DocketNumber: 14567
Citation Numbers: 231 Conn. 235
Judges: Berdon, Borden, Norcott
Filed Date: 8/23/1994
Status: Precedential
Modified Date: 9/8/2022
The defendant, Christopher Williams, was convicted after a jury trial of murder in violation of General Statutes § BSa-bAa,
The jury could reasonably have found the following facts. The defendant shot Howard White four times, at close range, on the steps of an apartment building in New Haven, at approximately 12:30 a.m. on September 22, 1990.
At the end of the evidence and final arguments, the trial court charged the jury, concluding its instructions at approximately 4:15 p.m. on Friday, December 20, 1991. The jury retired to deliberate sometime between 4:15 p.m. and 4:32 p.m. Shortly thereafter, the court dismissed the alternate juror, Richard Marks, with instructions not to discuss the case with anyone.
After Marks had departed, at the defendant’s request, the trial court brought the jury back into the courtroom to clarify an instruction. The jury deliberated until 5 p.m., at which time the jurors were excused for the weekend.
That evening at approximately 8:05 p.m., one of the members of the jury, Tyrone Dent, was approached by Anthony Dawson. Dawson told Dent that he was the defendant’s cousin, whereupon Dent said: “Well, I’m a juror and I can’t talk about the case,” and then terminated the discussion. Dent initially believed that Dawson had attempted to bribe him. Dent told certain members of his family of the incident, and one of Dent’s siblings reported the incident to the state’s attorney. The state subsequently informed the trial court of the incident.
On Monday morning, December 23, 1991, the trial court ordered Dent separated from the remaining jury members. The trial court then instructed the remaining eleven jurors not to deliberate until further notice. After questioning Dent as to his ability to remain fair and impartial, the trial court, with the agreement of the parties, determined that Dent was no longer qualified to act as a juror and excused him.
The trial court, however, summoned Marks, the alternate juror who had been dismissed the previous Friday, and interviewed him in an attempt to determine whether he was still qualified to sit as a juror. The trial court questioned Marks at length as to whether he had heard anything about the case over the weekend, and whether he had spoken to anyone about the case. Marks stated that he had not spoken to anyone concerning the case and had not heard anything about the case, except an offhanded comment from a neighbor who had told him that the attorney for the defendant was “one of the best defense attorneys in New Haven.” After this questioning, the court sent Marks into the voir dire room and brought the remaining eleven jurors into the courtroom. The court then questioned those jurors as to whether they would be able to begin deliberations anew. Having satisfied itself that the jury would be able to recommence deliberations, the trial court proceeded to provide additional cautionary instructions to the jury.
In light of these inquiries, the trial court concluded that a mistrial was not required because a reconstituted jury with the addition of the alternate juror could fairly adjudicate this case. The trial court noted for the record that the jury had, at that point, deliberated for less than one-half hour. It further noted that all members of the jury had indicated they could recommence deliberations from the beginning and disregard what had taken place during their deliberations the previous Friday.
The court then had Marks sworn as a member of the jury. The trial court then repeated the brief reinstruction that had been given to the jury after Marks had been excused. It also instructed the jury for a third time
The reconstituted jury then retired to deliberate. Approximately one hour and fifteen minutes later, the jury returned a verdict of guilty on all three counts.
Additional facts will be discussed as they pertain to other issues raised by the defendant.
I
The defendant first claims that the trial court improperly permitted substitution of a discharged alternate juror after deliberations had begun in violation of § 54-82h (c). See footnote 5. He argues that § 54-82h (c) implements the Connecticut constitution’s guarantee that “[t]he right of trial by jury shall remain inviolate”; Conn. Const., art. I, § 19; and that its violation constitutes per se reversible error.
“Where the claimed error is one of constitutional magnitude . . . the state must prove that the error is harmless beyond a reasonable doubt.” State v. Sauris, 227 Conn. 389, 413, 631 A.2d 238 (1993). If the claimed impropriety is not constitutional in nature, however, the
The defendant relies on various authorities predating 1972, which outline the common law right to a jury trial. This reliance is misplaced, however, because an amendment to the Connecticut constitution in 1972, placed the number of jurors in the hands of the legislature. Specifically, amendment four to the state constitution provides in relevant part: “Section 19 of article first of the constitution is amended to read as follows: The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. ...” (Emphasis added.) Conn. Const., amend. IV. The language “to be established by law,” that was added to the state constitution in 1972, placed the authority to determine the number of jurors
Our conclusion that a violation of § 54-82h (c) does not implicate the defendant’s constitutional rights, places the burden of proving the harmfulness of the substitution of the alternate juror on the defendant. State v. Beckenbach, 198 Conn. 43, 49, 501 A.2d 752 (1985); State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). The defendant has not demonstrated any harm flowing from the substitution of the alternate juror.
