State v. Dunbar

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STATE OF CONNECTICUT v. TIMOLYN DUNBAR
(AC 40924)
DiPentima, C. J., and Alvord and Flynn, Js.
Syllabus
The defendant, who had been on probation in connection with her conviction
of the crimes of sale of narcotics and failure to appear in the first degree,
appealed to this court from the judgment of the trial court finding her
in violation of her probation. During her probation, the defendant was
arrested in connection with her alleged sale of narcotics to a confidential
informant. H, a police detective and member of a narcotics task force,
arranged for the confidential informant to make a controlled purchase
of crack cocaine. During the transaction, H and other task force members
kept the informant under constant surveillance. From a distance of 100
feet, H observed a woman approach the confidential informant and
engage in a hand-to-hand drug transaction. As the seller walked away,
she approached H’s location, walking past him at a distance of approxi-
mately five feet. The confidential informant later provided H with a
written statement about the drug transaction and told H the name by
which the seller had identified herself. After learning the possible identity
of the seller from a fellow police officer, H entered the information
into a probation database, obtained a photograph of the defendant and
immediately identified her as the seller. During the evidentiary phase
of the violation of probation hearing, H identified the defendant in court
as the seller of the crack cocaine. H also testified as to the reliability
of the confidential informant and the details of the drug transaction,
including how the seller had identified herself to the informant. The
trial court also admitted, without objection, the photograph of the defen-
dant from the probation database. At the conclusion of the hearing, the
trial court found that the defendant had violated the condition of her
probation that she not violate any criminal law of the United States or
this state. On the defendant’s appeal to this court, held:
1. The trial court’s finding that the defendant violated her probation was
not clearly erroneous and was supported by sufficient evidence and
testimony in the record; that court properly relied on and was free to
credit H’s testimony regarding the drug transaction and his identification
of the defendant as the seller of the crack cocaine, as the weight to be
given to the evidence and credibility determinations were solely within
the province of the court as the trier of fact.
2. The record was inadequate to review the defendant’s unpreserved claim
that her right to due process was violated because the trial court failed
to conduct an analysis pursuant to Neil v. Biggers (409 U.S. 188) concern-
ing the reliability of H’s out-of-court identification of the defendant,
which was based on the photograph of the defendant that H had obtained
from the probation database: the defendant did not move to suppress
or object to the admission of the subject photograph, or ask the court
to conduct an analysis pursuant to Neil, and, therefore, the trial court
did not make any factual findings concerning the suggestiveness of the
identification procedure or the reliability of the out-of-out identification
by H, which rendered the record inadequate for review of the claim
pursuant to State v. Golding (213 Conn. 233); moreover, because the
defendant’s due process challenge to the out-of-court identification was
not reviewable, her derivative claim that H’s in-court identification of
her violated her right to due process because it was irreparably tainted by
the state’s use of the unnecessarily suggestive out-of-court identification
procedure necessarily failed as well.
3. This court declined to review the defendant’s unpreserved claim that her
due process right to confront an adverse witness was violated when H
testified at the violation of probation hearing about how the seller had
identified herself to the confidential informant during the drug transac-
tion, which was based on her claim that the trial court had failed to
balance her interest in confronting the confidential informant against
the state’s reasons for not producing the informant at the hearing and
the reliability of the proffered hearsay; at the hearing, the defendant did
not object to that testimony or specifically argue that the identification
violated her due process right as a result of the inability to confront
the adverse witness, nor did she request that the trial court conduct a
balancing test pursuant to State v. Shakir (130 Conn. App. 458), and,
therefore, she failed to sustain her burden of establishing an adequate
record for review of her unpreserved claim pursuant to State v. Golding
(213 Conn. 233).
Argued January 10—officially released March 19, 2019
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two,
where the court, Holden, J., denied the defendant’s
motion for disclosure of the identity of a confidential
informant; thereafter, the matter was tried to the court;
judgment finding the defendant in violation of proba-
tion, from which the defendant appealed to this
court. Affirmed.
David B. Bachman, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Nicholas J. Bove, Jr., senior assis-
tant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Timolyn Dunbar,
appeals from the judgment of the trial court finding
her in violation of her probation pursuant to General
Statutes § 53a-32. On appeal, the defendant claims that
(1) the court improperly found a violation of probation
on the basis of insufficient evidence, (2) her right to
due process was violated by the identification proce-
dures used in this case and (3) her right to due process
was violated when the court denied her the right to
confront an adverse witness. We affirm the judgment
of the trial court.
