237 Conn. 454 | Conn. | 1996
Lead Opinion
The principal issue in this appeal is the propriety of the trial court’s instructions to, and inquiries of, prospective jurors prior to the commencement of individual voir dire. After a jury trial, the defendant, Nathaniel Faust, was convicted of rioting at a correctional institution in violation of General Statutes § 53a-179b.
The juiy reasonably could have found the following facts. At all times relevant to this appeal the defendant was an inmate incarcerated at Gamer Correctional Institution (Garner). On the evening of April 21, 1993, while the defendant and other inmates were returning to their cells from dinner, an inmate riot occurred at Gamer.
On appeal, the defendant claims that the trial court improperly: (1) gave instructions to and asked questions of prospective jurors; (2) denied his challenge to the venire panels from which the jury for his trial had been selected; and (3) instructed the jury in several regards. We are not persuaded by any of these claims.
I
The defendant first claims that the trial court’s introductory instructions to, and inquiries of, two venire panels prior to the commencement of individual voir dire impaired his state constitutional and statutory rights to individual voir dire.
Interspersed among its introductory remarks and instructions, the trial court conducted general inquiries of each venire panel into areas of potential bias or incapacity.
For each venire panel, after the trial court had completed its introductory instructions and preliminary questions, the court reviewed with both counsel the
“Both the federal and state constitutions guarantee to an accused the right to a public trial by an impartial jury. U.S. Const., amends. VI and XIV; Conn. Const., art. I, § 8. . . . Part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, 230 Conn. 385, 391, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). In Connecticut, “[t]he right to a voir dire examination of each prospective juror in a criminal action is provided by § 54-82f of the General Statutes. [The court has the duty to analyze individual questioning under this section and limit examination to questions relating to (1) juror’s qualifications, (2) interest, if any, in the subject matter of the action, and (3) relations with the parties thereto.] This right was established as a constitutional one in
A
We find no impropriety in the preliminary instructions given by the trial court to each venire panel prior to the commencement of the voir dire examination of individual panel members. “Preliminary instructions serve the important function of orienting the jurors to the nature of the trial to come. It is helpful to explain at the very start the nature and scope of the jury’s duty, some of the basic ground rules and the issues to be decided.” A Collection of Connecticut Selected Jury Instructions — Criminal (3d Ed. 1995) p. 1-1. Such instructions are commonly given and, if properly crafted, do not infringe upon a defendant’s constitutional rights. See, e.g., State v. Figueroa, 235 Conn. 145, 182-85, 665 A.2d 63 (1995); State v. Lewis, 220 Conn. 602, 614-17, 600 A.2d 1330 (1991); State v. Andrews, 29 Conn. App. 533, 539-41, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Kelly, 23 Conn. App. 160, 168-70, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991); cf. State v. Woolcock, 201 Conn. 605, 622-28, 518 A.2d 1377 (1986) (approving trial court’s use of preliminary instructions following jury selection).
Although the instructions to the venire panels were themselves proper, the trial court should not have remarked during its instructions to members of the first venire panel that “I’m trying to tell you certain things that won’t get [you] disqualified.” The trial court should have confined its introductory remarks and instructions to basic legal principles that informed the panel members of their responsibilities and obligations as jurors and that guided them in fulfilling those responsibilities and obligations. We caution trial courts against making any extraneous and unnecessary comment such as that made by the court in this case. We are persuaded, however, that no prejudice to the defendant’s constitutional and statutory rights to individual voir dire flowed from the trial court’s remark. The remark was made to only the first venire panel, was brief and isolated, and was made in the midst of the trial court’s lengthy introduction to that panel. Moreover, the defendant conducted full individual voir dire examination of each of the jurors who was ultimately selected to sit for his trial. Under these circumstances, we cannot conclude that the single remark, in the overall context of the trial court’s otherwise exemplary introductory instructions to the first venire panel, prejudiced the defendant’s voir dire rights.
We are also persuaded that the questions the trial court asked panel members did not violate the defendant’s statutory and constitutional voir dire rights. It is well established that the trial court is vested with broad discretion to determine the extent and form of the voir dire examination. See Bleau v. Ward, 221 Conn. 331, 340, 603 A.2d 1147 (1992); State v. Dahlgren, supra, 200 Conn. 601.
