State v. Pender

• Decision Date: 23 July 2008
• Docket Number: No. N07M-CR02-0214003-S.,No. N07M-MV05-0024907-T.,N07M-MV05-0024907-T.,N07M-CR02-0214003-S.
• Citation: 976 A.2d 99,51 Conn.Sup. 114
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. Andre PENDER.

976 A.2d 99

51 Conn.Sup. 114

STATE of Connecticut v. Andre PENDER.

No. N07M-MV05-0024907-T.

No. N07M-CR02-0214003-S.

Superior Court of Connecticut, Judicial District of New Haven, at Meriden.

July 23, 2008.

James R. Turcotte, supervisory assistant state's attorney, and Seth R. Garbarsky, assistant state's attorney, for the plaintiff.

Thomas M. Conroy, assistant public defender, for the defendant.

RUBINOW, J.

Violation of conditional discharge and violation of probation proceedings have been brought against the defendant, Andre Pender. The state argues that its evidence taken as a whole, is sufficient to establish Pender's constructive possession of marijuana while he was on conditional discharge and on probation, and that he thereby violated the express conditions that prohibited violation of the law. In contrast, the defendant urges the court to find that the state's evidence is insufficient to establish his possession of marijuana and to refrain from concluding that he violated his conditional discharge or his probation by remaining in the presence of others who were engaged in possessing or smoking this contraband.

The court finds the evidence in the present case insufficient to establish Pender's constructive possession of the contraband at issue. As such, the state has failed to meet its burden of proof and cannot prevail in these proceedings.

I LEGAL BURDEN

Both violation of conditional discharge and violation of probation proceedings are governed by the same standard, as set forth in General Statutes § 53a-32.¹ "[U]nder § 53a-32, a probation revocation hearing has two distinct components .... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation." State v. Fowler, 102 Conn.App. 154, 165, 926 A.2d 672 (2007), citing State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994); see also State v. Workman, 107 Conn.App. 158, 161, 944 A.2d 432 (2008); State v. Durant, 94 Conn.App. 219, 223-24, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007) (per curiam). In the course of this adversarial hearing, "[a] factual determination by a trial court as to whether a probationer has violated a condition of probation must ... be made." (Internal quotation marks omitted.) State v. Fowler, supra, at 167, 926 A.2d 672. Following this adversarial hearing, "[i]f the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked." State v. Davis, supra, at 290, 641 A.2d 370.

In both violation of conditional discharge and violation probation proceedings, the state bears the burden of proving each component by reliable and probative evidence and by a preponderance of the evidence. See State v. Treat, 38 Conn. App. 762, 767, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995); see also General Statutes § 53a-32(b); State v. Durant, supra, 94 Conn.App. at 225, 892 A.2d 302. Thus, to support a finding of a conditional discharge violation or "[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 or her probation. State v. Davis, supra, [229 Conn. at 302, 641 A.2d 370]. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence." (Internal quotation marks omitted.) State v Fowler, supra, 102 Conn.App. at 165, 926 A.2d 672; see also State v. Santos, 108 Conn.App. 250, 253, 947 A.2d 414 (2008). Moreover, in cases such as those at bar, it is "within the province of the court, as the trier of fact, to weigh the conflicting evidence and determine the credibility of witnesses .... State v. Kondracki, 51 Conn. App. 338, 342, 721 A.2d 567 (1998)." State v. Bryant, 98 Conn.App. 602, 607-608, 910 A.2d 243 (2006); see also State v. Durant, supra, at 226-27, 892 A.2d 302. Acknowledging that the state is entitled to present evidence that is circumstantial as its main support for the pending charge, our "law recognizes no distinction between circumstantial evidence and direct evidence so far as probative force is concerned." (Internal quotation marks omitted.) State v. Mungroo, 104 Conn.App. 668, 670, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).

II FACTUAL FINDINGS

The parties presented documentary evidence and testimony from: Pender's probation officer; a police officer; an investigator for the office of the public defender; Marcus Williams, another individual who was charged with possession of marijuana in the same transaction; and the defendant. Using the foregoing legal standards, the court finds the following relevant facts.

