State v. Brown

• Citation: 169 Conn. 692,364 A.2d 186
• Court: Supreme Court of Connecticut
• Decision Date: 09 December 1975
• Parties: STATE of Connecticut v. Irvin BROWN.

Page 186

364 A.2d 186

169 Conn. 692

STATE of Connecticut v. Irvin BROWN.

Supreme Court of Connecticut.

Dec. 9, 1975.

John R. Williams, Sp. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, BOGDANSKI and BARBER, JJ.

BARBER, Associate Justice.

The defendant was convicted, on a trial to a jury, of three counts of the sale of heroin in violation of § 19-480(a) of the General Statutes. On appeal, four issues covered by the assignment of error are being pursued. Enumerated in the order in which we shall discuss them, they are: (1) whether the state proved the defendant guilty beyond a reasonable doubt; (2) whether the court erred in denying the defendant's challenge to the jury array; (3) whether the court erred in admitting certain evidence tending to show the commission of other crimes and in denying the defendant's motion for a mistrial; and (4) whether the court erred in not charging the jury on the law relating to the failure of a party to produce certain witnesses.

I

We first consider the defendant's claim that the state did not prove its case beyond a reasonable doubt. The assignment of error attacks the denials of the defendant's motion for a directed verdict and his motion to set aside the verdict. According to our appellate rules in effect on the date when the assignment of error was filed, such claims are tested by the summary of evidence printed in the appendices to the briefs. State v. Hart, 169 Conn. 428, 430, 363 A.2d 80; State v. Gosselin, 169 Conn. 377, 379, 363 A.2d 100. From this evidence the jury could have reasonably found the following: On March 18, 1970, Detective Daniel F. Harvey, an undercover agent of the West Haven police department, met the defendant, to whom he had been introduced by an informant, and had a conversation with him concerning narcotics. The defendant told Harvey to meet him at the corner of Davenport and Vernon Streets in New Haven. At that location the defendant gave Harvey what was represented to be a 'half-load' (15 bags) of heroin for forty-five dollars. On March 19, 1970, Detective Harvey met with an individual known to him as Johnny Robinson, and drove with him to Vernon Street in New Haven, where Harvey saw the defendant. Harvey gave Robinson fifty dollars and Robinson walked to the where the defendant was standing and was observed in conversation with the defendant. Robinson returned and gave Harvey fourteen glassine bags containing a white powdery substance. On March 27, 1970, Detective Harvey observed the defendant in a vehicle on Kimberly Avenue, called to him, and told him that he was interested in purchasing heroin. Detective Harvey was directed to accompany the defendant to a house, where Harvey waited in a hallway until the defendant returned and handed him a 'half-load' of heroin for the agreed upon price of fifty-five dollars. The substances purchased on each occasion were analyzed at the state toxicological laboratory and each was found to contain heroin.

The defendant makes no claim that the evidence does not support the verdict on the first count of the information, but claims that the evidence on the second count was circumstantial and that the evidence adduced by the state on the third count contains contradictions. It is the province of the jury to draw reasonable and logical inferences from facts proved. State v. Williams, 169 Conn. 322, 336, 363 A.2d 72. There is no distinction between direct and circumstantial evidence as far as probative force is concerned; State v. Cari, 163 Conn. 174, 179, 303 A.2d 7; and the evidence must be given a construction most favorable to sustaining the jury's verdict. State v. Malley, 167 Conn. 379, 381, 355 A.2d 292. Although the defendant claims contradictions in the evidence produced by the state to support the verdict on the the third count his appendix does not support such a claim. Furthermore, it is the duty of the state to ensure that all evidence tending to aid in ascertaining the truth be laid before the court, even though such evidence is not consistent with the prosecution's contention that the accused is guilty. State v. Mitchell, 169 Conn. 161, 166, 362 A.2d 808.

There is ample evidence summarized in the appendices to support the verdicts on each of the three counts.

