State v. Tillman

600 A.2d 738, 220 Conn. 487, 1991 Conn. LEXIS 530

• Court: Supreme Court of Connecticut
• Decided: December 3, 1991
• Docket: 14085
• Status: Published

Opinions

Peters, C. J.

In this criminal appeal, the principal issue is whether the defendant, James C. Tillman, has adduced sufficient evidence to demonstrate that the process of selecting his jury array was managed in an unconstitutionally discriminatory manner. The state charged the defendant with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), robbery in the third degree in violation of General Statutes § 53a-136 (a), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3).¹ After a jury trial finding the defendant guilty as charged, the trial court rendered a judgment sentencing him to a total effective term of forty-five years imprisonment. The defendant appealed to the Appellate Court, and we transferred his appeal here in accordance with Practice Book § 4023. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of January 21,1988, at about 11 p.m., the victim finished her work at an insurance company in Hartford and moved her car from her company’s garage to an outside parking lot on Columbus Boulevard so that it would be easier to retrieve later. After having gone to a bar with her supervisor and coworkers, she returned to the car with her supervisor at about 12:45 a.m. Her supervisor left after observing her start her car and put her car lights on.

In the process of backing the car up, the victim noticed that she did not have her seat belt on and that the driver’s side door was not locked. As she stopped to remedy this situation, the defendant opened the driver’s side door and attempted to enter her car. When she asked what he was doing, the defendant punched her in the face, then reached in and turned off the ignition. He then hit her again and pushed her over to the passenger side of the car. When she screamed and tried to get out through the passenger door, he reached over, locked the door and hit her several more times.

The defendant, thereafter, started the car, but could not keep it from stalling because he was unfamiliar with a standard transmission. Finally, after fifteen to twenty minutes, he drove out of the parking lot and, a few minutes later, parked in another small outside lot. He took the victim’s purse and jewelry, and then sexually assaulted her. After rifling through her briefcase, he drove the car out of the lot. He then stopped the car and ran off with her purse.

The defendant does not challenge the sufficiency of this evidence, if believed by the jury, to sustain his convictions. He maintains, however, that he is entitled to a new trial for three reasons: (1) the selection of jury panels was unconstitutionally discriminatory; (2) the trial court improperly instructed the jury on identification, consciousness of guilt, and the use of prior inconsistent statements; and (3) the trial court improperly ruled that the field notes of a police social worker were inadmissible as hearsay. To the extent that these claims are entitled to a plenary review, we conclude that they do not establish the defendant’s right to a new trial.

I

The defendant’s claim of unconstitutional discrimination in the selection of the jury array arose in the following factual context. During voir dire, after six jurors had been selected, a supplemental panel was called for the selection of two alternates. The defendant, a black male, complained that the composition of the panels was discriminatory because they contained no black males and only one resident of Hartford. He requested that the clerk send in a new panel that would be more representative of the defendant’s race and residence. The trial court ruled that the motion was untimely unless counsel could present evidence that the clerk was choosing people improperly. Defense counsel replied that he had no such evidence, but would speak with the jury clerk.

Several days later, defense counsel advised the trial court that he had been told by the clerk that jurors were being routinely dismissed for economic hardship if they could provide documentation that their employers would not pay the difference between their daily jury pay of $10 and their normal wages. The clerk’s reasons for doing this, according to counsel, were that forcing such individuals to serve on a jury would cause them economic disadvantage, and that the clerk felt that such economically disadvantaged persons would not make good jurors. The clerk reportedly acknowledged that a disproportionate number of minorities would be excused on this basis.

The trial court overruled the defendant’s objection to the makeup of the panels. After trial, in a motion for a new trial, the defendant reiterated his claim that the absence of black male jurors and of more than one Hartford resident on either panel violated his constitutional rights. The court denied the motion, noting that the six jurors who decided the case had been chosen before the issue was raised.

One basis for a constitutional challenge to the composition of a jury array is the standard set forth in Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest. Id., 367-68; see State v. McCarthy, 197 Conn. 247, 250, 496 A.2d 513 (1985); State v. Castonguay, 194 Conn. 416, 421-22, 481 A.2d 56 (1984).

