State v. Orr

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STATE OF CONNECTICUT v. ANTHONY D. ORR
(AC 40886)
DiPentima, C. J., and Lavine and Elgo, Js.*
Syllabus
The defendant, who had been convicted of robbery in the first degree,
appealed to this court from the judgment of the trial court, revoking
his probation and sentencing him to five years of imprisonment. The
defendant had signed a form that contained conditions of probation
that required, inter alia, that he not violate any criminal law of this state,
that he submit to urinalysis and that he report to the Office of Adult
Probation as directed. The defendant thereafter was arrested on various
drug charges and then was separately charged with violation of proba-
tion. In the affidavit that his probation officer, F, prepared as part of
the warrant application for the defendant’s arrest, F incorporated the
facts that were stated in the police report concerning the drug charges
and the crimes with which the defendant was charged. F also averred
that the defendant had failed on eight occasions to report to the Office
of Adult Probation as directed and that a urine sample the defendant
provided had tested positive for the presence of marijuana. The state
thereafter informed the defendant that it intended to try the violation
of probation case before it tried the drug charges. When the probation
violation case was called for trial, the state informed the court that it
did not intend to offer facts from the drug case and that the basis of
the probation violation case was going to be the urinalysis and the
defendant’s failure to report to the probation office. F then testified
about the defendant’s failure to keep the eight appointments with the
probation office and the urine sample, and the defendant admitted in
the hearing that he had smoked marijuana. After the state rested, it
informed the court that it likely would present evidence as to the drug
charges when that case began during the next court proceeding and
moved to open the violation of probation hearing. The trial court granted
the state’s motion to open the violation of probation proceeding, during
which the state provided the defendant with photographs of the scene
of the drug crimes, and the state and the defendant thereafter presented
evidence as to the drug charges, which the court dismissed at the end
of the hearing. The court found that the defendant had violated the
conditions of his probation that required that he report to the probation
office as directed and that, in testing positive for the presence of mari-
juana, he had violated the law relative to possession of a controlled
substance. The court further found that the defendant had violated the
criminal laws of the state with regard to various drug offenses with
which he had not been charged. Held:
1. The defendant’s claim that the evidence was insufficient for the trial court
to find that he violated his probation was moot and, thus, had to be
dismissed, as there was no practical relief this court could grant him;
the court found that the defendant violated the criminal laws of this
state by possessing a controlled substance when he provided a urine
sample that tested positive for the presence of marijuana, the defendant,
who did not challenge that finding or his sentence on appeal, admitted
during trial that he smoked marijuana, and, thus, this court disregarded
the trial court’s incorrect finding that he violated criminal laws that
were not included in F’s arrest warrant application.
2. The defendant could not prevail on his unpreserved claim that the state
violated the rule of Brady v. Maryland (373 U.S. 83) by failing to disclose
to him photographs of the scene of the drug crimes, as the defendant
failed to demonstrate that the photographs were favorable to him and
how he was harmed or prejudiced by their late disclosure; although the
state disclosed to the defendant photographs of the crime scene after
having previously stated in court that there were no such photographs
in its file, the defendant failed to object to the admission of the photo-
graphs into evidence, the court made no finding that he was prejudiced
by the late disclosure, and one of the photographs that was admitted
was cumulative of other testimony.
3. This court found unavailing the defendant’s unpreserved claim that he
was denied due process and a fair trial, which was based on his assertion
that the state failed to adhere to the trial court’s order to file a motion
to proceed with the probation violation case before it tried the drug
charges; contrary to the defendant’s claim that he did not know that
the probation violation case was to be tried first, the court had informed
him that it was to be tried first, the state had made known its intention
to do so in his presence on several occasions in court, the court
addressed the defendant’s concerns about the timing of the proceedings,
he did not explain how the trial of the probation violation case before
the drug case harmed him or violated his constitutional rights, and, had
he been convicted of the drug charges, he faced a sentence of more
than forty years in prison.
4. The defendant had notice of the nature of the charges against him and,
thus, he was not denied his constitutional right to notice of those charges:
the conditions of probation that the defendant signed required that he
not violate the laws of this state, he was informed in court of the drug
charges and given a copy of the police report that listed the crimes with
which he was charged after his arrest in the drug case, and he had a
copy of F’s arrest warrant application that averred that he tested positive
for marijuana and failed to report as directed to the probation office,
which he admitted to in court; moreover, the defendant’s unpreserved
claim that his rights were violated as a result of the state’s failure to
file a bill of particulars was meritless, the defendant having sought a bill
of particulars in the drug case rather than in the probation violation case.
(One judge concurring separately)
5. The trial court’s comments during the proceedings did not violate the
Code of Judicial Conduct, and the court did not abuse its discretion
when it granted the state’s motion to open the violation of probation
case to present evidence of the drug charges:
a. The trial court did not violate the rule (2.10 (a)) of the Code of Judicial
Conduct applicable to public statements by a judge when it commented
during the probation violation proceeding about the state’s options
regarding the drug charges; rule 2.10 (a) pertains to extrajudicial com-
ments, not to statements made by the court during a proceeding before
it, and the statements the court made affected the time that it heard
the evidence and did not affect the outcome of the violation of proba-
tion proceedings.
b. The defendant did not demonstrate that he was prejudiced when the
trial court permitted the state to open the evidence, as he did not move
to dismiss the violation of probation charge, he was afforded time to
subpoena and call witnesses and to cross-examine the state’s witnesses,
and the court stated that he was on notice that he was charged with
violating the condition of his probation that he not violate any law of
this state and that the court could consider evidence presented at the
criminal trial when determining his sentence.
Argued February 19—officially released August 4, 2020
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Fairfield and transferred to the judicial dis-
trict of Waterbury, where the matter was tried to the
court, K. Murphy, J.; judgment revoking the defendant’s
probation, from which the defendant appealed to this
court. Appeal dismissed in part; affirmed.
Anthony D. Orr, self-represented, the appellant
(defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Terence D. Mariani, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. In this violation of probation case, the
self-represented defendant, Anthony D. Orr,1 appeals
from the judgment rendered by the trial court after it
found him in violation of his probation pursuant to
General Statutes § 53a-32. On appeal, the defendant
claims that his state and federal constitutional rights
to due process, to a fair trial, and to be convicted upon
sufficient evidence were violated.2 Specifically, he
claims that (1) there was insufficient evidence pursuant
to which the court could find by a preponderance of
the evidence that he had violated the terms of his proba-
tion; (2) the court found that he had violated state
laws with which he had not been charged; (3) the state
suppressed evidence in violation of Brady;3 (4) the trial
court abused its discretion by permitting the state to
try the violation of probation case before it tried a
criminal case that was then pending against him; (5)
he was denied due process because he did not know
the nature of the charges against him; and (6) the court
violated the Code of Judicial Conduct. With respect to
each of his claims, the defendant has requested that
we review them pursuant to 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),4
the plain error doctrine,5 or for abuse of discretion. On
the basis of our review of the record, the briefs, and
arguments of the parties, we conclude that the defen-
dant’s claim of insufficient evidence is moot and his
purported constitutional claims fail under the third
prong of Golding because the claimed constitutional
violations did not exist and the defendant was not
denied due process or a fair trial. We, therefore, dismiss
the defendant’s claim of insufficient evidence and other-
wise affirm the judgment of the trial court.
A summary of the facts underlying the defendant’s
appeal follows. On February 19, 2009, the defendant,
who had been found guilty of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (4), was
sentenced to twelve years of incarceration, execution
suspended after seven years, and five years of proba-
tion. In August, 2014, the defendant completed the
incarceration portion of his sentence and was released
on probation. On September 4, 2014, the defendant met
with his probation officer, Timothy Fenn, and signed
conditions of probation that required him, among other
things, (1) not to violate any criminal law of this state,
(2) to submit to urinalysis, (3) to report to the Office
of Adult Probation as directed, and (4) to inform his
probation officer if he were arrested.
On October 6, 2016, the defendant was arrested in
Waterbury and charged with two counts of possession
of narcotics with intent to sell, operation of a drug
factory, possession of less than four ounces of mari-
juana, and interfering with a search. The defendant’s
arrest resulted from an investigation undertaken by the
Waterbury police into the sale of narcotics by Jermaine
Robinson and an apartment at 119 Angel Drive in Water-
bury (apartment). Following the defendant’s arrest,
Fenn applied for a warrant for his separate arrest on
the ground that the defendant had violated his proba-
tion. The defendant was arrested in November, 2016,
and charged with violation of probation pursuant to
§ 53a-32. The defendant’s violation of probation hearing
was held in June, 2017. After the court, K. Murphy, J.,
found that the defendant had violated the conditions
of his probation and that his rehabilitation level was
minimal, the court revoked his probation and sentenced
the defendant to five years of imprisonment.6 The defen-
dant appealed.
In the section of his brief concerning the nature of
the proceedings, the defendant stated: ‘‘On June 16,
2017, the court found the defendant violated condition
#1 of probation, and based on that finding sentenced
the defendant to [five years of] imprisonment.’’ The
defendant’s statement is inaccurate. Although the court
first had to determine whether the defendant had vio-
lated the conditions of his probation, the court sen-
tenced the defendant to five years of incarceration
because, during the dispositional phase of the proceed-
ing, the court found that the defendant’s rehabilitation
level was minimal and the beneficial purposes of proba-
tion were no longer being met. In view of the defen-
dant’s lack of understanding regarding the violation of
probation process, we set forth, in general and in detail,
the law regarding violation of probation proceedings
before we address his specific claims.
Section 53a-32, the probation violation statute, pro-
vides in relevant part: ‘‘(a) At any time during the period
of probation . . . 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 . . . . (c) [U]pon
an arrest by warrant . . . 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 . . . . (d) If
such violation is established, the court may . . .
extend the period of probation . . . . No such revoca-
tion 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.’’
