State v. Davis

• Decision Date: 01 July 1969
• Citation: 260 A.2d 587,158 Conn. 341
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Arthur J. DAVIS.

Page 587

260 A.2d 587

158 Conn. 341

STATE of Connecticut v. Arthur J. DAVIS.

Supreme Court of Connecticut.

July 1, 1969.

Anthony V. Demayo, New Haven, and Richard F. Banbury, Hartford, for appellant (defendant).

David B. Salzman, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee(state).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

The defendant was charged with six counts of murder in the first degree. He elected trial to a court of three judges as provided by § 54-82 of the General Statues (Rev. to 1968). The court found him guilty as charged on each of the six counts of the indictment and imposed the death sentence. The defendant has appealed fron the judgment rendered. He assigns error in the action of the trial court (1) in permitting the grand jury to consider the indictments against him, (2) in concluding that upon all the evidence he was guilty as charged beyond a reasonable doubt, and (3) in imposing the death penalty under §§ 53-10 and 54-100 of the General Statutes (Rev. to 1968) in violation of the prohibition of cruel and unusual punishment by the eighth amendment to the constitution of the United States.

In his first assignment of error, the defendant claims that the grand jury selection process as conducted in New Haven County resulted in a 'systematic and intentional exclusion of electors' from service on the grand jury which indicted him. On September 30, 1966, the Superior Court ordered a grand jury of eighteen electors and two additional electors as alternates to be summoned to appear in New Haven on October 10, 1966. The grand jury was called to inquire into offense alleged to have been committed by the defendant. Before the grand jury was called into the courtroom, counsel for the defendant addressed the court (Pastore, j.) upon the method of selecting grand jurors in New Haven County. He made the statement that a number of the grand jurors summoned for that day sat on other grand juries during the previous two years and 'have become accustomed to hearing these crimes of violence described, police work described, the brutality described, the bloodshed described.' He then added that he did not believe that this was the intent of the grand jury system in Connecticut. The defendant neither offered nor presented evidence as to the identity of any member or members of the grand jury who he claimed had served previously on more than one grand jury or as to any particular panel constituting a grand jury. Nor did he offer or present to the court any particular information relating thereto. The defendant did not ask the court to take judicial notice of any alleged facts in the statement of counsel, no ruling on evidence was made and of course no exception was taken. The defendant did not challenge the 'quality' of persons constituting the grand jury or the procedure followed by the high sheriff in selecting its members.

The defendant's contention that there was a systematic and intentional exclusion of electors from service on the grand jury is based on the statement of the high sheriff of the county, who had not been called as a witness but who arose in court and voluntarily stated, that he chose for service on the grand jury only 'high class people' who 'understand what a grand jury is.' The defendant urges that this method constitutes an exclusion of electors from service on the grand jury which is proscribed by the fourteenth amendment to the United States constitution. See Norris v. Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 79 L.Ed. 1074; State v. Davies, 146 Conn. 137, 141, 148 A.2d 251, cert. denied, 360 U.S. 921, 79 S.Ct. 1441, 3 L.Ed.2d 1537.

Were this not a capital case we should give this assignment of error no further consideration, since it was not properly raised. In fact, at no time was the claim made in the court below that there was a systematic and intentional exclusion of electors from service on the grand jury. In order that the defendant may be given every consideration, we have decided to consider this claim even though it was not properly raised. State v. Reid, 146 Conn. 227, 230, 149 A.2d 698; State v. Davies, supra, 145; State v. Walters, 145 Conn. 60, 64, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45. Upon properly raising an objection, the burden would be on the defendant to produce evidence sufficient to establish at least a prima facie case of the systematic exclusion of a class from the grand jury selection process. Coleman v. Alabama, 389 U.S. 22, 23, 88 S.Ct. 2, 19 L.Ed.2d 22; Hernandez v. Texas, 347 U.S. 475, 480, 74 S.Ct. 667, 98 L.Ed. 866; see Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599. The record is clear that the defendant produced no eivdence which would tend to establish any such systematic exclusion, and the finding of subordinate facts is not attacked in this appeal. There was no actual tender of proof, nor is it claimed that the court refused to entertain such an offer. In the absence of such evidence, a presumption arises that the officer in charge of the selection of the grand jury performed his duty fairly and without discrimination against any class. See Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680; note, 1 A.L.R.2d 1291, 1296. No claim was made in the trial court, nor is it now urged that there was any attempt to choose or to exclude electors in the selection of the grand jury on the basis of race, creed or national origin or to discriminate against any class. In the light of the defendant's failure to produce any evidence rebutting the presumption, we must conclude that the selection of the grand jury was completely proper.

