Stage v. Martinez, 95 Conn. App. 162 (CT 5/2/2006), (AC 26647).

CourtSupreme Court of Connecticut
Writing for the CourtSchaller
Citation95 Conn. App. 162
PartiesSTATE OF CONNECTICUT <I>v.</I> JOSE J. MARTINEZ
Decision Date02 May 2006
Docket Number(AC 26647).

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95 Conn. App. 162
STATE OF CONNECTICUT
v.
JOSE J. MARTINEZ
(AC 26647).
Appellate Court of Connecticut.
Argued January 6, 2006.
Officially released May 2, 2006.
Syllabus

Convicted of the crime of manslaughter in the first degree with a firearm, the defendant appealed to this court. He claimed, inter alia, that he was deprived of his right to an impartial jury as a result of the trial court's failure to inquire into two incidents of possible juror misconduct. The first incident involved discussions regarding the defendant that had occurred among members of the venire panel while they awaited individual voir dire. The second incident involved comments by some of the jurors, made prior to the jury charge, on an outburst by the defendant that had taken place during the testimony of one of the state's witnesses. One juror, H, had been accepted prior to the revelation of the discussions among the venire panel. Held:

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1. The defendant could not prevail on his claim that the trial court improperly failed to inquire into the two incidents of alleged juror misconduct: that court was not required to conduct an inquiry on the record with respect to a possible taint of the venire panel from which juror H was selected under the circumstances here, where voir dire itself provided a means to uncover bias and H, who had been questioned extensively regarding any possible biases, indicated that he was not biased, that he would be impartial to both the state and the defendant and that he would keep an open mind and listen to all of the evidence before reaching any conclusions; moreover, the trial court, upon learning of the alleged misconduct of the jurors in discussing the defendant's outburst, did not abuse its discretion by limiting its investigation to a preliminary inquiry of counsel on the record, which was sufficient to satisfy the court's obligation to conduct a preliminary inquiry regarding the allegation of juror misconduct.

2. The defendant could not prevail on his claim that he was deprived of his due process right to a fair trial as a result of prosecutorial misconduct: the prosecutor, in asking the defendant during cross-examination whether the defendant's sister, G, was protective of him, did not improperly comment on the veracity of G, who testified at trial, but rather properly used cross-examination as a means to uncover G's potential bias; the prosecutor's use of the phrase "here is the deal" in disputing a claim that one of the state's witnesses had been rewarded for his testimony did not constitute misconduct; the prosecutor's statement to the jury that the defendant "fled from New Haven shortly after the shooting" was a fair comment on the evidence presented and did not constitute misconduct; and certain other challenged remarks by the prosecutor did not mislead the jury and were proper comments on the evidence adduced at trial; moreover, although the prosecutor improperly expressed her personal opinion in commenting about the strength of the defendant's case during cross-examination of G, the remark did not deprive the defendant of a fair trial given that the isolated instance of misconduct was neither severe nor directed at a critical issue in the case and the trial court issued two curative instructions and reminded the jury that questions by counsel were not evidence for the jury's consideration.

3. The defendant could not prevail on his claim that the trial court's jury instruction on consciousness of guilt, in which the court instructed the jury that it "must" give weight to certain evidence regarding the defendant's use of an alias, improperly created a mandatory presumption; it was not reasonably possible that the court's isolated use of the word "must" misled the jury or relieved the state of its burden of proving all of the elements of the crime charged given that the court instructed the jury on several occasions that it "may" consider consciousness of guilt evidence against the defendant and specifically instructed that the use of an alias may indicate consciousness of guilt.

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4. The defendant could not prevail on his challenge to the trial court's instruction to the jury that a reasonable doubt is "a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or in the absence of evidence," the challenged language previously having been upheld by our Supreme Court in the context of the entire charge.

Procedural History

Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Hon. Ronald J. Fracasse, judge trial referee; verdict and judgment of guilty of the lesser included offense of manslaughter in the first degree with a firearm, from which the defendant appealed to this court. Affirmed.

Lauren Weisfeld, assistant public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Maxine V. Wilensky, senior assistant state's attorney, for the appellee (state).

Schaller, DiPentima and McLachlan, Js.

Opinion

SCHALLER, J.


The defendant, Jose J. Martinez, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. On appeal, the defendant claims that (1) the trial court failed to inquire into possible jury taint, (2) he was denied due process of law as a result of prosecutorial misconduct and (3) the court improperly charged the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Hector Pacheco, sold heroin in the area of Poplar Street in New Haven.

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On the evening of September 2, 1996, the defendant and the victim had a loud argument concerning the defendant's intention to sell drugs at a location used by the victim.1 The victim told the defendant that "it wasn't going to happen," and the defendant became upset.

The next morning, at approximately 9:30 a.m., the victim and the defendant had a second argument, and the victim reiterated his position that he would prevent the defendant from seizing his location. The defendant then left the area but returned later that morning. He told the victim, "I told you I'd be back," and drew a handgun from the inside of his pants. The defendant shot the victim and fled from the area while the victim was taken to Yale-New Haven Hospital, where he subsequently died. Thomas Gilchrist, a pathologist in the chief medical examiner's officer, performed an autopsy and determined that a gunshot wound to the chest and abdomen caused the victim's death.

Following an investigation, the police obtained an arrest warrant but were unable to locate the defendant for several years. After shooting the victim, the defendant fled to Philadelphia, Pennsylvania, and used a false name and date of birth to escape discovery. While using the alias "Edwin Acevedo," the defendant was arrested on unrelated charges and placed in custody in 1999.

The defendant's identity eventually was discovered, and he was returned to Connecticut. The defendant was arrested, tried and convicted in connection with the

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death of the victim.2 The court sentenced the defendant to forty years incarceration, suspended after thirty years, and five years probation. This appeal followed.3 Additional facts will be set forth as necessary.

I

The defendant first claims that the court failed to inquire into possible jury taint. Specifically, the defendant

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argues that the court failed to investigate two instances of possible juror misconduct, thereby implicating his right to an impartial jury. The first instance occurred when a venireperson indicated that discussions regarding the defendant had occurred among members of the venire panel while awaiting individual voir dire. The second instance transpired when one of the jurors notified the court clerk that some of the other members of the jury had commented, prior to the jury

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charge, on the defendant's outburst that had taken place during the testimony of one of the state's witnesses. We do not agree with either of the defendant's claims.

As an initial matter, we set forth the general legal principles relevant to this issue. "Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution [of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution]. . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . It is well established, however, that not every incident of juror misconduct requires a new trial. . . . [D]ue process seeks to assure a defendant a fair trial, not a perfect one. . . . The question is whether . . . the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . The defendant has been prejudiced if the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror." (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 647, 877 A.2d 787, cert. denied, U. S. , 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005); see also State v. Sinvil, 90 Conn. App. 226, 240, 876 A.2d 1237, cert. denied, 275 Conn. 924, 883 A.2d 1251 (2005).

A discussion of the seminal case of State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (en banc), is also appropriate. In Brown, the trial court received an anonymous note, after the verdict had been returned, indicating that the writer had learned that one of the jurors commented that she had overheard the sheriffs "betting that the defendant would be found guilty because he was black and from New York." (Internal quotation marks...

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