‘‘All that is required for revocation of probation is
that the court be satisfied that the probationer has
abused the opportunity given him to avoid incarcera-
tion. . . . Moreover, even though revocation is based
upon [criminal] conduct, the [c]onstitution does not
require that proof of such conduct be sufficient to sus-
tain a criminal conviction.’’ (Citations omitted.) Rober-
son v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). A
probationer whose condition of probation requires that
the probationer not violate any criminal law may violate
that condition without being convicted of a crime.
See id.
‘‘The primary purpose of a probation proceeding is
to determine whether the defendant is complying with
the terms of his probation. . . . Appellate review dis-
tills to a review of the reasonableness of two findings,
whether there was a violation of a condition of proba-
tion, and whether probation should be revoked because
its rehabilitative purposes are no longer being served.’’
(Citation omitted; emphasis added.) State v. Baxter, 19
Conn. App. 304, 321, 563 A.2d 721 (1989). ‘‘While the
defendant is on probation, he remains in the legal cus-
tody and under the control of the [Commissioner] of
[C]orrection. A [probation] revocation proceeding is
concerned not only with protecting society, but also,
and most importantly, with rehabilitating and restoring
to useful lives those placed in the custody of the [Com-
missioner of Correction].’’ (Internal quotation marks
omitted.) Payne v. Robinson, 10 Conn. App. 395, 401,
523 A.2d 917 (1987), aff’d, 207 Conn. 565, 541 A.2d 504,
cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d
230 (1988).
Practice Book § 43-29 provides in relevant part that,
unless the revocation of probation is based upon a
conviction for a new offense, ‘‘proceedings for revoca-
tion of probation shall be initiated by an arrest warrant
supported by an affidavit . . . showing probable cause
to believe that the defendant has violated any of the
conditions of the defendant’s probation . . . . At the
revocation hearing, the prosecuting authority and the
defendant may offer evidence and cross-examine wit-
nesses. 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. . . .’’ (Emphasis added.)
‘‘Probation revocation proceedings fall within the
protections guaranteed by the due process clause of
the fourteenth amendment to the federal constitution.
. . . Probation itself is a conditional liberty and a privi-
lege that, once granted, is a constitutionally protected
interest. . . . The revocation proceeding must com-
port with the basic requirements of due process because
termination of that privilege results in a loss of liberty.
. . . [T]he minimum due process requirements of revo-
cation 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 [probation] violation.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Gauthier, 73 Conn. App. 781, 789, 809 A.2d 1132 (2002),
cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).
‘‘Due process requires, at a minimum, that an individ-
ual receive notice of probation conditions . . . to
ensure that the probationer understands the precise
terms of his obligations and that he risks termination
of his probation if he fails to meet those obligations.
Written conditions of probation formally imposed by a
court order usually provide notice sufficient to satisfy
due process. . . . Where criminal activity forms the
basis for the revocation of probation, the law imputes
to the probationer the knowledge that further criminal
transgressions will result in a condition violation and
the due process notice requirement is similarly met. An
inherent condition of any probation is that the proba-
tioner not commit further violations of the criminal
law while on probation.’’ (Footnote omitted; internal
quotation marks omitted.) State v. Reilly, 60 Conn. App.
716, 728, 760 A.2d 1001 (2000). Recitation of the particu-
lar charges, both before and during the probation viola-
tion hearing, is sufficient notice to the defendant. State
v. Hooks, 80 Conn. App. 75, 79, 832 A.2d 690, cert.
denied, 267 Conn. 908, 840 A.2d 1171 (2003); see also
State v. Pierce, 64 Conn. App. 208, 215, 779 A.2d 233
(2001) (at probation violation hearing, in which testi-
mony was offered concerning entire incident, defendant
was made aware, both before and during hearing, of
evidence in support of charges).
‘‘[U]nder § 53a-32, a probation revocation hearing has
two distinct components. . . . The trial court must
first conduct an adversarial evidentiary hearing to deter-
mine whether the defendant has in fact violated a condi-
tion of probation. . . . If the trial court determines that
the evidence has established a violation of a condition
of probation, then it proceeds to the second component
of probation revocation, the determination of whether
the defendant’s probationary status should be revoked.
On the basis of its consideration of the whole record,
the trial court may continue or revoke the sentence of
probation . . . and, if such sentence is revoked,
require the defendant to serve the sentence imposed or
impose any lesser sentence. . . . In making this second
determination, the trial court is vested with broad dis-
cretion.’’ (Internal quotation marks omitted.) State v.
Corringham, 155 Conn. App. 830, 837–38, 110 A.3d
535 (2015).
‘‘The standard of review in violation of probation
matters is well settled. To support a finding of probation
violation, the evidence must induce a reasonable belief
that it is more probable than not that the defendant has
violated a condition of his or her probation. . . . In
making its factual determination, the trial court is enti-
tled to draw reasonable and logical inferences from the
evidence. . . . This court may reverse the trial court’s
initial factual determination that a condition of proba-
tion has been violated only if we determine that such
a finding was clearly erroneous. . . . A finding of fact
is clearly erroneous when there is no evidence to sup-
port it . . . or when although there is evidence to sup-
port it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed. . . . In making this determina-
tion, every reasonable presumption must be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Id., 838. ‘‘A fact is more probable than
not when it is supported by a fair preponderance of the
evidence.’’ (Internal quotation marks omitted.) State v.
Repetti, 60 Conn. App. 614, 619, 760 A.2d 964, cert.
denied, 255 Conn. 923, 763 A.2d 1043 (2000).
‘‘Our law does not require the state to prove that all
conditions alleged were violated; it is sufficient to
prove that one was violated.’’ (Emphasis added.) State
v. Widlak, 74 Conn. App. 364, 370, 812 A.2d 134 (2002),
cert. denied, 264 Conn. 902, 823 A.2d 1222 (2003). ‘‘It
is clear that a finding of a conviction or the commission
of the act is sufficient to support a revocation of proba-
tion.’’ (Emphasis added.) Payne v. Robinson, supra, 10
Conn. App. 403.
‘‘The standard of review of the trial court’s decision
at the sentencing phase of the revocation of probation
hearing is whether the trial court exercised its discre-
tion properly by reinstating the original sentence and
ordering incarceration. . . . In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
where an abuse of discretion is manifest or where injus-
tice appears to have been done. . . . In determining
whether to revoke probation, the trial court shall con-
sider the beneficial purposes of probation, namely reha-
bilitation of the offender . . . . The important inter-
ests in the probationer’s liberty and rehabilitation must
be balanced, however, against the need to protect the
public.’’ (Citation omitted; internal quotation marks
omitted.) State v. Altajir, 123 Conn. App. 674, 688, 2
A.3d 1024 (2010), aff’d, 303 Conn. 304, 33 A.3d 193
(2012). ‘‘[A] defendant who seeks to reverse the exer-
cise of judicial discretion . . . assumes a heavy burden
. . . .’’ (Internal quotation marks omitted.) State v.
Repetti, supra, 60 Conn. App. 620.
A detailed recitation of the facts is necessary to place
in context the claims that the defendant has raised
on appeal.7 When the defendant was arrested by the
Waterbury police on October 6, 2016, he was charged
with operation of a drug factory in violation of General
Statutes § 21a-277 (c), possession of narcotics with
intent to sell in violation of General Statutes § 21a-
278 (a), possession of narcotics with intent to sell in
violation of General Statutes § 21a-278 (b), possession
of less than four ounces of marijuana in violation of
General Statutes § 21a-279 (a) (1), and interfering with
a search in violation of General Statutes § 54-33d (drug
charges). After the defendant’s arrest on the drug
charges, Fenn filed an application for the defendant’s
arrest for violation of probation that included an affida-
vit in which Fenn incorporated the facts stated in the
police report and the drug crimes with which the defen-
dant had been charged.8 The defendant was arrested
for violation of probation in November, 2016.
The drug charges were filed in the judicial district of
Waterbury; the probation violation charge was filed in
Bridgeport in the judicial district of Fairfield. On Janu-
ary 19, 2017, the court, Fasano, J., canvassed the defen-
dant and granted his request to represent himself on
the drug charges. At that hearing, Maureen Platt, the
state’s attorney, informed the defendant of the state’s
intention to try the violation of probation charge before
it tried the drug charges. On March 1, 2017, in Bridge-
port, the defendant appeared before the court, Devlin,
J., on the state’s motion to transfer the violation of
probation charge to Waterbury. Initially, the defendant
opposed the transfer, but following a colloquy with
Judge Devlin,9 the defendant agreed to the transfer.
On March 27, 2017, in Waterbury, Judge Fasano again
canvassed the defendant and granted his request to
represent himself in the violation of probation case.
The defendant again stated that he wanted the drug
charges to be tried before the violation of probation
charge. The court ordered the state to file a motion to
proceed with the probation of violation case before the
drug charges and put both cases on the trial list. On June
5, 2017, the defendant filed a motion for a speedy trial.10
The probation violation case was called for trial on
June 14, 2017. At that time, the defendant represented
to Judge Murphy that he had not been able to reach his
witnesses. Terence D. Mariani, senior assistant state’s
attorney,11 then stated: ‘‘The basis for the violation
included a new arrest. I think those witnesses [the
defendant] mentioned may be relevant to that. The state
at the violation of probation hearing does not intend
to put on facts from [the drug] case. . . .
‘‘The Court: So, you’re withdrawing that as a potential
violation of his probation, are you?
‘‘[Mariani]: Yes. It’s in the warrant. So, I’m not techni-
cally withdrawing it. I’m highlighting for the fact the
basis of the violation is going to be dirty urines and
failure to report, which are also mentioned in the
warrant.’’
When the presentation of evidence commenced, the
state presented testimony from Fenn that the defendant
failed to keep eight appointments at the Office of Adult
Probation as directed and that his January 20, 2015
urine sample tested positive for the presence of mari-
juana. When confronted with the results of the urine
analysis, the defendant admitted that he had smoked
marijuana. The state then rested. Prior to that day, the
defendant had not been able to locate his witnesses,
but with the assistance of his standby counsel, Tashun
Bowden-Lewis, he issued subpoenas that morning. The
court informed the defendant that the subpoenas had
not been issued eighteen hours in advance of the time
for the person summoned to appear12 and that the sub-
poenas were not yet binding, and, therefore, the wit-
nesses would not appear that day. The court then
adjourned for the luncheon recess.
