses. And I understand the circumstances of a
violation of probation hearing are different than that
of a trial, we have established that. But, at a minimum,
the consideration of this evidence which is ultimately
the question, the consideration of this evidence, the
identification procedure which, again, [its] reliability
has been called into question.’’ Defense counsel then
stated that these factors combined—the unreliability
of the evidence and the total inability to confront the
complaining witness—weigh in the defendant’s favor
as to whether his due process rights would be violated.
Following these arguments, the court denied the
defendant’s motions. In so ruling, the court stated that
‘‘[t]he violation of probation proceeding is not a criminal
proceeding, it’s a hybrid proceeding. And the protec-
tions which are typically afforded to defendants in a
criminal trial, while similar in a violation of probation
hearing, are not the same. As I stated earlier, the court
can consider information which is relevant and reli-
able.’’ The court then engaged in an evaluation of the
reliability of the exhibits and subsequent testimony,
finding them to be sufficiently reliable. Specifically, the
court found, inter alia, that (1) Rainey’s identification of
the defendant in the photographic array was consistent
with his prior statements regarding identification and
not unduly suggestive, (2) the corroborating facts and
testimony from other witnesses supported reliability,
and (3) Rainey’s own statements against penal interest
with respect to his selling marijuana further heightened
the reliability and credibility of the hearsay evidence.
The court thereafter found, by a fair preponderance of
the evidence, that the defendant had violated the terms
of his probation. It therefore revoked the defendant’s
probation and sentenced him to the remaining thirteen
years of imprisonment that had been suspended.11 This
appeal followed.
I
On appeal, the defendant claims that the court vio-
lated his due process right to confrontation under the
fourteenth amendment when it improperly failed to
apply the balancing test referenced in State v. Crespo,
supra, 190 Conn. App. 647, and allowed hearsay evi-
dence and testimony concerning Rainey’s identification
of the defendant. In arguing that the court was required
to conduct the balancing test during the probation revo-
cation hearing, the defendant specifically refers to this
court’s precedent that, when the state declines to call a
witness to testify, ‘‘[t]he exercise of the right to confront
adverse witnesses in a probation revocation proceeding
is not absolute, but rather entails a balancing inquiry
conducted by the court, in which the court ‘must bal-
ance the defendant’s interest in cross-examination
against the state’s good cause for denying the right to
cross-examine. . . . 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,
[1] the defendant’s interest in confronting the declarant,
against, on the other hand, [2] the government’s reasons
for not producing the witness and [3] the reliability of
the proffered hearsay.’ ’’ Id. The state argues in response
that the defendant abandoned his claim that due pro-
cess requires that the court employ the balancing test
referenced in Crespo. We agree with the state.
We begin by setting forth the principles relevant 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 individ-
ual. . . . It also noted that persons on probation do
not enjoy absolute liberty but rather ‘conditional liberty
properly dependent on observance of special [proba-
tion] restrictions. . . . These restrictions are meant to
assure that the probation serves [as] a period of genuine
rehabilitation and that the community is not harmed
by the probationer’s being at large.’ . . . This condi-
tional liberty, however, is a privilege that once granted,
constitutes a constitutionally protected interest. . . .
The due process clause of the fourteenth amendment
mandates certain minimum procedural safeguards
before that conditional liberty interest may be revoked.’’
(Citations omitted.) State v. Polanco, 165 Conn. App.
563, 570, 140 A.3d 230, cert. denied, 322 Conn. 906, 139
A.3d 708 (2016).
