State v. Tucker

• Decision Date: 23 January 2018
• Docket Number: AC 38935
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Raymond TUCKER

179 Conn.App. 270

178 A.3d 1103

STATE of Connecticut

v.Raymond TUCKER

AC 38935

Appellate Court of Connecticut.

Argued October 18, 2017

Officially released January 23, 2018

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Margaret E. Kelley, supervisory assistant state's attorney, for the appellee (state).

Alvord, Prescott and Mihalakos, Js.

MIHALAKOS, J.

The defendant, Raymond Tucker, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a–32. On appeal, the defendant claims that the court (1) erred in admitting a 911 recording into evidence, (2) erroneously found that the defendant had violated his probation, and (3) abused its discretion in imposing a sentence of three years incarceration. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. On July 20, 2012, the defendant was convicted of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a–48 and 53a–59 (a) (4), and sentenced to six years incarceration, execution suspended after ten months, followed by five years of probation. On June 23, 2015, during his period of probation, the defendant punched the victim¹ in the face, causing her to suffer a swollen and bloody lip, as well as loose teeth. The victim called 911, reported the incident and requested an ambulance. Bridgeport Police Officer Minerva Feliciano was dispatched to the victim's home to investigate a domestic violence assault. When Feliciano arrived, the victim had already been transported to Bridgeport Hospital. Feliciano drove to the hospital, and found the victim crying with a swollen and bloody lip. On the same day, the defendant called his probation officer, Patrick Higgins, and told him that he had gotten into an altercation with the victim and that she had possibly called the police. On August 1, 2015, the defendant was arrested for this incident and charged with assault in the third degree in violation of General Statutes § 53a–61. Rather than charge the defendant with a violation of probation immediately, Higgins arranged for him to attend anger management classes, but the defendant did not attend. On October 6, 2015, the state obtained an arrest warrant for the defendant for violation of probation pursuant to § 53a–32 on the basis of the domestic violence incident.

Following the violation of probation hearing on December 1, 2015, the court found by a preponderance of the evidence that the defendant, by assaulting the victim, violated a criminal law, § 53a–61, thereby violating a general condition of his probation. As a result of this violation, the court revoked the defendant's probation and sentenced him to sixty-two months incarceration, execution suspended after three years, followed by three years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in admitting the 911 recording into evidence at the violation of probation hearing. Specifically, the defendant argues that "[t]he trial court erred in admitting the 911 tape as reliable hearsay, as it was unreliable and uncorroborated, not admissible under any applicable hearsay exception, and admitted in violation of the defendant's due process rights." The defendant also argues that the 911 recording was not properly authenticated. To the extent this claim is not preserved, the defendant seeks review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or, alternatively, reversal as plain error. The state counters that the trial court reasonably exercised its discretion in overruling the defendant's objection to the admission of the recording of the victim's 911 call. The state also argues that the defendant cannot prevail on his due process claim because the record is inadequate to review that claim. We agree with the state.

The following additional facts are necessary for the resolution of this claim. At the violation of probation hearing, the state presented the testimony of Feliciano and Higgins. The state also introduced a copy of the victim's medical records into evidence and sought to introduce an audio recording of the victim's 911 call. The defendant objected to the admission of the 911 recording, stating the grounds for his objection as a "lack of foundation." The court overruled his objection and allowed the 911 recording to be admitted into evidence as a full exhibit.² In the 911 recording, the victim reported to the dispatcher that the defendant had "hit [her] and put his hands on [her] and ... [her] teeth ... [were] messed up" and that "[h]e hit [her] in [her] mouth." The victim identified the defendant both by name and physical description, and also gave her own name and address to the dispatcher. Officer Feliciano testified that she was dispatched to the victim's address and later identified the victim by the same name at the hospital. While at the hospital, Feliciano also noticed that the victim had the injuries described in the 911 recording.

We turn to the defendant's claim that the trial court erred in admitting the 911 recording because it was not properly authenticated.³ The state concedes that the defendant's authentication claim was properly preserved by the defendant's timely "lack of foundation" objection.

We first set forth our standard of review. Challenges to a trial court's evidentiary rulings in a probation revocation hearing "will be overturned on appeal only where there was an abuse of discretion and a showing by the [defendant] of substantial prejudice or injustice.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. Young , 81 Conn. App. 710, 714, 841 A.2d 737, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004) ; see also State v. Bullock , 155 Conn. App. 1, 38, 107 A.3d 503, cert. denied, 316 Conn. 906, 111 A.3d 882 (2015).

At the outset, we emphasize that the Connecticut Code of Evidence does not apply to proceedings involving probation. Section 1–1 (d) (4) of the Connecticut Code of Evidence specifically provides: "The Code, other than with respect to privileges, does not apply in proceedings such as, but not limited to the following ... [p]roceedings involving probation." See also State v. Megos , 176 Conn. App. 133, 147, 170 A.3d 120 (2017) ("The evidentiary standard for probation violation proceedings is broad.... [T]he court may ... consider the types of information properly considered at an original sentencing hearing because a revocation hearing is merely a reconvention of the original sentencing hearing." [Internal quotation marks omitted.] ). Furthermore, "[i]t is well settled that probation proceedings are informal and that strict rules of evidence do not apply to them." (Internal quotation marks omitted.) State v. Shakir , 130 Conn. App. 458, 464, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

"Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.... Rather, there need only be a prima facie showing of authenticity to the court.... Once a prima facie showing of authorship is made to the court, the evidence, as long [as] it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity.... Of course, once this prima facie showing has been made, the opposing party may present evidence to dispute it. The test for the admission into evidence of sound recordings is the laying of a proper foundation to assure the authenticity of the recordings." (Citation omitted; internal quotation marks omitted.) State v. Peay , 96 Conn. App. 421, 434–35, 900 A.2d 577, cert. denied, 280 Conn. 909, 908 A.2d 541 (2006).

On the basis of our review of the record, we conclude that the trial court properly overruled the defendant's "lack of foundation" objection to the admission of the 911 tape. The court identified the unique numbering system of the recording to link it to this incident, as well as the contents of the recording and circumstances surrounding the incident, in order to authenticate that the recording was what the prosecutor claimed it to be. The defendant never questioned that the voice on the 911 recording was anything other than the victim's voice. Moreover, because strict admissibility rules do not apply to probation hearings; State v. Quinones , 92 Conn. App. 389, 392, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006) ; and the trier of fact was the court, not a jury, it was within the court's discretion upon listening to the audio recording to assess the reliability of the evidence in light of the circumstances reflected in it. See State v. Shakir , supra, 130 Conn. App. at 465, 22 A.3d 1285. In order to authenticate the recording, the court properly considered the contents of the recording, which identified the victim, her address, the defendant both by name and physical description, and the nature of the victim's injuries. See State v. Valentine , 255 Conn. 61, 77, 762 A.2d 1278 (2000) ("[t]elephone conversations may be authenticated by circumstantial evidence, if the party calling, in addition to stating his identity, relates facts and circumstances that, taken with other established facts, tend to reveal his identity" [internal quotation marks omitted] ). Thus, we cannot conclude that it was an abuse of discretion to allow the 911 recording into...