State v. Cubano, 12889

CourtSupreme Court of Connecticut
Citation523 A.2d 495,203 Conn. 81
Decision Date07 April 1987
Docket NumberNo. 12889,12889
PartiesSTATE of Connecticut v. Victor CUBANO.

Joseph G. Bruckmann, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Dennis J. O'Connor, Asst. State's Atty., with whom, on the brief, was John M. Bailey, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Victor Cubano, was charged by substitute information with the crimes of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), 1 and of being a persistent dangerous felony offender in violation of General Statutes § 53a-40(a). 2 On October 23, 1985, the jury found the defendant guilty of the charge of robbery in the first degree. On October 28, 1985, after a separate trial, the same jury found the defendant guilty of being a persistent dangerous felony offender. The court sentenced the defendant to a term of imprisonment of twenty years. The defendant appealed, claiming that the trial court's denial of his motions for a mistrial and for a new trial deprived him of his right to a fair trial by an impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant also claims that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications of the defendant made by Peter DiNello.

The jury could reasonably have found the following background facts: On May 3 1984, DiNello was employed by the Kwik Stop store in Southington, working the 4 p.m. to midnight shift. At approximately 10:15 p.m., DiNello, who was working alone at the time, was seated behind the counter when a man with a nylon stocking over his face entered the store and pointed a "bluish" colored revolver at him. The man, later identified as the defendant, directed DiNello to put money into a paper bag he was holding. DiNello complied with the request. The man directed DiNello to "lay face first on the floor" and then left the store. After a few minutes, DiNello got off the floor and telephoned the police. Approximately three or four minutes had elapsed from the time the man came into the store until the time that DiNello called the police.

On May 6, 1984, three days after the robbery, Newington police detective Robert Seiler stopped a car which was occupied by the defendant and another male. On the floor of the car was a Smith and Wesson snub nose revolver with a two-inch barrel. The revolver was "dark blue" in color. On that same day, a state's witness, Gregory Capobianco, saw the defendant with a brown nylon stocking mask in his possession. The gun and the mask seen in the defendant's possession on May 6, 1984, were similar to those used by the robber on May 3, 1984.

I

The defendant's first claim of error is that the trial court's denial of his motions for a mistrial and for a new trial deprived him of his right to a fair trial by an impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. 3

Following summations by both counsel and before the court had given the jury instructions, one of the members of the jury requested a meeting with the trial judge. During this meeting in chambers, both counsel and the court reporter were present. At the meeting, the juror indicated that she had, on that day, noticed Domingo Astirazan, a friend of hers, in the courtroom. She related that Astirazan's family and her family were very close, that she and Astirazan worked together but not in the same building, and that he was a person whom she knew "very well." She stated that she had concluded from her observations of Astirazan in the courtroom that he was a friend of the defendant and that she was "shocked" at that thought. 4 In reference to Astirazan, the juror stated: "I am a little bit confused at this point because, I mean, in my sense, if that person--I cannot associate this person that I'm talking--I cannot associate this person to not a good person." When asked by the court if she could decide the case fairly despite her friend's apparent acquaintance with the defendant, the juror stated that she could do so. 5 The court instructed the juror to refrain from discussing the matter with the other jurors and excused her from chambers.

After the juror had left chambers, defense counsel indicated that he felt that the juror had already formed an adverse opinion of the defendant. After consultation with his client, defense counsel, in the absence of the jury, moved for a mistrial, claiming that the juror had "already arrived at a fixed opinion as to the guilt of my client." 6 The court denied the motion, finding that the juror had not made up her mind as to the guilt or innocence of the defendant and that even if she had, she had stated that her friend's acquaintance with the defendant "would in no way affect her deliberations in this case for or against the defendant...." Defense counsel took an exception. On October 28, 1985, the court denied the defendant's motion for a new trial which alleged, inter alia, that the defendant had been denied a fair and impartial jury. The defendant claims that the denial of these motions constitutes reversible error. We disagree.

The defendant argues that from the moment the juror saw her friend in the courtroom during summation, she formed an adverse opinion about the defendant and that the juror's "repeated" expressions of the "shock" she had experienced, upon realizing that the two men were acquainted, clearly indicated her adverse feelings about the defendant. The defendant also contends that any instruction relating to the premature formation of an opinion would be futile given "this particular juror's obvious inability to abide by the court's twice given admonition not to think about the merits of the case until after the court instructed the jury on the law...." 7 The defendant argues, therefore, that although his motion for a mistrial had been made after the substantial investment of valuable resources in a trial that was near conclusion, " ' "the right to an impartial jury ... dominated all other considerations" ' " and thus the court erred in failing to declare a mistrial. 8

" '[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors.' Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639 [1642], 6 L.Ed.2d 751 (1961)." State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985) 9; see Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975); State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). " 'Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the [c]onstitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.' " Irvin v. Dowd, supra, 366 U.S. at 724-25, 81 S.Ct. at 1643-44, quoting United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936). The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion. United States v. Tegzes, 715 F.2d 505, 509 (11th Cir.1983); United States v. Carlin, 698 F.2d 1133, 1135 (11th Cir.), reh. denied, 705 F.2d 471, cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983); United States v. Sears, 663 F.2d 896, 900 (9th Cir.1981), cert. denied sub nom. Werner v. United States, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982); State v. Ziel, supra. In exercising this discretion the trial court must zealously protect the rights of the accused. Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S.Ct. 844, 854-55, 83 L.Ed.2d 841 (1985).

This court has recognized that a defendant may lose the benefit of his right to a fair and impartial jury where the jury has been instructed that it may discuss the case prior to the time the case is submitted to it for deliberation. State v. Castonguay, 194 Conn. 416, 433, 481 A.2d 56 (1984); State v. Washington, 182 Conn. 419, 424-25, 438 A.2d 1144 (1980). Similarly, this court has held that where a potential juror has such a fixed and settled opinion in a case that he cannot judge impartially the guilt of the defendant, he should not be selected to sit on the panel. State v. Ziel, supra, 197 Conn. at 66, 495 A.2d 1050; State v. Potter, 18 Conn. 166, 174-75 (1846); see also Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). This court has also stated that " '[t]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.' State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983); State v. Bowen, 167 Conn. 526, 532, 356 A.2d 162 (1975)." State v. Ziel, supra, 197 Conn. at 65, 495 A.2d 1050; see also Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521-22, 94 L.Ed. 734, reh. denied, 339 U.S. 950, 70 S.Ct. 799, 94 L.Ed. 1364 (1950). With these principles in mind, we address the merits of the defendant's claim.

In challenging the competency of the juror to remain on the panel it was the defendant's burden to prove actual bias on behalf of the juror. See State v. Ziel, supra; State v. Bowen, supra, 167 Conn. at 532, 356 A.2d 162. While the juror was in chambers, the court inquired whether the relationship between her friend and the defendant would affect her decision on guilt or innocence. The juror stated that it would not and that she could decide the case impartially irrespective of the fact that her friend was an acquaintance of the defendant. After the juror had been excused from...

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