State v. Cobbs

Decision Date07 March 1973
Citation324 A.2d 234,164 Conn. 402
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. James L. COBBS.

Bernard Green, Special Public Defender, for appellant (defendant).

Donald A. Browne, Asst. State's Atty., with whom, on the brief, was Joseph T. Gormley, Jr. State's Atty., for appellee (state).


LOISELLE, Associate Justice.

The defendant, James L. Cobbs, was indicted by a grand jury for the crime of murder in the first degree in violation of § 53-9 of the General Statutes. A jury returned a verdict of guilty of murder in the first degree. After a hearing in accordance with the provisions of § 53-10, the jury recommended a sentence of life imprisonment which the court imposed. The defendant appealed, assigning error in the overruling of his plea in abatement, his motion to quash and his challenge to the array of veniremen. The defendant also attacked the disqualification of jurors opposed to the death penalty, the admission into evidence of statements made by him to a police officer, the charge to the jury, and the overruling of his motion to set aside the verdict.

After indictment and prior to trial, the defendant filed a plea in abatement and motion to quash the indictment on four grounds. The plea in abatement was overruled and the motion to quash was denied. A finding of facts was made by the court (Johnson, j.) on the issues presented by these pretrial pleadings. 1

The defendant claimed in his plea in abatement that the bench warrant issued by the Superior Court for his arrest on a charge of murder in the first degree was invalid because he was already being held to answer to the same charge in the Circuit Court.

A bench warrant was issued by the Superior Court while the defendant was being held pursuant to a Circuit Court warrant for the same offense. In State v. Stallings, 154 Conn. 272, 276-279, 224 A.2d 718, it was clearly stated that one accused of a felony or murder has no statutory right to a hearing in probable cause. See also State v. Vennard, 159 Conn. 385, 388, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625; State v. Purvis, 157 Conn. 198, 205, 251 A.2d 178. The defendant urges reconsideration of this court's previous holdings in view of Coleman v. Alabama, 399 U.S. 1, 10, 90 S.Ct. 1999, 26 L.Ed.2d 387, which held that a hearing in probable cause is a 'critical stage' in criminal proceedings. The Coleman case held that a preliminary hearing such as the state's hearing in probable cause was a 'critical stage' in the proceedings which required the presence of counsel. The preliminary hearing, while it is a 'critical stage' in a criminal proceeding, is not a required procedure which must be afforded every accused. The opinion in Coleman recognized the optional nature of the preliminary hearing. 'The preliminary hearing is not a required step in an Alabama prosecution. The prosecutor may seek an indictment directly from the grand jury without a preliminary hearing.' Id., 8, 90 S.Ct. p. 2002. The following cases, decided since the Coleman case, have reinforced the holding in State v. Stallings, supra: Hervey v. People, 178 Colo. 38, 44, 495 P.2d 204 (1972) (U.S. appeal pending); Chung v. Ogata, Haw., 493 P.2d 1342 (1972), rehearing denied, Haw., 495 P.2d 26 (1972); State v. Watson, 193 N.W.2d 96 (Iowa, 1971); State v. Sexton, 82 N.M. 648, 485 P.2d 982 (1971); State v. Jefferson, 79 Wash.2d 345, 485 P.2d 77 (1971); Washington v. Borsey, 6 Wash.App. 482, 494 P.2d 225 (1972); see also Collins v. Swensen, 443 F.2d 329 (8th Cir.) (May 24, 1971). The holding in the Coleman case in no way undercut the well-established practice of permitting a bench warrant to be used by the Superior Court to obtain jurisdiction over a person held by a Circuit Court warrant charging the same crime. The defendant's claim that he was denied equal protection of the law by the elimination of the probable cause hearing in this case is without merit. The defendant was indicted by a grand jury, a procedure which afforded ample assurance to the defendant that the charges brought against him were based upon probable cause. Chung v. Ogata, Haw., 495 P.2d 26; see also State v. Hayes, 127 Conn. 543, 581, 18 A.2d 895.

