State v. Malave

• Decision Date: 10 February 1998
• Docket Number: No. 15615,15615
• Citation: 47 Conn.App. 597,707 A.2d 307
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Alex MALAVE.

Page 307

707 A.2d 307

47 Conn.App. 597

STATE of Connecticut v. Alex MALAVE.

No. 15615.

Appellate Court of Connecticut.

Argued Nov. 10, 1997.

Decided Feb. 10, 1998.

Brien P. Horan and Lisa Gizzi, with whom, on the brief, was Darrell Cook, Hartford, for appellant (defendant).

Mary H. Lesser, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and John Waddock, Assistant State's Attorney, for appellee (State).

Before FOTI, SPEAR and CRETELLA, JJ.

SPEAR, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a)(1). ¹ The defendant claims that the trial court improperly (1) restricted his voir dire thereby preventing him from identifying venirepersons who were unqualified to serve as jurors, (2) instructed the jurors that they could draw an adverse inference from the defendant's failure to produce a certain witness, (3) emphasized the criminal records of the defendant and his key witness and (4) failed to instruct the jury that lack of motive should be considered in assessing reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 12, 1994, Jose Garcia drove his brother, Oswaldo Garcia, to the Latin American Club located on South Colony Street in Meriden. After Jose left, Oswaldo was approached by a man who claimed that Oswaldo had wrongfully intervened in an altercation at the club the night before. After Oswaldo telephoned Jose and asked him to return to the club, a group gathered around Oswaldo. Someone in the group asked Oswaldo if he wanted to "go one on one" with the man who had originally approached him. The defendant threw a beer bottle at Oswaldo, and a fight erupted between Oswaldo and the defendant, who was supported by the other men. During the altercation, a hunting knife that Oswaldo carried fell to the ground. The defendant retrieved the knife and stabbed Oswaldo several times. Jose arrived during the fight and Oswaldo managed to get into Jose's car. Before Jose was able to drive away, the defendant stabbed Jose in the shoulder. During the drive to the hospital, Oswaldo removed the knife from Jose's shoulder and threw it out the window.

While at the hospital, Oswaldo told police officers that the defendant, whom he had known for several years, was the assailant. Thereafter, Jose and Oswaldo independently identified a photograph of the defendant as being of the assailant. The defendant's picture was selected from an array of photographs that were presented separately to the brothers by police detectives.

The officers obtained an arrest warrant for the defendant and arrested him several weeks later. Rejecting the defendant's alibi defense, the jury convicted him of both counts of assault in the first degree. This appeal followed.

I

Certain additional facts are necessary for the resolution of the defendant's first claim that the trial court improperly restricted his voir dire of prospective jurors. One venireperson, Leta Carson, stated during her voir dire that she had heard a woman make a statement to the effect that she had seen the defendant and had "already made up her mind as to whether or not he was guilty." Although she had sat across from the woman, Carson did not remember the woman's name. In response to the defendant's request to question Carson further as to the woman's identity, the trial court responded that Elizabeth Wright was the only other woman in the corridor. The state and the defendant accepted Carson as a juror and the trial court excused her with instructions to report for trial on the following Monday. Wright was called in thereafter and denied having expressed any opinion as to the defendant's guilt or innocence. The trial court refused to excuse her for cause and the defendant excused her with his second peremptory challenge.

The defendant then asked to recall Carson for further questioning in order to "pin down" the identity of the person who had made the remarks. The trial court conceded that Carson might have heard the remark while female venirepersons other than Wright were in the corridor, but refused to recall Carson that day. The subject proceedings were on a Wednesday, and the trial court offered to allow the defendant to recall Carson on Friday.

The trial court excused the three remaining female venirepersons on the panel, even though each denied hearing any comments about the case or the defendant. No jurors were chosen after Carson and at the end of the day the trial court again offered to allow the defendant to recall Carson on Friday. The defendant never recalled Carson nor did he ask the court to do so.

The defendant claims that the trial court impinged on his right to voir dire in five specific ways: (1) he was not allowed to question Carson sufficiently to ascertain the identity of the woman who allegedly made the remark concerning the defendant's guilt; (2) the court improperly refused to recall Carson before proceeding with the voir dire of the other venirepersons, thereby impairing his ability to exercise his peremptory challenges intelligently; (3) the defendant was not allowed to ask questions of Wright that he claimed were reasonably necessary to ascertain any potential prejudices that she may have harbored toward him; (4) the court improperly refused to ask each of the remaining female venirepersons on the Wednesday panel whether she had made the alleged remark; and (5) the trial court failed to inquire of the two jurors selected before Carson as to whether they had heard the alleged remark or whether one of them had made the remark.

The defendant has both a constitutional ² and statutory right ³ to voir dire prospective jurors. Our Supreme Court has stated that "[w]e have recognized that the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge." State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987). The defendant's appeal centers on the second of those purposes as he claims that he was not able to obtain the information necessary to exercise his peremptory challenges intelligently.

In Dolphin, the Supreme Court also said that "[b]ecause 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.... The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process.... Therefore, the court's actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted." (Citations omitted.) Id., at 511-12, 525 A.2d 509.

We note initially that this claim is properly before us even though the defendant did not exhaust all of his peremptory challenges. ⁴ The Dolphin court instructs that "[t]he defendant, however, must be entitled to explore the area of possible bias or partiality before he can intelligently challenge for cause or exercise his right of peremptory challenge.... It cannot be said, then, that the defendant permitted a juror to serve whom he regarded as biased, without first having had the opportunity to inquire into that possible bias. Therefore, the fact that the defendant did not exercise all of his peremptory challenges does not foreclose his ability to raise the present claim of error." (Citations omitted.) State v. Dolphin, supra, 203 Conn. at 513-14 n. 5, 525 A.2d 509.

Having considered the first two claims together as they both relate to Carson, we conclude that the first claim is not supported by the facts and the second claim has no merit.

After the trial court rejected the defendant's request to recall Carson and before proceeding further with the voir dire, the defendant exercised two additional peremptory challenges. With his third peremptory challenge, he excused a male former police officer without asking any questions about the alleged remark. In response to the court's questions, however, that venireperson stated that he had not overheard any comments or discussions by anyone with respect to the defendant's guilt or innocence. The defendant exercised his fourth peremptory challenge to excuse a male venireperson who stated to the court that he had not heard any comments about the defendant. The remaining venirepersons on that panel were excused by the court, with the exception of one male who was excused by the state.

The defendant does not claim that on Wednesday the trial court improperly excused the last three female venirepersons or any of the venirepersons. A new panel that could not have heard the alleged remark was brought in on Thursday. The defendant's claim as to the Wednesday venirepersons is that he was forced to exercise two peremptory challenges, after Carson was selected, without the benefit of further information from Carson as to the identity of the woman who had made the alleged remark. Both persons whom the defendant excused were male. Thus, neither could have been the person who made the alleged remark and both denied hearing the alleged remark. There is no indication in the record that the defendant was restricted in any way in his questioning of those two venirepersons before he excused them. Because he did not ask either venireperson any questions about the alleged remark, we may fairly assume that he had reasons for exercising his peremptory challenges other than the possibility that the venirepersons were not being truthful in denying any knowledge...