The defendant maintains that the Duren standard has been violated in his case because the jury selection process tended to exclude or underrepresent a discernible class of persons, namely, people who are not compensated by their employers during jury duty, and because these persons were systematically excluded in the jury selection process. He also alleges that this discrimination produced an underrepresentation of blacks and Hartford residents from his panel.

A jury array that does not violate Duren by under-representing any distinctive group may nonetheless be challenged if unconstitutional criteria were used in selecting its members. In State v. Nims, 180 Conn. 589, 430 A.2d 1306 (1980), we ordered a new trial when the jury clerk had been shown to have divided the array cards from which the jury panels were to be chosen into separate piles for men and women. While this procedure did not result in the underrepresentation of either sex, we held that it did discriminate on the basis of sex. “[A]ny attempt to stack a jury panel by intentionally including or excluding any members of a discernable class runs afoul of both due process and the right to a jury trial.” Id., 595-96. “The end result ... is irrelevant. It is the method of selection which offends the constitution.” (Emphasis in original.) Id., 597. The defendant argues that, as in Nims, his jury was selected according to unconstitutional criteria.

Before considering the merits of the defendant’s claims under Duren and Nims, we must address the state’s argument that the defendant’s objection to the jury selection process was not timely raised. The state relies principally upon Practice Book § 842, which provides: “Any party may challenge an array on the ground that there has been a material departure from the requirements of law governing the selection and summoning of an array. Such challenge shall be made within five days after notification of the hearing or trial date, unless the defect claimed has arisen subsequent to the time required to make such motion.”

The state’s reliance on Practice Book § 842 is not persuasive. Concededly the defendant did not question the composition of the jury venire until six jurors had been selected, but it was only the composition of the second panel of jurors that aroused his suspicion that there was a possibility that black males or Hartford residents were being systematically excluded. Although State v. Ferraro, 146 Conn. 59, 63, 147 A.2d 478 (1958), cert. denied, 369 U.S. 880, 82 S. Ct. 1155, 8 L. Ed. 2d 283 (1962), holds that “a challenge to the array comes too late if it is made after the verdict, even though the irregularity may not previously have been known,” the defendant in this case called the irregularity to the attention of the court long before the jury was called upon to reach its verdict. Moreover, the irregularity in Ferraro was merely the failure to follow the procedural requirements of a statute: the names of the veniremen had been drawn by a deputy sheriff instead of a clerk. In this case, by contrast, the defendant has mounted a constitutional challenge to the validity of the jury selection process. See State v. Nims, supra, 593-97 (ordering a new trial when an unconstitutional method of jury selection is discovered after trial). Where a constitutional flaw is discovered and brought to the court’s attention before jury selection is complete, and good cause can be shown for the defendant’s failure to mount an earlier challenge, the Practice Book is not a procedural roadblock.²

We therefore shall consider in turn the defendant’s claims under Duren and Nims. The defendant makes two claims under Duren: first, that his right to a representative array was violated because some persons were excluded on the basis of the arrangement by which their employers compensated them; second, that because of this exclusion, blacks and Hartford residents were underrepresented on his panel.

The defendant’s first Duren claim relies principally on Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), which held that a federal jury panel was unlawfully constituted when a clerk and a jury commissioner intentionally and systematically excluded persons who worked for a daily wage.³ The clerk’s stated reason for the exclusion was similar to that alleged here: “ ‘The minute that a juror is called into court on a venire and says he is working for $10 a day and cannot afford to work for four, the Judge has never made one of those men serve, and so in order to avoid putting names of people in who I know won’t become jurors in the court, won’t qualify as jurors in this court, I do leave them out. . . . Where I thought the designation indicated that they were day laborers, I mean they were people who were compensated solely when they were working by the day, I leave them out.’ ” Id., 222. The result of this procedure was that “business men and their wives constituted at least 50% of the jury lists.” Id. The court held impermissible this “wholesale exclusion of a large class of wage earners,” and declared that “[j]ury competence is not limited to those who earn their livelihood on other than a daily basis,” and that “the pay period of a particular individual is completely irrelevant to his eligibility and capacity to serve as a juror.” Id., 223, 225. “The American tradition of trial by jury,” the court stated, “necessarily contemplates an impartial jury drawn from a cross-section of the community.” Id., 220.

