State v. Bowen
| Decision Date | 28 January 1975 |
| Citation | 167 Conn. 526,356 A.2d 162 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Edward BOWEN. |
Anthony V. DeMayo, Public Defender, for appellant (defendant).
Ernest J. Diette, Jr., Asst. State's Atty., for appellee (State).
Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ. HOUSE, Chief Justice.
The defendant, Edward Bowen, was charged in an information with the crime of sale of a narcotic drug, heroin, in violation of § 19-480(a) of the General Statutes. A verdict of guilty was returned by the jury and from the judgment rendered thereon the defendant appealed to this court.
The facts in the case, which are not the subject of dispute, may be simply stated as follows: Officer Michael Dilullo of the New Haven police department, while working as an undercover agent for the South Central Regional Crime Squad, was approached by the defendant and asked if he was 'looking' to purchase narcotics. Officer Dilullo responded that he was and asked to purchase four bags of heroin. The defendant thereupon reached into his pocket and drew out four glassine bags containing a white powder and handed them to the officer. Officer Dilullo then paid the defendant $20 which concluded the transaction. Abraham Stolman, chief state toxicologist, reported as a result of testing in Hartford that the substance purchased by Officer Dilullo from Bowen contained heroin.
Prior to the selection of the jury, the defendant moved for the dismissal of the entire jury panel on the grounds that it was made up entirely of persons who, as a matter of law, were no longer capable of sitting as impartial jurors. This motion was denied by the court and the voir dire examination of prospective jurors proceeded. The defendant exhausted his peremptory challenges of prospective jurors. Each time he exercised a challenge, he moved to excuse the entire panel for cause based on their inability, as a matter of law, to sit as impartial jurors. Each time his motion was denied. With respect to each juror selected after the defendant had exhausted his peremptory challenges, counsel for the defendant indicated that he would have exercised a peremptory challenge but for the fact that his challenges had been exhausted because of the refusal of the court to dismiss the entire panel. The defendant based his motion to dismiss the jury panel and his motions to excuse for cause on a claim that the jurors had become biased as a result of incidents in two earlier trials, State v. Myrick and State v. Pastore, both of which cases were decided in the same term and involved the same jury array as did the present case.
In the Pastore case, the jury returned a verdict of not guilty. After accepting the verdict, the court made the following statement in the jury's presence: The daybook kept by the clerk's office smmarizing the doings of the court and which is not a literal recording of what was said reads as follows: In the case of State v. Myrick, the defendant elected to change his plea from not guilty to guilty after the trial had begun. The jury was permitted to remain in the courtroom while the plea was accepted and during the sentencing. Neither the case of State v. Myrick nor the case of State v. Pastore was in any way related to the case of State v. Bowen.
The defendant's arguments as presented to the trial court in support of his motion and now pressed on appeal, can be summarized as follows: First, with reference to the Myrick case, he contends that 'one inevitable implication' of Myrick's change of plea was that the jury which observed it would be led to believe that it is not only the innocent who avail themselves of the constitutional right to a trial, and the jury could well have been led to believe that it is not only the innocent who assert their innocence. From the incident in the Pastore case, the defendant argues that the members of the array who had learned of the judge's disagreement with the verdict and the dismissal of the jury in that case would in future cases feel compelled to reach a verdict which would please the trial judge rather than one based on the evidence of the case; and, that the excusing of the Pastore jurors from the array subjected the defendant to a trial by a jury not selected from a fair cross section of the community.
The defendant assigned error to the denial of his motion to dismiss the entire jury panel and the denial of his motion to excuse the individual veniremen for cause. Thus, the basic issue on the appeal is whether or not the trial court abused its discretion in denying the defendant's motions.
The purpose of the voir dire is to provide information for the court to determine whether a venireman is qualified to act as a juror and to guide each party in exercising the right to peremptory challenges. Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33. The extent of the voir dire examination of prospective jurors rests in the discretion of the trial court. Duffy v. Carroll, supra; State v. Mendill, 141 Conn. 360, 362, 106 A.2d 178. State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152, 154; see State v. Potter, 18 Conn. 166, 171; State v. Wilson, 38 Conn. 126, 137. In the present case, the court permitted the defendant to conduct an extensive and exhaustive voir dire examination of each venireman as to what effect, if any, the Pastore and Myrick incidents may have had upon his qualifications to sit as a juror in the case. In addition, the court...
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