218 Conn. 309 | Conn. | 1991
The defendant appeals from the judgment of conviction, after a jury trial, of three counts of felony murder in violation of General Statutes § bSa-Mc.
The defendant was indicted by a grand jury in 1979 for the commission of three murders in the course of an armed robbery. He was convicted after a jury trial in 1981 and appealed. That conviction was reversed by this court. State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) (Couture I). A second trial that commenced in November, 1986, culminated in a mistrial. A third trial, commenced on May 9,1989, led to the convictions from which the defendant presently appeals.
In his appeal the defendant alleges that the trial court improperly: (1) conducted the voir dire process on the first day of the Jewish holiday of Passover; (2) restricted voir dire examination of a prospective juror who had served on a prior criminal jury; (3) limited cross-examination of the state’s chief witness as to an alleged prior accusation; (4) permitted the state to introduce the hearsay statements of a coparticipant in the crimes through the testimony of the state’s chief witness; (5) denied the defendant a speedy trial; and (6) denied the defendant’s motion to suppress the fruits of the searches and seizures conducted at his house at the time of his arrest. During oral argument before this court, counsel for the defendant withdrew the speedy trial claim from consideration.
Two witnesses for the state, Evelyn Vega and Donna Souza, testified about a plan, formulated in February of 1979, to rob the Purolator Armored Car garage in Waterbury. Vega, Souza, Patricia Dolphin, Lawrence Pelletier and the defendant were involved in planning this robbery. Vega and Souza testified as state’s witnesses and implicated the defendant as one of the two people involved in committing the crime. They testified that, after returning to the defendant’s home immediately after the robbery, Pelletier and the defendant had described the robbery and murders, and then had proceeded to transport all of the weapons and fruits of the crime from their pickup truck into the house. Certain of the contraband and weapons were then moved to the home of Pelletier and Vega, who were living together. Thereafter, on the basis of a statement given by Dolphin on April 17,1979, the police executed a search warrant on the defendant’s home in Walling-ford and discovered numerous items, including two
The continuing police investigation was able to match all but one of the deposit bags taken from the defendant’s residence with the deposit bags listed on the bills of lading for the armored car in the Purolator garage. In addition, the Waterbury police laboratory determined that two of the cartridge casings discovered in Pelletier’s basement had been ejected from the same weapon as ten of the casings taken from the crime scene; that all of the cartridge casings, bullets, and bullet fragments taken from the crime scene or the bodies of the slain guards were linked to the two carbines found in the defendant’s basement; that the victims had been shot by both of the carbines; and that the wire cutters found in the defendant’s basement had severed a chain behind the Purolator garage.
During the trial, Souza, the defendant’s former wife was cross-examined as to whether she had, on a prior occasion, falsely accused her lawyer of rape. The state’s objection was sustained, and the defendant attempted through a series of voir dire questions to qualify the line of questioning but failed. He now claims that his sixth amendment right to confront and cross-examine his accusers has been unconstitutionally denied.
The defendant also objected to the testimony of Yega, who testified in great detail about statements that
The defendant further moved to suppress the fruits of the searches and seizures conducted at his house at the time of his arrest. These searches yielded the murder weapons and most of the loot taken from the Purolator garage. A motion to suppress on the same grounds was denied by the trial court, Hull, J., in the first trial, and upon appeal, this court affirmed Judge Hull’s ruling. Couture I, supra, 531-47.
I
The defendant first claims that the trial court should not have held jury selection on the first day of Passover, an important Jewish holiday. He argues that religiously observant Jews would not serve on a jury on the first day of Passover, and thus, that he was deprived of his constitutionally guaranteed right to a jury truly representative of the community.
The factual background for this claim arises out of the timing of the voir dire, which commenced on April 18,1989, and concluded on May 4,1989. Over the defendant’s objection, jury selection was held on April 20,1989, the first day of Passover. The defendant challenged the entire panel and each venireman called that day on the ground of intentional exclusion of observant members of the Jewish faith. During jury selection proceedings that day, two jurors were selected for service, and the defendant exercised two peremp
The defendant’s challenge is based on the sixth and fourteenth amendments to the federal constitution. The fourteenth amendment has long been held to forbid unequal treatment at the venire stage of jury selection. Strauder v. West Virginia, 100 U.S. 303 (1879). Likewise, the sixth amendment guarantees criminal defendants an “impartial jury”; Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990); that is, a jury drawn from a representative venire that reflects a “fair cross section of the community.” Id.; Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).