The trial court, however, must temper its exercise of discretion over voir dire in order to comport with the goals of the voir dire examination. “The purpose of the voir dire examination is two-fold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge. . . . There are two sets of interests protected by the voir dire: (1) the interests of the parties, namely, the defendant and the state; and (2) the interests of the prospective jurors.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, supra, 230 Conn. 391-92. “[T]he exercise of [the trial court’s] discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.” (Internal quotation marks omitted.) State v. Skipper, 228 Conn. 610, 625, 637 A.2d 1101 (1994).
A trial court may pose questions to entire venire panels prior to individual voir dire; see State v. Mercer, 208 Conn. 52, 63-64, 544 A.2d 611 (1988); and may dismiss for cause any panel member whose answers to the court’s inquiries reveal bias. See id., 64; see also Practice Book § 847.
Although the trial court’s general inquiries were proper, once individual panel members had indicated the existence of possible bias or incapacity to serve as jurors by their responses to those inquiries, the court should not have proceeded further in the presence of other panel members. Follow-up questions that required elaboration beyond an affirmative or negative response should have been reserved for subsequent individual inquiries. A prospective juror’s biased opinions or attitudes, expressed through answers to specific questions in the presence of other members of the venire panel, may taint the impartiality of the other members. See Jurywork: Systematic Techniques (2d Ed. 1989) § 2.11 (1), p. 2-68; see also Mu'Win v. Virginia, 500 U.S. 415, 425, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991); State v. Bible, 175 Ariz. 549, 570, 858 P.2d 1152
In order to decrease the risk of one panel member’s bias contaminating an entire venire panel, the preferable procedure would have been for the trial court to note the panel members whose responses to the court’s general inquiries indicated possible bias or incapacity, and either to have asked specific follow-up questions outside the hearing of other panel members or to have relied upon the parties to pursue any follow-up questions during individual voir dire. We strongly discourage trial courts from asking such questions of individual panel members in the presence of the entire venire panel. We also caution trial courts to craft all their preliminary inquiries so as to guard against the exposure of prospective jurors to any biases of responding panel members.
Although it would have been preferable, in this case, for the trial court not to have asked follow-up questions in the presence of other panel members, the defendant has failed to establish that the court’s conduct prejudiced his ability to conduct individual voir dire. The defendant had ample opportunity to question prospective jurors on prejudice that might have resulted from their exposure to responses to the trial court’s preliminary questions. The defendant engaged in individual voir dire with each of the panel members selected to serve as a juror for his trial. During individual voir dire, the trial court did not limit or foreclose in any material respect questions designed to uncover bias or incapacity.
II
The defendant next claims that the selection of venirepersons from the Danbury judicial district
The defendant’s cross section claim is a narrow one. The defendant does not challenge his venire panels pursuant to Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
The legislature has determined that the judicial district is the relevant community for purposes of selecting venire panels. “In 1977, the Connecticut legislature adopted a unified court system through the creation of twelve judicial districts that replaced counties as the means of establishing venue. General Statutes § 51-344.
The defendant does not claim that the legislature either created or has maintained the impaneling statutes for an invidious purpose; see State v. Frazier, 185 Conn. 211, 218, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); or that the statutes in some other way violate his constitutional rights. In the absence of any challenge to the constitutionality of the impaneling statutes, the defendant’s attempt to redefine the area that constitutes the relevant community for jury selection purposes must fail.
Ill
The defendant also challenges the propriety of the trial court’s final instructions to the jury. The defendant contends that portions of the final instructions violated his federal constitutional rights under the sixth amendment
A
The defendant first claims that the trial court improperly instructed the jury on the elements required for a conviction of rioting at a correctional institution under § 53a-179b by removing a necessary element of the offense from the jury’s consideration. Although the defendant concedes that he did not preserve this claim at trial, he contends that he is entitled to relief under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
A defendant is constitutionally entitled to have the jury instructed on the essential elements of the crime charged and to be acquitted unless proven guilty of each element beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 509-10, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Accordingly, a trial court is prohibited from incorporating into its jury instructions evidentiary presumptions that have the effect of relieving the state of its burden of proving every essential element of the crime. Sandstrom v. Montana, 442
To prove a violation of § 53a-179b, one element the state must prove is that the charged offense occurred at a correctional institution. See footnote 1. During the course of its final instructions, the trial court told the jury: “Gamer is clearly a correctional institution within the meaning of [§ 53a-179b]. You don’t have to waste [any time] on that if you find it occurred at Gamer — Garner is a correctional institution.”