The record reveals the following facts and procedural
history. On December 2, 2011, the defendant was sen-
tenced to fifteen years of incarceration, execution sus-
pended after three years, and three years of probation
following her guilty plea and conviction for selling nar-
cotics in violation of General Statutes § 21a-277 (a) and
failure to appear in the first degree in violation of Gen-
eral Statutes § 53a-172. The defendant was released
from the custody of the Commissioner of Correction
on February 14, 2014, and signed her conditions of
probation five days later. These conditions included the
standard requirement that the defendant not violate any
criminal law of the United States or Connecticut.
In 2015, Mark Heinmiller, a detective with the West-
port Police Department, was a member of the South-
west Narcotics Task Force (task force).1 On December
10, 2015, Heinmiller spoke with a confidential informant
and set up a controlled purchase of crack cocaine. Hein-
miller personally had used this confidential informant
approximately thirty times in the past and described
this individual as ‘‘proven and very reliable.’’
Later that day, Heinmiller and other members of the
task force observed the defendant approach the confi-
dential informant in the area of Park Avenue and Olive
Street in Bridgeport. The defendant provided the confi-
dential informant with crack cocaine in exchange for
money. The defendant then left the area, coming within
five feet of Heinmiller as he conducted his surveillance.
The confidential informant later provided Heinmiller
with a written statement about the drug sale. Heinmiller
also noted that the confidential informant had told him
that the seller of the crack cocaine identified herself
as ‘‘Timberlyn’’ or ‘‘Timberland.’’
At a later date, one of the officers who had partici-
pated in the surveillance of this controlled drug pur-
chase attended a meeting of the task force. At this
meeting, he informed the other members that the per-
son who had sold illegal drugs to the confidential infor-
mant went by the name of ‘‘Timberlyn’’ or
‘‘Timberland.’’2 Other officers suggested that this person
could have been the defendant. Following the meeting,
Heinmiller entered the defendant’s name into a ‘‘proba-
tion database’’ and, using a photograph contained
therein, identified her as the seller of the crack cocaine
to the confidential informant.
Heinmiller prepared an arrest warrant for the defen-
dant and executed it in March, 2016. The defendant
subsequently spoke with Heinmiller. She told him that
she could not recall the events of December 10, 2015,
and that she was ‘‘using drugs’’ at that time.
The state subsequently charged the defendant with
violating her probation pursuant to § 53a-32. The court,
Holden, J., found that the defendant had violated the
conditions of her probation by violating the criminal
laws of this state or the United States.3 It further ordered
that the defendant continue on probation and that the
original sentence remain in effect. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
found a violation of probation on the basis of insuffi-
cient evidence. Specifically, she argues that she was
identified as the seller of the crack cocaine ‘‘entirely
on unreliable hearsay from an unknown confidential
informant related in court by a law enforcement offi-
cer.’’4 The state counters that the court properly relied
on Heinmiller’s testimony regarding his observations
of the drug sale and his identification of the defendant
as the seller of the crack cocaine to support its conclu-
sion that she had violated her probation. We agree with
the state.
As an initial matter, we set forth the relevant legal
principles and our standard of review. ‘‘[T]he purpose
of a probation revocation hearing is to determine
whether a defendant’s conduct constituted an act suffi-
cient to support a revocation of probation . . . rather
than whether the defendant had, beyond a reasonable
doubt, violated a criminal law. The proof of the conduct
at the hearing need not be sufficient to sustain a viola-
tion of a criminal law. . . . Thus, a probation violation
need be proven only by a preponderance of the evi-
dence.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) State v. Megos, 176 Conn.
App. 133, 139, 170 A.3d 120 (2017).
A violation of probation hearing is comprised of an
evidentiary phase and dispositional phase. State v. Pres-
ton, 286 Conn. 367, 375–76, 944 A.2d 276 (2008). ‘‘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.’’ (Internal quotation marks omit-
ted.) State v. Fletcher, 183 Conn. App. 1, 8, 191 A.3d
1068, cert. denied, 330 Conn. 918, 193 A.3d 1212 (2018);
State v. Megos, supra, 176 Conn. App. 139.
