State v. Haskins

• Decision Date: 21 September 1982
• Citation: 450 A.2d 828,188 Conn. 432
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James HASKINS. STATE of Connecticut v. Michael ALSTON.

Page 828

450 A.2d 828

188 Conn. 432

STATE of Connecticut v. James HASKINS.

STATE of Connecticut v. Michael ALSTON.

Supreme Court of Connecticut.

Argued June 9, 1982.

Decided Sept. 21, 1982.

[188 Conn. 433] John R. Williams, Sp. Public Defender, for appellant-appellee (defendant Haskins).

[188 Conn. 434] David N. Rosen, Special Public Defender, with whom, on the brief, was Edward J. Dolan, New Haven, for appellant-appellee (defendant Alston).

William F. Gallagher, Sp. Asst. State's Atty., with whom were Maureen T. Platt, Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., for appellee-appellant (State).

Before PETERS, PARSKEY, SHEA, DALY and COVELLO, JJ.

PARSKEY, Associate Justice.

In a four count information, the defendant, James Haskins, and his codefendants, Michael Alston and Harold Simmons, were charged in the first count with robbery while armed with a deadly weapon, in the second and third counts with assault in the first degree and in the fourth count with kidnapping in the second degree. The first counts were dismissed as against Haskins and Alston and the state has appealed. In a joint trial to the jury with their codefendant Simmons, Haskins and Alston were acquitted of the kidnapping charge and convicted of the two assault charges. In his appeal Haskins raises challenges with respect to (1) the jury array; (2) the pretrial incarceration; (3) nondisclosure of electronic surveillances; (4) curtailment of jury voir dire; (5) denial of jury voir dire with respect to certain publicity; (6) denial of severance of joint trial; (7) admission of certain evidence; (8) limitation of cross-examination; (9) prosecutor's summation; and (10) sufficiency of the evidence. Alston in his appeal challenges (1) the exclusion of an extrajudicial statement by a witness for the state; (2) joinder of his trial with those of Haskins and Simmons; and (3) the jury array. We shall address first the appeals of the several defendants, after which we shall discuss the state's appeal in both cases.

FACTUAL SETTING

The jury reasonably could have believed the following facts: On May 3, 1974, a robbery, in which Haskins, Alston and Simmons were participants, occurred at the New Haven Savings Bank in the Westville section of New Haven. Officer William Bradley, the first officer to arrive on the scene, was shot in the chest and arm by one or more of the bank robbery participants as he exited his police car. Although wounded and helpless, Bradley was once again shot as he sought cover and sustained another wound to the chest. Bradley subsequently After the shooting incident involving Bradley, the defendants fled in a taxicab holding a gun to the cab driver's head. After a gun battle with police, the defendants left the cab and scattered. Haskins and Alston entered 703 George Street, New Haven. Although called upon by police to surrender, the defendants responded with gunfire during the course of which Officer Lawrence Cramer was struck by a bullet in his left thigh. Another police officer, Officer Giannotti, was struck in the face by a piece of wall plaster after having been narrowly missed by a bullet landing only inches from his head. Haskins and Alston subsequently surrendered. Police officers recovered several weapons and a large quantity of ammunition including a .357 magnum revolver and a .38 caliber revolver. Several spent shell casings from these weapons were also found. The money from the bank was also recovered on a backyard fence at 703 George Street.

underwent surgery and eventually recovered.

Haskins, Alston and Simmons were arrested pursuant to a state bench warrant. Shortly thereafter the three were indicted on federal bank robbery charges and were tried, convicted and sentenced in the United States District Court for the District of Connecticut to long terms of imprisonment. Following the imposition of sentence in federal court Haskins, Alston and Simmons were brought to trial in Superior Court in relation to the same incident. Upon conviction Haskins and Alston were each sentenced to terms of not less than ten nor more than twenty years imprisonment, the sentences to run consecutively with the federal sentences.

