State v. White
| Decision Date | 29 July 1975 |
| Citation | 363 A.2d 143,169 Conn. 223 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Keith WHITE. |
John R. Williams, Special Public Defender, for appellant (defendant).
William F. Gallagher, Special Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Jerrod H. Barnett, Asst. State's Atty., for appellee (state).
Before HOUSE, C.J., and COTTER, LOISELLE, LONGO and SPEZIALE, JJ.
The defendant, after a plea of guilty, was convicted of the crime of burglary with violence. Thereafter, on January 14, 1972, he was sentenced to the Correctional Institution, Cheshire, for an indefinite term, execution suspended, and placed on probation for three years. As a condition of his probation, the court ordered that he remain at Daytop, Inc., hereinafter Daytop, for inpatient drug treatment until released. At the time of sentencing, the court (O'Sullivan, J.), in the presence of (1) the defendant, (2) his attorney, who also represents him on appeal in this case as special public defender, (3) his mother, (4) a representative from Daytop, and (5) the assistant state's attorney, stated in pertinent part:
On the date of sentencing the defendant, as the court stated, was already in a facility operated by Daytop, located in Waterbury, prior thereto having been released to its custody by the court (O'Sullivan, J.). The sentence recommended to the court for its consideration had been agreed to by the state and by the defendant. At the time of sentencing, Attorney Williams, who likewise represented the defendant at that time, stated that Daytop required a stay in its facility for a minimum period of eighteen months and a maximum of twenty-four months; that the defendant had a problem with drugs; and that his commission of the crime was a situation in which he was trying to get money for drugs. Attorney Williams informed the court that in his judgment the defendant was very bright and that, after the defendant has had a chance to get his mind together through the program they have at Daytop, the defendant was someone who would be able to make a substantial contribution to the community. At that time the defendant's attorney also presented to the court a letter from Samuel Redwine, the resident director at Daytop, which indicated that the facility wished to keep the defendant in its program. Attorney Williams urged the court to accept the sentence that had been recommended and, thereafter, the defendant and his mother, in response to a question by the court, indicated they had nothing to add.
Daytop is a corporation which has as its purpose the rehabilitation of drug-dependent people; it is a twenty-four hour per day, structured, live-in environment and includes group therapy, education and a restructuring of a person's social life. Its program is from eighteen to twenty-four months; eighteen months is the minimum time, and it accepts as participants in its program people who apply to stay for the prescribed period of time during which the corporation's personnel work with and rehabilitate them. One of the purposes of Daytop's program is to place the participants in jobs in the community so that they will be able to earn salaries and become self-sufficient; and before participants are placed on such jobs they are not permitted to leave the particular residential facility without the consent of the staff.
Only twelve days after the date of sentencing, however, on January 26, 1972, an application for an arrest warrant for violation of probation, accompanied by an affidavit subscribed and sworn to by Raymond Bykowski, probation officer, was made to the Superior Court in New Haven County. The affidavit, in addition to a recitation of the sentence and the special condition of probation, stated that notification had been received from Daytop that the defendant had left the treatment facility without permission on January 22, 1972, and that it would appear that the defendant was in violation of the specially imposed condition of probation; and requested a warrant pursuant to § 53a-32 of the General Statutes. Thereafter, on January 27, 1972, the court found probable cause for the issuance of the warrant. The defendant was arrested pursuant to the warrant on May 10, 1973. When he was presented before the court on May 31, 1973, he was represented by Attorney Williams. William F. Hayes, Jr., district supervisor, fourth district, department of adult probation, and the assistant state's attorney were likewise present in court.
At the court hearing on revocation (Saden, J.) held on May 31, 1973, Attorney Williams insisted that the mandate of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, decided May 14, 1973, seventeen days earlier, must be followed. The defendant's attorney did not specifically claim that the court should proceed to conduct a revocation hearing at that time to determine whether the defendant had violated the terms of his probation, and, if so, what the disposition of his case should be pursuant to § 53a-32 of the General Statutes. In the matter of a revocation of probation, it has been the Connecticut practice to conduct a hearing before a court or judge. However, it was noted by the court at the May 31, 1973 hearing that Gagnon provided for a two-step procedure whereby preliminary and final revocation hearings should be held. Until that decision no standard procedure had been followed or established in Connecticut for two hearings on an alleged probation violation. Consequently, because of the newness of that decision, the court decided, following counsel's insistence on 'those rights' under Gagnon, to continue the probation revocation hearing, which it was ready to start, until after a preliminary hearing had been held. Thereupon, the court informed William F. Hayes, Jr., district supervisor, who was present in court that a preliminary hearing within the probation department should be conducted by one of its personnel who had not had any contact with the defendant's case, and that a hearing officer should be appointed who would make the decision whether there was a basis (probable cause) for presenting the case to the court for a revocation of the defendant's probation. Thereafter, a preliminary hearing was conducted at the Community Correctional Center, New Haven, on June 11, 1973, to determine whether the defendant had violated any of the conditions of his probation. In addition to the defendant, Raymond Bykowski, probation officer, George Griffin, recorder, and William F. Hayes, Jr., district supervisor, were present. Bykowski, the defendant's probation officer, who also prepared the original presentence report, testified, and department records were referred to at the preliminary hearing. The defendant probationer refused to participate and produce evidence without counsel being present. The hearing officer decided that there was sufficient reason to hold the defendant for the charge of violation of probation because the special condition imposed by the court at the time of sentencing that he enter Daytop facilities for inpatient treatment and remain at Daytop until released was not complied with since he left the facilities on January 24, 1972, without Daytop permission. After the probation department's preliminary hearing, a second or final hearing on revocation was held in court on June 22, 1973, to determine whether the defendant's probation should be revoked pursuant to § 53a-32 of the General Statutes.
At the court hearing on revocation of probation Francis P. Petrillo, senior coordinator and drug rehabilitation counselor of Daytop, testified that the defendant arrived at Daytop's Waterbury facility in the beginning of January, 1972, and that he remembered the defendant and knew that he left Daytop's program without permission in January of 1972. Petrillo's testimony in court was not based upon his review of the defendant's records, which were not offered for introduction into evidence nor used or produced by Petrillo during his testimony. Bykowski testified that the defendant was one of the persons assigned to him as a probation officer; that he knew that the defendant was at Daytop as a result of the court sentence on January 14, 1972, and that either four or five days after the sentence he was notified that the defendant had left the program at Daytop. He received this information by telephone and by means of a letter from Samuel Redwine, resident director, that the defendant left Daytop without the consent of the staff on January 21, 1972. After completion of the full hearing the court revoked the defendant's probation.
The defendant claims the court erred at the final revocation hearing in admitting Petrillo's testimony and the Redwine letter in violation of General Statutes §§ 52-146d-52-146j and 21 U.S.C. § 1175, 1 both of which concern the privilege of confidentiality between patient and doctor, and argues that these statutes preclude the use of knowledge obtained as a result of that relationship. We cannot agree.
General Statutes § 53a-30(a)(2), which concerns conditions...
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