‘‘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. . . . This
court may reverse the trial court’s initial factual deter-
mination that a condition of probation 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 support it . . . or when
although there is evidence to support 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 determination, every reasonable
presumption must be given in favor of the trial court’s
ruling.’’ (Citation omitted; internal quotation marks
omitted.) State v. Tucker, 179 Conn. App. 270, 282–83,
178 A.3d 1103, cert. denied, 328 Conn. 917, 180 A.3d
963 (2018); see also State v. Maurice M., 303 Conn. 18,
26–27, 31 A.3d 1063 (2011).
In the present case, Heinmiller arranged for the confi-
dential informant to make a controlled purchase of
crack cocaine on December 10, 2015. After placing the
order, the confidential informant proceeded to the area
of Park Avenue and Olive Street to obtain the drugs.
Heinmiller, along with other members of the task force,
kept the confidential informant under constant surveil-
lance. From a distance of 100 feet, Heinmiller observed
a woman approach the confidential informant and
engage in a hand-to-hand drug transaction. As the seller
walked away, she approached Heinmiller’s location,
walking past him at a distance of approximately five
feet.
After learning the possible identity of the seller from
a fellow officer, Heinmiller entered the information into
a database, obtained a photograph of her and ‘‘immedi-
ately identified her as [the] suspect.’’ Heinmiller also
identified the defendant as the seller at the violation of
probation hearing.
We cannot conclude that the evidence was insuffi-
cient to support the court’s finding that the defendant
had violated her probation. The court was free to credit
Heinmiller’s observations and identifications. On the
basis of the evidence presented at the violation of proba-
tion hearing, the court’s finding was not clearly errone-
ous. See, e.g., State v. Shakir, 130 Conn. App. 458,
468–69, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28
A.3d 345 (2011). To the extent that the defendant con-
tends that we should disregard Heinmiller’s identifica-
tion, we simply note that the weight to be given to
the evidence and credibility determinations are decided
solely by the trier of fact. Id., 469. This claim, therefore,
must fail.
II
The defendant next claims that her right to due pro-
cess was violated by the identification procedures used
in this case. Specifically, the defendant argues that the
court failed to perform the analysis of the reliability
of the out-of-court identification pursuant to Neil v.
Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401
(1972),5 and that, as a result, her federal right to due
process was violated.6 She further contends that the in-
court identification by Heinmiller violated her right to
due process because it was ‘‘irreparably tainted’’ by the
use of an unnecessarily suggestive out-of-court identifi-
cation procedure.7 The state counters that the defen-
dant failed to preserve her claim pertaining to the out-
of-court identification and that the record is inadequate
to review it under State v. Golding, 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). Finally,
the state asserts that the defendant’s derivative claim
regarding the in-court identification necessarily fails if
we decline to review the merits of the due process
challenge to the out-of-court identification. See, e.g.,
State v. Harris, 330 Conn. 91, 113–14, 191 A.3d 119
(2018). We agree with the state.
The following facts are necessary for our discussion.
As we previously stated, Heinmiller had observed the
controlled narcotics purchase from a distance of 100
feet and viewed the seller as she came within five feet
of his location following the transaction. Using informa-
tion from the confidential informant and other members
of the task force, he learned the possible name of the
seller. He entered this name into a probation database,
which then displayed a photograph. He ‘‘immediately
identified her as [the seller he had observed on Decem-
ber 10, 2015].’’ The state offered this photograph from
the probation database for admission into evidence. In
the absence of an objection from the defendant, the
court admitted this photograph into evidence. Hein-
miller previously had identified the defendant in the
courtroom at the violation of probation hearing.
In her appellate brief, the defendant does not claim
to have objected to the admission of the photograph into
evidence and acknowledges that she did not specifically
request the court to conduct an analysis pursuant to
Neil v. Biggers, supra, 409 U.S. 188. Instead, she
requests Golding review of her due process claim.
Under this familiar test, ‘‘[a] defendant can prevail on
a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Davis, 186 Conn. App. 385, 393–94, A.3d (2018),
cert. denied, 330 Conn. 965, A.3d (2019); see
also State v. Brown, 185 Conn. App. 806, 810, 198 A.3d
687 (2018) (defendant bears burden of providing ade-
quate record).
