State v. McCarthy

• Decision Date: 20 August 1985
• Citation: 197 Conn. 247,496 A.2d 513
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John McCARTHY.

Page 513

496 A.2d 513

197 Conn. 247

STATE of Connecticut v. John McCARTHY.

Supreme Court of Connecticut.

Argued April 30, 1985.

Decided Aug. 20, 1985.

Bruce L. Levin, Milford, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Henry J. Lyons, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

SHEA, Associate Justice.

On May 20, 1981, the defendant, John McCarthy, was found by a jury to have committed the crimes of larceny in the first degree and burglary in the third degree in violation of General Statutes §§ 53a-122(a)(2) and 53a-103(a), respectively, and was sentenced to an effective prison term of not less than ten nor more than twenty years. From this judgment the defendant appeals, claiming that the trial court erred (1) in denying his fair cross-section challenge to the jury array, (2) in failing to suppress inculpatory statements that he gave to the police after a claimed illegal arrest and that were allegedly prompted by promises of beneficial treatment, (3) in permitting cross-examination of the defendant beyond what he claimed was the scope of direct, and (4) in refusing to instruct the jury on the crimes of larceny in the second and third degrees as lesser included offenses. We find no error.

On June 20, 1980, the defendant was arrested by the Westport police on charges unrelated to those at issue here. Knowing that the defendant was a suspect in certain burglaries that had occurred in Wilton, the Westport police contacted the Wilton police and informed them that the defendant was in custody. The next day, two Wilton police officers spoke with the defendant at the jail in Westport, and then took him for a drive through Wilton, where the defendant incriminated himself in several burglaries, including the one involved in this appeal. More than two weeks later, a warrant was issued for the arrest of the defendant for the instant burglary and larceny. At trial the defendant stipulated that he had committed the theft in question, but denied having the requisite mental state for the crimes charged. He also contested the valuation of the property stolen. The jury found him guilty of the crimes charged.

I

In support of his claim that he was deprived of his due process right to a jury made up of a fair cross section of the population, ¹ the defendant presented expert testimony that, of the 12,351 persons called for jury duty in Fairfield county during the two and one-half year period immediately preceding his trial in April, 1981, only 240, or 1.9 percent, had Hispanic surnames. On the basis of the Hispanic population of Fairfield county as documented by the United States census of 1970, ² 3.75 percent of the 12,351 potential jurors, or 465 Hispanics, should have been included in the venires. The plaintiff's expert testified that the chance of this disparity occurring randomly was less than one in two and one-half million based on "statistical decision theory." ³ The court denied the challenge to the array without elaboration. ⁴

We have recently had occasion to consider the appropriate test to be applied to a fair cross section challenge of a jury array. In State v. Castonguay, 194 Conn. 416, 481 A.2d 56 (1984), we quoted from Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), wherein the United States Supreme Court declared that " '[i]n 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, supra, 364 . Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Id., 367 ." State v. Castonguay, supra, 194 Conn. at 421-22, 481 A.2d 56.

With respect to the first requirement of Duren, we have noted on several occasions, and the state has conceded in this appeal, that Hispanics constitute a "distinctive" group in the community for purposes of this fair cross-section claim. See State v. Couture, 194 Conn. 530, 551, 482 A.2d 300 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985); State v. Castonguay, supra, 194 Conn. at 424, 481 A.2d 56.

In State v. Castonguay, supra, we discussed the different approaches used by courts in examining the second prong of Duren, the requirement of fair and reasonable representation of the group involved. We considered and rejected three such theories in that opinion, among them the statistical decision theory relied upon by the defendant, before settling on the "substantial impact" test as best suited to a fair cross section claim. We considered the statistical decision theory to be more relevant to the issue of discrimination posed in an equal protection challenge to jury composition than to the question of whether the jury pool reflects adequately the diversity of the community from which it is selected. See Villafane v. Manson, 504 F.Supp. 78, 84 (D.Conn.1980). ⁵ Under the substantial impact test, on the other hand, the "focus is not on numbers and percentages but rather on whether the underrepresentation substantially affects the composition of the grand [or petit] jury." State v. Couture, supra, 194 Conn. at 552, 482 A.2d 300. Thus "[t]he disparity is measured in terms of its impact on juries, not simply percentages in the abstract. This analysis allows the courts to reject challenges when the challenged practices did not significantly alter the composition of the typical grand or petit jury." Beale, "Integrating Statistical Evidence and Legal Theory to Challenge the Selection of Grand and Petit Jurors," 46 Law and Contemp.Probs. 269, 275 (1983); see United States v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir.1977); Anderson v. Casscles, 531 F.2d 682, 685 n. 1 (2d Cir.1976); United States v. Goff, 509 F.2d 825, 826-27 (5th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975); United States v. Jenkins, 496 F.2d 57, 65 (2d Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975); United States v. Facchiano, 500 F.Supp. 896 (S.D.Fla.1980); see also Waller v. Butkovich, 593 F.Supp. 942 (M.D.N.C.1984). ⁶ Using this common sense approach, we recently determined that one less Hispanic on every other eighteen member grand jury did not constitute the "substantial" underrepresentation of a distinct group that is a prerequisite to judicial intervention in a fair cross section challenge. State v. Couture, supra, 194 Conn. at 552, 482 A.2d 300; State v. Castonguay, supra, 194 Conn. at 430-31, 481 A.2d 56; State v. Haskins, 188 Conn. 432, 440, 450 A.2d 828 (1982).

The defendant has provided us with no reason to abandon this analysis, and we are not inclined to do so. The remaining question then is whether there was such an underrepresentation of Hispanics, compared to their population in the community as a whole, ⁷ in the pools from which jurors in Fairfield county were drawn during the period from September, 1978, to April, 1981, as to have substantial impact upon the composition of Fairfield juries. We conclude that no such impact has been shown. According to the defendant's figures, of the 12,351 potential jurors during the period examined, 240 or 1.9 percent were Hispanics. The 3.75 percent of Hispanics in the community, if this group were proportionally represented in the jury pool, would have resulted in the inclusion of 465 Hispanics, 225 more than were actually contained in the pool of jurors. ⁸ The 12,351 veniremen would, if divided into juries of six, which hear cases such as the defendant's, have served 2000 potential juries. See General Statutes §§ 54-82(c), 54-82b(c). Were the 225 missing Hispanic jurors evenly distributed among this number of juries, one more Hispanic would have been available for selection on only one out of nine juries. This is a substantially smaller discrepancy than those we upheld in Couture and Castonguay. The lesser numerical discrepancy found here, as compared to those cases involving Hispanic representation on grand juries, must be balanced against the greater influence a single juror may have in a group of six, comprising a petit jury, rather than eighteen persons, necessary for a grand jury. The decision of the six must be unanimous while only twelve of eighteen grand jurors must agree upon an indictment. General Statutes § 54-45(b). Even taking this into account, however, we cannot conclude that the underrepresentation of Hispanics in the jury venires of Fairfield county was so substantial as to violate the defendant's due process right to a jury representing a fair cross section of the community. Accord Beale, supra, 280; ⁹ see also United States v. Armstrong, 621 F.2d 951, 955-56 (9th Cir.1980); United States v. Potter, 552 F.2d 901, 905-906 (9th Cir.1977); United States v. Nordwall, 555 F.Supp. 37 (D.Nev.1982); State v. Elbert, 121 N.H. 43, 424 A.2d 1147, 1149 (1981). "It should ... be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition ... but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative...