Date: 03-07-2016

Case Style: STATE OF CONNECTICUT v. JOHN MAIETTA

Case Number: SC 19524

Judge: Carmen Elisa Espinosa

Court: Connecticut Supreme Court

Plaintiff's Attorney: Timothy F. Costello, Brian Preleski, Christian Watson

Defendant's Attorney: Sandra J. Crowell, Martin Zeldis, Jacob Pezzulo,

Description: The defendant, John Maietta, appeals from the trial court’s finding that he violated his probation pursuant to General Statutes § 53a-32. On appeal thedefendantarguesthat:(1)thetrialcourtimproperly admitted evidence obtained in violation of the fourth andfourteenthamendmentstotheUnitedStatesconstitution and the separation of powers doctrine; (2) the evidence is insufficient to demonstrate that he violated his probation; (3) the trial court’s evidentiary rulings on hearsay evidence were an abuse of discretion and deprived him of his due process rights to confront witnessesandtopresentadefense;and(4)theconditionof hisprobation makinghimineligibleto possessfirearms violates the second amendment to the United States constitution. We conclude that the defendant cannot prevailonanyofhisclaims,and,accordingly,weaffirm the judgment of the trial court. The following facts, as found by the trial court, are relevant to the resolution of this appeal. Following a complaint to the police by the defendant’s former girlfriend, D,1 the defendant was arrested in April, 2012, and charged with, inter alia, harassment in the second degree in violation of General Statutes § 53a-183 and criminal trespass in the first degree in violation of General Statutes § 53a-107. On September 26, 2012, the defendant,pursuanttoapleaagreement,pleadedguilty tobothofthosechargesandwassentencedtooneyear incarceration, execution suspended, and two years of probation.Underthetermsandconditionsofhisprobation, the defendant was required to submit to searches by his probation officer on reasonable suspicion and to comply with a standing criminal protective order that prohibited the defendant from contacting D and from possessing firearms. The defendant met with probationofficersonbothOctober1and11,2012,toreview the conditions of his probation. At the first of these meetings, the defendant completed and signed a ‘‘Firearms Compliance Statement’’ in which he acknowledged that he was ineligible to possess firearms and asserted that he currently did not possess or have accesstoanyfirearms.Asubsequentsearchofthestate police firearms database (database) by the defendant’s probationofficer revealedthattherewere twofirearms then registered in the defendant’s name. The defendant had reported one firearm stolen to the New Britain Police Department and had surrendered the other firearm to the Newington Police Department two years prior to his arrest. On October 25, 2012, D contacted Robert Moreau, a probation officer with the Court Support Services Division (adult probation services), and informed him thatshewasconcernedforherpersonalsafetybecause she believed that the defendant was in possession of firearms.DtoldMoreauthatthedefendanttookposses
sion of several of his father’s guns when the defendant was appointed his father’s conservator in 2009. The defendant’s father died shortly thereafter. D also relayed to Moreau that the defendant had told her that he kept a gun in a garage he rented in Newington. After speaking with D, Moreau searched for the defendant’s father’snameinthedatabase anddiscoveredthatthere werethreefirearmsstilllistedasregisteredtothedefendant’s father: a Smith & Wesson .38 caliber handgun, an Arcadia Machine & Tool .380 caliber handgun, and a Harrington & Richardson .22 caliber handgun (Harrington handgun). Moreau contacted Detective Barbara Mattson of the state Department of Emergency Services and Public Protection (department) who confirmed that the three handgunswerestillregisteredinthenameofthedefendant’s father. Mattson also informed Moreau that in 2009, when the defendant’s father had been involuntarilyconserved,thepredecessortothedepartmenthad informed the defendant’s father that he was ineligible topossessfirearms.Statepolicerecordsconfirmedthat the defendant was appointed his father’s conservator on March 16, 2009, and that the Harrington handgun had been transferred to the defendant. The records did notindicatethatthatparticulargunwaseverregistered in the defendant’s name. On this information, Moreau receivedapprovalfromhis superiorsinadultprobation services to undertake a planned probationary search of the defendant’s garage in Newington. In