State v. Strickland

• Decision Date: 17 October 1996
• Docket Number: No. 14593,14593
• Parties: STATE of Connecticut v. Greg STRICKLAND.
• Court: Connecticut Court of Appeals

Page 521

682 A.2d 521

42 Conn.App. 768

STATE of Connecticut v. Greg STRICKLAND.

No. 14593.

Appellate Court of Connecticut.

Argued March 18, 1996.

Decided Sept. 3, 1996.

Certification Granted Limited to the Following Issue Oct. 17, 1996.

Kent Drager, Assistant Public Defender, for appellant (defendant).

Jack W. Fischer, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Michael A. Pepper, Assistant State's Attorney, for appellee (plaintiff).

Before FOTI, LANDAU and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of the trial court revoking his probation. The defendant claims that the trial court improperly (1) found him to be in violation of probation because there was insufficient evidence, (2) failed to disqualify itself, (3) denied him the right personally to address the court, (4) deprived him of his right to counsel, and (5) refused to order an updated presentence investigation report. We affirm the judgment of the trial court.

The following facts adduced at the probation hearing are relevant to this appeal. On November 17, 1988, the defendant pleaded guilty to kidnapping in the second degree in violation of General Statutes § 53a-94, assault in the third degree in violation of General Statutes § 53a-61(a)(1) and reckless endangerment in the third degree in violation of General Statutes § 53a-63(a). The trial court sentenced the defendant to the custody of the commissioner of correction for an effective sentence of eleven years, suspended after four and one-half years, and placed him on probation for three years.

On November 1, 1992, the defendant was released from the custody of the commissioner of correction. On November 2, 1992, the defendant reported to his probation officer, Iris Santiago, who reviewed with the defendant the conditions of probation to which the defendant had agreed. The conditions included, inter alia, complying with criminal laws and reporting as directed by a probation officer.

The defendant failed to report to Santiago as directed on November 18 and December 16, 1992, January 13, February 3, March 17, June 9, July 17, August 25, October 6 and November 17, 1993, and January 11, February 16 and March 9, 1994. The defendant did report to Santiago as directed on April 21, May 12, July 21, September 8, October 20 and December 14, 1993, and January 19, 1994. The defendant also reported on December 18, 1992, February 5 and June 6, 1993, and March 16, 1994.

On March 10, 1994, the defendant was involved in an incident at the two bedroom apartment of Theodosia Provite. At 2 a.m., the defendant, who had known Provite for two years, stopped at her apartment. Provite was with Maurice Bacote in her upstairs bedroom. Provite's daughter was sleeping in the other upstairs bedroom. When Provite opened the front door for the defendant, he walked past her and went upstairs.

When the defendant reached the top of the stairs, he was met by Bacote. The defendant told Bacote: "Get your stuff and get out." Bacote replied: "No, get your stuff and get out." The defendant then said: "I know you don't have a gun. Shoot me." Several gunshots were then fired. After the shooting stopped, Provite, who had escaped to her kitchen, heard someone run down the stairs and out of the apartment. She then heard the defendant calling for help. She called 911 and went upstairs.

Provite found the defendant lying on the floor in the doorway to her daughter's bedroom. The defendant gave her a .38 caliber gun and told her "to put it up." Provite wrapped the gun in a towel and put it in her closet. Emergency medical technicians took the defendant to Yale-New Haven Hospital. The defendant had been shot in the thigh and the abdomen.

Police later discovered six bullet holes in the door to Provite's daughter's bedroom. The wall across the hall from the daughter's bedroom contained two bullet holes. Detective Robert Benson found five .38 caliber shell casings, a 9 millimeter shell casing, and two 9 millimeter bullets in the daughter's bedroom. He also found a 9 millimeter shell casing and three .38 caliber bullets in the hallway. Benson removed a 9 millimeter bullet from the bullet proof vest that the defendant was wearing and two .38 caliber bullets from the hallway wall opposite the daughter's bedroom.

