179 Conn. App. 270
Conn. App. Ct.2018Background
- Defendant Raymond Tucker was on probation for conspiracy to commit assault (convicted 2012) when, on June 23, 2015, he allegedly punched the victim causing a swollen/bloody lip and loose teeth; the victim called 911 and was treated at Bridgeport Hospital.
- Officer Feliciano responded, identified the victim at the hospital, and observed injuries consistent with the 911 call; defendant told his probation officer he had an altercation with the victim and later failed to attend directed anger management.
- The state charged the defendant with third‑degree assault and filed a violation of probation information under Conn. Gen. Stat. § 53a‑32; a probation revocation hearing was held on December 1, 2015.
- At the hearing the court admitted the victim’s 911 audio (over a “lack of foundation” objection), received medical records, and heard testimony from the probation officer and police officer; the court found a probation violation by a preponderance of the evidence.
- The court revoked probation and imposed 62 months, execution suspended after three years, followed by three years probation; defendant appealed, arguing (1) improper admission of the 911 tape, (2) insufficient evidence of violation, and (3) abuse of discretion in sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission/authentication of 911 recording | State: unique file number and content authenticate tape; probation hearings have relaxed evidentiary rules | Tucker: tape was unauthenticated, unreliable hearsay and violated due process/right to confront | Court: overruled objection; unique file number + content furnished prima facie authentication; admissible in probation hearing context |
| Due process/confrontation by admitting hearsay 911 call in place of live witness | State: defendant didn’t request Shakir balancing; record inadequate to show prejudice | Tucker: admission without Shakir balancing denied right to confront adverse witness | Court: claim unpreserved and record inadequate (no Shakir request); Golding review refused; plain error not shown |
| Sufficiency of evidence to find probation violation | State: 911 call, medical records, officer and probation officer testimony collectively support violation | Tucker: only the 911 tape supported finding (which he says was inadmissible) | Court: sufficient evidence (defendant’s admission to PO, medical records, officer observations, 911 identification); finding not clearly erroneous |
| Dispositional abuse of discretion (revocation & sentence) | State: court considered PO’s recommendation, victim’s testimony, defendant’s criminal history and prior probation failures | Tucker: sentence excessive / abuse of discretion | Court: no abuse of discretion; court reasonably concluded defendant unsuitable for continued probation |
Key Cases Cited
- State v. Shakir, 130 Conn. App. 458 (Conn. App. 2011) (requires balancing defendant’s confrontation interest against government’s good cause when admitting hearsay at revocation)
- State v. Polanco, 165 Conn. App. 563 (Conn. App. 2016) (reiterates need for on‑record Shakir balancing; failure to develop reasons for nonproduction yields inadequate record)
- State v. Peay, 96 Conn. App. 421 (Conn. App. 2006) (prima facie foundation required to authenticate sound recordings)
- State v. Valentine, 255 Conn. 61 (Conn. 2000) (telephone conversations may be authenticated by circumstantial facts revealing identity)
- State v. Golding, 213 Conn. 233 (Conn. 1989) (framework for unpreserved constitutional claims on appeal)
- In re Yasiel R., 317 Conn. 773 (Conn. 2015) (modification/clarification of Golding procedural requirements)