STATE OF CONNECTICUT v. KASON U. ESQUILIN
(AC 38762)
Keller, Elgo and Bear, Js.
Argued October 16, 2017—officially released January 30, 2018
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The defendant appealed to this court from the judgment of the trial court revoking his probation and sentencing him to a period of four years incarceration following his arrest on charges of violating certain conditions of his probation, including, inter alia, that he not use or possess drugs or alcohol. At the probation revocation hearing, the state sought to admit testimony from A, a probation officer, regarding the results of drug tests performed on the defendant‘s urine during his probationary period, and to introduce the reports of such results into evidence as an exhibit. The defendant objected on the grounds that the admission of the reports was an unreliable form of double hearsay and a violation of his right to confrontation because A did not conduct the actual drug testing. The trial court overruled the defendant‘s objection, ruling that the testimony and the drug tests that were being offered did not constitute unsupported testimonial hearsay. After finding that the defendant had violated the terms of his probation, the court revoked his probation and sentenced him to four years incarceration. Thereafter, the defendant appealed to this court, claiming, for the first time, that the trial court violated his right to due process by admitting the drug test reports into evidence without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing. Held that this court declined to review the defendant‘s unpreserved claim that the trial court violated his right to due process by admitting the reports into evidence, the defendant having failed to provide this court with an adequate record for review of his unpreserved claim pursuant to State v. Golding (213 Conn. 233); because the defendant did not object at the probation revocation hearing to the admission of the reports of the drug test results on the ground that their admission violated his right to due process, the state was not given adequate notice of the defendant‘s due process claim and did not provide the possible reasons for not producing the analysts who had performed the drug tests as witnesses at the probation revocation hearing, and, therefore, this court could not balance the state‘s interest in not producing the persons who performed the drug tests against the defendant‘s interest in confronting those persons to determine whether a due process violation occurred.
Procedural History
Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of New London, where the matter was tried to the court, Williams, J.; judgment revoking the defendant‘s probation, from which the defendant appealed to this court. Affirmed.
Steven B. Rasile, assigned counsel, for the appellant (defendant).
David J. Smith, senior assistant state‘s attorney, with whom, on the brief, was Michael L. Regan, state‘s attorney, for the appellee (state).
KELLER, J. The defendant, Kason U. Esquilin, appeals from the judgment of the trial court revoking his probation pursuant to
The following facts and procedural history are relevant to our resolution of the defendant‘s appeal. On April 28, 2008, the defendant was convicted of the underlying offense of the sale of hallucinogens/narcotics in violation of
On March 21, 2012, the defendant was convicted of violating his probation pursuant to
On January 29, 2014, an arrest warrant for the defendant was issued charging him with a violation of probation on the grounds that the defendant violated the following standard conditions of his probation: (1) “[d]o not violate any criminal law of the United States, this state or any other state or territory” and (2) “[s]ubmit
After hearing evidence and argument, the court found that the state had proven, by a preponderance of the evidence, that the defendant had violated his probation. The court found,1 in relevant part: “[Probation] Officer [Robert] Amanti of the Office of Adult Probation spoke with [the defendant] about the conditions of his probation, including his requirement that he successfully complete treatment and remain free of any illicit substance. . . . [The defendant] acknowledged those conditions. . . . [O]n August 15, 2013, the [defendant] was confronted about his substance abuse. . . . [The defendant] indicated he was proud of getting high2 and was referred for treatment at [the Southeastern Council on Alcoholism and Drug Dependence (rehabilitation facility)]. . . . [The defendant], while on probation with the previously noted conditions, rendered several dirty urines on at least seven occasions while on probation. One of the urines dated [August 27, 2013,] was positive for [tetrahydrocannabinol (THC)] with a level of 757. The [defendant] did not successfully complete treatment at [the rehabilitation facility] and was unsuccessfully discharged.3 The court finds that he was then rereferred to [the rehabilitation facility] by probation, and again was unsuccessfully discharged. . . .
“[P]robation elected to continue working with [the defendant] toward its intended goal of rehabilitation and did not submit a warrant for violation of probation, which would be a second violation of probation . . . [probation] continued to work with [the defendant] even after seven positive urines; and that the [defendant] eventually was arrested on [January 20, 2014]. . . . [The defendant‘s] conduct included grabbing the hair of a pregnant victim, pulling out at least one of her braids. . . . The [defendant] struck this pregnant female in the face with an open hand, causing pain. . . .4 [The defendant] attempted to run away from the police and struggled with those police officers.5 [The defendant committed the] crimes of breach of peace, assault in the third degree on a pregnant victim, [and] interfering with an officer . . . [and demonstrated an] inability to successfully complete treatment or to remain sober . . . . [Therefore] . . . the state . . . met its burden of proof by a preponderance of the
The defendant‘s sole claim is that the court deprived him of his right to due process by admitting into evidence the reports of the results of drug tests performed on his urine samples without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing.
