State v. Tillman

Berdon, J.,

dissenting. I disagree with the majority’s rejection of the defendant’s claim that the trial court erred in refusing to allow him to present evidence in support of a challenge to his jury array. I would find, on the basis of the offer of proof made by the defendant, that he was entitled to an evidentiary hearing to attempt to make a prima facie showing that the jury array was derived in an unconstitutional manner through the adoption of a practice that resulted in the exclusion of minorities, including black persons. Accordingly, I would reverse the judgment in this case and remand the same for a new trial.

In this criminal prosecution, the state charged the defendant, James C. Tillman, a black man, with the crimes of sexual assault, kidnapping, robbery, larceny and assault of the victim, a white female. Jury selection began on September 5, 1989, and the first panel was drawn from an array consisting of fifteen persons, all of whom were white except for two black females who were bank employees.1

After the first panel was exhausted at the end of the day on Thursday, September 7, 1989, a second panel of ten persons was drawn, all of whom were white. After one person on the second panel was questioned, *508the defendant objected to its composition because neither of the two panels, both of which contained twenty-five persons, included any black males and because only one person was from Hartford. The defendant requested that the second panel be dismissed and that a new panel be drawn.2 The trial court rejected the request and implicitly invited counsel to ascertain if there was “evidence that the jury clerk is calling in people improperly or excusing them improperly or sending them down other than randomly.” Jury selection continued for part of the day on Friday, September 8, and a total of six white jurors were selected.

On Monday, September 11, prior to the selection of the alternates, the defendant renewed his objection to the composition of the jury panel. Counsel read a prepared statement from the defendant objecting that the -composition of the panels failed to include black males and Hartford residents.3 After reading the statement of the defendant, counsel furnished the court with an offer of proof that included the following: “As the court knows, the jurors are selected from a combination of motor vehicle records and voting lists. Also, a factor that is used by the jury clerks in this judicial district, in deciding whether or not to exclude a person from jury duty . . . [is] an economic factor. If the jury clerk for this district, Your Honor, for this building, has documentation that a person called for jury duty who is *509employed somewhere will not be given the balance of his or her pay by his or her employer, and therefore would only be receiving the ten dollars a day that the state provides the jurors, then the jury clerk will excuse that person for an economic hardship. This is a decision that is made by the jury clerk and there are two reasons that the jury clerk gave me for this: One is that it’s economically disadvantageous to that potential juror to have to spend four weeks here making ten dollars a day when he or she—and therefore forfeiting a lot more that they would be paid on their job, if they happen to come from an employer who does not make up the difference. The other reason, Your Honor, is that the clerks feel that a person who is, in effect, forced to sit on jury duty for four weeks for ten dollars a day will not make a good juror. Now, I would submit that . . . this is not to be construed ... as racial discrimination as such, but the fact is, according to the jury clerk here, that very often members of minorities are employed by employers who do not make up the difference in the ten dollar a day—the difference from the ten dollar a day that the state pays the jurors. Therefore, the clerk agreed that there are a disproportionate number of minorities who would be excluded solely by the jury clerk for this economic hardship. She told me, in fact, that on this particular panel, the array that is available upstairs, that in fact there are not many black jurors available.” (Emphasis added.) The trial court again rejected the claim of the defendant giving as his reason “that six jurors were selected prior to the challenge having been made.”4 Thereafter, two white alternates were selected. The defendant was tried and convicted as charged by his all white jury.

*510The issues raised by the defendant, which allege the exclusion of persons from jury service on the basis of race, go to the very heart of our system of criminal justice—the impartial jury. “The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.” Taylor v. Louisiana, 419 U.S. 522, 530, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).

The selection of a petit jury from a representative cross-section of the community is an essential element of the right. Id. There is, however, no constitutional right that the petit jury result in any particular composition. McCray v. Abrams, 750 F.2d 1113, 1128 (2d Cir. 1984), reh. denied, 756 F.2d 277 (2d Cir. 1985) (en banc). Not “every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community . . . .” Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). “Indeed the impracticability of attempting to achieve a petit jury composed of a cross section is obvious.” Williams v. Coppola, 41 Conn. Sup. 48, 56, 549 A.2d 1092 (1986). Its composition, from the array to the jury panel, then becomes a question of the luck of the draw. The array, however, from which these panels are drawn must be composed of a representative cross-section of the community in order to allow the defendant a chance to achieve this result.

