IN RE: Sha'Keil F. (2010)

MEMORANDUM OF DECISION

On December 6, 2010, this matter came before this court for a trial on a petition alleging that the respondent, Sha'Keil F. violated two conditions of his probation:  # 1 Do not violate any Federal, State or Municipal law, and # 7 Remain drug and alcohol free.   The respondent was present and represented by counsel.   His mother was also in attendance.

Background

Sha'Keil was sentenced to a four-year suspended commitment and one year probation on August 6, 2010, after pleading guilty to Carrying a Pistol Without a Permit (A Serious Juvenile Offense) and Robbery in the 3rd degree.   He was canvassed by the court concerning his understanding of the conditions of his probation, as well as the consequences of violating these conditions.   His probation officer also reviewed the conditions with him and his mother following the court proceeding.

On October 18, 2010, the respondent was arrested and charged with Larceny in the 3rd degree;  Criminal Trover in the 1st degree;  Interfering with a Police Officer, and Operating a Motor Vehicle Without a License.   Two previous drug tests performed on the respondent were reported as positive for marijuana.   On October 21, 2010 the probation officer filed a Take Into Custody petition, with a supporting affidavit based upon the above information.   The order was signed by this court;  the petition alleging violation of probation ensued.

Law

“A child may be convicted as a delinquent, who has ․ violated conditions of probation as ordered by the court.”   Connecticut General Statute (C.G.S.) § 46b-120(5)(A).   A “delinquent act” refers to, inter alia “the violation of conditions of probation as ordered by the court.”  C.G.S § 46b-120(10)(E).   The standard of proof required for a delinquency conviction is proof beyond a reasonable doubt.   Connecticut Rules of Practice § 30a-3.   See also:  In Re Kelly F., 2000 Ct.Sup. 2816, Connecticut Superior Court for Juvenile Matters Fourteenth Judicial District at New Britain (Ward, J. February 18, 2000) [28 Conn. L. Rptr. 280] (distinguishes adult violation of probate statutes from juvenile violation of probation statutory framework).

If a violation of probation is established the court may revoke a suspended order of commitment;  however, “no such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”  C.G.S. § 46b-140(d).  The comparable adult statute, C.G.S. § 53a-32(d), states:  “No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence,” language which is notably absent from the delinquency statute (italics added).   Based on the foregoing, the State must prove beyond a reasonable doubt that the respondent violated the conditions of his probation.   In Re Kelly F., id.

Facts

After listening to the witnesses, evaluating their credibility, and reviewing the exhibits the court finds the following facts.   On October 18, 2010 Patrol Sargent C. received a report of a stolen vehicle.   A car passed him and the officer recognized the license plate as the one on the car reported stolen.   He followed the vehicle;  however, prior to reaching it, the driver had pulled the car over, and he and the passenger had exited.   They were running away from the Sargent, who never observed their faces.   He did note that the driver was wearing dark clothing (Ex. 6) and the passenger was wearing a light sweatshirt.

A witness who arrived on the scene, Ramone T., was in his driveway when the occupants of the car ran up his driveway towards him.   Mr. T. grabbed the driver, and pushed him against the wall.   When he saw the police officer in chase he released the individual.   The person who Mr. T. grabbed was not the respondent, Sha'Keil.   When asked to identify the respondent in court, Mr. T. stated that “I never seen this gentleman.”   The Sargent stated in his report (Ex. 6) that Mr. T. recognized Sha'Keil as one of the individuals who ran through his yard.

Mr. T. and his wife told the Patrol Sargent that the fleeing individuals were running through the back yards.   Sargent C. went through another yard and came upon the respondent, Sha'Keil, who was wearing black clothing and attempting to squeeze through a fence.   He ordered Sha'Keil to the ground and handcuffed him.   The officer could not positively identify Sha'Keil as the driver.   He could only state that Sha'Keil matched the description of the driver.   When in custody the respondent said to the Officer that “you didn't pull me out of the driver's side,” and the Officer responded, “You had already left.”   There was no evidence as to the context of this exchange.

The petition also asserts that Sha'Keil violated probation by testing positive for marijuana on two occasions.   The defense attorney objected to the admission of the lab reports, as there was no attestation to the chain of custody of the specimens while in the possession of the laboratory in California.   This court overruled the objection, stating that it would go to the weight of the evidence;  not its admissibility.   Upon further review of the laboratory reports, State's Exhibits 4 and 5, there is a specific portion of the report which pertains to chain of custody and which is to be completed by the laboratory.   On both exhibits this information is completely missing, which causes this court to question the reliability of the laboratory's results which were positive for marijuana.

Findings

The state has failed to meet its burden of proving that Sha'Keil violated his probation beyond a reasonable doubt.   As to the criminal charges underlying the first allegation that Sha'Keil violated the terms of his probation, there is conflicting testimony concerning the identity of the individuals in the stolen car.   The police Sargent testified that the respondent matched the description of the driver;  however, the only detail of description provided by the officer was that the individual was wearing black clothing,¹ which Sha'Keil was wearing on the night of the incident.   The officer did not see the faces of the occupants of the car as they were running away from him;  he could not positively identify the respondent as an occupant of the car.

The witness, Mr. T. stated that Sha'Kiel was not the driver of the car whom he had grabbed and thrown against the wall.   He stated that he had never seen the respondent.   This creates significant doubt that Sha'Keil was in the stolen car that night.   Accordingly, there is insufficient evidence to prove that Sha'Kiel was the driver, or an occupant of the stolen car;  that he committed Larceny in the 3rd degree, Criminal Trover in the 1st degree, Operating a Motor Vehicle Without a License or Interfering with a Police Officer.   The court finds for the respondent on these charges, as well as the charge that he violated his probation based on the commission of these crimes.

As to the charge that the respondent violated his probation by failing to remain drug and alcohol free, this court also finds that the state has failed to meet its burden beyond a reasonable doubt.   The laboratory results, Ex. 4 and 5, failed to contain crucial chain of custody information creating reasonable doubt as to the reliability of the results.   Accordingly, the court finds in favor of the defendant on this allegation.

Orders

The court enters the following orders:

1.  The State's motion to Revoke Suspension of Commitment is denied.

2. The respondent is ordered released from detention.

3. The respondent is ordered to complete the remainder of his probation with the same conditions in full force.   The defendant shall be credited with the time he has spent in detention.

BY THE COURT

JUDGE CAROL A. WOLVEN

FOOTNOTES

FN1. As stated, in his police report the Officer stated that the driver was wearing dark clothing..  FN1. As stated, in his police report the Officer stated that the driver was wearing dark clothing.

Wolven, Carol A., J.