With respect to those minimum procedural safe-
guards, ‘‘[i]t is well established that the defendant is
entitled to limited due process rights in a probation
revocation proceeding. Probation revocation proceed-
ings fall within the protections guaranteed by the due
process clause of the fourteenth amendment to the
federal constitution. . . . The revocation proceeding
must comport with the basic requirements of due pro-
cess because termination of that privilege results in a
loss of liberty. . . . [T]he minimum due process
requirements for revocation of [probation] include writ-
ten notice of the claimed [probation] violation, disclo-
sure to the [probationer] of the evidence against him,
the opportunity to be heard in person and to present
witnesses and documentary evidence, the right to con-
front and cross-examine adverse witnesses in most
instances, a neutral hearing body, and a written state-
ment as to the evidence for and reasons for [probation]
violation. . . . Despite that panoply of requirements, a
probation revocation hearing does not require all of the
procedural components associated with an adversarial
criminal proceeding.’’ (Internal quotation marks omit-
ted.) State v. Tucker, 179 Conn. App. 270, 279–80, 178
A.3d 1103, cert. denied, 328 Conn. 917, 180 A.3d 963(2018).
Specifically, with regard to the right to confrontation,
‘‘[i]n 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 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.’ ’’
(Emphasis added.) State v. Polanco, supra, 165 Conn.
App. 570–71.
On the basis of our review of the record in this case,
it is evident that the defendant effectively abandoned
his claim that the balancing test referenced in Crespo
was applicable. Although the defendant maintained his
objection based on a due process right to confrontation,
he clearly abandoned the balancing test, acknowledging
that, because Rainey was now unavailable due to his
invocation of his right to remain silent, ‘‘the whole issue
. . . is reliability.’’ We reiterate that, during the second
day of the revocation hearing, defense counsel repeat-
edly acknowledged that Rainey’s unavailability was a
‘‘change in circumstance’’ and asked the court to con-
sider only the reliability of the proffered evidence and
whether admitting such evidence would violate the
defendant’s federal due process rights. Arguing that
‘‘the whole issue . . . is reliability,’’ the defendant con-
tended that Rainey’s proffered identification evidence
was unreliable in light of his marijuana and alcohol
consumption. Moreover, defense counsel further dis-
claimed his initial request that the court apply the bal-
ancing test and acknowledged that the test is no longer
applicable when, in response to the state’s argument,
he stated that ‘‘[t]he state had referenced a balancing
test from Crespo. And again, Your Honor, I think the
circumstances have changed a bit. Crespo governs
when the state . . . does not call a witness. . . . The
difference is . . . not that they’re just not calling him
as a witness, it’s that he’s now unavailable. . . . Effec-
tively cross-examination, confrontation is denied there
wholly and completely. . . . The court’s analysis is I
believe governed by the due process clause of the fed-
eral constitution which ensures minimum safeguards
in connection with a hearing such as this one, a violation
of probation hearing.’’ Thus, the record clearly reflects
that defense counsel changed tactics once Rainey
invoked his fifth amendment rights and focused solely
on whether the evidence regarding his identification of
the defendant was reliable.12 Because we agree with
the state that the defendant abandoned this claim, we
decline to consider the merits of his claim on appeal.
II
In light of our resolution of the claim raised in part
I of this opinion, we briefly address the defendant’s
ancillary challenge to the court’s determination that the
hearsay evidence was reliable. Here, we note that ‘‘[t]he
evidentiary standard for probation violation proceed-
ings is broad. . . . [T]he court may . . . consider the
types of information properly considered at an original
sentencing hearing because a revocation hearing is
merely a reconvention of the original sentencing hear-
ing. . . . The court may, therefore, consider hearsay
information, evidence of crimes for which the defen-
dant was indicted but neither tried nor convicted, evi-
dence of crimes for which the defendant was acquitted,
and evidence of indictments or informations that were
dismissed.’’ (Internal quotation marks omitted.) State
v. Megos, 176 Conn. App. 133, 147, 170 A.3d 120 (2017).
Moreover, hearsay evidence presented during a proba-
tion revocation hearing may be considered sufficiently
reliable when it is supported by corroborating evidence.
See State v. Maietta, 320 Conn. 678, 691, 134 A.3d
572 (2016).