In this case, however, the defendant has not made out a prima facie case of unconstitutional jury selection because he has not offered sufficient evidence to satisfy the Duren test. The defendant bears the burden of making an adequate record to support a challenge to a jury array. State v. Mack, 197 Conn. 629, 635 n.6, 500 A.2d 1303 (1985); State v. Frazier, 185 Conn. 211, 218, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). All that this defendant ever offered to the court in support of his request for a new supplemental panel was his counsel’s hearsay representations of a conversation he had had with the clerk. The defendant did not offer the clerk’s own testimony or any other testimony. He did not request an evidentiary hearing to support his claims, or a continuance in order to gather probative evidence. A challenge to a jury array will fail if the defendant presents no evidence to the court. State v. Acquin, 187 Conn. 647, 681, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). A representation by counsel does not meet this evidentiary requirement. State v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1987).

To satisfy his evidentiary burden under the first part of Duren’s three part test, the defendant would have had to establish the discriminatory exclusion of a “distinctive group.” While there is no precise definition of the term “distinctive group”; Lockhart v. McCree, 476 U.S. 162, 174, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986); such a group must have, first, “ ‘some factor which defines and limits the group’ ”; second, “ ‘a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process’ and third, “ ‘there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved.’ ” State v. Haskins, 188 Conn. 432, 438, 450 A.2d 828 (1982), quoting United States v. Guzman, 337 F. Sup. 140, 143-44 (S.D.N.Y. 1972). Thiel established that the requirement of distinctness can be satisfied by a group that has been excluded on the basis of the arrangements by which its members are paid by their employers.⁴ In so holding, however, the United States Supreme Court appears to have taken judicial notice that those who are paid by the day tend to be “persons of low economic and social status.” Thiel v. Southern Pacific Co., supra, 223-24. There is no such clear implication of economic and social status for those whose employers will not pay them the difference between their jury salaries and their regular income. The group is broad enough to include both the day laborers considered in Thiel and highly paid professionals, and this court could do no more than guess at the proportions of each. This we decline to do. In order to satisfy the first prong of Duren, then, the defendant had to offer some further evidence that the persons excluded were a “distinctive” group. For example, evidence that the group included disproportionate numbers of city dwellers or black males, as the defendant suggested, might have been helpful in building his case.

The defendant has similarly failed to meet the second or third requirements of the Duren test. He did not even allege the proportion of jurors who were actually excused for economic hardship. While the procedure that counsel described to the court did involve a systematic exclusion and might well have exceeded the clerk’s statutory authority,⁵ no proof was offered that that procedure was in fact followed. The defendant’s second Duren claim, which alleges racial and geographical discrimination, fails for the same reason.

We next turn to the defendant’s alternate claim under Nims. The defendant correctly observes that Duren is not the only standard for determining the validity of a jury selection process. In State v. Castonguay, supra, in which we followed the three-part Duren test,⁶ we did not overrule or modify our analysis in Nims. See also State v. McCarthy, 197 Conn. 247, 250, 254, 496 A.2d 513 (1985), citing both Castonguay and Nims.

Under Aims, even if there is no underrepresentation of any group, it is possible for the jury to be selected according to unconstitutional criteria. The sex-based classification in question in Nims had, however, been previously held by the United States Supreme Court to constitute a distinctive group both in the specific context of jury selection; Duren v. Missouri, supra; Ballard v. United States, 329 U.S. 187, 193-94, 67 S. Ct. 261, 91 L. Ed. 181 (1946); and as a suspect classification that must be subjected to heightened judicial scrutiny under the equal protection clause of the fourteenth amendment. Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); Frontiero v. Richardson, 411 U.S. 677, 682, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality opinion). Nims relied on the latter series of cases to invalidate the challenged procedure because it could not be shown to “ ‘serve important governmental objectives and ... be substantially related to achievement of those objectives.’ ” State v. Nims, supra, 596, quoting Craig v. Boren, supra, 197. Far from relaxing the first requirement of Duren, our decision in Nims relied on a finding that a suspect classification had been employed.

As an evidentiary matter, it is more difficult to establish that a classification is suspect than it is to show that a group is “distinctive” under Duren. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 445-46, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). As we have already noted, the defendant in this case offered no supporting evidence of any kind to establish his claim of unconstitutional discrimination. The trial court therefore did not err in denying the defendant’s motion.

