197 Conn. 247 (1985) | Cited 26 times | Supreme Court of Connecticut | August 20, 1985

On May 20, 1981, the defendant, JohnMcCarthy, was found by a jury to have committed the

[197 Conn. 248]

     crimes of larceny in the first degree and burglary inthe third degree in violation of General Statutes53a-122 (a)(2) and 53a-103 (a), respectively, and wassentenced to an effective prison term of not less thanten nor more than twenty years. From this judgmentthe defendant appeals, claiming that the trial courterred (1) in denying his fair cross-section challenge tothe jury array, (2) in failing to suppress inculpatorystatements that he gave to the police after a claimedillegal arrest and that were allegedly prompted bypromises of beneficial treatment, (3) in permittingcross-examination of the defendant beyond what heclaimed was the scope of direct, and (4) in refusing toinstruct the jury on the crimes of larceny in the secondand third degrees as lesser included offenses. Wefind no error.

On June 20, 1980, the defendant was arrested by theWestport police on charges unrelated to those at issuehere. Knowing that the defendant was a suspect in certainburglaries that had occurred in Wilton, the Westportpolice contacted the Wilton police and informedthem that the defendant was in custody. The next day,two Wilton police officers spoke with the defendant atthe jail in Westport, and then took him for a drivethrough Wilton, where the defendant incriminated himselfin several burglaries, including the one involvedin this appeal. More than two weeks later, a warrantwas issued for the arrest of the defendant for thepresent burglary and larceny. At trial the defendantstipulated that he had committed the theft in question,but denied having the requisite mental state for thecrimes charged. He also contested the valuation of theproperty stolen. The jury found him guilty of the crimescharged.


In support of his claim that he was deprived of hisdue process right to a jury made up of a fair cross

[197 Conn. 249]

     section of the population,1 the defendant presented experttestimony that, of the 12, 351 persons called for juryduty in Fairfield county during the two and one-halfyear period immediately preceding his trial in April,1981, only 240, or 1.9 percent, had Hispanic surnames.On the basis of the Hispanic population of Fairfieldcounty as documented by the United States census of1970,2 3.75 percent of the 12, 351 potential jurors, or465 Hispanics, should have been included in the venires.The plaintiff's expert testified that the chance of thisdisparity occurring randomly was less than one in twoand one-half million based on "statistical decision theory."3The court denied the challenge to the array withoutelaboration.4

[197 Conn. 250]

We have recently had occasion to consider the appropriatetest to be applied to a fair cross section challengeof a jury array. In State v. Castonguay, 194 Conn. 416,481 A.2d 56 (1984), we quoted from Duren v. Missouri,439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579(1979), wherein the United States Supreme Courtdeclared that" `[i]n order to establish a prima facie violationof the fair-cross-section requirement, the defendantmust show (1) that the group alleged to be excludedis a "distinctive" group in the community; (2) that therepresentation of this group in venires from whichjuries are selected is not fair and reasonable in relationto the number of such persons in the community;and (3) that this underrepresentation is due to systematicexclusion of the group in the jury selection process.'Duren v. Missouri, supra, 364. Once thedefendant has established this prima facie case, the burdenthen shifts to the state to prove that the selectionsystem resulting in a nonrepresentative array furthersa significant state interest. Id., 367." State v. Castonguay,supra, 421-22.

With respect to the first requirement of Duren, wehave noted on several occasions, and the state has concededin this appeal, that Hispanics constitute a "distinctive"group in the community for purposes of this fair crosssection claim. See State v. Couture, 194 Conn. 530, 551,482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct.967, 83 L.Ed.2d 971 (1985); State v. Castonguay, supra, 424.

