State v. Esquilin

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STATE OF CONNECTICUT v.
KASON U. ESQUILIN
(AC 38762)
Keller, Elgo and Bear, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
revoking his probation and sentencing him to a period of four years
incarceration following his arrest on charges of violating certain condi-
tions of his probation, including, inter alia, that he not use or possess
drugs or alcohol. At the probation revocation hearing, the state sought
to admit testimony from A, a probation officer, regarding the results of
drug tests performed on the defendant’s urine during his probationary
period, and to introduce the reports of such results into evidence as an
exhibit. The defendant objected on the grounds that the admission of
the reports was an unreliable form of double hearsay and a violation
of his right to confrontation because A did not conduct the actual drug
testing. The trial court overruled the defendant’s objection, ruling that
the testimony and the drug tests that were being offered did not consti-
tute unsupported testimonial hearsay. After finding that the defendant
had violated the terms of his probation, the court revoked his probation
and sentenced him to four years incarceration. Thereafter, the defendant
appealed to this court, claiming, for the first time, that the trial court
violated his right to due process by admitting the drug test reports into
evidence without requiring the state to introduce such results through
the testimony of the analysts who performed the actual testing. Held
that this court declined to review the defendant’s unpreserved claim
that the trial court violated his right to due process by admitting the
reports into evidence, the defendant having failed to provide this court
with an adequate record for review of his unpreserved claim pursuant
to State v. Golding (213 Conn. 233); because the defendant did not
object at the probation revocation hearing to the admission of the reports
of the drug test results on the ground that their admission violated his
right to due process, the state was not given adequate notice of the
defendant’s due process claim and did not provide the possible reasons
for not producing the analysts who had performed the drug tests as
witnesses at the probation revocation hearing, and, therefore, this court
could not balance the state’s interest in not producing the persons who
performed the drug tests against the defendant’s interest in confronting
those persons to determine whether a due process violation occurred.
Argued October 16, 2017—officially released January 30, 2018
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of New London, where the matter was tried to
the court, Williams, J.; judgment revoking the defen-
dant’s probation, from which the defendant appealed
to this court. Affirmed.
Steven B. Rasile, assigned counsel, for the appel-
lant (defendant).
David J. Smith, senior assistant state’s attorney, with
whom, on the brief, was Michael L. Regan, state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Kason U. Esquilin,
appeals from the judgment of the trial court revoking
his probation pursuant to General Statutes § 53a-32 and
imposing a four year prison sentence. On appeal, the
defendant claims that the court deprived him of his
right to due process by admitting into evidence reports
of the results of drug tests performed on urine samples
collected from the defendant, without requiring the
state to introduce such results through the testimony
of the analysts who performed the actual testing. We
conclude, in accordance with State v. Polanco, 165
Conn. App. 563, 571, 140 A.3d 230, cert. denied, 322
Conn. 906, 139 A.3d 708 (2016), that this claim was not
preserved and that the record is inadequate to review
it pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). Accordingly, we affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s appeal. On
April 28, 2008, the defendant was convicted of the
underlying offense of the sale of hallucinogens/narcot-
ics in violation of General Statutes § 21a-277 (a). On
June 17, 2008, he was sentenced to ten years incarcera-
tion, execution suspended after two years, and three
years of probation. The defendant was released from
incarceration on September 10, 2010, and his probation-
ary period began.
On March 21, 2012, the defendant was convicted of
violating his probation pursuant to § 53a-32. He was
sentenced to eight years incarceration, execution sus-
pended after two years, and three years of probation.
The terms of his probation, in addition to the standard
conditions, required as special conditions, that the
defendant (1) obey all federal and state laws, (2) not
possess weapons, (3) submit to psychological evalua-
tion and treatment, (4) take medications as prescribed,
(5) submit to substance abuse evaluation and treatment,
(6) not use or possess drugs and alcohol, (7) submit
to random urine and alcohol sensor testing, (8) not
associate with drug dealers, users, and gang members,
(9) secure full time employment, and (10) pass a general
education development course. On August 5, 2013, the
defendant, after he reviewed the conditions of proba-
tion, acknowledged that he understood the conditions
and would follow them. On August 27, 2013, the defen-
dant again was released from incarceration and his
probationary period commenced.
