State v. Patterson

• Decision Date: 26 July 1994
• Docket Number: No. 14807,14807
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Warren PATTERSON.

Page 535

645 A.2d 535

230 Conn. 385

STATE of Connecticut v. Warren PATTERSON.

No. 14807.

Supreme Court of Connecticut.

Argued May 11, 1994.

Decided July 26, 1994.

James P. Ralls, Asst. State's Atty., with whom, on the brief, were Eugene Callahan, State's Atty., Carol Dreznick, Asst. State's Atty., and James Somers, Legal Intern, for appellant (state).

David M. Cohen, with whom, on the brief, was Gregory J. Williams, Stamford, for appellee (defendant).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

BORDEN, Justice.

The principal issue in this certified appeal is whether the judge in a criminal trial must be present in the courtroom during the entire jury voir dire. The defendant, Warren Patterson, was charged with possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b), and possession of marijuana in violation of General Statutes § 21a-279(c). The jury returned a verdict of guilty on the first count and not guilty on the second count. The trial court, Sylvester, J., rendered judgment in accordance with the verdict and also, on the basis of the verdict, revoked the defendant's probation from a prior offense.

The defendant appealed to the Appellate Court from the judgment of conviction and the judgment of revocation of probation, claiming, inter alia, that the trial court had improperly concluded that the state had not discriminatorily employed a peremptory challenge to exclude an African-American venireperson from the jury. ¹ The Appellate Court reversed the judgment of the trial court, concluding that the trial judge's absence from the courtroom during voir dire: (1) precluded review of the assertedly discriminatory peremptory challenge; and (2) constituted per se reversible error. State v. Patterson, 31 Conn.App. 278, 281-302, 624 A.2d 1146 (1993). We reverse the judgment of the Appellate Court. ²

The following facts are undisputed. The jury selection in this case occurred on October 3 and 4, 1991. After the trial judge gave the first panel its preliminary instructions, he stated: "I'm going to leave the voir dire up to you people, and I'll be in my chambers if I'm needed. Thank you." The judge then retired to his chambers, leaving the proceedings in the hands of the two attorneys and the court clerk. The proceedings were recorded on cassette tapes. Neither party objected to this procedure.

The defendant is an African-American, and there were three African-Americans in the venire. After the state had used peremptory challenges to excuse the first two African-Americans in the venire, defense counsel stated: "I'm going to make a Batson ³ challenge. I think we should get the judge out here." The judge then returned to the courtroom, and defense counsel argued that the state's peremptory challenge to the second prospective African-American juror was part of a pattern of deliberate racial discrimination in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defense counsel asked the court to review the tape recording of that part of the voir dire. The trial court then asked the state why the prospective juror had been excused. The state replied that it had excused the prospective juror because of the juror's answers to questions about how she goes about making up her mind, and whether she listens to other people. The trial court then requested a playback of the tape recording of the state's questions and the prospective juror's replies on this topic. The court did not request a playback of either the tape recording of defense counsel's questioning on the same topic or any other portion of the voir dire. The trial court ruled in favor of the state and the defendant took an exception. The judge then returned to his chambers.

Shortly thereafter, the judge reentered the courtroom to give preliminary instructions to a second panel of prospective jurors. Afterward, he returned to his chambers. He was recalled to decide a challenge for cause, after which he again returned to his chambers without objection for the remainder of the voir dire. The judge was present for all of the trial proceedings after voir dire.

The Appellate Court concluded that the defendant's Batson challenge was unreviewable because the trial court had not been in a position to make the necessary findings underlying the claim. State v. Patterson, supra, 31 Conn.App. at 281, 624 A.2d 1146. Nonetheless, the Appellate Court reversed the conviction, reasoning that the presence of a judge at a criminal jury trial is a constitutional imperative, and that voir dire is a critical stage of the trial process. The Appellate Court therefore concluded that the judge's physical presence is required throughout a criminal voir dire. Id., at 281-93, 624 A.2d 1146. The court also noted that constitutional rights of both the defendant and prospective jurors are at risk during voir dire. Focusing particularly on the constitutional rights of the prospective jurors, the Appellate Court further concluded that the right to the presence of the judge at voir dire could not be waived by the defendant. Id., at 297, 624 A.2d 1146. Finally, the Appellate Court concluded that the rights at stake are so basic and fundamental that their breach could never be deemed harmless. Id., at 302, 624 A.2d 1146.

We granted the state's petition for certification to appeal, limited to the following issues: (1) "Under applicable constitutional, common law or Practice Book rules, must a trial judge be physically present at voir dire in a criminal trial?"; (2) "If the judge's physical presence is required, may the defendant waive the judge's presence, and did he do so in the circumstances of this case?"; and (3) "If the judge's physical presence is required, may the judge's absence be harmless error, and if so, was it harmless error in the circumstances of this case?" State v. Patterson, 227 Conn. 901, 630 A.2d 72 (1993).

We conclude that, under existing law, even assuming that the trial judge must be present in the courtroom throughout the voir dire of a criminal trial, the defendant can waive such a requirement. We further conclude that the record demonstrates that the defendant waived the presence of the trial judge in this case. We also conclude, however, under our inherent supervisory authority over the courts, that trial judges must henceforth remain physically present during the entire voir dire in a criminal trial.

I

The state first claims that the Appellate Court improperly concluded that the trial judge must be physically present throughout the voir dire in a criminal trial. We begin our analysis by assuming, without deciding, that the state is incorrect. We assume, rather, that under applicable common law, ⁴ Practice Book rules, ⁵ or federal and state constitutional requirements, the trial judge is required to be physically present during the entire voir dire of a criminal trial. Nonetheless, we conclude that the defendant can waive this right and that he did so in this case.

"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., art. I, § 8." State v. Esposito, 223 Conn. 299, 308, 613 A.2d 242 (1992). Part of the guarantee 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). In Connecticut, the right to question jurors individually is specifically guaranteed by our constitution. ⁶ Rozbicki v. Huybrechts, 218 Conn. 386, 390, 589 A.2d 363 (1991). The purpose of the voir dire examination is two-fold: "first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge." State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987); State v. Dahlgren, 200 Conn. 586, 600, 512 A.2d 906 (1986). There are two sets of interests protected by the voir dire: (1) the interests of the parties, namely, the defendant and the state; ⁷ and (2) the interests of the prospective jurors.

A criminal defendant has the capacity to waive many of his or her fundamental procedural rights. The defendant can waive the right to counsel; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Frye, 224 Conn. 253, 617 A.2d 1382 (1992); the right to remain silent; Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966); State v. Roseboro, 221 Conn. 430, 442, 604 A.2d 1286 (1992); the right to be present during trial; State v. Simino, 200 Conn. 113, 125-29, 509 A.2d 1039 (1986); and, by entering a guilty plea, the rights to trial by jury, confrontation, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

Indeed, by failing to object in a timely manner, the defendant is ordinarily deemed to have waived his equal protection right against racially motivated peremptory challenges under Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712. ⁸ See Ford v. Georgia, 498 U.S. 411, 417, 111 S.Ct. 850, 854, 112 L.Ed.2d 935 (1991). Timely objection serves to avoid prejudicial error by permitting the trial court and the prosecutor to reconsider and perhaps change their courses of conduct while that is still possible. Government of Virgin Islands v. Forte, 806 F.2d 73 (3d Cir.1986). In addition, timely objection serves to preserve an adequate record for appeal. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). As the United States Supreme Court has stated, "[n]o procedural principle is more familiar to this Court than that a constitutional right may be...