State v. Castonguay

• Decision Date: 04 September 1984
• Citation: 194 Conn. 416,481 A.2d 56
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Gary G. CASTONGUAY.

Page 56

481 A.2d 56

194 Conn. 416

STATE of Connecticut v. Gary G. CASTONGUAY.

Supreme Court of Connecticut.

Argued April 5, 1984.

Decided Sept. 4, 1984.

Michael R. Sheldon, James Sicilian, West Hartford, with whom were Timothy H. Everett, certified legal interns, and, on the brief, Temmy A. Pieszak, Hartford, Geoffrey G. Plank, Todd D. Fernow, certified legal intern, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom were Robert M. Meyers, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., Duncan Forsyth, Asst. State's Atty., and Gary Strickland, Michael Sweeneyo, law student interns, for appellee (state).

Before SPEZIALE, C.J., and HEALEY, PARSKEY, GRILLO and MENT, JJ.

PARSKEY, Justice.

On November 21, 1977, in a wooded residential area of Plainville, Connecticut, Plainville police officer Robert M. Holcomb was found lying on the ground with four bullet wounds in his body. Less than an hour later he was pronounced dead. On February 28, 1978, a Hartford county grand jury returned a two count indictment charging the defendant with capital felony for the intentional murder of a police officer engaged in the performance of his duties, in violation of General Statutes §§ 53a-54a(a) and (c) ¹ and 53a-54b, ² and with felony murder for causing the death while in the course of and in flight from a burglary or attempted burglary, in violation of General Statutes §§ 53a-54a and 53a-54c. ³ After a jury trial, the defendant was found guilty on both counts. The trial court originally imposed consecutive sentences of not less than twenty-five years to life on each count for a total effective sentence of fifty years to life, ⁴ but upon the defendant's motion to correct the illegal sentence the court modified its judgment so that the defendant received a net effective sentence of twenty-five years to life. ⁵

The defendant's appeal from the judgment of conviction presents two claims of error: (1) whether the grand jury that indicted the defendant was drawn from a fair cross section of the community, as provided for by the due process clause of the fourteenth amendment to the United States constitution and (2) whether the defendant is entitled to a new trial because the trial court improperly instructed the jury that it could discuss the evidence prior to the close of all the evidence and the court's charge.

I

The defendant's first claim of error is that the underrepresentation of Hispanics on grand juries in the judicial district of Hartford county denied him his rights to due process, as provided by article first, §§ 8, 9, and 20 of the Connecticut constitution and the fourteenth amendment to the United States constitution, and that, as a result, the indictment against him should have been dismissed. We do not agree.

The essence of a due process challenge to the grand jury is that the array was not representative of a fair cross section of the community. Peters v. Kiff, 407 U.S. 493, 500-502, 92 S.Ct. 2163, 2167-2168, 33 L.Ed.2d 83 (1972) (plurality opinion). It is analogous to a sixth amendment claim that a petit jury was not "impartial" because it was not drawn from a fair cross section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Accordingly, in its analysis, the trial court was guided by Duren v. Missouri, supra, which enunciated a test for analyzing a fair cross section challenge.