accordance with the policy of adult probation services, Moreau received the assistance of Inspectors Michael Sullivan and Jay St. Jacques of the Office of the Chief State’s Attorney, certain members of the Greater New Britain Shooting Task Force, and an officer with the Berlin Police Department (collectively, search team). OnNovember1,2012,Moreau,accompaniedbythree other probation officers and the other members of the search team, traveled to the defendant’s apartment in NewBritaintofirstlocatethedefendantpriortoinitiating the planned search of the Newington garage. Upon arriving at the defendant’s apartment, Moreau rang the doorbell and asked the defendant whether he had any firearms at that location. The defendant denied possessing any firearms at his apartment and allowed the probation officers into his apartment to search the immediateareaforguns.WhenMoreauaskedthedefendant if he possessed any of his father’s firearms, he first indicated that he did not but later stated that there might be a gun stored within a dresser drawer at the Newington garage. The defendant agreed to a search of the garage and voluntarily accompanied Moreau to the site. AfterarrivingattheNewingtongarage,thedefendant opened the building with his personal key and allowed Moreau and the other members of the search team
inside. The defendant directed Moreau to a side room where the dresser allegedly containing the gun was located and indicated a particular dresser among several in the room. When the probation officers opened the drawerof thedresser thatthe defendanthad identified,theylocatedaHarrington&Richardson.22caliber handgun. The serial number on that gun matched that of the Harrington handgun that was registered to the defendant’s late father. The defendant was thereafter chargedwithcriminalpossessionofaweaponpursuant to General Statutes (Rev. to 2011) § 53a-217 and with violation of a standing criminal protective order pursuanttoGeneralStatutes(Rev.to2011)§ 53a-223a.Subsequently, the defendant was charged with violating the conditions of his probation. The defendant’s violation of probation hearing was heldonseveraldaysthroughoutAugustandNovember, 2013.OnAugust9,2013,thetrialcourtdeniedthedefendant’s motion to dismiss, rejecting his claim that a condition of his probation infringed on his second amendment right to bear arms. The defendant then moved to suppress the Harrington handgun and his verbal statements to Moreau and the other members ofthesearchteam.OnNovember7,2013,thetrialcourt denied the defendant’s motions to suppress, finding that the exclusionary rule is inapplicable in probation revocation hearings and, that even if it were to apply in the defendant’s case, he had consented to the search both at the time it was executed and when he agreed to the conditions of his probation. In regard to the defendant’s verbal statements, the trial court reiterated that the exclusionary rule was inapplicable and that, even if it were applicable, the defendant was not in custody when he made the statements. On that same day, the trial court found that the defendant violated the conditions of his probation. On November 19, 2013, the trial court continued the defendant’s probation and added new conditions. The defendant appealed to the Appellate Court, and this court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as necessary. The defendant first argues that the searches of his apartment and garage were conducted for law enforcement, not probationary, purposes, and that the trial court therefore erred in not applying the exclusionary rule to suppress the evidence. Additionally, the defendant suggests that the presence of members of the Greater New Britain Shooting Task Force at the search violatestheseparationofpowersdoctrine.Inresponse, thestatenotesthattheexclusionaryruleisinapplicable toprobationrevocationproceedingsandthatthedefendant lacks standing to present a separation of powers claim, or alternatively, that the trial court’s findings preclude such a claim. As the exclusionary rule is indeed inapplicable to probation revocation proceed
