197 Conn. 629 | Conn. | 1985
A jury found the defendant guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and also of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2).
I
The defendant filed a challenge to the array and a motion to dismiss the jury panel, which was denied by the court, Celotto, J., after a hearing on June 8,1982. Thereafter, a jury trial began that ended in a mistrial on July 2,1982. Before commencement of a second trial on November 9,1982, the defendant filed another challenge to the array and a motion to dismiss the jury panel. The parties stipulated that the array of jurors from which a jury for the second trial would be chosen had been summoned and selected in the same manner as the array from which the jury for the first trial was chosen. Relying on the earlier ruling by Judge Celotto involving the same issues, the court, Mulvey, J., denied the motion.
The defendant claims two statutory violations in the selection of the array of jurors available at the time of his trial: (1) that the chief state jury administrator, Thomas Hickey, without authorization by statute or court order,
We do not address the merits or the consequences of the statutory deviations alleged because we have concluded that they do not affect all the jurors comprising the array alike, as is essential for a proper challenge to the array. State v. Hart, 169 Conn. 428, 434, 363 A.2d 80 (1975); State v. Townsend, 167 Conn. 539, 544-45, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); State v. Cobbs, 164 Conn. 402, 413-14, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973); State v. Silver, 139 Conn. 234, 242, 93 A.2d 154 (1952); State v. Smith, 138 Conn. 196, 202, 82 A.2d 816 (1951); State v. Luria, 100 Conn. 207, 209-10, 123 A. 378 (1923). “A challenge to the array of jurors is an objection to the whole panel of jurors at once, and in order to be available it must be for a cause that affects all the jurors alike.” State v. Hogan, 67 Conn. 581, 583, 35 A. 508 (1896). A challenge that does not implicate the validity of the entire panel is inadequate. State v. Townsend, supra, 545. It appears that of the 6132 persons called for jury service by the administrator, 4569, the num
As we have noted, the defendant has abandoned his constitutional claims relating to the composition of the jury array and he claims no prejudice resulting from the alleged statutory violations. It is difficult to con
II
The defendant, who testified at his trial, claims error in the charge upon the credibility of witnesses in which specific reference was made to the interest of the defendant in the outcome as a factor to be considered in evaluating his testimony. As the defendant recognizes, this court has yet to disapprove such an instruction, though some other courts have done so. “We have repeatedly considered and rejected this constitutional claim and again find it to be totally without merit.” State v. Frazier, 194 Conn. 233, 239, 478 A.2d 1013 (1984); State v. Roos, 188 Conn. 644, 645, 452 A.2d 1163 (1982); State v. Avcollie, 188 Conn. 626, 636-38, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).
The defendant claims that the instruction given in this case differed materially from other instructions upon the subject of a defendant’s interest in a criminal trial that we have previously reviewed.
The defendant points first to the instruction that the jury “must consider the importance to him of the outcome of the trial, and any motive that he might have on that account for not telling the truth.” We have on prior occasions found no error in essentially similar instructions: “In weighing the testimony [the defendant] has given you, you should apply the same principles by which the testimony of other witnesses [is] tested, and that necessarily involves a consideration of his interest in the case. You will consider the importance to him of the outcome of this trial.” State v. Avcollie, 636-37 n.6; see State v. Mastropetre, 175 Conn. 512, 525-26, 400 A.2d 276 (1978); State v. Guthridge, 164 Conn. 145, 151 n.1, 318 A.2d 87 (1972).
Ill
In his final claim of error the defendant claims the trial judge displayed an appearance of partiality toward the state in some of his comments during the testimony and also during the charge to the jury. As no objection or exception was raised to most of these remarks during trial, let alone a motion for mistrial, we are limited in our review of them to deciding whether they infringed upon the defendant’s constitutional right to a fair trial. State v. Evans, supra, 70. We conclude that, although some of the comments were improper, none of them rises to the level of constitutional error.
