State v. Patterson
Decision Date | 22 April 1993 |
Docket Number | 10855,Nos. 10752,s. 10752 |
Citation | 624 A.2d 1146,31 Conn.App. 278 |
Parties | STATE of Connecticut v. Warren PATTERSON. |
Court | Connecticut Court of Appeals |
David M. Cohen, with whom was Gregory J. Williams, Stamford, for appellant (defendant).
James M. Ralls, Asst. State's Atty., with whom, on the brief, were Eugene Callahan, State's Atty., Carol Dreznick, Asst. State's Atty., and David Russman and Mark Migliaccio, Law Student Interns, for appellee (state).
Before LAVERY, LANDAU and FREDERICK A. FREEDMAN, JJ.
The defendant appeals from his conviction, after a trial to the jury, of possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b). 1 The defendant was also charged with possession of marijuana in violation of General Statutes § 21a-279(c), 2 and was acquitted of that charge. On appeal, the defendant claims that the trial court improperly (1) concluded that the state had not discriminatorily employed a peremptory challenge to exclude a black venireperson from the jury, (2) failed to set aside legally inconsistent verdicts, (3) failed to suppress the fruits of a search of the defendant's vehicle, (4) failed to suppress an inculpatory statement the defendant made to the police, (5) sentenced the defendant immediately following the verdict without first ordering a presentence investigation pursuant to Practice Book § 910, and (6) failed to follow certain procedural rules in revoking the defendant's outstanding probation. We hold that the trial judge's absence from the courtroom during voir dire in a criminal trial constitutes reversible error. We nonetheless address several of the defendant's remaining claims for the reasons stated herein.
The defendant first claims that the trial court improperly concluded that the state did not discriminatorily employ a peremptory challenge to exclude a black venireperson from the jury. We do not reach the merits of the defendant's claim, however, because we find that it is not possible to review the Batson 3 claim when the trial court was not in the position to make the necessary findings underlying the claim. 4
Our courts have long held that the presence of the judge is required at all times during a criminal trial. In State v. Smith, 49 Conn. 376, 383-84 (1881), our Supreme Court stated that 5
In Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1898), the United States Supreme Court stated that (Emphasis added.)
The presence of the judge in a criminal trial is a "constitutional imperative." Peri v. State, 426 So.2d 1021 (Fla.App.1983). The presence of the judge is at the "very core of [the] constitutional guarantee" of the right of an accused to a trial by an impartial jury in accordance with the sixth amendment to the United States constitution. Id., at 1023.
Courts throughout our country have uniformly criticized a trial judge's absence during criminal trial proceedings. See State v. James, 110 Ariz. 334, 336-37, 519 P.2d 33 (1974) ( ); People v. Garcia, 826 P.2d 1259, 1265-66 (Colo.1992) ( ); Brown v. State, 538 So.2d 833, 834-35 (Fla.1989) ( ); Peri v. State, supra; People v. Bolton, 324 Ill. 322, 330, 155 N.E. 310 (1927) ( ); People v. Chrfrikas, 295 Ill. 222, 228, 129 N.E. 73 (1920) ( ); People v. Morehouse, 328 Mich. 689, 692, 44 N.W.2d 830 (1950) ( ); State v. Eberhardt, 32 Ohio Misc. 39, 41, 282 N.E.2d 62 (1972) ( ); State v. O'Connor, 378 N.W.2d 248, 258-59 (S.D.1985) (Henderson, J., dissenting) ( ); Bright v. State, 306 S.W.2d 899, 900-901 (1957); Pennell v. State, 164 Tex.Crim. 401, 299 S.W.2d 699, 700 (1957) ( ). 6
The proposition that a judicial proceeding without judicial authority is void "traces back to the English Year Books, see Bowser v. Collins, Y.B.Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng.Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 0 Coke Rep. 68b, 77a, 77 Eng.Rep. 1027, 1041 (K.B. 1612)." Burnham v. Superior Court, 495 U.S. 604, 608, 110 S.Ct. 2105, 2108, 109 L.Ed.2d 631 (1990). This proposition is embodied in the phrase coram non judice--"before a person not a judge--meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment." Id., at 609, 110 S.Ct. at 2108. Connecticut courts have recognized this and invalidated judgments that violated this common law principle since the early nineteenth century. See Grumon v. Raymond, 1 Conn. 39 (1814). When voir dire in a criminal trial is conducted in the judge's absence, it is without the cloak of judicial authority, and any judgment flowing from those extra judicial proceedings is null and void.
The trial judge's absence has ramifications for not only the accused but the reviewing court as well. 7 The Oregon Supreme Court exposited the problem that an appellate court faces when reviewing proceedings from which a trial judge was absent when it said Frangos v. Edmunds, 179 Or. 577, 599, 173 P.2d 596 (1946).
The rule requiring the judge's presence at every stage of the criminal proceedings applies with equal force to the selection of the jury. 8 Both the federal and state constitutions guarantee to an accused the right to a public trial by an impartial jury. U.S. Const., amends. VI and XIV; Conn. Const., article first, § 8; State v. Esposito, 223 Conn. 299, 308, 613 A.2d 242 (1992). "[P]art of the guaranty of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan v. Illinois, --- U.S. ----, ----, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992). The right to a voir dire examination of each prospective juror in a criminal action was established as a constitutional right in 1972 by inclusion in article IV 9 of the amendments to the state constitution the provision that "[t]he right to question each juror individually by counsel shall be inviolate." State v. Haskins, 188 Conn. 432, 446, 450 A.2d 828 (1982); State v. Rogers, 197 Conn. 314, 317-18, 497 A.2d 387 (1985); State v. Hill, 196 Conn. 667, 671, 495 A.2d 699 (1985); State v. Burns, 173 Conn. 317, 321, 377 A.2d 1082 (1977); State v. Anthony, 172 Conn. 172, 174, 374 A.2d 156 (1976). The control of the voir dire in a criminal action falls squarely on the shoulders of the trial judge. The trial judge, in accord with General Statutes § 54-82f 10 and our state constitution, has the duty to analyze individual questioning and limit examination to questions relating to (1) juror's qualifications, (2) interest, if any, in the subject matter of the action, and (3)...
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