“In analyzing the defendant’s claim, we assume, without deciding, that the challenged instruction constituted a Sandstrom violation. [See Sandstrom v. Montana, supra, 442 U.S. 520-24.] This assumption, however, does not end the inquiry because such an error is harmless if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Tucker, 226 Conn. 618, 624, 629 A.2d 1067 (1993); see State v. Cerilli, 222 Conn. 556, 584, 610 A.2d 1130 (1992).
Upon review of the entire record, we are persuaded that the state has satisfied its burden of proving that any impropriety in the trial court’s instruction was harmless beyond a reasonable doubt.
The evidence adduced at trial compels the conclusion beyond a reasonable doubt that, in the absence of the assumed improper instruction, the jury would have concluded that the charged violation of § 53a-179b had occurred at a correctional institution. Accordingly, the defendant has failed to satisfy the fourth prong of Golding, and therefore cannot prevail on his claim of harmful instructional error. See State v. Bruno, 236 Conn. 514, 537, 673 A.2d 1117 (1996); State v. Tucker, supra, 226 Conn. 624-25.
B
The defendant next claims that the trial court’s instructions on rioting at a correctional institution improperly enlarged the offense with which he had been charged. The defendant first contends that it was improper for the trial court to read to the jury § 53a-179b (a) in its entirety because the information had charged him with violating only a portion of that statute. The defendant also contends that the trial court improperly instructed the jury that it could find him guilty for inciting, instigating or taking part in a strike, conduct
The following additional facts are relevant to this claim. The information charged the defendant with inciting, instigating or taking part in a disturbance, riot or organized disobedience to the rules and regulations of a correctional institution. During the trial court’s final instructions to the jury regarding the count of rioting at a correctional institution, the court read § 53a-179b (a) in its entirety. After the trial court excused the jury, the defendant took an exception to the court’s reading of the entire statute. In response to the defendant’s exception, the trial court immediately recalled the jury and reinstructed it as follows: “I did read the entire statute to you on riot and the various [ways] it could happen — I think there are seven, eight or nine alternatives. The [information, of course, alleges [that the defendant] incited — he did incite, instigate, or take part in — you’re limited to those three specific words in terms of the allegations of the complaint on riot. Not aiding, abetting or any of those things, but just simply incite, instigate, or take part in. And if you find that he didn’t do those things — [any one] of them — then, obviously, you can’t find him guilty on that charge.” (Emphasis added.) The defendant did not take an exception to the trial court’s supplemental instruction,
“It is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute.” State v. Chapman, 229 Conn. 529, 537, 643 A.2d 1213 (1994); State v. Dinoto, 229 Conn. 580, 584, 642 A.2d 717 (1994). In this case, the original jury instructions were overly expansive because the information charged the defendant only with inciting, instigating or taking part in a disturbance. The trial court’s supplemental instruction, however, cured the court’s improper reading of § 53a-179b (a) in its entirety. “The defendant cannot complain of alleged instructional misstatements that are corrected by a timely supplemental instruction. . . . Indeed, a supplemental charge is likely to enjoy special prominence in the minds of the jurors because it is fresher in their minds when they deliberate.” (Citations omitted.) State v. Ross, 230 Conn. 183, 224, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Bryant, 233 Conn. 1, 13, 658 A.2d 89 (1995). We therefore reject the defendant’s claim based on the trial court’s reading of § 53a-179b (a) in its entirety.
We also conclude that the trial court did not enlarge the offense of rioting at a correctional institution to include an uncharged theory that the defendant incited, instigated or took part in a strike. “[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The
Although the trial court mentioned “strike” in its final instructions, the court referred to the term only when it read § 53a-179b (a) to the jury and when it defined the statutory terms “riot,” “disorder” and “strike.” The trial court never mentioned “strike” in its explanation to the jury of the essential elements of § 53a-179b that the state had to prove beyond a reasonable doubt. Moreover, the trial court expressly instructed the jury that, in order to convict the defendant, it had to find that the state had proven that he had committed the acts in the manner alleged in the information, which did not charge him with inciting, instigating or taking part in a strike. Reading the jury charge as a whole, we are persuaded that it is not reasonably possible that the jury was misled by the trial court’s isolated references to “strike.” Accordingly, the defendant’s claim must fail.