When the hearing reconvened, the court stated: ‘‘Let
me just throw something out. We are in the process of
this hearing. It could be reopened. I will indicate on
the record that, based on the evidence I’ve heard thus
far, I would be inclined to find that [the defendant]
violated his probation, but I would also be disinclined
to actually sentence him to any jail time. I’m just telling
you. And the reason I say that is because, to me, if this
is the extent of the state’s violation, this is not a five-
years-to-serve violation. On the other hand, if I were
convinced by the preponderance of the evidence that
the defendant was committing crimes while he was on
probation, then I would probably give him the
maximum.’’
Mariani then stated: ‘‘[M]aybe I should have said this
earlier. The state’s intention was to present the violation
evidence, which I have done, and then return the proba-
tion officer—some judges do it in a bifurcated hearing—
whether or not probation serves any useful purpose at
this point. There is evidence that I would like to present
and argue whether or not probation serves any useful
purpose through the probation officer.’’
The court then stated: ‘‘I’m being honest [with] both
sides. If I were to rule right now, I told you what my
ruling would be on the violation, and I told you what my
position would be regarding the appropriate sentence.
Now, this hearing is not over yet. And there still is a
pending case. I’m aware of that. But I don’t know the
details of that case. So, Mr. Orr, I’ve given you a little
indication. Ordinarily, I wouldn’t do that on the record,
but you’re representing yourself. We can only communi-
cate on the record. So, I’m just sort of telling you what
I’m thinking. That doesn’t mean that after, if you put
on a witness, you could convince me that you didn’t
violate your probation. I don’t know that you could,
but you might. . . . [W]hat I’m saying is, I think there
is sufficient evidence to believe you violated the proba-
tion, but from what I understand, based on what I’ve
heard, this was your first violation. And so, I probably,
at this point now, as I said, when we first started, the
state has the opportunity at the time of the sentencing,
as you do, to convince me that probation would not
serve any useful purpose and that a jail sentence is
appropriate. . . . So, anyway, do you still wish to be
able to put on the witness[es] in regard to whether you
violated your probation or not?’’ (Emphasis added.) The
defendant stated: ‘‘No, Your Honor.’’
The court continued, stating: ‘‘Okay. Here’s how I
would leave it: We’re supposed to start jury selection
[on the criminal charges] on Friday. The state has rested
on the VOP13 hearing. I would give them leave to reopen
the VOP hearing if they wanted to include evidence
of another crime. It has happened that the court . . .
presiding over a jury trial would listen to the evidence
during the jury trial and then also make findings
regarding whether you violated your probation or not.
So, I guess I’m leaving that out as a possibility. Okay.
. . . I think we are right now, since the state had prelim-
inarily rested and you wanted to present some evidence,
I think the best procedure is to plan on starting jury
selection on Friday.’’ (Emphasis added; footnote
added.) Thereafter, the court instructed the defendant
and the state with respect to pretrial motions and the
schedule for jury selection two days hence. The court
also advised the defendant to consult with Bowden-
Lewis.
Mariani thereafter stated: ‘‘The court knows the situa-
tion, that I came into the file this morning when [Senior
Assistant State’s] Attorney [Don E.] Therkildsen [Jr.]
went home, or to the doctor, ill. I had originally indi-
cated [that] we were just going to proceed on the techni-
cal violations. Given the fact I have until Friday and
given the court’s comments, I think the defendant
should be aware he should have any witnesses available
Friday morning that he thinks are necessary to dispute
the facts of the underlying case because I think it is
likely, given the time and the court’s comments, that I
will present evidence as to the allegations in the drug
file.’’
The court stated to the defendant that the state was
moving to open the violation of probation hearing and
asked the defendant his position in that regard. The
defendant objected to the state’s opening its case. The
court asked the defendant the basis of his objection,
to which the defendant responded: ‘‘The state has said
that they were—they rested their case on the violation,
on the technical violations, and they were not pursuing
the underlying [drug] charge. In pursing the underlying
charge, I will have to be found guilty of violation a
criminal statute.’’ The court explained to the defendant
the difference between the state’s burden of proof at
a criminal trial and a violation of probation hearing.
The court asked the defendant whether there was any
prejudice to him if the state opened the violation of
probation hearing. The defendant stated: ‘‘Yes . . . I
won’t be able to get in contact with any witnesses. I
have no legal research to defend myself against the
claim of violation of probation for whatever reason they
want to reopen.’’ The court overruled the defendant’s
objection, stating to the defendant that, ‘‘before you got
here today at 10 or 11:15 this morning, you were under
the impression this was a violation of probation hearing
on everything that’s indicated in the violation of proba-
tion warrant, which I understand includes both the tech-
nical violations, as well as the new crime. . . . There
was an issue whether you could get a witness. Your
witness was not subpoenaed for today, anyway. You
were going to ask for a continuance anyway in order
to present those witnesses. And really nothing has—I
don’t see any prejudice to you for allowing the state to
reopen the file. I will say, you were aware of the nature
of the violations alleged by the state prior to today,
which included that you violated the laws of the state
of Connecticut.’’
The violation of probation hearing continued on Fri-
day, June 16, 2017, when the state presented evidence
on the drug charges, including testimony from Detective
Eric Medina of the Waterbury Police Department, who
observed both Robinson and the defendant selling her-
oin in the parking lot of the apartment, and Officer Keith
Shea, who arrested the defendant at the apartment soon
thereafter. Shea also testified that he found on the
defendant’s person a glass smoking pipe used for smok-
ing crack. Officer Mark Santopietro testified that 1960
packages of heroin were found on a coffee table adja-
cent to where the defendant had been sitting in the
apartment. The defendant testified on his own behalf
and presented testimony from two witnesses, Alexan-
der Epps, the operator of one of the vehicles, to whom
the defendant sold narcotics, and Markesha Dennis, a
friend of the defendant, who leased the apartment.
At the conclusion of the adjudicatory portion of the
violation of probation proceeding, the court found that
the defendant had violated the conditions of his proba-
tion. The court stated that there are ‘‘really two sections
of your probation conditions that are applicable here.
And I’m drawing this from state’s exhibit 3. One is, do
not violate any criminal laws of the United States, any
other state and the state of Connecticut. And, secondly,
report as the probation officer tells you. I find that you
did violate the report as the probation officer tells you.
[Fenn] testified to a number of occasions where you
had an appointment to be at the probation office and
you did not show. I find that . . . was very credible.’’14
In addition, the court stated: ‘‘I also find that, in test-
ing positive for marijuana, THC, there is circumstantial
evidence that the defendant violated the law as far as
possession of [a] controlled substance. The state has
put less weight on that type of violation of the law, but
it is still against the law in the state of Connecticut
to possess marijuana. So, I find by a fair preponderance
of the evidence that the defendant has violated that
portion. [The defendant] has admitted to violating that
law, as far as possession of cocaine, but that was not
alleged as a basis. So, while I do believe that the state’s
proved that, I’m not really relying on that as a basis for
my findings.15
‘‘I think the biggest finding I had here, though, is, I
do find that the defendant has violated the criminal law
of the state of Connecticut in regard to conspiracy to
sell narcotics, § 53a—I want to say 48. I should have
written down the statute.16 And, by way of § 21a-277
(a), he has violated conspiracy to possess with intent
to sell in violation of Connecticut 53a-48 and 21a-277
(a). He has violated the statute charging him with pos-
session with intent to sell, violation of § 21a-277 (a).
He has violated the statute for 21a-267 (a), possession
of drug paraphernalia.’’17 (Emphasis added; footnotes
added.)
With respect to the dispositional portion of the pro-
ceedings, Mariani argued that, given the defendant’s
criminal record, continued probation would serve no
useful purpose. In 2005, the defendant was convicted
of assault in the first degree and given a six year jail
sentence, suspended after thirty months. The defendant
violated his probation and was discharged from it
unsuccessfully. On February 19, 2009, while on proba-
tion for assault in the first degree, the defendant was
arrested and convicted of possession of a pistol without
a permit. He was given a five year prison sentence. The
defendant was convicted of robbery in the first degree,
which was the sentence under which he was then being
held. Mariani argued that the defendant had a significant
criminal history but was given the benefit of probation.
During his probation, however, the defendant failed to
report to his probation officer, used crack cocaine, and
became involved in the selling of narcotics. Mariani
concluded that the defendant was not a person who
should be on probation any longer, noting that over-
doses were becoming the primary cause of death among
young people in Waterbury. For the defendant to be
involved in that kind of activity while he was on proba-
tion indicated to Mariani that the defendant was not
the kind of person who should be on probation. Mariani
further argued that the state was trying to rehabilitate
the defendant and give him opportunities to help him-
self, but primarily the state was protecting the com-
munity.
The court revoked the defendant’s probation, stating
to the defendant: ‘‘Based on your . . . one prior viola-
tion of probation, two very serious felonies, [and] now
being involved in what I view as also a very serious
felony, I feel like the rehabilitation level is minimal.
And, I think, with your record and with the violations
that have been established, the appropriate sentence
is you are now . . . committed to the custody of the
Commissioner of Correction for a period of five years
to serve.’’ The defendant appealed.
I
The defendant claims that there was insufficient evi-
dence by which the court could find that he had ‘‘vio-
lated condition # 1 of probation,’’ i.e., that he not violate
the laws of this state.18 Specifically the defendant claims
that there was insufficient evidence by which the court
could find ‘‘by the reliable and probative evidence stan-
dard and the fair preponderance of the evidence that
he was selling narcotics,’’ citing State v. Davis, 84 Conn.
