State v. Smith

• Decision Date: 16 October 1997
• Docket Number: No. 16374,16374
• Citation: 700 A.2d 91,46 Conn.App. 600
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Joshua C. SMITH.

Page 91

700 A.2d 91

46 Conn.App. 600

STATE of Connecticut v. Joshua C. SMITH.

No. 16374.

Appellate Court of Connecticut.

Argued March 19, 1997.

Decided Sept. 9, 1997.

Certification Denied Oct. 16, 1997.

Richard T. Meehan, Jr., Bridgeport, with whom, on the brief, was Richard T. Meehan, Sr., for appellant (defendant).

Judith Rossi, Assistant State's Attorney, with whom, on the brief, were Eugene Callahan, State's Attorney, and James Bernardi, Assistant State's Attorney, for appellee (State).

Before LANDAU, SCHALLER and SPEAR, JJ.

SCHALLER, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the trial court improperly (1) failed to prohibit, sua sponte, the parties from employing "hypothetical" questions during voir dire, (2) concluded that the evidence presented at trial was sufficient to prove the defendant's guilt beyond a reasonable doubt, and (3) allowed one of the state's witnesses to testify that he believed that an attempt to stab him was based on his status as an eyewitness to the shooting in this case. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 11, 1994, the victim, Devon Laidley, and his girlfriend, Tonia McKoy, were at a house at 167 South Main Street in the city of Norwalk. The defendant arrived at the residence, stood on the front porch and engaged in a conversation with a friend, Willis Heron. Subsequently, the victim emerged from the residence and walked down the driveway toward a gate near the front sidewalk. Suddenly the defendant jumped off the porch, pulled out a gun and fired at the victim, who was standing at the gate. When the shots were fired, the victim tried to run away from the defendant. The defendant, still firing his gun, pursued the victim. When the victim stumbled and fell to the ground, the defendant approached him and fired the gun at him two or three more times at close range. In total, the defendant fired approximately nine to twelve shots at the victim. The victim later died, and an autopsy revealed that he was hit by eight bullets, one of which pierced his heart. Both Heron and McKoy witnessed the killing. Additional facts will be discussed throughout this opinion where relevant.

I

During voir dire, both the state and the defendant posed questions to the venirepersons regarding their objectivity in assessing the credibility of prosecution witnesses who were testifying in exchange for the state's agreement to nolle certain drug charges against them. The defendant first claims that the trial court improperly failed to prohibit, on its own motion, the parties from asking those questions during voir dire. Specifically, the defendant claims that the trial court had a duty to prohibit both parties from posing those allegedly improper "hypothetical" questions during voir dire. We disagree.

The defendant failed to raise this claim at trial and now seeks review under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). ² We agree with the defendant that the record is adequate for review, and that the allegedly improper voir dire questions implicate the constitutional right to an impartial jury and to a fair trial, thereby satisfying the first two prongs of State v. Golding, supra, at 239, 567 A.2d 823. Therefore, we will examine the defendant's claim to determine whether the alleged violation clearly exists and clearly deprived him of a fair trial in violation of the third Golding prong.

We start with the principle that the right to question prospective jurors in a criminal proceeding is a fundamental right that contributes to a fair trial. "The right to question each juror individually by counsel shall be inviolate." Conn. Const., art. I, § 19, as amended by art. IV of the amendments. The legislature has also recognized the importance of questioning jurors by enacting General Statutes § 54-82f, which provides in relevant part: "In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto...." See also Practice Book § 848.

We also recognize that the trial court has been granted broad discretion to ensure the fairness of the voir dire process. " 'The extent to which parties should be allowed to go in examining jurors as to their qualifications is a matter largely resting in the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where harmful prejudice appears to have been caused thereby.' " State v. Sheets, 40 Conn.App. 328, 331, 671 A.2d 366, cert. denied, 237 Conn. 903, 674 A.2d 1334 (1996). In the exercise of this discretion, "the court should grant such latitude as is reasonably necessary to accomplish the two-fold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their peremptory challenges." State v. Scuilla, 26 Conn.App. 165, 173, 599 A.2d 741 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1362 (1992).

Whenever there is a likelihood that prejudice may exist in a prospective juror that will affect the outcome of the case, the party affected thereby should be afforded sufficient latitude to uncover such prejudice. State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985). That latitude is limited by the impropriety of questioning prospective jurors regarding their predisposition to decide issues with respect to evidence that may be offered at trial or with the intent to condition them to prejudge issues that will affect the outcome of the trial. State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973). While certain hypothetical questions posed to prospective jurors during voir dire are improper; see State v. Anthony, 172 Conn. 172, 175-76, 374 A.2d 156 (1976) (eliciting from prospective juror in advance what decision would be under particular set of facts not permitted); hypothetical questions are proper when attempting to assess a prospective juror's capacity to judge credibility. State v. Pollitt, 205 Conn. 61, 75, 530 A.2d 155 (1987) (questions regarding witness credibility proper to determine whether prejudice existed in prospective jurors).

In this case, the hypothetical questions posed to prospective jurors related solely to their ability to judge the credibility of witnesses. Both the state and the defendant questioned prospective jurors regarding their ability to judge objectively the credibility of a witness' testimony when that witness was testifying pursuant to a cooperation agreement with the state. ³ These questions were designed to uncover prospective jurors' potential prejudice with respect to the veracity of a witness who was testifying in exchange for the state's promise not to prosecute that witness for certain drug charges. Indeed, several venirepersons who were questioned on this point stated that they generally disfavor such arrangements with prosecutors. As a result of this questioning, specific venirepersons testified that they might be less inclined to assess objectively the particular witness' testimony given that witness' motivation to testify. ⁴

The questions at issue in this case went directly to the prospective jurors' ability to assess the credibility of witnesses who would be called at trial. The questions were not attempts to elicit opinions from prospective jurors regarding how they would rule on a certain stated set of facts, or to condition them to prejudge pivotal issues that would affect the outcome of the trial. Because these questions were proper, and the trial court was justified in allowing counsel to probe prospective jurors on their ability to assess witness credibility through the use of hypothetical questions, the defendant's claim fails the third prong of Golding. See State v. Pollitt, supra, 205 Conn. at 75, 530 A.2d 155 (questions permitted by court regarding witness credibility adequate alternative for uncovering prejudice in prospective jurors); State v. Fritz, 204 Conn. 156, 165-66, 527 A.2d 1157 (1987) (improper for court to exclude questions regarding prospective jurors' predisposition to lend greater credibility to police officer serving as witness); State v. Dolphin, 203 Conn. 506, 516, 525 A.2d 509 (1987) (same); State v. Scuilla, supra, 26 Conn.App. at 173-74, 599 A.2d 741 (court allowed counsel sufficient latitude to uncover possible prejudice regarding ability to assess witness credibility). ⁵

The defendant also urges us to review his claim under the plain error doctrine. Plain error review is utilized only in extraordinary circumstances and situations in which "the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). Since we have concluded that the hypothetical questions during voir dire were proper under the circumstances, plain error review is not warranted.

II

The defendant next claims that there was insufficient evidence to support his murder conviction. To support his claim, the defendant points to inconsistencies in the testimony of certain witnesses regarding the height of the gunman. He also cites the inability of one witness to provide the gunman's name to the police immediately after the incident, and another witness' failure to come forward offering to testify until over one year later.

"When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the...