State v. Villafane

• Decision Date: 02 May 1973
• Citation: 325 A.2d 251,164 Conn. 637
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Maximino VILLAFANE.

Page 251

325 A.2d 251

164 Conn. 637

STATE of Connecticut v. Maximino VILLAFANE.

Supreme Court of Connecticut.

May 2, 1973.

Donald A. Browne, Asst. State's Atty., with whom, on the brief, was Joseph T. Gormley, Jr., State's Atty., for appellant (state).

L. Scott Melville, Bridgeport, for appellee (defendant).

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

LOISELLE, Associate Justice.

The defendant was indicted for the crime of first-degree murder by an eighteen- member grand jury on December 6, 1971. On December 10, 1971, the defendant entered a plea of not guilty to the murder indictment and on February 29, 1972, filed in one pleading a combined plea in abatement and motion to quash. The defendant's primary claim in the plea in abatement and motion to quash was that the grand jury which indicted him was illegally impaneled, in that a systematic exclusion of persons of the same recial, ancestral or cultural background as that of the defendant, who is of Puerto Rican parentage, was practiced in the selection of the grand jury.

Following a hearing on the pleadings, the court sustained the defendant's plea in abatement and motion to quash. In accordance with General Statutes § 54-96 the court granted the state permission to appeal. The state has assigned error in several of the court's conclusions. The trial court's conclusions are tested by the finding. ¹ Sea Beach Ass'n v. Water Resources Commission, 164 Conn. 90, 318 A.2d 115; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645.

The finding reveals the following facts which are relevant to the claims pressed by the state. During the nine years from 1963 to 1972 John P. Previdi, as sheriff of Fairfield County, selected individuals to serve on grand juries. Sheriff Previdi maintains a list or panel of individuals who are residents of all the towns in Fairfield County with the exception of the communities of New Fairfield, Sherman, Redding and Wilton. This panel of potential grand jurors includes individuals with different occupations and with a wide range of ages. The list has been altered by approximately twenty-five names during the previous nine years for a variety of reasons. Sheriff Previdi's selections for the various grand juries during the period from 1963 through 1971 were restricted to the list of 138 names maintained in his office. The list was composed largely of friends and acquaintances of the sheriff. In an attempt to obtain more Puerto Rican individuals for his panel of potential grand jurors, Sheriff Previdi requested the assistance of the registrar of voters in Bridgeport, A. Edward Sandula. To determine whether Puerto Rican individuals were systematically excluded from grand jury participation, the defendant recruited a committee headed by Kathleen Earley to conduct a survey. This committee, which included three persons who had received training in the Spanish language, counted the number of Spanish-sounding surnames appearing on voting lists for the years 1963, 1966, 1969, 1970 and 1971 for Bridgeport, Norwalk, Stratford, Danbury, Fairfield, Stamford and Trumbull. The committee could ascertain only if a name generally appeared to be of Spanish origin and would count as Spanish-surnamed anyone with a name of Hispanic origin. It was assumed that no Spanish-surnamed electors lived in the remaining towns in the county. The results of the seven-town survey indicated that in 1971 approximately 1.35 percent of the total of 373,575 electors in Fairfield County were Spanish-surnamed. The survey showed that in 1970 1.11 percent of the electors were Spanish-surnamed. The percentage of Spanish-surnamed electors in the county for the following years was not computed, but a simple analysis of the raw data in the finding reveals that in 1969 .9 percent, in 1966 .8 percent and in 1963 .5 percent of the population were Spanish-surnamed. The nine-year average is therefore approximately .93 percent.