Benson also found a .38 caliber gun wrapped in a towel in the closet of Provite's bedroom. The gun contained a cartridge housing two bullets. An empty 9 millimeter cartridge was found wrapped in the towel. The serial number on the .38 caliber gun had been drilled out and obliterated. The defendant did not possess a permit to carry a firearm.

Santiago prepared an arrest warrant application predicated on the defendant's failure to report as directed on February 16 and March 9, 1994, and for the commission of criminal attempt to commit assault in the first degree, altering or removing an identification mark on a pistol or revolver, risk of injury to a child, and carrying a pistol or revolver without a permit. By an information dated December 8, 1994, the defendant was charged with a violation of probation pursuant to General Statutes § 53a-32. By amended information dated January 25, 1995, the defendant was further alleged to be in violation of probation for criminal possession of a firearm.

On February 6, 1995, the trial court found, by a preponderance of the evidence, that the defendant failed to report as directed to his probation officer on February 16, March 9 and March 10, 1994. The trial court further found that the defendant had been carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a), ¹ had obliterated the identification number on a pistol or revolver in violation of General Statutes § 29-36 ² and had been in criminal possession of a firearm in violation of General Statutes § 53a-217(a). ³ The court concluded that the beneficial purposes of probation were not being served and imposed the remainder of the defendant's sentence, six and one-half years.

I

The defendant claims that the trial court improperly found that he had violated probation because there was insufficient evidence of the violations. To 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 probation. State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). Where the legal conclusions of the trial court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). Where the factual basis of the court's decision is challenged, we must determine whether the facts are supported by the evidence or whether they are clearly erroneous. Id., at 222-23, 435 A.2d 24. "A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling...." (Internal quotation marks omitted.) State v. Welch, 40 Conn.App. 395, 401, 671 A.2d 379 (1996). We find no merit in the defendant's claims.

A

The defendant first claims that his failure to report to the probation officer on February 16 and March 9, 1994, cannot properly be held to be violations of his conditions of probation. The defendant argues that the conditions of probation are analogous to the terms of a contract between the defendant and the state, and that the meaning of terms in a contract can be modified by the actions of the parties during the course of the contract. The defendant asserts, therefore, that because the probation department had accepted the defendant's erratic manner of reporting to the probation officer, it cannot now arbitrarily and retroactively choose two dates on which the defendant failed to report as violations of the condition that he report to a probation officer as directed.

The defendant claims that our Supreme Court analogized the conditions of probation to the terms of a contract in State v. Davis, supra, 229 Conn. at 285, 641 A.2d 370. We do not read Davis as supporting the defendant's claim. In Davis, the court held that under General Statutes § 53a-32 the state has the burden of establishing a violation of probation by a fair preponderance of the evidence. Id., at 295, 641 A.2d 370. In arriving at this conclusion, the court cited State v. Hodges, 798 P.2d 270, 278 (Utah App.1990), for the proposition that "the probation revocation procedure established by § 53a-32 is akin to a civil proceeding" and that " '[a]s in a contract dispute, proof of breach by the probationer is properly subject to a preponderance of the evidence standard'...." State v. Davis, supra, at 295-96, 641 A.2d 370, quoting State v. Hodges, supra, at 278.

Pursuant to General Statutes § 53a-30(c) "the court may modify or enlarge" a defendant's conditions of probation. State v. Smith, 207 Conn. 152, 169, 540 A.2d 679 (1988). This power is not given to the office of adult probation. ⁴ We conclude that the comparison used by the Supreme Court in Davis was limited to demonstrating that the preponderance of the evidence standard should be used under § 53a-32. Because the defendant concedes that he failed to report to Santiago as directed on February 16 and March 9, 1994, the trial court's finding was not clearly erroneous.

B

The defendant next claims that there was insufficient evidence for the court to find that the defendant possessed the gun found in Provite's apartment. The defendant argues that, absent evidence of possession, the trial court could not find that he violated any criminal laws. At trial, Provite testified that the...