On January 29, 2014, an arrest warrant for the defen-
dant was issued charging him with a violation of proba-
tion on the grounds that the defendant violated the
following standard conditions of his probation: (1) ‘‘[d]o
not violate any criminal law of the United States, this
state or any other state or territory’’ and (2) ‘‘[s]ubmit
to any medical and/or psychological examination, uri-
nalysis, alcohol and/or drug testing, and/or counseling
sessions required by the [c]ourt or the [p]robation [o]ffi-
cer.’’ The defendant also was charged with failing to
comply with the following special conditions of his
probation: (1) submit to substance abuse evaluation and
treatment, (2) do not use or possess drugs or alcohol,
(3) submit to random urine and alcohol sensor testing,
(4) do not associate with drug dealers, users, or gang
members, and (5) obey all federal and state laws. The
defendant denied that he committed any violations and
a probation revocation hearing was held on April 2,
2015.
After hearing evidence and argument, the court found
that the state had proven, by a preponderance of the
evidence, that the defendant had violated his probation.
The court found,1 in relevant part: ‘‘[Probation] Officer
[Robert] Amanti of the Office of Adult Probation spoke
with [the defendant] about the conditions of his proba-
tion, including his requirement that he successfully
complete treatment and remain free of any illicit sub-
stance. . . . [The defendant] acknowledged those con-
ditions. . . . [O]n August 15, 2013, the [defendant] was
confronted about his substance abuse. . . . [The
defendant] indicated he was proud of getting high2 and
was referred for treatment at [the Southeastern Council
on Alcoholism and Drug Dependence (rehabilitation
facility)]. . . . [The defendant], while on probation
with the previously noted conditions, rendered several
dirty urines on at least seven occasions while on proba-
tion. One of the urines dated [August 27, 2013,] was
positive for [tetrahydrocannabinol (THC)] with a level
of 757. The [defendant] did not successfully complete
treatment at [the rehabilitation facility] and was unsuc-
cessfully discharged.3 The court finds that he was then
rereferred to [the rehabilitation facility] by probation,
and again was unsuccessfully discharged. . . .
‘‘[P]robation elected to continue working with [the
defendant] toward its intended goal of rehabilitation
and did not submit a warrant for violation of probation,
which would be a second violation of probation . . .
[probation] continued to work with the [defendant]
even after seven positive urines; and that the [defen-
dant] eventually was arrested on [January 20, 2014].
. . . [The defendant’s] conduct included grabbing the
hair of a pregnant victim, pulling out at least one of her
braids. . . . The [defendant] struck this pregnant
female in the face with an open hand, causing pain.
. . .4 [The defendant] attempted to run away from the
police and struggled with those police officers.5 [The
defendant committed the] crimes of breach of peace,
assault in the third degree on a pregnant victim, [and]
interfering with an officer . . . [and demonstrated an]
inability to successfully complete treatment or to
remain sober . . . . [Therefore] . . . the state . . .
met its burden of proof by a preponderance of the
evidence, and [proved that the defendant] violated con-
ditions of his probation for the aforementioned con-
duct.’’ (Footnotes added.) After the conclusion of the
dispositional phase, the court revoked the defendant’s
probation and sentenced him to four years of incarcera-
tion. This appeal followed.
The defendant’s sole claim is that the court deprived
him of his right to due process by admitting into evi-
dence the reports of the results of drug tests performed
on his urine samples without requiring the state to intro-
duce such results through the testimony of the analysts
who performed the actual testing.
The following additional facts are relevant to the
disposition of this appeal. At the defendant’s probation
revocation hearing, the state sought to present testi-
mony from Amanti about the results of the drug tests
performed on the defendant’s urine and to introduce
the reports of such results into evidence as an exhibit.
The drug tests were performed on samples of the defen-
dant’s urine collected by both probation and the rehabil-
itation facility between August, 2013, and December,
2013. These samples were sent to out-of-state labora-
tories to be analyzed and the laboratories would fax
reports of the results to the Office of Probation. The
analysts who performed the drug tests and authored
the reports of the drug tests were not present to testify
at the defendant’s probation revocation hearing. The
identity of these analysts is not explicitly contained in
the record, nor is there any indication that the defendant
had the opportunity to cross-examine these analysts
prior to his probation revocation hearing.
