State v. Clark

• Decision Date: 04 January 1973
• Citation: 319 A.2d 398,164 Conn. 224
• Parties: , 72 A.L.R.3d 952 STATE of Connecticut v. James CLARK.
• Court: Connecticut Supreme Court

Page 398

319 A.2d 398

164 Conn. 224, 72 A.L.R.3d 952

STATE of Connecticut v. James CLARK.

Supreme Court of Connecticut.

Jan. 4, 1973.

John R. Williams, New Haven, for appellant (defendant).

Jerrold H. Barnett, 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 SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

On a trial to a jury the defendant was found guilty of selling narcotics (heroin) in violation of § 19-480(a) of the General Statutes. He has appealed from the judgment rendered on the verdict. The case arose out of the same police investigation which gave rise to the case reported as State v. Brown, 163 Conn. 52, 301 A.2d 547. The decision of this court on the appeal in the Brown case was handed down while the present case was pending on appeal and as a result of that opinion, which decided many of the questions of law originally raised in the present appeal, the defendant has abandoned all but two of his assignments of error. One of these concerns a ruling of the court refusing to excuse a venireman for cause. The other concerns a portion of the court's charge to the jury. Under these circumstances, it is unnecessary to detail the facts giving rise to the arrest and trial. It suffices to note that the state presented evidence that the defendant had sold six glassine bags of heroin to an undercover police investigator.

The first assignment of error which is pressed on the appeal is that the trial court committed error in refusing to excuse from service on the jury a venireman, Louis Tommer. The defendant contends that Tommer should have been excused from service on the ground of 'implied bias.'

The record discloses that the voir dire examination of veniremen consumed two days and the court was repeatedly required to sustain objections to the wideranging scope of interrogation attempted by counsel for the defendant. 'The trial court is vested with wide discretion in conducting the examination of jurors.' Childs v. Blesso, 158 Conn. 389, 394, 260 A.2d 582, 584; State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152. If anything, the court was unduly liberal in the latitude afforded counsel in questioning veniremen. As we noted in Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33, 36, quoting from Sherman v. William M. Ryan & Sons, Inc., 126 Conn. 574, 578, 13 A.2d 134, "hypothetical questions intended to elicit from a juryman in advance what his decision will be under a certain state of the evidence or upon a certain state of facts should not be permitted by the trial court. A party has no right to assume the facts of a case about to go on trial, and ascertain a juror's opinion in advance.' See Busch, Law and Tactices in Jury Trials, § 82. Neither is a juror's knowledge or ignorance concerning questions of law a proper subject of inquiry. These are concerned with matters which the juror is bound to take from the court.' '(A)ll too frequently such inquiries represent a calculated effort on the part of counsel to ascertain before the trial starts what the reaction of the venireman will be to certain issues of fact or law or, at least, to implant in his mind a prejudice or prejudgment on those issues. Such an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination.' State v. Mendill, 141 Conn. 360, 362, 106 A.2d 178, 180.

The defendant had exhausted all of his peremptory challenges when Tommer was called for questioning. The examination disclosed that he had had no prior jury experience nor had he ever been a witness in a criminal case. From 1937 to 1945 he was a member of the police department of the city of New York, serving on the emergency squad, where he was very rarely in uniform. In 1945, he transferred from the police department and until 1957 served in New York as a court attache serving for a while as captain of courts in charge of all personnel in uniform charged with maintaining order in the courtrooms and later as personal secretary to several judges. In these capacities the transportation of prisoners was not part of his duties and he reported to judges, not to prosecutors.

The defendant challenged the venireman 'for cause, because of this extensive nature of the courts (sic) and so on, the amount of influence that would be exerted upon the other jury members, it would be disproportionate to the equal role of each juror, the role they should play, in addition to the fact that he has extensive connection with the police department.' The court refused to exclude Tommer, saying: 'You haven't shown me anything that would disqualify this man as a juror, nothing.'

We find no error in the ruling of the court. On this appeal the defendant claims no reason for disqualification of the venireman aside from the claim of 'implied bias,' based solely on his former employment. Connecticut has no common-law rule or statute prohibiting or exempting an active police officer from service on a jury solely because of his occupation, let alone a retired or former police officer. See General Statutes § 51-219. We find ourselves in agreement with the holding of the Circuit Court of Appeals for the Second Circuit which recently (1970) stated in Mikus v. United States, 433 F.2d 719, 724, a case involving a similar claim of disqualification: 'The mere fact of membership on a police force is not presumptively a disqualification for service on a jury in a criminal trial. United States v. Wood, 299 U.S. 123, 140 n. 9, 57 S.Ct. 177, 81 L.Ed. 78 (1936); Cavness v. United States, 187 F.2d 719, 723 (9th Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1019, 95 L.Ed. 1374 (1951); Marshall v. United States, 355 F.2d 999, 1009 (9th Cir.), cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966). A fortiori, the former police officer who had ceased his public law enforcement work in 1956 was more than sufficiently insulated against an attack of presumptive prejudice . . .. This court does not choose to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case, where, as here, there is no showing of actual bias or prejudice. See United States v. Haynes, 398 F.2d 980, 983-986 (2d Cir. 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124 ...