In passing upon the claim of the defendant that the court below was in error in concluding that the defendant was guilty as charged beyond a reasonable doubt, we determine whether upon all the evidence the court could reasonably have reached the conclusion that the defendant was guilty of wilful, deliberate and premeditated murder. State v. Malm, 142 Conn. 113, 115, 111 A.2d 685; State v. Simborski, 120 Conn. 624, 626, 182 A. 221; State v. Dodez, 120 Conn. 216, 219, 179 A. 643.

For about four years prior to August 23, 1966, the defendant had lived in a common-law relationship with Gloria Baskerville, commonly known and hereinafter referred to as Fanny Baskerville. They had two children, and two other children of Miss Baskerville lived with them. On Tuesday, August 23, 1966, the defendant went to work on the midnight shift and returned home shortly after 8 o'clock Wednesday morning, August 24. His two children, the younger being a month old, were with his mother, the defendant's common-law wife having left the home sometime early Wednesday morning. The defendant then went out to look for Fanny. He visited the house of her sister Leatrice McClure on two occasions that day. He asked Leatrice for the addresses and telephone numbers of her sister Katherine Anderson and her brother, John McClure, both of whom lived in Jersey City, New Jersey. He then decided to drive to New Jersey to find out if Janny was staying there with her relatives. He put a shirt and pants in the car, together with a carbine and a pistol. He visited the homes of two of Fanny's relatives in Jersey City. He talked to Rosalind Anderson, who is Fanny's niece, shortly after noon on Wednesday, at 488 Ocean Avenue, Jersey City. The defendant kept asking her if she knew where Fanny was and if Fanny had telephoned. He also asked if he could look around the house to see if Fanny was there, and, upon receiving permission, he did so. Upon coming out of the house, he took a rifle and a pistol from the car and put them in the trunk of the car. He had a brown sweater over his shoulder.

The defendant returned to New Haven the same day, and at 10 p.m. he visited the home of Fanny's sister-in-law, Gwendolyn McClure, still seeking Fanny. After that he drove around in his car and visited two taverns. At 3 a.m. Thursday, August 25, he went back to the residence of Leatrice McClure, again inquiring about Fanny. Leatrice said to the defendant: 'If someone aggravates you about my sister leaving you, you will hurt somebody, won't you?' He said 'Yes.' Although Leatrice knew where her sister was, she refused to tell the defendant because she was afraid he would injure her. On August 25, at about 9 p.m., the defendant came again to 16 Northeast Drive where Leatrice McClure resided with her mother, Mrs. Mary McClease, her grandmother, Mrs. Alice Pelham, her sisters, Charmaine McClease and Francine McClease, a brother, Royal McClease, and her daughter, Leronda McClure. The defendant asked Leatrice if Fanny had called and inquired of her mother, Mary McClease, concerning Fanny. He said, 'I'll see you later,' and left the house.

During the time that the defendant and Fanny lived together he struck her frequently. On one occasion, when she was three months' pregnant, he choked her. On another occasion he struck her, choked her, threatened her with the pistol, and told her he ought to blow her brains out. There were times when he would take the carbine out, play with it and point it at her. On these occasions he always used to say: 'Well, if I have to use this-shoot anyone-I'm going to take a whole lot with me.' He did not like Fanny's family and said that her family was not worth anything. On the night of August 25, the defendant was with James Powell, Jr., at the Monterey Restaurant between 8:30 and 9 p.m. In the course of their conversation, the defendant told Powell that he was 'going to hurt someone tonight.'

The apartment located at 16 Northeast Drive consists of a living room and a kitchen with a utility closet on the first floor. The second floor contains four bedrooms and a bathroom. Shortly before midnight on Thursday, August 25, the defendant drove up in a Chrysler car and stopped. He got out of the car and...