State v. Fritz, 12636

• Decision Date: 23 June 1987
• Docket Number: No. 12636,12636
• Citation: 527 A.2d 1157,204 Conn. 156
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Harvey FRITZ.

Page 1157

527 A.2d 1157

204 Conn. 156

STATE of Connecticut v. Harvey FRITZ.

No. 12636.

Supreme Court of Connecticut.

Argued April 8, 1987.

Decided June 23, 1987.

Shelly R. Sadin, with whom was Jacob D. Zeldes, Bridgeport, for appellant (defendant).

Robert J. Murphy, Sp. Deputy Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Julia DiCocco Dewey and Thomas V. O'Keefe, Jr., Asst. State's Attys., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and MORAGHAN, JJ.

CALLAHAN, Associate Justice.

The dispositive issue in this appeal is whether the trial court erred in restricting the scope of questioning during the voir dire examination of the potential jurors. By substitute information, the defendant, Harvey Fritz, a licensed physician specializing in internal medicine and cardiology, was charged with prescribing a controlled substance to another person in a manner not authorized by chapter 417 of the General Statutes, in violation of General Statutes §§ 21a-277(a) ¹ and 21a-252(a) ² (formerly chapter 359, General Statutes §§ 19-480[a] and 19-460[a]. Following a trial to a jury, the defendant was found guilty, and was subsequently fined $3000 and sentenced to a term of imprisonment of four years, execution of such sentence suspended after nine months. He was placed on probation for a period of five years, and ordered not to carry on any activities that require a license to dispense narcotics or to practice medicine or surgery. After the court rendered judgment, the defendant took this appeal.

The relevant facts are as follows: In 1968, the defendant began treating Barbara Gorman, the patient for whom he was accused of illegally prescribing medication. Gorman was under the care and treatment of the defendant for approximately thirteen years, and during that time had numerous medical problems. As a result of a 1975 injury to her back, Gorman developed chronic back pain. She underwent a series of unsuccessful operations in an attempt to alleviate her pain and finally, in 1977, the defendant began prescribing Demerol, a narcotic, to ease the pain emanating from her back. The Demerol was prescribed in liquid form and taken by intramuscular injection. From 1978 to 1981, the dosage and frequency of Demerol prescribed for Gorman increased steadily. She was also consuming a number of other medications for various medical conditions.

In the spring of 1981, the defendant referred Gorman to a pain specialist, Arthur Taub. Because of the potential for addiction and overdose associated with Demerol, Taub discontinued Demerol, and prescribed Methadone. Taub also contacted the defendant and requested that he discontinue prescribing Demerol for Gorman. For the next few months, Gorman remained on medication prescribed by Taub, without any prescriptions for Demerol from the defendant. On July 10 and 16, 1981, apparently after Gorman had run out of her Methadone prescription, the defendant prescribed two grams of Demerol for her. On both dates, Taub was available to prescribe Methadone but, for whatever reason, was not contacted. Gorman died in an automobile accident on July 17, 1981. Autopsy results indicated that the amount of Demerol in her blood was ten times the normal therapeutic level.

On appeal, the defendant claims that the trial court erred in: (1) restricting the voir dire examination of the prospective jurors; (2) admitting irrelevant testimony concerning the circumstances of Gorman's death and the investigation of the accident in which she was killed; (3) shifting to the defendant the burden of proof on the issue of whether the defendant had acted in good faith and in the course of his professional practice; and (4) denying the defendant's motion to dismiss the information on the basis of collateral estoppel. We find error on the defendant's first claim and on part of his second claim, and therefore remand the case for a new trial.

I

During the voir dire, defense counsel sought to question the first and second members of the venire to determine whether they believed that the testimony of a police officer or a law enforcement person is entitled to more weight or credibility than that of any other person simply because of their status. The court refused to allow this line of questioning. The trial court, noting the defense counsel's exceptions, stated that if similar questions were asked of future venire members his rulings would be the same. The defendant claims that the trial court violated his constitutional right to conduct a voir dire examination of prospective jurors by restricting his questioning on this issue. We agree.

Section 19 of article first of the Connecticut constitution, as amended by article IV, ³ states in pertinent part: "In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law." In addition, General Statutes § 54-82f ⁴ provides the right to a voir dire examination of each prospective juror in a criminal action. It is firmly established therefore that "[t]he right to question each juror individually by counsel shall be inviolate." See, e.g., State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987); Lamb v. Burns, 202 Conn. 158, 162, 520 A.2d 190 (1987); State v. Hill, 196 Conn. 667, 671-72, 495 A.2d 699 (1985). The extent of the voir dire examination rests largely within the discretion of the trial court, and the exercise of such discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted. State v. Dolphin, supra; State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Haskins, 188 Conn. 432, 447, 450 A.2d 828 (1982); State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976); cf. State v. Smith, 10 Conn.App. 624, 638, 525 A.2d 116 (1987). Nevertheless, in exercising its discretion, the court should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. State v. Rogers, supra; State v. Haskins, supra, 188 Conn. at 446, 450 A.2d 828. Therefore, " 'if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.' " State v. Rogers, supra, 197 Conn. at 318, 497 A.2d 387.

We have recently had the opportunity to address the issue of whether the restriction of questions to prospective jurors concerning their possible predisposition to give additional weight to a police officer's testimony solely because of his official status constitutes reversible error. See State v. Dolphin, supra; State v. Rogers, supra; State v. Hill, supra. In State v. Dolphin, supra, 203 Conn. at 515, 525 A.2d 509, we held that "[t]he police officers' testimony was crucial in establishing the state's case ... the defendant had the right to attempt to ascertain whether a juror might be more, or less, inclined to credit their testimony solely because of their official status." See also State v. Rogers, supra; State v. Hill, supra.

The state argues that the holdings in Hill and Rogers do not stand for the proposition that a trial court's refusal to allow a particular question during voir dire is reversible error per se. Rather, the state contends that we must assess the claim of error in the context of the entire voir dire to determine whether the defendant was afforded a sufficient opportunity to expose juror bias or prejudice in general. It argues that an examination of the entire voir dire may reveal extensive questioning concerning juror bias and partiality and whether potential jurors were acquainted with or related to law enforcement officials, and that such questioning would provide a sufficient basis for this court to determine that the means employed to test juror impartiality created a reasonable assurance that prejudice would have been discovered if present. ⁵ We agree that Hill Rogers, and more recently, Dolphin, do not establish a per se error standard for the disallowance of a particular question during voir dire. Although we agree with the state's contention that we must examine the defendant's claim of error in the context of the entire voir dire, we are not persuaded that the erroneous ruling was harmless.

We stated in State v. Hill, supra, 196 Conn. at 672-73, 495 A.2d 190, that "[w]hen important testimony is anticipated from certain witnesses whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination should be permitted.... It was of vital importance to the defendant that if any such inclination existed it be brought to light. [A defendant is] entitled to explore this area of possible disqualification prior to the impaneling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge. State v. Higgs, [143 Conn. 138, 144, 120 A.2d 152 (1956) ]." (Emphasis added. Citations omitted.) From this perspective, we conclude that general questions during voir dire concerning a juror's bias and impartiality and his relationships to law enforcement officials, would not necessarily expose whether a juror has a tendency to believe or disbelieve or give more weight to such officials because they are persons of authority, or enable the defendant to exercise intelligently his right of peremptory challenge.

The state also contends that unlike the situation in State v. Hill, supra, the state's case-in-chief in this matter rested...