ings and the record precludes the defendant’s separation of powers claim, we conclude that the trial court properly admitted the Harrington handgun and the defendant’s statements into evidence. In reviewing a trial court’s decision on a motion to suppress,‘‘[a]findingoffactwillnotbedisturbedunless itisclearlyerroneousinviewoftheevidenceandpleadings in the whole record . . . . [When] the legal conclusions of the court are challenged, [our review is plenary] . . . .’’ (Internal quotation marks omitted.) State v. Kalphat, 285 Conn. 367, 374, 939 A.2d 1165 (2008).Itisawellsettledtenetofourfourthamendment jurisprudence that ‘‘unlike criminal trials, in which the exclusionaryruletypicallyapplies,inprobationrevocation hearings, the exclusionary rule typically does not apply.’’ State v. Jacobs, 229 Conn. 385, 392, 641 A.2d 1351(1994);seealsoStatev.Foster,258Conn.501,507, 782A.2d98(2001);PennsylvaniaBoardofProbation& Parole v. Scott, 524 U.S. 357, 364, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998). We have observed that the exclusionary rule would only provide a ‘‘ ‘marginal deterrent’ ’’toillegalpoliceactivity intheprobationcontext; Statev.Foster,supra,508;giventhat,inprobationrevocation proceedings ‘‘the government has an interest in accurate fact-finding that is likely to be impaired when otherwise reliable and relevant evidence is excluded from the proceeding.’’ (Internal quotation marks omitted.) Id., 507–508. Likewise, we recognize that probationers have ‘‘a diminished expectation of privacy by virtue of [their probationary status] . . . .’’ State v. Smith, 207Conn. 152,166, 540A.2d 679 (1988).Our bar ontheapplicationoftheexclusionaryruletoprobation revocation proceedings is not absolute, however, as ‘‘ ‘egregious,shockingorharassingpolicemisconduct’ ’’ wouldwarrantourapplicationoftheruletosuchprobation proceedings. State v. Foster, supra, 509. In the present case, the defendant offers no compelling reasons as to why the exclusionary rule should apply under the circumstances of his case. The defendant attempts to circumvent the inapplicability of the exclusionaryrulebyclaiming thattheprobationsearch conductedbyMoreauandhissearchteamwasinactuality a thinly veiled law enforcement search orchestrated bythepolice.Thetrialcourt’sfindings,however,plainly belie the defendant’s argument. The searches of the defendant’s apartment and the garage were planned probationary searches organized under the auspices of adult probation services. Contrary to the defendant’s characterization of the searches, the trial court specifically found that Moreau was ‘‘acting in his capacity as a probation officer’’ when he conducted the searches and questioned the defendant. The trial court specifically found that the searches were conducted by the probationofficersandnotthelawenforcementpersonnelwhowerepresent.Indeed,nothingintheunderlying record indicates that Moreau and the other probation
officers were conducting the searches at the behest of the police or for reasons other than to ensure that the defendant was in compliance with the terms of his probation. As the trial court noted, because probation officers are unarmed, probation policy requires police officers to accompany probation officers on searches for safety reasons. Furthermore, the present case contains no ‘‘ ‘egregious, shocking or harassing police misconduct’ ’’ that would merit the application of the exclusionary rule. State v. Foster, supra, 258 Conn. 509. The trial court found that there was ‘‘no evidence that the defendant was restrained in any way . . . [or] that force was used. There was no evidence of overbearing conduct, coercions or duress of any kind. There was no pushing, arguing,orharassingthedefendant.’’Rather,therecord shows that the defendant voluntarily allowed Moreau and his search team into his apartment and the garage and cooperated with the searches. Accordingly, the defendant’sargument thattheexclusionary ruleshould apply to the present case is unpersuasive, and we concludethatthetrialcourtproperlyadmittedtheHarrington handgun and the defendant’s verbal statements into evidence.2 We briefly observe that the defendant’s claim that thesearchesviolatedtheseparationofpowersdoctrine3 is unavailing. Essentially, the defendant argues that the searches of his apartment and the garage run afoul of the separation of powers doctrine because Moreau and SullivanaremembersoftheGreaterNewBritainShootingTaskForce,acoordinatedeffortbetweenadultprobation services, a subset of the Judicial Branch, and various members of the police community, a subset of theexecutivebranch.Inthedefendant’sview,thepolice dragoonedadultprobationservicesintoperformingthe searches and therefore usurped adult probation services’independentauthorityasadivisionoftheJudicial Branch. The record is utterly devoid of support for this argument. As the trial court correctly noted, Moreau was acting in his official capacity as