II

In his challenge to the jury array and motion to dismiss the jury panel, the defendant challenged the constitutional validity of the Connecticut jury selection statutes, and he has pursued this claim on appeal. He contends that the statutes set impermissibly vague qualifications for prospective jurors (§ 51-217); exclude felons (§§ 51-217, 9-46); exempt doctors, lawyears, and all persons not registered voters from jury service (§§ 51-217, 51-218, 51-221); and discriminate against women (§ 51-218). As a result of these alleged defects, the defendant argues, the makeup of the jury which convicted him did not comply with the standards set by the sixth amendment of the United States constitution, as applied to the states through the fourteenth amendment.

The standard by which a jury selection system must be judged is whether the juries selected as a result of that system constitute 'a fair cross section of the community.' Taylor v. Louisiana, 419 U.S. 690, 95 S.Ct. 692, 696, 42 L.Ed.2d 690; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984,90 L.Ed. 1181; State v. Hart, 169 Conn. 428, 434, 363 A.2d 80; State v. Townsend, 167 Conn. 539, 545, 356 A.2d 125. The 'fair cross section' standard is not inflexible, however. 'The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.' Taylor v. Louisiana, supra, 95 S.Ct. 701. The defendant has offered no evidence tending to show that the statutes in question generally result in jury arrays which do not conform to the 'fair cross section' standard, nor has he even offered any evidence as to the makeup of the jury panel before which he was tried. Therefore, any claim by the defendant that the jury selection statutes result in their application in a purposeful discrimination against any cognizable group must fail. Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 13 L.Ed.2d 759; State v. Hart, supra.

The defendant claims, however, that the statutes in question are constitutionally invalid on their face, rather than simply as applied. He contends that the language of § 51-217, which requires that prospective jurors be 'esteemed in their community as persons of good character, approved integrity, sound judgment and fair education' is impermissibly vague, affording ample opportunity for the discriminatory exclusion of various racial or economic groups. The contention is without merit. In ruling a similar Alabama statute constitutional on its face, the United States Supreme Court noted: 'It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character.' Carter v. Jury Commission, 396 U.S. 320, 332, 90 S.Ct. 518, 24 L.Ed.2d 549. In footnote 31 in the Carter case (p. 333, 90 S.Ct. 518, 525), § 51-217 is cited as one among many state statutes similar to the Alabama statute therein ruled valid.

Section 51-217 also limits prospective jurors to 'electors,' a limitation which the defendant attacks upon two grounds. First, since convicted felons forfeit their privileges as electors, § § 9-46, the limitation in § 51-217 excludes convicted felons from jury service, thus depriving defendants of a jury panel truly representative of a 'cross section of the community.' The holding in Carter v. Jury Commission,supra, affirmed in Taylor v. Louisiana, supra, that the states remain free to limit prospective jurors to persons of good character, is dispositive of this first claim. Certainly an exclusion of felons is fully consistent with the 'good character' and 'approved integrity' standards of § 51-217. Furthermore, the disenfranchisement of convicted felons is not a denial of equal protection. Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551. Second, the defendant claims that limiting prospective jurors to electors excludes all persons not registered to vote, an impermissible form of discrimination. We have recently rejected an identical claim. State v. Townsend, Conn. (36 Conn.L.J., No. 32, pp. 8, 10); see also United States v. Guzman, 337 F.Supp. 140, 143 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir.), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.ED.2d 602.

The defendant aso claims that Connecticut jury arrays are not representative of the community because § 51-219 exempts 'attorneys-at-law and physicians in active practice' from jury service. '(I)f the state law itself should exclude certain classes on the bona fide ground that it was for the good of the community that their regular work should not be interrupted, there is nothing in the 14th Amendment to prevent it. The exemption of lawyers . . . (and) doctors . . . is of old standing, and not uncommon in the United States. It could not be denied that the state properly could have excluded these classes had it seen fit, and that undeniable proposition ends the case.' Rawlins v. Georgia, 201 U.S. 638, 640, 26 S.Ct. 560, 561, 50 L.Ed. 899; see also Taylor v. Louisiana, supra, 95 S.Ct. 701.

Finally, the defendant claims that § 51-218, as it read at the time of his trial, was unconstitutional because it provided exemptions from jury service for women who were trained nurses in active service;...