State v. Vitale

• Citation: 460 A.2d 961,190 Conn. 219
• Court: Supreme Court of Connecticut
• Decision Date: 31 May 1983
• Parties: STATE of Connecticut v. Edward VITALE.

Page 961

460 A.2d 961

190 Conn. 219

STATE of Connecticut v. Edward VITALE.

Supreme Court of Connecticut.

Argued Feb. 2, 1983.

Decided May 31, 1983.

Richard Emanuel, Asst. Public Defender, with whom, on brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Michael Dearington, Asst. State's Atty., for appellee (state).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

Upon an indictment charging the defendant with murder, the jury found him guilty of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). The defendant has appealed from the judgment claiming (1) that the loss of the court reporter's notes during portions of the jury selection, as well as the failure of the reporter to record the closing arguments of counsel, deprived him of his constitutional right of appellate review of the entire proceedings in the trial court; (2) that his right to a trial by an impartial jury was violated by the denial of his motions to change venue, to exclude veniremen from two towns where newspaper accounts of the crime had been widely circulated, and to declare a mistrial; (3) that his right to counsel was infringed by allowing into evidence certain admissions which he made to the police after being arrested for an unrelated offense; and (4) that he was entitled to a charge refused by the court upon assault in the first degree as a lesser offense included in the murder indictment. ¹ On the present state of the record we find no error. We remand for further proceedings, nevertheless, to allow the defendant an opportunity to perfect the record in order to present any claims of error related to the jury selection proceedings.

There is no significant dispute about the facts which the jury could reasonably have found in support of their verdict. On October 29, 1977, at about 2 p.m., the body of Donald E. Lesse was discovered floating in the Connecticut River in Cromwell. He had last been seen alive the previous afternoon.

After an autopsy, the state medical examiner determined that Lesse had died twenty-four to forty-eight hours prior to the discovery of his body and that his death had resulted from multiple gunshot wounds to the head, chest and extremities. Three bullets were retrieved from the body of the victim, consisting of two .38 caliber fragments, a .38 caliber "wad cutter" and a .32 caliber copper-jacketed bullet.

There was evidence that the defendant often carried two guns, one of which was a .38 caliber weapon which used "wad cutter" ammunition. Lesse frequently carried a .22 caliber revolver and he had been convicted several times for violent crimes. In September, 1977, he had been released from prison, and the defendant, with whom he was previously acquainted, had offered him a job at a private social club in Meriden which the defendant managed. Lesse was permitted to live at the club and he did reside there until his death on Friday, October 28, 1977. During his employment of approximately one month at the club, Lesse engaged in several activities which upset customers of the club and presumably his employer. He used "strong arm" tactics, sometimes with a gun, to collect delinquent "bar tabs" owed to his employer and often kept the money received. He was accused of sexually assaulting a young woman at the club in the presence of some customers.

There was evidence that on Friday, the day of Lesse's death, the defendant locked the club for the evening. Later he commented to a bartender, for whose services that evening he had made arrangements on the previous day, that business was slow and that Lesse had left town. The very next day the defendant employed at the club two men who replaced a piece of missing carpet, removed bullets from a wall, repaired bullet holes, and washed away blood stains extending from the floor to the ceiling on part of a wall. The defendant remarked that one of the bullets removed from a wall "must have been the one that went into his leg." The defendant also requested one of the men to dispose of a cardboard box containing blood stained clothes and carpeting. He later admitted to these men that he had shot Lesse several times, that Lesse had tried to rip him off and that it was necessary to get rid of Lesse.

