Lead Opinion
Opinion
Following a jury trial, the defendant, Dennis Hodge, was convicted of one count of murder
The jury reasonably could have found the following facts. On or about January 29, 1992, the defendant’s mother, Willie Mae Hodge Perry, who resided in New Haven, contacted the defendant to inform him that her kitchen had sustained damage as a result of a fire. Several days thereafter, the defendant, who was living in New Jersey at the time, returned to Connecticut and
During March and April, 1992, questions arose concerning the amount of the insurance settlement and the manner in which payment to Servpro was to be made. Because the defendant and Perry had expected to receive approximately $20,000 from Perry’s insurer, they were disappointed to learn from Horowitz, on April 8, that Perry, instead, would be receiving a total net settlement of approximately $15,500. Horowitz assured them, however, that he had done all that he could. When asked by the defendant about the payment for cleaning services, Horowitz stated that Servpro’s bill of $4700 already had been paid.
Later in April, 1992, however, the defendant learned from an agent of Perry’s insurance company that the insurer had prepared two checks, one payable to Perry in the approximate amount of $12,500, and the other payable to Servpro in the approximate amount of $4700. The defendant telephoned Biller Associates several times in an unsuccessful effort to discuss the apparent
On the morning of May 4, 1992, the defendant met with Horowitz and Biller in Biller’s office. After expressing his dissatisfaction with the fact that Perry stood to receive $3000 less than she had expected, the defendant proposed that Biller Associates remit one half of that amount, $1500, to Perry. Biller asked the defendant whether he expected Biller to pay the defendant $1500 of Biller’s own money, and inquired as to what measures the defendant expected to take if the defendant and Biller Associates were unable to resolve the matter. The defendant responded: “I would go to war with you. I will cause you and your company as much pain as you’ve caused me and my family.” The defendant added that he would file a civil suit if necessary. Biller replied that no one had ever prevailed in a lawsuit against Biller Associates. After some further discussion, Biller stated that the matter would not be resolved that day. The defendant then inquired: “[S]o that’s the way it is?” Biller replied: “[T]hat’s the way it is.” As the defendant rose to leave, he pulled out a nine millimeter handgun and shot and killed both Biller and Horowitz. The defendant immediately left the scene and, thereafter, fled to Costa Rica.
At the defendant’s trial, several employees of Biller Associates testified regarding the events leading up to and culminating in the deaths of the victims. The testimony of these witnesses, who were present in the Biller Associates office at the time of the shootings, established the defendant as the shooter. In addition, Edward McDonough, a physician with the state medical examiner’s office, testified that both victims had died as a result of multiple gunshot wounds. McDonough concluded that Biller’s body had seven entry wounds, one of which was from a bullet that had severed Biller’s spinal cord. McDonough located three entry wounds on Horowitz’ body, including one from a bullet that had entered his back and penetrated his aorta.
The defendant, who testified in his own defense, admitted that he had shot the victims, but sought to establish the affirmative defenses of mental disease or defect
The trial court instructed the jury on capital felony, murder, first degree manslaughter as a lesser included offense of murder and carrying a pistol without a permit. After deliberating for nine days, the jury, which twice had indicated that it was deadlocked, returned a verdict of guilty of murder with respect to the death of Biller and of first degree manslaughter with respect to the death of Horowitz. The jury also found the defendant guilty on the charge of carrying a pistol without a permit. The trial court rendered judgment sentencing the defendant to consecutive prison terms of fife on the murder count, twenty years on the manslaughter count and five years on the count of carrying a pistol without a permit.*
THE PEREMPTORY CHALLENGES CLAIM
The defendant first claims that he is entitled to a new trial under the equal protection clause of the fourteenth amendment to the United States constitution
The following additional facts are relevant to our resolution of this claim. Jury selection for the defendant’s trial, which involved the potentially racially charged shooting deaths of two white men by the defendant, who is African-American, took place over thirty-eight days, during which thirty-three panels were summoned, approximately 400 venirepersons were sworn and seventy-two persons were fully voir dired. In light of the capital felony charges, the court granted each party thirty-one peremptory challenges. Of those, the state used twenty-four, six of which were challenged by the defendant as discriminatory under Batson. The trial court rejected the defendant’s Batson challenges, concluding that, in each case, the state had provided credible, race neutral reasons for exercising its peremptory challenge. The final jury of twelve regular and three alternate jurors included four African-Americans and two Hispanics. Additional facts specific to the state’s allegedly improper use of its peremptory challenges are set forth below.