The trial court’s actions in connection with the substitution of the alternate juror were sufficient to prevent prejudice and to protect the integrity and fairness of the trial. The record indicates that the trial court had questioned Marks at length as to whether he had been compromised or prejudiced in any way as a result
The record indicates that an experienced trial court judge had taken painstaking efforts to minimize any potential prejudice to the defendant resulting from the substitution of the alternate juror. It determined that no prejudice had been sustained and that the defendant had received a fair trial. The defendant provides us with no persuasive reason to disturb the trial court’s conclusion, and we decline to do so.
II
The defendant next claims that the state’s closing argument violated his due process and equal protection rights under the state and federal constitutions.
Because his claim was unpreserved, the defendant seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “We will not afford Golding review to claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” State v. Young, 29 Conn. App. 754, 766-67, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). “[I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). “[W]e must review the comments
Although we do not review these statements, we nonetheless deplore gratuitous use of gender stereotypes as part of any argument. The defendant correctly points out that this type of comment singles out female jurors from their counterparts. The prosecutor’s statement amounted to a challenge to the women jurors to convict the defendant or risk condemnation as being soft or emotional. The state’s argument could have subjected the female jurors to pressure from other jurors. We caution against the use of this type of condescending argument used by the state.
Ill
The defendant next claims that the trial court improperly admitted into evidence at trial the transcript of Sanders’ testimony at the probable cause hearing (hearing). The transcript of Sanders’ testimony included a prior inconsistent statement admitted at the hearing under State v. Whelan, supra, 200 Conn. 743. The defendant claims that the admission of the transcript at trial improperly infringed his right to confront witnesses under the sixth and fourteenth amendments to the United States constitution and under the Connecticut constitution,
The following facts are relevant to this claim. As noted previously, Sanders witnessed the murder and
At trial, after demonstrating that Sanders was not available to testify, the state offered his hearing testimony as evidence. The trial court admitted this evidence over the defendant’s objection. The defendant claims, in the alternative, that the admission at trial of a prior inconsistent statement to prove the truth of its assertion, within an otherwise admissible hearsay statement, is impermissible as an evidentiary matter, if the witness does not testify at trial. The defendant also claims that the admission of the hearing testimony violated his right to confrontation under the sixth and fourteenth amendments to the United States constitution. The determination of whether a defendant’s claim implicates the right to confrontation under the federal constitution rests on whether it satisfies the two part test established in Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). That test requires (1) demonstration that the witness is unavailable to testify at trial and (2) adequate indicia of reliability of the previous testimony. The trial court found that the state demonstrated that Sanders was unavailable to testify at trial. Additionally, our review of the record indicates that Sanders’ testimony at the hearing bears adequate indicia of reliability to warrant submission of the transcript to the jury. Sanders’ hearing testimony was given under oath, subject to crim
Because the state demonstrated that Sanders was not available to testify, and because both the hearing testimony and the prior inconsistent statement independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statements, the defendant’s right to confrontation was not implicated by the admission of the hearing testimony.
The state argues that the statement is admissible hearsay because each statement was independently admissible. Although double hearsay is admissible if each part is independently admissible, the prior inconsistent statement at issue here was not independently admissible for substantive purposes because the witness did not testify at trial.
In State v. Whelan, supra, 200 Conn. 753, we adopted a rule “allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. ” (Emphasis added.) “[Wjhen the declar-ant is available for cross-examination the jury has the opportunity to observe him as he repudiates or varies his former statement. The cross-examination to which a recanting witness will be subjected is likely to be meaningful because the witness will be forced either to explain the discrepancies between the earlier statements and his present testimony, or to deny that the earlier statement was made at all. . . . The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither.” (Citations omitted; internal quotation marks omitted.) Id., 750.
IV
The defendant next claims that there was insufficient evidence to support a finding that the gun with which he had killed White had a barrel less than twelve inches in length as required by General Statutes (Rev. to 1991) § 53a-217 and General Statutes § 53a-3 (18).
The standard governing our review of sufficiency of evidence claims is well established. “We first review
The defendant relies on State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977), for the proposition that the failure of the state to introduce direct numerical evidence that the barrel of the gun was less than twelve inches in length renders the evidence insufficient to support a conviction under §§ 53a-217 and 53a-3 (18). In State v. Brown, supra, 260 and n.5, we determined that testimony that the defendant had pulled a small gun from under his shirt was insufficient to support the jury’s finding that the barrel of the gun was less than twelve inches in length. Although the defendant’s reading of Brown is correct, we now determine that in Brown we were incorrect in holding that the evidence produced in that case was insufficient, as a matter of law, for the jury to infer that the length of the barrel of the handgun was less than twelve inches. Accordingly, State v. Brown, supra, 254, is overruled to the
At trial, the gun that had been used to kill White was not introduced into evidence. The state, however, presented several witnesses who testified that the defendant pulled a “small handgun” out of his “waist length jacket.”
