State v. Hernandez

590 A.2d 112, 218 Conn. 458, 1991 Conn. LEXIS 127
CourtSupreme Court of Connecticut
DecidedApril 30, 1991
Docket14017
StatusPublished
Cited by37 cases

This text of 590 A.2d 112 (State v. Hernandez) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hernandez, 590 A.2d 112, 218 Conn. 458, 1991 Conn. LEXIS 127 (Colo. 1991).

Opinion

Glass, J.

After a jury trial, the defendant, Ariel Hernandez, was convicted of the crime of sale of cocaine by a person who is not drug-dependent in -violation of General Statutes § 21a-278 (b).1 He was sentenced to a term of five years imprisonment.

The defendant appealed to the Appellate Court, raising three grounds for reversal predicated on the trial court’s refusal to give certain requested instructions to the jury. The Appellate Court rejected the defendant’s claims and affirmed the judgment of conviction in State v. Hernandez, 21 Conn. App. 235, 573 A.2d 5 (1990). Thereafter, we granted his petition for certification to appeal limited to the following questions: (1) “Is the defendant entitled to have the trial court marshal the evidence to present the evidence of the defense as well as the evidence of the prosecution?”; (2) “Is the defendant entitled, upon request, to have the jury instructed that the arguments of counsel are not evidence?”; and (3) “Is the defendant entitled, upon request, to have the jury instructed that an information is not evidence of guilt?” State v. Hernandez, 216 Conn. 804, 577 A.2d 716 (1990). We reverse.

[460]*460The facts are as follows. On June 12, 1986, as part of an undercover investigation of drug trafficking in the Naugatuck Valley, police officer Linda Guerra entered the Kozy Korner bar on Olivia Street in Derby for the purpose of attempting to purchase drugs. She was equipped with a hidden microphone so that three other officers located in vehicles outside the bar could monitor her conversations. At the defendant’s subsequent trial, Guerra testified that she had met him in the bar and purchased from him a substance that the state’s expert toxicologist identified at trial as cocaine. Guerra testified further that she had then proceeded to the Monkey Bar on Hawkins Street in Derby, and that the defendant had arrived there sometime later. According to Guerra, she had asked the defendant how she could contact him if she wanted to purchase additional cocaine, and he had given her a business card imprinted with the name “A1 Hernandez.” Guerra had later identified the defendant from a photographic array and again in court at his trial.

The defendant’s basic claim at trial was that he was not the person who had sold cocaine to Guerra. To substantiate this claim, the defendant sought to establish, by his own testimony, that his inability to produce an alibi or otherwise recollect his whereabouts on the date of the alleged sale was due to the passage of approximately one year between that date and the date of his arrest. In short, the essence of his defense was that while he was uncertain as to his whereabouts due to the delay, he was certain that he had never sold cocaine to Guerra. The defendant testified that he had patronized the Kozy Korner bar prior to 1986, but could not recall having gone there in 1986. Furthermore, he testified that although he had visited the Monkey Bar a “few” times and had left a stack of business cards on the bar, and had given his business card to many people, he had no recollection of having seen Guerra [461]*461there or having given her a business card. During Guerra’s cross-examination, the defendant sought to establish that she had mistakenly identified him as the perpetrator of the crime. His cross-examination of the officers who had accompanied Guerra to the bars revealed that Guerra’s conversations had not been recorded. Furthermore, while she had been in the bars, the officers had been unable to identify any voice other than hers and that of a male, or to understand the nature of her conversations. As for the state’s toxicologist, the defendant attacked his methods of testing substances as unreliable.

The defendant’s first claim focuses on the trial court’s marshalling of the state’s claims and evidence in its jury charge to the exclusion of the claims and evidence of the defense.2 He maintains that this marshalling amounted to such an unfair presentation of the case to the jury that he was deprived of his federal and state constitutional rights to due process.3 We agree with the defendant that the one-sided rendition of the case given by the court was prejudicially unfair.

A trial court has broad discretion to comment on the evidence adduced in a criminal trial. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). “ ‘A jury trial in which the judge is deprived of the right to comment on the evidence and to express his opinion as to the facts . . . is not the jury trial which we inherited.’” (Citations omitted.) 3 W. LaFave & J. Israel, Criminal Procedure (1984) § 23.7 (c). A trial court often has not only the right, but also the duty to comment on the [462]*462evidence. Heslin v. Malone, 116 Conn. 471, 477, 165 A. 594 (1933). The principal function of a jury charge is “to assist the jury in applying the law correctly to the facts which they might find to be established”; State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979); and therefore, we have stated that a charge “must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” Id., 170-71; see State v. Pollitt, 205 Conn. 132, 159, 531 A.2d 125 (1987).

The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is “to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality.” United States v. Levy, 578 F.2d 896, 903 (2d Cir. 1978). “The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” Quercia v. United States, 289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321 (1933); see State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985). To avoid the danger of improper influence on the jury, a recitation of the evidence “ ‘should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.’ ” Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 746, 535 A.2d 1287 (1988); Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 591, 356 A.2d 873 (1975); State v. Rome, 64 Conn. 329, 339, 30 A. 57 (1894).

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Bluebook (online)
590 A.2d 112, 218 Conn. 458, 1991 Conn. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-conn-1991.