App. 505, 854 A.2d 67, cert. denied, 271 Conn. 922, 859
A.2d 581 (2004). We need not address the defendant’s
claim regarding the possession and sale of narcotics
because we agree with the defendant’s separate second
claim that the court found that he violated state narcot-
ics laws with which he had not been charged. Moreover,
the defendant cannot prevail because the court found
that he possessed marijuana, as charged, and thus vio-
lated the laws of the state. We, therefore, dismiss the
defendant’s claim of insufficient evidence as moot, as
there is no relief that we can grant him.
The following facts inform our decision. When the
defendant met with Fenn on September 4, 2014, he
signed conditions of probation. ‘‘Condition 1’’ provided:
‘‘Do not violate any criminal law of the United States,
this state or any other state or territory.’’ On October
6, 2016, the defendant was arrested in Waterbury and
charged with violations of §§ 21a-277 (c), 21a-278 (a),
21a-278 (b), 21a-279 (a) (1) and 54-33d. Fenn set forth
those charges in the application for the defendant’s
arrest for violation of probation. The trial court found
that the defendant violated §§ 53a-48 and 21a-277 (a),
and §§ 21a-277 (a) and 21a-267 (a), which were not
included in the application for the arrest warrant.19 ‘‘[A]
defendant cannot be found in violation of probation on
grounds other than those with which he is charged
. . . .’’ State v. Carey, 30 Conn. App. 346, 349, 620 A.2d
201 (1993), rev’d on other grounds, 228 Conn. 487, 636
A.2d 840 (1994). We, therefore, will disregard the court’s
findings on the drug charges, as this court did in Carey,
where the trial court made a similar error in finding
that the probationer had violated a condition of proba-
tion that was not alleged.20 See id.
The application for the defendant’s arrest for viola-
tion of probation also alleged that the defendant ren-
dered a urine sample that tested positive for the pres-
ence of THC. The court found that in testing positive
for marijuana, THC, there was circumstantial evidence
that the defendant violated the law because he pos-
sessed a controlled substance. The court therefore
found that that the defendant violated ‘‘condition 1’’ of
his conditions of probation. ‘‘Our law does not require
the state to prove that all conditions alleged were vio-
lated; it is sufficient to prove that one was violated.’’
State v. Widlak, supra, 74 Conn. App. 370. ‘‘It is clear
that a finding of . . . the commission of the act is suffi-
cient to support a revocation of probation.’’ Payne v.
Robinson, supra, 10 Conn. App. 403.
In his affidavit in support of the violation of probation
arrest warrant, Fenn alleged that the defendant pro-
duced a urine sample that tested positive for the pres-
ence of marijuana, a controlled substance. The defen-
dant admitted that he smoked marijuana. The court
found that the defendant violated condition 1 of his
probation on the basis of his having possessed a con-
trolled substance. The defendant has not challenged
that finding on appeal. The defendant, therefore, stands
in violation of the first condition of his probation on
the basis of possession of a controlled substance.
Mootness implicates this court’s subject matter and
raises a question of law subject to plenary review. See
St. Juste v. Commissioner of Correction, 328 Conn.
198, 208, 177 A.3d 1144 (2018). Jurisdiction is a thresh-
old matter and may be raised at any time, including sua
sponte by the court. See In re Shawn S., 66 Conn. App.
305, 309, 784 A.2d 405 (2001), aff’d, 262 Conn. 155, 810
A.2d 799 (2002). ‘‘It is a [well settled] general rule that
the existence of an actual controversy is an essential
requisite to appellate jurisdiction; it is not the province
of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.’’
(Internal quotation marks omitted.) Burbank v. Board
of Education, 299 Conn. 833, 839, 11 A.3d 658 (2011).
‘‘The test for determining mootness of an [issue on]
appeal is whether there is any practical relief this court
can grant the appellant. . . . If no practical relief can
be afforded to the parties, the appeal must be dis-
missed.’’ (Citation omitted; internal quotation marks
omitted.) Edgewood Village, Inc. v. Housing Authority,
54 Conn. App. 164, 167, 734 A.2d 589 (1999). In the
present case, the court found that the defendant vio-
lated the laws of the state by possessing a controlled
substance, a finding the defendant has not challenged.
He also has not challenged his sentence on appeal. The
defendant, therefore, stands in violation of the condi-
tions of his probation by his own admission and there
is no relief that can be granted to him. The claim of
insufficient evidence is moot and, therefore, must be
dismissed.
II
The defendant’s third claim is that the state violated
Brady v. Maryland, supra, 373 U.S. 83, by failing to
disclose to him photographs of the crime scene and
contraband.21 We do not agree.
‘‘[S]uppression by the prosecution of evidence favor-
able to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith
of the prosecution.’’ Id., 87. ‘‘To prevail on a Brady
claim, the defendant bears a heavy burden to establish:
(1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that
it was material.’’ (Emphasis added; internal quotation
marks omitted.) State v. Guerrera, 167 Conn. App. 74,
87, 142 A.3d 447 (2016), aff’d, 331 Conn. 628, 206 A.3d
160 (2019). ‘‘If . . . the [defendant] has failed to meet
his burden as to one of the three prongs of the Brady
test, then we must conclude that a Brady violation has
not occurred.’’ Morant v. Commissioner of Correction,
117 Conn. App. 279, 296, 979 A.2d 507, cert. denied, 294
Conn. 906, 982 A.2d 1080 (2009). In the present case,
the defendant has failed to carry his burden because
he did not claim or demonstrate that the evidence at
issue was favorable to him.
The following procedural history is relevant to the
defendant’s claim. On March 27, 2017, Judge Fasano
held a hearing on a number of the defendant’s pretrial
motions in the criminal case, including a motion for
discovery. Bowden-Lewis informed the court that she
had given the defendant a copy of everything that was
in her file, including the search and seizure warrant,
the police report, and the arrest warrant. Platt repre-
sented that the defendant did not have a copy of his
arrest record, which could not be given to him without
a court order. Judge Fasano ordered the state to provide
the defendant with a copy of his criminal history, which
Platt agreed to do. The court stated that it appeared
that everything that the defendant was entitled to had
been given to him, but the defendant argued that ‘‘they
said I was in possession of heroin. I don’t have photo-
copies of the heroin or anything else.’’ The court
explained to the defendant that he would not get ‘‘copies
of heroin’’ and that evidence ‘‘would be offered to the
extent [that the] state deems it appropriate’’ at the time
of trial. The defendant requested ‘‘a picture,’’ and Platt
represented that ‘‘[t]here were no photos. My inspector
talked to the Waterbury Police Department on October
twenty-fifth. According to the notes in the file, there
were no photos.’’
On June 16, 2017, the second day of the violation of
probation hearing, Mariani stated that he had given the
defendant, through Bowden-Lewis, ‘‘some photographs
and . . . one police report.’’22 Bowden-Lewis repre-
sented that she had given the documents to the defen-
dant. The defendant did not challenge the timeliness
of the disclosure, nor did he claim that the state was
in violation of Brady. When the state presented its evi-
dence, it introduced four photographs: a Google aerial
photograph of the apartment complex, the front door
of the apartment, the living room, and the white bag
containing the packages of heroin. The defendant did
not object to the admission of the evidence on either
timeliness or Brady grounds. Because the defendant
did not object to the photographs being placed into
evidence, Judge Murphy did not make a factual finding
that the defendant was prejudiced by the delayed disclo-
sure of the photographs. The defendant’s claim, there-
fore, was not preserved for appeal. The defendant seeks
Golding review of his claim. We will review the claim
because the record is adequate for review and the claim
is of constitutional magnitude. The defendant, however,
cannot prevail because his claim fails to satisfy the third
prong of Golding.
On appeal, the defendant argues that the ‘‘ ‘state’ lied
about the photos and then deprived [him] of his rights
when they used the photos to secure his conviction.’’
The state has responded that ‘‘there were no photo-
graphs of the evidence seized, and no such photographs
were introduced into evidence.’’ The record indicates
otherwise. On March 27, 2017, Platt represented that
the state’s investigator obtained no photographs from
the Waterbury Police Department, but on June 14, 2017,
Mariani gave the defendant photographs. The defendant
did not object to the disclosure of the photographs at
that time and did not ask for a continuance to examine
the photographs. The court made no finding that the
defendant was prejudiced by the state’s late disclosure
of the photographs. Although the photographs may not
have come into the state’s possession until the time of
trial, the record discloses that the state’s representation
on appeal that no photographs of the evidence seized
were placed into evidence is inaccurate. The state
placed a photograph of the white bag with the heroin
into evidence. The defendant, however, cannot prevail
on his Brady claim for two reasons. First, he has failed
to demonstrate that the photographs were favorable to
him. Second, he has failed to explain how he was
harmed or prejudiced by the late disclosure of the pho-
tographs.
‘‘Evidence is not suppressed within the meaning of
Brady . . . if it is disclosed at trial as it was here.’’
(Internal quotation marks omitted.) State v. Stinson,
33 Conn. App. 116, 120, 633 A.2d 728 (1993). A ‘‘defen-
dant must demonstrate that the timing of the disclosure
prejudiced him to the extent that he was deprived of
a fair trial. . . . The central issue in this claim, there-
fore, is whether the evidence was disclosed in sufficient
time for the defendant to have effectively used it at
trial. . . . This is essentially a factual determination for
the trial court.’’ (Citations omitted; internal quotation
marks omitted.) Id. In the present case, the defendant
failed to object to the admission of the photographs on
any ground, and the trial court made no finding that
the defendant was prejudiced by the late disclosure.
On appeal, the defendant has not demonstrated that he
was harmed by the late disclosure of the photographs.
In addition, the photograph of the white bag containing
the packages of heroin was cumulative of Shea’s testi-
mony. For the foregoing reasons, the defendant’s claim
regarding the photographs fails.
III
The defendant’s fourth claim is that he was deprived
of due process and the right to a fair trial because the
state failed to file a motion to proceed with the violation
of probation case before it tried the drug charges.