From this evidence the jury could have reasonably inferred that the handgun that the defendant pulled from the pocket of a small sized outer garment that he wore was less than twelve inches long and that, accordingly, the state had proved this element under §§ 53a-217 and 53a-3 (18) beyond a reasonable doubt. Although it would have been preferable for the state to have asked any of the witnesses to compare the length of the barrel of the handgun to a twelve inch ruler, it is extremely unlikely that anyone would describe as “small” a handgun that had a barrel of one foot or longer.
The defendant next claims that the trial court improperly limited his right to confront a witness on surrebut-tal in violation of the sixth amendment to the United States constitution, the Connecticut constitution
The following facts are relevant to this claim. After the defense rested, the state called several witnesses on rebuttal, including Jamesetta Dukes. Dukes testified that her son, Charles Dukes, a key defense witness, had told her that the defendant’s “boys” had offered him $5000 to testify that the defendant did not shoot White.
After the defendant’s cross-examination of Jamesetta Dukes, the state rested. Outside the presence of the jury, the defendant requested that he be allowed to recall her as a surrebuttal witness. In support of this request, the defendant made an offer of proof of testimony he expected to elicit from Dukes that would tend to demonstrate her bias in favor of the state.
Initially, we note that there is “no constitutional right to present surrebuttal evidence.” Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527,
We are equally unpersuaded that the defendant had demonstrated that the proffered evidence could have placed the result of the trial in doubt. The defendant’s offer of proof failed to claim a connection between any benefit to Dukes and an agent of the state that might suggest bias. The trial court did not abuse its discretion in denying this surrebuttal testimony.
In this opinion Peters, C. J., and Callahan, J., concurred.
General Statutes § 53a-54a provides in relevant part: “murdeb. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”
General Statutes § 53a-49 provides in relevant part: “CRIMINAL ATTEMPT: SUFFICIENCY OF CONDUCT; RENUNCIATION AS DEFENSE, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
General Statutes § 53a-59 provides in relevant part: “assault in the FIRST degree: CLASS b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”
General Statutes (Rev. to 1991) § 53a-217 provides in relevant part: “criminal possession of a pistol, revolver or electronic defense WEAPON: CLASS D felony, (a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152,53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”
General Statutes § 51-199 provides in relevant part: “(b) The following matters shall be taken directly to the supreme court ... (3) an appeal in any erimi-
General Statutes § 54-82h (c) provides: “Alternate jurors shall attend at all times upon trial of the cause. They shall be seated when the case is on trial with or near the jurors constituting the regular panel, with equal opportunity to see and hear all matters adduced in the trial of the case. If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun. A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case.” (Emphasis added.)
Although evidence of the defendant’s motive was not introduced at trial, the trial court noted at sentencing that the murder was aptly characterized as an assassination related to a drug dispute.
Practice Book § 841 provides: “The parties, after submission of the matter to the jury and prior to the verdict, may, by stipulation in writing and with the approval of the judicial authority, elect to have the verdict rendered by a number of jurors fewer than that prescribed by law. The judicial authority shall not permit such an election or stipulation unless the defendant, after being advised by the judicial authority of his right to a trial by a full jury, personally waives such right either in writing or in open court on the record.”
Specifically, the trial court instructed the jury as follows: “Ladies and gentlemen of the jury, as I’ve told you earlier, we have lost one of the jurors, Mr. Dent. We have contacted the alternate juror, Mr. Marks, and he is here and he’s available to sit on this case.
“In order to proceed further with deliberations with Mr. Marks, in other words, a jury of twelve, it would be necessary that the jury, you eleven peo-*241 pie, start your deliberations anew, start right from the beginning where you started Friday afternoon, late in the afternoon when the case was given to you for deliberation, when the exhibits were delivered in there.
“And it would be necessary for all of you individually to disregard anything that was said during the course of the discussions you had. And I don’t want to get into what they were, but it’s obvious, to some extent, they at least involved the selection of a foreman and a determination as to what parts of the transcript you wanted read back and m.aybe some other things were said, that you’d be required to erase that from your minds and start anew and disregard anything that anybody may have said or any ideas or opinions or thoughts any of you may have had based on the discussions.
