44 Conn. App. 125 | Conn. App. Ct. | 1997
After a jury trial, the defendant was convicted of assault in the second degree in violation of General Statutes § 53a-60 (a) (2)
From the evidence presented, the jury could reasonably have found that on September 13,1994, at approximately 7:15 a.m., the defendant entered a supermarket in Stamford using a cane because of a cast on his foot. He attracted the attention of Carl Anderson, a store security officer, who continued to observe the defendant as he picked up several packages of film. Anderson saw the defendant stop in one of the aisles and put film in several pockets of his clothing. The defendant then went to 1he delicatessen counter and ordered a sandwich. The clerk handed him the sandwich wrapped in paper. Anderson observed the defendant stuff the sandwich into his pants and go to the other end of the store, where he talked with some store employees. Anderson went to the front of the store and waited for the defendant.
When the defendant came to the front of the store, he walked past the cashiers and proceeded toward the exit door. At that point, Anderson and Peter Pearce,
Anderson and Pearce informed the defendant that they would have to call the police. The defendant asked them not to call the police and offered to pay for the merchandise. Pearce replied that it was too late and told the defendant to come with him and Anderson to the rear of the store. After the defendant had responded by pushing them aside in an attempt to move toward the exit, Anderson and Pearce each took hold of one of his arms and escorted him down a grocery aisle to the rear of the store. The defendant began to curse and, halfway down the aisle, he freed his right arm and swung his cane at Pearce, striking him three times between the eyes. Anderson and Pearce wrestled the defendant to the floor. After he seemed to calm down, they helped him to stand up and pulled him into a back room to await the police.
In the room, the defendant said he would not create any more trouble, but, when his arms were released, he turned and punched Anderson in the nose, causing it to bleed. Pearce and Anderson again forced the defendant to the floor and sat on him to await the arrival of the police, whom another store employee had called.
Pearce sustained a hairline fracture of his nose and two black eyes. When the police arrived, they handcuffed the defendant and took him to the police station.
PROSECUTOR’S ARGUMENT
The defendant claims that the prosecutor, during his summation to the jury, violated the defendant’s constitutional right to a fair trial by referring to facts on which evidence had been excluded by the trial court and also by making remarks that infringed upon his fifth amendment right not to testify at trial.
A
During the cross-examination of Anderson, defense counsel inquired whether his employer, in the course of training him as a security officer, had informed him of the ramifications of a false arrest and the responsibility the store would bear for injury to a person claimed to have been shoplifting. Anderson responded affirmatively. After similar testimony was elicited from Pearce during cross-examination, the state on redirect examination, referring to defense counsel’s questions concerning false arrest, inquired whether the defendant had ever made any claim of false arrest in connection with the incident at the Stamford store. Pearce responded, “None whatsoever.” Defense counsel objected that the question called for speculation. The court sustained the objection on the ground of irrelevance and ordered the answer stricken.
During his summation for the state, the prosecutor referred to the questions asked of Anderson and Pearce concerning false arrest: “Well, the defendant never claimed any false arrest when the police were at the scene and they never claimed any false [arrest] through any of the witnesses. You didn’t hear it.” Later, in support of the credibility of the state’s witnesses, he argued: “[Y]ou remember that they testified under oath and there is no evidence that they have any beef with the defendant. There is no evidence that there was any
On appeal, the defendant relies on the well established principle that it is improper for counsel to refer to facts that are not supported by the evidence. State v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987); States v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The remark of the prosecutor that “[tjhere is no evidence that there was any law suit,” however, does not violate that principle but, in the context of the preceding statement that “there is no evidence that [Anderson and Pearce] have any beef with the defendant,” simply pointed out one circumstance arguably reinforcing the credibility of his witnesses. There is no prohibition against relevant argument based on the absence of evidence in a case that an opposing party would ordinarily be expected to produce if it existed. Matza v. Matza, 226 Conn. 166, 186, 627 A.2d 414 (1993); Tragakiss v. Dowling, 183 Conn. 72, 74, 438 A.2d 818 (1981). Even if there had been no prior reference to a civil suit for false arrest, the remark that a witness had no reason, such as an interest in a lawsuit, to color his testimony would not have been improper.
The defendant also claims that the statement regarding the absence of evidence of a suit for false arrest was a deliberate defiance of the trial court’s ruling striking the defendant’s response to the prosecutor’s inquiry
B
The defendant claims that portions of the prosecutor’s summation also constituted an impermissible comment on the defendant’s failure to testify at trial in violation of his fifth amendment privilege against self-incrimination as decided in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The defendant did not raise this claim either in the trial court or in his original brief in this court. At oral argument, however, we granted his motion for permission to raise the self-incrimination issue in a supplementary brief because, despite the failure to raise it previously, it qualifies for appellate review under the strictures of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state does not dispute that “the claim is of constitutional magnitude alleging the violation of a fundamental [constitutional] right” and that “the record
The standard of review of a prosecutorial remark claimed to violate the prohibition against commenting on a defendant’s failure to testify is whether the language used was “manifestly intended to be” or “was ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” State v. Evans, supra, 165 Conn. 72. In support of his claim, the defendant cites three excerpts from the state’s argument: (1) “[T]he defendant never claimed any false arrest when the police were at the scene and they never claimed any false [arrest] through any of the witnesses. You didn’t hear it.” (2) “Now, the defendant did make comments to the police. And we heard that. He did not sit on his rights and refuse to answer questions and keep his mouth shut, and be silent. He had a lot to say. What is significant is he never said anything . . . you know, they set me up. I was beaten up. I’m the victim and they’re trying to cover up a beating that they gave me. He said a lot of things, but he never said any of those things.” (3) “There is no evidence that there was any law suit.”