In State v. Castonguay, supra, we discussed the differentapproaches used by courts> in examining the secondprong of Duren, the requirement of fair and

[197 Conn. 251]

     reasonable representation of the group involved. Weconsidered and rejected three such theories in that opinion,among them the statistical decision theory reliedupon by the defendant, before settling on the "substantialimpact" test as best suited to a fair cross sectionclaim. We considered the statistical decision theory tobe more relevant to the issue of discrimination posedin an equal protection challenge to jury compositionthan to the question of whether the jury pool reflectsadequately the diversity of the community from whichit is selected. See Villafane v. Manson, 504 F. Sup. 78,84 (D. Conn. 1980).5 Under the substantial impact test,on the other hand, the "focus is not on numbers andpercentages but rather on whether the underrepresentationsubstantially affects the composition of the grand[or petit] jury." State v. Couture, supra, 552. Thus "[t]hedisparity is measured in terms of its impact on juries,not simply percentages in the abstract. This analysisallows the courts> to reject challenges when the challengedpractices did not significantly alter the compositionof the typical grand or petit jury." Beale,"Integrating Statistical Evidence and Legal Theory toChallenge the Selection of Grand and Petit Jurors,"46 Law and Contemp. Probs. 269, 275 (1983); seeUnited States v. Kleifgen, 557 F.2d 1293, 1297(9th Cir.1977); Anderson v. Casscles, 531 F.2d 682, 685 n. 1 (2dCir. 1976); United States v. Goff 509 F.2d 825, 826-27(5th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46L.Ed.2d 83 (1975); United States v. Jenkins, 496 F.2d 57,65 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95S.Ct. 1119, 43 L.Ed.2d 394 (1975); United States v.

[197 Conn. 252]

     Facchiano, 500 F. Sup. 896 (S.D. Fla. 1980); see alsoWaller v. Butkovich, 593 F. Sup. 942 (M.D.N.C. 1984).6Using this common sense approach, we recently determinedthat one less Hispanic on every other eighteenmember grand jury did not constitute the "substantial"underrepresentation of a distinct group that is a prerequisiteto judicial intervention in a fair cross section challenge.State v. Couture, supra, 552; State v. Castonguay,supra, 430-31; State v. Haskins, 188 Conn. 432, 440,450 A.2d 828 (1982).

The defendant has provided us with no reason toabandon this analysis, and we are not inclined to doso. The remaining question then is whether there wassuch an underrepresentation of Hispanics, comparedto their population in the community as a whole,7 inthe pools from which jurors in Fairfield county weredrawn during the period from September, 1978, toApril, 1981, as to have substantial impact upon the compositionof Fairfield juries. We conclude that no suchimpact has been shown. According to the defendant'sfigures, of the 12, 351 potential jurors during the periodexamined, 240 or 1.9 percent were Hispanics. The 3.75percent of Hispanics in the community, if this groupwere proportionally represented in the jury pool, wouldhave resulted in the inclusion of 465 Hispanics, 225more than were actually contained in the pool of jurors.8

[197 Conn. 253]

     The 12, 351 veniremen would, if divided into juries ofsix, which hear cases such as the defendant's, haveserved 2000 potential juries. See General Statutes54-82 (c), 54-82b (c). Were the 225 missing Hispanicjurors evenly distributed among this number of juries,one more Hispanic would have been available for selectionon only one out of nine juries. This is a substantiallysmaller discrepancy than those we upheld inCouture and Castonguay. The lesser numerical discrepancyfound here, as compared to those cases involvingHispanic representation on grand juries, must bebalanced against the greater influence a single jurormay have in a group of six, comprising a petit jury,rather than eighteen persons, necessary for a grandjury. The decision of the six must be unanimous whileonly twelve of eighteen grand jurors must agree uponan indictment. General Statutes 54-45 (b). Even takingthis into account, however, we cannot conclude thatthe underrepresentation of Hispanics in the jury veniresof Fairfield county was so substantial as to violate thedefendant's due process right to a jury representinga fair cross section of the community. Accord Beale,Supra, 280;9 see also United States v. Armstrong,621 F.2d 951, 955-56 (9th Cir. 1980); United States v.Potter, 552 F.2d 901, 905-906(9th Cir. 1977); UnitedStates v. Nordwall, 555 F. Sup. 37 (D. Nev. 1982); Statev. Elbert, 424 A.2d 1147, 1149 (N.H. 1981). "It should. . . be emphasized that in holding that petit juriesmust be drawn from a source fairly representative ofthe community we impose no requirement that petit

