State v. Washington

• Decision Date: 09 December 1980
• Citation: 182 Conn. 419,438 A.2d 1144
• Court: Connecticut Supreme Court
• Parties: , 21 A.L.R.4th 435 STATE of Connecticut v. Eric WASHINGTON.

Page 1144

438 A.2d 1144

182 Conn. 419, 21 A.L.R.4th 435

STATE of Connecticut v. Eric WASHINGTON.

Supreme Court of Connecticut.

Argued Dec. 11, 1979.

Decided July 1, 1980.

Reargued Oct. 14, 1980.

Decided Dec. 9, 1980.

Donald D. Dakers, Asst. Public Defender, with whom, on the brief, were Joette K. Rubin, Asst. Public Defender, and Thomas Ullmann, New Haven, law student intern, for appellant (defendant).

William F. Gallagher, Sp. Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, SPEZIALE, PETERS and PARSKEY, JJ.

SPEZIALE, Associate Justice.

This appeal involves the issue of whether it is unconstitutional for a trial court to instruct the jury that prior to the time that a case is submitted to them they may "discuss" the evidence they have heard provided they do not "deliberate, take a vote, (or) come to a conclusion." We hold that such an instruction is unconstitutional.

The defendant, Eric Washington, was ordered transferred by the Juvenile Court to the Superior Court pursuant to § 17-60a of the General Statutes for the murder of Gary Stein. The defendant appealed this order to the Superior Court, which dismissed the appeal; we upheld the judgment dismissing the appeal in Washington v. State, 171 Conn. 683, 372 A.2d 106 (1976).

After trial in the Superior Court, the defendant was found guilty by a jury of twelve of felony murder in violation of § 53a-54c of the General Statutes, and was sentenced by the court to a term of imprisonment of fifteen years to life. From that judgment the defendant appealed. This court set aside the judgment and ordered a new trial because of error in the instruction which permitted alternate jurors to discuss the case with regular jurors in contravention of their statutory duty. State v. Washington, Conn. (42 Conn.L.J., No. 1, pp. 10A, 11A) (1980).

The state filed a motion for reargument to address fully the constitutional basis for error presented in the concurring opinion. State v. Washington, Conn. (42 Conn.L.J. No. 1, pp. 10A, 12A-16A) (1980) (Speziale, J., concurring). That motion was granted.

The facts in this case are essentially those reported in Washington v. State, supra. On December 7, 1974, at approximately 11 p. m., Gary Stein was shot and killed during an attempted robbery while walking on a public street in New Haven. Several persons were involved in the robbery attempt; one of them was armed with the murder weapon, a shotgun. According to one of the state's witnesses who had been a participant in the robbery, the defendant had been in possession of the shotgun just before the robbery, but another person, Melvin Jones, snatched the gun from the defendant and actually shot the victim. On the day after the murder, December 8, 1974, the defendant was arrested without a warrant at approximately 5:30 p. m. at the home of his aunt. The defendant subsequently gave two confessions to the police. The first was given sometime in the early morning hours of December 9, 1974; this confession was "retracted" later that day. The second confession was made on December 10, at about 10 a. m.

On appeal the defendant, challenges the above confessions as being constitutionally infirm; he also claims that the trial court's instructions early in the trial granting the jurors permission to discuss in the jury room the evidence heard daily before the termination of the case deprived him of due process under the federal and state constitutions. We agree that the instructions regarding the jurors' discussion of the evidence prior to the time the case was submitted to them deprived the defendant of due process of law, and we therefore order a new trial. We do not address the issue of the admissibility of the confessions. ¹

The defendant's trial lasted approximately three weeks. Early in the trial the court was asked by the jury whether they could discuss during the trial the evidence that they heard daily. The state argued that there was no prohibition against the jurors discussing the evidence when they were in the jury room during recesses, but that the court should emphasize to them that they could not deliberate, reach conclusions, or vote. Defense counsel objected to such permission being granted and claimed that even if no vote were taken, discussion of the case would amount to deliberation and that deliberation or discussion should not be allowed until both the state and the defendant had concluded presentation of their evidence, and the court had given instructions regarding the law to be applied to the facts.