The defendant’s equal protection claim warrants little discussion. To prevail on an equal protection challenge, the defendant must first show that the group alleged to be excluded is a distinct or cognizable group within the community. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (grand jury venire). A group is considered “cognizable” “only upon a showing . . . that the group has ‘a definite composition. That is, there must be some factor which defines and limits the group. A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected. Secondly, the group must have cohesion. There must be a common
Although Jews as a whole have been recognized as a “cognizable” group; see United States v. Gelb, 881 F.2d 1155, 1161 (2d Cir.), cert. denied, 493 U.S. 994, 110 S. Ct. 544, 107 L. Ed. 2d 541 (1989); it does not follow that the smaller class of observant Jews also constitutes a cognizable group. Applying the definition of “cognizable group” to observant Jews, we conclude that two of the elements of the definition have not been satisfied. First, there is no factor which defines and limits the group. Rather, a person who is an observant Jew one day, week or month may decide the following day, week or month not to observe to the same extent, or perhaps not at áll. Thus, membership in the group of “observant Jews” may shift from day to day or year to year. Therefore, the first element of “cognizability” has not been satisfied.
Second, it has not been shown that the interests of observant Jews could not be adequately protected if the
We therefore conclude that observant Jews do not constitute a cognizable group for purposes of the defendant’s equal protection claim.
With regard to the defendant’s sixth amendment claim, we note that the defendant initially bears the burden of establishing a prima facie violation of the fair cross section requirement. State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984). He “ ‘must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ Duren v. Missouri, [439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979)].” State v. Castonguay, supra, 421-22.
The defendant’s claim fails to address the first two required showings; for this reason, and for want of an adequate factual basis in the record, this claim must fail. The defendant, for instance, has not shown what percentage of the population of the Waterbury judicial district is Jewish. We lack, therefore, a sufficient factual basis from which to determine whether Jews residing in the Waterbury judicial district are “sufficiently numerous and distinct”; see Duren v. Missouri, supra, 364; Taylor v. Louisiana, supra, 531; such that their sys
Finally, the defendant has failed to show that observant Jews were in fact systematically excluded from serving on his jury. At the hearing on this matter, the state called David Jackson, jury administrator, who testified that while the judicial department did not record the reasons given by prospective jurors for postponing jury service, the defendant was free to obtain the names and addresses of those persons who did postpone on the date in question, and to contact them in this regard. The defendant has offered no evidence that he did so and has not shown that a single person actually postponed jury service on account of Passover.
II
The defendant next claims that the trial court improperly limited his voir dire examination of a prospective juror who had served on a prior jury that had returned a verdict. Specifically, the defendant argues that he should have been permitted to ask the prospective juror
A criminal defendant is guaranteed the right to exercise peremptory challenges in the selection of his jury. Conn. Const., art. I, § 19, as amended by art. IV of the amendments to the constitution; General Statutes § 52-240. Additionally, “General Statutes § 54-82f provides the right to a voir dire examination of each prospective juror in a criminal action. It is firmly established therefore that ‘[t]he right to question each juror individually by counsel shall be inviolate.’ See, e.g., State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987).” State v. Fritz, 204 Conn. 156, 160-61, 527 A.2d 1157 (1987). “The extent of the voir dire examination rests largely within the discretion of the trial court, and the exercise of such discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” Id., 161.
“[I]n exercising its discretion, the court should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. State v. Rogers, [197 Conn. 314, 318, 497 A.2d 387 (1985)].” Id. The defendant, relying upon the distinction drawn in Fritz, claims that although the issue of whether the prospective juror’s prior jury returned a verdict of guilty or not guilty “has nothing particularly to do with fitness to
A jury is presumed to have followed the trial court’s instructions. State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987). A criminal jury’s sole function is to set aside the personal prejudices of its individual members, to weigh dispassionately the evidence set before it, and, on the basis of the trial court’s instructions, to determine whether the state has proved the defendant’s guilt beyond a reasonable doubt. See State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Asherman, 193 Conn. 695, 739, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). That a jury returns a verdict of guilty in a given case, therefore, has nothing to do with the “possible predispositions” of a juror, and everything to do with the particular factual and legal contours of the case as it was presented to the jury. Standing alone, the fact that a jury returns a guilty verdict is not probative of the personal views of the individual jurors. The trial court did not abuse its discretion in sustaining the state’s objection to the defendant’s question.
Ill
The defendant next claims that the trial court improperly limited his cross-examination of an important state’s witness, thus abridging his right of confrontation under the sixth amendment to the federal constitution. The following facts are pertinent to this claim.