II

The defendant next claims that the trial court, in its instructions to the jury: (1) improperly failed to give his requested charge on the effect of physical impairment on the credibility of eyewitness testimony; (2) gave an improper charge on consciousness of guilt; and (3) improperly failed to limit the jury’s use of a prior inconsistent statement. We are not persuaded that any of these claims requires us to order a new trial.

A

The defendant submitted a request to charge that, in assessing the credibility of eyewitness testimony, the jury “may consider . . . whether the witness was physically impaired or under stress when observing the perpetrator.” This charge was directed at the credibility of the victim, whose capacity for accurate observation the jury might reasonably have found to have been somewhat impaired at the time of the incident. There was evidence at trial that, before the attack, the victim had been drinking. As a result of the attack, she received a cut on her left eyebrow that bled and later required seven stitches. Her left eye began to swell during the attack, and later closed completely. The entire left side of her face was swollen after the attack. Her right eye eventually became black and blue. Because she was hit in the nose, she suffered a nosebleed. Despite this evidentiary foundation for the request to charge, the court did not comply literally with the defendant’s request.

The trial court might appropriately have given the requested instruction. The court was not, however, required to charge the jury in the exact language of the request to charge, as long as the instructions given to the jury provided proper guidance for the jury’s deliberations. State v. Bunkley, 202 Conn. 629, 658, 522 A.2d 795 (1987). Although the court did not use the phrase “physically impaired,” it informed the jury that, in determining whether to credit a witness’ testimony, it must assess the witness’ “ability to observe facts correctly.” The court further said that among the factors the jury was to consider was the witness’ “degree of stress” and “her opportunity to observe the person.” These instructions adequately alerted the jury to the factors that it had to assess in determining the reliability of the victim’s testimony.⁷

Even if the court’s instructions were less informative on the risks of misidentification than they might have been, the issue is at most one of instructional error rather than of constitutional error. A new trial would only be warranted, therefore, if the defendant could establish that it was reasonably probable that the jury was misled. State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986). The record does not sustain such an assertion.

The evidence supporting an inference of visual impairment was far from overwhelming. The victim testified that she could see out of both eyes, and she never said that she had any difficulty viewing her attacker. During much of the fifty minutes that she was with him, they were in well-lighted areas. There were street lights on Columbus Boulevard, where the car was parked when the attacker entered it, and there were floodlights on an adjacent building. When the attacker forced the victim back into her car, his face was directly in front of hers and she was able to get a good look at his face. During the entire fifteen to twenty minutes that the attacker was having difficulty starting the car, the victim observed the right side of his face. She tried to look at him as much as possible as the car passed under the street lights of Columbus Boulevard. Because her left eye had been hurt, she held her right arm against her right eye to protect it. Because the area where the car stopped was well lit, the victim was able to view her attacker. She testified that she “was trying to focus on his eyes, nose, the shape of his face, things that I could remember, things that I would be able to use to identify him by.” His nose was particularly distinctive, “[kjind of like a hook nose.” The street he drove the car onto after the sexual assault was also well lit. After the attacker fled, the victim could not see very well out of her left eye, but her right eye was unaffected. When the police arrived she told them that she was certain she could identify her attacker, and she readily picked the defendant’s photograph from a properly assembled array. When she was shown the first mug shot of the defendant, she correctly noted that he seemed younger in the photograph. She testified that there was no doubt in her mind that the defendant was the man who had attacked her.

Given this positive identification testimony, and the instruction that was given, we conclude that it is not reasonably probable that the jury was misled by the court’s refusal to charge in the specific language that the defendant had requested.

B

The defendant’s second challenge to the jury instruction focuses on the court’s statement that: “There is a legal principle of law known as consciousness of guilt, and it applies when a defendant says or does an act which one can infer that he had attempted to avoid detection or to avoid facts which would lead to his conviction. Here again, this principle would apply to the defendant’s statements to Detective Kumnick when questioned how he got the lacerations which were healing on the major knuckles of his hand.” (Emphasis added.) According to the testimony of Detective Stephen Kumnick of the Hartford police department, when the defendant was arrested and charged with assault and sexual assault, he had visible bruises and lacerations on his hands. When asked how he had gotten these cuts, he first responded that he was not sure, and then said that he had gotten them while working at a car wash. Further inquiry from Kumnick led the defendant to remark, “I didn’t get those from punching no girl.” At this time, no one had told the defendant that the victim had been beaten by fists.⁸ At trial, the defendant denied having made the statement, and also testified that at the police station he was shown a picture of the victim’s battered face.⁹ The jury was instructed that it first had to determine that the statement was actually made. If it was made, the jury could draw “reasonable inferences” from it.

