State v. Jackson

• Decision Date: 30 June 2020
• Docket Number: AC 41916
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Sean JACKSON

198 Conn.App. 489

233 A.3d 1154

STATE of Connecticut

v.Sean JACKSON

AC 41916

Appellate Court of Connecticut.

Argued January 8, 2020

Officially released June 30, 2020

James B. Streeto, senior assistant public defender, with whom was Edward Duarte, former certified legal intern, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Christian M. Watson, supervisory assistant state's attorney, for the appellee (state).

Alvord, Bright and Beach, Js.

BEACH, J.

The defendant, Sean Jackson, appeals from the judgment of the trial court revoking his probation and imposing a sentence of six years of incarceration. On appeal, the defendant claims that (1) the evidence was insufficient to support a finding that he violated his probation, (2) the court erred in admitting

hearsay testimony at the probation revocation hearing, and (3) the court abused its discretion when it imposed a sentence of six years of incarceration.

We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the defendant's claims on appeal. On June 21, 2006, the defendant pleaded guilty to one count of robbery in the first degree and one count of conspiracy to commit robbery in the first degree, and was sentenced to twenty years of incarceration, execution suspended after ten years, followed by five years of probation.¹ On January 23, 2013, the defendant was released from incarceration and began serving his probation.

On September 23, 2013, the defendant was arrested for assault in the third degree and disorderly conduct. On November 12, 2013, the court found the defendant in violation of probation on the basis of that arrest. The court revoked the defendant's probation and imposed a new sentence of ten years of incarceration, execution suspended after eighteen months, followed by fifty-four months of probation.² On January 16, 2015, the defendant was released from incarceration and began serving the new term of probation. The conditions of probation that applied to the defendant when he was released on January 16, 2015, included a requirement that he not violate any criminal law of the United States, the state of Connecticut or any other state or territory, and a requirement that he report to the Office of Adult Probation as directed by the probation officer. On April 26, 2017, the defendant was arrested and charged with possession of a controlled substance in violation of

General Statutes § 21a-279 (a) (1) and possession of a controlled substance with intent to sell in violation of General Statutes (Rev. to 2017) § 21a-278 (b). On June 15, 2017, the defendant was charged with violation of probation on the basis of this arrest as well as two incidents in which he failed to report to the Office of Adult Probation.

The trial court held a hearing on the violation of probation charge on February 5, 2018. At the hearing, Joseph Mena, the defendant's probation officer, testified that the defendant had failed to report to the Office of Adult Probation on October 15, 2015, and July 7, 2016. These instances were recorded as "no call, no show," meaning that the defendant neither notified his probation officer that he was not going to report nor followed up after the missed appointment. Mena further testified that the Office of Adult Probation did not initiate violation of probation proceedings solely on the basis of these failures to report.³

Joseph Halt, who was employed as a police officer with the city of New Britain in 2017, testified regarding the circumstances of the defendant's arrest on April 26, 2017. Halt testified that, on that date, he and Larry Smith, a detective, conducted surveillance of an apartment building located at 59 Daly Avenue in New Britain. The surveillance was undertaken because of information received from a confidential informant that an individual nicknamed J, later identified as Jeremy Lawrence, was selling crack cocaine from his apartment on the first floor of 59 Daly Avenue.⁴ While conducting

the surveillance, Halt observed a 2013 black Toyota Camry pull up to the building. A passenger got out of the vehicle and went into the building. The passenger exited the building within five minutes and returned to the vehicle. Halt testified that, on the basis of his training and experience, such behavior was indicative of possible street sales or narcotic sales.

Halt testified that after the passenger returned to the vehicle, the car began to drive away, and he and Smith followed it. After observing two motor vehicle violations, they stopped the vehicle. Once the vehicle had pulled over, Smith approached the driver's side and Halt approached the passenger side. As Halt approached the vehicle, he observed the driver, later identified as Sean Jackson, Sr., the defendant's father (Jackson), shifting in his seat. When Halt and Smith asked the occupants of the vehicle where they were coming from, the passenger, later identified as the defendant, explained that they had come from Hartford to visit J. Upon inquiry, the defendant did not explain why his visit with J was so brief. Jackson indicated that he had just dropped off his son and they were on their way back. Smith asked the defendant to exit the vehicle so that he and Jackson could be interviewed separately. After the defendant exited the vehicle, Halt observed Jackson reaching between the seat and the center console. Halt also observed that Jackson had a pocketknife on his right hip, which Jackson handed to Halt upon request.

After Jackson handed the pocketknife to Halt, Halt observed Jackson reaching for the center console again. Halt asked Jackson to exit the vehicle and, once he had done so, Halt searched that area of the vehicle and found an "untied bag with [an] off-white, rock-like substance." A field test of the substance revealed the presence of cocaine, later determined to weigh 1.9 grams. The area where the substance was found in the vehicle was "within an arm's reach" of the defendant. The

police also found a razor blade in a small compartment of the vehicle between the driver's seat and the door. Again, on the basis of his training and experience, Halt testified that 1.9 grams of crack cocaine would be split up by using a razor blade or some sort of sharp object.

Neither the defendant nor Jackson claimed ownership of the cocaine. They both were arrested for possession of narcotics and possession of narcotics with intent to sell. Halt testified that the defendant and Jackson were arrested because they both had constructive possession of the cocaine, which was "well within both of their reach." The defendant had $672 in various denominations in his possession at the time of his arrest. The money was divided and the defendant had $75 in one pocket and $595 in another pocket.⁵ The money was not in a wallet. Halt testified that this would be indicative of a very quick sale and departure from the location. Jackson, who had numerous prior convictions for drug related offenses, was in possession of $4895 at the time of his arrest.

Ann Louise Lennon, a secretary with Connecticut Media House, a marketing company, next testified regarding the defendant's employment. According to Lennon, the defendant was employed by Connecticut Media House in April, 2017, and worked approximately twenty hours per week depending on the needs of the business. Lennon testified that the defendant earned minimum wage plus a commission.

At the conclusion of the hearing, the court found that the defendant had violated his probation as to both grounds. As to the first ground, the court found that the defendant had violated his probation by failing to report to the Office of Adult Probation on October 15, 2015, and July 7, 2016, without good cause. As to the

second ground, the court found that the defendant knowingly possessed crack cocaine and possessed it with intent to sell.⁶ The court thereafter revoked the defendant's probation and sentenced him to six years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in finding that he violated his probation, as the evidence was insufficient to prove constructive possession of the narcotics that formed the basis for his April 26, 2017 arrest. He also argues that the two incidents in which he failed to report to the Office of Adult Probation were "nonviolations in the eyes of his probation officer." We will address these claims in turn.

We begin our analysis by setting forth the applicable standard of review. "[T]he purpose of a probation revocation hearing is to determine whether a defendant's conduct constituted an act sufficient to support a revocation of probation ... rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of criminal law. ... Thus, a probation violation need only be proven by a preponderance of the evidence ....

"A violation of probation hearing is comprised of an evidentiary phase and dispositional phase. ... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Dunbar , 188 Conn. App. 635, 640–41, 205 A.3d 747, cert. denied, 331 Conn. 926, 207 A.3d 27 (2019).

With respect to the evidentiary phase of a revocation proceeding, "[t]o 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...