267 Conn. 576 | Conn. | 2004
The defendant, Michael Barile, appeals
Adult probation secured a warrant for the defendant’s arrest, claiming that he had violated his probation by failing to participate in sex offender counseling and treatment. After a hearing, the trial court, Dyer, J., found that the defendant had violated his probation. In the dispositional phase of the proceeding, the trial court continued the defendant on probation, and specifically ordered that he take a polygraph examination. This appeal followed.
We have carefully examined the trial court record in this matter. The facts are voluminous and complicated, and it would serve no useful purpose for us to state them in detail. They may be summarized, however, as follows. In 1998, the defendant was found guilty, in a court trial before Swienton, J., of risk of injury to a child, based in part on his repeated sexual contact with his young stepdaughter. He was sentenced to ten years imprisonment, execution suspended after three years, followed by five years probation. One of the conditions of his probation was that he cooperate with sex offender
In the adjudicative phase of the violation of probation proceeding, the trial court, Dyer, J., found that the
The defendant’s appeal is limited to the sole question of whether the trial court violated his federal and state constitutional rights against self-incrimination by ordering him to undergo a polygraph examination. Our review of the record, however, discloses that, not only did the defendant never raise in the trial court the con
The position of the state, which was presented through the testimony of the officials of the sex offender treatment program in which the defendant was enrolled, was that the defendant had continued both to deny the sexual misconduct for which he had been convicted, and to refuse to take a polygraph examination about that misconduct by an examiner selected by adult probation that would have, if completed successfully, resulted in a recommendation that he no longer be required to participate in the treatment program. Thus, according to the state, the defendant simply was not amenable to any useful treatment by the program. The defendant did not claim throughout the dispositional phase that he should not be required to take a polygraph examination; instead, he claimed that he should be permitted to take a polygraph examination by an examiner selected by him or, at a minimum, by an “independent” examiner selected by the court. Furthermore, it was only in passing that the court, rather than the defendant, raised the issue of the fifth amendment. In that regard, the defendant specifically agreed with the court that he did not have a fifth amendment right to silence about the crime of which he already had been convicted. In addition, the defendant specifically agreed that, although he did not want to take a polygraph examination, “he will if it’s fair,” presumably meaning that he would do so if he were able to select the examiner. Finally, the defendant specifically represented to the court that, if the court, as opposed to the state, were to order the polygraph examination, he would “follow [the court’s order] to the letter of the law.”
Against this background, the court entered the order. In doing so, moreover, the court specifically found that
The judgment is affirmed.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The trial court specifically noted the testimony of the program therapists that denial is common among sex offenders, and that acceptance of their responsibility is necessary for successful treatment and rehabilitation of sex offenders.
A revocation of probation proceeding has two distinct components, an adjudicative phase and a dispositional phase. In the adjudicative phase, a “factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine [in the dispositional phase] whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 425, 773 A.2d 931 (2001); see General Statutes § 53a-32; Practice Book § 43-29. By statute, a court may: (1) continue the sentence of probation; (2) modify or enlarge the conditions of probation; (3) extend the period of probation; or (4) revoke the sentence of probation. General Statutes § 53a-32 (b).
Prior to the transfer of this appeal from the Appellate Court to this court, the state moved to dismiss the defendant’s appeal on the ground of mootness, asserting that, subsequent to the judgment of violation of probation from which the defendant appeals, he took a polygraph examination and was participating in good standing in sex offender treatment. The Appellate Court denied that motion, and the state has not renewed it in this court.