We disagree.
The following procedural history is relevant to the
defendant’s claim. On January 19, 2017, Platt appeared
before Judge Fasano and stated in the defendant’s pres-
ence that the state intended to have the violation of
probation case transferred to Waterbury from Bridge-
port. Platt also stated that the state intended to proceed
to trial on the violation of probation case before trying
the drug charges.
On March 27, 2017, the parties appeared before Judge
Fasano to address the pretrial motions that the defen-
dant had filed. The court first canvassed the defendant,
who wanted to represent himself in the violation of
probation case. During the canvass, the court stated to
the defendant that the state often ‘‘would proceed on
the violation of probation before [the criminal case]
because the exposure is there, and it’s a lot easier to
do; it is not proof beyond a reasonable doubt. . . .
[I]t’s proof by a preponderance of the evidence.’’ The
defendant stated that he understood the preponderance
of the evidence standard, but he also stated that, ‘‘the
violation of probation being heard first, due process
requires that I not be punished before I have the chance
to . . . argue my case. So, violation of probation is a
punishment.’’ The court explained that a violation of
probation proceeding was a hearing, not a full trial.
The defendant stated that he understood. The court
explained the challenges facing the defendant if he rep-
resented himself, and the court found that the defendant
understood the nature of the proceedings and the sen-
tence that could be imposed on the drug charges. The
court also found that the defendant knowingly, intelli-
gently, and with full awareness of the consequences,
had waived his right to counsel.
The court noted that the defendant had pleaded not
guilty to the violation of probation charge on December
14, 2016. Platt inquired whether the defendant had
waived the rule that violation of probation hearings be
held within 120 days of the filing of charges. See General
Statutes § 53a–32 (c). The defendant was not willing
to have the violation of probation hearing set down
immediately and waived the 120 day requirement. The
court heard the defendant’s motion to reduce his bail
and denied it. Following some colloquy, the defendant
stated that he wanted his cases to go on the trial docket.
Platt stated that the state is ‘‘going to ask to do the
violation of probation first.’’ The court then stated: ‘‘It’s
pretty clear it’s going to be a trial case, so I’ll place the
matter on trial. . . . Because it’s a [self-represented]
situation, if [the state is] moving to have the violation
of probation first, I want a motion filed so he can
address it.’’ In response, Platt stated: ‘‘Yes.’’23
On June 5, 2017, the defendant filed a motion for a
speedy trial in the drug case, but he claims that on June
8, 2017, the courthouse clerk filed the motion for a
speedy trial in the violation of probation file. Judge
Fasano held a hearing on the defendant’s speedy trial
motion on June 8, 2017. The court granted the motion
for a speedy trial and stated that all matters were being
set down for trial, including the violation of probation,
which would be held before Judge Murphy starting on
June 14, 2017. The defendant stated: ‘‘Okay.’’ When he
appeared before Judge Murphy on June 14, 2017, the
defendant did not object to proceeding with the viola-
tion of probation hearing but stated that he needed
help to call witnesses. Judge Murphy addressed the
defendant’s concerns regarding subpoenas for his wit-
nesses.
On appeal, the defendant claims that the courthouse
clerk filed his speedy trial motion under the wrong
docket number and that the state’s failure to file a
motion to proceed with the violation of probation hear-
ing before the trial on the drug charges violated his
constitutional rights. He argues that the trial on the
drug charges, rather than the violation of probation
proceeding, should have started on June 14, 2017, and
that he did not know that the violation of probation
hearing was to be held on that date. As to his claim
that he did not know that the violation of probation
proceeding was to take place on June 14, 2017, the
record is to the contrary. On June 8, 2017, Judge Fasano
informed the defendant that the violation of probation
hearing was going to be held on June 14, 2017, before
Judge Murphy. When Judge Murphy permitted the state
to open its case, he stated that the defendant knew
when he appeared in court on June 14, 2017, that he
was there for the violation of probation hearing.
‘‘[T]here is no requirement that entitles the defendant
to choose the order of his proceedings.’’ State v. Easton,
111 Conn. App. 538, 542, 959 A.2d 1085 (2008), cert.
denied, 290 Conn. 916, 965 A.2d 555 (2009). The law does
not require that a violation of probation proceeding be
deferred until after the disposition of the new criminal
charges. See Payne v. Robinson, supra, 10 Conn.
App. 403.
We do not condone the state’s failure to obey the
court’s order that it file a motion to proceed with the
violation of probation hearing before trying the drug
case. The state, however, had made known its intention
to do so in the defendant’s presence on several occa-
sions. Despite his claim that his constitutional rights
were violated, the defendant has not explained how
he was harmed or how his constitutional rights were
violated by trying the violation of probation case before
the drug charges. When Judge Fasano ordered the state
to file a motion to proceed with the violation of proba-
tion case first, he stated that the defendant was repre-
senting himself and should be able to address the issue.
The defendant was then given the opportunity to
address the timing of the probation violation and drug
case proceedings. The court heard the defendant’s rea-
sons why he wanted the drug charges to be tried first
and addressed the defendant’s concerns. The court
explained that the state generally will proceed on a
violation of probation case before trying the criminal
charges because the charge of probation violation is
easier to prove. The court also explained to the defen-
dant the burdens of proof that apply in probation viola-
tion proceedings and criminal trials.24
As we concluded in part I of this opinion, there was
substantial evidence that the defendant violated the
terms of his probation by failing to report to the Office
of Adult Probation as directed, and violating the crimi-
nal law of the state by possessing a controlled sub-
stance. Judge Murphy also found that the beneficial
aspects of the defendant’s probation were not being
met. The defendant was sentenced to serve five years
of incarceration, the balance of the sentence imposed
in 2009 when he was found guilty of robbery in the
first degree. Had the defendant been tried on the drug
charges, he potentially faced a sentence of more than
forty years in prison; see part IV of this opinion; and
revocation of his probation. As things turned out, after
the court sentenced the defendant, the state indicated
that it would enter a nolle prosequi on the drug charges
that were scheduled to be tried that week. The defen-
dant moved that the drug charges be dismissed; the
state did not object. Judge Murphy granted the defen-
dant’s motion to dismiss the drug charges, resulting in
a significant benefit to the defendant. Thus, the defen-
dant’s claim that his constitutional rights to due process
and a fair trial were violated because the state failed to
file a motion to proceed with the violation of probation
hearing before it tried the drug charges cannot succeed.
IV
The defendant’s fifth claim is that he did not have
notice of the nature of the charges against him, thereby
denying him of the constitutional right to be informed
of the nature of the charges against him. This is so, the
defendant claims, because (1) the state failed to file a
bill of particulars as ordered by the court on March 27,
2017, and (2) the police report and violation of proba-
tion warrant were vague. We do not agree.
The following procedural history is relevant to the
defendant’s claim. On January 19, 2017, when the defen-
dant was in court on the drug charges, Judge Fasano
asked Platt to inform the defendant of ‘‘the total expo-
sure,’’ or potential incarceration, he faced on the drug
charges. Platt placed on the record in the defendant’s
presence the crimes with which the defendant was
charged and the potential incarceration under each
charge. The court then summarized the defendant’s
maximum exposure as approximately forty-three years
in prison, in addition to possible fines. Bowden-Lewis
stated on the record that she would give the defendant
the contents of her file, including the police report and
the search warrant in the drug case. The defendant also
had a copy of Fenn’s detailed application for an arrest
warrant for violation of probation. At the state’s request,
the court ordered that the defendant be given a copy
of his criminal record.
The defendant’s claim that his rights were violated
by the state’s failure to file a bill of particulars in the
present matter is without merit. The defendant filed a
motion for a bill of particulars in the drug case, and on
March 27, 2017, Judge Fasano ordered the state to file
a bill of particulars in the drug case, not the present
violation of probation case. The defendant was repre-
senting himself in the drug case and would have
received the bill of particulars in that case.
In his brief, the defendant states that the ‘‘police
report and [violation of probation] warrant are so vague,
there is not language describing any [Connecticut Gen-
eral Statutes] criminal violation for the [self-repre-
sented] defendant to prepare his defense.’’ Our review
of the record discloses that the documents were, in
fact, quite detailed. The police report of the defendant’s
arrest on October 6, 2016, is nine pages in length, and
it identifies the defendant as an arrestee charged with
operation of a drug factory, possession with intent to
sell/dispense, possession with intent to sell, possession
of fewer than four ounces of marijuana, and interfering
with a search. Each charge included its codification in
the General Statutes. The report describes in detail the
defendant’s sale of drugs to the operators of two vehi-
cles in the parking lot of the apartment and the events
that transpired when the police executed the search
warrant on the apartment. Fenn’s application for an
arrest warrant is a three page, single-spaced document
describing the defendant’s probation, the conditions of
his probation, his failure to report to the Office of Adult
Probation as directed, the defendant’s urine sample that
tested positive for marijuana, and a detailed recitation
of the facts contained in the police report that resulted
in the defendant’s arrest in Waterbury on October 6,
2016.
‘‘Where criminal activity forms the basis for the revo-
cation of probation, the law imputes to the probationer
the knowledge that further criminal transgressions will
result in a condition violation and the due process
notice requirement is similarly met.’’ State v. Reilly,
supra, 60 Conn. App. 728. Section 53a-32 (c) requires
that ‘‘[u]pon notification by the probation officer of the
arrest of the defendant or upon an arrest by warrant
. . . 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 defen-
dant is alleged to have violated the conditions of such
defendant’s probation . . . .’’ The state can fulfill the
requirement to inform the probationer by providing him
with the arrest warrant and supporting affidavits, the
information, and the state’s recitation of the underlying
criminal charge in open court. See, e.g., State v.
