State v. Frazier

• Decision Date: 11 August 1981
• Court: Connecticut Supreme Court
• Parties: , 7 Media L. Rep. 1854 STATE of Connecticut v. Larry FRAZIER.

Page 916

440 A.2d 916

185 Conn. 211, 7 Media L. Rep. 1854

STATE of Connecticut v. Larry FRAZIER.

Supreme Court of Connecticut.

Argued May 5, 1981.

Decided Aug. 11, 1981.

Jerrold H. Barnett, Public Defender, with whom was Clement F. Naples, Deputy Chief Public Defender, for appellant (defendant).

Donald A. Browne, State's Atty., for appellee (state).

Before SPEZIALE, PARSKEY, SHEA, ASPELL and HENNESSY, JJ.

SHEA, Associate Justice.

The defendant was found guilty by a jury on all counts of a thirteen-count information charging him with rape in the first degree (four counts) in violation of General Statutes § 53a-72(a)(1); ¹ deviate sexual intercourse in the first degree (three counts) in violation of General Statutes § 53a-75(a) (1); ² burglary in the first first degree (one count) in violation of General Statutes § 53a-101(a)(1); larceny in the first degree (one count) in violation of General Statutes § 53a-119 and § 53a-122(a)(2); and unlawful restraint in the first degree (four counts) in violation of General Statutes § 53a-95(a). In his appeal from the judgment of conviction the defendant raised four issues in his original brief: (1) whether his rights of trial by jury and of equal protection of the laws were infringed because the array of prospective jurors available for selection of the trial jury was allegedly not composed of a fair cross-section of the community; (2) whether certain statements of the defendant admitted in evidence were obtained in violation of the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (3) whether the court should have given a curative instruction or followed some other procedure to minimize the possible prejudice which may have been caused by an objectionable question asked by the prosecutor; and (4) whether some of the crimes charged in the information, which all arose out of the same incident, were merged. The defendant also raised a fifth issue in a supplemental brief which he filed, whether his right to a fair and public trial was violated by the order of the court excluding the public during the testimony of the victim of the sexual assaults.

The defendant does not question the sufficiency of the evidence to support the guilty verdicts. Our summary of the facts relating to the commission of the crimes which the jury might reasonably have found is abbreviated accordingly.

On Sunday, November 17, 1974, at about 11 a. m. the victim of the sexual assaults, her husband and their two young children returned to their home in Westport after attending church services. When the family entered the kitchen they were confronted by the defendant who was pointing a rifle at them. He directed the four members of the family to lie face down on the kitchen floor and caused their hands to be tied behind their backs. He removed the wallet of the husband from a pocket of his pants. Threatening the others not to move, he ordered the wife to go with him to an upstairs bedroom. There he committed various sexual assaults upon her as charged in the information. The defendant then went downstairs to the kitchen where he proceeded to place the two young children inside a kitchen closet. He returned to the bedroom upstairs and again sexually assaulted the wife. After binding her hands and feet once more, he went back to the kitchen and requested the keys of the car from the husband. The defendant then started the automobile, but he returned to the house and attempted to place a telephone call. He also proceeded to take various items from the dining and living rooms, filling a pillow case with some of the objects and placing it on the kitchen floor. He again went upstairs to the bedroom and committed another series of sexual assaults upon the victim. He also removed from her person two rings and a necklace. He returned to the kitchen where he picked up the pillow case and proceeded to leave the driveway in the car belonging to the family.

The husband was able to free himself soon after the defendant left. He untied his wife and children and then called the police. A Westport police officer who was sent in response to the call observed a man, whose description corresponded to that he had received, just starting to drive a car away from the curb of a street near the home of the complainant. When the officer followed, the other vehicle turned into a driveway and the defendant got out and started to run. The officer pursued him across several properties along the shoreline until the defendant entered the water, where he remained until other police officers arrived and took him into custody.

A blue suit jacket belonging to the husband, which the defendant wore as he exited the car but discarded during the chase, was retrieved. A gasoline can taken from the residence was found in the car he had been seen operating. The family automobile, containing numerous items taken from the house, was found abandoned about one-tenth of a mile from where the officer had observed the defendant starting to drive his car away from the curb.

I

On the morning assigned for the commencement of the selection of the trial jury a new group of jurors was scheduled to begin service at the Fairfield County courthouse in Bridgeport. Of those summoned, many of whom were excused without coming to the courthouse for medical reasons, 189 appeared and went through the usual indoctrination procedure. An additional 77 persons were excused during this process, leaving 112 potential jurors available for service in criminal trials.

The defendant's attorney, after observing the group of jurors available for service, raised a claim that the small number of black persons he saw was an indication of discrimination which would be prejudicial to the defendant, a black man. The trial judge allowed the defendant some time to investigate the matter further.

The next day the defendant filed a motion to "quash and/or strike the jury panel" on the ground that there had been systematic exclusion of black people from "the list of prospective jurors from which the present panel was drawn" in violation of his rights to equal protection and due process of law under the federal and state constitutions. A hearing was held upon the motion at which the jury clerk testified that, of the 112 prospective jurors available for criminal trials, seven or 6.28 percent appeared to be black. Copies of the 1970 census data for each municipality in Fairfield County were also submitted. From these exhibits the trial court made certain findings by arithmetical computation but failed to make others which the defendant sought in his draft finding. ³ We need not discuss the corrections in the finding which the defendant requests in this appeal because he does not claim that the slight difference between the 6.28 percent representation of blacks on the jury array available for the trial of his case and the 7.1 percent black composition of Fairfield County, as found by the trial court, has any significance.

Except for inferences which the defendant seeks to draw from the statistical data, there is no evidence of purposeful discrimination on the part of officials in charge of compiling the jury list or summoning those selected. The defendant claims to have made out a prima facie case of a violation of the requirement that juries be drawn from a fair cross-section of the community in accordance with the standards established for statistical proof of such a claim in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process." Id., 364, 99 S.Ct. at 668.

It cannot be doubted that the first of these criteria has been fulfilled. Black people are a classic example of a "distinctive" group as has been held for more than a century. Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1880); see Hernandez v. Texas, 347 U.S. 475, 477-480, 74 S.Ct. 667, 669-671, 98 L.Ed. 866 (1954).

The defendant appears to recognize that his challenge to the jury array founders on the second requirement, that the defendant show a significant disparity in the proportion of blacks on the panel under scrutiny as compared to the general population of Fairfield County. Attributing no significance to the .85 percent differential between these percentages, the defendant now seeks to eliminate from the computation those towns in which black people form only a minuscule portion of the population. In effect, he claims that a black defendant is entitled to a jury array drawn from only those municipalities which have a substantial black population. This claim was not raised at trial but, since it has constitutional ramifications and the census data upon which it is based is not disputed, we may consider it. State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). "From time immemorial in this state, the community unit which is the basis for the source of a jury array is that of a county, in this instance, Fairfield County." State v. Townsend, 167 Conn. 539, 551, 356 A.2d 125 (1975). We are not aware of any authority holding that some narrower political unit where particular minorities might have greater proportionate strength must be used as the "community" to which the fair cross-section standard should be applied. It is not claimed that there has been any manipulation of political boundaries designed to minimize the representation of black people on juries. See White v. Regester, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 2339-2341, 37 L.Ed.2d 314 (1973). Absent such an...