State v. Carey, 14751

• Decision Date: 08 February 1994
• Docket Number: No. 14751,14751
• Citation: 228 Conn. 487,636 A.2d 840
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Thurlow CAREY.

Page 840

636 A.2d 840

228 Conn. 487

STATE of Connecticut v. Thurlow CAREY.

No. 14751.

Supreme Court of Connecticut.

Argued Dec. 2, 1993.

Decided Feb. 8, 1994.

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, was John M. Bailey, State's Atty. for appellant (state).

Todd D. Fernow, Hartford, for appellee (defendant).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is the determination of the proper remand when the outcome of a hearing for revocation of probation is tainted by the improper admission of hearsay evidence. Pursuant to a conviction of the defendant, Thurlow Carey, for assault in the third degree in violation of General Statutes § 53a-61, ¹ he was placed on probation for one year. Within the probationary period, the state sought revocation of the defendant's probation, pursuant to General Statutes § 53a-32, ² because he had allegedly violated a condition of his probation that required him to have no contact with his prior victim. The trial court, after a hearing, revoked the defendant's probation. The Appellate Court concluded that, in finding a violation of probation, the trial court had improperly relied on inadmissible hearsay evidence. State v. Carey, 30 Conn.App. 346, 620 A.2d 201 (1993). The Appellate Court not only reversed the trial court's ruling on hearsay, but also directed a judgment of acquittal. We granted the state's petition for certification to review the Appellate Court's remand order, ³ and now reverse.

The opinion of the Appellate Court describes the facts upon which it relied. "During the probationary period, the defendant was arrested twice for allegedly assaulting the victim [of his prior assault]. Following the first arrest, the defendant's probation officer, Sharon Rome, filed a motion for revocation of probation that cited as the reasons a new conviction and a violation of the special condition that the defendant have no contact with the victim. Following the second arrest, Rome filed a substitute motion, citing as the reason the defendant's 'subsequent arrests.'

"At the commencement of the revocation hearing, the defendant requested, 'in the nature of an oral bill of particulars' that he be informed of the specific manner in which he violated his probation. The state's attorney responded orally that the ground for revocation was the violation of the 'specific conditions of probation ... that he keep away from the [victim]. The subsequent arrests, all three of them, were specific arrests that have to do with the victim and the person ... whom he was ordered to stay away from and not have any contact.' Prior to closing arguments, the state again claimed that it 'has sought violation of probation based on the special condition of probation that [the defendant] have no contact with the victim in this case.'

"Rome was the only witness who testified at the hearing. Through Rome, the state introduced two police incident reports relating to the defendant's arrests. Defense counsel repeatedly objected to the admission of the reports on the basis that they were hearsay. Although Rome testified that she had not personally observed the defendant's conduct, she narrated the allegations set forth in the reports. She explained that the bases for initiating the revocation proceeding were the police reports and a telephone conversation with the victim, whom she had never met. The court sustained the defendant's hearsay objection to the telephone call and, therefore, did not permit Rome to testify concerning the contents of her conversation with the victim.

"No further evidence was offered by either party. The [trial] court found that the defendant had violated his probation and reinstated the original sentence. As expressed in its memorandum of decision, the court appeared to have found that the defendant violated not only the no contact provision, but also the provision that he not violate any criminal law of the United States, notwithstanding that he was not charged with the latter as a probation violation. Because a defendant cannot be found in violation of probation on grounds other than those with which he is charged, we will disregard the second finding." Id., at 348-49, 620 A.2d 201.

The Appellate Court noted that "[i]n the present case, because the revocation was not based on a subsequent conviction, the issue is whether the state presented sufficient evidence to show that the defendant's conduct, leading to the arrests, constituted an act sufficient to support the revocation. The standard of proof to be applied by the trial court in deciding whether a probationer has violated a condition of probation is the reasonable satisfaction standard, wherein the trial court must have a rational belief that the 'evidence is adequate or sufficient to prove a violation.' State v. Davis, 29 Conn.App. 801, 811, 618 A.2d 557 (1993). '[O]ur review is limited to reviewing whether such a finding was clearly erroneous.' Id., [at] 805 ." State v. Carey, supra, 350, 620 A.2d 201.

