State v. Esposito, 14012

• Decision Date: 04 August 1992
• Docket Number: No. 14012,14012
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James ESPOSITO.

Page 242

613 A.2d 242

223 Conn. 299

STATE of Connecticut v. James ESPOSITO.

No. 14012.

Supreme Court of Connecticut.

Argued April 30, 1992.

Decided Aug. 4, 1992.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, for appellant (defendant).

Harry Weller, Asst. State's Atty., with whom were James G. Clark, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

CALLAHAN, Associate Justice.

After a jury trial, the defendant, James Esposito, was convicted of the crimes of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134(a)(2) and burglary in the first degree in violation of General Statutes § 53a-101(a)(1). ¹ He was sentenced to an effective term of thirty years imprisonment. The defendant appeals from that judgment of conviction, claiming entitlement to a new trial because the trial court: (1) improperly denied his motions during jury selection to excuse certain venirepersons for cause; (2) improperly allowed the state to exercise some of its peremptory challenges in a racially discriminatory manner; and (3) improperly admitted certain evidence and excluded other evidence. We agree with the first of these claims and grant the requested relief. It is therefore unnecessary for us to consider the second claim. We discuss the third claim involving certain evidentiary rulings insofar as the same evidentiary issues are likely to arise at retrial. State v. Rinaldi, 220 Conn. 345, 359-60, 599 A.2d 1 (1991).

At trial the state presented evidence tending to establish the following. On September 5, 1988, at approximately 11:30 p.m., the defendant and another man, Brian Greco, entered the Hamden home of Robert and Joyce Bessinger, where the Bessingers, their young daughter and a guest, Robert Velardi, were present. While Greco accompanied Robert Bessinger, at gunpoint, upstairs to the room where the daughter was sleeping and where there were two safes containing valuables, downstairs the defendant stood guard over Joyce Bessinger and Velardi, whom Greco had ordered to lie face down on the floor. The defendant told them to remain still or he would "blow [their] head[s] off." Meanwhile, Greco removed some items from the safes and then, in the course of a struggle, shot Robert Bessinger three times, inflicting wounds that proved fatal. The defendant and Greco then fled the scene together. ²

The defendant offered contrary testimony at trial. He admitted being with Greco on the night in question, but stated that he had entered the Bessinger home after Greco and that he had done so not to aid Greco in the commission of the crimes but rather to try to rescue Robert Bessinger, a friend of his family, once he had realized what Greco was doing. The defendant testified that he had initially denied being at the crime scene when questioned by the police because Greco had threatened to kill him and to "get" his family if he told anyone about the crimes.

I

The defendant first claims that, during jury selection, the trial court improperly denied his motions to excuse four venirepersons for cause. This claim is properly before us because the defendant exhausted his peremptory challenges before jury selection had been completed. See State v. Vitale, 190 Conn. 219, 224-25, 460 A.2d 961 (1983); State v. Hoyt, 47 Conn. 518, 529 (1880).

Some background information is necessary for the proper analysis of this claim. On the first day of jury selection, the defendant challenged for cause a prospective juror named Norman Wium. The court overruled the challenge, and the defendant removed Wium by exercising his second peremptory challenge. On the fourth day of the voir dire, the defendant challenged another juror, Lisa Zarny, for cause. When that challenge for cause was overruled he exercised his eleventh peremptory challenge to remove her. Four days later, after the twelfth juror had been accepted and as the alternates were being selected, the defendant challenged another venireperson, William Demmons, for cause. When the court overruled that challenge, the defendant exercised his final peremptory challenge to excuse Demmons. ³ After the first alternate juror had been accepted, the defendant challenged another prospective juror, Richard Artkop, for cause. The trial court overruled the challenge for cause and denied the defendant's subsequent motion for an extra peremptory challenge. Consequently, Artkop become the second alternate juror. Jury selection was completed when a third alternate juror was chosen.

Before the trial began, the trial court excused one of the twelve jurors and proposed replacing that juror with the first alternate juror. Defense counsel objected to that method, stating, "I want it done in the way an alternate juror is always chosen, and that is throw [their names] in a hat, pick one out." When the prosecutor stated that he had no objection to that procedure, the court directed the clerk to select one alternate randomly. Artkop, the second alternate, was selected and then became a member of the jury that convicted the defendant.

The defendant argues that, although only one of the four persons challenged for cause actually sat on the jury that convicted him, he is entitled to a new trial if any one of the four should have been excused for cause because under such circumstances, the defendant would have had a peremptory challenge remaining to excuse Artkop, who was a juror in the case. The state does not dispute that general proposition, ⁴ but argues that, in this case, the defendant waived this claim with respect to all four individuals because he could have avoided having Artkop empaneled on the jury if he had acquiesced in the trial court's original plan to empanel the first alternate juror, whom both parties had accepted without controversy. The state contends that, by insisting that the replacement juror be selected randomly, resulting in the selection of Artkop for the jury, the defendant "manufactured" this claim and induced the very prejudice of which he now complains on appeal. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987) ("Action induced by [the defendant] cannot ordinarily be a ground of error."). We do not agree that the defendant's conduct constitutes a waiver of this claim.

General Statutes § 54-82h(c) provides in part: "If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun." (Emphasis added.) Although defense counsel did not specifically cite § 54-82h(c) when he requested that the replacement juror be selected by lot, the statute suggests, at least by analogy, that such a procedure be followed if the court has decided to empanel an alternate juror after the completion of jury selection. ⁵ Consequently, we agree with the defendant that under such circumstances he should not be faulted for insisting on a procedure that is arguably statutorily required. Indeed, had the trial court not followed the prescribed statutory procedure, the defendant might well have advanced an appellate claim on that basis. ⁶ See State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981) ("a trial court's failure to follow the mandatory provisions of a statute prescribing trial procedures is plain error"). Accordingly, we turn to the merits of the defendant's argument.

We focus first on the defendant's challenge to remove Lisa Zarny for cause because we find the claim with respect to Zarny to be dispositive. When first brought in for voir dire questioning, Zarny responded negatively when asked by the court whether she had thought of anything "bearing on [her] ability to be a fair juror in this case." In the course of defense counsel's questioning of her, Zarny stated that she lived on the same street where the Bessinger home is located and that she had lived there for approximately one and one-half years. She explained that the street is long and "L" shaped and that, because her home is toward one end of the "L," she knew the neighbors on that part of the street. When asked whether the names of any prospective witnesses were familiar to her, she replied affirmatively. The court then interjected to ask Zarny whether her proximity to the crime scene or any discussions she had had about the crime would compromise her ability to be a fair juror in the case. She said no.

Defense questioning then resumed. Zarny recalled reading several newspaper accounts about the incident at the Bessinger home and about the defendant's arrest in connection with it. She stated that, since she had moved to the neighborhood only a short time before the crimes were committed, "it was a shock" to her when she heard about the incident for the first time. Defense counsel then said, "And what is obviously going through my mind is you live on the street where the murder took place, and it sounds on the face of it that you would have a peculiar interest in this case because of that. Is that a fair statement? " (Emphasis added.) Zarny replied, "That's a fair statement." (Emphasis added.) Upon further questioning, Zarny stated that she had discussed the case with her husband and that together they had formed an opinion that the murder was drug-related. When asked whether she had formed any opinion about the defendant's involvement in the murder she responded that she had not. In response to defense counsel's inquiry about why Zarny had not mentioned her proximity to the crime scene and familiarity with the case when asked by the court whether anything...