During the state’s direct examination of Amanti, the
prosecutor asked him about the results of a drug test
on one of the defendant’s urine samples, collected on
August 27, 2013. Before Amanti could answer, defense
counsel objected on the basis that the report of the
results of that drug test was not in evidence. Defense
counsel argued that Amanti testifying about the drug
test results was inadmissible because it was an unrelia-
ble form of double hearsay and a violation of the defen-
dant’s right to confrontation. With respect to the right
to confrontation, defense counsel argued that admitting
Amanti’s testimony concerning the results of the drug
test violated the defendant’s right to confrontation as
explicated by the Supreme Court in Bullcoming v. New
Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610
(2011).6 The prosecutor responded that Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004)7 and its progeny do not apply to probation
revocation hearings. In response, defense counsel spec-
ified that, on the basis of the reasoning set forth in
Bullcoming, the results of the drug test were unreliable
hearsay without testimony from the person who per-
formed the actual testing and were, thus, inadmissible.
Defense counsel never explicitly argued that the admis-
sion of the test results violated the defendant’s right to
due process, which is his sole claim on appeal. The court
overruled defense counsel’s objection, finding ‘‘that the
testimony being elicited now and the use of the docu-
ment is not just a testimonial variety of hearsay that’s
unsupported. This is a document that the state wishes
to reference through the testimony of [Amanti] along
the lines of what is clearly admissible under Connecti-
cut law . . . . So the court’s going to at this point over-
rule the objection by the defense . . . .’’
After the court ruled that Amanti could testify about
the results of the drug test, the state opted to ‘‘skip
a little ahead and do something a little different’’ by
introducing the reports of the results of the drug tests
as an exhibit at the hearing. Defense counsel objected
to the admission of the reports as an exhibit, again
arguing that pursuant to Bullcoming, the reports of
the results of the drug test were inadmissible hearsay
because Amanti did not conduct the actual testing. The
court, overruling the defendant’s objections, admitted
the reports into evidence. All but one of the reports in
the state’s exhibit indicated that marijuana was
detected in the defendant’s urine samples collected
while he was on probation. The prosecutor then asked
Amanti whether the defendant’s urine samples tested
positive for THC, which is an indication of the use of
marijuana, and Amanti answered that they did sev-
eral times.
The state argues that the defendant’s due process
claim was not preserved because, at the probation revo-
cation hearing, the defendant did not object to the
admission of the reports of the results of the drug tests
as a violation of his right to due process. As a result,
the state argues that the record is inadequate to review
the defendant’s claim that the admission of the results
denied him of his right to due process. In response, the
defendant argues that the claim was preserved or, if
the claim is unpreserved, it is nonetheless reviewable
pursuant to Golding. We agree with the state.
We first turn to a brief review of the principles relating
to probation and the defendant’s rights at a probation
revocation hearing. ‘‘[P]robation is, first and foremost,
a penal alternative to incarceration . . . . [Its] purpose
. . . is to provide a period of grace in order to aid the
rehabilitation of a penitent offender; to take advantage
of an opportunity for reformation which actual service
of the suspended sentence might make less probable.
. . . [P]robationers . . . do not enjoy the absolute lib-
erty to which every citizen is entitled, but only . . .
conditional liberty properly dependent on observance
of special [probation] restrictions. . . . These restric-
tions are meant to assure that the probation serves as
a period of genuine rehabilitation and that the commu-
nity is not harmed by the probationer’s being at
large. . . .
‘‘The success of probation as a correctional tool is
in large part tied to the flexibility within which it is
permitted to operate. . . . In this regard, modifications
of probation routinely are left to the office of adult
probation. When the court imposes probation, a defen-
dant thereby accepts the possibility that the terms of
probation may be modified or enlarged in the future
pursuant to [General Statutes] § 53a-30. . . . To this
end, probation officers shall use all suitable methods
to aid and encourage [a probationer] and to bring about
improvement in his [or her] conduct and condition. . . .
‘‘The due process clause of the fourteenth amend-
ment to the United States constitution requires that
certain minimum procedural safeguards be observed in
the process of revoking the conditional liberty created
by probation. . . . Among other things, due process
entitles a probationer to a final revocation hearing
. . . . A revocation proceeding is held to determine
whether the goals of rehabilitation thought to be served
by probation have faltered, requiring an end to the con-
ditional freedom obtained by a defendant at a sentenc-
ing that allowed him or her to serve less than a full
sentence. . . . [T]he ultimate question [in the proba-
tion process is] whether the probationer is still a good
risk . . . . This determination involves the consider-
ation of the goals of probation, including whether the
probationer’s behavior is inimical to his own rehabilita-
tion, as well as to the safety of the public. . . .
