State v. Marsh

• Decision Date: 03 June 1975
• Citation: 168 Conn. 520,362 A.2d 523
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Charles MARSH.

Page 523

362 A.2d 523

168 Conn. 520

STATE of Connecticut v. Charles MARSH.

Supreme Court of Connecticut.

June 3, 1975.

Anthony V. DeMayo, Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Robert K. Walsh, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

The defendant, Charles Marsh, after a jury trial, was found guilty of four counts of sale of a narcotic drug in violation of § 19-480(a) of the General Statutes. He has appealed from the judgment. Of the assignments of error made only two are briefed. All other claims are considered to have been abandoned. State v. Lally, 167 Conn. --, 356 A.2d 897; State v. Brown, 163 Conn. 52, 55, 301 A.2d 547.

The first assignment of error is that the court failed to permit defense counsel to ask questions designed to determine the existence of bias or prejudice. Specifically, the defendant, who is black, claims that his questioning of veniremen with respect to race prejudice was unduly restricted. He does not claim that all questioning related to racial bias was refused but that not enough questioning was permitted, even though some of the questions were indelicate and even though some may have made jurors uncomfortable by having them bare their innermost sentiments. It is his further claim that the only discernible common denominator of the disallowed questions is that they called for an opinion and a potentially embarrassing response, and that the court avoided discomfort for the prospective jurors at the expense of the constitutionally guaranteed right to a fair trial of the defendant.

Section 19 of article first of the constitution of Connecticut, as amended by article IV, states in part as follows: 'The right of trial by jury shall remain inviolate . . .. 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. The right to question each juror individually by counsel shall be inviolate.' In conducting the examination of jurors during voir dire, the trial court is vested with wide discretion; State v. Clark, 164 Conn. 224, 226, 319 A.2d 398; Childs v. Blesso, 158 Conn. 389, 394, 260 A.2d 582; Sherman v. William M. Pyan & Sons, Inc., 126 Conn. 574, 578, 13 A.2d 134; and when questioning by counsel transcends the proper limits of the voir dire and represents an abuse of the right of examination, the court is under a duty to restrict such examination. State v. Mendill, 141 Conn. 360, 362, 106 A.2d 178; Duffy v. Carroll, 137 Conn. 51, 57, 75 A.2d 33.

The discretion of the court as to the questions to be asked of the jurors on voir dire examination is subject to the essential demands of fairness as required by the due process clause of the fourteenth amendment to the constitution of the United States. Ham v. South Carolina,409 U.S. 524, 526, 93 S.Ct. 848, 35 L.Ed.2d 46; Aldridge v. United States,283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054. Discrimination on the basis of race is a subject which in the examination of jurors the court must allow if requested by a party. Ham v. South Carolina, supra. ¹ In State v. Higgs,143 Conn. 138, 143-44, 120 A.2d 152, 154, this court stated that '(w)e cannot be blind to the fact that there may still be some who are biased against the Negro race,' and quoting the Aldridge case as authority held that it was an abuse of discretion and error for the court to exclude all questions to veniremen concerning race prejudice. Our state, by constitutional provision, allows the questioning of each prospective juror individually by counsel, and, within that framework, counsel is entitled to interrogate on the subject of race prejudice. This right, however, is not unlimited. As stated in State v. Van Valkenburg, 160 Conn. 171, 173, 276 A.2d 888, both court and counsel should be alert to a duty to avoid a perversion of the constitutional right accorded to litigants in their determination of the makeup of a jury. Counsel is not entitled to ask questions on the subject of race prejudice in unlimited numbers or in any particular form, and the questions must not be irrelevant or vexatious. Further, the court may restrict the questions to those that are general but 'sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.' Ham v. South Carolina, supra, 409 U.S. 527, 533, 93 S.Ct. 851.

With these principles in mind, the record, briefs and appendices are examined to determine whether the court, in limiting the examinations, did abuse its discretion. It may be noted that the voir dire lasted approximately five days, that thirty-nine prospective jurors were examined and that approximately 390 pages of the 496 page voir dire transcript represent the interrogations by counsel for the defendant. The portion of the record devoted to the questioning of veniremen covers the examination of ten prospective jurors upon which the defendant claims that the court's rulings were unduly restrictive. The examination of these ten jurors on the subject of race prejudice as set forth in the record are substantially as follows:

Venireman I: The prospective juror was told that the defendant was a black man, and she stated that it did not make any difference to her. She was asked if she had black neighbors, and she replied that she had two. She was asked how she felt about balck people, and she answered that they were human beings. She was asked if she had any unfortunate or unpleasant experiences with black people, and she replied in the negative. She was asked if she ever moved out of a neighborhood because black people moved in, and she replied, 'No.' This last answer was allowed to stand even though an objection to it was sustained. The only question asked by the defendant which was refused was, 'Do you think that as part of your duty as being a juror, you would be able to put yourself in this man's shoes to the extent of understanding or making a real effort to understand what life is like for a black man in a ghetto in a city in the United States?'

Venireman II: To the questions of defense counsel, he answered that there were black members in the Masons but not in his lodge nor in the V.F.W. post where he belonged. He stated that he was employed with black people, that he did not have black neighbors, that he had not moved from one neighborhood into another because black people moved in, and that he did not have any close friends or acquaintances who were black. The only questions to which the court sustained an objection were, 'Can you tell us, in your own words, how you feel about black people?' and 'Based on having lived around this area for a long time, do you have an opinion as to whether or not in this geographical area, black people have an equal chance with whites?' Thereafter, he was asked if it would be more difficult for him to be fair if all witnesses brought in by the police were white considering that the defendant was black, and the answer was, 'No, sir.' The next question was, 'Do you think that the fact that he is black, taken by itself, would cause it to be for you, in any way, more difficult to be utterly fair with him than if he were white?' and the answer was, 'No, sir.'

Venireman III: Having stated that he had sat on a criminal case before, this prospective juror was asked if the defendant in that case was black or white. He answered that the defendant was white. In answer to other questions of defense counsel he stated that it would not be difficult for him to be fair in deciding the case considering that the defendant was black or that all the witnesses against him would be white. The court sustained an objection to the question, 'Could you tell us, in your own words, how you feel about black people?' Thereafter, the venireman stated in answer to a question by counsel for the defendant that he had not moved out of a neighborhood because black people had moved in. There was an objection to this last question asked, the court ruled that the answer would stand, and counsel for the defendant stated that the answer was 'more than satisfactory' as far as he was concerned. Thereafter, the venireman answered that he had not read, seen television, or had any thoughts about life in black ghettos in our cities. He was then asked in some detail if he could put himself in the defendant's shoes and understand his point of view, not having any experience or having done any reading concerning what life is like in black ghettos in our cities. An objection to that question was sustained.

The conduct of the examination of the seven remaining veniremen was in the same vein and did not differ substantially from those above recited. They are presented in a footnote to avoid making the opinion unduly lengthy. ² Ordinarily the recital of questions and answers in such detail would not be made, but as the issue involved was one of constitutional dimensions, it was felt that a complete picture should be presented. While it is difficult to understand the objection and the sustaining of the objection to the question of how a venireman feels about a black person, it can hardly be said, in the light of the questions and answers allowed by the trial court, that there was a significant restraint on the defendant in his effort to uncover any racial prejudice among the veniremen. Inquiry was allowed to determine any prejudice which each prospective juror might have against the defendant because of his race. It is clear from the narration of the questioning of the veniremen that the court did not abuse its discretion in its conduct of the voir dire. In fact, in reviewing the record and in just lifting the transcript of the voir dire, it is evidence that the court was extremely liberal in the latitude afforded...