Iovanna, 80 Conn. App. 220, 221–22, 834 A.2d 742
(2003). A probationer receives notice of the underlying
charges when the violation of probation warrant fully
describes the incident on which the criminal charges
were based and ultimately is the basis of the court’s
finding of a violation of probation. State v. Repetti,
supra, 60 Conn. App. 619.25
The record in the present case discloses that the
defendant signed conditions of probation that, in part,
required that he not violate the laws of this state. He
was informed in open court of the drug charges against
him, he was given a copy of the police report that listed
the crimes with which he was charged following his
arrest on October 6, 2016, and he had a copy of Fenn’s
application for an arrest warrant for violation of proba-
tion that averred that the defendant failed to report to
the Office of Adult Probation as directed and that his
urine sample tested positive for THC. Furthermore, the
defendant admitted that he failed to report as required
and smoked marijuana. On this record, we conclude
that the defendant had notice of the nature of the
charges against him, particularly that he not violate the
laws of this state.
V
The defendant’s last claim is that he was denied due
process when the state was permitted to open its case
to present evidence related to the drug charges. More
specifically, the defendant claims that the court (1)
violated rule 2.10 of the Code of Judicial Conduct and
(2) abused its discretion by granting the state’s motion
to open the evidence. We disagree.
The following procedural history is relevant to the
defendant’s claims. The violation of probation hearing
was to begin on June 14, 2017, a Wednesday. At the
beginning of the proceeding, the defendant stated to
Judge Murphy that he wished to call Dennis and Epps
as witnesses but that he had been unable to reach them.
Mariani stated that those witnesses may not be neces-
sary at this point in the probation hearing because the
state intended to present evidence only of the defen-
dant’s failure to report to Fenn as required and that
the defendant had rendered a urine sample that tested
positive for marijuana. In response to Judge Murphy’s
question about whether the state was withdrawing the
defendant’s new arrest as a violation of probation, Mari-
ani stated: ‘‘I’m not technically withdrawing it.’’ The
defendant stated that he was under the impression that
the violation of probation was going to be based on the
‘‘new arrest.’’ He requested that there be a plea dis-
cussion.
The court responded: ‘‘Here’s what’s going to happen,
Mr. Orr: Today [the] state’s going forward on a portion
of that violation of probation. I’ve seen many of these
violation of probation warrants. They usually list what
is known as technical violations first, then they list any
new arrests. Apparently, what the state is saying [is],
they’re only proceeding today on what’s known as the
technical violations. And those are legitimate bases
to violate someone’s probation. If they don’t present
evidence of the new arrest in the violation portion of
the hearing, they can still say, hey, okay, now you’ve
already found him in violation, but when you decide
the appropriate sentence, we want to tell you a little
bit more about the [defendant]. We want to tell you
about some pending criminal cases. The state has the
ability to do that during the sentencing portion of the
violation of probation hearing.
‘‘So, there are two portions of the violation of proba-
tion hearing: the first portion is, are you in violation
of your probation. Then, once I make a decision on
that, then I have to determine what the appropriate
sentence is, and then I can consider things, even though
. . . the state may not have presented the evidence of
the new criminal activity during the violation pro-
ceeding; they can still present evidence of other acts
of misconduct, of any crimes in the sentencing pro-
ceeding. I want you to be aware of that.’’ (Emphasis
added.) The court then took a recess to enable the
defendant to meet with Bowden-Lewis.
Following the recess, the state presented testimony
from Fenn. See part I of this opinion. At the conclusion
of Fenn’s testimony, the state rested and the court
recessed for lunch. When court reconvened, the court
addressed the parties, stating: ‘‘Let me just throw some-
thing out. We are in the process of this hearing. It could
be reopened. I will indicate on the record that, based
on the evidence I’ve heard thus far, I would be inclined
to find that [the defendant] violated his probation, but
I would also be disinclined to actually sentence him to
any jail time. I’m just telling you. And the reason I say
that is because, to me, if this is the extent of the state’s
violation, this is not a five-year-to-serve violation. On
the other hand, if I were convinced by a preponderance
of the evidence that the defendant was committing
crimes while he was on probation, then I would proba-
bly give him the maximum. So it’s sort of an all or
nothing thing for me. So you know, I’m throwing that
out because, I guess what I’m saying is, I don’t think
that this violation of probation hearing, unless there is
going to be some significant evidence the defendant
was committing a crime, I don’t see this as a jail case.’’
Mariani indicated that it was the state’s intention to
present the violation of probation evidence, which it
had done, and later bring the probation officer back to
testify as to whether the defendant’s probation was
serving any useful purpose. The court informed the
defendant that the state has the opportunity at the time
of sentencing to convince the court that probation
would not serve any useful purpose and that a jail sen-
tence is appropriate. The court informed the parties
that jury selection in the drug case was to begin on
Friday. ‘‘The state has rested on the [violation of proba-
tion] hearing. I would give them leave to reopen the
[violation of probation] hearing if they wanted to
include evidence of another crime. It has happened that
the court . . . presiding over a jury trial would listen
to the evidence during the jury trial and then also make
findings regarding whether you violated your probation
or not. So, I guess I’m leaving that out as a possibility.’’
Mariani moved to open the state’s case to present
evidence on the drug charges. He explained that the
case had just been assigned to him that morning when
the prosecutor originally assigned to the case was taken
ill. Mariani stated that he had ‘‘indicated that [the state
was] just going to proceed on the technical violations.
Given the fact [that he] had until Friday and given the
court’s comments,’’ he intended to present evidence
of the underlying drug charges. The court construed
Mariani’s comments as a request to open the evidence.
The defendant objected to the request, stating that the
state had rested in the violation of probation case on the
technical violations and had not pursued the underlying
criminal charges. He claimed that he would be preju-
diced because he would not be able to contact witnesses
and had no legal research to defend himself ‘‘against
the claim of violation of probation for whatever reason
[the state wants] to reopen.’’
The court overruled the defendant’s objection, stating
that, ‘‘before you got here today at 10 or 11:15 this
morning, you were under the impression this was a
violation of probation hearing on everything that’s indi-
cated in the violation of probation warrant, which I
understand includes both the technical violations, as
well as the new crime. Then at 11:30 [a.m.] . . . what-
ever time it was, the state notified you they were not
going to proceed on the criminal offense, but there
really was no down time between then and when the
state started their case at 12:30. There was an issue
whether you could get a witness. Your witness was not
subpoenaed for today, anyway. You were going to ask
for a continuance anyway, in order to present those
witnesses. . . . I don’t see any prejudice to you for
allowing the state to reopen the file. I will say you were
aware of the nature of the violations alleged by the
state prior to today, which included that you violated
the laws of the state of Connecticut.’’ The court
informed the defendant that he would be given an
opportunity to subpoena witnesses for Friday and
recessed to permit the defendant to meet with Bowden-
Lewis. On Friday, the state presented evidence regard-
ing the underlying drug charges. The defendant pre-
sented his case, during which he testified and presented
two witnesses.
A
The defendant claims that the court violated canon
2 of the Code of Judicial Conduct. He quotes rule 2.10
(a) of the code, which states in relevant part: ‘‘A judge
shall not make any public statement that might reason-
ably be expected to affect the outcome or impair the
fairness of a matter pending . . . .’’ The defendant
argues that the court ‘‘made a comment at the close of
the state’s case that caused the state to move to reopen
the hearing,’’ which rule 2.10 (a) prohibits. The defen-
dant misunderstands the scope of the rule. Rule 2.10 (a)
pertains to extrajudicial comments, not to statements
made by the court during a trial, hearing or other pro-
ceeding before it. Rule 2.10 (d) provides in relevant
part: ‘‘Notwithstanding the restrictions in subsection
(a), a judge may make public statements in the course
of official duties, may explain court procedures . . . .’’
Although the defendant complains of the statements
that the court made during the violation of probation
proceeding, he did not distinctly set forth the explicit
words or statements the court made to which he takes
exception. Presumably, he takes exception to the state-
ment: ‘‘I will indicate on the record that, based on the
evidence I’ve heard thus far, I would be inclined to find
that [the defendant] violated his probation, but I would
also be disinclined to actually sentence him to any jail
time. I’m just telling you. And the reason I say that is
because, to me, if this is the extent of the state’s viola-
tion, this is not a five-year-to-serve violation. On the
other hand, if I were convinced by a preponderance of
the evidence that the defendant was committing crimes
while he was on probation, then I would probably give
him the maximum.’’ The court made the statement to
the self-represented defendant after it explained to him
that a violation of probation proceeding consists of two
parts: an adjudicatory stage and a dispositional phase.
The court also explained to the defendant that it could
consider the evidence that it heard during the criminal
trial when it turned to the dispositional stage of the
violation of probation proceeding.
The court, in managing the proceeding, presented the
state with options: it could hear evidence on the drug
charges at that time or during the criminal trial. The
court also was aware that the prosecutor who had been
handling the defendant’s case had been taken ill and
that the adjudicatory portion of the proceedings was
being tried by a substitute. The state elected to move
to open the evidence in the violation of probation hear-
ing and later opted to nolle the drug charges. The court
provided the defendant with additional time to locate
witnesses and to prepare for trial. The court was the
fact finder, and the statements it made after the state
rested did not affect the outcome of the violation of
probation proceedings. The court was going to hear the
evidence related to the drug charges during the violation
of probation proceeding or during the criminal trial.
The court’s statement affected the time that it heard
the evidence, not whether it heard the evidence. The
court, therefore, did not violate rule 2.10 (a) of the Code
of Judicial Conduct and deny the defendant a fair trial.
B
The defendant also claims that the court abused its
discretion by permitting the state to open its case and
present evidence of the drug charges. We are not per-
suaded.
‘‘The decision to reopen a criminal case to add further
testimony lies within the sound discretion of the court,
which should be exercised in conformity with the spirit
of the law and in a manner to subserve and not to
impeded or defeat the ends of substantial justice. . . .
