State v. Hernandez

• Citation: 204 Conn. 377,528 A.2d 794
• Decision Date: 14 July 1987
• Docket Number: No. 12526,12526
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Heriberto HERNANDEZ.

Page 794

528 A.2d 794

204 Conn. 377

STATE of Connecticut v. Heriberto HERNANDEZ.

No. 12526.

Supreme Court of Connecticut.

Argued April 1, 1987.

Decided July 14, 1987.

Robert F. McWeeny, with whom, on brief, was Helen Apostolidis, Hartford, for appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on brief, were Michael Dearington, Asst. State's Atty., and Alok Ahuja, Legal Intern, for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, BORDEN and FORD, JJ.

CALLAHAN, Associate Justice.

The defendant was arrested on January 6, 1983, and charged with felony murder in violation of General Statutes § 53a-54c, arson in the first degree in violation of General Statutes § 53a-111(a)(1), and burglary in the first degree in violation of General Statutes § 53a-102(a). Following a trial to a jury, he was found guilty on all counts and was subsequently sentenced to a total effective sentence of sixty years imprisonment. The defendant then took this appeal.

The jury could reasonably have found the following facts: On January 1, 1983, at approximately 5:50 a.m., a fire was reported in progress at an apartment located in a building at 40 Cedar Street, Meriden. Firefighters arrived at the scene shortly thereafter and, upon entering the apartment, found thick, black smoke primarily concentrated in the rear of the apartment. While attempting to extinguish the fire, they heard a female calling for help. In the bedroom of the apartment they discovered an elderly woman who had been tied at her wrists and feet with electrical appliance cords. While the woman was telling the firefighters that she had been attacked by an intruder, they noticed that she had what appeared to be a knife wound on her side, and an injury to her head. During an investigation of the scene, a hammer was found near the apartment in the hallway, knives were found on the bedroom floor, and the walls of the apartment were observed to be stained with blood.

The victim was admitted to Meriden-Wallingford Hospital at approximately 6:30 a.m., and was pronounced dead shortly thereafter. An examination at the hospital revealed that she had three major wounds, one resulting from a blow to the head, and two stab wounds to her body. Although she had suffered from smoke inhalation, the three wounds caused her death. On January 6, 1983, while the defendant was being held in lieu of bond on an unrelated charge, the Meriden police department interviewed him concerning the present case. The interview resulted in two inculpatory statements by the defendant, and, as a result, he was arrested for the charges involved in this appeal. Other facts will be discussed as they become relevant to the defendant's claims of error.

On appeal, the defendant claims that the trial court erred in: (1) restricting the voir dire examination of the prospective jurors; (2) denying the defendant's motion to dismiss the felony murder count on the ground that General Statutes § 53a-54c, the felony murder statute, is unconstitutional; (3) excluding from evidence the confession of a third party; and (4) admitting into evidence the defendant's confession.

We find no reversible error.

I

The defendant first claims that the trial court erred in restricting the scope of voir dire examination by refusing to permit defense counsel the opportunity to inquire of prospective jurors: (1) whether they would be able to exclude feelings of sympathy toward either the prosecution or the defense; and (2) whether they would be inclined to attach greater weight to the testimony of law enforcement officers solely because of their status. He claims that those restrictions constitute reversible error since they violated his statutory and constitutional right to conduct a voir dire examination of prospective jurors. We disagree.

