State v. Martinez, 26647.

CourtAppellate Court of Connecticut
Citation896 A.2d 109,95 Conn.App. 162
Docket NumberNo. 26647.,26647.
PartiesSTATE of Connecticut v. Jose J. MARTINEZ.
Decision Date02 May 2006

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896 A.2d 109
95 Conn.App. 162
STATE of Connecticut
No. 26647.
Appellate Court of Connecticut.
Argued January 6, 2006.
Decided May 2, 2006.

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Lauren Weisfeld, assistant public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Maxine V. Wilensky, senior assistant state's attorney, for the appellee (state).



The defendant, Jose J. Martinez, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. On appeal, the defendant claims that (1) the trial court failed to inquire into possible jury taint, (2) he was denied due process of law as a result of prosecutorial misconduct and (3) the court improperly charged the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Hector Pacheco, sold heroin in the area of Poplar Street in New Haven. On the evening of September 2, 1996, the defendant and the victim had a loud argument concerning the defendant's intention to sell drugs at a location used by the victim.1 The victim told the defendant that "it wasn't going to happen," and the defendant became upset.

The next morning, at approximately 9:30 a.m., the victim and the defendant had a second argument, and the victim reiterated his position that he would prevent the defendant from seizing his location. The defendant then left the area but returned later that morning. He told the victim, "I told you I'd be back," and drew a handgun from the inside of his pants. The defendant shot the victim and fled from the area while the victim was taken to Yale-New Haven Hospital, where he subsequently died. Thomas Gilchrist, a pathologist in the chief medical examiner's officer, performed an autopsy and determined that a gunshot wound to the chest and abdomen caused the victim's death.

Following an investigation, the police obtained an arrest warrant but were unable to locate the defendant for several years. After shooting the victim, the defendant fled to Philadelphia, Pennsylvania, and used a false name and date of birth to escape discovery. While using the alias "Edwin Acevedo," the defendant was arrested on unrelated charges and placed in custody in 1999.

The defendant's identity eventually was discovered, and he was returned to Connecticut. The defendant was arrested, tried and convicted in connection with the death of the victim.2 The court sentenced

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the defendant to forty years incarceration, suspended after thirty years, and five years probation. This appeal followed.3 Additional facts will be set forth

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as necessary.


The defendant first claims that the court failed to inquire into possible jury taint. Specifically, the defendant argues that the court failed to investigate two instances of possible juror misconduct, thereby implicating his right to an impartial jury. The first instance occurred when a venire-person indicated that discussions regarding the defendant had occurred among members of the venire panel while awaiting individual voir dire. The second instance transpired when one of the jurors notified the court clerk that some of the other members of the jury had commented, prior to the jury charge, on the defendant's outburst that had taken place during the testimony of one of the state's witnesses. We do not agree with either of the defendant's claims.

As an initial matter, we set forth the general legal principles relevant to this issue. "Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution [of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution]. . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . It is well established, however, that not every incident of juror misconduct requires a new trial. . . . [D]ue process seeks to assure a defendant a fair trial, not a perfect one. . . . The question is whether . . . the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . The defendant has been prejudiced if the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror." (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 647, 877 A.2d 787, cert. denied, ___ U.S. ___, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005); see also State v. Sinvil, 90 Conn.App. 226, 240, 876 A.2d 1237, cert. denied, 275 Conn. 924, 883 A.2d 1251 (2005).

A discussion of the seminal case of State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (en banc), is also appropriate. In Brown, the trial court received an anonymous note, after the verdict had been returned, indicating that the writer had learned that one of the jurors commented that she had overheard the sheriffs "betting that the defendant would be found guilty because he was black and from New York." (Internal quotation marks omitted.) Id., at 520, 668 A.2d 1288. Our Supreme Court concluded that the trial court abused its discretion by failing to conduct an inquiry into the allegations contained in the note. Id., at 522-26, 668 A.2d 1288. Furthermore, under the auspices of its inherent supervisory power over the administration of justice, the court held that "henceforth a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry lie within a trial court's discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a

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full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court's sound discretion with respect thereto." Id., at 526, 668 A.2d 1288.

Our Supreme Court further instructed that the form and scope of the hearing should be based on a consideration of several factors. "In future cases, a trial court may find it helpful to be guided by the following factors in exercising its discretion as to the form and scope of an inquiry into allegations of jury misconduct. By analogy to the law of procedural due process, the court should consider the following: [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Internal quotation marks omitted.) Id., at 529-30, 668 A.2d 1288.

With these principles in mind, we turn to the defendant's specific arguments.


The defendant first argues that the court improperly failed to conduct an investigation when a venireperson indicated that discussions regarding the defendant had occurred among members of the venire panel while awaiting individual voir dire. Specifically, the defendant claims that the court should have recalled for further inquiry an individual who had been selected as a member of the jury. The defendant concedes that he failed to preserve his claim for our review and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),4 or the plain error doctrine. See Practice Book § 60-5.5 We will review the defendant's claim because the record is adequate for our review and his claim is of constitutional magnitude. We conclude, however, that the defendant has failed to satisfy the third prong of Golding.

The following additional facts are necessary for our discussion. Voir dire commenced on September 15, 2003. Prior to September 22, 2003, one juror had been

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selected.6 Two of the first three members of the venire were excused by the court, and the state exercised a preemptory challenge with regard to the other venire member. The next venireperson, H, was selected as a juror. The next two venirepersons were excused by the court.

J then was questioned during voir dire. The state asked if refraining from discussing the details of the case would pose a problem for her. J replied, "I don't know. I mean, we've all been discussing it in the room next door and several people called home already. I mean it's — it's — I think the — if you could hear the conversation in the room next door, you'd be rather upset." She further explained that, "[w]ell, several people called home to say they were on a murder trial and, ah, I think in my own case, I don't think I can — I'm rather high strung. I don't think I can really wrap myself around a murder trial." Upon further inquiry by the state, J responded: "Well, we discussed where this young man had been since, what is it, 1997, and we were theorizing about all — I mean, I didn't — I don't know whether we were supposed to be talking to each other or what. I don't know." She stated that the conversation included theories regarding "motive, drugs, all that kind of thing came up." Finally, she said: "I mean, I don't know whether you heard us all laughing,...

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