State v. Dunbar

188 Conn.App. 635

205 A.3d 747

STATE of Connecticut

v.Timolyn DUNBAR

AC 40924

Appellate Court of Connecticut.

Argued January 10, 2019

Officially released March 19, 2019

David B. Bachman, assigned counsel, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Alvord and Flynn, Js.

DiPENTIMA, C.J.

The defendant, Timolyn Dunbar, appeals from the judgment of the trial court finding her in violation of her probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court improperly found a violation of probation on the basis of insufficient evidence, (2) her right to due process was violated by the identification procedures used in this case and (3) her right to due process was violated when the court denied her the right to confront an adverse witness. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On December 2, 2011, the defendant was sentenced to fifteen years of incarceration, execution suspended after three years, and three years of probation following her guilty plea and conviction for selling narcotics in violation of General Statutes § 21a-277 (a) and failure to appear in the first degree in violation of General Statutes § 53a-172. The defendant was released from the custody of the Commissioner of Correction on February 14, 2014, and signed her conditions of probation five days later. These conditions included the standard requirement that the defendant not violate any criminal law of the United States or Connecticut.

In 2015, Mark Heinmiller, a detective with the Westport Police Department, was a member of the Southwest Narcotics Task Force (task force).¹ On December 10, 2015, Heinmiller spoke with a confidential informant and set up a controlled purchase of crack cocaine. Heinmiller personally had used this confidential informant approximately thirty times in the past and described this individual as "proven and very reliable."

Later that day, Heinmiller and other members of the task force observed the defendant approach the confidential informant in the area of Park Avenue and Olive Street in Bridgeport. The defendant provided the confidential informant with crack cocaine in exchange for money. The defendant then left the area, coming within five feet of Heinmiller as he conducted his surveillance. The confidential informant later provided Heinmiller with a written statement about the drug sale. Heinmiller also noted that the confidential informant had told him that the seller of the crack cocaine identified herself as "Timberlyn" or "Timberland."

At a later date, one of the officers who had participated in the surveillance of this controlled drug purchase attended a meeting of the task force. At this meeting, he informed the other members that the person who had sold illegal drugs to the confidential informant went by the name of "Timberlyn" or "Timberland."² Other officers suggested that this person could have been the defendant. Following the meeting, Heinmiller entered the defendant's name into a "probation database" and, using a photograph contained therein, identified her as the seller of the crack cocaine to the confidential informant.

Heinmiller prepared an arrest warrant for the defendant and executed it in March, 2016. The defendant subsequently spoke with Heinmiller. She told him that she could not recall the events of December 10, 2015, and that she was "using drugs" at that time.

The state subsequently charged the defendant with violating her probation pursuant to § 53a-32. The court, Holden, J. , found that the defendant had violated the conditions of her probation by violating the criminal laws of this state or the United States.³ It further ordered that the defendant continue on probation and that the original sentence remain in effect. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found a violation of probation on the basis of insufficient evidence. Specifically, she argues that she was identified as the seller of the crack cocaine "entirely on unreliable hearsay from an unknown confidential informant related in court by a law enforcement officer."⁴ The state counters that the court properly relied on Heinmiller's testimony regarding his observations of the drug sale and his identification of the defendant as the seller of the crack cocaine to support its conclusion that she had violated her probation. We agree with the state.

As an initial matter, we set forth the relevant legal principles and our standard of review. "[T]he purpose of a probation revocation hearing is to determine whether a defendant's conduct constituted an act sufficient to support a revocation of probation ... rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law.... Thus, a probation violationneed be proven only by a preponderance of the evidence ." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Megos , 176 Conn. App. 133, 139, 170 A.3d 120 (2017).

A violation of probation hearing is comprised of an evidentiary phase and dispositional phase. State v. Preston , 286 Conn. 367, 375–76, 944 A.2d 276 (2008). "In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made.... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served." (Internal quotation marks omitted.) State v. Fletcher , 183 Conn. App. 1, 8, 191 A.3d 1068, cert. denied, 330 Conn. 918, 193 A.3d 1212 (2018) ; State v. Megos , supra, 176 Conn. App. at 139, 170 A.3d 120.

"With respect to the evidentiary phase of a revocation proceeding, [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.... This court may reverse the trial court's initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.... 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." (Citation omitted; internal quotation marks omitted.) State v. Tucker , 179 Conn. App. 270, 282–83, 178 A.3d 1103, cert. denied, 328 Conn. 917, 180 A.3d 963 (2018) ; see also State v. Maurice M. , 303 Conn. 18, 26–27, 31 A.3d 1063 (2011).

In the present case, Heinmiller arranged for the confidential informant to make a controlled purchase of crack cocaine on December 10, 2015. After placing the order, the confidential informant proceeded to the area of Park Avenue and Olive Street to obtain the drugs. Heinmiller, along with other members of the task force, kept the confidential informant under constant surveillance. From a distance of 100 feet, Heinmiller observed a woman approach the confidential informant and engage in a hand-to-hand drug transaction. As the seller walked away, she approached Heinmiller's location, walking past him at a distance of approximately five feet.

After learning the possible identity of the seller from a fellow officer, Heinmiller entered the information into a database, obtained a photograph of her and "immediately identified her as [the] suspect." Heinmiller also identified the defendant as the seller at the violation of probation hearing.

We cannot conclude that the evidence was insufficient to support the court's finding that the defendant had violated her probation. The court was free to credit Heinmiller's observations and identifications. On the basis of the evidence presented at the violation of probation hearing, the court's finding was not clearly erroneous. See, e.g., State v. Shakir , 130 Conn. App. 458, 468–69, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011). To the extent that the defendant contends that we should disregard Heinmiller's identification, we simply note that the weight to be given to the evidence and credibility determinations are decided solely by the trier of fact. Id., at 469, 22 A.3d 1285. This claim, therefore, must fail.

II

The defendant next claims that her right to due process was violated by the identification procedures used in this case. Specifically, the defendant argues that the court failed to perform the analysis of the reliability of the out-of-court identification pursuant to Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972),⁵ and that, as a result, her federal right to due process was violated.⁶ She further contends that the in-court identification by Heinmiller violated her right to due process because it was "irreparably tainted" by the use of an unnecessarily suggestive out-of-court identification procedure.⁷ The state counters that the defendant failed to preserve her claim pertaining to the out-of-court identification and that the record is inadequate to review it under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). Finally, the state asserts that the defendant's derivative claim regarding the in-court identification necessarily fails if we decline to review the merits of the due process challenge to the out-of-court identificati...