During the voir dire of the first venireperson, defense counsel asked: "Do you think you'll be able to follow the judge's instructions that police officers deserve no more--." The trial court interrupted the question and informed defense counsel that the question was not allowed. Defense counsel took an exception to the court's ruling and requested permission to argue his reasons for such an inquiry. The trial court denied the request for an argument, and defense counsel duly excepted. Prior to the examination of the next prospective juror, defense counsel again sought the trial court's permission to explain on the record his reasons for inquiring with respect to the testimony of police officers, and again the trial judge denied the request. Defense counsel then asked the next prospective juror: "Now, from what the judge said do you understand and are you able to follow his instructions that sympathy in favor of Mr. Hernandez or his father who is here or this woman or for her son or her family has no place in this case ... based on evidence you hear in court?" The trial court held this to be an improper question, and an exception was taken by defense counsel. A similar question was asked of the next prospective juror, and the court disallowed it as well. Thereafter, the judge instructed both counsel in chambers that he would not allow inquiries on voir dire as to sympathy or credibility of police officers. Defense counsel then requested and obtained a continuing objection and exception to the court's ruling.

We recently reiterated 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. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987); State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987); State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Haskins, 188 Conn. 432, 446, 450 A.2d 828 (1982). The statutory right to a voir dire examination of each prospective juror in a criminal action is provided for in General Statutes § 54-82f. ¹ In 1972, this right was established as a constitutional one by inclusion in article fourth of the amendments to the state constitution, which provides that " '[t]he right to question each juror individually by counsel shall be inviolate.' " State v. Dahlgren, 200 Conn. 586, 600, 512 A.2d 906 (1986).

"Because of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel's inquiry." State v. Dolphin, supra, 203 Conn. at 511-12, 525 A.2d 509. 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. Fritz, supra; State v. Dolphin, supra; State v. Rogers, supra, 317; State v. Hill, 196 Conn. 667, 671, 495 A.2d 699 (1985); State v. Smith, 10 Conn.App. 624, 639, 525 A.2d 116 (1987).

The defendant first claims that he should have been permitted to ask potential jurors whether they would be able to exclude feelings of sympathy toward either the prosecution or defense. The defendant mentioned this claim of error in his brief but has failed to formulate any reasoned legal argument with respect to how the trial judge's restriction affected his right to a meaningful voir dire. In light of this briefing failure, coupled with the lack of any citation to legal authority for his claim, we decline to undertake appellate review of this claim. See State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311 (1987); Hayes v. Smith, 194 Conn. 52, 66 n. 12, 480 A.2d 425 (1984); Cheney v. Strasburg, 168 Conn. 135, 142, 357 A.2d 905 (1975); State v. Smith, supra, 10 Conn.App. at 635, 525 A.2d 116.

We do find error, however, in the trial court's refusal to permit defense counsel to inquire as to whether a juror would attach greater credence to the testimony of a police officer simply because of his official status. We recently held 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.... State v. Higgs, [143 Conn. 138, 144, 120 A.2d 152 (1956) ].' " (Emphasis in original.) State v. Fritz, supra, 204 Conn. at 163, 507 A.2d 1157, quoting State v. Hill, supra, 196 Conn. at 672-73, 495 A.2d 699.

This conclusion of error, however, does not end our inquiry. We must determine whether the error is reversible, which requires a conclusion that harmful prejudice resulted to the defendant. State v. Fritz, supra, 204 Conn. at 162, 507 A.2d 1157 State v. Dolphin, supra; State v. Rogers, supra; State v. Smith, supra. In those cases in which we have considered the issue presented in this appeal, we have found harmful prejudice where the testimony of the police officer or official has been crucial to the state's case. See State v. Fritz, supra, 204 Conn. at 165-66, 507 A.2d 1157; State v. Dolphin, supra, 203 Conn. at 516, 525 A.2d 509; State v. Rogers, supra, 197 Conn. at 318, 497 A.2d 387; State v. Hill, supra, 196 Conn. at 672, 495 A.2d 699. In State v. Fritz, supra, where the defendant was charged with illegally prescribing controlled substances in violation of General Statutes §§ 19-460 and 19-480a (now General Statutes §§ 21a-252[a] and 21a-278), the testimony of police officers and state medical officials was crucial to the state's case because, if believed by the jury, it tended to support an inference of guilt under the applicable statutory provisions. In State v. Dolphin, supra, 204 Conn. at 514-15, 525 A.2d 509, where the defendant was charged with...