"The only evidence offered by the state, over the defendant's repeated hearsay objections, was the two police reports. These reports were admitted through the probation officer who had no independent knowledge of the material contained therein. She knew only that they were police reports pertaining to the defendant.

"These reports were undisputably hearsay. In its brief, the state argues that the police reports qualified as business records under General Statutes § 52-180 and were therefore admissible. This contention is invalid for two reasons. First, the reports were not offered or admitted as business records.... Second, the necessary foundation for admission was not provided.... The probation officer did not, and in all probability could not, testify to these requirements. The reports, therefore, are hearsay and do not qualify for admission as evidence under any established exception to the hearsay rule." Id., at 350-51, 620 A.2d 201.

The Appellate Court concluded that, as a matter of law, "hearsay testimony is admissible only if it is supported by other evidence. Hearsay evidence cannot be the basis of probation revocation if it is wholly unsupported by corroborative evidence, as it was here. If, for example, the probation officer had been competent to testify from personal knowledge, it would have been a question of the trial court's discretion as to whether there was sufficient support to allow the hearsay evidence." Id., at 354, 620 A.2d 201.

Summarizing its conclusions, the Appellate Court held: "In view of the fact that the police reports were wholly unsupported hearsay, they should not have been admitted into evidence. Because the state conceded that its only evidence was hearsay and we have concluded as a matter of law that it should not have been admitted, there was no evidence to support a probation violation finding. Accordingly, the trial court could not have been reasonably satisfied that the defendant had violated a term of his probation and, therefore, its finding of a violation is clearly erroneous. When the evidence adduced at a probation revocation hearing is insufficient, the defendant is entitled to a judgment of acquittal." Id., at 355, 620 A.2d 201.

In its appeal to this court, the state has challenged only the Appellate Court's order directing the acquittal of the defendant. The state has not questioned the validity of the Appellate Court's decision that, in a hearing for revocation of probation, hearsay evidence that is otherwise unsupported is inadmissible if the defendant raises a timely objection to its admissibility. Cf. State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). ⁴ The state maintains, however, that the improper admission of evidence at trial does not preclude a new revocation hearing at which it may offer probative evidence that is not hearsay in order to establish the defendant's probation violation.

According to the state, a new hearing, rather than an acquittal, is the appropriate remedy in this case in light of State v. Gray, 200 Conn. 523, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). In Gray, we held that a claim of insufficiency of the evidence must be evaluated by considering all the evidence adduced at trial, even evidence subsequently determined to have been improperly admitted. Id., 200 Conn. at 538, 512 A.2d 217. Otherwise, we observed, the prosecution would never be able to rely on the rulings of the trial court and would be obligated to adduce cumulative evidence to safeguard against the risk of an improper evidentiary ruling. Id. In this case, therefore, the state seeks the opportunity, at a new hearing, to present evidence from the police officers involved in the defendant's arrests or from other potential witnesses who might testify that the defendant violated the "no contact" condition in his order of probation.

The defendant offers two rejoinders to the state's argument. First, he contends that the state did not in fact rely, at trial, on the court's evidentiary rulings but simply failed to adduce probative evidence to establish his probation violation. Second, he contends that the sum total of the evidence adduced at trial was insufficient to establish his probation violation.

The defendant's first contention requires little discussion, because it flatly contradicts our holding in State v. Gray, supra. That decision presumed that the state would ordinarily make evidentiary choices in reliance on rulings of the trial court that might subsequently be found, on appeal, to have been improper. We did not contemplate that the state would have to make an evidentiary showing of its reliance on the trial court's rulings. In our view, it would undermine the rationale of Gray to require such an evidentiary showing, which would impose on the state the...