[197 Conn. 254]

     juries actually chosen must mirror the community andreflect the various distinctive groups in the population.Defendants are not entitled to a jury of any particularcomposition . . . but the jury wheels, pools of names,panels, or venires from which juries are drawn mustnot systematically exclude distinctive groups in thecommunity and thereby fail to be reasonably representativethereof." Taylor v. Louisiana, 419 U.S. 522, 538,95 S.Ct. 692, 42 L.Ed.2d 690 (1975). We concludethat the veniremen from whom the defendant's jurywas drawn were sufficiently representative to providea "fair possibility for obtaining a truly representativecross section." State v. Nims, 180 Conn. 589, 595,430 A.2d 1306 (1980), quoting United States v. Kennedy,548 F.2d 608, 614(5th Cir. 1977). The defendant, therefore,has not sustained his burden of proving a lack offair and reasonable representation of Hispanics in thearray from which his jury was selected.

The defendant was not deprived of his right to a jurydrawn from a fair cross section of the community andthe trial court did not err in denying his challenge tothe jury array.


The defendant next claims that his inculpatory statementsmade to the Wilton police should have been suppressedbecause they resulted from an illegal arrest andwere elicted under such circumstances as to impingeupon their voluntariness. We conclude that the trialcourt did not err in refusing to suppress the statements.


The defendant claims an illegal arrest by virtue ofhis being in the physical custody of two Wilton policeofficers from the time he left the Westport police stationfor his trip to Wilton until he was returned to Westport.He maintains that acquisition of his custody by

[197 Conn. 255]

     the Wilton officers was an arrest. The defendant continuesfurther that the Wilton police officers had nocause or authority to arrest him at that time and thatany confession he made to them resulted directly fromthe illegal arrest.

We have recognized that the fourth amendment tothe United States constitution requires suppression ofstatements obtained as a result of an illegal arrest" `inorder to deter similar police misconduct in the futureand to protect the integrity of the courts>.'" State v.Perry, 195 Conn. 505, 508, 488 A.2d 1256 (1985), quoting Statev. Derrico, 181 Conn. 151, 157, 434 A.2d 356,cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d607 (1980); see Dunaway v. New York, 442 U.S. 200,216, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brownv. Illinois, 422 U.S. 590, 600-603, 95 S.Ct. 2254, 45L.Ed.2d 416 (1975); Wong Sun v. United States,371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).We find this principle to be inapplicable in this casebecause the essential predicate of an illegal arrest, orany arrest by the Wilton police, is lacking.

It cannot be denied that the defendant was underarrest during his trip through Wilton. In Dunaway v.New York, supra, 216, the court equated an arrest with"detention for custodial interrogation," which the Wiltonofficers undeniably conducted. It is equally clearthat the Wilton police had not arrested the defendantbefore he confessed but that his custody had been transferredto them by the Westport police who had arrestedhim. The defendant does not challenge the legality ofhis arrest by the Westport police. The defendant'sclaim, therefore, goes not to the legality of his arrest,but to the authority of the Wilton police to hold himin custody pending disposition of the Westport charges.In analyzing this claim, we start with a recognition thatafter the defendant had been given Miranda warningshe expressed his consent when asked to accompany the

[197 Conn. 256]

     Wilton officers. The defendant can hardly be heard nowto complain about the place of his custody or the authorityof his custodians when he voluntarily consentedto go with these officers on the trip to Wilton. Cf.Schneckloth v. Bustamonte, 412 U.S. 218, 246, 93S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Anonymous(1981-1), 37 Conn. Sup. 755, 759-60, 436 A.2d 789(1981).

Moreover, once a prisoner is lawfully in custody andthus deprived of his freedom, he has no constitutionalbasis for complaining about the identity of thoseassigned to hold him by the arresting authority. Thetemporary transfer of the defendant's custody from theWestport police authorities, who had arrested himlegally, to the Wilton officers did not constitute a newarrest requiring those officers to have justification forsuch an arrest. We conclude that the lawful deprivationof the defendant's liberty resulting from his unchallengedarrest by the Westport police was still in forceat the time he made the statements concerning hisinvolvement in the Wilton offenses. Those statements,therefore, were not the product of an illegal arrest, asthe defendant asserts and his claim of a fourth amendmentviolation is without merit.