The defendant argues and the state agrees that the trial court's analysis should have been governed by Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), because Duren was a sixth amendment fair cross section challenge to a petit jury, while Castaneda was a fourteenth amendment challenge to a grand jury. We do not agree. Because the fourteenth amendment due process claim is analogous to a sixth amendment claim, we can rely on sixth amendment cases. Cf. People v. Guzman, 60 N.Y.2d 403, 409-10 n. 3, 457 N.E.2d 1143, 469 N.Y.S.2d 916 (1983). Moreover, Castaneda was solely an equal protection challenge to a grand jury and hence the test it enunciated reflects equal protection jurisprudence. There are three components to a prima facie equal protection violation in the grand jury context: (1) underrepresentation of a recognizable group; (2) substantial underrepresentation over a significant period of time; and (3) a selection procedure susceptible to abuse or not racially neutral. Castaneda v. Partida, supra, 430 U.S. 494, 97 S.Ct. 1280. Although the equal protection test is similar to the cross section test, the critical difference is that in an equal protection claim the defendant must prove discriminatory purpose. Once the defendant has established this prima facie case, the burden shifts to the state to rebut the presumption of discriminatory purpose. Id., 495, 97 S.Ct. 1280. In contrast, in a fair cross section claim, the defendant need not prove intent. "[S]ystematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section. The only remaining question is whether there is adequate justification for this infringement." Duren v. Missouri, supra, 439 U.S. 368 n. 26, 99 S.Ct. 670 n. 26; id., 371, 99 S.Ct. 672 (Rehnquist, J., dissenting); United States v. Perez-Hernandez, 672 F.2d 1380, 1384 n. 5 (11th Cir.1982); Villafane v. Manson, 504 F.Supp. 78, 82 n. 6 (D.Conn.), aff'd without opinion, 639 F.2d 770 (2d Cir.1981). Accordingly, we turn to Duren v. Missouri.

"In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri, supra, 439 U.S. 364, 99 S.Ct. 668. Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Id., 367, 99 S.Ct. 670.

The trial court found that the defendant had established a prima facie case. It first determined that Hispanics are a cognizable group in Hartford county and that the defendant satisfied the first prong of Duren. With respect to the second prong, the trial court found that from January 1, 1970, until February 27, 1978 (this latter date representing the defendant's indictment), 972 grand jurors served in Hartford county of whom 17 or 1.75 percent were Hispanic. For the period of 1970-1977, the mean proportion of Hispanics in the general population was between 3.10 percent and 4.69 percent. ⁶ The court concluded that a comparison between the highest mean population figure, 4.69 percent, and the percentage of Hispanic grand jurors, 1.75, made it "clear that Hispanics were not represented on the grand jury in proportion to their number in the county population."

Turning to the third prong of Duren, the court found that the major cause of Hispanic underrepresentation is the requirement of General Statutes § 54-45 that grand jurors be electors. It noted that the general population rate of voter registration is 3.5 times the registration rate for Hispanics. The court applied this factor to the highest mean Hispanic population figure of 4.69 percent, and found that, for the period of 1970-1977, Hispanics represented only 1.34 percent of the general voting population of Hartford county. It then compared this figure with the percentage of Hispanic grand jurors and concluded "that Hispanic voters were overrepresented on the grand jury during that period by about 30%." (Emphasis added.)

The court went on to determine that even though the use of voter lists as a source for selection resulted in underrepresentation of Hispanics, such a requirement was justified "because registration as a voter is at least some indication of an interest, ability, and willingness to participate in the governmental process of which the function of the grand jury is a part." Finally, the court noted that even if the voter registration requirement were eliminated, the underrepresentation of Hispanics on grand juries would probably continue because of "their deficiency in the use of the English language in which grand jury proceedings are conducted" and "other factors having a special impact upon that group." It therefore determined that the state had rebutted the defendant's prima facie case and it denied the defendant's motion to dismiss the indictment.

On appeal, the defendant claims that the trial court erred in holding that the state had rebutted the defendant's prima facie case of unconstitutional discrimination. He contends that there was insufficient evidence in the record to support the court's conclusions that Hispanics had a low level of voter registration and English language ability and that these factors in fact caused the underrepresentation of Hispanic grand jurors. The state responds that we need not reach this issue because the defendant failed to make out a prima facie case. Though we do not agree with the state's reasoning, we do conclude that the defendant failed to prove that there was substantial underrepresentation of Hispanics.

COGNIZABILITY

The state concedes that Hispanics ⁷ comprise a distinctive group in Hartford county. We agree that the defendant satisfied the first prong of Duren.

PROOF OF UNDERREPRESENTATION

In finding that the defendant established proof of underrepresentation, the trial court compared the percentage of Hispanics in the general population of Hartford county (between 3.10 percent and 4.69 percent) with the percentage of Hispanics who served on ...