C
Last, the defendant claims that the trial court impermissibly diluted the state’s burden of proving him guilty beyond a reasonable doubt. The defendant contends that the trial court improperly instructed the jury to disregard the standard of reasonable doubt mentioned by defense counsel in his closing argument, and improperly instructed the jury regarding reasonable doubt, the presumption of innocence and the jury’s legal duty. We disagree.
In this case, although defense counsel’s remarks might have constituted an accurate but abbreviated summary of the reasonable doubt standard,
The judgment is affirmed.
In this opinion BORDEN, KATZ, and PALMER, Js., concurred.
General Statutes § 53a-179b provides in relevant part: “Rioting at correctional institution: Class B felony, (a) A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution. . .
The jury acquitted the defendant of assault of an employee of the department of correction in violation of General Statutes § 53a-167c.
The constitution of Connecticut, article first, § 19, as amended by article four of the amendments, provides: “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. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”
The first venire panel consisted of forty-three venirepersons, and the second venire panel consisted of thirty-eight venirepersons.
In similar remarks to each of the two venire panels, the trial court, stated that jurors must follow the court’s instructions on the law and that it is the sole province of the jury to determine the facts; explained that, pursuant to the fifth amendment to the United States constitution, a criminal defendant has a right not to testify at trial; briefly discussed the concept of the presumption of innocence and the state’s burden to demonstrate the defendant’s guilt beyond a reasonable doubt; instructed that sympathy cannot enter into jury deliberations; a.nd briefly explained the individual voir dire process and instructed panel members to reserve judgment until they heard all the evidence. The defendant does not claim that any of the remarks made by the trial court contained an improper statement of the law.
The trial court asked each of the two venire panels whether any panel member: was acquainted with any prospective witnesses, either counsel or members of each counsel’s respective office; believed that a person must have committed a crime if that person has been arrested; possessed strong feelings toward law enforcement officers; could not follow the court’s instruction that sympathy cannot enter into jury deliberations; or believed that African-Americans are more inclined to commit crimes than white people. The trial court also inquired whether any panel member or anyone with whom a panel member was closely acquainted had been the victim of crime.
In addition, the trial court asked the second venire panel whether any panel member: knew anything about Garner that might influence his or her judgment; had any problems regarding the nature of the offenses with which the defendant had been charged; believed that the defendant must have committed the offenses with which he had been charged solely because he was incarcerated; could not follow the court’s instruction that the jury must follow the law as charged by the court, that the jury’s role is to determine the facts and to apply the facts to the law, or that jurors must reserve judgment until all the evidence is presented; would believe a statement solely because it is made by a law enforcement officer; believed, for any reason, that he or she could not serve as a juror and reach a fair and impartial verdict based on the evidence presented during trial; or had made plans that could not be postponed until after the estimated completion date of the trial.
The defendant previously had objected to the trial court’s questioning of panel members prior to individual voir dire, and had moved for a mistrial on the ground that the panel members’ preexposure to the types of inquiries likely to be repeated by counsel during the individual voir dire process would “allow potential jurors so disposed to prepare answers that may interfere with counsel’s ability to determine beliefs, predispositions, emotional response systems and prejudgments.” The trial court denied the defendant’s motion.
Practice Book § 847 provides: “[Selection of Jury] — Preliminary Proceedings
“The judicial authority shall cause prospective jurors to be sworn or affirmed in accordance with Gen. Stat., §§ 1-23 and 1-25. The judicial author
The only explicit restriction placed by the trial court on the defendant’s right to conduct individual voir dire was that the defendant could not ask prospective jurors questions regarding their knowledge or ignorance concerning questions of law. See State v. Dahlgren, supra, 200 Conn. 601. The defendant does not challenge the propriety of this restriction.
General Statutes § 51-344 provides in relevant part: “Judicial districts established. For purposes of establishing venue, the superior court shall consist of the following judicial districts ... (2) The judicial district of Danbury, consisting of the towns of Bethel, Brookfield, Danbury, New Fair-field, Newtown, Redding, Ridgefield and Sherman . . . .”
