State v. Polanco
State v. Polanco
Opinion
*564
The defendant, Shiloh Polanco, appeals from the judgment of the trial court revoking his probation and imposing a thirty month prison sentence. On appeal, the defendant claims that he was denied his right to due process under the fourteenth
*565
amendment to the United States constitution
1
by the court's admission into evidence of a laboratory report when the author of that report was not present and available for cross-examination. We conclude that this claim was not preserved and that the record is inadequate to review it under
State v. Golding,
The following facts are necessary for our resolution of this appeal. On August 16, 2006, the defendant pleaded guilty to violating General Statutes § 21a-277 (a), and was sentenced to ten years incarceration, execution suspended after three years, and five years of probation. One of the terms of his probation was that he not violate the criminal laws of the United States or any state. The defendant admitted to violating his probation on August 3, 2012, and, as a result, his term of probation was continued and he paid a $5000 fine.
The defendant was arrested in New York state on November 6, 2012, and charged with criminal possession of marijuana in the second degree and various motor vehicle violations. On February 6, 2013, an arrest warrant was issued in Connecticut for a violation of probation. 2 The defendant denied this charge and a hearing was held over a six month period.
*566 During the hearing, the court heard the following testimony. On November 6, 2012, Steven Stromberg, 3 a police officer employed by the Westchester County Department of Public Safety in the state of New York, effectuated a traffic stop after noticing a large crack in the windshield of *233 a vehicle driven by the defendant. Stromberg questioned the defendant and eventually requested that he exit the vehicle. The defendant complied, and the two discussed some irregularities with the defendant's paperwork. Stromberg asked if he could perform a patdown search, and the defendant objected. At that point, the defendant placed his hand in his pocket. Stromberg, fearing for his safety, drew his service weapon, ordered the defendant to the ground, and placed him in handcuffs.
Stromberg subsequently determined that the vehicle's registration had been suspended for unpaid parking tickets. He elected to impound the vehicle for the suspended registration and for having improper license plates. Stromberg performed an inventory search of the vehicle and found seven heat sealed bags of what he suspected was marijuana in the trunk.
The heat sealed bags were transported to a laboratory for testing. Stromberg received a report, which the state sought to have admitted as an exhibit at the hearing.
4
The defendant, noting that this report was actually an affidavit from an employee of the laboratory named
*567
Stephanie Brumley,
5
objected on the basis of the United States Supreme Court's decision in
Melendez-Diaz v. Massachusetts,
The defendant iterated that his objection was not based on a claim of hearsay but on the sixth amendment's confrontation clause. The court explained that it had overruled the objection because the admission of the laboratory report, which was reliable hearsay evidence in the court's opinion, did not violate the defendant's right under the confrontation clause in the context of a violation of probation hearing.
After hearing evidence and argument, the court found that the state had proven, by a preponderance of the evidence, that the defendant violated his probation "in that he was in possession of a substantial amount of *569 marijuana, in violation of the laws of the state of New York, where the conduct took place and that conduct was a violation of New York law." It also determined that continued probation would not be a useful exercise. The court revoked the defendant's probation and sentenced him to thirty months incarceration. 10 This appeal followed.
As we previously explained, the defendant argued to the trial court that both his sixth amendment right to confront Brumley and his statutory right to cross-examine her were violated. On appeal, however, the defendant has reformulated his claim, arguing solely that his fourteenth *235 amendment right to due process was violated by the admission into evidence of the laboratory report when Brumley was not in court and subject to cross-examination. 11 Specifically, he argues that the court should have balanced his interest in confronting Brumley against the reasons, if any, asserted by the state for not presenting her as a witness. We conclude that the record is inadequate to review the defendant's sole and unpreserved appellate claim.
Before addressing the specifics of this appeal, we set forth certain principles related to probation revocation
*570
proceedings. Our Supreme Court has explained that probation is a penal alternative to incarceration, and its purpose is to provide a period of grace in order to aid in the rehabilitation of the individual.
State v. Faraday,
In
State v. Shakir,
The defendant never argued to the trial court that it was required to conduct the balancing test to determine whether his right to due process had been violated. The claim now before us, therefore, was not preserved for appellate review.
13
See, e.g.,
*572
State v. Johnson,
143 Conn.App.617, 624,
The defendant also claims, however, that this claim is reviewable pursuant to
State v. Golding,
supra,
"[U]nless the defendant has satisfied the first
Golding
prong, that is, unless the defendant has demonstrated
*573
that the record is adequate for appellate review, the appellate tribunal will not consider the merits of the defendant's claim." (Internal quotation marks omitted.)