The following additional facts are relevant to the disposition of this appeal. At the defendant‘s probation revocation hearing, the state sought to present testimony from Amanti about the results of the drug tests performed on the defendant‘s urine and to introduce the reports of such results into evidence as an exhibit. The drug tests were performed on samples of the defendant‘s urine collected by both probation and the rehabilitation facility between August, 2013, and December, 2013. These samples were sent to out-of-state laboratories to be analyzed and the laboratories would fax reports of the results to the Office of Probation. The analysts who performed the drug tests and authored the reports of the drug tests were not present to testify at the defendant‘s probation revocation hearing. The identity of these analysts is not explicitly contained in the record, nor is there any indication that the defendant had the opportunity to cross-examine these analysts prior to his probation revocation hearing.
During the state‘s direct examination of Amanti, the prosecutor asked him about the results of a drug test on one of the defendant‘s urine samples, collected on August 27, 2013. Before Amanti could answer, defense counsel objected on the basis that the report of the results of that drug test was not in evidence. Defense counsel argued that Amanti testifying about the drug test results was inadmissible because it was an unreliable form of double hearsay and a violation of the defendant‘s right to confrontation. With respect to the right to confrontation, defense counsel argued that admitting Amanti‘s testimony concerning the results of the drug test violated the defendant‘s right to confrontation as explicated by the Supreme Court in Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).6 The prosecutor responded that Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)7 and its progeny do not apply to probation revocation hearings. In response, defense counsel specified that, on the basis of the reasoning set forth in Bullcoming, the results of the drug test were unreliable hearsay without testimony from the person who performed the actual testing and were, thus, inadmissible. Defense counsel never explicitly argued that the admis-
After the court ruled that Amanti could testify about the results of the drug test, the state opted to “skip a little ahead and do something a little different” by introducing the reports of the results of the drug tests as an exhibit at the hearing. Defense counsel objected to the admission of the reports as an exhibit, again arguing that pursuant to Bullcoming, the reports of the results of the drug test were inadmissible hearsay because Amanti did not conduct the actual testing. The court, overruling the defendant‘s objections, admitted the reports into evidence. All but one of the reports in the state‘s exhibit indicated that marijuana was detected in the defendant‘s urine samples collected while he was on probation. The prosecutor then asked Amanti whether the defendant‘s urine samples tested positive for THC, which is an indication of the use of marijuana, and Amanti answered that they did several times.
The state argues that the defendant‘s due process claim was not preserved because, at the probation revocation hearing, the defendant did not object to the admission of the reports of the results of the drug tests as a violation of his right to due process. As a result, the state argues that the record is inadequate to review the defendant‘s claim that the admission of the results denied him of his right to due process. In response, the defendant argues that the claim was preserved or, if the claim is unpreserved, it is nonetheless reviewable pursuant to Golding. We agree with the state.
We first turn to a brief review of the principles relating to probation and the defendant‘s rights at a probation revocation hearing. “[P]robation is, first and foremost, a penal alternative to incarceration . . . . [Its] purpose . . . is to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. . . . [P]robationers . . . do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer‘s being at large. . . .
“The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. . . . Among other things, due process entitles a probationer to a final revocation hearing . . . . A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk . . . . This determination involves the consideration of the goals of probation, including whether the probationer‘s behavior is inimical to his own rehabilitation, as well as to the safety of the public. . . .
“On the other hand . . . a [probation] revocation proceeding . . . is not a criminal proceeding. . . . It therefore does not require all of the procedural components associated with an adversary criminal proceeding.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 180-83, 842 A.2d 567 (2004). As such, at a revocation proceeding, the state must prove each alleged violation of probation by a preponderance of the evidence in accordance with
“The due process clause of the fourteenth amendment mandates certain minimum procedural safeguards before that conditional liberty interest [of probation] may be revoked.” State v. Polanco, supra, 165 Conn. App. 570. Among these minimum procedural safeguards is the right to confrontation at a probation revocation hearing. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). With respect to the right to confrontation at a revocation of probation hearing, the Supreme Court has stated that minimum due process requires that the defendant be afforded “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . . .” Id.10 This court, with guidance from the Second Circuit Court of Appeals and the Federal Rules of Criminal Procedure, previously
This court recently concluded that a claim that a court denied a defendant‘s right to due process by admitting testimonial hearsay at a probation revocation hearing, without giving the defendant the opportunity to confront the declarant, was not preserved for appeal because the defendant, at the hearing, never argued to the trial court that it was required to conduct the balancing test discussed in Shakir to determine whether his right to due process had been violated. See State v. Polanco, supra, 165 Conn. App. 571. Polanco controls our determination as to whether the defendant‘s claim is preserved in the present case. As the record reveals, in both the defendant‘s initial objection to the admission of the reports of the drug test results and in the ensuing colloquy between defense counsel and the prosecutor, the defendant never argued that the trial court was required to conduct the balancing test to determine whether the admission of the reports of the drug test results denied him the right to due process. Accordingly, this claim was not preserved for appellate review.