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” This sixth amendment right applies to the states through the due process clause of the fourteenth amendment. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
The defendant also makes his claim under article first, § 8, of the Connecticut constitution. Because the defendant has failed to provide an independent analysis of his state constitutional claim, we decline to review it. See State v. Wilkes, 236 Conn. 176, 183 n.9, 671 A.2d 1296 (1996); State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993).
Under Duren v. Missouri, supra, 439 U.S. 364, for a defendant successfully to challenge the composition of his or her jury array, the defendant must prove: “(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.” “Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest.” State v. Tillman, 220 Conn. 487, 492, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).
See footnote 9.
General Statutes § 51-231 provides: “Drawing of jurors. Before or during each jury session of the superior court in each judicial district, the clerk or an assistant clerk of the superior court shall publicly, randomly or by rotation, draw the names of as many jurors from the judicial district as are ordered to attend said court by the judges assigned to such jury session, which names shall constitute a single jury panel for criminal and civil sessions at any court location within the judicial district. The clerk or an assistant clerk of the court, upon direction of any judge of said court, may assign any jurors of the panel to attend any courtroom within the judicial district.”
Although we have sometimes looked to counties rather than to judicial districts in order to determine the relevant community for purposes of selecting venire panels; see State v. McCarthy, 197 Conn. 247, 252-53, 252 n.7, 496 A.2d 513 (1985); State v. Frazier, 185 Conn. 211, 217, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); more recent decisions have determined the relevant community based on judicial districts, in accordance with the statutory scheme set forth by the legislature. See State v. Couture, supra, 218 Conn. 316A-17.
See footnote 10.
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
The defendant also claims that the trial court’s final instructions violated his right to due process under article first, § 8, of the Connecticut constitution. Because the defendant has failed to provide an independent analysis of his state constitutional claim, we decline to review it. See State v. Varszegi, 236 Conn. 266, 269 n.4, 673 A.2d 90 (1996); State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994).
To prevail under Golding, the defendant must establish all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 239-40.
“We have equated this constitutionally required formulation of the harmless error standard; see State v. Coleman, 14 Conn. App. 657, 678-81, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988); with our formulation that an instructional constitutional error is harmless if there is no reasonable possibility that the jury was misled. See State v. Mercer, [supra, 208 Conn. 73-74]. We perceive no functional difference between the two formulations.” State v. Cerilli, supra, 222 Conn. 584 n.16.
Because we conclude that any possible error occasioned by the trial court’s instruction was harmless beyond a reasonable doubt, we need not determine whether the defendant waived his right to challenge the propriety of the instruction. See State v. Cooper, 38 Conn. App. 661, 669-71, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995).
The defendant also claims that the trial court failed to instruct the jury adequately as to the necessity of proof of the “organized disobedience to the rules and regulations” portion of § 53a-179b (a). The defendant, however, concedes that the trial court instructed the jury as to the necessity of proof of organized disobedience under the portion of § 53a-179b with which he had been charged, and he does not challenge the propriety of that instruction. The defendant therefore appears to claim that the trial court improperly failed to repeat its correct instruction throughout its charge to the jury. This claim, however, was not raised at trial, and is devoid of analysis and of citation to any relevant authority. We therefore decline to review it. See State v. Bruno, supra, 236 Conn. 546 n.22; State v. Prioleau, 235 Conn. 274, 294, 664 A.2d 743 (1995).
The defendant briefly alludes to a claim that the trial court’s instruction to the jury to disregard defense counsel’s remarks concerning reasonable
At the conclusion of defense counsel’s final argument, he stated: “The [j]udge is going to instruct you on reasonable doubt. The only thing I want to say is unless you’re firmly convinced, based on what you’ve heard, that [the defendant] is guilty of one or both of these counts — you can’t find him guilty. If you think he’s possibly guilty then, under the law, he's not guilty. If you think he’s probably guilty then, under the law, he’s not guilty. The burden of proof is stronger than that. You have to be firmly convinced. A subjective state of near certitude not absolute certitude. There’s no such thing, but. subjective state of near certitude.”