Background
We begin our analysis of the defendant’s claim with an overview of our jury selection process and the use of peremptory challenges. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right to an impartial jury will be honored. Rosales-Lopez v. United States,
Peremptory challenges are deeply rooted in our nation’s jurisprudence and serve as “one state-created means to the constitutional end of an impartial jury and a fair trial.” Georgia v. McCollum,
Under Connecticut law, “[o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine
In assessing the reasons proffered in support of the use of aperemptory challenge, we note that “[a]n explanation . . . need not ... be pigeon-holed as wholly acceptable or wholly unacceptable . . . and even where the acceptability of a particular explanation is doubtful, the inquiry is not at an end. In deciding the ultimate issue of discriminatory intent, the judicial officer is entitled to assess each explanation in light of all the other evidence relevant to prosecutorial intent. The officer may think a dubious explanation undermines the bona fides of other explanations or may think that the sound explanations dispel the doubt raised by a questionable one. As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances.” (Citation omitted; internal quotation marks omitted.) United States v. Alvarado, supra,
In reviewing a trial court’s finding that the reasons given by a prosecutor for the use of a peremptory challenge were not pretextual, this court previously has declined to review all of the reasons given by the prosecutor in support of his or her use of the peremptory challenge once we concluded that at least one of the reasons articulated was race neutral. E.g., State v. Smith, supra,
Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. Hernandez v. New York,
The Individual Batson Challenges
We now address the propriety of the state’s exercise of each of the six peremptory challenges that gave rise to the defendant’s Batson claims. We conclude that, with respect to each challenge, the trial court’s rejection of the defendant’s Batson claim was not clearly erroneous.
Two preliminary issues require resolution prior to our consideration of the defendant’s arguments. First, with respect to each of his Batson claims, the defendant contends that none of the reasons articulated by the state constituted a neutral, nondiscriminatory ground for the exercise of the peremptory challenge. The defendant therefore contends that the trial court was required to find, in light of the allegedly pretextual nature of all of the reasons proffered by the state, that the state’s exercise of each of the six peremptory challenges was the product of purposeful discrimination. The defendant relied solely upon this argument in the trial court in support of his Batson claims.
We do not doubt that, in certain circumstances, a trial court, after hearing the reasons why a peremptory challenge was used to remove a particular venire-person, reasonably could conclude that the use of that challenge was based on both impermissible discriminatory reasons and valid, nondiscriminatory reasons. In such circumstances, the dual motivation analysis set forth in Howard v. Senkowski, supra,
Second, in support of his contention that the trial court improperly rejected his Batson claims, the defendant relies, to a considerable degree, on the argument that the state failed to exercise peremptory challenges against certain white venirepersons with characteristics similar to the minority venirepersons who were the subject of the defendant’s Batson claims. See State v. Hinton, supra,
The defendant, nevertheless, urges us to review his unpreserved disparate treatment claims in light of our
Venireperson C.W.
On the eighth day of voir dire,
In response, the defendant sought to downplay the role that police testimony would play in the case by stating that, because the defendant admitted that he had shot and killed the victims, the crux of the case was the defendant’s mental state at the time he fired the shots. He characterized C.W. as “fair minded, intelligent, and introspective,” disputed that she had demonstrated any indication that she was biased against the state, and disagreed with the conclusion of the state’s attorney that C.W. would not apply the appropriate standard of proof. The defendant asserted, moreover, that the selection of two jurors who were members of a minority group was irrelevant to the determination whether the state’s use of a peremptory challenge to exclude C.W. from the panel was racially motivated. The trial court upheld the state’s use of the peremptory challenge to excuse C.W., concluding that the state had exercised the challenge for valid, race neutral reasons.
2
Venireperson J.G.
On the tenth day of voir dire, the state, after unsuccessfully challenging venireperson J.G., an African-American female, for cause, exercised a peremptory challenge to excuse her. In response to the defendant’s claim of a Batson violation, the state’s attorney explained that he had exercised the peremptory challenge due to: (1) J.G.’s confusion regarding the standard of proof; (2) J.G.’s statement, which she later retracted, that her employer had conducted business with Biller Associates; (3) J.G.’s eagerness to serve as a juror on the case; (4) J.G.’s acquaintance with two persons employed in the public defender’s office; (5) J.G.’s background in insurance adjusting; and (6) J.G.’s familiarity with the crime scene.
A review of the transcript of J.G.’s voir dire examination supports the trial court’s determination that the state’s decision to strike J.G. was not racially motivated. A prosecutor may challenge a juror who appears unable to understand questions or who demonstrates confusion. Baynard v. State,
J.G., moreover, had considerable work experience in the field of insurance adjusting; she had been employed as an in-house claims adjuster for various organizations. Regardless whether her employer had had any business dealings with Biller Associates,
3
Venireperson I.M.
On the twenty-first day of voir dire, after ten venire-persons had been selected,
In response, the defendant observed that W.V., a white juror with a sixth grade education, already had been selected to serve on the jury.
We agree with the state that the record supports the trial court’s conclusion that the reasons offered by the
Closely related to the foregoing was the concern expressed by the state’s attorney over I.M.’s eighth grade education. Several courts have held insufficient formal education to be a race neutral reason for striking a prospective juror from the jury array. See, e.g., United States v. Hunter,
The state’s attorney also provided the trial court with a reasonable basis to conclude that I.M. might be favorably disposed toward the defense. First, although I.M. acknowledged that she was not acquainted with Griffith, a key defense witness, and it was not established that Griffith was in charge of the mental health center when her son was treated there, I.M. indicated that she would look kindly on Griffith, raising the possibility that she would accord his testimony greater weight than that of other witnesses. The state’s attorney’s belief that I.M. might be reluctant to convict the defendant, in light of his psychiatric defense, was reasonable, because I.M., who had a mentally ill son, initially had equivocated with respect to whether a person with a mental illness should be held accountable for his or
4
Venireperson M.F.