The state argues that this issue is controlled by State
v. Collins, 124 Conn. App. 249, 5 A.3d 492, cert. denied,
299 Conn. 906, 10 A.3d 523 (2010). In that case, the
defendant claimed, inter alia, that a pretrial identifica-
tion procedure was unnecessarily suggestive, thus taint-
ing an in-court identification at his violation of
probation hearing. Id., 251–52. In declining to review
this unpreserved claim, we stated: ‘‘Defense counsel
did not make a motion to suppress the identification
or object to the admission of [the pretrial] identification,
and no evidentiary hearing was held regarding the evi-
dence. Consequently, the court did not make any factual
findings or legal conclusions concerning the sugges-
tiveness of the procedures employed or the reliability
of [the] in-court identification. Without such findings,
the record is inadequate for our review. See State v.
Necaise, 97 Conn. App. 214, 219, 904 A.2d 245 (resolu-
tion of whether pretrial identification procedure vio-
lates defendant’s due process rights requires fact-
finding function of trial court), cert. denied, 280 Conn.
942, 912 A.2d 478 (2006); State v. Sargent, 87 Conn.
App. 24, 30, 864 A.2d 20, cert. denied, 273 Conn. 912,
870 A.2d 1082 (2005).’’ State v. Collins, supra, 256–57.
Similarly, in the present case, the court, in the
absence of a motion to suppress or challenge to the
admission into evidence of the photograph from the
probation database, did not make factual findings con-
cerning the out-of-court identification by Heinmiller. As
a result of the evidentiary lacuna, the record is inade-
quate, and the defendant’s claim regarding the out-of-
court identification fails to satisfy the first prong of
Golding. Additionally, the defendant’s dependent claim
regarding the in-court identification also must fail.
III
The defendant finally claims that the court violated
her right to due process when it denied her the right
to confront an adverse witness, namely, the confidential
informant. Specifically, she contends that the court
should have concluded that her strong interest in con-
frontation outweighed the state’s interest in protecting
the identity of informants.8 The state counters that the
record is inadequate to review this due process claim.
We agree with the state.
The following additional facts are necessary for our
discussion. Prior to the start of the violation of proba-
tion hearing, the defendant filed a motion for disclosure
of the identity of the confidential informant. In her
motion, dated January 17, 2017, the defendant argued
that the confidential informant was a necessary witness
because that individual was ‘‘the only other person that
was present during the alleged transaction.’’ She further
posited that the testimony of the confidential informant
would be beneficial to her, was material to the issues,
and would enable her to prepare an adequate defense.
In support of her motion, the defendant relied on Rovi-
aro v. United States, 353 U.S. 53, 61, 77 S. Ct. 623, 1 L.
Ed. 2d 639 (1957)9 and State v. Hernandez, 254 Conn.
659, 759 A.2d 79 (2000).10
On February 22, 2017, prior to the start of the eviden-
tiary phase of the violation of probation hearing, the
court heard argument regarding the motion for disclo-
sure. Defense counsel emphasized the ability of the
confidential informant to identify the seller of the crack
cocaine. In response, the state questioned whether the
due process concerns raised by the defendant applied
in a violation of probation hearing. Defense counsel
countered that even in a violation of probation hearing,
the defendant was entitled to due process, which
included the right to confront and cross-examine the
witnesses against her, including the confidential
informant.11
After hearing from the parties, the court noted that
it was not deciding the defendant’s guilt with respect
to the underlying charges, but, rather, whether she had
violated the terms of her probation. It then stated: ‘‘Evi-
dentiary concerns that are presented in a hearing [con-
cerning a] violation of probation are such that even
hearsay is admitted and the question becomes the relia-
bility of the hearsay offer and the rules of evidence are
in fact in terms of violation of probation proceeding,
quite relaxed in essence and . . . at this point . . .
your request . . . for the state to disclose . . . the
name of the confidential informant is denied.’’
During the evidentiary phase of the violation of proba-
tion hearing, Heinmiller testified that he personally had
worked with this confidential informant a minimum of
thirty times and characterized this individual as
‘‘proven’’ and ‘‘very reliable.’’ Heinmiller also stated that
disclosure of the confidential informant’s identity
would jeopardize both future police investigations and
his or her physical safety. At some point during Hein-
miller’s testimony, the state offered a written statement
from the confidential informant into evidence. The
court admitted this statement into evidence, over the
defendant’s objection that it constituted a due pro-
cess violation.12
Although the defendant directly challenged the denial
of her motion for disclosure of the identity of the confi-
dential informant before the trial court, citing Roviario
and Hernandez, she has not done so in this appeal.