The purpose . . . is to preserve the fundamental integ-
rity of the trial’s truth-finding function.’’ (Internal quota-
tion marks omitted.) State v. Meikle, 60 Conn. App. 802,
817, 761 A.2d 247 (2000), cert. denied, 255 Conn. 947,
769 A.2d 63 (2001). ‘‘Unless the state’s offer seeks to
fill an evidentiary gap in its prima facie case that was
specifically called to the state’s attention by the defen-
dant’s motion for acquittal . . . the trial court may per-
mit additional evidence to be presented even though
that evidence strengthens the case against the defen-
dant.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Jones, 96 Conn. App. 634, 643, 902 A.2d
17, cert. denied, 280 Conn. 919, 908 A.2d 544 (2006).
‘‘In determining whether the court abused its discretion,
we must make every reasonable presumption in favor
of its action.’’ (Internal quotation marks omitted.) Id.
On the basis of our review of the record, we conclude
that the court did not abuse its discretion by permitting
the state to open the violation of probation case to
present evidence of the underlying drug charges against
the defendant. After the state rested, the defendant did
not move to have the violation of probation charge
dismissed. The court found that the defendant was in
technical violation of his probation but that it was not
inclined to sentence him to jail. The court explicitly
cautioned, however, that, although the state had not
presented evidence of the drug charges during the adju-
dicatory portion of the proceedings, the court could
consider new criminal activity and misconduct pre-
sented during the dispositional phase of the proceed-
ings. Mariani indicated that the state intended to present
evidence of the drug charges at the time the court sen-
tenced the defendant for violation of probation. In
granting the state’s motion to open the evidence, the
court stated to the defendant that he was on notice
that he was charged with violating the condition of
probation that he not violate the laws of this state.
When the defendant arrived in court on June 14, 2016,
he was under the impression that the state was going
to proceed on all of the allegations in the warrant appli-
cation. The court explained that it could consider the
evidence presented at the criminal trial when determin-
ing the sentence, that is, whether the defendant’s viola-
tion of the laws of the state was serious and whether
the benefits of probation were being met. The issue,
therefore, is one of timing, not substance. The defen-
dant has not demonstrated that he was prejudiced by
the court’s permitting the state to open the evidence.
During the violation of probation proceeding, the defen-
dant was afforded time to subpoena and call his own
witnesses and to cross-examine the state’s witnesses.
Rather than prejudicing the defendant by permitting
the state to open the evidence, the defendant received
a significant benefit. When the drug charges were called
for trial, Therkildsen stated that the state would enter
a nolle prosequi on the drug charges.26 For the foregoing
reasons, we conclude that the court did not abuse its
discretion by permitting the state to open the evidence.27
The appeal is dismissed with respect to the claim of
insufficient evidence; the judgment is affirmed in all
other respects.
In this opinion DiPENTIMA, C. J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant also represented himself in the trial court in both the
violation of probation case and the criminal charges that gave rise to his
violation of probation.
2
The defendant did not analyze his state constitutional claims. Where the
defendant does not advance a separate state constitutional argument, ‘‘we
will limit our analysis to federal constitutional grounds.’’ State v. Guess, 39
Conn. App. 224, 231, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d
1187 (1995).
3
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963).
4
‘‘[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 harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40.
Although he requested Golding review, the defendant has failed entirely
to provide a Golding analysis of any of his claims in his appellate brief.
Generally, this court does not review claims that are not adequately briefed.
Our ‘‘Supreme Court has often observed [that] [w]e are not obligated to
consider issues that are not adequately briefed. . . . Whe[n] an issue is
merely mentioned, but not briefed beyond a bare assertion of the claim, it is
deemed to have been waived. . . . In addition, mere conclusory assertions
regarding a claim, with no mention of relevant authority and minimal or no
citations from the record, will not suffice.’’ (Internal quotation marks omit-
ted.) State v. Wahab, 122 Conn. App. 537, 545, 2 A.3d 7, cert. denied, 298
Conn. 918, 4 A.3d 1230 (2010). In the present case, we nonetheless review
the defendant’s claims, although they are lacking legal analysis, because
the self-represented defendant provided a detailed recitation of facts that
elucidate his claims that he was denied his federal constitutional rights.
5
See Practice Book § 60-5.
6
After the defendant was sentenced for violation of probation, the state
declined to try the drug charges under which the defendant faced potential
incarceration in excess of forty years. Judge Murphy subsequently dismissed
the drug charges.
7
The defendant’s appellate claims focus on the procedural aspects of the
violation of probation proceedings and the court’s finding that he possessed
narcotics with intent to sell. The defendant has not raised a claim with
respect to the dispositional portion of the proceedings. In other words, the
defendant does not claim that the court abused its discretion by revoking
his probation and sentencing him to serve five years in prison.
8
Fenn averred in his affidavit in relevant part:
‘‘3. That [the defendant’s] probationary period started on 8/27/2014 upon
his discharge from the Department of Correction and is scheduled to end
on 8/27/2019. To date, [the defendant] has served approximately [two] years
and [one] month of his [five] year probationary period.
‘‘4. That on 9/4/2014, [the defendant] did review and sign his Standard
and Special Conditions of Probation.
‘‘5. That on 8/11/2015 and again on 12/15/2015, [the defendant] failed to
report to the Office of Adult Probation as directed.
‘‘6. That on 1/20/2015, [the defendant] rendered a urine sample at the
Office of Adult Probation which tested positive for the presence of THC.
‘‘7. That on 2/9/2016, 2/23/2016, 3/3/2016, 6/21/2016, 7/26/2016 and 9/20/2016
[the defendant] failed to report to the Office of Adult Probation as directed.
‘‘8. That on 10/06/2016, [the defendant] was arrested by the Waterbury
Police Department and charged with Possession with Intent to Sell (§ 21a-
278) (a)+, Operation of Drug Factory (§ 21a-277 (c), Interfering with Search
(§ 54-33d), Possession with Intent (§ 21a-278 (b)*+ and Possession of Mari-
juana less than 4 oz. (§ 21a-279 (a) (1st). After having personally reviewed
the arrest warrant a summary is as follows: On 10/6/2016, Waterbury Police
Department’s Vice and Intelligence Division and Violent Crimes Unit (VCU)
were granted a search and seizure warrant for 119 Angel Drive, apartment
E and the person of Jermaine Robinson. Surveillance was set up at this
location and officers observed a male identified as Jermaine Robinson exit
the rear of the above address and [approach] a parked vehicle. An exchange
was made between Robinson and the vehicle’s occupant. Officers recognized
this activity as narcotics sales. A short time later, officers observed a male,
later identified as [the defendant] exit the above address followed by Rob-
inson. [The defendant] was directed by Robinson to approach two recently
parked vehicles. He had a short conversation with the occupants of both
vehicles and then exchanged an item for an item with both. Both vehicles
then left the area. Officers recognized this activity as narcotics sales. At
this time, the determination was made to execute the search and seizure
warrant on the above address. Officers gained entry through the front door.
Upon entering the apartment . . . [o]fficers observed [the defendant] on
the couch and he attempted to move towards the front door. He was shoved
to the ground and handcuffed after continuing to move towards the door.
. . . Officers located $1,680.00 in US currency, one thousand nine hundred
sixty (1960) white glassine bags stamped ‘KING’ containing a brown powder
like substance, a plastic sandwich bag containing a white rock like substance
(3.0 grams), a glass jar containing a green plant like substance (9.5 grams,
one burnt glass smoking pile on [the defendant’s] person . . . . All parties
in the apartment were arrested. [The defendant] was charged with Posses-
sion with Intent to Sell (§ 21a-278) (a)+, Operation of Drug Factory (§ 21a-
277 (c), Interfering with Search (§ 54-33d), Possession with Intent (§ 21a-
278 (b)*+ and Possession of Marijuana less than 4 oz. (§ 21a-279 (a) (1st).
This matter is currently pending in the Waterbury Judicial District under
Docket Number UWY-CR16-441054-T. [The defendant] is currently held
on bond.
‘‘9. That based on the above facts and circumstances, this affiant feels
that Probable Cause exists to believe that the accused has violated:
’’Standard Condition(s) of Probation:
‘‘#1 Do not violate any criminal law of the United States, this state or any
other state or territory.
‘‘#2 Report as the Probation Officer tells you, tell your probation officer
immediately if you are arrested and, if you are incarcerated, report to the
Probation Officer immediately after you are released.
‘‘10. It is therefore requested that a warrant for the arrest of [the defendant]
be issued and that he be charged with Violation of Probation (§ 53a-32).’’
9
The transcript of the colloquy between Judge Devlin and the defendant
discloses the following:
‘‘[The Defendant]: I have a quick question. In this situation, say I beat my
criminal charges right now; can [there] still be a violation of probation?
‘‘The Court: Yeah. Different standard. And one has a standard of proof
beyond a reasonable doubt. Another has a standard of preponderance of
evidence. And generally the exclusionary rule which prevents the admission
of certain . . . evidence illegally seized by the police is not applicable in
violation of probation cases. So although the cases are very similar in terms
of the underlying conduct, resolution of one would not necessarily mean
the other one goes away.
‘‘[The Defendant]: All right. I understand that. All right. In conclusion with
that, in my situation, the evidence can be held against me. What if it’s not
my evidence at all? Because there’s not nothing that pertain[s] to me.
‘‘The Court: That’s a question of fact.
‘‘[The Defendant]: Question of fact. All right, I understand.
‘‘The Court: I guess that’s what it’ll be all about.’’
10
The defendant claims that he filed the speedy trial motion in the criminal
case but that the courthouse clerk placed it in the violation of probation
file. The defendant has not identified any evidence or finding to substantiate
that claim.
11
Mariani represented to the court that the assistant state’s attorney who
had been handling the violation of probation case was ill on June 14, 2017,
and Mariani was substituting for him.
12
See General Statutes § 52-143 (a), which governs the service of subpoe-
nas for witnesses.
13
VOP is an expression commonly used with reference to a violation of
probation hearing.
14
There were eight occasions from August 11, 2015, through September
20, 2016, that the defendant did not show up for his appointment.
15
The defendant has not challenged the court’s finding that he failed to
report to the Office of Adult Probation as directed or that he was in posses-
sion of marijuana.
