State v. Townsend

• Decision Date: 04 February 1975
• Citation: 167 Conn. 539,356 A.2d 125
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lawrence E. TOWNSEND.

Page 125

356 A.2d 125

167 Conn. 539

STATE of Connecticut v. Lawrence E. TOWNSEND.

Supreme Court of Connecticut.

Feb. 4, 1975.

Certiorari Denied Oct. 6, 1975. See 96 S.Ct. 84.

Michael P. Koskoff, Sp. Public Defender, with whom, on the brief, was Lucy Katz, Stanford, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Joseph T. Gormley, Jr., Chief State's Atty., Donald A. Browne, State's Atty., and Richard F. Jacobson, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

The defendant was charged with two counts of assault with intent to murder in violation of General Statutes § 53-12, tried to a jury of twelve, and found guilty of two counts of aggravated assault in violation of General Statutes § 53-16. He has appealed from the judgment rendered on the verdict assigning various errors which he claimed occurred prior to and during the trial.

The state offered evidence to prove the following: On January 5, 1971, Bridgeport police officers Joseph Convertito and Paul Lengyel were on duty and assigned to gather information on what they deemed to be subversive or militant groups. They were in civilian clothes and drove an unmarked police vehicle. While on Broad Street they observed the defendant behind the wheel of a black Cadillac which was parked at the curb and which appeared to be stuck in the snow. Convertito knew that the defendant had used this car and that his license was under suspension. The engine of the Cadillac was running and the car was rocking and shaking. Two men were near the Cadillac. When the police vehicle stopped opposite the Cadillac, one of the men tried to stop Convertito from exiting, but he managed to get out. Lengyel exited from the other door and both officers approached the Cadiallac. In the meantime, the defendant placed the gear selector into park, slid across the seat and exited from the right front door of the Cadillac. It was the intention of the officers to question and arrest the defendant for operating a motor vehicle while his license was under suspension. While the defendant was on the sidewalk both officers displayed their badges and both called to the defendant stating in effect that they wanted to talk to him. The defendant backed away and the officers walked toward him. When they were about fifteen feet away, the defendant stopped and asked the officers in an obscene manner why they did not leave him alone. He then pulled out what appeared to be a .45 caliber semiautomatic weapon and fired two shots at the officers. Both officers ran for cover. Convertito fell and landed half in the street and half on the sidewalk. As he ran past Convertito, the defendant shot at him from a distance of about five or six feet. Lengyel by that time was behind the Cadillac, and, as the defendant went by, he fired a short at Lengyel from a distance of two or three feet. This bullet shattered the rear window of the Cadillac. At this point neither officer had taken his revolver out of his holster. While the defendant was in the middle of the street, about twenty to thirty yards behind the Cadillac, he fired a shot, then turned and ran into a housing complex. Convertito fired six shots at the defendant, and Lengyel also fired from his revolver. The defendant escaped and was not arrested until later when he surrendered to the police. He was taken to a hospital for treatment for three leg wounds. More facts with greater detail were offered by the state, but the recited facts provide a sufficient background for discussion of the claims on appeal.

The defendant challenged the jury array selection process claiming both statutory and constitutional infirmities. At the hearing prior to trial, the defendant presented evidence through testimony of members of jury committees representing fourteen of the twenty-three towns comprising Fairfield County. The court found, in part, as follows: ¹ Each town jury commissioner was sent instructions in accordance with § 51-217 of the General Statutes. Jurors were selected from the towns' lists of qualified electors. Seven towns selected names at predetermined intervals from the elector lists, for example, every fifth, tenth or fifteenth name. Three towns chose names at predetermined intervals within each letter of the alphabet to get a proportionate number of names from each letter. One town divided the list alphabetically and selected a given number of names at random from each letter. Two towns chose so as to list a proportionate number of names from each street. One town placed each elector's name on a piece of paper, divided the papers by election wards and then drew names at random in proportion to the population of each ward. All committees excluded those on a list of permanently disqualified persons received from the court clerk and all persons whose names had been submitted the previous year. Three towns tried to obtain a balanced number of men and women on their lists. Three towns did not choose both husband and wife from the same family. Some towns elected to exclude persons exempted from jury duty by statute; § 51-219; without determining if such persons desired to serve. No one was excluded from any town list of potential jurors because of race, religion, sex, employment, political affiliation or membership in any class or group.

Each town committee submits its list of potential jurors to the county jury commissioners, who then send out questionnaires to all persons listed. On the basis of returned questionnaires all persons who, in the judgment of the commissioners, did not speak English, all nurses, lawyers, firemen, members of the federal and state militia, cases of extreme hardship, and those who had served on a jury the previous year, were eliminated. The names of the remaining potential jurors were turned over to the clerk of the Superior Court who keeps the names in boxes according to town. He determines how many names are to be drawn from each box, considering such factors as seasonal weather conditions and geographic area, so that fewer jurors are drawn from towns some distance from the courthouse in the winter and fewer from the Bridgeport area in the fall and spring. In 1971, the city of Bridgeport failed to supply 200 of its allotment of 1012 potential jurors. One finding indicates that on the June, 1971 panel seventeen names out of approximately 300 were from Bridgeport. An inconsistent finding indicates that the June, 1971 panel consisted of 330 jurors of which approximately fifty were from Bridgeport.

The defendant's claim of statutory violations in the selection process applies to the doings of jury committees in only fourteen of the twenty-three towns in the county; no evidence was offered to show deficiency in the selection process in nine towns. 'A challenge to the array of jurors is an objection to the whole panel of jurors at once, and in order to be available it must be for a cause that affects all the jurors alike.' State v. Hogan, 67 Conn. 581, 583, 35 A. 508. See also State v. Cobbs, 164 Conn. 402, 413, 324 A.2d 234; State v. Luria, 100 Conn. 207, 209, 123 A 378; 47 Am.Jur.2d, Jury, § 224; 5 Wharton, Criminal Law and Procedure § 1961. Since the challenge did not attack the validity of the entire panel it was inadequate on its face. State v. Cobbs, supra, 414; State v. Hogan, supra. Consequently, claims relating to statutory irregularities in the selection of jurors are not considered. ² State v. Cobbs, supra.

Despite the ineffectiveness of the challenge to the array based on statutory violations, the record was examined to determine whether the defendant was prejudiced by the manner of selection. It is noteworthy that the findings that no one was excluded from any town list of potential jurors because of race, religion, sex, employment, political affiliation or membership in any class or group are not challenged (p. 9, supra). It does not appear that the rights of the defendant were prejudiced by the manner in which the panel was selected from the fourteen towns examined. State v. Chapman, 103 Conn. 453, 471-472, 130 A. 899. See State v. Ferraro, 146 Conn. 59, 147 A.2d 478, cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283; 50 C.J.S. Juries, § 175.

In his challenge to the array, the defendant also asserted that the Connecticut statutes are unconstitutional because they mandate a systematic discrimination against black persons and thereby deny the defendant a jury representative of the community of which he is a part. It is part of the established tradition in this country that an impartial jury be drawn from a cross section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84. 'This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, recial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.' Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181.

The law does not require one system of selection over another nor does it require a system that would reach the best source of jurors. The federal constitution demands only that the system used by the state to select jurors produce an array which reflects a cross section of the county and from which a cognizable group or class of citizens has not been systematically excluded. State v. Villafane, 164 Conn. 637, 644, 325 A.2d 251; see Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. The selection process, of course, must be guided by pertinent statutory provisions. Thiel v. Southern Pacific Co., supra.

The defendant claims that General Statutes §§ 51-217, 51-221 and 51-223, amended by ...