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State v. Dunbar

Court of Appeals of Connecticut

March 19, 2019

STATE OF CONNECTICUT
v.
TIMOLYN DUNBAR

          Argued January 10, 2019

         Procedural History

         Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, where the court, Holden, J., denied the defendant's motion for disclosure of the identity of a confidential informant; thereafter, the matter was tried to the court; judgment finding the defendant in violation of probation, from which the defendant appealed to this court.

          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.

          OPINION

          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 West-port 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 violation need be proven only by a preponderance of the evidence. ...


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