State v. Polanco

• Decision Date: 17 May 2016
• Docket Number: No. 36502.,36502.
• Citation: 140 A.3d 230,165 Conn.App. 563
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Shiloh POLANCO.

165 Conn.App. 563

140 A.3d 230

STATE of Connecticut

v.Shiloh POLANCO.

No. 36502.

Appellate Court of Connecticut.

Argued Nov. 30, 2015.

Decided May 17, 2016.

Peter G. Billings, with whom, on the brief, was Sean P. Barrett, New Haven, for the appellant (defendant).

Emily L. Graner Sexton, special deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and PRESCOTT and BISHOP, Js.

DiPENTIMA, C.J.

The defendant, Shiloh Polanco, appeals from the judgment of the trial court revoking his probation and imposing a thirty month prison sentence. On appeal, the defendant claims that he was denied his right to due process under the fourteenth amendment to the United States constitution¹ by the court's admission into evidence of a laboratory report when the author of that report was not present and available for cross-examination. We conclude that this claim was not preserved and that the record is inadequate to review it under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). Accordingly, we affirm the judgment of the trial court.

The following facts are necessary for our resolution of this appeal. On August 16, 2006, the defendant pleaded guilty to violating General Statutes § 21a–277 (a), and was sentenced to ten years incarceration, execution suspended after three years, and five years of probation. One of the terms of his probation was that he not violate the criminal laws of the United States or any state. The defendant admitted to violating his probation on August 3, 2012, and, as a result, his term of probation was continued and he paid a $5000 fine.

The defendant was arrested in New York state on November 6, 2012, and charged with criminal possession of marijuana in the second degree and various motor vehicle violations. On February 6, 2013, an arrest warrant was issued in Connecticut for a violation of probation.² The defendant denied this charge and a hearing was held over a six month period.

During the hearing, the court heard the following testimony. On November 6, 2012, Steven Stromberg,³ a police officer employed by the Westchester County Department of Public Safety in the state of New York, effectuated a traffic stop after noticing a large crack in the windshield of a vehicle driven by the defendant. Stromberg questioned the defendant and eventually requested that he exit the vehicle. The defendant complied, and the two discussed some irregularities with the defendant's paperwork. Stromberg asked if he could perform a patdown search, and the defendant objected. At that point, the defendant placed his hand in his pocket. Stromberg, fearing for his safety, drew his service weapon, ordered the defendant to the ground, and placed him in handcuffs.

Stromberg subsequently determined that the vehicle's registration had been suspended for unpaid parking tickets. He elected to impound the vehicle for the suspended registration and for having improper license plates. Stromberg performed an inventory search of the vehicle and found seven heat sealed bags of what he suspected was marijuana in the trunk.

The heat sealed bags were transported to a laboratory for testing. Stromberg received a report, which the state sought to have admitted as an exhibit at the hearing.⁴ The defendant, noting that this report was actually an affidavit from an employee of the laboratory named Stephanie Brumley,⁵ objected on the basis of the United States Supreme Court's decision in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009),⁶ and General Statutes § 53a–32. Specifically, the defendant argued that for the report to be admitted into evidence, its author, Brumley, had to be present in court and subject to cross-examination. He later clarified that his argument was not based on the rule against hearsay,⁷ but the sixth amendment right to confrontation⁸ and his statutory right to cross-examine witnesses as provided in § 53a–32 (c).⁹

The court overruled the defendant's objection. Specifically, it stated: “I'm going to overrule the objection because I need to reconcile the broadly acknowledged ability for reliable hearsay evidence to be considered in the context of a violation of probation hearing and I need to weigh that against the explicit language of the statute, which says that a defendant in such a hearing shall have the right to cross-examine witnesses. To the extent that that language was read literally such that it would operate to prohibit any hearsay evidence, that would seem to be completely at odds with the body of case law, which has over a long period of time established the proposition that reliable hearsay evidence is admissible. I think the—the way—the most reasonable way to read the words of those statutes is to give [the defendant] the opportunity to cross-examine those witnesses who are here present testifying on behalf of the state, and you're taking advantage of that as we speak....”

