State v. Ellis

• Decision Date: 18 April 1995
• Docket Number: No. 14808,14808
• Parties: STATE of Connecticut v. Ricky ELLIS.
• Court: Connecticut Supreme Court

Page 1099

657 A.2d 1099

232 Conn. 691

STATE of Connecticut v. Ricky ELLIS.

No. 14808.

Supreme Court of Connecticut.

Argued Dec. 2, 1994.

Decided April 18, 1995.

Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., Warren Maxwell, Asst. State's Atty., and Rosita M. Creamer, Sr. Asst. State's Atty., for appellee (state).

Before CALLAHAN, BERDON, NORCOTT, KATZ and MARY R. HENNESSEY, JJ.

NORCOTT, Associate Justice.

The principal issue in this appeal is whether the defendant, Ricky Ellis, was deprived of his federal constitutional right to a jury selected from a fair cross section of the community. We conclude that the defendant has failed to establish such a violation and we therefore affirm the judgment of the Appellate Court. ¹

The defendant was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), ² and larceny in the first degree in violation of General Statutes § 53a-122(a)(3). ³ The trial court sentenced him to a total term of eight years imprisonment, suspended after three years, and three years probation with drug counseling. ⁴ The defendant filed posttrial motions for acquittal and for a new trial, both of which were denied.

Thereafter, the defendant appealed to the Appellate Court challenging the manner in which his jury panel was selected. The Appellate Court affirmed the convictions without opinion. State v. Ellis, 31 Conn.App. 923, 626 A.2d 1 (1993). We granted certification ⁵ and remanded the matter to the trial court for an evidentiary hearing as to the circumstances surrounding the selection of venirepersons in State v. Webb, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 89 371150 (September 12, 1991). The jurors in Webb were drawn from the same venire pool as the jurors in this case. ⁶ In particular, we asked the trial court to determine whether a supplemental panel, requested for the Webb trial, was selected randomly and if the panel was not selected randomly, whether the selection process in the Webb case impermissibly tainted the venire panel from which the defendant's jury was selected.

On remand, the trial court held an evidentiary hearing and the parties filed briefs on the factual issues presented. The trial court found the following facts: "At all times pertinent to this question, as well as the second question, in the Hartford-New Britain judicial district, venirepersons were summoned for a four week period of service with a new group of venirepersons reporting for service on each Tuesday.

* * *

"On May 15, 1991, State v. Webb was on trial. Mr. Webb was charged with capital felony in violation of General Statutes § 53a-54. On that date jury selection was proceeding before the Honorable Thomas H. Corrigan. Because of the nature of the case and the number of peremptory challenges, this case required a large number of venirepersons.

"Attorneys Fred DeCaprio and Ronald Gold had been appointed to represent Mr. Webb. On May 10, 1991, Mr. Webb began serving as his own attorney. On May 15, Webb was appearing pro se with attorneys DeCaprio and Gold as his stand-by counsel. DeCaprio and Gold had obtained a copy of a newly released census report which indicated that 10.2 percent of the population of Hartford county was black. The attorneys, as well as Mr. Webb, were concerned by the underrepresentation of black people on the panel of venirepersons assigned to the trial. The panel which they would be working with that day consisted of thirty-six persons, two of whom were black. [T]his was less than the percentage indicated in the census report.

"Prior to the opening of court on the fifteenth both attorneys met with Mr. Webb. They discussed the underrepresentation and it was decided that the problem should be presented to the judge prior to the start of voir dire. There is a question as to Webb's participation in this decision. At the very least he was aware of what the attorneys intended to do and he did not object. Later in court he did object to the chambers conference without his presence.

"At the request of Mr. Gold, a conference was held in chambers with Judge Corrigan. In attendance were attorneys DeCaprio and Gold as well as assistant state's attorneys Rosita M. Creamer and Dennis J. O'Conner who were prosecuting the case. At this conference DeCaprio and Gold raised the issue of underrepresentation of black people on the jury and stated that Mr. Webb was considering a challenge to the array.

"Ms. Diane Aviles was then a jury clerk for the Hartford-New Britain judicial district. Her duties included the drawing of names and the assembling of panels for voir dire using the procedure previously stated. At the chambers conference, with the attorneys present, Judge Corrigan called Ms. Aviles and inquired if there were any black jurors left in the assembly room. Ms. Aviles, who from her office could observe jurors in the assembly area, informed the judge that there appeared to be black jurors in attendance, but she could not tell if they were available. These were people who had been rejected or sent back from various juries....