Instead, the defendant has enlarged her due process
claim beyond her objection to the admission of the
confidential informant’s written statement to include
the name of the seller. Moreover, she has amalgamated
her due process claim with the denial of her motion.
Our focus, therefore, is directed to the legal issue
presented in the defendant’s appellate brief, that is,
whether her due process right to confront an adverse
witness in a violation of probation hearing was violated
when Heinmiller testified that he had learned how the
seller had identified herself to the confidential infor-
mant during the illicit drug transaction. Specifically, the
defendant argues in her appellate brief that the court
failed to balance her interest in confronting the confi-
dential informant against the state’s reasons for not
producing the confidential informant at the hearing and
the reliability of the proffered hearsay. See, e.g., State
v. Giovanni P., 155 Conn. App. 322, 335, 110 A.3d 442,
cert. denied, 316 Conn. 909, 111 A.3d 883 (2015). At the
hearing, the defendant did not object to this testimony,
nor did she specifically argue that this identification
violated her due process right as a result of the inability
to confront the adverse witness. The trial court, there-
fore, was not provided fair notice of claim articulated
to this court. See State v. Jorge P., 308 Conn. 740, 753–
54, 66 A.3d 869 (2013); State v. McKethan, 184 Conn.
App. 187, 193 n.2, 194 A.3d 293, cert. denied, 330 Conn.
931, 194 A.3d 779 (2018). We recently stated: ‘‘This court
has held that a defendant’s due process claim is unpre-
served where the defendant never argued to the trial
court that it was required to balance his interests in
cross-examining [an adverse witness] against the state’s
good cause for not calling the [adverse witness] as a
witness.’’ State v. Tucker, supra, 179 Conn. App. 278
n.4. Accordingly, we conclude that this issue was not
preserved for appellate review.
The defendant requests that we review her constitu-
tional claim pursuant to the Golding doctrine. We con-
clude that the record is inadequate, and, thus, this claim
fails to satisfy the first prong of Golding. See, e.g., State
v. Medina, 170 Conn. App. 609, 613, 155 A.3d 285 (unless
defendant has demonstrated that record is adequate for
appellate review, appellate tribunal will not consider
merits of defendant’s claim), cert. denied, 325 Conn.
914, 159 A.3d 231 (2017).
We begin our analysis by setting forth the limited due
process rights afforded to a defendant in a violation of
probation hearing. ‘‘Probation revocation proceedings
fall within the protections guaranteed by the due pro-
cess clause of the fourteenth amendment to the federal
constitution . . . . Probation itself is a conditional lib-
erty and a privilege that, once granted, is a constitution-
ally protected interest . . . . The revocation
proceeding must comport with the basic requirements
of due process because termination of that privilege
results in a loss of liberty.’’ (Internal quotation marks
omitted.) State v. Andaz, 181 Conn. App. 228, 232–33,
186 A.3d 66, cert. denied, 329 Conn. 901, 184 A.3d 1214
(2018). ‘‘[T]he minimum due process requirements for
revocation of [probation] include written notice of the
claimed [probation] violation, disclosure to the [proba-
tioner] of the evidence against him, the opportunity
to be heard in person and to present witnesses and
documentary evidence, the right to confront and cross-
examine adverse witnesses in most instances, a neutral
hearing body, and a written statement as to the evidence
for and reasons for [a probation] violation. . . .
Despite that panoply of requirements, a probation revo-
cation hearing does not require all of the procedural
components associated with an adverse criminal pro-
ceeding.’’ (Internal quotation marks omitted.) State v.
Barnes, 116 Conn. App. 76, 79, 974 A.2d 815, cert.
denied, 293 Conn. 925, 980 A.2d 913 (2009); see also
State v. Giovanni P., supra, 155 Conn. App. 334–35.
