State v. Delgado

• Decision Date: 29 July 1986
• Docket Number: No. 2718,2718
• Citation: 8 Conn.App. 273,513 A.2d 701
• Parties: STATE of Connecticut v. Samuel DELGADO.
• Court: Connecticut Court of Appeals

Page 701

513 A.2d 701

8 Conn.App. 273

STATE of Connecticut v.Samuel DELGADO.

No. 2718.

Appellate Court of Connecticut.

Argued April 11, 1986.

Decided July 29, 1986.

Francis T. Mandanici, New Haven, with whom, on brief, was Richard L. Goldblatt, Hamden, for appellant(defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., Patrick J. Clifford, Asst. State's Atty., and Richard Palomba, Legal Intern, for appellee(state).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

DUPONT, Chief Judge.

After a trial to a jury, the defendant was convicted of the crime of manslaughter in the first degree, a violation of General Statutes §§ 53a-55(a)(1) and (3).On appeal, the defendant claims that the trial court erred: (1) in giving unrecorded instructions, in a jury indoctrination session held the day before the defendant's trial began, to all jurors who had been summoned for jury duty; (2) in excluding evidence concerning protection sought by the defendant from the victim; (3) in excluding evidence about the defendant's previous approval of the victim's application for accelerated rehabilitation; (4) in restricting the cross-examination of the prosecution's key witness as to her knowledge of the victim's reputation for violence; (5) in allowing the introduction of a photograph of the victim dressed in a tuxedo; and (6) in admitting the testimony of a rebuttal witness who claimed that the victim told her three months prior to the stabbing that he was afraid of the defendant.

The jury reasonably could have found the following relevant facts based upon the evidence presented.At the time of the incident, the defendant was fifty-one years of age and the victim was nineteen.The two parties had a history of "bad blood" between them, which included the exchange of threats and acts of violence.The victim had previously been arrested for assaulting the defendant's daughter, the victim's former girlfriend.

Approximately one year after that assault, the defendant became engaged in an altercation with the victim at the entrance of a bowling alley.Blows were exchanged, and the defendant received five to six hits to his head which necessitated subsequent medical attention.During the course of the struggle, the defendant stabbed the victim in the chest with a knife, causing his death.The defendant claimed that he had acted in self-defense.

I

The defendant's first claim of error is that the trial court's indoctrination of potential jurors prior to the commencement of the trial violated his constitutional rights to an impartial jury, to have counsel present at "important" proceedings, and to have a public trial.He also claims that the failure to record the indoctrination remarks interfered with his appellate rights.Such indoctrination of jurors is routinely given on the day that they report for jury duty, and consists of preliminary instructions which outline their primary duties and responsibilities.Neither the prosecution nor defense counsel is ordinarily present during such indoctrination procedure, and the proceedings are not usually recorded or transcribed.¹The defendant failed to object to the indoctrination process at trial.Although the defendant concedes that this issue was not properly raised at trial, he argues that it is nonetheless reviewable because it involves fundamental constitutional rights.SeeState v. Evans, 165 Conn. 61, 327 A.2d 576(1973).

A three pronged analysis must be undertaken in an Evans review.State v. Cosby, 6 Conn.App. 164, 167, 504 A.2d 1071(1986).That analysis necessarily includes consideration of "(1) whether the record supports the defendant's claim that the trial court's action raises a question of fundamental constitutional dimension; (2) if so, whether the trial court's action was erroneous; and (3) if there was error, whether it requires reversal."Id.;see alsoState v. Grant, 6 Conn.App. 24, 27, 502 A.2d 945(1986).If the first test is not met, the issue is not reviewable under Evans and it is not necessary to reach the analysis required by the other two tests.Our first inquiry, therefore, centers upon a determination of whether the record in this case supports the defendant's claim that the indoctrination of the jury raises an issue of constitutional dimensions.