‘‘On the other hand . . . a [probation] revocation
proceeding . . . is not a criminal proceeding. . . . It
therefore does not require all of the procedural compo-
nents associated with an adversary criminal proceed-
ing.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Faraday, 268 Conn.
174, 180–83, 842 A.2d 567 (2004). As such, at a revoca-
tion proceeding, the state must prove each alleged viola-
tion of probation by a preponderance of the evidence
in accordance with General Statutes § 53a-328 and Prac-
tice Book § 43-29.9 Id., 183–84.
‘‘The due process clause of the fourteenth amend-
ment mandates certain minimum procedural safeguards
before that conditional liberty interest [of probation]
may be revoked.’’ State v. Polanco, supra, 165 Conn.
App. 570. Among these minimum procedural safeguards
is the right to confrontation at a probation revocation
hearing. See Morrissey v. Brewer, 408 U.S. 471, 489, 92
S. Ct. 2593, 33 L. Ed. 2d 484 (1972). With respect to
the right to confrontation at a revocation of probation
hearing, the Supreme Court has stated that minimum
due process requires that the defendant be afforded ‘‘the
right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause
for not allowing confrontation) . . . .’’ Id.10 This court,
with guidance from the Second Circuit Court of Appeals
and the Federal Rules of Criminal Procedure, previously
determined that whether there is good cause for not
allowing confrontation should be determined by using
a balancing test, which requires the court to balance,
‘‘on the one hand, the defendant’s interest in confront-
ing the declarant, against, on the other hand, the govern-
ment’s reasons for not producing the witness and the
reliability of the proffered hearsay. United States v.
Williams, 443 F.3d 35, 45 (2d Cir. 2006); see also United
States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000).’’ (Inter-
nal quotation marks omitted.) State v. Shakir, 130 Conn.
App. 458, 468, 22 A.3d 1285, cert. denied, 302 Conn. 931,
28 A.3d 345 (2011).11
This court recently concluded that a claim that a court
denied a defendant’s right to due process by admitting
testimonial hearsay at a probation revocation hearing,
without giving the defendant the opportunity to con-
front the declarant, was not preserved for appeal
because the defendant, at the hearing, never argued
to the trial court that it was required to conduct the
balancing test discussed in Shakir to determine
whether his right to due process had been violated. See
State v. Polanco, supra, 165 Conn. App. 571. Polanco
controls our determination as to whether the defen-
dant’s claim is preserved in the present case. As the
record reveals, in both the defendant’s initial objection
to the admission of the reports of the drug test results
and in the ensuing colloquy between defense counsel
and the prosecutor, the defendant never argued that
the trial court was required to conduct the balancing
test to determine whether the admission of the reports
of the drug test results denied him the right to due
process. Accordingly, this claim was not preserved for
appellate review.
The defendant contends that if his claim is unpre-
served, it is nonetheless reviewable pursuant to State
v. Golding, supra, 213 Conn. 239–240. Golding review,
as modified in In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015), allows this court to review an
unpreserved claim when 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 magni-
tude 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 harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) State v. Polanco, supra, 165 Conn.
App. 572.
The appellate tribunal is free to respond to the defen-
dant’s claim by focusing on whichever Golding prong
is most relevant. State v. Santana, 313 Conn. 461, 469–
70, 97 A.3d 963 (2014). ‘‘[T]he inability to meet any
one prong requires a determination that the defendant’s
claim must fail.’’ (Internal quotation marks omitted.)
State v. Soto, 175 Conn. App. 739, 755, 168 A.3d 605,
cert. denied, 327 Conn. 970, A. 3d (2017). We
conclude that the defendant’s claim does not satisfy
the first Golding prong.
Our Supreme Court discussed the first prong of Gold-
ing in 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), and stated: ‘‘[T]he defendant may raise
. . . a constitutional claim on appeal, and the appellate
tribunal 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 . . . .’’ (Footnotes omitted; internal quota-
tion marks omitted.) Id., 55–56. Our analysis of whether
the defendant’s claim satisfies the first Golding prong is
guided by our precedent in Polanco and Shakir. Polanco
and Shakir both held that an unpreserved claim that a
court violated a defendant’s right to due process by
admitting testimonial hearsay at a probation revocation
hearing without according the defendant the right to
confront the declarant did not satisfy the first Golding
prong because the defendant did not object to the
admission of such hearsay as a violation of the right to
due process during the probation revocation hearing.