At a point near the end of the defendant’s lengthy cross-examination of Ella Vereen, a victim, who had testified about the amount of money taken in the robbery and whose answers indicated an unfamiliarity with record keeping, the court interjected: “She isn’t a C.P.A., I have got news for you.” Counsel then replied: “I know that your Honor.” Inappropriate as this remark of the court was, it cannot reasonably be viewed to indicate partiality nor does it appear that trial counsel so regarded it.
B
In instructing the jury on the value element of larceny and the necessity of finding that the money taken by the defendant exceeded $2000 for a first degree larceny conviction, the trial court referred to the testimony of Ella Vereen in mentioning that the jury could examine the financial records she had kept and again opined that “it’s obvious that the operation was not under the guidance of a C.P.A., that’s for sure.” The court also mentioned that this witness had testified that she had “better than $3000, but first degree larceny is better than $2000.” In addition, the court referred to the position of the defendant, that the records did not support Vereen’s testimony, and then left the determination of the amount taken to be found by the jury as a question of fact. The defendant’s only exception to this part of the charge was that the witness had not testified that more than $3000 was in her possession, but exactly $3000. We can discern no basis whatever for the claim of the defendant that these instructions evidenced a “predisposition toward the state’s case” on the part of the trial court.
The instance of alleged partiality principally relied on by the defendant arose during the cross-examination of a police officer who had participated in the arrest of the defendant. The officer had testified that when he first approached the defendant, who was pointed out to him by Elwood Vereen, a son of the victims, the defendant was wearing two hats, a dark blue or black knit-type pullover hat with eye slits that he wore underneath a similarly styled bright white and green hat. These hats were referred to at various times in the trial as toboggan hats or “toboggan pulldowns.” The officer at that time was under the impression that the robber had used a mask and did not realize that the victims claimed that he had worn a toboggan hat with eye slits. The officer returned the hats to the defendant after first removing them to be sure that no weapon was concealed under them. The next day, learning that a toboggan hat with eye slits had been worn by the robber, the officer then inquired of the detectives in charge of the investigation whether the hats he had observed had been seized. He discovered later that the hats had not been seized by the detectives. At this point in the cross-examination of the officer, the colloquy set forth in the footnote
Although the comments were erroneous, we are not convinced that they were sufficiently prejudicial to affect seriously the fairness of the trial so as to warrant a new trial. Counsel for the defendant, though he did say that the initial comment concerning his attempting to leave an impression that the witness was “a pretty dumb officer” was unfair, made no objection to the later comment about protecting an officer on the witness stand. At no time did he move for a mistrial. We are reluctant to award a new trial where those most concerned, better placed than we to assess the courtroom atmosphere, did not view the remarks to be so prejudicial as to warrant a new trial and preferred to stake the outcome on the trial under way. “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).
We are also convinced that the evidence of guilt in this case is so overwhelming that any possible prejudice the defendant may have suffered from the court’s remarks had no significant bearing on the verdict. The defendant was recognized during the course of the rob
There is no error.
In this opinion the other judges concurred.
No issue has been raised concerning whether the defendant’s separate convictions for robbery and larceny arising out of the same transaction may be multifarious. The trial court imposed concurrent sentences of fifteen years for the robbery and five years for the larceny, constituting an effective sentence of fifteen years.
General Statutes § 51-229 allows the court at any time to draw “a sufficient number of additional jurors to prevent the necessity of summoning talesmen.”
“[General Statutes] Sec. 51-219b. how to determine number of jurors to be summoned, (a) In determining the number of jurors to be summoned for jury duty at a court location, the following factors, as well as any other factors which may be relevant, shall be considered: The num
“(b) Clerks of court shall keep and furnish any records and data which the jury administrator requires in order to determine whether jurors are being effectively utilized.
“(c) For the purpose of analyzing whether the number of prospective jurors required by section 51-220 is suitable, during the month of October of each year each chief clerk of the superior court shall notify the jury administrator in writing of (1) the estimated number of prospective jurors who will be needed to serve at such particular court location or locations during the year commencing the first of the next succeeding September, and (2) the towns from which the prospective jurors shall be drawn.”
