State v. Tillman

• Decision Date: 03 December 1991
• Docket Number: No. 14085,14085
• Citation: 600 A.2d 738,220 Conn. 487
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James C. TILLMAN.

Page 738

600 A.2d 738

220 Conn. 487

STATE of Connecticut v. James C. TILLMAN.

No. 14085.

Supreme Court of Connecticut.

Argued Sept. 26, 1991.

Decided Dec. 3, 1991.

Berdon, J., dissented and filed opinion.

Charles D. Ray, Special Public Defender, for appellant (defendant).

Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Edward Narus, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, COVELLO, BORDEN and BERDON, JJ.

PETERS, Chief Justice.

In this criminal appeal, the principal issue is whether the defendant, James C. Tillman, has adduced sufficient evidence to demonstrate that the process of selecting his jury array was managed in an unconstitutionally discriminatory manner. The state charged the defendant with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B), sexual assault in the first degree in violation of General Statutes § 53a-70(a), robbery in the third degree in violation of General Statutes § 53a-136(a), assault in the third degree in violation of General Statutes § 53a-61(a)(1), and larceny in the second degree in violation of General Statutes § 53a-123(a)(3). ¹ After a jury trial finding the defendant guilty as charged, the trial court rendered a judgment sentencing him to a total effective term of forty-five years imprisonment. The defendant appealed to the Appellate Court, and we transferred his appeal here in accordance with Practice Book § 4023. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of January 21, 1988, at about 11 p.m., the victim finished her work at an insurance company in Hartford and moved her car from her company's garage to an outside parking lot on Columbus Boulevard so that it would be easier to retrieve later. After having gone to a bar with her supervisor and coworkers, she returned to the car with her supervisor at about 12:45 a.m. Her supervisor left after observing her start her car and put her car lights on.

In the process of backing the car up, the victim noticed that she did not have her seat belt on and that the driver's side door was not locked. As she stopped to remedy this situation, the defendant opened the driver's side door and attempted to enter her car. When she asked what he was doing, the defendant punched her in the face, then reached in and turned off the ignition. He then hit her again and pushed her over to the passenger side of the car. When she screamed and tried to get out through the passenger door, he reached over, locked the door and hit her several more times.

The defendant, thereafter, started the car, but could not keep it from stalling because he was unfamiliar with a standard transmission. Finally, after fifteen to twenty minutes, he drove out of the parking lot and, a few minutes later, parked in another small outside lot. He took the victim's purse and jewelry, and then sexually assaulted her. After rifling through her briefcase, he drove the car out of the lot. He then stopped the car and ran off with her purse.

The defendant does not challenge the sufficiency of this evidence, if believed by the jury, to sustain his convictions. He maintains, however, that he is entitled to a new trial for three reasons: (1) the selection of jury panels was unconstitutionally discriminatory; (2) the trial court improperly instructed the jury on identification, consciousness of guilt, and the use of prior inconsistent statements; and (3) the trial court improperly ruled that the field notes of a police social worker were inadmissible as hearsay. To the extent that these claims are entitled to a plenary review, we conclude that they do not establish the defendant's right to a new trial.

I

The defendant's claim of unconstitutional discrimination in the selection of the jury array arose in the following factual context. During voir dire, after six jurors had been selected, a supplemental panel was called for the selection of two alternates. The defendant, a black male, complained that the composition of the panels was discriminatory because they contained no black males and only one resident of Hartford. He requested that the clerk send in a new panel that would be more representative of the defendant's race and residence. The trial court ruled that the motion was untimely unless counsel could present evidence that the clerk was choosing people improperly. Defense counsel replied that he had no such evidence, but would speak with the jury clerk.

Several days later, defense counsel advised the trial court that he had been told by the clerk that jurors were being routinely dismissed for economic hardship if they could provide documentation that their employers would not pay the difference between their daily jury pay of $10 and their normal wages. The clerk's reasons for doing this, according to counsel, were that forcing such individuals to serve on a jury would cause them economic disadvantage, and that the clerk felt that such economically disadvantaged persons would not make good jurors. The clerk reportedly acknowledged that a disproportionate number of minorities would be excused on this basis.

The trial court overruled the defendant's objection to the makeup of the panels. After trial, in a motion for a new trial, the defendant reiterated his claim that the absence of black male jurors and of more than one Hartford resident on either panel violated his constitutional rights. The court denied the motion, noting that the six jurors who decided the case had been chosen before the issue was raised.

One basis for a constitutional challenge to the composition of a jury array is the standard set forth in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Id., at 367-68, 99 S.Ct. at 670; see State v. McCarthy, 197 Conn. 247, 250, 496 A.2d 513 (1985); State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984).

The defendant maintains that the Duren standard has been violated in his case because the jury selection process tended to exclude or underrepresent a discernible class of persons, namely, people who are not compensated by their employers during jury duty, and because these persons were systematically excluded in the jury selection process. He also alleges that this discrimination produced an underrepresentation of blacks and Hartford residents from his panel.

A jury array that does not violate Duren by underrepresenting any distinctive group may nonetheless be challenged if unconstitutional criteria were used in selecting its members. In State v. Nims, 180 Conn. 589, 430 A.2d 1306 (1980), we ordered a new trial when the jury clerk had been shown to have divided the array cards from which the jury panels were to be chosen into separate piles for men and women. While this procedure did not result in the underrepresentation of either sex, we held that it did discriminate on the basis of sex. "[A]ny attempt to stack a jury panel by intentionally including or excluding any members of a discernable class runs afoul of both due process and the right to a jury trial." Id., at 595-96, 430 A.2d 1306. "The end result ... is irrelevant. It is the method of selection which offends the constitution." (Emphasis in original.) Id., at 597, 430 A.2d 1306. The defendant argues that, as in Nims, his jury was selected according to unconstitutional criteria.

Before considering the merits of the defendant's claims under Duren and Nims, we must address the state's argument that the defendant's objection to the jury selection process was not timely raised. The state relies principally upon Practice Book § 842, which provides: "Any party may challenge an array on the ground that there has been a material departure from the requirements of law governing the selection and summoning of an array. Such challenge shall be made within five days after notification of the hearing or trial date, unless the defect claimed has arisen subsequent to the time required to make such motion."

The state's reliance on Practice Book § 842 is not persuasive. Concededly the defendant did not question the composition of the jury venire until six jurors had been selected, but it was only the composition of the second panel of jurors that aroused his suspicion that there was a possibility that black males or Hartford residents were being systematically excluded. Although State v. Ferraro, 146 Conn. 59, 63, 147 A.2d 478 (1958), cert. denied, 369 U.S 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962), holds that "a challenge to the array comes too late if it is made after the verdict, even though the irregularity may not previously have been known," the defendant in this case called the irregularity to the attention of the court long before the jury was called upon to reach its verdict. Moreover, the irregularity in Ferraro was merely the failure to follow the procedural requirements of a statute: the names of the veniremen had been drawn by a deputy sheriff instead of a clerk. In this case, by contrast, the defendant has mounted a constitutional challenge to the validity of the jury selection process. See State v. Nims, supra, 180 Conn. at 593-97, 430 A.2d 1306 (ordering a new trial when an...