State v. Collins

• Decision Date: 20 June 1995
• Docket Number: No. 11250,11250
• Citation: 38 Conn.App. 247,661 A.2d 612
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Philip COLLINS.

Page 612

661 A.2d 612

38 Conn.App. 247

STATE of Connecticut v. Philip COLLINS.

No. 11250.

Appellate Court of Connecticut.

Argued March 21, 1995.

Decided June 20, 1995.

Mark D. Phillips, Sp. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, was Eugene Callahan, State's Atty., for appellee (State).

Before LANDAU, SCHALLER and SPEAR, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60(a)(2) ¹ and carrying a pistol without a permit in violation of General Statutes § 29-35. ² He claims that the trial court improperly (1) failed to be present in the courtroom during the voir dire process, (2) overruled his challenge for cause and refused to permit his exercise of a peremptory challenge with respect to a particular juror, (3) instructed the jury on the issue of identification, (4) failed to conduct a hearing on the issue of juror note-taking during the course of the trial so as to determine whether the defendant was entitled to a mistrial and (5) denied the defendant's motion to suppress identification evidence.

The jury could have reasonably found the following facts. On the evening of May 25, 1991, Eric Goethe was in the vicinity of Perry Street in Stamford when he became involved in an argument with Mike Litt, an acquaintance. After the police arrived and ordered them to leave, Litt left but returned later with several friends. Goethe telephoned his brother, Dwayne Goethe, who drove to Perry Street, picked him up and drove to the south end of Stamford where they met friends. Followed by friends in separate cars, they returned to the area of Perry Street, where Goethe confronted Litt. As the two faced each other, an individual later identified as the defendant came up behind Goethe. After an exchange of words between the two, the defendant pulled out a handgun and fired two shots, hitting Goethe's feet.

I

Invoking this court's decision in State v. Patterson, 31 Conn.App. 278, 624 A.2d 1146 (1993), rev'd, 230 Conn. 385, 645 A.2d 535 (1994), the defendant asserts that the absence of the trial judge from the voir dire proceedings constitutes per se reversible error. He requests review of this unpreserved claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The following facts are relevant to our disposition of this claim. After the trial judge introduced counsel to the panel of venirepersons and gave a preliminary charge, he excused itself to deal with other court business. Neither the defendant nor the state objected. During the defendant's examination of prospective jurors, the state objected to certain questions and requested that the judge be summoned. In response, the defendant withdrew or rephrased each question such that the parties did not summon the judge.

The defendant's first claim is controlled by our recent decision in State v. Lopez, 37 Conn.App. 509, 657 A.2d 647 (1995). In that case, we recognized that in State v. Patterson, 230 Conn. 385, 390, 645 A.2d 535 (1994), our Supreme Court held that "even assuming that the trial judge must be present in the courtroom throughout the voir dire of a criminal trial, the defendant can waive such a requirement."

"As to what constitutes a valid waiver in cases where the judge is not present during the voir dire process in a criminal trial, the court stated that '[t]he waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.' State v. Patterson, supra, 230 Conn. at 396, 645 A.2d 535. In Patterson, the court found that the presence of certain facts indicated a valid waiver. The defendant was represented by counsel and had prior experience with the criminal justice system. The defendant had acquiesced each time the judge left the courtroom and had requested the court's presence only when a judicial determination needed to be made. Further, the defendant did not object to the judge's absence during the voir dire. Id." State v. Lopez, supra, 37 Conn.App. at 512-13, 657 A.2d 647.

As in Lopez, "[t]he issue thus becomes whether the defendant waived the right to have the judge present during the voir dire proceedings. The record indicates a valid waiver in this case. The defendant was represented by counsel and did not object to the judge's absence. The only time the judge's presence was requested by the defendant was when a judicial determination needed to be made. Accordingly, we conclude that the trial court acted properly." ³ Id., at 513, 657 A.2d 647.

II

The defendant next claims that the trial court improperly refused to excuse for cause a juror who, after being accepted by both parties, observed handcuffs, shackles and prison clothes in a room from which he had previously seen the defendant exit. He also claims that the trial court improperly refused to permit him to exercise a peremptory challenge as to that juror.