Here, the court found that Rainey identified the defen-
dant ‘‘with a high degree of confidence. That [identifica-
tion] was consistent with his other statements, and he
did not vary in any significant way in his explanation
of what happened and how it was that he was able to
identify the defendant. So [the court finds] . . . his
audiovisual recordings to be extremely reliable.
‘‘[The audiovisual recordings] are further corrobo-
rated by the testimony from the detective about the
phone traffic in essence advising the defendant about
what was going on during the course of the home inva-
sion. . . .13 [H]is various statements are consistent with
the court testimony of Eric Rodriguez and Rebecca
Thompson. Now, admittedly, they experienced differ-
ent events, but to the extent that there’s overlap they
are consistent and remain consistent, which adds to
the reliability of Mr. Rainey’s statements.
‘‘In addition, Mr. Rainey, during his description of
what happened, made a number of statements against
penal interest, admitting that he was involved in the
distribution of marijuana which, in the court’s view,
further heightens the reliability and credibility of the
statements which he gave. The video recording of the
identification procedure which was employed reveals
. . . that Detective Moore complied with the require-
ments of performing a photo[graphic] array and . . .
there was nothing unduly suggestive—there was noth-
ing suggestive at all quite frankly about the identifica-
tion procedure that was used.’’ (Footnote added.)
We note that ‘‘our standard of review is that [the trial
court’s evidentiary] rulings will be overturned on appeal
only where there was an abuse of discretion and a
showing by the defendant of substantial 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.)
State v. Megos, supra, 176 Conn. App. 147. The record
clearly reflects that the court engaged in sufficient
review and evaluation of the hearsay evidence, includ-
ing the corroborating evidence, to conclude that the
evidence was relevant, reliable and probative. There-
fore, we conclude the court did not abuse its discretion
in admitting the hearsay evidence in question.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court found that the defendant violated three conditions of proba-
tion: (1) he left the state without proper approval, (2) he failed to submit
to substance abuse evaluation and counseling and, (3) to the extent that
the defendant was involved in the home invasion discussed subsequently
in this opinion, he violated the probation condition that he not violate any
criminal law of the United States, this state, or any other state or territory.
On appeal, the defendant does not challenge the court’s findings that he
was in violation of probation for leaving the state and failing to submit to
substance abuse evaluation and counseling. The defendant only appeals the
court’s judgment with respect to the alleged criminal law violation.
2
On appeal, the defendant specifically argues that the court relied on the
defendant’s alleged participation in the home invasion and that this finding
‘‘substantially contributed to the severity of the trial court’s sentence in the
dispositional phase . . . .’’ Because the defendant challenges only one of
the court’s findings for the violation of probation in making this argument,
we note this court’s recent decision in State v. Eric L., 218 Conn. App. 302,
317–18 n.13, 291 A.3d 621, cert. granted, 346 Conn. 927, 291 A.3d 1041 (2023),
in which we acknowledged that, ‘‘in order to obtain review of the merits
of a claim that the trial court improperly found [the defendant] to be in
violation of his probation in a particular way, [it is not necessary to] always
successfully challenge on appeal each and every ground on which the court
found him to be in violation. If a defendant adequately briefs a claim that a
court’s alleged error in finding one particular ground during the adjudicatory
phase materially affected the severity of the sentence it imposed during the
dispositional phase, the court should review the claim because the alleged
error may ‘have had some bearing on [the] disposition the court ordered and,
if the court ordered the defendant to serve some portion of his suspended
sentence as to that disposition, what that sentence would be.’ ’’
3
The court-imposed conditions of probation included, inter alia, that the
defendant (1) ‘‘not violate any criminal law of the United States, this state
or any other state or territory,’’ (2) ‘‘not leave the [s]tate of Connecticut
without permission from the [p]robation [o]fficer,’’ and (3) ‘‘[s]ubmit to any
medical and/or psychological examination, urinalysis, alcohol and/or drug
testing, and/or counseling sessions required by the [c]ourt or the [p]roba-
tion [o]fficer.’’
