State v. Bowens

• Decision Date: 06 March 2001
• Docket Number: (AC 19070)
• Citation: 773 A.2d 977,62 Conn. App. 148
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. TYREESE BOWENS

62 Conn. App. 148

773 A.2d 977

STATE OF CONNECTICUT v. TYREESE BOWENS

(AC 19070)

Appellate Court of Connecticut.

Argued October 30, 2000.

Officially released March 6, 2001.

Spear, Zarella and Daly, Js. Robert G. Golger, special public defender, for the appellant (defendant).

Joy K. Fausey, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, senior assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, Tyreese Bowens, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a).¹ The defendant claims that the trial court improperly (1) dismissed an alternate juror who made allegations of racial prejudice against another juror and (2) denied his motion to suppress a witness' out-ofcourt photographic array identification. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 18, 1996, Kevin Hood, the victim, and Tlara Phelmetta were riding around New Haven in Hood's car. They stopped in front of a convenience store at the well lit intersection of Columbus Avenue, Arch Street and Washington Avenue. Hood made some purchases at the convenience store, and, upon his return to the car, Phelmetta noticed a man with a hooded jacket walking toward the car from Washington Avenue. The man came up to the front passenger seat window where she was seated and peered through from about three feet away. She was able to look closely at his facial features before he turned away and walked around the back of the car, appearing to head away from the car. Suddenly, the man changed course and again approached the car. As he walked up to the driver's side, Phelmetta saw him withdraw a gun from underneath his shirt. The man leaned into Hood's open window and shot Hood several times. Phelmetta jumped out of the car through her window and fled to safety.

Thereafter, officers from the New Haven police department patrolling on Columbus Avenue came upon the victim. A few minutes later, Phelmetta returned to the scene and told a police detective that she had witnessed the shooting and gave a description of the shooter. The following day, on August 19, 1996, Phelmetta went to the police station, viewed a photographic array and identified the defendant as the shooter. He was arrested and ultimately found guilty of murder in violation of § 53a-54a (a). This appeal followed.

I

The defendant claims that the court improperly dismissed an alternate juror, C, who had made allegations of racial prejudice against another juror, R. The defendant argues that when the court removed the alternate juror without cause it violated his right to a fair trial under article first, § 8, of the constitution of Connecticut and the sixth amendment to the United States constitution. We disagree.

We glean the following additional facts from the record and the transcript of the court's ruling. A jury of twelve regular jurors and four alternates was selected to hear the case. On the third day of trial, the court received a note from an alternate juror indicating that one of the regular jurors had made some racially based remarks.² The court privately questioned the alternate juror, C, about the remarks referred to in the note. C told the court about three separate incidents where she had heard racially based remarks from the same juror, R.³ After the court finished questioning C and consulted with counsel, the court questioned R, who adamantly denied making any racially based remarks.⁴ Thereafter, the court questioned all of the other jurors in the presence of counsel for both sides.

The first five jurors were asked general questions as to whether they had heard any other jurors make racist comments or comments with racial overtones. All five stated that they had not. One of the five, described as an African-American woman, commented that she did not "feel any tension there either." The court implied that this was significant when it stated: "She certainly would be sensitive to anything."

The remaining nine jurors were questioned more closely by both the court and counsel. Seven of the nine were asked the general question whether they had heard any other jurors make racist or racially motivated comments. All seven responded that they had not. All nine were asked whether they had heard a comment about Burger King, and eight agreed that they had, but none of them had interpreted it as a racially motivated remark. Only five of the nine recalled a comment by a juror about not letting her son shop in selected areas of New Haven, but none of them recalled anything racist in her comment. Six of the nine remembered a juror comment about living on the good side of the bridge, but, again, none of them interpreted it as racist in nature. Six of the nine were asked if what they had heard would affect their ability to sit as a juror, and all six responded that it would not. After all of the jurors were questioned, the defendant moved for a mistrial on the ground that the jury was compromised. The court denied the motion, concluding that "this jury was not in any way compromised, and that this defendant was not in any way prejudiced. [The jurors] said themselves that nothing affected their ability to be fair and impartial, and I have to believe them under the circumstances." The defendant then requested that the court remove R, the juror who allegedly made the racist comments. The state argued that R should not be removed because there was nothing to support C's allegations of racist comments, but that if the court removed R, C also should be removed.

The court granted both parties' requests and removed both jurors because the court did "not want a sideshow going on with the jury. I don't want them knowing that someone is watching them or someone isn't watching them. I want them watching the witnesses, and I'm not willing to set up a little trial within a trial." Although the court did not believe that R had used the racial words that C had alleged, the court believed that the subject matter of R's comments was inappropriate for the situation and, thus, removed her from the jury.

With regard to the removal of C, the court was troubled by her inaccurate account of the comments and her giving the court "false information without lying, and I don't believe she lied, but that's what she heard, and that's not borne out by any of the other people who heard the same information and were in the same position to hear that information." The next day the court explained further that "the court feels that it is not sensible to leave an alternate and a juror sitting when the alternate accused the juror of being a racist, in effect, and where the juror denied the charge and was basically supported by the other jurors, including the black juror, who as I indicate, said there simply [were] no racial epithets that she heard or any racial derogatory comments.... The safest course, in my judgment, is to dismiss the juror and the alternate. We, thus, eliminate anyone involved in the issue from service or potential service, in the case of the alternate, both of whom said things that we just simply do not have the time to deal with and ferret out. Justice demands that we go on with this trial, and I cannot spend anymore time trying to find out who said what to whom at what time."

At sentencing, the court again commented regarding the removal of the alternate juror, C, stating that "I did feel that [the statements by C] were not true. And still feel that way. I still feel that she felt that they were true and that was one of the things that worried me because a juror who believes something which didn't happen is not a good juror."

General Statutes § 54-82h (c) provides in relevant part that "[i]f, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him...." Our Supreme Court has concluded that excusing a juror pursuant to this statute requires a "finding of cause. Thus, the trial court ... could have excused the juror only upon a finding of cause." State v. Allen, 216 Conn. 367, 378, 579 A.2d 1066 (1990). "A person shall be disqualified to serve as a juror if such person is found by the judicial authority to exhibit any quality which will impair that person's capacity to serve as a juror...." Practice Book § 42-5.

Our standard of review of a trial court's decision to remove a juror is clear. "[T]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.... A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of cause." (Citations omitted; internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 363, 748 A.2d 891 (2000); see also State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987).

The defendant argues that there is nothing in the record to support the finding that C had become unable to perform her duties as a juror. Therefore, the defendant claims that the court's removal of C as an alternate juror was an abuse of discretion. We disagree.

The defendant relies on State v. Santiago, 245 Conn. 301, 339-40, 715 A.2d 1 (1998), a case that was decided approximately five weeks after the jury verdict in this case. Santiago provides guidelines for trial courts to follow when there are allegations of racial bias on the part of a juror.⁵

In Santiago, the Supreme Court held that in future cases, trial courts should investigate fully allegations of racial bias of jurors. "Extending the preliminary inquiry we required in [State v. Brown, 235 Conn. 502, 528, 668 A.2d 1288 (1995)] in situations of alleged racial bias beyond an initial inquiry of the individual reporting the conduct to encompass the interview of key players will not ......