The thrust of the majority opinion denying the defendant’s claim of unconstitutional discrimination in the selection of the jury array is that “[a]ll 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 *511with the clerk.” The majority fails to acknowledge the basic trial procedure of an “offer of proof” as utilized by the defendant. Offers of proof are allegations by the attorney in which he represents to the court that he could prove them if granted an evidentiary hearing. See Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979). “ ‘An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.’ ” State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986), quoting Mad River Orchard, Inc. v. Krack Corporation, 89 Wash. 2d 535, 537, 573 P.2d 796 (1978). Although counsel for the defendant did not articulate that he was presenting an “offer of proof,” it is apparent from the record that the trial court understood it to be such an offer when it rejected the challenge to the jury array on the ground that six jurors have already been selected—in other words—it was too late to make the claim.5 Accordingly, the defendant’s constitutional challenge to the array must be reviewed as if these allegations of the defendant could had been proven at an evidentiary hearing.

The defendant made five basic allegations in his offer of proof and statement to the court. First, the jury clerk, in deciding whether she will excuse a person from jury duty, considers an economic hardship—that is, if the person’s employer would not make up the difference between his or her regular wage and the $10 per *512diem jury fee paid by the state, that person would be excused; second, very often the excuse of persons on this economic criterion results in the exclusion of members of minorities including blacks because they are likely to be employed by those who do not make up the difference; third, this practice results in the exclusion of a disproportionate number of minorities including blacks; fourth, the array from which panels were selected in this case did not include many blacks; and fifth, the defendant claimed that the array from which the defendant’s jury was selected was unconstitutionally constituted.

We have long held that “[impartiality as a core requirement of the right to trial by jury is served not only by the sixth amendment, which applies to the states as well as to the federal government . . . but also by the due process and equal protection clauses of the fourteenth amendment.” (Citations omitted.) State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). Under either argument advanced by the defendant in this case6—a sixth amendment violation under Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), or a due process violation under State v. Nims, 180 Conn. 589, 430 A.2d 1306 (1980)-the defendant was entitled to an evidentiary hearing in order to prove that the composition of the array violated his constitutional right to select a jury from a representative cross-section of the community.

Under Duren, the defendant could have established, on the basis of his offer of proof, a prima facie case7 *513that the array did not satisfy the fair cross-section requirement. This would then have shifted the burden to the state to prove that the selection system furthered significant state interests. Duren v. Missouri, supra, 367-68. The defendant would have satisfied the “distinctive group” requirement by the proof that potential jurors were excluded for the economic reasons, which resulted in the exclusion of minorities including blacks;8 Thiel v. Southern Pacific Co., supra, 222 (intentionally eliminated all those who worked for a daily wage);9 he would have satisfied the “representation of this group ... is not fair and reasonable” requirement by proof that the practice resulted in a disproportionate number of blacks being excluded compared to their number in the community; and the “under-representation is due to systematic exclusion” requirement would have been satisfied by proof that this exclusion was the practice of the clerk in the judicial district of Hartford.

Likewise, proof of the defendant’s offer would have established a violation of due process under State v. *514Nims, supra. “ ‘The due process clause does not itself guarantee a defendant a randomly selected jury, but simply a jury drawn from a fair cross section of the community. A claim of denial of this due process right requires a showing that the jury selection process tended to exclude or underrepresent some discernable class of persons and consequently to defeat a fair possibility for obtaining a truly representative cross section.’ ” Id., 595, quoting United States v. Kennedy, 548 F.2d 608, 614 (5th Cir. 1977).

Nims, however, makes clear that the practice does not necessarily have to exclude all those in the discernible class; “it is equally offensive to the constitution to limit proportionally the number of an identified group that will serve on a jury array or panel. Cassell v. Texas, [339 U.S. 282, 286-87, 70 S. Ct. 629, 94 L. Ed. 839 (1950)].” State v. Nims, supra, 597. Surely, the imposition of the economic criterion in this case of excusing potential jurors, which results in the exclusion of members of minorities including blacks, satisfies Nims.

Underscoring both the Duren and the Nims claims made in this case is the composition of the community. According to the 1990 national census, Hartford, the largest city included in the judicial district, has a total population of 139,739, which includes a black population of 39 percent.10 Considering these statistics makes it even more likely that the practice of the jury clerk had an impact on the underrepresentation of blacks on the array.