The state, on the twenty-fourth day of voir dire,
The defendant countered that the state’s challenge was motivated by improper racial and religious considerations.
Turning first to the defendant’s claim of impermissible religious discrimination, we note that the United States Supreme Court has not addressed whether the equal protection clause of the fourteenth amendment to the United States constitution prohibits the use of peremptory challenges on the basis of religion. For the reasons that follow, however, we conclude that a peremptory challenge based on a venireperson’s religious affiliation is unconstitutional.
In J.E.B. v. Alabama ex rel. T.B., supra,
One month after its decision in J.E.B. v. Alabama ex rel. T.R., supra,
Justice Thomas, who, joined by Justice Scalia, dissented from the denial of the petition for certiorari,
We cannot discern, nor has the state brought to our attention, any “principled basis . . . for confining the holding in J.E.B. to the context of sex.”
We also reject the defendant’s claim that the other reasons given by the state’s attorney in support of the peremptory challenge were so unfounded as to be pre-textual. The state’s attorney was principally concerned with M.F.’s prior arrest record,
5
Venireperson G.D.
On the twenty-seventh day of voir dire,
The defendant claimed that the reasons proffered by the state’s attorney were pretextual. In particular, he argued that a white juror with a sixth grade education who had “worked on cars in his backyard for his entire life” already had been accepted.
We begin by observing that, contrary to the assertion made by the state’s attorney during voir dire, a Batson claim may be made with respect to a venireperson who is not a member of the same race as the defendant. In Powers v. Ohio,
Turning to the reasons proffered by the state’s attorney for excusing G.D., we conclude that, although the state’s use of a peremptory challenge against G.D. presents a closer question than the defendant’s other Bat-son claims, the trial court’s ruling was not clearly erroneous. In support of G.D.’s removal from the panel, the state’s attorney observed, first, that G.D. might experience difficulty understanding the expert psychiatric testimony in light of his “less than illustrious” high school career. G.D. had stated that, during high school, his principal concern was “[g]etting it over with.” G.D. then elaborated: “I wasn’t really too good of a student. I didn’t get too involved with it. I just did my work.” The defendant then asked G.D. whether he “enjoy[ed] doing a lot of reading or not really?” G.D. responded “[n]o.” Although a careful review of G.D’s voir dire testimony indicates that G.D. did not appear- to be confused by the questions, he responded monosyllabically to most questions, thereby creating the impression that his comprehension may have been somewhat superficial.
The state’s attorney also observed that G.D. never had been “put in a position where he had to make decisions,” noting that G.D.’s job did not require decision making. G.D. had testified that he had been employed for the preceding five years as a waste water treatment operator, explaining: “I take samples of the water and I get the pH [readings], mak[ing] sure everything is within range, [and] not out of regulation.”
The defendant also contends that his claim of pretext is supported by the fact that the state already had accepted a venireperson with less formal education than G.D. Specifically, he claims that the state’s acceptance of W.V., a white juror who possessed a sixth grade education, indicates that G.D.’s purported lack of education simply was a makeweight argument designed to mask the real reason why the state sought to exclude G.D., namely, because he is Hispanic.
The record indicates, however, that W.V. and G.D. were markedly different in certain other key respects. In particular, W.V., who was forty-six years old, was significantly older than G.D., who was twenty-three. Moreover, W.V., who had been married for many years, had managed his own automotive repair business and raised two children to adulthood. Consequently, it was reasonable for the state’s attorney to conclude that W.V., by virtue of his greater maturity and life experience, would be a more desirable juror than G.D., a young, single male who lived with his parents and collected autographs and baseball cards and watched television in his spare time.
The state also proffered reasons relating to G.D.’s potential bias. First, G.D. reported that, nearly two years
We acknowledge that the remaining reasons offered by the state’s attorney in support of the state’s exercise of a peremptory challenge against G.D., namely, G.D.’s casual acquaintance with the victim of a homicide and the victim’s perpetrator,
Venireperson B.A.
On the thirty-first day of voir dire, the state exercised its twentieth peremptory challenge against B.A., an African-American female, which prompted the defendant’s sixth Batson claim.
With respect to B.A.’s educational background, the defendant again claimed that, because the state’s attorney did not excuse W.V., the white juror with a sixth grade education, his stated reliance on B.A.’s eighth grade education was pretextual. As further evidence of the state’s alleged discriminatory intent, the defendant also asserted that certain white professionals
The record amply supports the trial court’s determination that the reasons proffered by the state’s attorney for excluding B.A. from the jury were not pretextual. B.A. had two brothers with serious criminal histories; one had been arrested twelve times for burglary and both had served time in prison. In addition, B.A. and her boyfriend had been arrested for a domestic dispute two years earlier. Although the charges against her subsequently were dismissed, B.A. stated that she did not think that the police had treated her fairly. In light of these circumstances, it was reasonable for the state’s attorney to conclude that B.A.’s exposure to the criminal justice system might prejudice her against the prosecution in the present case.
Furthermore, although B.A. stated that she was not acquainted with Griffith, a key defense witness who also was the director of the mental health center, she had received treatment for depression at a facility to which she had been referred by the mental health center that may have been affiliated with the mental health center. In addition, B.A. gave ambiguous or inconsistent answers to several key questions during her voir dire, including inquiries relating to the presumption of innocence, publicity concerning the crime, the psychiatric defenses and sympathy for the defendant.
