State v. Patterson, s. 10752

CourtAppellate Court of Connecticut
Citation624 A.2d 1146,31 Conn.App. 278
Docket Number10855,Nos. 10752,s. 10752
PartiesSTATE of Connecticut v. Warren PATTERSON.
Decision Date22 April 1993

Page 1146

624 A.2d 1146
31 Conn.App. 278
STATE of Connecticut
Nos. 10752, 10855.
Appellate Court of Connecticut.
Argued Dec. 7, 1992.
Decided April 22, 1993.

Page 1148

[31 Conn.App. 279] 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 [31 Conn.App. 278] LAVERY, LANDAU and FREDERICK A. FREEDMAN, JJ.

[31 Conn.App. 279] LANDAU, Judge.

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 [31 Conn.App. 280] 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 [31 Conn.App. 281] 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

Page 1149

during a criminal trial. In State v. Smith, 49 Conn. 376, 383-84 (1881), our Supreme Court stated that "[w]e all agree, and desire to have it distinctly understood, that it is the duty of the presiding judge at criminal trials, and especially where life is involved, to be visibly present every moment of their actual progress, so that he can both see and hear all that is being done. This is a right secured to the accused by the law of the land, of which he cannot be deprived. All the formalities of the trial should be scrupulously observed, so that the people present may see and know that everything is properly and rightly done." 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 "[t]rial by jury, in the primary and usual sense of the term at the common law and in the American Constitution, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution[31 Conn.App. 282] on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion." (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) (it was error for the judge to absent himself from the courtroom when the verdict was returned); People v. Garcia, 826 P.2d 1259, 1265-66 (Colo.1992) (judge must be present in the courtroom while evidence is being introduced); Brown v. State, 538 So.2d 833, 834-35 (Fla.1989) (presence of judge is essential to constitutional guarantee of trial by impartial jury); Peri v. State, supra; People v. Bolton, 324 Ill. 322, 330, 155 N.E. 310 (1927) (judge should have remained on bench during jury selection); People v. Chrfrikas, 295 Ill. 222, 228, 129 N.E. 73 (1920) (serious error for judge to leave the courtroom during the course of the trial); People v. Morehouse, 328 Mich. 689, 692, 44 N.W.2d 830 (1950) (absence of trial judge from courtroom at any stage of proceedings is utterly inexcusable and deserving of censure); State v. Eberhardt, 32 Ohio Misc. 39, 41, 282 N.E.2d 62 (1972) (judge has duty to be present in courtroom from opening until closing[31 Conn.App. 283] of the trial); State v. O'Connor, 378 N.W.2d 248, 258-59 (S.D.1985) (Henderson, J., dissenting) (absence of trial judge to receive verdict should have rendered conviction null and void); 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) (error for judge to absent himself from courtroom during voir dire). 6

Page 1150

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,[31 Conn.App. 284] 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 "[h]erein is the vice of the matter.... When the trial judge is absent, there is in reality no person or officer who can certify to this court as to what took place during that absence. This court is, and must always remain, in doubt as to the matter; no satisfactory conclusion can be reached from the affidavits of opposing counsel; and thus this period remains a hiatus in the case. The presiding judge of a trial court is charged with the duty of trying the case from the opening to the close, and he ought not to abdicate his functions even for half an hour. During such an absence grave errors or abuses of privilege may occur, and this court may be left to the conflicting affidavits of overzealous attorneys or parties in interest to determine what in fact took place. [31 Conn.App. 285] This court is not organized nor authorized to try such questions, and we do not propose to do so. It avails not to say that error must be affirmatively shown. This is true, but, where the trial court has disabled itself from informing us as to what occurred, how is error to be shown save by affidavit? We cannot but disregard this long absence from the bench during an important part of the trial as an error which calls for a new trial. Smith v. Sherwood, 95 Wis. 558, 70 N.W. 682 (1897)." 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

Page 1151

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, [31 Conn.App. 286] 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 §...

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  • State v. Artis
    • United States
    • Appellate Court of Connecticut
    • 10 Julio 2012
    ...that Perez was decided three years prior to Milner. The majority also notes, correctly, that Gordon was cited in State v. Patterson, 31 Conn. App. 278, 300, 624 A.2d 1146 (1993), rev'd, 230 Conn. 385, 645 A.2d 535 (1994). In that case, Gordon was cited as an example of a case in which ''som......
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    ...37 Conn.App. 801, 805-807, 658 A.2d 121 (1995), rev'd on other grounds, 236 Conn. 561, 674 A.2d 416 (1996), quoting State v. Patterson, 31 Conn.App. 278, 290-92, 624 A.2d 1146, (1993), rev'd on other grounds, 230 Conn. 385, 645 A.2d 535 [50 Conn.App. 376] A The threshold issue that must be ......
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    ...does not deem it to be a necessary prerequisite to a determination that probable cause existed in this case. In State v. Patterson, 31 Conn.App. 278, 309, 624 A.2d 1146 (1993), rev'd on other grounds, 230 Conn. 385, 645 A.2d 535 (1994), for example, this court held that the factual informat......
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