In our system of justice, not only must the accused be afforded a fair trial, but equally important there must be a perception of fairness by the community and the accused. Anything less not only undermines the *515credibility of this branch of government but also threatens the very fabric of our democracy. And, of course, the perception that the person is being tried before a fair jury drawn from a cross-section of the community is high on the agenda in achieving that goal.

When a black man, as in the present case, is accused of serious crimes such as the sexual assault of a white victim, that black defendant—and, indeed, the black community—cannot perceive that he has received a fair trial from a jury that is entirely composed of white persons, drawn from an array made up of very few blacks because of deliberate practices that resulted in their elimination. The defendant in this case forcefully expressed that concern when his attorney read to the court during jury selection the following statement he had prepared. “Your Honor, I object to the jury array. I do not feel that this is a jury of my own peer[s] and therefore it will be impossible for me to have a fair trial. Especially considering the facts of the Danny Webb case which has been in all the news and newspapers.11 And the fact that his case alleges that he [attacked] a middle class white woman from one of the suburban towns, which in fact is what my jury panel was made of. There were only two blacks from the entire panels in which I had to choose from. I’m sure that this [doesn’t] comply with the statistical percentage of blacks for this geographical area. Therefore, this cannot be a jury of my peer[s] and [it] will be impossible for me to have a fair trial. I therefore state for the record at this time, I would like to challenge the jury array and ask the court to order whatever [is] necessary for me to do this.”

*516There is a need to preserve public confidence in the fairness of a jury but that perception dissipates when the court, through its clerk, employs selection practices for the array that undermines the defendant’s constitutional right to select a jury from a fair cross-section of the community. “Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

Accordingly, I respectfully dissent.

One black female potential juror, a resident of Hartford, was excused as a result of the state exercising a peremptory challenge. The other black female potential juror, a resident of Bloomfield, was excused as a result of the defendant exercising a peremptory challenge after his cause challenge was denied.

Mr. Cosgrove, the attorney for the defendant, stated: “[W]e’ve had, two panels, we’ve gone through one completely, 15 people, we just introduced a new panel of 10 people, there hasn’t been a single black male among those 25 people, your Honor. I don’t know if that’s representative of the entire jury pool here but I don’t think it comports with Mr. Tillman’s right to a trial by a jury of his peers and in addition, your Honor, there has been only one Hartford resident from my count on this sheet here and that happened to be a black woman who was excused by the state. I just would request the court to ask the jury clerk to send a new panel down here that might be more representative of Mr. Tillman’s race and place of residence.”

See infra, 515.

The defendant, after the verdict, renewed his objection to the arrays in a motion for a new trial, which was denied. The court again commented that the challenge was made “after the first six jurors had already been selected.”

I agree with the majority that, “fwjhere 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.” Majority opinion, 494. In this case, as the majority found, the defendant’s objections were timely.

Although the defendant appears also to raise state constitutional issues, his failure adequately to brief them by providing reasoned legal argument precludes appellate review. State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987).

“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 representa*513tion 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.” Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).

The majority claims the “group is broad enough to include both the day laborers considered in Thiel and highly paid professionals Whether it includes those who are “highly paid” begs the issue. The issue is whether the elimination of the “distinctive group” results in the exclusion of minorities including blacks, which was included in the offer of proof.

The United States Supreme Court has struck down jury selection schemes that have; (1) intentionally eliminated a racial group; Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940); (2) deliberately selected jurors from the membership of particular private organizations; Glasser v. United States, 315 U.S. 60, 86, 62 S. Ct. 457, 86 L. Ed. 680 (1942); and (3) intentionally eliminated women. Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct. 261, 91 L. Ed. 181 (1946). As the defendant aptly noted in his brief, in each case the United States Supreme Court held that these practices were incompatible with the fair cross-section requirement that is the hallmark of trial by an impartial jury.

I take judicial notice of the 1990 census figure for the city of Hartford. Nichols v. Nichols, 126 Conn. 614, 621-22, 13 A.2d 591 (1940).

The defendant had made reference to a highly publicized case involving the arrest and arraignment of a black man for sexual assault and capital murder of a white female victim who was a downtown Hartford office worker. In the present case, the white female victim was also a downtown Hartford office worker.