Finally, the trial court was not required to conclude that the state engaged in purposeful discrimination against B.A., who had an eighth grade education, simply because the state did not exercise a peremptory challenge to excuse W.V., the white male with a sixth grade education. B.A.’s limited education was only one of several factors that prompted the state to exercise a peremptory challenge against her, and it was reasonable
C
Conclusion
In concluding our discussion of the defendant’s Bat-son claims, we make a few additional observations that lend support to the trial court’s findings that the state did not engage in purposeful discrimination in the exercise of its peremptory challenges. First, at the time of each Batson challenge, the state already had accepted minority venirepersons; the final jury of twelve regular and three alternate jurors included four African-Americans and two Hispanics. As we previously have noted, the trial court, in assessing the validity of the state’s proffered reasons, is entitled to take into account the extent to which the state has accepted minority venire-persons. See State v. Hinton, supra,
We again emphasize that “the issue of purposeful racial discrimination in the state’s use of peremptory jury challenges is a matter of utmost seriousness, not
II
THE JURY INSTRUCTION CLAIM
The defendant also claims that the trial court improperly instructed the jury with respect to the affirmative defense of extreme emotional disturbance.
The following facts are relevant to our resolution of this claim. The defendant submitted a request to charge on extreme emotional disturbance, seeking the instruction that, “[a]s used in this affirmative defense, the word ‘extreme’ has its ordinary meaning, that is, it means great or substantial.” The trial court rejected the defendant’s request and, instead, provided the jury with the definition of the term “extreme” that we expressly
The defendant concedes that the court’s definition of the term extreme was expressly authorized, and indeed, mandated, by this court in State v. Elliott, supra,
We are not persuaded by the defendant’s argument. The definition of extreme that we adopted nearly two decades ago in Elliott is, by now, well established in our jurisprudence. E.g., State v. Crespo,
In support of his claim, the defendant relies on two out-of-state cases, State v. Bishop,
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and BORDEN and MCDONALD, Js, concurred.
Notes
General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person ....
“(c) Murder is punishable as a class A felony . . . .”
General Statutes § 53a-55 provides in relevant part: “Manslaughter in the first degree: Class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person . . .
General Statutes § 29-35 provides in relevant part: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . .
General Statutes § 51-199 (b) provides in relevant part: “The following matters may be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”
Independent insurance adjusters, who axe not affiliated with insurance underwriters, assist insureds in processing claims and obtaining settlements with their insurers in exchange for a fee, usually equal to a percentage of the insured’s recovery.
The defendant traveled to Costa Ricabecause of his belief that no extradition treaty existed between the United States and Costa Rica.
General Statutes § 53a-54b provides in relevant part: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction . . . .”
The defendant, having decided to turn himself in, was arrested while he and his lawyer were on their way to the Hamden police department.
General Statutes § 53a-13 provides in relevant part: “Lack of capacity due to mental disease or defect as affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. ...”
General Statutes § 53a-54a provides in relevant part: “Murder, (a) . . . [I]n any prosecution under this subsection, it shall be an affirmative defense
The trial court granted the defendant’s motion for ajudgment of acquittal on the capital felony charge.
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: “The right to question each juror individually by counsel shall be inviolate.”
General Statutes § 54-82f provides: “Voir dire examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”
Practice Book § 42-12 contains language that is substantially similar to that of General Statutes § 54-82f.
The United States Supreme Court subsequently extended the prohibition against race based peremptory challenges to criminal defendants; Georgia v. McCollum, supra,
Discriminatory challenges implicate the equal protection rights of both the criminal defendant and the prospective juror. See generally Powers v. Ohio,
Under federal law, a three step procedure is followed when a Batson violation is claimed: (1) the party objecting to the exercise of the peremptory challenge must establish a prima facie case of discrimination; (2) the party exercising the challenge then must offer a neutral explanation for its use; and (3) the party opposing the peremptory challenge must prove that the challenge was 1 he product of purposeful discrimination. See, e.g., Hernandez v. New York,
In Batson, the United States Supreme Court specified that, although the reason for a peremptory challenge “need not rise to the level justifying exercise of a challenge for cause”; Batson v. Kentucky, supra,
The dissent incorrectly asserts that we have applied the wrong test in reviewing the defendant’s claim under Batson and State v. Holloway,
The dissent also contends that, in State v. Gonzalez, supra,
The dissent further asserts that, in State v. Beltran,
Finally, it is true, as the dissenting justice states, that the dissenting justice moved, sua sponte, to request the filing of supplemental briefs and reargument regarding his assertion, not raised by the defendant either in the trial court or on appeal, that we should apply the test advocated by the
The racial composition of the jury is not dispositive because “the striking of even one [prospective] juror on the basis of race violates the equal protection clause, even when other jurors of the defendant’s race were seated . . . .” (Internal quotation marks omitted.) State v. Hinton, supra,
The dissent, in reliance on State v. Gonzalez, supra,
The dissent asserts that our application of the clearly erroneous standard in this case is “incorrect.” On the contrary, we have expressly stated that the finding of the trial court regarding a claim of pretext under Batson and Holloway is to be afforded deference and will not be disturbed unless it is clearly erroneous. State v. Hinton, supra,
In addition, the dissent, quoting State v. Ellis,
In State v. Gonzalez, supra, 206 Conn. 406, we reviewed and summarily rejected a disparate treatment claim under Batson, which was raised for the first time on appeal. Gonzalez, however, was decided prior to State v. Golding, supra,
According to the dissent, this court, in evaluating the defendant’s disparate treatment claims, should consider not only those venirepersons who were expressly identified by the defendant in the trial court in support of his claim, but, in addition, any other venirepersons whose selection by the state’s attorney might support the defendant’s claim of disparate treatment. We disagree. It would be both unfair and unreasonable to require the trial court to conduct a comparative evaluation of the backgrounds of venirepersons who have not been identified by the defendant in support of his Batson claim. Because a party is entitled to raise & Batson challenge at any time prior to the swearing in of the jury; State v. Robinson, supra,
For each venireperson, we use that individual’s initials to protect his or her legitimate privacy interests.