“In other words, start fresh from the first moment you walked into the jury room. And only if all eleven, of you can do that can twelve of you continue to deliberate because Mr. Marks was not present during those first deliberations. ” (Emphasis added.)
The defendant also claims that substitution of an alternate juror for an excused juror after deliberations have begun violates the federal constitution’s guarantee that the essential features of the jury trial be preserved. This claim merits little attention. The defendant cites no persuasive authority for this proposition, and there is controlling authority to the contrary. See, e.g., Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); United States v. Hillard, 701 F.2d 1052 (2d Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1318 (1983). We therefore reject his claim.
In light of the state’s concession, we assume, but do not decide, under the circumstances of this case, that the substitution of an alternate juror after jury deliberations had begun violated General Statutes § 54-82h (c).
The defendant argues that harmless error analysis is inapplicable because General Statutes § 54-82h (c) implements the state constitution. In support of this claim, the defendant relies on State v. Sinclair, 197 Conn. 574, 585, 500 A.2d 539 (1985) (harmless error may be inconsistent with statute’s unconditional language). We disagree.
It is well settled that, ordinarily, even if a claim of constitutional error is presented, harmless error analysis is applicable. “An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no possibility that the jury was misled.” (Internal quotation marks omitted.) State v. Yurch, 229 Conn. 516, 522, 641 A.2d 1387 (1994). Thus, even if a violation of § 54-82h (c) implicated the Connecticut or United States constitution, the defendant’s requested rule of per se reversal for violation of this statute is without merit.
The defendant further argues that jury deliberations were not of sufficient length to imply a fresh start. From our review of the record, it is not possible to attribute any special significance to the length of deliberations in this case. There is nothing in the record that indicates that the defendant was in any way prejudiced by the length of the jury deliberations.
The defendant has not provided independent analysis to support his state constitutional claim. We therefore decline to review it. See, e.g., State v. Joyner, 225 Conn. 450, 458 n.4, 625 A.2d 791 (1993); State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991).
Specifically, with respect to the first part of this claim, the defendant challenges the prosecutor’s assertion that defense counsel “has been doing this quite a long time before—” and the prosecutor’s comment that “fa]s you can tell, [defense counsel] is very good at her job, you’ve watched her
See also Practice Book § 4185 which provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.”
The defendant has failed to provide a separate analysis of his claim under the Connecticut constitution, and we therefore decline to review it. See footnote 13.
See footnote 3 for the relevant text of General Statutes (Rev. to 1991) § 53a-217.
General Statutes § 53a-3 (18) defines a pistol as “any firearm having a barrel less than twelve inches.”
In addition to hearing the probable cause testimony of Sanders regarding the “small handgun” that the defendant pulled from his “jacket pocket,” the jury heard the statement of David Lisbon, another witness to the shooting, that “[the defendant] put his hand in his pocket . . . and pulled out the gun and began to shoot [White].” (Emphasis added.)
Juxtaposed to a common twelve inch ruler, a twelve inch pistol barrel would look like the very distinctive and fabled “Buntline Special” creation of the nineteenth century American story writer Edward Z. C. Judson. Certainly there was nothing in the evidence from which the jury could reasonably have found or inferred that the barrel of the defendant’s handgun was of this dimension.
The defendant has failed to provide an independent analysis of his state constitutional claim and, therefore, we decline to review it. See footnote 13.
Specifically, the defendant’s offer of proof was that “at the time of the shooting [Dukes] was in the process of being evicted for nonpayment of rent. And, in addition, her utilities were so far behind that they were being cut off, but that as soon as her daughter went to give a statement, she miraculously came up with all of the money for her back utilities and her back rent. That’s what I want to elicit, Your Honor, as her motive and bias for testifying falsely.”
The defendant’s final claim is that the trial court improperly instructed the jury that a reasonable doubt is a doubt “for which a reasonable man or woman can give a valid reason.” He argues that this instruction on reasonable doubt violated his right to due process. Because this claim is unpreserved, he seeks to prevail under State v. Golding, supra, 213 Conn. 233.
The challenged instruction is identical to the instruction recently approved by this court in State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993), and numerous cases cited therein. In our previous cases, we concluded that this instruction did not decrease the state’s burden of proof when viewed in the context of the charge as a whole. Id., 354. In this case, the jury charge, taken as a whole, presents an accurate definition of proof beyond a reasonable doubt.
“Because we find neither a clear violation of a fundamental constitutional right nor a deprivation of a fair trial, the defendant’s unpreserved claim does not satisfy the second and third conditions set forth in State v. Golding, supra [213 Conn. 233], Therefore, the defendant cannot prevail on this claim.” Id.