State v. Rodriguez

• Citation: 429 A.2d 919,180 Conn. 382
• Court: Supreme Court of Connecticut
• Decision Date: 29 April 1980
• Parties: STATE of Connecticut v. Rubin RODRIGUEZ.

Page 919

429 A.2d 919

180 Conn. 382

STATE of Connecticut v. Rubin RODRIGUEZ.

Supreme Court of Connecticut.

Argued Oct. 9, 1979.

Decided April 29, 1980.

Louis S. Avitabile, Waterbury, for appellant (defendant).

Richard L. Shiffrin, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Domenick Galluzzo, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Rubin Rodriguez, was indicted by a grand jury of the crime of murder, which charged that on August 28, 1974, with intent to cause the death of Olga Vasquez, he did shoot her and cause her death in violation of General Statutes § 53a-54. ¹ Upon a trial to the jury, he was found guilty of the crime of manslaughter in the first degree. The court denied the defendant's motion to set aside the verdict and this appeal followed.

On appeal the defendant claims that the trial court erred: (1) in denying his motion to dismiss the jury panel; (2) in ruling that a child witness, Jose Serrano, was competent to testify at the trial; (3) in refusing to allow Carmen Colon, Jose Serrano's mother, to testify at the trial concerning her son's character for truth and veracity; (4) in refusing to admit into evidence at the trial the state's answer to a question contained in the defendant's motion for discovery; (5) in refusing to allow the defendant to testify at the trial as to what he said to the victim on the morning of her death; and (6) in denying the defendant's motion to set aside the verdict.

I

The defendant's motion to dismiss the jury array, the denial of which he has assigned as error, was based upon several grounds. The defendant first argues that General Statutes § 51-217 (Rev. to 1977), which established the qualifications of jurors prior to September, 1977, ² unconstitutionally encroached upon the judicial power and, hence, violated the doctrine of separation of powers. The defendant attempts to categorize General Statutes § 51-217 (Rev. to 1977) with the statute this court invalidated in State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974).

In Clemente, we said: " 'It is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.' " State v Clemente, supra, 509-10, 353 A.2d 728, quoting Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905). Statutes relating to the qualification of jurors are part of the machinery created by the legislature to prescribe appropriate remedies for those whose rights have been violated and to protect the rights of those accused of committing a crime. Trial by jury is a long-established and venerated attribute of anglo-american judicial systems. This right is guaranteed in both the state and federal constitutions. See Conn.Const., amend. IV; U.S.Const., amends. VI, VII. General Statutes § 51-217 (Rev. to 1977), which implemented that right, was substantive in nature. It was not inconsistent with the independence of the judicial department; see Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 594, 37 A. 1080 (1897); did not regulate procedure in the Superior Courts; see State ex rel. Kelman v. Schaffer, 161 Conn. 522, 529, 290 A.2d 327 (1971); and did not infringe upon the Superior Court's traditional exercise of its inherent discretionary power, as did the statute in Clemente. State v. Clemente, supra, 166 Conn. 516, 353 A.2d 723. See Kay, "The Rule-Making Authority and Separation of Powers in Connecticut," 8 Conn.L.Rev. 1, 4 (1975).

The defendant has not been able to present us with any authority for the proposition that legislatively prescribed juror qualifications encroach upon the judicial power. Our examination of the law of other jurisdictions discloses that even in those jurisdictions where the rule-making power resides exclusively in the judiciary, the legislature prescribes qualifications for prospective jurors. See, e. g., Colo.Rev.Stat. § 13-71-109; Miss.Code Ann. § 13-5-1; 17 Pa.Stat.Ann. §§ 1279, 1332 (Purdon). We conclude that the power to regulate reasonably the qualification of persons to serve as jurors in our courts was properly exercised by the legislative branch of our government by the enactment of § 51-217 (Rev. to 1977).