At this time, five venirepersons had been selected, one of whom was African-American, and one of whom was both African-American and Native American.
C.W. indicated that she would need to be 100 percent certain of the defendant’s guilt before she could vote for a conviction. Thereafter, C.W., in response to questioning by the defendant, indicated that she could follow the court’s instructions on reasonable doubt.
Thereafter, C.W., in response to further questioning by the court, stated that her religious beliefs would not prevent her from following Connecticut law.
The trial court, in its ruling on this and the defendant’s other Batson challenges, failed to address, in express terms, each and every one of the reasons given by the state’s attorney in support of the state’s use of a peremptory challenge. The defendant maintains that the trial court was required to address explicitly each reason given by the state’s attorney for exercising the allegedly discriminatory peremptory challenge. The defendant, however, cites to no authority in support of his claim. Moreover, the defendant, having failed either to raise this argument in the trial court or to request a further, more specific articulation by that court regarding its findings, is not entitled to review of his claim.
The defendant also asserts that the record tends to demonstrate that the trial court, after concluding that one of the reasons proffered by the state’s attorney for the use of the peremptory challenge was legitimate, ended its inquiry instead of considering whether all of the reasons given by the state’s
J.G. initially appeared to indicate that her employer had had some contact with Biller Associates, but later denied it. It is entirely possible that J.G.’s initial statement stemmed from her misunderstanding of the question posed by the state’s attorney.
The state’s attorney explained that J.G.’s eagerness to be selected as a juror may have caused her to overstate her willingness to follow the court’s instructions.
Of these, four were African-American.
W.V. had been chosen as a,juror approximately one week prior to I.M.’s voir dire. Although the defendant did not identify W.V. by name in connection with his argument that I.M. was subject to disparate treatment relative to W.V., the record reflects that W.V. had been described in sufficient detail to alert the trial court as to W.V.’s identity, thereby providing the court with a basis to consider meaningfully the defendant’s claim.
Initially, I.M. indicated that a person with a mental illness should be held accountable for his or her conduct. Later, however, I.M. indicated that her son lost control of his actions because he suffered from hallucinations. When the state’s attorney then asked whether she believed her son, therefore, should not be held responsible for his conduct, I.M. responded “yes.” The state’s attorney then asked I.M. whether, as a general matter, people with mental illnesses should not be held accountable for their conduct I.M. agreed. The trial court interjected and, in an attempt to elicit a clarification of I.M.’s views on the matter, asked I.M. a different question, to which I.M. responded that some mentally ill persons should be held accountable for their actions, while others should not.
At this point, ten venirepersons had been selected, four of whom were African-American.
In the trial court, the defendant claimed that the state’s lengthy voir dire also “[violated M.F.’s] first amendment rights to freedom of religion.” The defendant, however, did not raise this claim on appeal.
J.E.B. v. Alabama ex rel. T.B., supra,
The court discussed the historical exclusion of women from jury service and, in so doing, drew an analogy to the manner in which African-Americans also had been treated. We do not interpret the court’s holding, however, to turn on whether a particular group historically has been excluded from jury service. Indeed, the court framed much of its discussion condemning stereotypical treatment in broad terms. See generally J.E.B. v. Alabama ex rel. T.B., supra,
“It is well settled that [the United States Supreme Court’s] decision to deny a petition for writ of certiorari does not in any sense constitute a ruling on the merits of the case in which the writ is sought.” Bethley v. Louisiana,
In State v. Davis, supra,
Justice Thomas expressed the view that the judgment in State v. Davis, supra,
In a brief concurrence to the court’s denial of the petition for certiorari in Davis v. Minnesota, supra,
Because religion-based constitutional challenges generally are raised under the free exercise or establishment clauses of the first amendment to the United States constitution, “[r]eligious discrimination rarely is challenged under the [federal] equal protection clause.” Note, “Applying the Break: Religion and the Peremptory Challenge,” 70 Ind. L.J. 569, 591 (1995); see note, “Religion-Based Peremptory Challenges After Batson v. Kentucky and J.E.B. v. Alabama: An Equal Protection and First Amendment Analysis,” 94 Mich. L. Rev. 191, 204 (1995). Government action that discriminates on the basis of religion under either the free exercise clause or the establishment clause is, however, subject to strict scrutiny. E.g., Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
Our research has revealed only a few cases decided after J.E.B. that address this question under the federal constitution. See United States v. Somerstein, 959 F. Sup. 592, 595 (E.D.N.Y. 1997) (holding th&lBatson applies to religion-based challenges); People v. Martin,
M.F. had revealed that he was a member of the Islamic faith in response to a remark by the trial judge who had observed, prior to the commencement of M.F.’s voir dire, that M.F. was wearing a hat. The trial judge had stated that headwear was prohibited in the courtroom unless worn for religious reasons.
