State v. Lugo (dissenting)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. LUGO DISSENT BORDEN, J., with whom PALMER, J., joins, dissenting. I disagree with the majority s conclusion that the trial court s blanket preclusion of questions by the defendant on jury voir dire about the venirepersons knowledge of the Latin Kings gang did not improperly restrict the scope of that voir dire. I therefore dissent, and would reverse the judgment of conviction. Because I would reverse the judgment of conviction, I do not reach the other issues raised by the defendant on appeal. The defense presented by the defendant, Ruperto Lugo, was that, when he exited the automobile armed with a gun, he did so because Mary Pires, an occupant of the vehicle, had warned him that one member of the group of boys outside of the automobile, Jason Gowdy, who ultimately became the victim, was a member of the Latin Kings gang. The defendant testified that he had had prior run-ins with the Latin Kings in Bridgeport, and that two members of the Latin Kings had shot his best friend. Therefore, he testified, he armed himself based on that prior experience, and not because he had the intent to rob anyone. I agree with the majority s statement of the standards applicable to voir dire questioning, and will not repeat them in full here. I also agree with the majority s reading of the record that the trial court s ruling did not preclude the defendant from asking questions about gangs in general, but prohibited questioning only with respect to the Latin Kings gang in particular. I would conclude, however, that the trial court abused its discretion in precluding that questioning. The important inquiry was not, as the majority suggests, whether any venireperson would have a bias for or against gangs in general; the important inquiry, for purposes of voir dire, was whether any such person had any thoughts, feelings or prior experiences regarding the Latin Kings in particular. I therefore disagree with the majority s contention that any association with the Latin Kings, or favoritism toward them, necessarily would have been uncovered by questions about gangs in general. Asking about gangs in general is simply not the same as asking about a particular gang because specific biases regarding individual gangs are not fungible. Even if asked probing questions about gang association or familiarity in general, a venireperson would not necessarily respond with information about his or her specific biases with respect to the Latin Kings. In short, brief and limited questioning about a venireperson s specific knowledge or beliefs about the Latin Kings would be the most reasonable means of eliciting the information that the defendant was entitled to have in order to make intelligent decisions regarding peremp- tory challenges or challenges for cause. It is undisputed that the evidence at the probable cause hearing, as well as the evidence ultimately adduced at trial, involved the claim of the defendant that his state of mind at the time of the crime was governed by his prior experience with the Latin Kings. Consequently, in order for the defendant to have sufficient information on which to base an intelligent decision of whether to exercise a peremptory challenge or request a challenge for cause, he was entitled to inquire, at least initially and briefly, about the relationship, if any, of any particular venireperson to the Latin Kings. For example, he was entitled to inquire whether the venirepersons had relatives who were members of the Latin Kings, whether they had any preconceived ideas negative or positive about the Latin Kings, and, indeed, whether any venireperson may have been a member of that gang. In addition, he was entitled to inquire whether any venireperson had such strong feelings or ideas about the Latin Kings that he or she could not put them aside and evaluate the evidence fairly and impartially. Beyond these very general and preliminary questions, the court certainly could have exercised appropriate control over the questioning. The premise of the majority opinion is that, because the defendant was not precluded from asking questions about gangs in general, if he had done so and had elicited a response indicating that a venireperson had a bias for or against gangs in general, he then would have been permitted by the trial court to ask about the Latin Kings specifically. I question this reading of the record. First, there is no indication, from the trial court s blanket preclusion of questions about the Latin Kings, that the court had this conditional scenario in mind. Second, if the court did have it in mind, that was never made clear to the defendant. Third, I see no valid purpose for requiring this kind of two step procedure, where the pertinent questions concerned the Latin Kings, and not gangs in general. Finally, the majority endorses the trial court s view that permitting the defendant to ask questions about the Latin Kings would have permitted him to gauge in advance the venireperson s views concerning the evidence. It is true, as the majority correctly notes, that [q]uestions addressed to prospective jurors involving assumptions or hypotheses concerning the evidence which may be offered at the trial . . . should be discouraged [because they often] . . . represent a calculated effort on the part of counsel to ascertain before the trial starts what the reaction of the [venireperson] will be to certain issues of fact or law or, at least, to implant in his mind a prejudice or prejudgment on those issues. (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 61, 75, 530 A.2d 155 (1987). The rule against asking questions concerning various potential states of the evidence does not automatically prohibit questions concerning undisputed facts that will be set forth at trial. If we were to read the principle that broadly, it would preclude virtually any type of useful voir dire question. Such questions always have some evidence in view e.g., Would you be inclined to believe the testimony of a police officer, just because she is a police officer? Thus, in managing voir dire, the trial court is often faced with applying the principle in such a way that it gives due latitude to voir dire, without permitting that latitude to become simply an attempt to persuade the jury in advance or to give counsel an impermissible view of the venireperson s likely reaction to issues of fact or law. The central objective of voir dire, however, is to ascertain whether the venireperson has a predisposition concerning undisputed aspects of the case that could not be set aside, or that could form the basis of a peremptory challenge. Our cases make clear that voir dire must have sufficient latitude to allow for that to take place. In fact, the trial court s failure to recognize the undisputed nature of the victim s purported membership in the Latin Kings was at the core of its ruling. The court stated to defense counsel: [Y]ou asked one of these jurors about the Latin Kings. And I don t know that anyone connected to this case with this case was a Latin King. I don t know whether that s relevant or whether that s appropriate and I can t know that until some evidence gets put on. Sensing the court s confusion about this undisputed aspect of the case, defense counsel explained to the court: I think it is important that we ask that question. We ve obviously all gone through a probable cause hearing. That [aspect of the case] clearly is going to come up [at trial]. Confronted with the fact that the victim s purported membership in the Latin Kings was an undisputed aspect of the case, with citation to the probable cause hearing, the court simply responded: Well, I didn t sit on the probable cause hearing and I don t know what the potential evidence is going to be . . . at trial. Where, as in the present case, there was no indication that the defendant sought to presage hypothetical states of the evidence to gauge the jurors reaction, and the probable cause hearing demonstrated that the victim s purported membership in the Latin Kings was an undisputed aspect of the case, I conclude that the trial court abused its discretion by prohibiting the defendant from uncovering significant biases for or against the Latin Kings that could have formed the basis of either a peremptory challenge or a challenge for cause. I therefore dissent.
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