The defendant contends that if his claim is unpreserved, it is nonetheless reviewable pursuant to State v. Golding, supra, 213 Conn. 239-240. Golding review, as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), allows this court to review an unpreserved claim when 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.” (Internal quotation marks omitted.) State v. Polanco, supra, 165 Conn. App. 572.
The appellate tribunal is free to respond to the defendant‘s claim by focusing on whichever Golding prong is most relevant. State v. Santana, 313 Conn. 461, 469-70, 97 A.3d 963 (2014). “[T]he inability to meet any one prong requires a determination that the defendant‘s claim must fail.” (Internal quotation marks omitted.)
Our Supreme Court discussed the first prong of Golding in State v. Brunetti, 279 Conn. 39, 55-56, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007), and stated: “[T]he defendant may raise . . . a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review. The reason for this requirement demands no great elaboration: in the absence of a sufficient record, there is no way to know whether a violation of constitutional magnitude in fact has occurred. Thus, as we stated in Golding, we will not address an unpreserved constitutional claim [i]f the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred . . . .” (Footnotes omitted; internal quotation marks omitted.) Id. Our analysis of whether the defendant‘s claim satisfies the first Golding prong is guided by our precedent in Polanco and Shakir. Polanco and Shakir both held that an unpreserved claim that a court violated a defendant‘s right to due process by admitting testimonial hearsay at a probation revocation hearing without according the defendant the right to confront the declarant did not satisfy the first Golding prong because the defendant did not object to the admission of such hearsay as a violation of the right to due process during the probation revocation hearing. State v. Polanco, supra, 165 Conn. App. 564-65, 576 (claim that court violated defendant‘s right to due process at probation revocation hearing by admitting laboratory test results without affording defendant opportunity to confront analyst who performed such tests was not reviewable pursuant to Golding because defendant did not object to admission of results as violation of his right to due process); State v. Shakir, supra, 130 Conn. App. 460, 468 (claim that court violated defendant‘s right to due process at probation revocation hearing by admitting videotape of social worker‘s interview with minor complainant without affording defendant opportunity to confront minor complainant was not reviewable pursuant to Golding because defendant did not object to admission of videotape as violation of his right to due process).
Polanco and Shakir control our resolution of whether the defendant‘s claim in the present case is reviewable pursuant to Golding.12 Both cases held that in order for a claim that the admission of testimonial hearsay at a probation revocation hearing, without the opportunity to confront the declarant, is a violation of the right to due process to be reviewable pursuant to Golding, there must be an adequate record from the probation revocation hearing that enables the appellate tribunal to balance (1) the defendant‘s interest in con-
Guided by our 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. The defendant, at the probation revocation hearing, did not object to the admission of the reports of the drug test results on the basis that the admission of such results violated his right to due process.13 Therefore, the state was not given adequate notice of the defendant‘s due process claim and, accordingly, did not provide the possible reasons for not calling the analysts who performed the drug tests. As a result, we are unable to balance the state‘s interest in not producing the persons who performed the drug tests against the defendant‘s interest in confronting those persons. Without this basis, we cannot determine whether a violation of due process occurred and, thus, the record is inadequate for Golding review of the defendant‘s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
In the present case, during the hearing, defense counsel argued that “had there been an objection to hearsay . . . [in Giovanni P.]—it was not lab result hearsay; it was testimony—[the Appellate Court] might have considered the question.” Although the defendant does not now argue on appeal that citing to this case preserved his claim or developed an adequate record for review, we observe that at the defendant‘s probation revocation hearing, defense counsel misconstrued the language in Giovanni P. Giovanni P. does not, contrary to what defense counsel suggested, support the contention that objecting to the admission of testimonial hearsay on hearsay grounds alone at a probation revocation hearing creates an adequate record for an appellate tribunal to review a claim that the admission of such testimonial hearsay denies a defendant his due process right to confrontation. Moreover, defense counsel‘s incorrect interpretation of Giovanni P. neither alerted the court that it needed to balance the defendant‘s due process right to confrontation against the state‘s interest in not presenting the witness, nor developed an adequate record for appellate review of the defendant‘s claim pursuant to Golding.