Although counsel must be afforded whatever “latitude is reasonably necessary to fairly accomplish the purposes of the voir dire”; (internal quotation marks omitted) State v. Dolphin,
For example, the state’s attorney inquired as to whether the leader of the religious sect to which M.F. belonged had a mosque, and whether M.F. was a member of a local mosque.
For example, despite M.F.’s reassurances that Louis Farrakhan, who, in 1978, formed a new branch of the Nation of Islam and assumed leadership over i1; 2 Encyclopedia of African-American Culture and History (J. Salzman et al. eds., 1996) pp. 934-35; was not affiliated with the Islamic sect to which M.F. belonged, the state’s attorney inquired as to whether M.F.’s religious beliefs embraced anti-Semitism, observing that Farrakhan espoused antiSemitic views and that the victims in the case were Jewish. Later, the state’s attorney inquired into the beliefs held by Warith Muhammed, the leader of the sect to which M.F. belonged. Specifically, he asked whether Warith Muhammed shared the views of his father, Elijah Muhammed, whom the state’s attorney considered to be an extremist.
Resuming his inquiry into the Nation of Islam, the state’s attorney explored M.F.’s views concerning the status of women:
“[Mr. Dearington, State’s Attorney]: [Traditionally, the Nation of Islam, and this may not apply to you, considered women on a lower level than men. Is that not—
“[M.F.]: That’s a—they might have done that but I think that’s an Arabian view of Islam. No. There [are] women doctors, lawyers in positions of the . . .
“[Mr. Dearington]: Okay. As far as deliberating then, you don’t—you wouldn’t have a problem with women. Obviously there are men and women on a jury.
“[M.F.]: No. I have personal views but, no. I think I can put them aside.”
The relevant portion of the voir dire is as follows:
“[Mr. Dearmgton, State’s Attorney]: Suppose the court gave you the appropriate law in this case and it didn’t entirely agree with your religious beliefs. How would you deal with that?
“[M.F.]: I would refer to our [Imam] and address him with my claim.
“[Mr. Dearmgton]: Who is — I—
“[M.F.]: My [Imam], our [Imam], you know, our spiritual spokesman and our local master and, you know, break to him the situation and see if I could — ”
Although M.F. subsequently reassured the state’s attorney that he would foEow the court’s instructions, the state’s attorney was entitled to assess M.F.’s statement in the context of M.F.’s entire voir dire testimony, and in Eght of his own observations concerning the depth of M.F.’s reügious convictions.
M.F. testified that he had been arrested on four separate occasions on charges associated with the possession of marijuana, burglary, sexual assault, and driving with an expired registration and without automobEe insurance. The sexual assault charge, which stemmed from an aEeged incident twenty years eariier, and the possession of marijuana charge, subsequently were dismissed. M.F. had agreed to a plea with respect to the
M.F.’s comments in this regard were made in response to the questions of the state's attorney concerning M.F.’s ability to judge another person:
“[M.F.]: I [have] made so many mistakes myself ....
“[Mr. Dearington, State’s Attorney]: As far as many mistakes, I’m not sure what you are talking about.
“[M.F.]: In general. Well, we all make them, you know.
“[Mr. Dearington]: Well, that’s true.
“[M.F.]: I didn’t want to get particular.
“[Mr. Dearington]: Okay. All right. But in terms of—
“[M.F.]: Let me just say. I would hate to think that I would have to judge a person because of their cultural background or because of some other [person’s] actions which weren’t directly related to [him or her].”
Although the state’s attorney did not press M.F. for any greater detail regarding the nature of his past “mistakes,” M.F. had revealed a history of drug and alcohol use, and gambling.
The reservations expressed by the state’s attorney over the role that sympathy might play in M.F.’s decision making are supported by the record
“[Mr. Dearington, State’s Attorney]: Now as far as sympathy. A case such as this lends itself to sympathy. Families on both sides. Two families on one side and then there’s the . . . defendant’s family. Sympathy cannot be a factor in your deliberations. It cannot influence your judgment in this case. It cannot be something that controls how you decide this case. Can you assure us that you would not let sympathy influence your judgment in this case?
“[M.F.]: Can I assure you?
“[Mr. Dearington]: Right.
“[M.F.]: No. There’s no certainty about that. I myself struggle, you know, with emotions and, you know, hopefully when I do see them arise, I don’t let it cloud my judgment. And I’m not saying that, you know, it wouldn’t affect my decision making, but I would like to think that, you know, as I struggle to rise above my own, that I can struggle and rise above somebody else’s also and not lose focus on the real matter that’s being dealt with.