On cross-examination, the defendant asked the witness whether she had “previously falsely accused others of committing serious crimes.” She said, “No, that’s not true.” The defendant then inquired whether the witness had “previously accused Pier] own lawyer of
The confrontation clause of the sixth amendment to the federal constitution guarantees criminal defendants the right to cross-examine adverse witnesses. United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). This guaranty is not, however, infinite. “The constitution does not require that the defendant be permitted to present every piece of evidence he wishes . . . .” State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). The confrontation clause requires only that the defendant be afforded “ ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.’ ” Kentucky
The sixth amendment guarantee of the right of cross-examination does not include “all evidence that is the least bit probative of credibility . . . .” United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988). In this case, the purportedly false allegation of rape was unrelated to the crimes at issue and would have been only weakly probative of general credibility. Evidence on this subject would not have been constitutionally mandated. Id., 1089. The probative value of the allegation was further weakened by Souza’s insistence during defense voir dire that the allegation was true, a contention that was never challenged by contrary evidence. Moreover, the rest of the cross-examination of Souza was sufficient to satisfy the sixth amendment. Latitude was granted to the defense on cross-examination to elicit from Souza sufficient facts to draw inferences concerning her reliability. Her belief that she would benefit from her testimony by receiving favorable treatment in her posttrial incarceration was sufficient for the jury to draw inferences concerning her reliability. The trial court properly declined to grant the defendant further latitude in cross-examination.
IV
The defendant next claims that the.trial court improperly permitted Vega, a state’s witness, to testify about statements made to her, in the absence of the defendant, by Pelletier, the defendant’s coconspirator, concerning the commission of the crimes. Pelletier allegedly
“[I]t is well established that a co-conspirator’s [hearsay] statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause. State v. Spencer, 198 Conn. 506, 513, 503 A.2d 1165 (1986)”; State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989); see also Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). The trial court’s ruling turned, as does ours, on the question of when the conspiracy ended. The defendant argues that the conspiracy had achieved its principal objectives prior to Pelletier’s statement to Vega; the state argues to the contrary.
This precise issue, based on a nearly identical factual background, presented itself in the coconspirator Pelletier’s appeal. State v. Pelletier, supra. In that case, Couture was alleged to have made a statement to his wife regarding the crimes immediately before he and Pelletier unloaded the pickup truck. This court held that, as Pelletier and Couture had conspired to steal money, transport it to Couture’s house and store it in his basement, Couture’s statement, made before the goods had been transported from the truck to the basement, occurred while the conspiracy was still ongoing. Id., 577. The evidence introduced in the present case warrants the same holding with regard to the statement made by Pelletier while the goods were being moved to the basement.
We assess the significance of Serrano and Vowiell differently. In Vowiell, the main objective of the conspiracy was to escape from prison. The conspiracy was deemed to have ended when the escapees reached a place of temporary safety; United States v. Vowiell, supra, 1268-70; and the co-conspirator statements made thereafter were ruled inadmissible because they took place outside the scope of the conspiracy. Id. In Serrano, the statements in question were made in an attempt to conceal a conspiracy that had long since collapsed. See United States v. Serrano, supra, 7-9. As in Vowiell, the Serrano court ruled the statements inadmissible because the chief aim of the conspiracy was past when the statements were made. Id., 9. But see United States v. Medina, 761 F.2d 12, 18 (1st Cir. 1985) (conspiracy continued so long as coconspirators were acting together to destroy incriminating evidence).
These cases do not purport to limit, other than factually, the general rule rendering coconspirators’ statements admissible that was established by the United States Supreme Court; see Grunewald v. United States, 353 U.S. 391, 405, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957); and relied upon by this court in Pelletier. In the present case, as in Pelletier, the coconspirator’s statements were made while the defendant and Pelletier were acting together to transport stolen goods to a safe hiding
V
The final claim of the defendant was that the trial court should not have denied his motion to suppress the evidence seized from his home. This issue was briefed, argued and thoroughly analyzed in Couture I, supra, 536-48. We are unpersuaded that we should revisit this issue and accordingly adhere to the conclusion reached in Couture I.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except
Although the defendant mentions in his argument that a coconspirator’s statement must be made not only contemporaneously with the conspiracy, but also in furtherance of it; State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989); he does not brief an argument that Pelletier’s statement was not made in furtherance of the conspiracy. Any challenge to the admission of Pelletier’s statement on this ground is, therefore, deemed abandoned. Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983).