State v. Polanco, supra, 165 Conn. App. 564–65, 576
(claim that court violated defendant’s right to due pro-
cess at probation revocation hearing by admitting labo-
ratory test results without affording defendant
opportunity to confront analyst who performed such
tests was not reviewable pursuant to Golding because
defendant did not object to admission of results as
violation of his right to due process); State v. Shakir,
supra, 130 Conn. App. 460, 468 (claim that court violated
defendant’s right to due process at probation revocation
hearing by admitting videotape of social worker’s inter-
view with minor complainant without affording defen-
dant opportunity to confront minor complainant was
not reviewable pursuant to Golding because defendant
did not object to admission of videotape as violation
of his right to due process).
Polanco and Shakir control our resolution of
whether the defendant’s claim in the present case is
reviewable pursuant to Golding.12 Both cases held that
in order for a claim that the admission of testimonial
hearsay at a probation revocation hearing, without the
opportunity to confront the declarant, is a violation of
the right to due process to be reviewable pursuant to
Golding, there must be an adequate record from the
probation revocation hearing that enables the appellate
tribunal to balance (1) the defendant’s interest in con-
fronting the witness against (2) the government’s rea-
sons for not producing the witness and the reliability
of the proffered hearsay. State v. Polanco, supra, 165
Conn. App. 575–76; State v. Shakir, supra, 130 Conn.
App. 468. In order for the record to be adequate, the
state must be given notice of the due process claim so
that it can present its reasons for not producing the
witness. See State v. Polanco, supra, 575. In both Shakir
and Polanco, the state was not given notice because
the defendants did not object to the admission of testi-
monial hearsay at their probation revocation hearings
on the grounds that it was a violation of their right to
due process. See State v. Polanco, supra, 575–76; State
v. Shakir, supra, 462, 468. As a result, the record in
each of those cases was inadequate for this court to
balance the defendant’s interest in confrontation
against the state’s reasons for not producing the witness
and the reliability of the proffered hearsay. State v.
Polanco, supra, 576; State v. Shakir, supra, 468.
Guided by our 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. The defendant, at
the probation revocation hearing, did not object to the
admission of the reports of the drug test results on the
basis that the admission of such results violated his
right to due process.13 Therefore, the state was not given
adequate notice of the defendant’s due process claim
and, accordingly, did not provide the possible reasons
for not calling the analysts who performed the drug
tests. As a result, we are unable to balance the state’s
interest in not producing the persons who performed
the drug tests against the defendant’s interest in con-
fronting those persons. Without this basis, we cannot
determine whether a violation of due process occurred
and, thus, the record is inadequate for Golding review
of the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Both parties have relied on the court’s oral ruling of April 2, 2015. The
record does not contain a signed transcript of the court’s decision, as is
required by Practice Book § 64-1 (a), and the defendant did not file a motion
pursuant to Practice Book § 64-1 (b) providing notice that the court had
not filed a signed transcript of its oral decision. Nor did the defendant take
any additional steps to obtain a decision in compliance with Practice Book
§ 64-1 (a). In some cases in which the requirements of Practice Book § 64-
1 (a) have not been followed, this court has declined to review the claims
raised on appeal due to the lack of an adequate record. Despite the absence
of a signed transcript of the court’s oral decision or a written memorandum
of decision, however, our ability to review the claims raised on the present
appeal is not hampered because we are able to readily identify a sufficiently
detailed and concise statement of the court’s findings in the transcript of
the proceeding. See State v. Brunette, 92 Conn. App. 440, 446, 886 A.2d 427
(2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006).
2
Amanti testified at the hearing that the defendant came to the Office of
Adult Probation on August 15, 2013, for a scheduled visit. On that date,
Amanti testified that the defendant stated that ‘‘he was proud of getting
high and getting drunk.’’
3
Amanti testified at the probation revocation hearing that because of
the defendant’s use of drugs and alcohol, a probation officer referred the
defendant to submit to treatment at the rehabilitation facility. Amanti testi-
fied that, despite the defendant’s awareness that submitting to treatment at
the rehabilitation facility was a condition of his probation, probation officers
learned that the defendant did not successfully complete the treatment
program at the rehabilitation facility. Moreover, Amanti testified that
because of his continued use of marijuana, the defendant was again referred
to submit to treatment at the rehabilitation facility. Amanti testified that
the defendant failed to complete the treatment program for a second time.
