197 Conn. 247 | Conn. | 1985
On May 20, 1981, the defendant, John McCarthy, was found by a jury to have committed the
On June 20,1980, the defendant was arrested by the Westport police on charges unrelated to those at issue here. Knowing that the defendant was a suspect in certain burglaries that had occurred in Wilton, the West-port police contacted the Wilton police and informed them that the defendant was in custody. The next day, two Wilton police officers spoke with the defendant at the jail in Westport, and then took him for a drive through Wilton, where the defendant incriminated himself in several burglaries, including the one involved in this appeal. More than two weeks later, a warrant was issued for the arrest of the defendant for the present burglary and larceny. At trial the defendant stipulated that he had committed the theft in question, but denied having the requisite mental state for the crimes charged. He also contested the valuation of the property stolen. The jury found him guilty of the crimes charged.
I
In support of his claim that he was deprived of his due process right to a jury made up of a fair cross sec
With respect to the first requirement of Duren, we have noted on several occasions, and the state has conceded in this appeal, that Hispanics constitute a “distinctive” group in the community for purposes of this fair cross section claim. See State v. Couture, 194 Conn. 530, 551, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Castonguay, supra, 424.
In State v. Castonguay, supra, we discussed the different approaches used by courts in examining the second prong of Duren, the requirement of fair and
The defendant has provided us with no reason to abandon this analysis, and we are not inclined to do so. The remaining question then is whether there was such an underrepresentation of Hispanics, compared to their population in the community as a whole,
The defendant was not deprived of his right to a jury drawn from a fair cross section of the community and the trial court did not err in denying his challenge to the jury array.
II
The defendant next claims that his inculpatory statements made to the Wilton police should have been suppressed because they resulted from an illegal arrest and were elicted under such circumstances as to impinge upon their voluntariness. We conclude that the trial court did not err in refusing to suppress the statements.
A
The defendant claims an illegal arrest by virtue of his being in the physical custody of two Wilton police officers from the time he left the Westport police station for his trip to Wilton until he was returned to West-port. He maintains that acquisition of his custody by
We have recognized that the fourth amendment to the United States constitution requires suppression of statements obtained as a result of an illegal arrest “ 'in order to deter similar police misconduct in the future and to protect the integrity of the courts.’ ” State v. Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985), quoting State v. Derrico, 181 Conn. 151, 157, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Dunaway v. New York, 442 U.S. 200, 216, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 600-603, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We find this principle to be inapplicable in this case because the essential predicate of an illegal arrest, or any arrest by the Wilton police, is lacking.
It cannot be denied that the defendant was under arrest during his trip through Wilton. In Dunaway v. New York, supra, 216, the court equated an arrest with “detention for custodial interrogation,” which the Wilton officers undeniably conducted. It is equally clear that the Wilton police had not arrested the defendant before he confessed but that his custody had been transferred to them by the Westport police who had arrested him. The defendant does not challenge the legality of his arrest by the Westport police. The defendant’s claim, therefore, goes not to the legality of his arrest, but to the authority of the Wilton police to hold him in custody pending disposition of the Westport charges. In analyzing this claim, we start with a recognition that after the defendant had been given Miranda warnings he expressed his consent when asked to accompany the
Moreover, once a prisoner is lawfully in custody and thus deprived of his freedom, he has no constitutional basis for complaining about the identity of those assigned to hold him by the arresting authority. The temporary transfer of the defendant’s custody from the Westport police authorities, who had arrested him legally, to the Wilton officers did not constitute a new arrest requiring those officers to have justification for such an arrest. We conclude that the lawful deprivation of the defendant’s liberty resulting from his unchallenged arrest by the Westport police was still in force at the time he made the statements concerning his involvement in the Wilton offenses. Those statements, therefore, were not the product of an illegal arrest, as the defendant asserts and his claim of a fourth amendment violation is without merit.
B
The defendant’s second argument for suppression focuses on comments made to him by the Westport police claimed to constitute promises that impermissibly induced his confession to the Wilton police. See Brady v. United States, 397 U.S. 742, 753, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Bram v. United States, 168 U.S. 532, 542, 18 S. Ct. 183, 42 L. Ed. 568 (1897). During the suppression hearing, Officer Gary Tranberg of the Westport police testified that the defendant was a known drug addict and was experiencing drug withdrawal symptoms shortly after his arrest. The follow
“It is the state’s burden to prove by a preponderance of the evidence that the challenged confession was made voluntarily. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Hawthorne, 176 Conn. 367, 370, 407 A.2d 1001 (1978). The test of voluntariness is whether an examination of all the circumstances shows that the conduct of the police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined.’ (Citations omitted.) State v. DeForge, 194 Conn. 392, 397-98, 480 A.2d 547 (1984); see also State v.