This court, on several occasions, has considered an
unpreserved due process claim that originated in the
inability to confront and cross-examine an adverse wit-
ness in a violation of probation hearing. For example,
in State v. Shakir, supra, 130 Conn. App. 468, this court
noted that the right to confront a witness in a violation
of probation hearing is not absolute. Furthermore, the
constitutional requirements for such a hearing were
codified in rule 32.1 of the Federal Rules of Criminal
Procedure, which provides that a defendant is entitled
to ‘‘question any adverse witness unless the court deter-
mined that the interest of justice does not require the
witness to appear . . . .’’ (Internal quotation marks
omitted.) Id., 467. Stated differently, ‘‘the court should
balance, on the one hand, the defendant’s interest in
confronting the [witness], against, on the other hand,
the government’s reasons for not producing the witness
and the reliability of the proffered hearsay.’’ (Internal
quotation marks omitted.) Id., 468. This court ultimately
concluded that the reasons for not producing the
adverse witness were not established in the proceeding
before the trial court, and, therefore, the record was
inadequate for Golding review. Id. As a result, this court
declined to consider the merits of the defendant’s claim.
Id., 466.
More recently, in State v. Tucker, supra, 179 Conn.
App. 281, this court expressly stated 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.’’ In Tucker, we
reasoned that the defendant had failed to sustain his
burden of establishing an adequate record for Golding
review of his due process claim that he was not able
to confront and cross-examine an adverse witness in a
violation of probation hearing where (1) the defendant
had failed to request the court to conduct the Shakir
balancing test, (2) the state had no notice of the due
process claim and, therefore, did not present its reasons
for not producing the witness at the hearing, (3) the
record was silent as why a 911 recording was used in
place of the witness and (4) the record was silent as
to whether the reasons for not producing the witness
amounted to good cause. Id. We concluded that ‘‘[u]nder
these circumstances, the state was not responsible for
the gap in the evidence, and it would be patently unfair
to address the defendant’s due process claim on the
basis of this record.’’ Id., 281–82; see also State v.
Polanco, 165 Conn. App. 563, 575–76, 140 A.3d 230, cert.
denied, 322 Conn. 906, 139 A.3d 708 (2016).
In the present case, the defendant failed to request
that the trial court conduct the Shakir balancing test.
We therefore conclude, as we did in Tucker, Polanco
and Shakir, that the defendant failed to sustain her
burden of establishing an adequate record for review,
as required by the first prong of Golding. Accordingly,
we decline to consider the merits of this unpreserved
appellate claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court did not set forth a detailed memorandum of decision specifi-
cally listing all of the facts set forth herein. On two occasions, however, it
specifically stated that Heinmiller was a credible witness.
2
In his report setting forth the details of the drug sale, Heinmiller indicated
that the confidential informant had told him that the seller of the drugs
identified herself as ‘‘Timberlyn’’ or ‘‘Timberland.’’ This report was not admit-
ted into evidence at the violation of probation hearing.
3
The record does not contain a transcript of the court’s decision, as is
required by Practice Book § 64-1 (a). Additionally, the defendant failed to
take any steps to obtain a decision in compliance with our rules of practice.
‘‘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.’’ Emeritus Senior Living v.
Lepore, 183 Conn. App. 23, 25 n.2, 191 A.3d 212 (2018).
In the present case, the ability of this court to review the claims raised
by the defendant in this appeal has not been hampered by the failure to
comply with our rules of practice. Nevertheless, we remind counsel of
the obligation to provide this court with a signed transcript or a written
memorandum of decision in accordance with Practice Book § 64-1. See State
v. Gansel, 174 Conn. App. 525, 526 n.1, 166 A.3d 904 (2017).
4
The defendant also contends that Heinmiller’s identification was ‘‘tainted
by the unnecessarily suggestive procedure utilized by the police’’ and, there-
fore, was unreliable and cannot form the basis for the finding that she
violated her probation. As we conclude in part II of this opinion, the record
is inadequate to review the defendant’s claim regarding the identification
procedures used in this case. Accordingly, this argument regarding the
sufficiency of the evidence also fails.
5
Our Supreme Court recently stated: ‘‘The test for determining whether the
state’s use of an unnecessarily suggestive identification procedure violates
a defendant’s federal due process rights derives from the decisions of the
United States Supreme Court in Neil v. Biggers, [supra, 409 U.S. 196–97],
and Manson v. Brathwaite, 432 U.S. 98, 113–14, 97 S. Ct. 2243, 53 L. Ed. 2d
140 (1977). As the court explained in Brathwaite, fundamental fairness is
the standard underlying due process, and, consequently, reliability is the
linchpin in determining the admissibility of identification testimony . . . .