4
The defendant’s girlfriend, the female to whom the court refers, testified
at the probation revocation hearing that, while she was pregnant, the defen-
dant pulled her off a couch by grabbing her by the braids, took her phone,
and physically prevented her from leaving their shared apartment and when
she did attempt to leave the apartment, the defendant grabbed her by the
hair and struck her in the face with an open palm.
5
Charles Flynn, a New London police officer, testified at the probation
revocation hearing about arresting the defendant after he struck his pregnant
girlfriend. Flynn testified that as he approached the defendant’s apartment
building in a marked police car, the defendant ran inside the building when
he saw the police arrive. Flynn testified that, after he and another officer
searched the building, they found the defendant hiding in an unlit basement.
Furthermore, Flynn testified that after the defendant attempted to flee from
the officers, the defendant began to fight the officers as they arrested him,
jeopardizing the officers’ safety.
6
In Bullcoming, the Supreme Court was presented with the question of
‘‘whether the Confrontation Clause permits the prosecution to introduce a
forensic laboratory report containing a testimonial certification—made for
the purpose of proving a particular fact—through the in-court testimony of
a scientist who did not sign the certification or perform or observe the test
reported in the certification.’’ Bullcoming v. New Mexico, supra, 564 U.S.
652. The Supreme Court held ‘‘that surrogate testimony of that order does
not meet the constitutional requirement. The accused’s right is to be con-
fronted with the analyst who made the certification, unless that analyst is
unavailable at trial, and the accused had an opportunity, pretrial, to cross-
examine that particular scientist.’’ Id.
7
In Crawford, the Supreme Court stated, in a criminal trial: ‘‘Where testi-
monial evidence is at issue . . . the Sixth Amendment demands . . .
unavailability and a prior opportunity for cross-examination.’’ Crawford v.
Washington, supra, 541 U.S. 68.
8
General Statues § 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. Any such warrant shall
authorize all officers named therein to return the defendant to the custody
of the court or to any suitable detention facility designated by the court. . . .
‘‘(c) Upon notification by the probation officer of the arrest of the defen-
dant 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 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 the public defender, and
shall have the right to cross-examine witnesses and to present evidence in
such defendant’s own behalf. Unless good cause is shown, a charge of
violation of any of the conditions of probation or conditional discharge shall
be disposed of or scheduled for a hearing not later than one hundred twenty
days after the defendant is arraigned on such charge.
‘‘(d) If such violation is established, the court may: (1) Continue the
sentence of probation or conditional discharge; (2) modify or enlarge the
conditions of probation or conditional discharge; (3) extend the period of
probation or conditional discharge, provided the original period with any
extensions shall not exceed the periods authorized by section 53a-29; or (4)
revoke the sentence of probation or conditional discharge. If such sentence
is revoked, the court shall require the defendant to serve the sentence
imposed or impose any lesser sentence. Any such lesser sentence may
include a term of imprisonment, all or a portion of which may be suspended
entirely or after a period set by the court, followed by a period of probation
with such conditions as the court may establish. No such revocation shall
be ordered, except upon consideration of the whole record and unless such
violation is established by the introduction of reliable and probative evidence
and by a preponderance of the evidence.’’
9
Practice Book § 43-29 provides: ‘‘In cases where the revocation of proba-
tion is based upon a conviction for a new offense and the defendant is
before the court or is being held in custody pursuant to that conviction, the
revocation proceeding may be initiated by a motion to the court by a proba-
tion officer and a copy thereof shall be delivered personally to the defendant.
All other proceedings for revocation of probation shall be initiated by an
arrest warrant supported by an affidavit or by testimony under oath showing
probable cause to believe that the defendant has violated any of the condi-
tions of the defendant’s probation or his or her conditional discharge or by
a written notice to appear to answer to the charge of such violation, which
notice, signed by a judge of the superior court, shall be personally served
upon the defendant by a probation officer and contain a statement of the
alleged violation. All proceedings thereafter shall be in accordance with the
provisions of Sections 3-6, 3-9 and 37-1 through 38-23. At the revocation
hearing, the prosecuting authority and the defendant may offer evidence
and cross-examine witnesses. If the defendant admits the violation or the
judicial authority finds from the evidence that the defendant committed the
violation, the judicial authority may make any disposition authorized by
law. The filing of a motion to revoke probation, issuance of an arrest warrant
or service of a notice to appear, shall interrupt the period of the sentence
as of the date of the filing of the motion, signing of the arrest warrant
by the judicial authority or service of the notice to appear, until a final
determination as to the revocation has been made by the judicial authority.’’