The defendant's second argument for suppressionfocuses on comments made to him by the Westportpolice claimed to constitute promises that impermissiblyinduced his confession to the Wilton police. SeeBrady v. United States, 397 U.S. 742, 753, 90 S.Ct.1463, 25 L.Ed.2d 747 (1970); Bram v. United States,168 U.S. 532, 542, 18 S.Ct. 183, 42 L.Ed. 568 (1897).During the suppression hearing, Officer Gary Tranbergof the Westport police testified that the defendant wasa known drug addict and was experiencing drug withdrawalsymptoms shortly after his arrest. The following

[197 Conn. 257]

     exchange then occurred between defense counseland Tranberg. Counsel: "Did you ever talk to Mr.McCarthy about anything to the effect that, if he gavea statement concerning the houses that he burglarized,that you would help him get into a drug program orhelp him in any way concerning [his] drug habit?"Tranberg: "We had indicated to him that if he didcooperate with us, we would make that indication tothe prosecutor and also indicate the fact that he wasa drug addict and he did need some medical treatmentfor his drug addiction. I, certainly, never said that Iwas going to get him into a drug program per se."Tranberg also testified that the defendant was told thatif he cooperated with respect to the Westport crime,for which he had been arrested, no other warrantswould be issued "[a]s far as the town of Westport isconcerned." This conversation with the defendant tookplace on the morning of June 20, 1981, the day beforethe defendant confessed to the Wilton burglaries. Thedefendant generally corroborated Tranberg's account,but also testified that the Wilton police "promised methe same thing the Westport Police promised me," thatbeing "[n]o warrants. And then when I went to court,they and the Westport Police would be there to requestthe Prosecutor that I be given a drug program." TheWilton police denied making any such promises.

"`It is the state's burden to prove by a preponderanceof the evidence that the challenged confession wasmade voluntarily. Lego v. Twomey, 404 U.S. 477, 92S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Hawthorne,176 Conn. 367, 370, 407 A.2d 1001 (1978). The test ofvoluntariness is whether an examination of all the circumstancesshows that the conduct of the police wassuch as to overbear the defendant's will to resist andbring about a confession, not freely self-determined.'(Citations omitted.) State v. DeForge, 194 Conn. 392,397-98, 480 A.2d 547 (1984); see also State v.

[197 Conn. 258]

     Stankowski, 184 Conn. 121, 131-32, 439 A.2d 918, cert.denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d588 (1981)." State v. Perry, supra, 516.

With respect to the promises claimed to have beenmade by the Wilton police, we are presented with aplain question of fact involving the credibility of witnesses."This court cannot retry the facts or pass uponthe credibility of the witnesses. Johnson v. Flammia,169 Conn. 491, 497, 363 A.2d 1048 (1978)." State v.Hawthorne, supra, 371; State v. DeForge, supra, 398.Where the trial court found against the defendant onthe ultimate issue without articulation, we may assumethat it resolved any underlying factual disputes againsthim as well. See State v. Jones, 193 Conn. 70, 79,475 A.2d 1087 (1984); State v. Schonagel, 189 Conn. 752,762, 459 A.2d 106 (1983), vacated and remanded,465 U.S. 1002, 104 S.Ct. 990, 79 L.Ed.2d 224 (1984); Statev. Reddick, 189 Conn. 461, 470 n. 8, 456 A.2d 1191(1983). On the basis of the record before us, it has notbeen established that any promises were made by theWilton police, and we decline to pass upon a versionof events not established by the record. See State v.Perry, supra, 516.

The situation differs as to the promises by the Westportpolice, concerning which there was no factual disputeat trial. It is clear, however, that the trial courtcould have found that the defendant understood thosepromises to relate only to his interaction with the Westportpolice and not his subsequent dealings with theWilton police. When he testified at the suppressionhearing, the defendant stated that the Westport police"promised me that if I had agreed to help them withany investigation and any burglaries pertaining withinWestport, that they would take me to the hospital soI could get medication for my withdrawals. And whenI went to court for this charge, they would see that Iwould be given a drug program."(Emphasis added.)

