State v. Delgado

513 A.2d 701, 8 Conn. App. 273, 1986 Conn. App. LEXIS 1074
Connecticut Appellate Court·Decided July 29, 1986·No. 2718·Published·Cited by 23 cases

Opinion

Dupont, C. J.

After a trial to a jury, the defendant was convicted of the crime of manslaughter in the first degree, a violation of General Statutes §§ 53a-55 (a) (1) and (3). On appeal, the defendant claims that the trial court erred: (1) in giving unrecorded instructions, in a jury indoctrination session held the day before the defendant’s trial began, to all jurors who had been summoned for jury duty; (2) in excluding evidence concerning protection sought by the defendant from the victim; (3) in excluding evidence about the defendant’s previous approval of the victim’s application for accelerated rehabilitation; (4) in restricting the cross-examination of the prosecution’s key witness as to her knowledge of the victim’s reputation for violence; (5) in allowing the introduction of a photograph of the victim dressed in a tuxedo; and (6) in admitting the testimony of a rebuttal witness who claimed that the victim told her three months prior to the stabbing that he was afraid of the defendant.

The jury reasonably could have found the following relevant facts based upon the evidence presented. At the time of the incident, the defendant was fifty-one years of age and the victim was nineteen. The two parties had a history of “bad blood” between them, which included the exchange of threats and acts of violence. The victim had previously been arrested for assaulting the defendant’s daughter, the victim’s former girlfriend.

[275] Approximately one year after that assault, the defendant became engaged in an altercation with the victim at the entrance of a bowling alley. Blows were exchanged, and the defendant received five to six hits to his head which necessitated subsequent medical attention. During the course of the struggle, the defendant stabbed the victim in the chest with a knife, causing his death. The defendant claimed that he had acted in self-defense.

I

The defendant’s first claim of error is that the trial court’s indoctrination of potential jurors prior to the commencement of the trial violated his constitutional rights to an impartial jury, to have counsel present at “important” proceedings, and to have a public trial. He also claims that the failure to record the indoctrination remarks interfered with his appellate rights. Such indoctrination of jurors is routinely given on the day that they report for jury duty, and consists of preliminary instructions which outline their primary duties and responsibilities. Neither the prosecution nor defense counsel is ordinarily present during such indoctrination procedure, and the proceedings are not usually recorded or transcribed.1

[276] The defendant failed to object to the indoctrination process at trial. Although the defendant concedes that this issue was not properly raised at trial, he argues that it is nonetheless reviewable because it involves fundamental constitutional rights. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

A three-pronged analysis must be undertaken in an Evans review. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). That analysis necessarily includes consideration of “(1) whether the record supports the defendant’s claim that the trial court’s action raises a question of fundamental constitutional dimension; (2) if so, whether the trial court’s action was erroneous; and (3) if there was error, whether it requires reversal.” Id.; see also State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986). If the first test is not met, the issue is not reviewable under Evans and it is not necessary to reach the analysis required by the other two tests. Our first inquiry, therefore, centers upon a determination of whether the record in this case supports the defendant’s claim that the indoctrination of the jury raises an issue of constitutional dimensions.

It is undisputed that the rights enumerated by the defendant concerning the right to an impartial jury, the right to have counsel present at critical stages in the criminal proceedings against him, and the right to an open court and public trial are all fundamental constitutional rights guaranteed by the federal and state constitutions. Merely because the defendant asserts [277] these constitutional rights, however, does not necessarily mean that such constitutional rights are in fact involved in a particular case. It is not unknown for a defendant on appeal to “put a constitutional tag on a nonconstitutional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). Appellate counsel has sufficiently reconstructed the record for purposes of review under the first test of Evans. A review of that record indicates that the trial judge made general comments regarding the general duty and obligations of the jurors, as well as general remarks regarding the burden of proof.2 There is not even a hint of prejudice to this particular defendant demonstrated in the court’s reconstruction of its remarks.

Although the record is sufficient for review, the second half of the first part of the Evans test has not been met. No fundamental constitutional right is involved. The defendant claims that the jury indoctrination deprived him of an impartial jury panel because the court’s statements were improper ex parte communications between the judge and members of the jury panel. He relies on State v. Altrui, 188 Conn. 161, 182, 448 A.2d 837 (1982). That case, however, provides him no support. There, during the trial, the court met privately with one juror. Here, the court spoke to all [278] prospective jurors before any one of them had been assigned to any particular case. At this stage, the trial judge had no realistic way of knowing which jurors would be selected for the defendant’s trial. Moreover, because such indoctrination occurs before the trial begins, the potential for prejudice is greatly diminished in light of the instructions given to the jury by the trial judge in open court subsequent to the indoctrination. The possibility of the survival of any prejudicial remark is slight. See Jones v. State, 482 N.E.2d 243, 245 (Ind. 1985).

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State v. Delgado, 513 A.2d 701, 8 Conn. App. 273, 1986 Conn. App. LEXIS 1074 (Colo. Ct. App. 1986).

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