State v. Oliphant, No. 29362.

973 A.2d 147

115 Conn.App. 542

STATE of Connecticut v. Anthony W. OLIPHANT.

No. 29362.

Appellate Court of Connecticut.

Argued April 13, 2009.

Decided July 7, 2009.

Laljeebhai R. Patel, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Joseph R. LaMotta, assistant state's attorney, for the appellee (state).

GRUENDEL, HARPER and FOTI, Js.

FOTI, J.

The defendant, Anthony W. Oliphant, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for six and one-half years. The defendant claims that the court improperly (1) restricted his cross-examination of the complaining witness, (2) refused to apply the exclusionary rule, (3) concluded that the evidence was sufficient to determine that he had violated his probation and (4) revoked his probation. We affirm the judgment of the trial court.

At the outset, we must consider whether there is an adequate record for review. An adequate record usually includes either a memorandum of decision or a transcript signed by the trial judge. Practice Book § 64-1. Also, the appellant is responsible for providing such to this court. Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn.App. 605, 607, 710 A.2d 190 (1998); Practice Book § 61-10. The defendant did not provide this court with either a memorandum of decision or a signed transcript. He did provide, however, an unsigned transcript of the proceeding. "On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court's findings and conclusions." In re Anthony E., 96 Conn.App. 414, 417, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006). We have reviewed the transcript of this case and conclude that it provides an adequate record for our review.

On September 1, 1995, the defendant was sentenced for a conviction of larceny in the first degree to fifteen years incarceration, execution suspended after seven years, followed by five years probation.¹ The defendant's probation commenced on August 30, 2002, subsequent to his release from prison. In the early hours of September 25, 2006, Robert Villano, a Hamden police officer, responded to a report of an assault on Rhonda Dixon, who was, at the time, the defendant's girlfriend. Villano met Dixon at the Ebony Lounge and took a signed statement from her about the assault. She alleged that the defendant physically attacked her at his residence after he accused her of stealing his wallet and became enraged. Villano referred the victim to a hospital for treatment of the injuries she sustained to her right eye from the assault. Subsequently, Villano secured an arrest warrant for the defendant on a charge of assault in the third degree.

On October 6, 2006, at approximately 5:30 p.m., Mark Sheppard, a Hamden police officer, went to the defendant's residence, 130 Cherry Ann Street, New Haven, to effectuate an arrest.² Sheppard, dressed in his police uniform, was driving in an unmarked police vehicle and had with him a photograph of the defendant. Sheppard did not see the defendant's vehicle, a red Ford Escort, in the driveway. He parked on the street in front of the defendant's residence and waited in his vehicle to see if the defendant returned. Sheppard soon saw the defendant's vehicle driving down Cherry Ann Street toward his residence. Sheppard recognized the defendant as the driver of the vehicle as it passed him and turned into the driveway of 130 Cherry Ann Street. Sheppard radioed for assistance, then drove his vehicle into the driveway, exited and approached the passenger's side of the defendant's vehicle. Through the open window, Sheppard informed the defendant that there was a warrant for his arrest and asked that he turn off the motor and step out of the vehicle. The defendant was non-compliant, became verbally abusive toward Sheppard and reached into his waistband. Sheppard unholstered his gun, pointed it at the defendant and directed him to put his hands on the steering wheel. The defendant still did not comply with Sheppard, rolled up his windows, placed the car into gear and backed up several feet onto the lawn of his residence. Because the defendant's car windows were tinted, Sheppard broke the passenger window with his baton so as to keep the defendant visible and, again, directed the defendant to turn the motor off. William Onofrio, a Hamden police officer, arrived soon after at the scene to assist Sheppard.