The defendant iterated that his objection was not based on a claim of hearsay but on the sixth amendment's confrontation clause. The court explained that it had overruled the objection because the admission of the laboratory report, which was reliable hearsay evidence in the court's opinion, did not violate the defendant's right under the confrontation clause in the context of a violation of probation hearing.

After hearing evidence and argument, the court found that the state had proven, by a preponderance of the evidence, that the defendant violated his probation “in that he was in possession of a substantial amount of marijuana, in violation of the laws of the state of New York, where the conduct took place and that conduct was a violation of New York law.” It also determined that continued probation would not be a useful exercise. The court revoked the defendant's probation and sentenced him to thirty months incarceration.¹⁰ This appeal followed.

As we previously explained, the defendant argued to the trial court that both his sixth amendment right to confront Brumley and his statutory right to cross-examine her were violated. On appeal, however, the defendant has reformulated his claim, arguing solely that his fourteenth amendment right to due process was violated by the admission into evidence of the laboratory report when Brumley was not in court and subject to cross-examination.¹¹ Specifically, he argues that the court should have balanced his interest in confronting Brumley against the reasons, if any, asserted by the state for not presenting her as a witness. We conclude that the record is inadequate to review the defendant's sole and unpreserved appellate claim.

Before addressing the specifics of this appeal, we set forth certain principles related to probation revocation proceedings. Our Supreme Court has explained that probation is a penal alternative to incarceration, and its purpose is to provide a period of grace in order to aid in the rehabilitation of the individual. State v. Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004). It also noted that persons on probation do not enjoy absolute liberty but rather “conditional liberty properly dependent on observance of special [probation] restrictions.... These restrictions are meant to assure that the probation serves a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large.” (Internal quotation marks omitted.) Id. This conditional liberty, however, is a privilege that once granted, constitutes a constitutionally protected interest. State v. Barnes, 116 Conn.App. 76, 79, 974 A.2d 815, cert. denied, 293 Conn. 925, 980 A.2d 913 (2009). The due process clause of the fourteenth amendment mandates certain minimum procedural safeguards before that conditional liberty interest may be revoked.¹² Id.

In State v. Shakir, 130 Conn.App. 458, 467, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011), we noted that the due process safeguards are codified in Federal Rule of Criminal Procedure 32.1 and include “an opportunity to ... question any adverse witness unless the court determines that the interest of justice does not require the witness to appear....” We further explained that the court must balance the defendant's interest in cross-examination against the state's good cause for denying the right to cross-examine. Id. Specifically, we cited to case law from the United States Court of Appeals for the Second Circuit and stated: “In considering whether the court had good cause for not allowing confrontation or that the interest of justice [did] not require the witness to appeal ... the court should balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay.” (Citation omitted; internal quotation marks omitted.) Id., at 468, 22 A.3d 1285, citing United States v. Williams, 443 F.3d 35, 45 (2d Cir.2006) ; see also State v. Giovanni P., 155 Conn.App. 322, 335, 110 A.3d 442, cert. denied, 316 Conn. 909, 111 A.3d 883 (2015). Mindful of these principles, we turn to the specifics of the defendant's appeal.

The defendant never argued to the trial court that it was required to conduct the balancing test to determine whether his right to due process had been violated. The claim now before us, therefore, was not preserved for appellate review.¹³ See, e.g., State v. Johnson, 143 Conn.App.617, 624, 70 A.3d 168, cert. denied, 310 Conn. 950, 82 A.3d 625 (2013).

The defendant also claims, however, that this claim is reviewable pursuant to State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823. As we recently have noted, “[u]nder Golding review, as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can prevail on a claim of constitutional error not preserved at trial...