a probation officer during the searches and there is no evidence that he was acting as a member of the Greater New Britain Shooting Task Force. See State v. Cruz, 260 Conn. 1, 14, 792 A.2d 823 (2003) (rejecting argument that presence of police converted nonpolice personnel into law enforcement agent). Additionally, the absolutist view of the separation of powers that the defendant espouses, in which two branches may not cooperate in the pursuit of a mutual goal, has no support in our caselaw.Conversely,wehaverecognizedthatthethree powersofourstategovernment oftenoverlapandhave shared objectives and that as a result ‘‘the separation ofpowersdoctrinecannotbeappliedrigidly.’’Bartholomew v. Schweizer, 217 Conn. 671, 676, 587 A.2d 1014 (1991).Toholdotherwise‘‘wouldresultintheparalysis of government.’’ (Internal quotation marks omitted.)
Massameno v. Statewide Grievance Committee, 234 Conn. 539, 552, 663 A.2d 317 (1995); see Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 597, 858 A.2d 709 (2004). Havingdeterminedthatthetrialcourtproperlyadmitted the Harrington handgun and the defendant’s verbal statements into evidence, we turn to the defendant’s claim that the evidence was itself insufficient to establish that he violated his probation. In reviewing the sufficiencyofevidence,‘‘[a]llthatisrequiredinaprobation violation proceeding is enough to satisfy the court withinitssoundjudicial discretionthattheprobationer has not met the terms of his probation. . . . [A] challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. . . . A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court’s finding of fact] . . . . 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. Maurice M., 303 Conn. 18, 26–27, 31 A.3d 1063 (2011). Weconcludethattheevidenceadducedatthehearing was sufficient for the trial court to determine that the defendant violated the terms of his probation. The evidence reveals that, following his guilty plea on September 26, 2012, the defendant reviewed and signed the termsandconditionsofhisprobation,therebymanifestinghisunderstandingofthenecessitytoabidebythose conditions. The defendant subsequently reviewed the conditions of his probation with a probation officer on both October 1 and 11, 2012. One of the conditions of the defendant’s probation required him to comply with the court’s standing criminal protective order of September 26, 2012, which barred him from contacting D or possessing any firearms. The defendant had signed a state police ‘‘Firearm Compliance Statement,’’ reiterating his understanding that he could not possess firearmsandrepresentingthathecurrentlydidnotpossess or have access to any firearms as of October 1, 2012. In signing the statement, the defendant agreed to transfer or surrender any firearms in his possession within two business days. Despite being in possession of his father’s Harrington handgun since at least 2009, the defendantdidnotsurrenderthisfirearm.Rather,during the November 1, 2012 search when Moreau asked the defendant if he possessed any guns, the defendant was able to articulate precisely where the Harrington handgun was stored, and the probation officers ultimately located the gun exactly where the defendant indicated it would be. On the basis of this evidence, we cannot say that it was clearly erroneous for the trial court to conclude that the defendant violated his probation by
not complying with the condition that he abide by the criminal protective order prohibiting him from possessing firearms. We briefly address the defendant’s remaining claims. First, the defendant alleges that the trial court abused its discretion when it allowed Moreau and Mattson to testify to a statement made by a sergeant with the New Britain Police Department regarding the purported record of transfer of the Harrington handgun from the defendant’s father to the defendant. The defendant moved to strike this testimony as hearsay and the trial court denied the defendant’s motion. The defendant further argues that the trial court abused its discretion in not allowing into evidence a memorandum that, the defendant claims, would have rebutted Moreau’s and Mattson’s hearsay testimony. The defendant purports that these rulings denied him the right to present a defense. We note at the outset that the rules of evidence do not apply to probation revocation hearings and, thus, relevanthearsayevidenceisadmissibleatthediscretion of the trial court. Conn. Code Evid. § 1-1 (d) (4); see State v. White, 169 Conn. 223, 