The trial court instructed the jury as follows: “Now, you’ve heard some arguments and terms — certitude, possible doubt, some doubt; disregard that completely. That is an inaccurate statement of the law and you will pay attention to what I tell you about a reasonable doubt — use my definition only and disregard the other characterizations or measures of what it [may be].”
The trial court had instructed the jury that “if the law, as I give it to you, differs in any way from the claims made by counsel in their respective summaries to you, you will dismiss from your minds what either counsel or one or both may have said to you about the law which is contrary to what I tell you it is.”
We caution that if a trial court instructs a jury to disregard descriptions of legal principles made by defense counsel during closing argument, the court should, as did the court in this case, craft its instruction so as to focus on the statements that the jury should disregard and to eliminate or minimize specific reference to the particular party who made the statements. “The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s.” State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986); State v. Bember, 183 Conn. 394, 401-402, 439 A.2d 387 (1981).
The tried court instructed the jury as follows: “Ladies and gentlemen, the state of Connecticut does [not] desire the conviction of any innocent person or any person whose guilt has not been established beyond a reasonable doubt. The state does not wish to have an innocent person punished nor does it wish to have a guilty person acquitted. But, for the safety and well being of society and the protection of life and property, the state is concerned in securing the conviction of persons who have been proven by the evidence beyond a reasonable doubt to have been guilty of committing an offense or offenses as [may be] charged in the information. It’s a sworn duty of the court and the jury to safeguard the rights of persons charged with offenses respecting the presumption of innocence which the law imputes to every person so charged. But, the law is made to protect society and innocent persons, not to protect guilty ones.
“If the presumption of innocen.ce has becm overcome or removed by evidence demonstrating guilt beyond a reasonable doubt, then it’s the sworn duty of the jury to enforce the law, which, as I told you, made for the protection of life, society, and property and to render such a verdict as the evidence warrants. ” (Emphasis added.)
We reiterate, however, our suggestion in State v. Francis, 228 Conn. 118, 136 n.19, 635 A.2d 762 (1993), that “(1) the challenged sentence [‘the law is made to protect society and innocent persons, and not to protect guilty ones’] be omitted; or (2) it be modified to provide as follows: ‘But the law is made to protect society and persons whose guilt has not been established beyond a reasonable doubt, and not to protect those whose guilt has been so established.’ ”
Concurrence Opinion
concurring. I concur in the result. I write separately because of my concerns with regard to the racial and ethnic composition of the community from which the venirepersons were selected. The defendant’s trial took place in the city of Danbury and his jury was selected from the judicial district of Danbury rather than from the county of Fairfield, within which Danbury is located.
According to the 1990 census, the towns within the judicial district of Danbury have a total population of 162,584, of which 5040 residents are African-American (3 percent) and 6670 residents are Hispanic (4 percent). The county of Fairfield, however, has a total population of 827,645, of which 81,519 residents are African-American (10 percent) and 70,818 residents are Hispanic (8.5 percent). It is quite obvious that the racial and ethnic composition of the community from which the venirepersons for the defendant’s jury were drawn would have been substantially different if the community had
Historically, the county has been the unit from which potential juries were summoned. “From time immemorial in this state, the community unit which is the basis for the source of a jury array is that of a county . . . .” State v. Townsend, 167 Conn. 539, 551, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975). Even after the legislature substituted the judicial district for the county, this court continued to recognize the county as the appropriate community from which to draw venirepersons. See State v. McCarthy, 197 Conn. 247, 252 n.7, 496 A.2d 513 (1985).
Although the defendant clearly challenged the drawing of the venirepersons from the judicial district instead of from the county, he effectively withdrew the claim, in a letter addressed to this court, because of the Appellate Court decision in State v. Carolina, 40 Conn. App. 762, 768-70, 673 A.2d 562 (1996).
I concur in the judgment.
The Appellate Court held: “On the basis of federal court precedent, we conclude that there is no constitutional limitation on the legislature’s ability to define community as the judicial district for the purposes of jury selection.” State v. Carolina, supra, 40 Conn. App. 770. I note that the defendant did not challenge the constitutionality, under either the state or federal constitution, of General Statutes §§ 51-219c, 51-220a, 51-222, 51-231, 51-238 or 51-344, with respect to the designation of the judicial district instead of the county for the drawing of the venire.