I

An affidavit of the court reporter states that the stenographic notes taken during the voir dire examination of veniremen on April 16, April 20, April 23, and the afternoon of April 17, 1979, have been lost and cannot be transcribed. Although he concedes that no attempt has been made to reconstruct the missing portions of the jury selection proceedings, the defendant claims that it is practically impossible to do so and that he is automatically entitled to a new trial because of the possibility that some error may have occurred which cannot be properly reviewed in the absence of a transcript. Some of the federal courts have held that where a defendant is represented by new counsel on appeal, as in this case, a presumption of prejudice sufficient to mandate a new trial arises whenever there is a substantial and significant omission in the transcript. United States v. Taylor, 607 F.2d 153, 154 (5th Cir.1979), remanded in part, 631 F.2d 419 (5th Cir.1980); United States v. Brumley, 560 F.2d 1268, 1281 (5th Cir.1977); United States v. Selva, 559 F.2d 1303, 1305 (5th Cir.1977). The majority rule, however, is that the absence of a portion of the transcript does not warrant a new trial unless the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant. State v. Stafford, 223 Kan. 62, 64, 573 P.2d 970 (1977); Smith v. State, 291 Md. 125, 137, 433 A.2d 1143 (1981); Commonwealth v. Harris, 376 Mass. 74, 77-79, 379 N.E.2d 1073 (1978); People v. Glass, 43 N.Y.2d 283, 286-87, 401 N.Y.S.2d 189, 372 N.E.2d 24 (1977).

Although an available transcript must ordinarily be furnished to an indigent defendant, or at least the portions thereof which are relevant to any possible claim of error; Hardy v. United States, 375 U.S. 277, 279, 84 S.Ct. 424, 426, 11 L.Ed.2d 331, motion for modification denied, 376 U.S. 936, 84 S.Ct. 790, 11 L.Ed.2d 657 (1964); Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921-922, 8 L.Ed.2d 21 (1962); "[a]lternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise." Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963).

We are not persuaded that an effort to reconstruct any part of the voir dire which might be the subject of a claim of error would be fruitless or unduly onerous. ² Such an attempt has been successful in providing a sufficient record in the form of a stipulation by the parties of the pertinent facts and circumstances of the April 16, 1979, hearing of the defendant's motion to transfer prosecution, for which the stenographic notes were also unavailable. With respect to the voir dire examination, the possible claims of error which might be raised on appeal are greatly curtailed by the circumstance that the defendant appears not to have exhausted all of his peremptory challenges. ³ "Where a prisoner has failed to exhaust his right of peremptory challenge, it is no ground for granting him a new trial that a challenge for cause was overruled." State v. Smith, 49 Conn. 376, 379 (1881); State v. Hoyt, 47 Conn. 518, 529 (1880). "The right to challenge is the right to reject, not to select a juror." Hayes v. Missouri, 120 U.S. 68, 71, 7 S.Ct. 350, 352, 30 L.Ed. 578 (1887). Unless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others. See Stroud v. United States, 251 U.S. 15, 21, 40 S.Ct. 50, 52-53, 64 L.Ed. 103 (1919), reh. denied, 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317 (1920); Spies v. Illinois, 123 U.S. 131, 168, 8 S.Ct. 21, 25, 31 L.Ed. 80 (1887); Hopt v. Utah, 120 U.S. 430, 436, 7 S.Ct. 614, 616-617, 30 L.Ed. 708 (1887); United States v. Ragland, 375 F.2d 471, 475 (2d Cir.1967); annot., 72 A.L.R.2d 905, 908-909; 47 Am.Jur.2d, Jury § 218.

We hold that the unavailability of the transcript of portions of the voir dire proceedings, which has resulted from no fault of the parties, does not warrant a new trial unless those proceedings which might be the basis for a claim of error cannot be sufficiently reconstructed for that purpose. Commonwealth v. Harris, supra, 376 Mass. 77, 379 N.E.2d 1073. Until there has been an appropriate showing that such reconstruction cannot be accomplished, the conviction of the defendant must stand. People v. Glass, supra, 43 N.Y.2d 286, 401 N.Y.S.2d 189, 372 N.E.2d 24. In view of the defendant's admission that no effort has been made to reconstruct the missing voir dire proceedings, the case must be remanded to the trial court to provide an opportunity to do so. Commonwealth v. Harris, supra, 376 Mass. 79-80, 379 N.E.2d 1073; but cf. People v. Glass, supra; Smith v. State, supra, 291 Md. 138, 433 A.2d 1143 (judgment of conviction affirmed where defendant made no effort to reconstruct proceedings). We must defer consideration of any possible claims of error related to the unrecorded portions of the voir dire until such a further proceeding in the trial court has been completed.

With respect to the further claim of the defendant that the unavailability of a transcript of the closing arguments also requires a new trial, it appears that no request was made by counsel that these arguments be recorded. General Statutes § 51-61 requires a court reporter to "attend the court and make accurate records of all proceedings in ...