239–40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); State v. Quinones, 92 Conn. App. 389, 392, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006). The hearsay evidence at issue in the present case was corroborated by D’s testimony that the defendant had received his father’s guns and the physicalevidenceoftheHarringtonhandgunitself.The hearsay statement was therefore reliable, and the trial court did not abuse its discretion in allowing it into evidence. See State v. William C., 267 Conn. 686, 700– 701, 841 A.2d 1144 (2004) (evidentiary rulings of trial court reviewed for abuse of discretion). Likewise, the trialcourt’srejectionofthedefendant’sofferofamemorandum allegedly rebutting the hearsay statement did not deprive the defendant of his ability to present a defense. The memorandum, written by William Durkin, aninvestigatorwiththeState’sAttorney’sOfficeinNew Britain, for Christian Watson, an assistant state’s attorney in that office, described the transfer history of the Harrington handgun in relation to the defendant. The record reveals that the trial court did not allow the defendant to enter the memorandum into evidence as afull exhibitfor thedual reasonsthatit wasan internal state memorandum made in connection with a case investigation and, therefore, not subject to disclosure pursuant to Practice Book § 40-14 (1), and that the defendant’s witness, Paul Farley, an inspector from the Office of the Public Defender, did not have sufficient familiarity with the document to introduce it and attest to its authenticity. The trial court, however, allowed the defendant to question Farley on the contents of the memorandum, and the trial court’s decision excluding the memorandum itself from evidence cannot be said
therefore to have deprived the defendant of his right to present a defense. See State v. Andrews, 313 Conn. 266, 276, 96 A.3d 1199 (2014) (primary consideration in whether defendant deprived of right to present defense iscentralityofexcludedevidencetodefendant’sclaim). Finally, the defendant advances the novel argument that the condition of his probation barring him from possessing firearms contravenes the second amendment right to bear arms. The second amendment to the United States constitution guarantees to citizens ‘‘the individual right to possess and carry weapons in case of confrontation’’; District of Columbia v. Heller, 554 U.S. 570, 592, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008); although that right is ‘‘not unlimited . . . .’’ Id., 595; Statev.DeCiccio,315Conn.79,109,105A.3d165(2014). Specifically, the second amendment does not prevent ‘‘[long-standing] prohibitions on the possession of firearms . . . .’’ District of Columbia v. Heller, supra, 626; McDonald v. Chicago,561U.S.742, 786,130S. Ct.3020, 177 L. Ed. 2d 894 (2010) (Alito, J.). We conclude, however, that the defendant waived his second amendment right when he agreed to the condition of his probation barring him from possessing firearms.Itiswellestablishedthat‘‘awaiverofconstitutional rights must be voluntary . . . [under] the totality ofcircumstances.’’(Citationomitted.)Statev.Ross,273 Conn. 684, 702, 873 A.2d 131 (2005); see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). We have long recognized that ‘‘while a potential probationer may reject the offer of probation, if he acceptsit, hemust acceptall theconditionssought and cannot accept some and reject others.’’ State v. Smith, supra, 207 Conn. 169. As a result of their probationary status, probationers ‘‘do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditionallibertyproperlydependentonobservanceofspecial[probation]restrictions.’’(Internalquotationmarks omitted.) Id., 165. In the present case, the defendant voluntarily accepted the terms of his probation and manifestedhisassentonseveraloccasionstothecondition that he could not possess firearms, most notably by signing the acknowledgment that he was to refrain from possessing firearms. The defendant cannot now claim that the conditions of his probation unconstitutionally infringe upon his second amendment right when he himself voluntarily agreed to the temporary restriction on the exercise of his second amendment right imposed by the condition barring him from possessingorhavingaccesstofirearms.

Outcome: Had the defendant been fundamentally opposed to that particular condition, he was free to reject the offer of probation presented to him. The judgment is affirmed.

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