[197 Conn. 259]

     Similarly, Tranberg's testimony concerning the promisethat no other warrants would be issued against thedefendant aside from that for which he was already incustody was qualified to apply only "[a]s far as the Townof Westport is concerned. "(Emphasis added.) Given thelimits of these promises, it would have been fair for thetrial court to conclude that they had no impact on thedefendant's decision to confess to having committedcrimes in Wilton." `A confession, otherwise freely andvoluntarily made, is not vitiated by a promise ofleniency unless such promise was the motivating causeof the confession.'(Citations omitted.) State v. Tardiff374 A.2d 598, 601 (Me. 1977)." State v. Perry, supra,519.

Thus neither the nature of the defendant's custodynor any promises made to him10 required a finding thatthe defendant's confession was inadmissible, and thetrial court did not err in denying his motion to suppress.11


The defendant's third claim of error relates to thequestions asked of him on cross-examination after hehad exercised his right to testify in his own behalf.12On direct examination, the defendant testified only

[197 Conn. 260]

     about his drug addiction and the drugs he ingested onthe day he entered the victim's home. On cross-examination,the state attempted to inquire about thedefendant's actions preceding, during and directly followingthe time he entered the victim's home. Thedefendant objected on the ground that the state'sinquiry was outside the scope of his direct examination.The state responded that the defendant's actions at thetime in question related to his state of mind, which thedefendant had put in issue through his testimony ondirect. The trial court, noting that the defendant hadearlier stipulated to having entered the victim's houseand to having taken some property and was relying asa defense on a claimed lack of mental capacity, agreedwith the state that the defendant's conduct at the timeof the crime was a permissible subject of cross-examination.The defendant properly excepted.

The defendant correctly states the rule that "[t]hescope of cross-examination is limited by the scope ofthe direct examination unless there is an attack on thecredibility of the witness." State v. Zdanis, 173 Conn. 189,195, 377 A.2d 275 (1977); State v. Thompson,191 Conn. 146, 148, 463 A.2d 611 (1983). The rule in itsapplication is not so narrow as he would suggest, however."It [is] within the broad discretion accorded thecourt in its control over the cross-examination to admit[a] question and forestall any erroneous impressionwhich the jury might otherwise have obtained as to thesignificance of the actions of the contestants. The courtcould properly allow the proponents to inquire as toany facts which would tend to rebut or modify anymaterial conclusion or inference resulting from thefacts elicited on the direct examination. Levine v.Marcus, 90 Conn. 682, 684, 98A. 348 [1916]." Shulmanv. Shulman, 150 Conn. 651, 661, 193 A.2d 525 (1963).

The defendant's testimony on direct examination wasplainly intended to raise an inference that his mental

[197 Conn. 261]

     state was such that at the time of the incident he couldnot have formed the intent requisite to criminal responsibilityfor the crimes charged. See General Statutes53a-103, 53a-119. The testimony elicited by the staterelating to his thoughts and actions at that time wasclearly intended to rebut that inference by showing thenonrandom and deliberate nature of his conduct. Moreover,given that the defendant had already stipulatedthat he had entered the victim's home and taken hispossessions, it is difficult to perceive any prejudice tothe defendant in the admission of this testimony. Thisevidence merely provided details of the entry and theft,the ultimate facts that had been already admitted. "[A]sa rule although the extent of cross-examination iswithin the trial court's discretion it should be liberallyallowed. State v. Reed, 174 Conn. 287, 299,386 A.2d 243 . Every reasonable presumption should begiven in favor of the correctness of the court's rulingin determining whether there has been an abuse of discretion.Reversal is required only where an injusticeappears to have occurred. State v. Martin, 170 Conn. 161,365 A.2d 104 [1976]; State v. Brown, 169 Conn. 692, 702,364 A.2d 186 [1975]." State v. Briggs, 179 Conn. 328, 333,426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct.3000, 64 L.Ed.2d 862 (1980); see also State v. Castro,196 Conn. 421, 426, 493 A.2d 223 (1985). We find no suchinjustice here.