Thus, the required inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification procedure was
unnecessarily suggestive; and second, if it is found to have been so, it
must be determined whether the identification was nevertheless reliable
based on examination of the totality of the circumstances.’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.) State v. Harris,
330 Conn. 91, 101, 191 A.3d 119 (2018).
6
As noted by the state, subsequent to the filing of the defendant’s appellate
brief, our Supreme Court issued its decision in State v. Harris, 330 Conn.
91, 191 A.3d 119 (2018). In that case, the defendant argued, inter alia, that
our Supreme Court should reject the framework of Neil v. Biggers, supra,
409 U.S. 199–200, for purposes of determining whether article first, § 8, of
the Connecticut constitution requires suppression of out-of-court and in-
court witness identifications. State v. Harris, supra, 114–15. After applying
the factors established in State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d
1225 (1992), it concluded that our state constitution afforded greater protec-
tion than the minimum standard set forth in the federal constitution. State
v. Harris, supra, 116.
7
See, e.g., State v. Dickson, 322 Conn. 410, 420, 141 A.3d 810 (2016) (both
initial identification, if unduly suggestive, and in-court identification may
be excluded if improper procedure in former created substantial likelihood
of misidentification), cert. denied, U.S. , 137 S. Ct. 2263, 198 L. Ed.
2d 713 (2017).
8
The defendant does not argue that there was a violation of her constitu-
tional rights under the confrontation clause of the sixth amendment to the
United States constitution but relies solely on the due process clause of the
fourteenth amendment.
9
‘‘In Roviaro v. United States, [supra, 353 U.S. 53], the United States
Supreme Court had occasion to define the nature and scope of the infor-
mant’s privilege. What is usually referred to as the informer’s privilege is
in reality the Government’s privilege to withhold from disclosure the identity
of persons who furnish information of violations of law to officers charged
with enforcement of that law. . . . The purpose of the privilege is the
furtherance and protection of the public interest in effective law enforce-
ment. The privilege recognizes the obligation of citizens to communicate
their knowledge of the commission of crimes to law-enforcement officials
and, by preserving their anonymity, encourages them to perform that obliga-
tion. . . .
‘‘Roviaro established a test for assessing challenges to the applicability
of the informant’s privilege. This test involves the balancing of two competing
interests: (1) the preservation of the underlying purpose of the privilege;
and (2) the fundamental requirements of fairness. . . . The underlying pur-
pose of the privilege is to protect the public interest in the flow of information
to law enforcement officials. The fundamental requirements of fairness
comprise the defendant’s right to a fair trial, including the right to obtain
information relevant and helpful to a defense. . . . Whether [disclosure is
warranted depends] on the particular circumstances of each case, taking
into consideration the crime charged, the possible defenses, the possible
significance of the informer’s testimony, and other relevant factors.’’ (Inter-
nal quotation marks omitted.) State v. Crespo, 145 Conn. App. 547, 568–69,
76 A.3d 664 (2013), aff’d, 317 Conn. 1, 115 A.3d 447 (2015).
10
In State v. Hernandez, supra, 254 Conn. 665, our Supreme Court noted
that the determination of whether the identity of a confidential informant
should be disclosed to a defendant lies within the discretion of the trial
court. It also noted that Roviaro involved the application of federal law.
Id., 666 n.7; see also State v. Richardson, 204 Conn. 654, 658, 529 A.2d 1236
(1987) (Roviaro did not rest on constitutional grounds).
11
Specifically, defense counsel stated: ‘‘At a violation of probation hearing,
the defendant is still afforded due process based on the fourteenth amend-
ment of the [United States] constitution and the right to confront and cross-
examine witnesses, so I do think that the ability to do that to the complaining
witness is applicable here.’’
12
Defense counsel objected as follows: ‘‘I’m not objecting based on hear-
say. I’m objecting based on [the defendant’s] fourteenth amendment constitu-
tional right to due process. She does have . . . the right to confront the
witnesses against her. That’s a constitutional right. Due process is implicated
in a violation of probation hearing.’’