“[Mr. Dearington]: Well, when you say [you] would like to think that you would not [let] sympathy, I guess, cloud your decision is what you said.
“[M.F.]: You are asking me for a guarantee or—
“[Mr. Dearington]: No. No one can guarantee. This is the first time you’ve ever done this. We don’t expect guarantees but you know yourself better than anyone, [M.F.]. If you feel that [you] can’t with certainty or can’t say with a fair measure of certainty that sympathy won’t affect [your] judgment, that’s what we’re interested in.
“[M.F.]: Okay.
“[Mr. Dearington]: We’re not looking for 100 percent guarantees but do you think it might be a problem? That’s all we want to know.
“[M.F.]: Yes. I think it could be a problem.
“[Mr. Dearington]: Even though the court will tell you it shouldn’t be a problem?
“[M.F.]: Right.
“[Mr. Dearington]: It’s easy for the court to say that. It’s you who [has] to deal with the situation.
“[M.F.]: I’d like to think [of] myself as compassionate. Yes, it could be a problem.
“[Mr. Dearington]: Do you think it would be a problem to the point that you might not want to sit on this case or [it] might interfere with your ability to follow the rules in this case?
“[M.F.]: I wouldn’t like to think that. No. I would hope that it wouldn’t be.”
Later, defense counsel inquired: “Can you assure us that you would be able to put sympathy aside, whatever natural sympathies that you might have, and not let that affect your objective determination of the facts in this case?” M.F. responded: “I could stick to the facts.”
Finally, M.F. also appeared to be uncertain about whether he would be concerned with the sentence that might be imposed in the case, remarking:
The state’s attorney questioned M.F. with respect to his understanding of the burden of proof:
"[Mr. Dearington, State’s Attorney]: All right. Let me — as far as just some of the general legal propositions, we have to prove our case beyond a reasonable doubt. I’m sure you are aware of that and that’s less than 100 percent certainty. Can you understand that there is a difference and accept the fact, [M.F.], that you don’t have to be 100 percent certain to convict?
“[M.F.]: Yes.
“[Mr. Dearington]: Yes? Do you follow my question?
“[M.F.]: Right. You’re saying, in other words, there’s no absolute when you are talking in terms of — I guess that’s what you referred to, Your Honor, is preponderance.
“[Mr. Dearington]: Well, it’s proof beyond a reasonable doubt, but that’s a lower level than being 100 percent sure. There can be some doubt and you can still convict.
“[M.F.]: Okay.
“[Mr. Dearington]: Can you accept that concept? Many people think gee, I want to be 100 percent sure.
“[M.F.]: Sure. That’s why when I refer to excellence, I always say human excellence.”
M.F. indicated that his sister had been treated at the mental health center, and that his girlfriend was employed there.
Eleven venirepersons had been chosen at this point, including four African-Americans and one Hispanic.
The defendant was referring to venireperson W.V. See part I B 3 of this opinion.
We note, however, that both the state’s attorney and defense counsel frequently asked questions of G.D. that were susceptible to a yes or no answer. On at least two occasions, though, when asked more open-ended questions, G.D. did elaborate. For example, when he was asked how he would respond if he were in a minority of one on a vote by the jury, G.D. answered: “Well, I would make sure that everyone knows why I am voting against it or for it, whatever. If I was in the minority, I would try to see if they would see my point of view.” When asked if he ever felt taken advantage of in purchasing goods or services, G.D. responded affirmatively, citing as examples the purchase of a car or of an item, such as a collectible, that had been falsified. He also explained that he felt that he previously had been taken advantage of because of a lack of knowledge on his part.
G.D. also stated that, during high school, he had been employed as a cook and as a bank teller.
Consequently, we disagree with the defendant that, because the state’s attorney did not inquire further into G.D.’s job responsibilities, the state’s attorney was not entitled to rely on the evidence, albeit modest, that was in the record regarding the nature of G.D.’s employment.
For example, in response to a question from defense counsel regarding G.D.’s “source of news ... on a daily basis,” G.D. responded: “Source of news? ESPN. I am not much of a news man. I like sports.”
G.D. stated that the police officer had pulled him and his friend over without engaging the siren. The officer then “called over the megaphone and demanded my friend to get out. He didn’t ask him to step out of the car. He was just real obnoxious.”
The state’s attorney asked the following questions about the incident:
“[Mr. Dearington, State’s Attorney]: As a result of that, do you have a feeling about prosecutors, that they overstep their bounds or are not fair?
“[G.D.]: No.
“[Mr. Dearington]: Do you think the prosecutor was fair to you?
“[G.D.]: Yeah.
“[Mr. Dearington]: As far as that individual officer, do you know what happened to him?
“[G.D.]: No.
“[Mr. Dearington]: Was he disciplined?
“[G.D.]: I never found out what happened.
:it * *
“[Mr. Dearington]: Do you haveafeeling, asaresult of that experience with that police officer, that might affect your judgment about all police officers?
“[G.D.]: No, I don’t.”
G.D. testified that, although he had attended high school with these persons, his familiarity with them stemmed from weekend recreational football games. G.D. stated: “I just knew of [the perpetrator and the victim] just a couple of ‘hi’s, ‘bye’s. That’s it.” The state’s attorney asked: “So you weren’t
With respect to G.D.’s family situation, the state’s attorney noted only that it would be “of some interest in terms of how [G.D.] would look at this case.”