Finally, the defendant claims error in the trial court'srefusal to charge the jury on the crimes of larceny inthe second and third degrees as lesser included offensesof first degree larceny. The trial court, after receivingthe defendant's written request for a charge on theselesser degrees of larceny, instructed the jury only onthe lesser offense of larceny in the fourth degree. Atthe time of the offense, the material distinction betweenthe crimes was that of value. A theft constituted first

[197 Conn. 262]

     degree larceny if the property stolen was worth morethan $2000; General Statutes (Rev. to 1979) 53a-122;second degree if between $500 and $2000; General Statutes(Rev. to 1979) 53a-123; third degree if between$50 and $500; General Statutes (Rev. to 1979)53a-124; and fourth degree if the property was worthless than $50 or was of undetermined value. GeneralStatutes (Rev. to 1979) 53a-125, 53a-121 (a)(3).

At trial, the state presented the testimony of the victimand his sister. Both described the flatware andother table pieces taken in the burglary of the victim'shome on June 7, 1980, and indicated that most of thepieces taken were sterling silver. An expert for thestate also identified many of the stolen pieces as sterlingsilver and valued them between $7839 and $8845.Two police officers testified that the defendant had toldthem that after he took the silver he sold it in New Yorkfor $2500. Aside from cross-examination of witnessesfor the state, the defendant presented no evidencerelating to the value of the stolen goods.

"A defendant is entitled to an instruction on a lesseroffense if, and only if, the following conditions are met:(1) an appropriate instruction is requested by either thestate or the defendant; (2) it is not possible to committhe greater offense, in the manner described in theinformation or bill of particulars, without having firstcommitted the lesser; (3) there is some evidence, introducedby either the state or the defendant, or by a combinationof their proofs, which justifies conviction ofthe lesser offense; and (4) the proof on the element orelements which differentiate the lesser offense fromthe offense charged is sufficiently in dispute to permitthe jury consistently to find the defendant innocent ofthe greater offense but guilty of the lesser." State v.Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).Failure to charge on an included offense when this test

[197 Conn. 263]

     is met is reversible error. State v. Harris, 189 Conn. 268,274-76, 455 A.2d 342 (1983); State v. Falby, 187 Conn. 6,28-30, 444 A.2d 213 (1982).

Without having to consider the other elements, wefind that the defendant has failed to satisfy the thirdprong of the Whistnant test and therefore was notentitled to the requested charge on larceny in the secondand third degrees. In support of his claim of error,the defendant argues that because the jury could havedisbelieved the evidence tending to prove the stolenitems to be sterling silver, it might have determinedthe value of the items to have been less than thatasserted by the state and thus to fall somewherebetween $50 and $2000, the value range for secondand third degree larceny. While this contention mightbe sufficient to satisfy the fourth requirement ofWhistnant, the fact remains that there was no evidenceplacing the value at less than $2500. If the jury hadconcluded that the evidence of value was insufficientfor first degree larceny, it was possible for it to findonly that the value of the stolen property was undetermined,and that a fourth degree larceny had been committed.The third prong of Whistnant requires thatthere be "some evidence . . . which justifies convictionof the lesser offense." (Emphasis added.) State v.Whistnant, supra, 588. Evidence tending to show onevalue, if disbelieved, cannot be said to establishaffirmatively another. State v. Mayell, 163 Conn. 419,426-27, 311 A.2d 60 (1972); Marquis v. Drost,155 Conn. 327, 332, 231 A.2d 257 (1967). Thus the weaknessclaimed in the state's proof that the property hada value of more than $2000 would not in itself justifya finding that its value fell within the range of $50 to$2000 for second and third degree larceny. There is noother evidence that would support such a finding and,thus, the third Whistnant criterion has not been satisfied.

[197 Conn. 264]

     The court therefore did not err in refusing tocharge on the crimes of second and third degreelarceny.

There is no error.

In this opinion the other judges concurred.

1. In Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S.Ct. 672, 42L.Ed.2d 690 (1975), it was determined "that the selection of a petit juryfrom a representative cross section of the community is an essentialcomponent of the Sixth Amendment right to a jury trial" that is applicableto the states by virtue of the due process clause of the fourteenthamendment to the United States constitution. Id., 528. This holding wasreinforced in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579(1979).