It is undisputed that the rights enumerated by the defendant concerning the right to an impartial jury, the right to have counsel present at critical stages in the criminal proceedings against him, and the right to an open court and public trial are all fundamental constitutional rights guaranteed by the federal and state constitutions.Merely because the defendant asserts these constitutional rights, however, does not necessarily mean that such constitutional rights are in fact involved in a particular case.It is not unknown for a defendant on appeal to "put a constitutional tag on a nonconstitutional claim."State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956(1985).Appellate counsel has sufficiently reconstructed the record for purposes of review under the first test of Evans.A review of that record indicates that the trial judge made general comments regarding the general duty and obligations of the jurors, as well as general remarks regarding the burden of proof.²There is not even a hint of prejudice to this particular defendant demonstrated in the court's reconstruction of its remarks.

Although the record is sufficient for review, the second half of the first part of Evans test has not been met.No fundamental constitutional right is involved.The defendant claims that the jury indoctrination deprived him of an impartial jury panel because the court's statements were improper ex parte communications between the judge and members of the jury panel.He relies on State v. Altrui, 188 Conn. 161, 182, 448 A.2d 837(1982).That case, however, provides him no support.There, during the trial, the court met privately with one juror.Here, the court spoke to all prospective jurors before any one of them had been assigned to any particular case.At this stage, the trial judge had no realistic way of knowing which jurors would be selected for the defendant's trial.Moreover, because such indoctrination occurs before the trial begins, the potential for prejudice is greatly diminished in light of the instructions given to the jury by the trial judge in open court subsequent to the indoctrination.The possibility of the survival of any prejudicial remark is slight.SeeJones v. State, 482 N.E.2d 243, 245(Ind.1985).

A review of other jurisdictions which have considered this issue supports this conclusion.The prevailing rule of law that has emerged regarding jury indoctrination is that such unrecorded remarks made to potential jurors at an indoctrination proceeding in which neither the defendant nor defense counsel are present is not prejudicial or a deprivation of a defendant's constitutional right to an impartial jury.See e.g., People v. Izzo, 14 Ill.2d 203, 151 N.E.2d 329(1958);Jones v. State, supra;Brown v. State, 29 Md.App. 1, 349 A.2d 359(1975);State v. Stroud, 683 P.2d 459(Mont.1984);State v. Vance, 162 W.Va. 467, 250 S.E.2d 146(1978).The rationale behind this principle is that "[n]o litigant has a right, constitutional or otherwise, to have his case tried before ignorant jurors.To acquaint the juror with his duties and responsibilities in a new environment and to increase his understanding of the processes of a trial can hardly be objectionable in itself."People v. Izzo, supra, 151 N.E.2d at 334.³

In light of these principles, the defendant's claim that his fundamental constitutional right to an impartial jury is involved is not supported and an Evans review is not required.

The defendant also asserts that the jury indoctrination procedure is reviewable under Evans because it involves a deprivation of his constitutional right to be present with the assistance of counsel at an important stage of his trial.The record reveals that the defendant was not present at the indoctrination.The constitutional right to be present in court with the assistance of counsel under the sixth amendment applies only to certain crucial proceedings.SeeState v. Falcon, 196 Conn. 557, 561, 494 A.2d 1190(1985).There is no violation of the sixth amendment, however, when the accused and counsel are not present at noncritical stages "since there is minimal risk that ... absence at such stages might derogate from [a defendant's] right to a fair trial."United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149(1967).The jury indoctrination proceeding does not constitute a critical stage of the criminal process against a defendant, nor has his trial even begun.⁴See, e.g., Brown v. State, supra, 349 A.2d at 363;State v. Vance, supra, 250 S.E.2d at 151.

Equally without merit is the defendant's claim that he has been denied a constitutional right to an open and public trial through the use of the indoctrination procedure.Contrary to the assertions of the defendant, the trial that the defendant received was both open and public, which is all that the constitution requires.A defendant has no constitutional right to an open and public jury indoctrination, a noncritical stage of the defendant's trial.We are precluded, therefore, from reviewing this claim of constitutional deprivation under the first test of Evans.

Neither will we review the defendant's claim that the unrecorded jury indoctrination proceeding deprived him of a full record and transcript in order to pursue his appeal.There is no constitutional right to appeal; rather, a right to appeal exists only if one has been created by statute.Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084(1984).

Without issues of constitutional dimensions required by the Evans bypass, we will not consider the defendant's first claim of error.

II

The defendant's next claim of error...