The defendant contends that the emphasized portion of this instruction removed from the jury’s consideration the possibility that his statement was made on the basis of innocent beliefs or motives. Since his motivation in making the statement was properly a question for the jury to consider, he argues, the instruction impaired his constitutional right to a jury trial.

A jury charge in which the court removes from the jury’s consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt, would violate the holding of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Although the defendant never filed a request to charge or objected to the charge that was given, he now maintains that his complaint is of constitutional magnitude and therefore reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We disagree. An instruction about consciousness of guilt is not so directly related to an essential element of the crime as to warrant plenary discussion of whether “the claim is of constitutional magnitude alleging a violation of a fundamental right.” State v. Golding, supra, 239-40; see State v. Smith, 219 Conn. 160, 166, 592 A.2d 382 (1991).

C

In his third challenge to the validity of the jury charge, the defendant maintains that the trial court improperly instructed the jury about a prior inconsistent statement allegedly made by Gwendolyn Wilson, an alibi witness for the defendant.¹⁰ The court informed the jury that, if it found that Wilson had said something contradictory to her trial testimony in an earlier conversation with Detective Kumnick, and the prior statement was “not in writing or recorded on tape, it may only be used to test the witness’s credit and may not be substituted for her testimony.” The defendant now claims that, because Wilson’s recollection at trial was refreshed by reading statements attributed to her in Kumnick’s written report, the jury might have been misled into giving substantive weight to her earlier statements.

We need not decide this question because the defendant did not raise this claim below. See Practice Book § 852. There is no merit to the defendant’s argument that this instruction unconstitutionally deprived him of a fair trial. “Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label. . . . For example, once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” (Citations omitted.) State v. Golding, supra, 240-41.

D

The defendant finally claims that because these instructions concerned the essential element of identity and were related to the portions of testimony that were most damaging to him, taken together they deprived him of a fair trial. We are unpersuaded. We are aware of no case, and the defendant has cited none, that holds that a group of instructional claims of error, each of which has individually been found not to constitute reversible error; see State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial. We decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.

Ill

The defendant’s last contention is that the trial court improperly excluded from evidence the field notes of Janette Getz, a police department social worker, in which she had recorded a pretrial conversation with Kumnick to the effect that fingerprints had been found on the driver’s side of the victim’s car, but that they did not belong to the defendant. At the trial, Kumnick testified that the fingerprints found on the car did not belong to the defendant. He identified the location of the fingerprints, however, as being in the area of the passenger door. The victim testified that her attacker had entered and exited the car from the driver’s side. The defendant offered the field notes as a business record, in an attempt to persuade the jury either that the unknown prints were actually on the driver’s door or that the police investigation was faulty. The court sustained the state’s objection, and the defendant duly excepted. On appeal, the defendant urges, alternatively, that the notes were also admissible as a prior inconsistent statement of Kumnick that might have been used to attack his credibility in various other critical parts of his testimony.

Our review of the trial court’s ruling excluding the field notes “is limited to the specific legal ground raised in the objection.” State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985); see Practice Book §§ 4185, 288. The statement in the notes that is attributed to Kumnick would have been inadmissible as hearsay, because it was “[a]n out-of-court statement . . . offered to establish the truth of the matters contained therein”; State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); unless it came within the exception for business records. “To gain admission of a document under the business record exception to the hearsay rule, the proponent must show that (1) the document was made in the regular course of business, (2) it was the regular course of business to make such a record, and (3) the record was made when the act, transaction or event occurred, or shortly thereafter.” State v. Damon, 214 Conn. 146, 156-57, 570 A.2d 700, cert. denied, 490 U.S. 1069, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990). To qualify a record as a business entry, the party offering the evidence must present a witness who testifies that the three requirements have been met. Id. The defendant made no attempt to lay a proper foundation for the admission of the notes, even after the trial court pointed out this requirement. We conclude, therefore, that the trial court correctly excluded the field notes from evidence.

