State v. Gauthier

• Decision Date: 03 December 2002
• Docket Number: (AC 21934)
• Citation: 73 Conn. App. 781,809 A.2d 1132
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOHN GAUTHIER.

73 Conn. App. 781

809 A.2d 1132

STATE OF CONNECTICUT v. JOHN GAUTHIER.

(AC 21934)

Appellate Court of Connecticut

Argued September 9, 2002

Officially released December 3, 2002

Flynn, Bishop and West, Js. Deborah G. Stevenson, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Thomas R. Garcia, assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, John Gauthier, appeals from the judgments of the trial court revoking his probation and imposing a ten year term of incarceration. The defendant claims that (1) the evidence was insufficient to support a finding that he had violated the conditions of his probation, (2) the court improperly combined the criminal trial and the revocation of probation hearing into a single proceeding, (3) the court evinced bias during the dispositional phase of the hearing in such a manner as to violate his constitutional right to an allocution in his defense, (4) the court's consideration of the violation of probation charge following his acquittal violated the constitutional prohibition against double jeopardy and was precluded by the principle of collateral estoppel.¹ We affirm the judgments of the trial court.

The court reasonably could have found the following facts. On December 5, 1997, the defendant was convicted, following a jury trial, of one count each of arson in the third degree in violation of General Statutes § 53a-113 (a), conspiracy to commit arson in the third degree in violation of General Statutes §§ 53a-48 and 53a-113 (a), arson in the first degree in violation of General Statutes § 53a-111 (a) (1) and conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-111 (a) (1). The defendant was sentenced to a total effective term of fifteen years incarceration, execution suspended after two years, with five years of probation. On September 30, 1998, the defendant was released from the custody of the department of correction and began his term of probation.

On August 6, 1999, the defendant was drinking with several friends at the 4-Play bar in Newington. Among the individuals with whom the defendant was socializing were Denise London, Chris Drwiega, David Romeiko and Romeiko's girlfriend, Meghan Dicioccio. Wojciech Budrewicz also was patronizing the bar that evening. Budrewicz approached the defendant's group and the parties fell into a dispute, which resulted in a short-lived but vigorous brawl during which Budrewicz got the better of Romeiko.

The defendant and Romeiko decided to go to Budrewicz's home to seek revenge for Romeiko's beating during the bar fight. The defendant's group, traveling in several cars, stopped at a Shell gasoline station, where either Romeiko or the defendant purchased two glass bottles of juice. After emptying the original contents of those bottles, the defendant filled them with gasoline. The group then proceeded to Budrewicz's house. Romeiko and the defendant then each threw one of the lighted gasoline filled bottles at Budrewicz's home, in which Budrewicz, his sister and their parents were sleeping. Although all four of the occupants managed to escape the resulting inferno, the house was consumed within minutes.

On August 7, 1999, the defendant was arrested and charged with arson in the first degree in violation of § 53a-111 (a) (1), attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, conspiracy to commit arson in the first degree in violation of §§ 53a-48 (a) and 53a-111 (a) (1), and illegal bomb manufacturing in violation of General Statutes § 53-80a. On September 20, 1999, the defendant was charged separately with violations of probation pursuant to General Statutes § 53a-32. The criminal charges and the violation of probation charges all arose from the same underlying activity.

From May 24, 2000, through June 7, 2000, the court conducted a combined trial and probation revocation hearing. The jury acquitted the defendant on all four of the criminal charges. On June 13, 2000, following the conclusion of the criminal trial, and in the absence of the jury, the court heard additional testimony and evidence regarding the alleged violations of probation.

On April 6, 2001, the court found that the defendant had violated the terms of his probation and sentenced him to a total effective sentence of ten years with probation for four years. This appeal followed.

I

We first address the defendant's claim that the evidence was insufficient to support the finding that he had violated the terms and conditions of his parole.

"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 entitled to draw reasonable and logical inferences from the evidence.. . . This court may reverse the trial court's initial factual determination that condition of probation 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 support it ... or when although there is evidence to support 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 determination, every reasonable presumption must be given in favor of the trial court's ruling...." (Internal quotation marks omitted.) State v. Jones, 55 Conn. App. 243, 247, 739 A.2d 697 (1999), cert. denied, 253 Conn. 922, 754 A.2d 798 (2000).

The record shows that sufficient evidence was presented to support the court's finding. The court, in its capacity as the trier of fact for the purpose of the violation of probation hearing, was not bound by the factual findings of the jury in the criminal case. The judge was entitled to weigh independently the credibility of the witnesses who testified and to come to a different conclusion regarding their credibility from that of the jury. Dicioccio testified that she saw the defendant and Romeiko each walk out of the Shell station carrying a Snapple bottle. Drwiega testified that he saw a Snapple bottle in the defendant's hand at the Shell station. Dicioccio testified that she saw the defendant and Romeiko dump the contents of the bottles out and that she saw the defendant refill those bottles with gasoline. Both Dicioccio and Drwiega testified that they saw the defendant tearing up a sheet that was in the trunk of his car while at the Shell station.² The testimony indicated that the defendant not only drove his car to Budrewicz's house voluntarily, but that he also threatened Dicioccio to obtain directions. Dicioccio further testified that she observed the defendant and Romeiko each throw one of the lighted bottles at Budrewicz's house. Drwiega testified that in the immediate aftermath of the fire-bombing, the defendant exclaimed, "Molotov cocktail. We took care of it."³ In the statement that he gave to the police following his arrest, the defendant could not completely deny his culpability for the arson. In that statement, the defendant claimed that due to the vast quantity of alcohol that he had consumed during the evening in question, he could not recall who threw the second bottle. He conceded, however, that it may have been him.

The defendant challenges the reliability of Drweiga and Dicioccio's testimony. Specifically, he argues that the credibility of their testimony is suspect because it conflicts with other testimony presented during the proceedings. The defendant also claims that any reliance on Dicioccio's testimony was improper because her credibility as an eyewitness was suspect given the conditions under which she claimed to have witnessed the defendant throw the incendiary device at Budrewicz's house⁴ and the fact that she had been charged with perjury in the criminal trial against Romeiko.

"[E]vidence is not insufficient ... because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible.... It is the [fact finder's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.... The [fact finder] can ... decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal quotation marks omitted.) State v. Colon, 71 Conn. App. 217, 224-25, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

The court was well aware of the factors raised by the defendant that would diminish the credibility of the witnesses. As the sole finder of fact in the probation revocation proceeding, however, the court was entitled to arrive at its own conclusion regarding the witnesses' credibility and what weight to afford their testimony. The court concluded that the testimony of the witnesses established that it was more probable than not that the defendant had violated the terms and conditions of his probation. Having reviewed the record, we conclude that that conclusion was not clearly erroneous.

II

The defendant next claims that the court improperly combined the criminal trial and the revocation of probation hearing into a single proceeding. The defendant seeks review of his claim pursuant to either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine.⁵

Under Golding, "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 clearly exists and clearly deprived the defendant of a fair trial; and (4) if...