With respect to the promises claimed to have been made by the Wilton police, we are presented with a plain question of fact involving the credibility of witnesses. “This court cannot retry the facts or pass upon the credibility of the witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1978).” State v. Hawthorne, supra, 371; State v. DeForge, supra, 398. Where the trial court found against the defendant on the ultimate issue without articulation, we may assume that it resolved any underlying factual disputes against him as well. See State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); State v. Schonagel, 189 Conn. 752, 762, 459 A.2d 106 (1983), vacated and remanded, 465 U.S. 1002, 104 S. Ct. 990, 79 L. Ed. 2d 224 (1984); State v. Reddick, 189 Conn. 461, 470 n.8, 456 A.2d 1191 (1983). On the basis of the record before us, it has not been established that any promises were made by the Wilton police, and we decline to pass upon a version of events not established by the record. See State v. Perry, supra, 516.
The situation differs as to the promises by the West-port police, concerning which there was no factual dispute at trial. It is clear, however, that the trial court could have found that the defendant understood those promises to relate only to his interaction with the West-port police and not his subsequent dealings with the Wilton police. When he testified at the suppression hearing, the defendant stated that the Westport police “promised me that if I had agreed to help them with any investigation and any burglaries pertaining within Westport, that they would take me to the hospital so I could get medication for my withdrawals. And when I went to court for this charge, they would see that I would be given a drug program.” (Emphasis added.)
Thus neither the nature of the defendant’s custody nor any promises made to him
Ill
The defendant’s third claim of error relates to the questions asked of him on cross-examination after he had exercised his right to testify in his own behalf.
The defendant correctly states the rule that “[t]he scope of cross-examination is limited by the scope of the direct examination unless there is an attack on the credibility of the witness.” State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977); State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). The rule in its application is not so narrow as he would suggest, however. “It [is] within the broad discretion accorded the court in its control over the cross-examination to admit [a] question and forestall any erroneous impression which the jury might otherwise have obtained as to the significance of the actions of the contestants. The court could properly allow the proponents to inquire as to any facts which would tend to rebut or modify any material conclusion or inference resulting from the facts elicited on the direct examination. Levine v. Marcus, 90 Conn. 682, 684, 98 A. 348 [1916].” Shulman v. Shulman, 150 Conn. 651, 661, 193 A.2d 525 (1963).
The defendant’s testimony on direct examination was plainly intended to raise an inference that his mental
IV
Finally, the defendant claims error in the trial court’s refusal to charge the jury on the crimes of larceny in the second and third degrees as lesser included offenses of first degree larceny. The trial court, after receiving the defendant’s written request for a charge on these lesser degrees of larceny, instructed the jury only on the lesser offense of larceny in the fourth degree. At the time of the offense, the material distinction between the crimes was that of value. A theft constituted first
At trial, the state presented the testimony of the victim and his sister. Both described the flatware and other table pieces taken in the burglary of the victim’s home on June 7, 1980, and indicated that most of the pieces taken were sterling silver. An expert for the state also identified many of the stolen pieces as sterling silver and valued them between $7839 and $8845. Two police officers testified that the defendant had told them that after he took the silver he sold it in New York for $2500. Aside from cross-examination of witnesses for the state, the defendant presented no evidence relating to the value of the stolen goods.
“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Failure to charge on an included offense when this test
Without having to consider the other elements, we find that the defendant has failed to satisfy the third prong of the Whistnant test and therefore was not entitled to the requested charge on larceny in the second and third degrees. In support of his claim of error, the defendant argues that because the jury could have disbelieved the evidence tending to prove the stolen items to be sterling silver, it might have determined the value of the items to have been less than that asserted by the state and thus to fall somewhere between $50 and $2000, the value range for second and third degree larceny. While this contention might be sufficient to satisfy the fourth requirement of Whistnant, the fact remains that there was no evidence placing the value at less than $2500. If the jury had concluded that the evidence of value was insufficient for first degree larceny, it was possible for it to find only that the value of the stolen property was undetermined, and that a fourth degree larceny had been committed. The third prong of Whistnant requires that there be “some evidence . . . which justifies conviction of the lesser offense.” (Emphasis added.) State v. Whistnant, supra, 588. Evidence tending to show one value, if disbelieved, cannot be said to establish affirmatively another. State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972); Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 257 (1967). Thus the weakness claimed in the state’s proof that the property had a value of more than $2000 would not in itself justify a finding that its value fell within the range of $50 to $2000 for second and third degree larceny. There is no other evidence that would support such a finding and, thus, the third Whistnant criterion has not been satis
There is no error.