Jack Hansen was the first venireperson questioned and accepted by both parties. During the voir dire, he responded that he had attended graduate school at Columbia University and was at the time of the trial an adjunct professor of educational psychology at that school. He stated that he had an open mind and would have to consider all the evidence before accepting the testimony of law enforcement officials. Hansen also asserted his strong belief in the presumption of innocence and stated that, if the evidence did not show guilt beyond a reasonable doubt, he would vote for acquittal even though he thought the defendant was probably guilty.

Several days later, and before Hansen was sworn as a juror, the defendant learned that Hansen had observed the handcuffs and other indicia of custody. On the basis of this information, the defendant challenged Hansen for cause. The court overruled the challenge and instead indicated that, upon completion of the jury selection, including the selection of an additional alternate, the court would supervise a supplemental voir dire of Hansen.

At the supplemental voir dire, Hansen stated that he did observe the items, but could not "imagine how that has any bearing on whether or not [the defendant] is innocent or guilty." He explained that he would have no difficulty divorcing the incident from his mind intellectually, but acknowledged that, according to his training as a psychologist, it is more difficult to divorce one's emotions from one's decisions. For this reason, he stated, "I will make the extra effort to do so ... I want to be fair to [the defendant] and I also want to be fair to society so I want to make those judgments and decisions based on what evidence we hear and not on emotional reaction." ⁴ The court subsequently overruled the defendant's renewed challenge for cause and denied his request to exercise a peremptory challenge.

"The trial court has discretion to determine the competency of a juror to serve. General Statutes § 54-82f. On appeal, therefore, we may reverse the trial court's denial of a request to excuse a juror for cause only upon a showing of abuse of discretion resulting in prejudice to one of the parties." State v. Crafts, 226 Conn. 237, 259, 627 A.2d 877 (1993). Our review of the record indicates that the trial court acted well within its discretion in considering and overruling the defendant's challenge for cause. By the conclusion of the supplemental voir dire, the court had sufficient reason to believe that Hansen would be a fair-minded juror with no preconceived opinion as to the defendant's culpability.

The defendant also argues that the court improperly refused to permit his exercise of a peremptory challenge with respect to Hansen. Once a juror has been accepted by both parties, the absolute right to exercise a peremptory challenge is lost. Walczak v. Daniel, 148 Conn. 592, 596-97, 172 A.2d 915 (1961); DeCarlo v. Frame, 134 Conn. 530, 535, 58 A.2d 846 (1948); State v. Potter, 18 Conn. 166, 176 (1846). The trial court may, however, "in its discretion permit such a challenge to be made at any time before the jury is sworn." Walczak v. Daniel, supra, 148 Conn. at 597, 172 A.2d 915, quoting DeCarlo v. Frame, supra. See also State v. Potter, supra, at 176, in which our Supreme Court stated that "[o]ur practice gives one advantage to the prisoner, that if anything new has occurred since the juror was directed to take his seat as juror, the party will not be absolutely precluded from taking the benefit of it, as he is in England after he is sworn, unless by consent. Tyndal's Case, Cro.Car. 291-2."

In this case, the trial court appropriately exercised its discretion. At the conclusion of the supplemental voir dire, the court stated that "Mr. Hansen is probably one of the most outstanding jurors that I have ever come in contact with. I think that he understands the process. I think that he would be abundantly fair.... I'm completely satisfied that he will make an outstanding juror for the state and for the defense and I see no reason for me exercising my discretion to disqualify him or excuse him...." Our review of the record in this case convinces us that the trial court did not abuse its discretion in determining that the defendant would suffer no prejudice as a result of the incident in question and, consequently, in refusing to permit the defendant to exercise a belated peremptory challenge.

III

The defendant next claims that the trial court improperly instructed the jury on the issue of identification. Specifically, he argues that the court failed to include in its instructions his requested Telfaire charge. ⁵

The defendant filed a request to charge on the issue of identification, which did not invoke Telfaire, but which did request the court to instruct the jury to consider (1) an identification witness' opportunity to observe the offender, including the...