10
We surmise that the defendant by citing to Crawford and its progeny
is asserting that the due process right to confrontation equates to the sixth
amendment right to confrontation at a criminal trial. Whether Crawford
applies at a probation revocation hearing has not been addressed by a
Connecticut appellate court. Although it is not necessary to address this
issue in order to resolve this appeal, we observe that, since Crawford, an
overwhelming majority of federal circuit and state appellate courts that
have addressed this issue have concluded that Crawford does not apply to
a revocation of probation hearing. See, e.g., United States v. Ferguson, 752
F.3d 613, 619 (4th Cir. 2014) (revocation of parole proceeding ‘‘does not
involve the Sixth Amendment’’); United States v. Lloyd, 566 F.3d 341, 343
(3d Cir. 2009) (‘‘[the] limited right to confrontation [afforded at a revocation
proceeding] stems from the Fifth Amendment’s Due Process Clause, not
from the Confrontation Clause of the Sixth Amendment’’); United States v.
Ray, 530 F.3d 666, 668 (8th Cir. 2008) (‘‘[t]he Sixth Amendment only applies
to ‘criminal prosecutions,’ and a revocation of supervised release is not part
of a criminal prosecution’’); United States v. Kelley, 446 F.3d 688, 691 (7th Cir.
2006) (‘‘Crawford changed nothing with respect to [probation] revocation
hearings’’ because the ‘‘limited confrontation right in revocation proceedings
was explicitly grounded in considerations of due process, not the Sixth
Amendment’’); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005)
(‘‘[n]othing in Crawford indicates that the Supreme Court intended to extend
the Confrontation Clause’s reach beyond the criminal prosecution context’’);
United States v. Hall, 419 F.3d 980, 985–86 (9th Cir.) (‘‘[w]e . . . see no
basis in Crawford or elsewhere to extend the Sixth Amendment right of
confrontation to supervised release proceedings’’), cert. denied, 546 U.S.
1080, 126 S. Ct. 838, 163 L. Ed. 2d 714 (2005); United States v. Kirby, 418
F.3d 621, 627 (6th Cir. 2005) (‘‘Crawford does not apply to revocation of
supervised release hearings’’); United States v. Aspinall, 389 F.3d 332, 343
(2d Cir. 2004) (‘‘[n]othing in Crawford, which reviewed a criminal trial,
purported to alter the standards set by Morrissey/[Gagnon v. Scarpelli, 411
U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)] or otherwise suggested
that the Confrontation Clause principle enunciated in Crawford is applicable
to probation revocation proceedings’’); State v. Carr, 167 P.3d 131, 134 (Ariz.
App. 2007); People v. Loveall, 231 P.3d 408, 420 n.18 (Col. 2010) (Eid, J.,
concurring in part and dissenting in part); Jenkins v. State, Docket No. 133,
2004, 2004 WL 2743556, *3 (Del. November 23, 2004) (decision without
published opinion, 862 A.2d 386 [Del. 2004]); Peters v. State, 984 So. 2d 1227,
1227 (Fla. 2008), cert. denied, 555 U.S. 1109, 129 S. Ct. 917, 173 L. Ed. 2d
127 (2009); Ware v. State, 658 S.E.2d 441, 444 (Ga. App. 2008); State v. Rose,
171 P.3d 253, 258 (Idaho 2007); Reyes v. State, 868 N.E.2d 438, 440 n.1 (Ind.
2007); State v. Marquis, 257 P.3d 775, 777 (Kan. 2011); State v. Michael, 891
So. 2d 109, 115 (La. App.) writ denied, 904 So. 2d 681 (La. 2005); Common-
wealth v. Wilcox, 841 N.E.2d 1240, 1243 (Mass. 2006); Blanks v. State, 137
A.3d 1074, 1087 (Md. Spec. App. 2016); People v. Breeding, 772 N.W.2d
810, 812 (Mich. App.) appeal denied, 773 N.W.2d 261 (Mich. 2009); State v.