Over the defendant's objection, the trial court then gave the jury the following instructions: "(The Court:) Ladies and gentlemen of the jury, it has been brought to my attention by way of my clerk that you have asked a question concerning whether or not you can discuss the evidence of this case as it evolves in court among yourselves. I'll read to you the latter portion of the oath that you took and you probably don't recall the words, but that's where we'll start. It states: 'Your counsel, meaning you, and your fellows, meaning your fellow lady and fellow man, you'll duly observe and keep. You will speak nothing to anyone of the business or matters you have in hand in this case, you will speak nothing to anyone but among yourselves. Nor will you suffer anyone to speak to you about the same, but in court.'

"I interpret that to mean that you may discuss the testimony and the evidence that you hear in this case in this courtroom among yourselves in that room. Whatever you discuss with your brother, sister juror must be kept secret. You will duly observe and keep. You will speak to no one else about it. And of course you're limited to the premises, namely that room. That doesn't mean downstairs, it doesn't mean on the elevator. It means in that room. You will never, I know, talk among yourselves during the course of the trial here.

"Now, that means discuss, it does not mean deliberate. It does not mean that you come to any decision, it does not mean that you come to a conclusion. It doesn't mean that you come to a vote. It means you discuss, talk about it if you want. As it evolved.

"And only on what you heard. Not on what you think is going to happen; because if you do that, then you're not adhering to the words of your oath. It's unusual that a question is asked of the court at this time, but nevertheless we attempt to give the best answer that we can. As I told the counselors as a practical matter cases are getting lengthier and lengthier. It would seem to be most unjust and most unfair to expect you people to retain all of the evidence from the first week when you might be deliberating in the 14th week, not that this case will take that long, but there are cases going that long. The caution that you must take is that you should never deliberate, take a vote and come to a conclusion. Then you would be unfair and unjust. I hope I have made myself clear." The defendant duly excepted to this charge.

The trial court was correct in its conclusion that the juror's oath, set forth in § 1-25 ² of the General Statutes, does not specifically contain any prohibition against jurors' discussing the evidence prior to a case being submitted to them. Further, § 850 of the 1978 Practice Book, ³ which deals with the admonitions to be given jurors, does not mention instructions regarding the jurors not discussing the evidence among themselves before the termination of the case. It is the due process clause of the federal and state constitutions ⁴ and the right to trial by an impartial jury ⁵ that are the source of the prohibition of such discussions.

The defendant correctly contends that it is improper for jurors to discuss a case among themselves until all the evidence has been presented, counsel have made final arguments, and the case has been submitted to them after final instructions by the trial court. 89 C.J.S., Trial §§ 457(e) and 460(b); 75 Am.Jur.2d, Trial § 994.

This is not a case where the trial court had failed to instruct the jury that they were not to discuss the case among themselves until it was submitted to them for deliberation; compare Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969); People v. Jones, 254 Cal.App.2d 200, 62 Cal.Rptr. 304, cert. denied, 390 U.S. 980, 88 S.Ct. 1101, 19 L.Ed.2d 1278 (1968); State v. Vince, 305 So.2d 916 (La.1974); or where some jurors disobeyed the court's instruction about not discussing the case. Compare United States v. Nance, 502 F.2d 615 (8th Cir. 1974), cert. denied, 420 U.S. 926, 95 S.Ct. 1123, 43 L.Ed.2d 396 (1975); United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); People v. Gilyard, 124 Ill.App.2d 95, 260 N.E.2d 364 (1970); State v. Drake, 31 N.C.App. 187, 229 S.E.2d 51 (1976). Here, the trial court expressly instructed the jurors that they were permitted to discuss the evidence in the jury room prior to the termination of the case. By permitting the jurors to discuss the case among themselves, either as a whole or in groups, the trial court authorized and encouraged them to give premature consideration to the evidence presented-consideration unaided by the final instructions of the trial court as to the law to be applied to the facts in the case. Winebrenner v. United States, 147 F.2d 322, 329 (8th Cir.), cert. denied, 325 U.S. 863, 65 S.Ct. 1197, 89 L.Ed. 1983 (1945).

Further, it is human nature that an individual, having expressed in discussion his or her view of the guilt or innocence of the defendant, would be inclined thereafter to give special attention to testimony strengthening or confirming the views already expressed to fellow jurors. Winebrenner v. United States, supra, 328. Because the prosecution presents its evidence first, initial expressions of opinion would generally be unfavorable to the defendant. People v. Feldman, 87 Mich.App. 157,...