*237
State v. Dyous,
Our analysis is guided by
State v. Brunetti,
The legal issue in
Brunetti
was whether the consent of the defendant's father to allow a police search of a house that the defendant lived in with his parents was valid when the defendant's mother had declined to sign a consent to search form for the residence.
In the present case, the state had no notice of the defendant's due process claim, and, accordingly, did not present evidence regarding its reasons for not producing Brumley at the hearing. In this circumstance, the state was not responsible for this evidentiary lacunae. It would be patently unfair to address the defendant's due process claim on the basis of this record.
We are further guided by our decision in
State v. Shakir,
supra,
Guided by this precedent, we conclude that the defendant in the present case failed to sustain his burden of providing this court with an adequate record to review his claim of a due process violation. Specifically, the record is silent as to the state's reasons for not producing Brumley as a witness at the probation revocation hearing and as to whether those reasons amount to good cause. Accordingly, we decline to review the defendant's unpreserved claim on the basis of an inadequate record.
The judgment is affirmed.
In this opinion the other judges concurred.
The fourteenth amendment to the United States constitution provides in relevant part: "All persons born or naturalized in the United States, and subject to the jurisdiction therefore, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law...." (Emphasis added.)
General Statutes § 53a-32 (a) provides in relevant part: "At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant...."
The court found Stromberg credible. During his testimony, Stromberg, a law enforcement officer for over eleven years, opined that, on the basis of his training and experience, the substance in the trunk of the defendant's vehicle appeared to be marijuana. He also noted that a canine trained in narcotic detection made a positive indication of the presence of contraband. Further, Stromberg stated that the defendant appeared to become more nervous during the course of their interaction.
The report indicated that there was a total of approximately two pounds of marijuana in the seven bags.
In this report, Brumley swore that she was a forensic scientist employed by the Westchester County Department of Laboratories and Research, Division of Forensic Sciences, and that she performed an analysis on the items received from the Westchester County Police Department. She indicated that the presence of marijuana was confirmed by microscopic examination, color test, and thin layer chromatography. She noted that "[t]his report does not constitute the entire case file. Copies of notes, worksheets and other supporting materials related to this case are available upon request."
In
Melendez-Diaz v. Massachusetts,
See
State v. Osbourne,
The sixth amendment to the United States constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
General Statutes § 53a-32 (c) provides in relevant part: "[T]he court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant's probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of a public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant's own behalf...." (Emphasis added.)
"[U]nder § 53a-32, a probation revocation hearing has two distinct components.... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition 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] ... require the defendant to serve the sentence imposed or impose any lesser sentence.... In making this second determination, the trial court is vested with broad discretion." (Internal quotation marks omitted.)
State v. Sherrod,
The defendant has not pursued his statutory claim as such on appeal.
In
State v. Baxter,
During the proceedings at trial, the defendant objected to the admission of the report on the ground that his sixth amendment right to confrontation was violated. In support of his argument that the confrontation clause was applicable in a violation of probation hearing, the defendant referenced § 53a-32 (c), which grants a defendant the right to cross-examine witnesses at a violation of probation hearing. At the time that the court issued its oral ruling on the admissibility of the report, the defendant further clarified that his "objection was based on the confrontation clause." Thus, to the extent that the defendant mentioned § 53a-32 (c) in his objection, it was not referenced as an independent basis for excluding the report, nor was it associated with the defendant's fourteenth amendment due process right to cross-examine witnesses.
On appeal, the defendant now argues that because § 53a-32 (c) codifies his fourteenth amendment due process right to cross-examine witnesses and because he mentioned the statute in his objection, he properly raised a due process claim before the trial court, and, thus, the claim is preserved. We note that the defendant has not offered any authority for his contention that § 53a-32 (c) codifies his fourteenth amendment due process right to cross-examine witnesses at a violation of probation hearing. We further note that there may be a case in which a due process claim is raised properly by the defendant's objection to the admission of hearsay evidence at a violation of probation hearing on the ground that § 53a-32 (c) guarantees him the right to cross-examine adverse witnesses. See
State v. Kevalis,
Reference
- Full Case Name
- STATE of Connecticut v. Shiloh POLANCO.
- Cited By
- 14 cases
- Status
- Published