“[General Statutes] Sec. 51-220. number of jurors for each town. The number of jurors to be chosen for each town shall be as follows: In towns whose population as determined by the last-completed census of the United States is less than seven hundred and fifty, fifteen; in towns whose population so determined is at least seven hundred and fifty but not more than one thousand five hundred, thirty; in towns whose population so determined is more than one thousand five hundred but not more than twenty-five hundred, fifty-six; in towns whose population so determined is more than twenty-five hundred but not more than five thousand, ninety; in towns whose population so determined is more than five thousand but not more than ten thousand, one hundred twenty; in towns whose population so determined is more than ten thousand but not more than twenty-five thousand, two hundred twenty-five; in towns whose population so determined is more than twenty-five thousand but not more than fifty thousand, three hundred thirty-seven; in towns whose population so determined is more than fifty thousand but not more than one hundred thousand, six hundred seventy-five, and in towns whose population so determined is more than one hundred thousand, one thousand and twelve; provided, for the purposes of this section, the population of a town shall not include the patients of any state institution located in such town.”
“[General Statutes (Rev. to 1981)] Sec. 51-219c. INCREASE IN NUMBER of jurors. If it is determined that the estimate by the chief clerks under subsection (c) of section 51-219b, is in excess of the number of jurors chosen under section 51-220 for those towns within a given judicial district,
Whether the 1563 jurors who may have been unlawfully summoned could have been identified and thus subjected to a challenge for cause in the voir dire for the selection of the petit jury is not clear from the record before us. See State v. Luria, 100 Conn. 207, 210, 123 A. 378 (1923). Although all the jurors were summoned at one time, it is not clear whether the surplus jurors could have been segregated by the sequence in which their names appeared on the list as a whole or as representing a particular town. As the movant, the defendant bore the burden of providing an adequate record for his challenge. State v. McCarthy, 197 Conn. 247, 249-50 n.4, 496 A.2d 513 (1985); State v. Jones, 193 Conn. 70, 74 n.2, 475 A.2d 1087 (1984).
In view of the result we have reached that the defendant’s grounds for challenging the array do not affect the entire panel, we need not consider whether the statutory nonconformities raised constitute “a material departure from the requirements of law governing the selection and summoning of an array.” See Practice Book § 842.
This portion of the charge was as follows: “Then, of course, you heard the testimony of the accused, Mr. Mack. In weighing the testimony he has given you, you should apply the same principles by which the testimony of other witnesses are tested, and that necessarily involves the consideration of what I mentioned a few minutes ago, that of his interest or lack of interest in the case. You must consider the importance to him of the outcome of the trial, and any motive that he might have on that account for not telling
“Q. In such a situation, if an officer, a patrol officer, is advised that there is no detective available to handle the robbery investigation, doesn’t it then become the job of the patrol officer to take into custody the evidence?
“A. No.
“Q. No? You just let the evidence go with the perpetrator?
“A. No.
“Q. No? Isn’t that what you did in this case?
“A. No.
“Q. You didn’t?
“A. I was told that the detective that would come out at 12:00 o’clock midnight would take the case; that is what I was told.
“The Court: There is something that I would like to clear up; on the 18th, when you first reported and learned of the robbery and then picked up this
“A. Yes.
“The Court: You weren’t looking for a ski cap?
“A. Right.
“The Court: On the 18th?
“A. Right.
“The Court: You found out that it was a ski cap that was used the next day, on the 19th?
“A. Right.
“The Court: You see, you are leaving the impression that this officer is a pretty dumb officer, and that isn’t fair. He was looking for something else on the 18th.
“Mr. Brunswick: Well, I don’t think that is a fair comment, your Honor.
“The Court: You indicated that he didn’t collect evidence, he didn’t have any evidence, he never did find a mask.
“Mr. Brunswick: I am not claiming that, your Honor.
“The Court: Well, that is the impression I got. I have got a job to protect an officer who is trying to do the best he can when he is out of his element.”