The defendant also claims that (1) General Statutes § 51-217 (Rev. to 1977), as it read at the time the members of the jury array, from which his petit jury derived, were summoned, ³ is unconstitutionally vague and does not provide sufficient "primary standards" to guide the jury committee members and jury commissioners; see General Statutes § 51-221; and (2) the statute providing for the selection of persons who make up the jury array from electors' lists of each town; see General Statutes § 51-221; deprives the defendant of his right to be tried by a jury drawn from a fair cross section of the community. We considered and rejected identical claims in State v. Brown, 169 Conn. 692, 696-98, 364 A.2d 186 (1975). See also Carter v. Jury Commission, 396 U.S. 320, 332-33, 90 S.Ct. 518, 524, 24 L.Ed.2d 549 (1970); United States v. Kelly, 349 F.2d 720, 778 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). ⁴ The defendant has presented us with no reason to depart from our decision in Brown and cites no constitutional authority requiring any such departure.

We conclude that the trial court did not err in denying the defendant's motion to dismiss the jury panel.

II

The defendant claims that the trial court erred in ruling that the witness Jose Serrano was competent to testify. We agree. Jose Serrano, a deaf mute, was the sole eyewitness of the shooting of Olga Vasquez. His testimony was, therefore, critical in this case. At the time of trial he was ten years old, and at the time of the death of Vasquez, he was nine. Upon Serrano's being offered by the state as a witness, defense counsel asked that the court determine his competency as a witness. At that time the court was informed that Serrano had to testify through interpreters. Two interpreters were qualified and utilized to elicit Serrano's testimony. Prior to the determination of Serrano's competency, the defense offered into evidence his school records from the American School for the Deaf, where he had been a student since 1972. Those records disclosed, among other things, that at the time of trial Serrano had the mental age of a six year old, was in the second grade, was profoundly deaf in that he could not distinguish sounds, such as between singing and a cowbell, could not read, and could only write his own name.

In the absence of the jury, the court held a hearing through the interpreters to determine whether Serrano was qualified to testify. Serrano stated his name and age and that he attended and liked school. Upon being asked if he knew what it was to tell the truth, the answer given by the interpreter was: "He nodded through expression on his face, yes." He was asked: "Will you promise to tell the truth and not a lie?" to which the interpreter responded: "He nodded his head, yes." He was also asked: "If you promise to tell the truth, and you tell a lie, do you understand you can be punished?" He answered "Yes." He also answered yes to the question, "Do you understand that it is your duty to tell the whole truth in this case?" The court then stated: "Ask him what happens if he doesn't tell the truth." The interpreter, after communicating with the witness, said: "From what I interpreted, it (his response) means that he won't tell a lie when he knows that he has to be honest." Thereupon, the court asked: "Does he understand that he has to tell the truth in this Court?" The interpreter then said to Serrano: "You know it is important that you have to tell the truth. And you will really tell the truth; you have to tell everything you say has to be honest?" The witness answered: "Yes."

Defense counsel asked if he knew what it meant to be afraid and the interpreter said: "He said noise." Upon being asked what "noise" was, the answer was: "A gun makes noise. When woman died, when she was shot. Gun." Upon being asked if he could hear noise in his ears he said: "A little bit."

After additional inquiry by the court and counsel, the trial court concluded: "Jose Serrano understands the oath of the witness and, therefore, is competent to testify." Defense counsel excepted to the ruling. On appeal, the defendant claims that the trial court erred in declaring Serrano competent to testify because Serrano could not receive correct sense impressions, did not understand the obligation of an oath, and had no intelligent comprehension of the facts sought to be developed.

The testimonial capacity of a child witness is a matter for the court to determine upon inquiry. State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In Connecticut, the examination to determine the competency of a witness is usually conducted by counsel under direction of the court, except insofar as the court may find it advisable to intervene. See State v. Orlando, 115 Conn. 672, 676, 163 A. 256 (1932). Because the competency of a witness is a matter peculiarly within the discretion of the trial court, its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, supra, 115 Conn. 675, 163 A. 256; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924).

In determining the competency of child witnesses, age is not the decisive factor. See Kuczon v. Tomkievicz, supra, 100 Conn. 570, 124 A. 226; McCormick, Evidence (2d Ed.) § 62. Instead, the trial court must consider "the proposed witness' maturity to receive correct impressions by his senses, ability to recollect and narrate intelligently, and ability to appreciate the moral...