State v. Davis

• Decision Date: 05 January 1993
• Docket Number: No. 11099,11099
• Citation: 29 Conn.App. 801,618 A.2d 557
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Wayde DAVIS.

Page 557

618 A.2d 557

29 Conn.App. 801

STATE of Connecticut v. Wayde DAVIS.

No. 11099.

Appellate Court of Connecticut.

Argued Sept. 21, 1992.

Decided Jan. 5, 1993.

Frederick A. Freedman, J., dissented with opinion.

Dennis F. O'Toole, Asst. Public Defender, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Alfred Baldwin, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and FOTI and FREDERICK A. FREEDMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the trial court's judgment revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of a sentence received for a conviction of failure to appear in the first degree in violation of General Statutes § 53a-172. The defendant's sole argument on appeal is that the evidence presented at the probation hearing was insufficient to prove that the defendant had violated a condition of his probation. We affirm the judgment of the trial court.

On June 1, 1990, the defendant pleaded guilty to the charge of failure to appear and was sentenced to two years incarceration, execution suspended, and two years probation. At the time of sentencing, the defendant signed a standard form known as "The General Terms of Probation." The form outlined the conditions of his probation, including his agreement not to violate any criminal law of this state during the term of his probation.

While on probation, the defendant was arrested for committing the crimes of burglary in the second degree in violation of General Statutes § 53a-102, ¹ criminal mischief in the third degree in violation of General Statutes § 53a-117, ² and possession of narcotics in violation of General Statutes § 21a-279 (a). ³ The defendant was arrested for these charges at the scene, without a warrant. Subsequently, a trial court found probable cause for his arrest on these charges. The defendant was then accused by information of a violation of a condition of his probation, pursuant to which a hearing was held. General Statutes § 53a-32. ⁴

At the probation revocation hearing, the arresting officer gave the following uncontroverted testimony. On September 27, 1990, at approximately 12:50 a.m., he was dispatched to a large apartment complex to investigate a reported burglary in progress in the basement of the apartment complex. It was reported to the police that a black male was acting as a lookout while another black male was kicking open a door to the basement. Upon arriving at the building, the officer discovered that both the rear and basement doors of the building were damaged, as were the locks and wooden framing. The basement door was partially open. Upon entering the basement, the officer discovered two black men, the defendant and another man who was later identified as a resident of the building. The defendant was holding a spoon with white powder on it. The officer performed a valtox test on the powder, which tested positive for cocaine. The officer thereupon arrested both men. ⁵

On the basis of these uncontested facts, the trial court found that the defendant had violated his probation by violating the criminal laws of the state of Connecticut, and ordered the defendant to serve the original two year sentence.

The defendant's sole claim on appeal is that there was insufficient evidence presented to the trial court from which it could find that the defendant had violated the terms of his probation. ⁶ The gravamen of the defendant's argument is that the state failed to prove the commission of any criminal act by the defendant. This contention is founded on the defendant's premise that "[p]roving the commission of the criminal act necessarily means proving each element of the offense charged." The defendant argues that the state failed to prove all of the elements of any offense, by reliable and probative evidence, and that, therefore, the trial court's finding that the defendant violated his probation must be reversed. We disagree.

"The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation." Black v. Romano, 471 U.S. 606, 610, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985); see also State v. Durkin, 219 Conn. 629, 635, 595 A.2d 826 (1991). A revocation of probation hearing has two distinct components and two purposes. 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 whether probation should be revoked because the beneficial aspects of probation are no longer being served. Black v. Romano, supra 471 U.S. at 611, 105 S.Ct. at 2257-58; United States v. Czajak, 909 F.2d 20, 22 (1st Cir.1990). The former component requires that a fact be found by the trial court and the latter requires the exercise of the sound discretion of the trial court. United States v. Harris, 612 A.2d 198, 203 (D.C.App.1992). The purpose of the hearing is to determine whether the probationer violated a condition of his probation, and, if there is a violation, whether the probationer should serve the remainder of a sentence previously given.

Because the revocation hearing is comprised of these two distinct parts, our standard of review of the trial court's order revoking the defendant's probation differs, depending on which part of the hearing we are reviewing. With respect to the trial court's initial factual determination that a condition of probation has been violated, our review is limited to reviewing whether such a finding was clearly erroneous. Practice Book § 4061; Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992); see also United States v. Granderson, 969 F.2d 980, 982 (11th Cir.1992) (applying the clearly erroneous standard to factual findings of a violation of a condition in a revocation of probation case). Where the factual basis of the court's decision is challenged, we must determine whether the finding challenged is supported by the evidence or whether it is clearly erroneous because it is not supported by the evidence. See Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In making this determination, every reasonable presumption must be given in favor of the trial court's ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986).

When reviewing the second component of a probation revocation hearing, appellate inquiry is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. State v. Roberson, 165 Conn. 73, 80, 327 A.2d. 556 (1973); State v. Johnson, 11 Conn.App. 251, 257, 527 A.2d 250 (1987). " 'In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling ... [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.' " Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992); see also United States v. Parker, 952 F.2d 31, 33 (2d Cir.1991) ("district court's decision revoking probation will be reversed only if that decision constitutes an abuse of discretion"); United States v. Reber, 876 F.2d 81, 83 (10th Cir.1989) (appellate court has "authority to review revocation decisions for fundamental unfairness or for an abuse of discretion"); United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir.1983) (same). The defendant in this case does not argue that the trial court abused its discretion, but, rather, that his probation should not have been revoked because the trial court could not have properly found as a fact that the defendant violated a condition of his probation.

General Statutes § 53a-32(b) requires the trial court to consider the entire record when making the initial factual determination as to whether the probationer has violated a condition of his probation, and it cannot find a violation of probation, "unless such violation is established by reliable and probative evidence." See also Payne v. Robinson, 10 Conn.App. 395, 402, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 230 (1988). "Reliable and probative" concerns the nature of the evidence to be considered but is unrelated to the standard of proof that the court should apply in deciding the factual question of whether a violation of probation has occurred. In order to decide, therefore, whether the trial court, in using "reliable and probative evidence," as required by General Statutes § 53a-32, has properly found as a fact that a condition of probation has been violated, we must first determine the degree of certainty with which that fact must be found. The statute itself is silent as to the standard of proof, requiring us, therefore, to analyze existing case law for an answer.

Almost universally in federal and state jurisdictions, the standard of proof needed to find a violation of probation is less than proof beyond a reasonable doubt. ⁷ There is, however, a split of authority among the states as to whether the standard of proof should be clear and convincing evidence, a preponderance of the evidence, or reasonable satisfaction. Most states that have addressed the issue require either a preponderance of the evidence or reasonable satisfaction. Our research indicates that only three states currently apply a standard more stringent than either a preponderance of the evidence or reasonable satisfaction, but less than a reasonable doubt. ⁸ Additionally, we have found only one state that appears to require a standard less than either a preponderance or reasonable satisfaction. ⁹ The United States Supreme Court has made it clear...