"Attorney Gold stated to the judge that if there were additional black persons they could simply be added to the panel. He reported that this had been done in another case in which he had been involved.

"Judge Corrigan then initiated a second telephone call to Ms. Aviles concerning additional black venirepersons. Ms. Aviles informed Judge Corrigan that she could provide an additional panel, but she could not guarantee that it would include black persons. Judge Corrigan asked Ms. Aviles to do so. The judge then informed counsel of the situation including the fact that the supplemental panel might not include minority persons. ⁷

"Judge Corrigan's clerk, Lynne Williams, was then dispatched to the jury assembly room to get the supplemental panel. She observed Ms. Aviles assembling the panel by going to each individual juror rather than the usual procedure of calling the names and having the jurors report to her.

"The supplemental panel consisted of five venirepersons. Two members of the panel, Thomas Dukes and Jean Merrill were black. The supplemental panel was added to the panel which had been brought down for the morning. The voir dire oath was administered and the selection process in the Webb case resumed. Jean Merrill was selected for the case, Mr. Dukes was not.

"Although some of the above facts are in dispute, the essential facts are supported by a preponderance of the evidence. What happened was that the jury clerk at the request of the trial judge, in response to a complaint from [the] defendant concerning the racial makeup of the panel assembled a supplemental panel hoping that it would contain [prospective] black jurors. Except for notifying the jurors individually of their assignment to the case the usual procedure before noted was used by the jury clerk.

"This conclusion was confirmed by Judge Corrigan's statement on the record addressed to Mr. Webb after the panel was administered the oath and removed from the courtroom and is supported and not directly contradicted by Ms. Aviles' testimony in 1991. If Ms. Aviles simply desired to accommodate the judge and provide more black venireperson[s] as suggested by Mr. Gold she could have done so by sending black jurors only. This was not done.

"In answer to the specific question of the remand order it is found that additional venirepersons were selected for the case of State v. Daniel Webb, [supra, Docket] No. CR89 371150, in the hope that it would make more minority venirepersons available in that case. The selection was not made on a non-random racial basis, however." ⁸

The defendant raises two issues in this appeal. He first claims that African-American venirepersons were purposefully directed to the Webb trial, thus depriving him of his state and federal constitutional right to a jury selected from a fair cross section of the community. ⁹ He also claims that the trial court improperly instructed the jury on reasonable doubt and on the presumption of innocence.

I

The defendant claims that the trial court's finding that the selection of the supplemental panel in the Webb case was done in a random manner was clearly erroneous. Because we conclude that the trial court's factual findings were supported by the record, we disagree.

"The Sixth Amendment requires that the jury panels be drawn from a source representing a 'fair cross section' of the community in which the defendant is tried. Taylor v. Louisiana, 419 U.S. 522, 536 [95 S.Ct. 692, 700, 42 L.Ed.2d 690] (1975); United States v. LaChance, 788 F.2d 856, 864 (2d Cir.), cert. denied, 479 U.S. 883[, 107 S.Ct. 271, 93 L.Ed.2d 248] (1986).... [T]he Sixth Amendment guarantees the opportunity for a representative jury venire, not a representative venire itself. Roman v. Abrams, 822 F.2d 214, 229 (2d Cir.1987), cert. denied, 489 U.S. 1052 [109 S.Ct. 1311, 103 L.Ed.2d 580] (1989)." (Citation omitted.) United States v. Jackman, 46 F.3d 1240, 1244 (2d Cir.1995). In order to guarantee this right, Connecticut adopted General Statutes (Rev. to 1991) § 51-220a, ¹⁰ which requires that venire panels be randomly selected.

In order for a defendant successfully to challenge the composition of his jury array, the "defendant must prove that: (1) the group claimed to be excluded is distinctive in the community, (2) the representation of the group in the jury pool is not fair and reasonable in relation to the number of members of the group in the community, and (3) the underrepresentation is the result of systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364 [99 S.Ct. 664, 668, 58 L.Ed.2d 579] (1979)." United States v. Jackman, 46 F.3d at 1245-46; see also Practice Book § 842; ¹¹ State v....