The defendant claimed in support of his plea in abatement that the members of the grand jury were chosen through a selection process which failed to obtain or to guarantee an impartial grand jury drawn from a cross section of the community and, further, resulted in systematic and intentional exclusion of certain electors of the county.

The finding relative to the plea in abatement and motion to dismiss discloses that, after the Superior Court ordered a grand jury to be summoned, the sheriff for Fairfield County personally summoned the grand jury. From 1959 to June 19, 1967, when the defendant was indicted by the grand jury, the sheriff and his predecessor had maintained a list of names in the sheriff's office. This list or panel of prospective grand jurors was revised through additions and eliminations when persons died, moved to different locations or no longer desired to serve. Names were added to the list by the sheriff on recommendation of his deputy or persons who had high standing in the community. All persons listed were electors of above average intelligence and were volunteers for grand jury duty. The list included persons different in religious persuasion, race, national origin and political affiliation. The sheriff attempted to balance the list with respect to race and religious persuasion. In the five years prior to trial, only persons named in the list and been selected for the approximately fifteen grand juries called. The sheriff has never exercised his power of summons in order to obtain a grand jury. In summoning the grand jury for this case, the sheriff selected from his list forty-four persons whom he thought were best suited for service. From this group of forty-four persons the sheriff obtained eighteen persons. The sheriff avoided selecting persons from Bridgeport, and most of the grand jurors who were selected in this case had had prior experience and had participated as members of grand juries on homicide cases.

Although the due process clause guarantees the defendant a fair trial, 'it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.' Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 1227, 31 L.Ed.2d 536. 'Once the State chooses to provide grand . .. juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria.' Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549.

The constitution of Connecticut, article first, § 8, provides that '(n)o person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or indictment of a grand jury, except in the armed forces, or in the militia when in active service in time of war or public danger.' The only statutory requirement concerning the qualification of grand jurors is that they be electors in the county where the court is sitting. General Statutes § 54-45; State v. Hamlin, 47 Conn. 95. A statutory provision establishing the grand jury was first enacted in 1643 and, as amended in 1784, remains substantially the same to this day. 1 Col.Rec. 91; Acts & Laws, 1784, p. 93. Kennedy v. Walker, 135 Conn. 262, 267-269, 63 A.2d 589; see also State v. Kemp, 126 Conn. 60, 66, 9 A.2d 63. There are no statutes in this state governing the method of selecting and summoning grand jurors. Our courts have followed the common law in this regard except in isolated instances involving investigatory grand juries. See State v. Hayes, 127 Conn. 543, 578, 18 A.2d 895; State v. Kemp, supra, 64. At common law the grand jury was returned by the sheriff or other proper officer without the nomination of any other person whatsoever. State v. Kemp, supra; 38 Am.Jur.2d, Grand Jury, § 15. The defendant claims that the common-law method of selecting a grand jury followed in this state since before the founding of this country is discriminatory, effects a systematic and intentional exclusion of electors, and results in a failure to obtain an impartial jury drawn from a cross section of the community. It is true that a local tradition cannot justify the systematic exclusion of class or race. Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. More than a bare assertion that the system used was discriminatory, however, is required to overcome the presumption that the grand jury was selected in a proper manner. See State v. Davis, 158 Conn. 341, 345, 260 A.2d 587, remanded for resentencing, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750; see also the cases collected in the annotation at 82 L.Ed. 1053, 1069.

There is no constitutional requirement that members of a grand jury be selected in any particular manner. The constitutional guarantee merely forbids any intentional discrimination against race or class. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692. In the Brown case the Supreme Court stated (344 U.S. p. 474, 73 S.Ct. p. 416): 'Our duty to protect the federal constitutional rights of all does not mean we must or should impose on our states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.' Although there can be no intentional discrimination in the selection of jurors, this does not mean that there must be a member of every class or race on the jury. Note, 82 L.Ed. 1053, 1061. 'Fairness in selection has never been held to require proportional representation.' State v. Davies, 146 Conn. 137, 143, 148...

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