4
General Statutes § 53a-32 provides in relevant part: ‘‘(a) 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. . . .’’
5
The defendant’s arrest warrant application stated that ‘‘[the defendant]
was a suspect in a home invasion that took place at approximately 3 a.m.
in Stratford. . . . [Stratford Police Detective Jason Delauri] later notified
this affiant [the defendant’s probation officer] that [the defendant] was
positively identified by the victim of the home invasion in a lineup and that
a warrant will be submitted at a later date.’’ The warrant application also
indicated that the defendant left Connecticut in violation of the terms of
his probation and failed to submit to substance abuse evaluation and treat-
ment as required under the conditions of his probation.
6
Rodriguez testified that he consumed seven or eight alcoholic drinks
throughout the evening and the group smoked several grams of marijuana.
Rodriguez also testified that he observed Rainey consume two beers in
addition to smoking marijuana.
7
Defense counsel argued that any testimony by Rodriguez as to what
Rainey told him about who committed the home invasion would constitute
hearsay and would violate the defendant’s due process right to confrontation.
The court overruled the objection, finding that Rainey’s prior statements
were relevant and highly probative to show that Rainey identified the
intruder prior to the photographic array identification.
8
‘‘To qualify as double-blind, a photographic array must be administered
by an uninterested party without knowledge of which photograph represents
the suspect.’’ State v. Marquez, 291 Conn. 122, 132, 967 A.2d 56, cert. denied,
558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).
9
General Statutes § 53a-32 (c) provides in relevant part that, ‘‘[u]pon
notification by the probation officer of the arrest of the defendant or upon
an arrest by warrant as herein provided, the 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 advised by
the court that such defendant has the right to retain counsel and, if indigent,
shall be entitled to the services of the public defender, and shall have the
right to cross-examine witnesses and to present evidence in such defendant’s
own behalf. . . .’’
10
At the suggestion of defense counsel, Rainey was appointed a special
public defender who, after speaking with Rainey, informed the court that,
in light of his admission to distributing marijuana during his interview after
the incident, Rainey would invoke his fifth amendment protections if called
as a witness in the violation of probation hearing.
11
The record reflects that the defendant objected to the court’s findings
that (1) the beneficial purposes of probation were no longer being served
by the defendant’s probation and (2) the defendant has not met the terms
of his probation on the basis of the testimony of his supervising proba-
tion officers.
12
We also note that, after his appeal was filed, the defendant filed a motion
for articulation, arguing that, although ‘‘[i]t is not appropriate . . . for the
trial court judge to use the articulation process to change or alter its deci-
sion,’’ the trial court’s decision was ‘‘not clear because, although the defen-
dant identified the balancing test for determining good cause as controlling
the court’s inquiry, the court did not make any express findings on that
issue.’’ In denying the motion, the trial court recounted in its memorandum
of decision the procedural history relevant to the motion to suppress, noting
that, due to ‘‘developments which were not anticipated in the original motion
to suppress, the court made a finding that Rainey was not available. . . .
Significantly, while reframing his argument in support of suppression,
defense counsel did not argue in support of applying the Crespo balancing
test. . . . In short, counsel abandoned the very standard which he now
seeks to have this court articulate.’’ (Citations omitted.) We agree with the
trial court’s characterization of the record at trial, and we reject as trial by
ambuscade this transparent attempt to resuscitate for appeal an issue that
the record clearly demonstrates was abandoned.
13
We note that the court referenced evidence of statements made by
Richards, the driver of the getaway car on the night of the home invasion.
Specifically, the court recalled evidence that Richards was communicating
with the defendant during the home invasion through Facebook Messenger
and that he warned the defendant of a car approaching the home during
the home invasion. We also reiterate that the evidence showed that the
getaway car was owned by Richards’ mother, who was the defendant’s
stepmother.