2. The trial court refused to admit the applicable figures containedin the 1980 census because the 1980 census results were at that timeprovisional. The defendant does not claim error in that ruling, but insteadurges this court to take judicial notice of results of the final 1980 censusnow available. We decline to take judicial notice of facts that were notavailable, and therefore could not have been judicially noticed, at the timeof trial. See State v. Kilpatrick, 1 Conn. Cir. Ct. 298, 303,23 Conn. Sup. 437, 184 A.2d 191 (1962). To hold otherwise would be to permita party to appeal a case on a basis completely different from that presentedbelow, essentially rendering the lower court decision superfluous. Thejudicial notice of facts unavailable at the time of trial would beinconsistent with the appellate function of this court. Styles v. Tyler,64 Conn. 432, 449-56, 30A. 16 (1894); cf. People v. Harris, 36 Cal.3d 36,679 P.2d 433, 201 Cal.Rptr. 782 (1954)

3. The statistical decision theory as it applies to jury arraychallenges was propounded in Finkelstein, "The Application of StatisticalDecision Theory to the Jury Discrimination Cases," 80 Harv. L. Rev. 338(1966), and discussed in Casteneda v. Pardita, 430 U.S. 482, 497 n. 17, 97S.Ct. 1272, 51 L.Ed.2d 491 (1977).

4. In State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), wedeclined to review a challenge to a jury array where the defendant failed toobtain findings from the trial court on the subordinate questions of factand failed properly to set forth in his brief facts on the record thatsupported his claim. Id., 74 n. 2. This defendant has likewise failed torequest an articulation, but he has outlined in his brief the relevant factsbefore the trial court upon which his challenge to the jury array wasrejected. We find that the defendant has presented a record adequate forappellate review.

5. While a due process challenge to a jury array may be broughtregardless of whether a defendant is a member of the group he claims tohave been excluded from jury service; Duren v. Missouri, 439 U.S. 357,359 n. 1, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana,419 U.S. 522, 526, 95 S.Ct. 672, 42 L.Ed.2d 690 (1975); standing to advancean equal protection claim is limited to members of the excluded group.Casteneda v. Pardita, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 491(1977). The defendant here does not claim to be a member of the Hispaniccommunity.

6. We agree with the observation in United States v. Test,550 F.2d 577, 584 (10th Cir. 1976), that "the mathematical conclusion thatthe disparity between . . . two figures is `statistically significant' doesnot . . . require an a priori finding that these deviations are `legallysignificant'"

7. "From time immemorial in this state, the community unit which isthe basis for the source of a jury array is that of the county . . . . Theissue to be determined then is whether the array was a fair cross sectionof that community." State v. Townsend, 167 Conn. 539, 551, 356 A.2d 12,cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 62 (1975).

8. The that have continued to employ an absolute discrepancytest; see State v. Castonguay, 194 Conn. 416, 428, 481 A.2d 56 (1984); haverequired a deviation from community composition much greater than thatshown by the defendant's evidence here. See, e.g., United States v. Tuttle,729 F.2d 1325, 1327 (11th Cir. 1954); United States v. Yazzie, 660 F.2d 422(10th Cir. 1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d464 (1982).

9. "The that have applied the impact standard have generallyconcluded that the challenger failed to prove a sufficient disparity whenproportionate minority representation would have added only one or twoadditional minority jurors to a typical grand or petit jury." Beale,"Integrating Statistical Evidence and Legal Theory to Challenge theSelection of Grand and Petit Jurors," 46 Law and Contemp. Probs. 269, 280(1983).

10. Our conclusion that the promises that were made to thedefendant did not relate to his Wilton confession makes it unnecessary forus to consider whether those promises were of such a nature as to vitiatean otherwise voluntary confession. Cf. State v. Perry, 195 Conn. 505,519-20, 488 A.2d 1256 (1985); State v. Carter, 189 Conn. 631, 638-39,458 A.2d 379 (1983).

11. "The defendant also made a motion to dismiss on the same groundsrelied upon in his motion to suppress. It follows from our conclusion thatthe court did not err in failing to suppress the evidence that the defendantwas not entitled to dismissal of the charges against him, and the trial

12. The defendant's claim at trial and on appeal is that the state'scross-examination sought to elicit information that was beyond the scope ofdirect examination. The defendant has made no constitutional claimsinvolving his right not to incriminate himself, and therefore we have notanalyzed his claim from that perspective.

Back to top