Onofrio opened the driver's side door of the vehicle, at which time the defendant exited the vehicle. The defendant complied initially with the directive to lie face down on the ground, and Onofrio attempted to handcuff him. Onofrio managed to secure only the defendant's right wrist with the handcuff when he became noncompliant and combative with the officers. Sheppard used his Taser gun on the defendant to no effect.³ The defendant then stood up and struck Onofrio on the head with the unsecured handcuff. The defendant remained combative and nonresponsive to the officers' directives. Sheppard then fired his Taser gun at the defendant, but the defendant removed the probes from his chest before Sheppard could deliver an electric charge. The defendant then ran toward a wooded area behind his house. Onofrio and Sheppard pursued him and repeatedly directed the defendant to cease resisting their efforts to arrest him. The defendant picked up a large tree branch,⁴ held it like a baseball bat and threatened the officers. Sheppard and Onofrio trained their weapons on the defendant and ordered him to drop the branch. The defendant took several steps toward the officers before relinquishing the branch. He then ran back toward the residence. The officers pursued the defendant and attempted to restrain him as he continued to resist their efforts and to punch the officers. It was not until two more police officers arrived at the scene and assisted Sheppard and Onofrio that the defendant was fully handcuffed and in police custody.

A violation of probation hearing was held, after which the court revoked the defendant's probation on the basis of the evidence presented and committed him to the custody of the commissioner of correction for six and one-half years. In its oral ruling after the adjudicative phase of the hearing, the court found that the state had presented reliable and probative evidence and had proven by a preponderance of the evidence that the defendant had violated his probation by committing the crime of assault in the third degree for his attack on Dixon on September 25, 2006. The court also found that the defendant had committed the crimes of assault in the second degree, interfering with an officer and threatening for his actions on October 6, 2006, when Sheppard and Onofrio attempted to effectuate his arrest. The court found that the defendant had violated the standard condition of his probation that he not violate any criminal law of the United States, this state or any other state or territory. The court then conducted the dispositional phase of the hearing and determined that the beneficial aspects of probation were no longer being served. The court revoked the defendant's probation and sentenced the defendant to serve six and one-half years incarceration. This appeal followed. Further facts will be set forth as necessary.

I

The defendant first claims that the court improperly restricted his cross-examination of the complaining witness. Specifically, the defendant argues that the court abused its discretion in not allowing him to recall the complaining witness for further cross-examination.⁵ We disagree.

The following additional facts are relevant to the defendant's claim. Initially, the defendant was represented at the hearing by attorney Omar Williams. On September 24, 2007, Williams cross-examined Dixon, the complaining witness for the September 25, 2006 incident. On September 28, 2007, the defendant requested that the court allow him to represent himself. The court found, after an extensive canvass of the defendant, that he was competent to waive counsel and that his waiver was knowing, intelligent and voluntary. The court also appointed Williams as standby counsel. Soon after, the defendant conducted the cross-examination of Villano. During the cross-examination, the defendant questioned Villano about the fact that both his report detailing the incidents of September 25, 2007, and his affidavit in support of the arrest warrant for the defendant, stated that Dixon ran from the defendant's home to the Ebony Lounge after the assault.⁶

On October 22, 2007, during his case-in-chief, the defendant sought to recall Dixon as a witness. The court noted that the witness had already been subject to direct and cross-examination. The state objected and requested that the court require the defendant to make an offer of proof to establish a valid reason for his recalling Dixon.⁷ The court then recessed to allow the defendant to confer with standby counsel to prepare an offer of proof.⁸ After the court reconvened, the defendant, essentially, stated that he wanted to recall her for two reasons: (1) to impeach her through her past conduct that revealed her to be a self-destructive "serial sexual predator" and (2) to explore apparent discrepancies between her testimony and Villano's affidavit in support of the defendant's arrest warrant as well as an affidavit Dixon signed in support of her request for a protective order. The court sustained the state's objection to the defendant's request to recall Dixon. Citing State v. Lambert, 58 Conn.App. 349, 754 A.2d 182, cert. denied, 254 Conn. 915, 759 A.2d 507 (2000), the court ruled that the defendant was not allowed to impeach Dixon with conduct that was merely illustrative of general bad behavior because it was not relevant to her credibility. The court also ruled that...