On June 17, 2005, in Docket No. N07M-CR02-0214003-S, Pender pleaded guilty to violating General Statutes § 21a-279 (a) and received a sentence of one year in prison, execution suspended, with two years of conditional discharge.² On September 9, 2005, in Docket No. N07M-MV05-0024907-T, Pender pleaded guilty to violating General Statutes § 14-215(c) and received a sentence of one year in prison, execution suspended after thirty minimum mandatory days of incarceration, with two years of probation.³ Pender's conditions of probation were imposed by the court and affirmed with him on December 16, 2005, when the probation contract was executed. The special conditions of probation included: successful completion of substance abuse evaluation and treatment, including random urine-breath samples; a charitable contribution in the amount of $500; no operation of a motor vehicle without a valid license; and participation in the victim impact panel. The general conditions stated: "Do not violate any criminal law of the United States, this state or any other state or territory." The defendant has conceded that like prohibition against violation of the law was a criterion of his conditional discharge, as well.

In the last minutes of January 30, 2007, Hamden police Officer Greg Curran drove his marked police vehicle past the TasManias Cafe at 1537 Dixwell Avenue in Hamden. He observed a white 1995 Cadillac Seville parked and idling in the lot adjacent to the cafe. He also observed a similarly situated, very small, gray 2006 Hyundai Sonata automobile in the cafe's parking lot. The Hyundai was occupied by three individuals.

Several minutes after midnight, on January 31, 2007, Pender entered the backseat of the Hyundai. A strong odor of freshly burned marijuana was present in the vicinity of and within the car. Pender, who had smoked marijuana in the past, remained in the backseat of the idling Hyundai for a number of minutes thereafter while a marijuana blunt was smoked by both Marcus Williams, the occupant of the driver's seat in the front, and by Anthony Siciliano, the occupant of the right front passenger seat.

At approximately 12:08 a.m., Curran drove back to the site, and observed both vehicles still parked with their engines running as they had earlier appeared. In his vehicle, Curran entered the parking lot and approached the Hyundai. He viewed both Williams and Siciliano reaching around under their seats, acting in a manner consistent with attempting to conceal a weapon or drugs. He observed no such conduct on the part of Pender, who remained occupying the backseat of the vehicle. As he approached the Hyundai, Curran "could smell the odor of what [he] recognized from [his] training and experience, to be marijuana coming from inside the vehicle."

Curran then spoke to the Hyundai's three occupants, each of whom denied that there was "any marijuana in ... the vehicle." Siciliano, the front seat passenger who had exhibited furtive movements, explained that they were "Just hanging out." When another officer arrived, Siciliano exited the vehicle in compliance with Curran's request. On the ground next to the driver's door, where Williams had been sitting, another officer observed wrappers from cigars and tobacco that had been removed from cigars, consistent with the common practice of emptying the contents of a cigar and then wrapping marijuana in the cigar wrapper to smoke as a blunt.

Curran then "asked Pender ... to exit the vehicle. He complied without incident." Curran searched Pender but found no weapons or contraband. However, while he was searching Pender, Curran again observed Williams reaching under the driver's seat. Curran then searched the Hyundai. Directly under the driver's seat, in the area where he had seen Williams reach twice, Curran found a bag containing a green leafy substance and two blunts rolled in cigar wrappers. In a small compartment under the vehicle's radio, located approximately midway between the seats in which Williams and Siciliano had been sitting, Curran found a small green plastic bag, also containing a green leafy substance. Curran found a clear plastic sandwich bag containing a green leafy substance located between the front passenger seat and the vehicle's center console within the small Hyundai vehicle. The green leafy substances found in the Hyundai tested positive for marijuana. Although the area in which the last container of marijuana could have been reached by either Siciliano sitting in the front passenger seat or by Pender sitting in the backseat, Curran had not observed any furtive movements by Pender that were consistent with the location of this contraband or any effort to secrete the substance. Insufficient evidence was presented from which the court could reasonably ascertain the specific quantity of marijuana that was found within that vehicle. There was no evidence that any cash was found in the Hyundai or that any cash was seized from any of its occupants.⁴

The state makes no claim that Pender made any incriminating statements concerning the contraband at...