16
The trial court’s self-admonishment should be noted by all judges to
avoid the claim raised by the defendant in the present appeal, i.e., the court
found the defendant had violated Connecticut laws with which he had not
been charged. On the basis of the court’s admonition and its decision not
to find that the defendant had violated the laws of Connecticut on the basis
of cocaine possession, we do not believe that the court intended to find the
defendant had violated a law of Connecticut on the basis of a statute with
which he had not been charged.
17
The court further stated that, in concluding that the defendant violated
that portion of his conditions of probation that he not violate the laws of
the state, that it had to make some further findings regarding what happened.
The court stated: ‘‘I credit the testimony of . . . Medina. I watched him
testify. I found him to be extremely credible. He was very professional, very
precise. There is no animosity, no bias shown. He had—if he really wanted
to hang [the defendant], he could have easily said he saw the items
exchanged. His testimony was that he had a clear, unobstructed view, that
he was able to see [the defendant]—well, I have to back up because it is
important to my ruling. The testimony against [the defendant] is not just
that he was observed in a hand-to-hand type of transaction for two different
cars. The testimony is much more substantial. The testimony is that . . .
Medina observed . . . Robinson basically serve another vehicle, that he
observed that drug transaction and that shortly thereafter, after that car
left, that . . . Medina was within really just feet of the two cars that pulled
up, he said he observed both cars, people on the phone and cell phones
and waiting, which is significant. It’s not just that somebody pulls up and
someone comes up to the door. The testimony is that they get on the phone
and then within minutes, if not seconds after that, [the defendant] came
out of the rear of the building where the heroin was later found, 119 E
Angel Drive, and followed closely by . . . Robinson, who is on the phone.
And that . . . Robinson directed the defendant to each of the cars. That
the defendant then proceeded to go to the car to have a quick exchange
with the occupants of each of those two cars, then come back into the
house afterwards. When he got back in the house, the testimony is, I think,
fifteen to twenty-five minutes later, the search warrant was executed and
the defendant was within two feet of 1960 bags of heroin that were sitting
out on the table in front of [the defendant].
‘‘The state’s theory of the case is not that [the defendant is] the main guy
here; obviously . . . Robinson is the main guy. But the state’s theory is
that [the defendant] was assisting . . . Robinson in his drug operation. I
find that the state has proved beyond—well, I believe beyond reasonable
doubt that the defendant has been proved to be involved with conspiracy
to sell narcotics, conspiracy to possess with intent to sell narcotics, that
he is in possession of drug paraphernalia, and he’s in possession of narcotics
with intent to sell. The quantity of narcotics is not consistent with personal
use. It’s a huge amount of narcotics. There’s corroboration that these were
sales, the recovery of the money.
‘‘So I will say I’ve heard testimony of . . . Epps. I did not find him credible
at all. I had a chance to watch . . . Epps. He ultimately really did not know
when it was that he had this conversation with the defendant.
‘‘I, also, as much as I have a great deal of respect for [the defendant], I
think [that he has] been a gentleman to me here and seem[s] to be very
intelligent. . . . I did not find [his] testimony credible. To me, in some
portions, it was very rehearsed. In other ways there was not much detail.
I had a chance to observe [the defendant] as well as . . . Medina. I think
. . . Medina’s testimony is obviously critical to the state’s case. I find that
he was credible beyond a reasonable doubt. He was extremely credible.
And so I rely on his testimony and find the defendant violated those statutes
of the Connecticut General Statutes.
‘‘So I make a finding based on the whole record. And I make a finding
that the violation of those two sections, the section the defendant is required
to report as the probation officer tells you and that you also—that you do
not violate any criminal laws of the state of Connecticut. Those have been
established by reliable and probative evidence. And by that, I mean that
those violations have been established by the fair preponderance of the
evidence.’’ (Emphasis added.)
The court stated that it had reviewed the law with respect to possession
and specifically found that the defendant had violated the charge of posses-
sion of narcotics with intent to sell. The court further stated: ‘‘Possession
is defined by the Connecticut General Statutes as to have physical possession
or otherwise to exercise dominion or control over tangible property. And
possession means you either have the substance, in this case the nineteen
hundred bags of heroin on your person, which there’s no evidence that you
had it on your person or otherwise having control over the substance,
knowing where it is and being able to access it, and the evidence establishes,
I think, beyond a reasonable doubt, that you did have possession of that
nineteen hundred bags, but, again, the standard here is whether the state’s
proven this by a fair preponderance of the evidence, and I will make that
finding.
‘‘I will refer to the entire § 2.11-1 which refers to constructive possession.
Possession does not mean one must have the illegal object upon one’s
person. Rather, a person, although not in actual possession, knowingly has
the power and the intention at a given time to exercise control over a thing
is deemed to be in constructive possession of the item. As long as the
substance was in a place where the defendant, if he wishes, can go and get
it, it’s in his possession. I think that evidence proves that. I think the evidence
proves, as I indicated before, that, with intent to—with intent to sell, the
defendant agreed with one or more persons, obviously . . . Robinson and
maybe others, and that any one of them did an act in furtherance of that
conspiracy.’’ The court also found that the state had proved that there was
probable cause to believe that the narcotic substance was heroin.
18
Although defendant raised the sufficiency of the evidence claim last in
his brief, we review it first because ‘‘any defendant found [to have violated
his probation] on the basis of insufficient evidence has been deprived of a
constitutional right, and would therefore necessarily meet the four prongs
of Golding.’’ (Internal quotation marks omitted.) State v. Revels, 313 Conn.
762, 777, 99 A.3d 1130 (2014), cert. denied, 574 U.S. 1177, 135 S. Ct. 1451,
191 L. Ed. 2d 404 (2015).
19
The text of two of the relevant statutes is provided as follows for
purposes of comparison:
General Statutes § 21a-277 (a) provides: ‘‘(1) No person may manufacture,
distribute, sell, prescribe, dispense, compound, transport with the intent to
sell or dispense, possess with the intent to sell or dispense, offer, give or
administer to another person, except as authorized in this chapter, any
controlled substance that is a (A) narcotic substance, or (B) hallucino-
genic substance.’’
This is one of the statutes the court found that the defendant violated.
General Statutes § 21a-278 (a) provides in relevant part: ‘‘(1) No person
may manufacture, distribute, sell, prescribe, dispense, compound, transport
with the intent to sell or dispense, possess with the intent to sell or dispense,
offer, give or administer to another person, except as authorized in this
chapter, (A) one or more preparations, compounds, mixtures or substances
containing an aggregate weight of (i) one ounce or more of heroin or metha-
done, or (ii) one-half ounce or more of cocaine or cocaine in a free-base
form, or (B) a substance containing five milligrams or more of lysergic acid
diethylamide. The provisions of this subdivision shall not apply to a person
who is, at the time of the commission of the offense, a drug-dependent
person.’’
This is one of the statutes with which the defendant was charged by
the police.
20
We, however, do not conclude that it was improper for Judge Murphy
to consider the evidence of the defendant’s drug dealing during the disposi-
tional portion of the violation of probation hearing. The evidence presented
at the violation of probation proceeding was clearly spelled out in the police
report and in Fenn’s application for a violation of probation arrest warrant.
A trial court may consider the evidence in the whole record when deciding
whether to continue or revoke the sentence of probation. State v. Corrin-
gham, supra, 155 Conn. App. 837.
21
In his brief, the defendant stated that ‘‘prosecutorial impropriety’’
deprived him of his right to due process, and he asks this court to take
notice of ‘‘the plain error of the state’s [attorneys]’’ for failure to comply
with disclosure that prejudiced the defendant. Because we conclude that
there was no Brady violation, the defendant’s claim of prosecutorial impro-
priety fails.
22
The police report in question concerned a search of a motor vehicle,
the key to which the police found in the apartment. The state did not present
evidence related to the key or the motor vehicle or to connect the defendant
to the motor vehicle during the violation of probation hearing.
23
We have reviewed the file and are unable to find that the state filed a
motion to proceed with the violation of probation hearing before the trial
on the drug charges as ordered.
24
Judges Devlin, Fasano and Murphy explained to the defendant that the
state’s burden of proof in a violation of probation case was less stringent
than in a criminal case. It appears from the defendant’s arguments in the
trial court and his claim of insufficient evidence regarding possession of
narcotics on appeal that the defendant is under the misguided impression
that if he went to trial on the drug charges first and was found not guilty
that he could not be found guilty of violating his probation. The defendant
appears not to comprehend that, theoretically, he could have been tried
on both the violation of probation and criminal charges no matter which
proceeding was held first.
25
This case is unlike State v. Repetti, supra, 60 Conn. App. 614, in which
the violation of probation warrant application recited the facts and the
charge of burglary in the second degree, as stated in the police report. Id.,
616–17. The state later withdrew the burglary charge for lack of probable
cause and filed a substitute information alleging two different crimes at the
beginning of the violation of probation hearing. Id. The warrant application,
however, contained a recitation of the facts of the underlying incident that
formed the basis of the court’s ultimate finding that the probationer violated
his probation and, thus, provided the defendant with adequate notice of the
ways in which he was found to have violated his probation. Id., 618.
26
Therkildsen noted that the defendant had been sentenced to five years
of incarceration in the violation of probation case on the basis of his conduct
under the drug charges. ‘‘Based on that sentence, and based on the facts,
it’s the state’s position, as it was at the violation of probation, that [the
defendant] was a minor player in the drug business while he was participating
in it. The operation of the drug business was, in the state’s position . . .
Robinson, and it was the state’s position, as well, that [the defendant] was
employed or worked somehow for . . . Robinson. And the five years [of]
punishment is sufficient for this matter.’’ Pursuant to the defendant’s motion,
Judge Murphy dismissed the drug charges against the defendant.
27
Our review of the record leads us to conclude that Judge Murphy went
out of his way to explain patiently to the self-represented defendant the
procedures in a violation of probation proceeding.