State v. Maietta

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 STATE OF CONNECTICUT v. JOHN MAIETTA
(SC 19524)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued December 16, 2015—officially released March 15, 2016

Sandra J. Crowell, senior assistant public defender,
with whom, on the brief, were Martin Zeldis, former
public defender, and Jacob Pezzulo, certified legal
intern, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Christian Watson, assistant state’s attorney,
for the appellee (state).
 Opinion

ESPINOSA, J. The defendant, John Maietta, appeals
from the trial court’s finding that he violated his proba-
tion pursuant to General Statutes § 53a-32. On appeal
the defendant argues that: (1) the trial court improperly
admitted evidence obtained in violation of the fourth
and fourteenth amendments to the United States consti-
tution 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 wit-
nesses and to present a defense; and (4) the condition of
his probation making him ineligible to possess firearms
violates the second amendment to the United States
constitution. We conclude that the defendant cannot
prevail on any of his claims, and, accordingly, we affirm
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 girl-
friend, 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 Gen-
eral Statutes § 53a-107. On September 26, 2012, the
defendant, pursuant to a plea agreement, pleaded guilty
to both of those charges and was sentenced to one year
incarceration, execution suspended, and two years of
probation. Under the terms and conditions of his proba-
tion, 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 pro-
bation officers on both October 1 and 11, 2012, to review
the conditions of his probation. At the first of these
meetings, the defendant completed and signed a ‘‘Fire-
arms Compliance Statement’’ in which he acknowl-
edged that he was ineligible to possess firearms and
asserted that he currently did not possess or have
access to any firearms. A subsequent search of the state
police firearms database (database) by the defendant’s
probation officer revealed that there were two firearms
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 fire-
arm 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
that she was concerned for her personal safety because
she believed that the defendant was in possession of
firearms. D told Moreau that the defendant took posses-
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’s name in the database and discovered that there
were three firearms still listed as registered to the defen-
dant’s father: a Smith & Wesson .38 caliber handgun,
an Arcadia Machine & Tool .380 caliber handgun, and
a Harrington & Richardson .22 caliber handgun (Har-
rington handgun).
Moreau contacted Detective Barbara Mattson of the
state Department of Emergency Services and Public
Protection (department) who confirmed that the three
handguns were still registered in the name of the defen-
dant’s father. Mattson also informed Moreau that in
2009, when the defendant’s father had been involun-
tarily conserved, the predecessor to the department had
informed the defendant’s father that he was ineligible
to possess firearms. State police records confirmed that
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
not indicate that that particular gun was ever registered
in the defendant’s name. On this information, Moreau
received approval from his superiors in adult probation
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).
On November 1, 2012, Moreau, accompanied by three
other probation officers and the other members of the
search team, traveled to the defendant’s apartment in
New Britain to first locate the defendant prior to initiat-
ing 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 pos-
sessing any firearms at his apartment and allowed the
probation officers into his apartment to search the
immediate area for guns. When Moreau asked the defen-
dant 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.
After arriving at the Newington garage, the defendant
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 sev-
eral in the room. When the probation officers opened
the drawer of the dresser that the defendant had identi-
fied, they located a Harrington & Richardson .22 caliber
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
charged with criminal possession of a weapon pursuant
to General Statutes (Rev. to 2011) § 53a-217 and with
violation of a standing criminal protective order pursu-
ant to General Statutes (Rev. to 2011) § 53a-223a. Subse-
quently, the defendant was charged with violating the
conditions of his probation.
The defendant’s violation of probation hearing was
held on several days throughout August and November,
2013. On August 9, 2013, the trial court denied the defen-
dant’s motion to dismiss, rejecting his claim that a con-
dition 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
of the search team. On November 7, 2013, the trial court
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 enforce-
ment, not probationary, purposes, and that the trial
court therefore erred in not applying the exclusionary
rule to suppress the evidence. Additionally, the defen-
dant suggests that the presence of members of the
Greater New Britain Shooting Task Force at the search
violates the separation of powers doctrine. In response,
the state notes that the exclusionary rule is inapplicable
to probation revocation proceedings and that the defen-
dant 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 separa-
tion 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] finding of fact will not be disturbed unless
it is clearly erroneous in view of the evidence and plead-
ings in the whole record . . . . [When] the legal con-
clusions 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). It is a well settled tenet of our fourth amendment
jurisprudence that ‘‘unlike criminal trials, in which the
exclusionary rule typically applies, in probation revoca-
tion hearings, the exclusionary rule typically does not
apply.’’ State v. Jacobs, 229 Conn. 385, 392, 641 A.2d
1351 (1994); see also State v. Foster, 258 Conn. 501, 507,
782 A.2d 98 (2001); Pennsylvania Board of Probation &
Parole v. Scott, 524 U.S. 357, 364, 118 S. Ct. 2014, 141
L. Ed. 2d 344 (1998). We have observed that the exclu-
sionary rule would only provide a ‘‘ ‘marginal deter-
rent’ ’’ to illegal police activity in the probation context;
State v. Foster, supra, 508; given that, in probation revo-
cation 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 omit-
ted.) Id., 507–508. Likewise, we recognize that proba-
tioners have ‘‘a diminished expectation of privacy by
virtue of [their probationary status] . . . .’’ State v.
Smith, 207 Conn. 152, 166, 540 A.2d 679 (1988). Our bar
on the application of the exclusionary rule to probation
revocation proceedings is not absolute, however, as
‘‘ ‘egregious, shocking or harassing police misconduct’ ’’
would warrant our application of the rule to such proba-
tion proceedings. State v. Foster, supra, 509.
In the present case, the defendant offers no compel-
ling reasons as to why the exclusionary rule should
apply under the circumstances of his case. The defen-
dant attempts to circumvent the inapplicability of the