There is no reasonable basis in the first statement for concluding that the jury “would naturally and necessarily” take it to refer to the defendant’s failure to testify at trial. The phrase, “when the police were at the scene, ” refers explicitly to the defendant’s conduct at the time of his arrest, not at the trial. The mention of the failure to claim false arrest “through any of the witnesses”
The second statement of the prosecutor, which refers to what the defendant told and did not tell the police, is also clearly confined to the defendant’s conduct at the time of his arrest. We perceive nothing in that argument implicating the defendant’s failure to testify at trial.
The defendant claims that, in the third statement, concerning the absence of any evidence of a false arrest suit, the prosecutor indirectly commented on the defendant’s failure to testify because he was calling for information that only the defendant could have provided. See State v. Correia, 33 Conn. App. 457, 468, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994). The defendant would not have had to take the witness stand, however, in order to prove that he had commenced a lawsuit. Any number of people, such as the clerk of court or other court personnel, could have established that fact.
We conclude that the defendant’s claim of prosecutorial comment on his failure to testify is wholly lacking in merit.
II
JURY INSTRUCTIONS
The defendant claims next that the court’s instructions to the juiy relating to circumstantial evidence were inadequate because there was no specific instruction applying the reasonable doubt standard of proof to such evidence and the inferences to be drawn therefrom. He refers to the following portions of the charge on circumstantial evidence: “Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists even
A
The defendant took no exception to any part of the charge and, in order to prevail on this unpreserved claim, must demonstrate the existence of the four conditions set forth in State v. Golding, supra, 213 Conn. 239-40: “(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 [constitutional] 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.”
The charge on the count of assault in the second degree also included specific references to the necessity for proof beyond a reasonable doubt of the mental element of that crime, the intent to cause physical injury: “The intent needed to satisfy this particular subsection of the statute requires the intent to cause physical injury. Physical injury means any impairment of physical condition or any pain. If you find that the state has proved beyond a reasonable doubt the elements of this offense, you will find the defendant guilty of assault in the second degree.”
B
In claiming that “inferred facts” in a criminal case must be proved beyond a reasonable doubt and that the jurors should have been so instructed, the defendant has created an ambiguity by failing to define that term, which literally would include all the inferences of fact drawn during the course of a trial regardless of their significance. The term may also refer only to those inferences that constitute proof of the elements of the crime charged. “Where a group of facts are relied upon
In the context in which the defendant has used the term “inferred facts” in his brief, we understand it to refer to those facts relating to the element of intent required for each of the crimes of which he was found guilty, larceny and assault in the second degree. We have previously recited the portions of the charge in which the trial court defined the essential mental element for each of those crimes and unequivocally instructed the jurors that their determination of those elements was to be guided by the standard of reasonable doubt. We conclude, therefore, that there is no substance to the defendant’s claim that the jury instructions failed to inform the jurors that the state bore the burden of proving the facts essential to establish each element of the crimes beyond a reasonable doubt. Thus, the defendant has not demonstrated that the “alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial,” as required by Golding for an appellant to prevail on an unpreserved claim. State v. Golding, supra, 213 Conn. 239-40.
SELECTION OF JURORS
The defendant’s final ground for seeking a new trial is that, during the process of jury selection, the trial judge was absent from the voir dire and another judge was substituted for him during the morning of the second day of voir dire examination. The defendant claims that (1) this deviation from the usual procedure, with the same judge presiding throughout the voir dire as well as the remainder of the trial, violated the strictures for jury selection established by our Supreme Court in State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 1290 (1996), and (2) the substitution was contrary to approved practice and violated his right to a fair trial.
A
In Patterson, our Supreme Court condemned the practice, which had become widespread, of allowing counsel to conduct the voir dire for jury selection, in criminal as well as civil cases,
The Patterson decision was released on July 26,1994, and, therefore, applies to this case in which jury selection began on December 20, 1994, with Judge Karazin presiding. After several jurors had been chosen, the judge informed counsel that he had to attend a meeting in Hartford the next morning, but would return for the afternoon session of the court. Later, the judge advised that arrangements had been made for Judge Dean to preside over the voir dire session on the following morning. Both the state and the defendant consented to the substitution. By the end of the first day of jury selection, six jurors had been chosen. Judge Karazin stated that Judge Dean would preside the next morning over the selection of two alternate jurors.