HASKINS' APPEAL

I CHALLENGE TO THE JURY ARRAY

The defendant Haskins claims that the county jury commission violated his right to a jury drawn from a fair cross-section of the community by excluding particular groups from the jury array. "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 underrepresentation is due to 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); State v. Frazier, 185 Conn. ---, --- (43 CLJ 6, pp. 16, 17) 440 A.2d 916 (1981); State v. Machia, 38 Conn.Sup. 407, 412, 449 A.2d 1043 (1979).

The defendant has failed to show that ten of the twelve groups claimed by him to have been excluded meet the first prong of the prima facie test: (1) naturalized citizens opposed to the present form of government in the United States; (2) voters with arrest records; (3) people living in apartments or not listed in the city directory; (4) people with insufficient formal education; (5) the elderly; (6) clergy; (7) teachers; (8) students; (9) low-income persons; (10) people in particular neighborhoods. Binding authority addressing constitutional claims to the jury array ¹ has thus far recognized as cognizable groups only blacks; Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); women; Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Mexican-Americans in Jackson County, Texas; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); and Puerto Ricans in Fairfield County, Connecticut. State v. Villafane, 164 Conn. 637, 645, 325 A.2d 251 (1973).

Cases from other jurisdictions cited in the defendant's brief which have found The defendant has not made the requisite showing of cohesiveness to render these ten categories cognizable groups within New Haven County. With regard to clergy, the elderly, certain naturalized citizens, teachers, and students, the defendant has advanced a theory of cognizability based on percentages of the population and nothing more. With regard to voters with arrest records, people excluded from the city directory and apartment dwellers, people without sufficient formal education, and people residing in certain neighborhoods, we cannot accept the defendant's theory that decisions finding unlawful discrimination against such people in other contexts, without more, render them cognizable as groups for purposes of a challenge to a jury array. With regard to low-income persons excluded because of the statutory reliance on voting lists on which the names of such persons do not appear because they have not registered, this court has already upheld the constitutionality of this procedure. State v. Brown, 169 Conn. 692, 698, 364 A.2d 186 (1976); State v. Townsend, 167 Conn. 539, 547, 356 A.2d 125, cert. denied 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975).

                some of the ten foregoing groups "cognizable" for purposes of challenges to the jury array have done so categorically and without reasons persuasive to us.   See, e.g.,  State v. Cage, 337 So.2d 1123 (La.1976) (geographic location);   Commonwealth v. Bastarache, 409 N.E.2d 796 (Mass.App.1980) (the elderly);   State v. Jenison, 405 A.2d 3 (R.I.1979) [188 Conn. 438] (teachers and students).   We think the better view is to find such groups cognizable only upon a showing, not made here by the defendant, that the group has "a definite composition.   That is, there must be some factor which defines and limits the group.   A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected.   Secondly, the group must have cohesion.   There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process.   Finally, there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved.   That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace."   United States v. Guzman, 337 F.Supp. 140, 143-44 (S.D.N.Y.1972) (certain age groups are not cognizable groups);  see also  United States v. Marcano, 508 F.Supp. 462, 469 (D.P.R.1980) (working class people as a concept is "too ambiguous and loose" to constitute a cognizable group);  compare  Hernandez v. Texas, supra, 347 U.S. at 479-80, 74 S.Ct. at 671 (proof of cognizability based on community attitudes)
                

With respect to blacks and women, we recall our point made earlier that these groups are deemed "cognizable" for purposes of challenges to the jury array. See Carter v. Jury Commission, supra (blacks); Taylor v. Louisiana, supra (women). We proceed, therefore, to address the issue of whether the defendant has satisfied the second point of the Duren test, namely, whether representation of the group on the array was fair and reasonable when compared proportionately to the number of eligible people in the group.

The evidence presented by the defendant relating to blacks is insufficient to meet the second prong of the prima facie test. His statistics relate generally to nonwhites rather than to blacks as a cognizable group. His references to the "disproportionate" number of blacks with arrest records,...