exclusionary rule by claiming that the probation search
conducted by Moreau and his search team was in actual-
ity a thinly veiled law enforcement search orchestrated
by the police. The trial court’s findings, 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 specifi-
cally found that Moreau was ‘‘acting in his capacity as
a probation officer’’ when he conducted the searches
and questioned the defendant. The trial court specifi-
cally found that the searches were conducted by the
probation officers and not the law enforcement person-
nel who were present. Indeed, nothing in the underlying
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 ‘‘ ‘egre-
gious, 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, or harassing the defendant.’’ Rather, the record
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’s argument that the exclusionary rule should
apply to the present case is unpersuasive, and we con-
clude that the trial court properly admitted the Harring-
ton handgun and the defendant’s verbal statements
into evidence.2
We briefly observe that the defendant’s claim that
the searches violated the separation of powers doctrine3
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
Sullivan are members of the Greater New Britain Shoot-
ing Task Force, a coordinated effort between adult pro-
bation services, a subset of the Judicial Branch, and
various members of the police community, a subset of
the executive branch. In the defendant’s view, the police
dragooned adult probation services into performing the
searches and therefore usurped adult probation ser-
vices’ independent authority as a division of the Judicial
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 pres-
ence 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
case law. Conversely, we have recognized that the three
powers of our state government often overlap and have
shared objectives and that as a result ‘‘the separation
of powers doctrine cannot be applied rigidly.’’ Bartholo-
mew v. Schweizer, 217 Conn. 671, 676, 587 A.2d 1014
(1991). To hold otherwise ‘‘would result in the paralysis
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).
Having determined that the trial court properly admit-
ted 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 estab-
lish that he violated his probation. In reviewing the
sufficiency of evidence, ‘‘[a]ll that is required in a proba-
tion violation proceeding is enough to satisfy the court
within its sound judicial discretion that the probationer
has not met the terms of his probation. . . . [A] chal-
lenge 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 rea-
sonable 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).
We conclude that the evidence adduced at the hearing
was sufficient for the trial court to determine that the
defendant violated the terms of his probation. The evi-
dence reveals that, following his guilty plea on Septem-
ber 26, 2012, the defendant reviewed and signed the
terms and conditions of his probation, thereby manifest-
ing his understanding of the necessity to abide by those
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 Sep-
tember 26, 2012, which barred him from contacting D
or possessing any firearms. The defendant had signed
a state police ‘‘Firearm Compliance Statement,’’ reiter-
ating his understanding that he could not possess fire-
arms and representing that he currently did not possess
or have access to any firearms as of October 1, 2012.
In signing the statement, the defendant agreed to trans-
fer 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
defendant did not surrender this firearm. 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 hand-
gun 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 pos-
sessing 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,
relevant hearsay evidence is admissible at the discretion
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
physical evidence of the Harrington handgun itself. 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
trial court’s rejection of the defendant’s offer of a memo-
randum allegedly rebutting the hearsay statement did
not deprive the defendant of his ability to present a
defense. The memorandum, written by William Durkin,
an investigator with the State’s Attorney’s Office in New
Britain, for Christian Watson, an assistant state’s attor-
ney 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
a full exhibit for the dual reasons that it was an 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
is centrality of excluded evidence to defendant’s claim).
Finally, the defendant advances the novel argument
that the condition of his probation barring him from
possessing firearms contravenes the second amend-
ment 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;
State v. DeCiccio, 315 Conn. 79, 109, 105 A.3d 165 (2014).
Specifically, the second amendment does not prevent
‘‘[long-standing] prohibitions on the possession of fire-
arms . . . .’’ District of Columbia v. Heller, supra, 626;
McDonald v. Chicago, 561 U.S. 742, 786, 130 S. 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. It is well established that ‘‘a waiver of constitu-
tional rights must be voluntary . . . [under] the totality
of circumstances.’’ (Citation omitted.) State v. 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
accepts it, he must accept all the conditions sought 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 . . . condi-
tional liberty properly dependent on observance of spe-
cial [probation] restrictions.’’ (Internal quotation marks
omitted.) Id., 165. In the present case, the defendant
voluntarily accepted the terms of his probation and
manifested his assent on several occasions to the condi-
tion 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 unconstitu-
tionally 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 pos-
sessing or having access to firearms. Had the defendant
been fundamentally opposed to that particular condi-
tion, he was free to reject the offer of probation pre-
sented to him.
The judgment is affirmed.
In this opinion the other justices concurred.
1
In furtherance of our policy of protecting the privacy interests of the
subject of a criminal protective order, we refer to the protected person only
by her first initial. See Wendy V. v. Santiago, 319 Conn. 540, 125 A.3d
983 (2015).
2
As we conclude that the exclusionary rule does not apply to the present
case, we need not consider the defendant’s arguments that he did not consent
to the probation search and that he was in custody for the purposes of
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3
The constitution of Connecticut, article second, as amended by article
eighteen of the amendments, provides in relevant part: ‘‘The powers of
government shall be divided into three distinct departments, and each of
them confided to a separate magistracy, to wit, those which are legislative,
to one; those which are executive, to another; and those which are judicial,
to another. . . .’’
The policy underlying the separation of powers doctrine is ‘‘to prevent
the commingling of different powers of government in the same hands.’’
(Internal quotation marks omitted.) State v. McCahill, 261 Conn. 492, 505,
811 A.2d 667 (2002).