A publication of the greater Bridgeport regional planning agency dated August, 1971, shows Spanish-speaking persons as one of three recial categories considered and certain sections of Bridgeport and Danbury are predominantly Puerto Rican in character. The court found further that a total of 738 selections for grand jury service were made during the nine-year period between 1963 and 1971 and that only two persons of the 738 selected were Puerto Rican. After analyzing the data of the defendant's exhibit, and the testimony of an expert witness, the court found that based on established statistical methods the chance of selecting only two Spanish- surnamed electors out of 738 selections was 2000 to 1, and that such a result was not consistent with a random selection. In addition, the court found that the selection of one Spanish-surnamed grand juror over the period 1969-71 was not consistent with a random selection of grand juries and, similarly, the selection of no Spanish-surnamed grand jurors in 1971 was not a result of a random selection. In determining the existence or nonexistence of randomness in the selection process, the percentage of Spanish-surnamed electors in the seven towns surveyed was an essential factor. The contents of the defendant's exhibits made part of the findings show that a nine-year average of 1.6 percent was employed by the defendant's expert in arriving at his conclusions which were accepted in the finding.

While the finding is more extensive than the brief narrative presented here, the foregoing statement is sufficient to review the conclusions attacked by the state.

The conclusions reached by the trial court are tested by the finding and must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500; Lewis v. Lewis, 162 Conn. 476, 480, 294 A.2d 637; Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 205-206, 292 A.2d 899.

The state during oral argument abandoned its claim that the defendant's motions were untimely. This claim will not be considered.

It must be noted at the outset that both parties agree that the issue here involves the claimed systematic exclusion of Puerto Rican electors from grand jury service. The court's references to Spanish-speaking electors are simply an alternative identification of the class of Puerto Rican electors involved in this case.

The state has assigned error in the court's conclusion that Spanish surnames serve as a sufficiently accurate and reliable guide in determining the number of Puerto Rican electors eligible for grand jury duty in Fairfield County. The state produced no evidence to demonstrate that this methodology was inaccurate or would introduce measurable error into the calculations. Instead, the state relied on repeated assertions that this method of determining the number of Puerto Rican electors was inherently inaccurate and imprecise.

The court's conclusion is logically consistent with its finding. The survey in one instance was crosschecked by two different groups with the result that only a two-name difference out of a total count of 370 names was discovered. An estimate of Puerto Rican electors in Bridgeport made by the register of voters for Bridgeport, relying on actual place of birth of the elector, found 4 1/2 to 5 percent of the total number of electors in Bridgeport were Puerto Rican. This result closely paralleled the data in the defendant's survey. It cannot therefore be said that the court's conclusion that Spanish surnames were a reasonably acceptable and reliable method of determining the number of Puerto Rican electors was logically inconsistent with the finding.

Furthermore, the use of Spanish surnames as a measure of the electoral strength of Mexican-Americans has been viewed favorably by the United States Supreme Court. In Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866, the state of Texas challenged reliance on surnames as a device for showing the descent of persons. The Supreme Court there held (p. 480 n. 12, 74 S.Ct. p. 671) that, 'just as persons of a different race are distinguishable by color, these Spanish names provide ready identification of the members of this class.' The use of Spanish surnames as a measure of the size of the class of Mexican-American voters was similarly accepted in Montoya v. People, 141 Colo. 9, 345 Kan. 46, 318 P.2d 662. The survey technique Kan. 46, 318 P.2d 662. The survey technique employed here thus has been held to be permissible as a measure of the Mexican-American population in the southwest. The finding indicates that the procedure employed achieved an acceptable level of reliability in measuring the Puerto Rican electoral population of Fairfield County. Puerto Rican electors make up a significant minority of voters in Fairfield County and are easily recognizable and identifiable by their Spanish surnames. The court was not in error in relying on Spanish surnames as a device for identifying the percentage of Puerto Rican electors in Fairfield County.

The state has also assigned error in the court's conclusion that it could not determine whether the names Douglas Bora, Amadeo Morrello and Ferdinand Equi were of Hispanic origin. The state claims that these names are Spanish surnames and that these individuals have served on various grand juries in Fairfield County. There is no evidence in the finding which would establish that Bora, Morrello and Equi are Spanish surnames. The court's conclusion is thus not legally or logically inconsistent with the finding and must be accepted. ²

The remaining assignments of error attack the court's conclusions that the defendant had established a prima facie case of systematic exclusion of Puerto Rican individuals in the selection of grand jurors and that the method of selection used violated the equal protection clause of the fourteenth amendment to the...