Johnson, 842 N.W.2d 63, 73 (Neb. 2014); People v. Brown, 32 A.D.3d 1222,
1222, 821 N.Y.S.2d 348, appeal denied, 7 N.Y.3d 924, 860 N.E.2d 994, 827
N.Y.S.2d 692 (2006); Wortham v. State, 188 P.3d 201, 205 (Okla. Crim. App.
2008); State v. Gonzalez, 157 P.3d 266, 266 (Or. App. 2007); State v. Pompey,
934 A.2d 210, 214 (R.I. 2007); State v. Pauling, 639 S.E.2d 680, 682 (S.C.
App. 2006); State v. Divan, 724 N.W.2d 865, 870 (S.D. 2006); State v. Walker,
307 S.W.3d 260, 265 (Tenn. Crim. App. 2009); Trevino v. State, 218 S.W.3d
234, 239 (Tex. App. 2007); Henderson v. Commonwealth, 736 S.E.2d 901,
905 (Va. 2013); State v. Abd-Rahmaan, 111 P.3d 1157, 1160–61 (Wash. 2005).
11
In Shakir, this court observed that the principles in Morrissey are
codified in the Federal Rules of Criminal Procedure. State v. Shakir, supra,
130 Conn. App. 467. With respect to the right to confrontation, the Federal
Rules mandate that at a probation revocation hearing the defendant should
be afforded, ‘‘upon request, an opportunity to question any adverse witness,
unless the judge determines that the interest of justice does not require the
witness to appear.’’ Fed. R. Crim. P. 32.1 (b) (1) (B) (iii).
12
The defendant neither distinguishes the present case from Shakir and
Polanco, nor provides a basis for this court to conclude that those cases
were wrongly decided. The defendant asserts that the determination of
whether the admission of the reports of the drug test results, without
allowing the defendant to confront the analysts who analyzed the defendant’s
urine, amounted to a violation of the defendant’s due process rights only
requires this court to make a legal conclusion. Yet, the defendant’s argument
is not persuasive because the legal conclusion the defendant requests
requires the factual underpinnings as to why the analysts who performed
the drug tests were not called to testify. Those facts are not contained in
the record.
13
At the probation revocation hearing, defense counsel cited State v.
Giovanni P., 155 Conn. App. 322, 338 n.14, 110 A.3d 442, cert. denied, 316
Conn. 909, 111 A.3d 883 (2015), when objecting to the admission of the
reports of the drug test results. A footnote in that case states: ‘‘When the
trial court ruled on the objection [to out-of-court statements], it addressed
the defendant’s objection as to the credibility of the witness and the reliability
of the hearsay statements. Thus, the defendant’s claim on appeal that the
admission of [the out-of-court declarant’s] testimony denied him the right
to confront and cross-examine witnesses was not presented to the trial
court. We further note that, under Golding, the defendant’s claim cannot
be reviewed because it fails to satisfy the first prong, which requires that
the record is adequate to review the alleged claim of error. State v. Golding,
[supra, 213 Conn. 239]. Because the defendant failed to object to the admis-
sion of the testimony as a violation of his due process right to cross-examine
an adverse witness, the court had no occasion to consider whether there
was good cause not to allow confrontation. Therefore, the record is inade-
quate for review of that claim.’’ (Internal quotation marks omitted.) State
v. Giovanni P., supra, 155 Conn. App. 338 n.14.
In the present case, during the hearing, defense counsel argued that ‘‘had
there been an objection to hearsay . . . [in Giovanni P.]—it was not lab
result hearsay; it was testimony—[the Appellate Court] might have consid-
ered the question.’’ Although the defendant does not now argue on appeal
that citing to this case preserved his claim or developed an adequate record
for review, we observe that at the defendant’s probation revocation hearing,
defense counsel misconstrued the language in Giovanni P. Giovanni P. does
not, contrary to what defense counsel suggested, support the contention
that objecting to the admission of testimonial hearsay on hearsay grounds
alone at a probation revocation hearing creates an adequate record for an
appellate tribunal to review a claim that the admission of such testimonial
hearsay denies a defendant his due process right to confrontation. Moreover,
defense counsel’s incorrect interpretation of Giovanni P. neither alerted
the court that it needed to balance the defendant’s due process right to
confrontation against the state’s interest in not presenting the witness, nor
developed an adequate record for appellate review of the defendant’s claim
pursuant to Golding.