The next day, two alternates were selected during the morning session over which Judge Dean presided. Judge Karazin returned for the afternoon session and gave some preliminary instructions about trial procedure and properjuror conduct during a trial. All of the testimony was presented during the afternoon session before the six jurors and the two alternates.
The next morning, counsel for the defendant moved for a mistrial on the ground that two jurors had seen the defendant being brought into the courthouse wearing handcuffs. After questioning the jurors involved, the court excused them and substituted the two alternate
The defendant contends that Patterson requires the continuous presence of the same judge throughout the jury selection process. He finds some support for that position in the predominant use of the definite article “the” rather than the indefinite “a” as the modifier of “trial judge” throughout the Patterson opinion. In addition, the opinion refers to “[t]he uninterrupted supervision of the proceedings by the judicial authority”; id., 398; “the judge who is continuously present at a criminal voir dire”; id., 399; and “the greater likelihood of accuracy in fact-finding resulting from a judge’s continuous presence . . . .” Id., 400. There are also, however, several indefinite references: “right to judicial supervision”; id., 393; “presence of a judge”; id.; “continuous judicial supervision”; id., 397; “judicial authority”; id., 398; and “a judge’s continuous presence . . . .” Id., 400.
The Patterson opinion cites several considerations involving jury trials of criminal cases as the reasons for abolishing the practice of permitting counsel to conduct the voir dire examination of prospective jurors in the absence of a judge: (1) “The presence of the trial judge from the beginning of voir dire impresses upon the jury the gravity of the proceedings. The uninterrupted supervision of the proceedings by the judicial authority, mindful of everything that transpires in the courtroom, is an important part of the appearance that justice is being done in a criminal case.” Id., 398. (2) “Further, the judge ought to protect the legitimate privacy interests of prospective jurors.” Id., 399. (3) “The judge is charged with ruling on challenges based on the purposefully discriminatory use of peremptory challenges. Batson v. Kentucky, [476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] .... [Firsthand observations ordinarily are a
In this case, however, no Batson challenge arose at any time and, during the selection of the two alternate jurors, neither counsel for the state nor for the defendant objected to any of the questions to prospective jurors. Judge Dean had no occasion to make any rulings while he presided over that portion of the voir dire. The defendant, therefore, cannot show that he was adversely affected in any manner by the substitution to which he had consented. We conclude, therefore, that this case is distinguishable from Patterson, which dealt solely with the conduct of jury voir dire examination without any judicial authority in the courtroom.
B
The propriety of substituting a different judge for the judge who presided at the start of a legal proceeding depends greatly on the nature of the proceeding and the likely impact on a criminal defendant’s right to a fair trial. In the early case of Freeman v. United States, 227 F. 732, 759-60 (2d Cir. 1915), in which such a substitution, to which the defendant consented, occurred after the prosecution had presented all of its evidence, the court declared that “[t]he continuous presence of the same judge and jury is equally essential throughout the whole of the trial.” The holding in Patton v. United
The defendant focuses on substitutions occurring during jury selection, as in the present case, thus distinguishing some of the precedent. None of the cases we have found involving that situation has attributed any special significance to it and they support the general rale that substitutions prior to the introduction of evidence are not a basis for reversal. State v. Amarillas, supra, 141 Ariz. 620; People v. Rodriguez, supra, 786
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (2) with intent to cause
General Statutes § 53a-125b provides: “(a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service' is two hundred fifty dollars or less. “(b) Larceny in the sixth degree is a class C misdemeanor.”
The state claims that any infirmity in the voir dire proceedings is unreviewable because the defendant consented to the substitution of judges that occurred and the issues raised on appeal do not qualify for review pursuant to State v. Golding, supra, 213 Conn. 233. We disagree. In State v. Patterson, supra, 230 Conn. 400, our Supreme Court stated explicitly that the requirement for the presence of a judicial authority during voir dire could not be waived by the parties.
In Patterson, the court did not decide whether the practice of selecting the jury without judicial supervision in civil cases would be discontinued. State v. Patterson, supra, 230 Conn. 397 n.12.
Rule 25 of the Federal Rules of Criminal Procedure, adopted in 1966, permits the substitution of a judge after commencement of a jury trial if the original judge becomes unable to proceed with the trial “by reason of death, sickness, or other disability.” The substitute judge is required to familiarize himself with the prior proceedings. The rule was upheld against constitutional attack in United States v. LaSorsa, supra, 480 F.2d 530-31.
General Statutes § 51-183 provides: “Any judge of the Superior Court, may hold any term or session or part of any term or session of court to which another judge has been assigned, when the latter is unable to hold or complete it: and any judge may try any action when the judge holding court is disqualified or declines to try it.” The state argues that the first sentence of the statute would authorize the substitution that occurred in this case. Such an expansive interpretation of the first sentence, however, would render the second sentence superfluous. We agree with the defendant that the second sentence, which relates expressly to the trial of “any action” rather than to holding “any term or session or part of any term or session of court,” is a far more precise reference to the substitution of a judge in a particular case, bul it does not authorize a substitution once a trial has begun.