The judgment is affirmed.

In this opinion Callahan, Covello and Borden, Js., concurred.

1 General Statutes § 53a-92 provides in pertinent part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony . . . .”

General Statutes § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.”

General Statutes § 53a-136 provides in pertinent part: “(a) A person is guilty of robbery in the third degree when he commits robbery.”

General Statutes § 53a-61 provides in pertinent part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

General Statutes § 53a-123 provides in pertinent part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

2 Because Connecticut now assembles jury panels only on the day of trial; see General Statutes § 51-238a; broad construction and strict application of the rule of State v. Ferraro, 146 Conn. 59, 63, 147 A.2d 478 (1958), cert. denied, 369 U.S. 880, 82 S. Ct. 1155, 8 L. Ed. 2d 283 (1962), might in some cases make it impossible for counsel to object to the array “within five days after notification of the hearing or trial date,” since the array might not yet exist at that time. If the defect claimed were deemed to “arise” on the day of trial, on the other hand, the express exception in the last sentence of the Practice Book section would apply.

3 Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), was not a constitutional case. The court reversed the judgment “in the exercise of our power of supervision over the administration of justice in the federal courts.” Id., 225. However, the United States Supreme Court has since construed Thiel’s fair cross-section requirement to be demanded by the sixth amendment and by the due process clause of the fourteenth amendment. Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); Peters v. Kiff, 407 U.S. 493, 500 n.9, 502, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (plurality opinion).

4 The state emphasizes that here, unlike Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), the alleged exclusion is voluntary. This is, however, irrelevant to the question whether the defendant has been denied the representative jury that is his right. See Duren v. Missouri, 439 U.S. 537, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). The state argues that Duren, which invalidated an exemption that was presumed if females did not respond to the summons, is distinguishable because in the procedure alleged by the defendant, each juror had to act voluntarily and provide proof of his or her claim. A blanket exemption for women would not, however, become permissible if each woman were required to apply for the exemption and provide proof of her sex.

5 There is no merit to the state’s claim that the practice complained of was authorized by General Statutes § 51-217 (c) (2). That statute does not say, as the state contends, that the administrator may excuse jurors for “financial hardship.” The statute provides that the jury administrator may determine “whether any person may be excused for extreme hardship.” Under the practice alleged by the defendant, even a de minimis burden would have been grounds for excusing a juror. “Jury service is a duty as well as a privilege of citizenship; it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power. Only when the financial embarrassment is such as to impose a real burden and hardship does a valid excuse of this nature appear.” Thiel v. Southern Pacific Co., 328 U.S. 217, 224, 66 S. Ct. 984, 90 L. Ed. 1181 (1946).

6 Duren had already been adopted in earlier decisions of this court. See State v. Haskins, 188 Conn. 432, 436, 450 A.2d 828 (1982); State v. Acquin, 187 Conn. 647, 681, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); State v. Frazier, 185 Conn. 211, 216-17, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

7 At summation, counsel for the defendant was permitted without objection to expound at some length his argument that the victim’s vision was impaired and that the defendant was a victim of mistaken identity.

8 At summation, the state argued that the defendant could not have known that the woman was punched with someone’s fists unless he had done it.

9 During final argument, defense counsel argued that the defendant’s remark, if it had actually been made, might have been prompted by the defendant’s viewing of a picture of the victim. The defendant also argues for the first time on appeal that he could have inferred that the victim was beaten with fists after being informed that he was charged with sexual assault and assault and after seeing the attention that was paid to the cuts on his hands. This new argument should have been made to the jury and now comes too late.

10 Gwendolyn Wilson testified that on the night of the crime, the defendant spent the night at her house. On cross-examination, she denied that she had spoken to the police a few days after the crime. The state attempted to refresh her recollection by showing her a copy of Detective Kumnick’s report of his conversation with her, but she still did not remember any conversation with police. Kumnick then testified that he spoke with Wilson six days after the crime, and that she had told him that she was positive that the defendant had not been at her house on the night of the offense.