In this opinion the other judges concurred.
In Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S. Ct. 672, 42 L. Ed. 2d 690 (1975), it was determined “that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial” that is applicable to the states by virtue of the due process clause of the fourteenth amendment to the United States constitution. Id., 528. This holding was reinforced in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
The trial court refused to admit the applicable figures contained in the 1980 census because the 1980 census results were at that time provisional. The defendant does not claim error in that ruling, but instead urges this court to take judicial notice of results of the final 1980 census now available. We decline to take judicial notice of facts that were not available, and therefore could not have been judicially noticed, at the time of trial. See State v. Kilpatrick, 1 Conn. Cir. Ct. 298, 303, 23 Conn. Sup. 437, 184 A.2d 191 (1962). To hold otherwise would be to permit a party to appeal a case on a basis completely different from that presented below, essentially rendering the lower court decision superfluous. The judicial notice of facts unavailable at the time of trial would be inconsistent with the appellate function of this court. Styles v. Tyler, 64 Conn. 432, 449-56, 30 A. 16 (1894); cf. People v. Harris, 36 Cal. 3d 36, 679 P.2d 433, 201 Cal. Rptr. 782 (1984).
The statistical decision theory as it applies to jury array challenges was propounded in Pinkelstein, “The Application of Statistical Decision Theory to the Jury Discrimination Cases,” 80 Harv. L. Rev. 338 (1966), and discussed in Casteneda v. Pardita, 430 U.S. 482, 497 n.17, 97 S. Ct. 1272, 51 L. Ed. 2d 491 (1977).
In State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), we declined to review a challenge to a jury array where the defendant failed to obtain findings from the trial court on the subordinate questions of fact and failed
While a due process challenge to a jury array may be brought regardless of whether a defendant is a member of the group he claims to have been excluded from jury service; Duren v. Missouri, 439 U.S. 357, 359 n.1, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 672, 42 L. Ed. 2d 690 (1975); standing to advance an equal protection claim is limited to members of the excluded group. Casteneda v. Pardita, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 491 (1977). The defendant here does not claim to be a member of the Hispanic community.
We agree with the observation in United States v. Test, 550 F.2d 577, 584 (10th Cir. 1976), that “the mathematical conclusion that the disparity between . . . two figures is ‘statistically significant’ does not . . . require an a priori finding that these deviations are ‘legally significant.’ ”
“From time immemorial in this state, the community unit which is the basis for the source of a jury array is that of the county .... The issue to be determined then is whether the array was a fair cross section of that community.” State v. Townsend, 167 Conn. 539, 551, 356 A.2d 12, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 62 (1975).
The courts that have continued to employ an absolute discrepancy test; see State v. Castonguay, 194 Conn. 416, 428, 481 A.2d 56 (1984); have required a deviation from community composition much greater than that shown by the defendant’s evidence here. See, e.g., United States v. Tuttle,
“The courts that have applied the impact standard have generally concluded that the challenger failed to prove a sufficient disparity when proportionate minority representation would have added only one or two additional minority jurors to a typical grand or petit jury.” Beale, “Integrating Statistical Evidence and Legal Theory to Challenge the Selection of Grand and Petit Jurors,” 46 Law and Contemp. Probs. 269, 280 (1983).
Our conclusion that the promises that were made to the defendant did not relate to his Wilton confession makes it unnecessary for us to consider whether those promises were of such a nature as to vitiate an otherwise voluntary confession. Cf. State v. Perry, 195 Conn. 505, 519-20, 488 A.2d 1256 (1985); State v. Carter, 189 Conn. 631, 638-39, 458 A.2d 379 (1983).
The defendant also made a motion to dismiss on the same grounds relied upon in his motion to suppress. It follows from our conclusion that the court did not err in failing to suppress the evidence that the defendant was not entitled to dismissal of the charges against him, and the trial court did not err in denying the motion.
The defendant’s claim at trial and on appeal is that the state’s cross-examination sought to elicit information that was beyond the scope of direct examination. The defendant has made no constitutional claims involving his right not to incriminate himself, and therefore we have not analyzed his claim from that perspective.