State v. Esquilin

179 Conn.App. 461

179 A.3d 238

STATE of Connecticut

v.Kason U. ESQUILIN

AC 38762

Appellate Court of Connecticut.

Argued October 16, 2017

Officially released January 30, 2018

Steven B. Rasile, assigned counsel, for the appellant (defendant).

David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

Keller, Elgo and Bear, Js.

KELLER, J.

The defendant, Kason U. Esquilin, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a–32 and imposing a four year prison sentence. On appeal, the defendant claims that the court deprived him of his right to due process by admitting into evidence reports of the results of drug tests performed on urine samples collected from the defendant, without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing. We conclude, in accordance with State v. Polanco , 165 Conn. App. 563, 571, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016), that this claim was not preserved and that the record is inadequate to review it pursuant to 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 and procedural history are relevant to our resolution of the defendant's appeal. On April 28, 2008, the defendant was convicted of the underlying offense of the sale of hallucinogens/narcotics in violation of General Statutes § 21a–277(a). On June 17, 2008, he was sentenced to ten years incarceration, execution suspended after two years, and three years of probation. The defendant was released from incarceration on September 10, 2010, and his probationary period began.

On March 21, 2012, the defendant was convicted of violating his probation pursuant to § 53a–32. He was sentenced to eight years incarceration, execution suspended after two years, and three years of probation. The terms of his probation, in addition to the standard conditions, required as special conditions, that the defendant (1) obey all federal and state laws, (2) not possess weapons, (3) submit to psychological evaluation and treatment, (4) take medications as prescribed, (5) submit to substance abuse evaluation and treatment, (6) not use or possess drugs and alcohol, (7) submit to random urine and alcohol sensor testing, (8) not associate with drug dealers, users, and gang members, (9) secure full time employment, and (10) pass a general education development course. On August 5, 2013, the defendant, after he reviewed the conditions of probation, acknowledged that he understood the conditions and would follow them. On August 27, 2013, the defendant again was released from incarceration and his probationary period commenced.

On January 29, 2014, an arrest warrant for the defendant was issued charging him with a violation of probation on the grounds that the defendant violated the following standard conditions of his probation: (1) "[d]o not violate any criminal law of the United States, this state or any other state or territory" and (2) "[s]ubmit to any medical and/or psychological examination, urinalysis, alcohol and/or drug testing, and/or counseling sessions required by the [c]ourt or the [p]robation [o]fficer." The defendant also was charged with failing to comply with the following special conditions of his probation: (1) submit to substance abuse evaluation and treatment, (2) do not use or possess drugs or alcohol, (3) submit to random urine and alcohol sensor testing, (4) do not associate with drug dealers, users, or gang members, and (5) obey all federal and state laws. The defendant denied that he committed any violations and a probation revocation hearing was held on April 2, 2015.

After hearing evidence and argument, the court found that the state had proven, by a preponderance of the evidence, that the defendant had violated his probation. The court found,¹ in relevant part: "[Probation] Officer [Robert] Amanti of the Office of Adult Probation spoke with [the defendant] about the conditions of his probation, including his requirement that he successfully complete treatment and remain free of any illicit substance.... [The defendant] acknowledged those conditions.... [O]n August 15, 2013, the [defendant] was confronted about his substance abuse.... [The defendant] indicated he was proud of getting high² and was referred for treatment at [the Southeastern Council on Alcoholism and Drug Dependence (rehabilitation facility) ].... [The defendant], while on probation with the previously noted conditions, rendered several dirty urines on at least seven occasions while on probation. One of the urines dated [August 27, 2013,] was positive for [tetrahydrocannabinol (THC) ] with a level of 757. The [defendant] did not successfully complete treatment at [the rehabilitation facility] and was unsuccessfully discharged.³ The court finds that he was then rereferred to [the rehabilitation facility] by probation, and again was unsuccessfully discharged....

"[P]robation elected to continue working with [the defendant] toward its intended goal of rehabilitation and did not submit a warrant for violation of probation, which would be a second violation of probation ... [probation] continued to work with the [defendant] even after seven positive urines; and that the [defendant] eventually was arrested on [January 20, 2014].... [The defendant's] conduct included grabbing the hair of a pregnant victim, pulling out at least one of her braids.... The [defendant] struck this pregnant female in the face with an open hand, causing pain. ...⁴ [The defendant] attempted to run away from the police and struggled with those police officers.⁵ [The defendant committed the] crimes of breach of peace, assault in the third degree on a pregnant victim, [and] interfering with an officer ... [and demonstrated an] inability to successfully complete treatment or to remain sober .... [Therefore] ... the state ... met its burden of proof by a preponderance of the evidence, and [proved that the defendant] violated conditions of his probation for the aforementioned conduct." (Footnotes added.) After the conclusion of the dispositional phase, the court revoked the defendant's probation and sentenced him to four years of incarceration. This appeal followed.

The defendant's sole claim is that the court deprived him of his right to due process by admitting into evidence the reports of the results of drug tests performed on his urine samples without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing.

The following additional facts are relevant to the disposition of this appeal. At the defendant's probation revocation hearing, the state sought to present testimony from Amanti about the results of the drug tests performed on the defendant's urine and to introduce the reports of such results into evidence as an exhibit. The drug tests were performed on samples of the defendant's urine collected by both probation and the rehabilitation facility between August, 2013, and December, 2013. These samples were sent to out-of-state laboratories to be analyzed and the laboratories would fax reports of the results to the Office of Probation. The analysts who performed the drug tests and authored the reports of the drug tests were not present to testify at the defendant's probation revocation hearing. The identity of these analysts is not explicitly contained in the record, nor is there any indication that the defendant had the opportunity to cross-examine these analysts prior to his probation revocation hearing.

During the state's direct examination of Amanti, the prosecutor asked him about the results of a drug test on one of the defendant's urine samples, collected on August 27, 2013. Before Amanti could answer, defense counsel objected on the basis that the report of the results of that drug test was not in evidence. Defense counsel argued that Amanti testifying about the drug test results was inadmissible because it was an unreliable form of double hearsay and a violation of the defendant's right to confrontation. With respect to the right to confrontation, defense counsel argued that admitting Amanti's testimony concerning the results of the drug test violated the defendant's right to confrontation as explicated by the Supreme Court in Bullcoming v. New Mexico , 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).⁶ The prosecutor responded that Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)⁷ and its progeny do not apply to probation revocation hearings. In response, defense counsel specified that, on the basis of the reasoning set forth in Bullcoming , the results of the drug test were unreliable hearsay without testimony from the person who performed the actual testing and were, thus, inadmissible. Defense counsel never explicitly argued that the admission of the test results violated the defendant's right to due process, which is his sole claim on appeal. The court overruled defense counsel's objection, finding "that the testimony being elicited now and the use of the document is not just a testimonial variety of hearsay that's unsupported. This is a document that the state wishes to reference through the testimony of [Amanti] along the lines of what is clearly admissible under Connecticut law .... So the court's going to at this point overrule the objection by the defense ...."

After the court ruled that Amanti could testify about the results of the drug test, the state opted to "skip a little ahead and do something a little different" by introducing the reports of the results of the drug tests as an exhibit at the hearing. Defense counsel objected to the admission of the reports as an exhibit, again arguing that pursuant to Bullcoming , the reports of the results of the drug test were inadmissible hearsay because...