State v. Miller

• Decision Date: 10 March 1987
• Citation: 202 Conn. 463,522 A.2d 249
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lawrence J. MILLER, Jr.

Page 249

522 A.2d 249

202 Conn. 463

STATE of Connecticut v. Lawrence J. MILLER, Jr.

Supreme Court of Connecticut.

Argued Nov. 6, 1986.

Decided March 10, 1987.

Richard Emanuel, Bridgeport, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom were John M. Massameno, Asst. State's Atty., and, on brief, Walter D. Flanagan, State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and NOVACK, JJ.

CALLAHAN, Justice.

The defendant was charged in an information with two counts of the crime of assault in the first degree in violation of General Statutes § 53a-59(a)(1). ¹ After a jury trial, he was found guilty of both counts and sentenced to consecutive terms of imprisonment.

He has appealed claiming that: (1) his statutory and constitutional rights were violated by the administration of defective oaths to the voir dire panel and to the petit jury; (2) the trial court erred in denying his motion to suppress identification evidence; (3) his right to be tried by an impartial jury was violated by the denial of his motion to transfer the prosecution; (4) the trial court erred by admitting irrelevant evidence; (5) his rights were violated by the exclusion of the results of a polygraph examination from evidence; (6) the evidence was insufficient to establish his guilt beyond a reasonable doubt; and (7) his constitutional rights were violated by the trial court's instructions on circumstantial evidence. We find no error.

The jury could reasonably have found the following facts. On the evening of August 20, 1981, at approximately 8:30 p.m., fifteen year old Elizabeth, and a sixteen year old male friend, William, were viciously assaulted behind the United Methodist Church on Clapboard Ridge Road in Danbury. The assault took place in an area used as a gathering place by neighborhood youths. Their assailant was a white male whom the couple encountered as they were leaving the area to walk to Elizabeth's house a short distance away. When he approached the young people, the assailant, who was wearing a bandana across the lower portion of his face, grabbed William's arm, displayed a handgun and identified himself as a police officer.

The couple was forced at gunpoint to walk to a grassy area where William was made to kneel. The assailant produced handcuffs and, using one hand, quickly handcuffed William's wrists behind his back. William was instructed to lie on his stomach and the assailant removed his own belt, and bound William's ankles. He then grabbed Elizabeth's arm and pulled her down an embankment out of William's sight. She was ordered to remove her jacket and, when she refused, a struggle ensued. During the struggle, the girl punched and scratched her assailant, and the man struck her several times on the head with the gun. In the course of the struggle with Elizabeth, the bandana, which the assailant had been wearing, came off his face. Thereafter, Elizabeth stumbled, fell to the ground and lost consciousness. When she revived, the man, his face uncovered, was crouched a few feet from where she lay. He then grabbed her foot and began dragging her further down the embankment. While he was doing so, Elizabeth's sneaker came off. She recovered it and threw it at her assailant, striking him in the crotch area. This precipitated another struggle during which the assailant kicked Elizabeth in the stomach, and repeatedly struck her about the head with the gun until she again lost consciousness.

Approximately five or ten minutes after pulling Elizabeth down the embankment the man returned to William. He removed the belt from around William's ankles and placed it around William's chin. The assailant then pulled on the belt and shoved the gun in William's mouth, injuring him. The belt was then slipped around William's neck and tightened, strangling him until he lost consciousness. When William regained consciousness, the man was gone and William made his way to Elizabeth's house where he alerted her parents and help was summoned. A search was immediately launched and Elizabeth was found lying in the area behind the church in a semiconscious state, partially naked and covered with blood.

Both victims were taken to the Danbury Hospital that night. Elizabeth's injuries consisted of a laceration of the liver, a fractured jaw, fractures of her hands, and numerous head and facial lacerations. She required surgery, and was hospitalized for a period of three to four weeks, a portion of which she spent in intensive care. William's injuries included multiple head and facial lacerations, and a laceration of the soft palate caused when the barrel of the assailant's gun was jammed into his mouth. He was confined to the hospital for a week.

At trial Elizabeth made a "positive" in-court identification of the defendant as her assailant. She also testified that she had made an out-of-court photographic identification of the defendant, at Danbury police headquarters on April 1, 1982. She further testified that she had positively identified the defendant as her assailant at a chance meeting in the area of the checkout counters at the Bradlees Department Store in Danbury on July 12, 1982. It is undisputed that the meeting at Bradlees was inadvertent and that it was not arranged by the police. William, who never saw his assailant without the bandana covering the lower portion of his face, was unable to make an identification of the defendant.

The defendant, who was employed at the time of the crime as a correction officer at the federal correctional institution in Danbury, testified at his trial. He denied his involvement in the incident, offered an alibi defense and testified that at the time of the crime, he was visiting at the home of his sister in Brewster, New York. His testimony was supported by the testimony of his sister, his mother, his wife and a friend of the defendant's sister.

I

The defendant first claims that his statutory and constitutional rights were violated by the administration of defective oaths to both the voir dire panel and the petit jury. Practice Book § 847 states in pertinent part that "[t]he judicial authority shall cause prospective jurors to be sworn or affirmed in accordance with Gen.Stat., §§ 1-23 and 1-25." General Statutes § 1-25 sets forth the forms of oaths for, inter alia, voir dire and for petit jurors in a criminal cause. ² In administering the voir dire oath, the trial court omitted the "well and truly" language of the oath, and in administering the jury oath, the phrase "by the name of the ever-living God" was omitted. Although the defendant acknowledges that he did not object to the defective oaths at trial, he seeks review of his claims pursuant to (1) State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), which permits review of newly raised claims of error "where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial," and (2) Practice Book § 4185 (formerly § 3063), which permits this court "in the interest of justice [to] notice plain error not brought to the attention of the trial court." We conclude that neither one of these exceptions to our rule against appellate review of unpreserved claims of error applies to the circumstances of this case.

First, the defendant puts a constitutional tag on a nonconstitutional claim by asserting that the deviation from the statutory form for oaths constitutes a deprivation of a fundamental constitutional right. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We are unaware of a constitutional right to any particular form of an oath. The defendant also suggests that he was deprived of a fundamental constitutional right because the defective oaths impaired his right to a "meaningful voir dire" by frustrating his opportunity to elicit grounds for challenge for cause and by inhibiting the intelligent exercise of his right to peremptory challenges. We disagree. The record does not support the assertion that the oaths administered in this case resulted in any impairment of the voir dire process. As we stated in State v. Gooch, supra, "the Evans trial court bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees." The defendant's reliance on Evans is without foundation.

Nor does the defendant's claim warrant review under the plain error doctrine, because we cannot conclude that the trial court's administration of the defective oaths resulted in any manifest injustice in this case. See State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). "Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." Id. This is not such a case. Cf. State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 221 (1980). We conclude, therefore, that the defendant's acquiescence throughout trial constituted a waiver of any objection to the trial court's deviation from the statutory language governing the administration of oaths. See State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960); cf. State v. Hoyt, 47 Conn. 518, 528-29, 36 Am.Rep. 89 (1880).

II

The defendant next claims that his federal and state constitutional rights to due process of law were violated by the trial court's denial of his motion to suppress both the out-of-court and in-court identifications of him made by Elizabeth. As previously noted, at trial she made a "positive" in-court identification of the defendant as her assailant, and also testified that she had selected his photograph from an array on April 1, 1982, and had identified him at a chance meeting in Bradlees Department Store in Danbury on July 12, 1982.

"A defendant who...