At this point, thirteen venirepersons had been selected. Of those thirteen, four were African-American and two were Hispanic.
Although these persons were not identified by name, defense counsel referred to a person on the panel the previous day who was “involved in nuclear plants.”
Other than B.A.’s and W.V.’s limited formal education, the defendant has not claimed, and the record would not support a claim, that B.A. and W.V. were similar in any other respect. Moreover, as we previously have explained, the state had substantial reason to retain W.V. as a juror despite his sixth grade education. See part I B 3 of this opinion.
See footnote 10 of this opinion.
The defendant also had specifically requested that the trial court “not charge that extreme means the ‘greatest degree of intensity away from the norm, away from the normal or usual state, for the defendant.’ ” (Emphasis in original.)
In State v. Austin,
Indeed, the trial court in Bishop had instructed the jury that “ ‘[ejxtreme’ means excessive, or far advanced, or grievous.” State v. Bishop, supra, 753
The relevant portion of the jury charge in Ott was as follows: "[TJhe extreme disturbance must be an extreme emotional disturbance. You are instructed that there are varying degrees of emotional disturbance. Not every disturbance is an extreme emotional disturbance in the law. In determining what the term extreme means with reference to extreme emotional disturbance I instruct you that the term means the outermost or furtherest, most remote in any direction, final or last. . . .” (Internal quotation marks omitted.) State v. Ott, supra,
Although the defendant in Ott also raised the alternative claim that the trial court’s definition of extreme was improper; State v. Ott, supra,
Concurrence Opinion
with whom CALLAHAN, J., joins, concurring. I join in the majority opinion. I write separately, however, because it is neither necessary nor desirable to apply the holding of Batson v. Kentucky,
In this case, as the majority recognizes, the state’s attorney proffered valid reasons for excusing each venireperson. We have upheld a trial court’s finding that a prosecutor’s use of a peremptory challenge did not run afoul of Batson where at least one of the nondiscriminatory reasons articulated by the prosecutor was not pretextual. See, e.g., State v. Smith,
The importance of the peremptory challenge and the differences between race and gender and religious beliefs and affiliation weigh against extending Batson and J.E.B. v. Alabama ex rel. T.B.,
For centuries, the peremptory challenge has been an important means of promoting fairness and impartiality in jury trials. “The principal value of the peremptory is that it helps produce fair and impartial juries. . . . Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminat[ing] extremes of partiality on both sides, thereby assuring
The differences between race and gender and religious beliefs or affiliation are numerous and vital. A person’s race and gender may be readily apparent, while “[r]eligious affiliation (or lack thereof) is not as self-evident.” (Internal quotation marks omitted.) Davis v. Minnesota,
Furthermore, a showing of such an unconstitutional peremptory challenge would require counsel to question a venireperson about his or her religious convictions. Such questioning is quite properly disallowed
The expansion of Batson to religious beliefs or affiliation would lead to its application to national origin, political affiliation and philosophy as well as other things that may distinguish potential jurors. See, e.g., J.E.B. v. Alabama ex rel. T.B., supra,
The first amendment to the United States constitution provides in relevant part: “Congress shall malee no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .’’The first amendment is made applicable to the states through the due process clause of the fourteenth amendment. See, e.g., Cantwell v. Connecticut,
See, e.g., State v. Skipper,
The many different groups that claim “religious” status for themselves and their beliefs create a practical problem for courts in defining “religion.” See generally J. Donovan, “God Is As God Does: Law, Anthropology, and the Definition of ‘Religion,’ ” 6 Seton Hall Const. L.J. 23 (1995).
See J. Donovan, “God Is As God Does: Law, Anthropology, and the Definition of ‘Religion,’ ” 6 Seton Hall Const. L.J. 23, 28 (1995).
Dissenting Opinion
dissenting. The conventional wisdom among African-Americans and other minorities is that
A judicial branch task force recently has studied this problem within Connecticut. It found that there is “a perception of bias injury selection.” Connecticut Judicial Branch Task Force on Minority Fairness, Full Report (April 1996) p. 42. More fully, “there is a concern that minorities are being removed from the chosen jury pool through the use of peremptory challenges allowed by attorneys during the selection process.” Id. The report indicates that an overwhelming percentage of judges and attorneys recognize that minorities do not feel that they are being treated fairly.
Furthermore, because the only direct contact most Connecticut citizens have with our justice system is as venirepersons, the process by which jurors are selected plays a major role in the public perception of this branch of government. “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 credibility of this branch of government but also threatens the very fabric of our democracy.” State v. Tillman,
This perception of racism is not the fault of the trial judges. Rather, to a great degree, this court must assume responsibility because it narrowly shapes the protective contours of our laws regarding jury selection and has failed repeatedly to apply those limited protections in order to assure that the selection is not tainted. Instead of firmly setting out the law for the guidance of the trial courts, this court sends mixed messages, as the majority does in the present case. Even worse, when confronted with obvious cases of the state’s intentional discriminatory use of peremptoiy challenges in order to eliminate minorities, this court avoids reversal, as it does in this case, by affording the trial court “great deference” and refusing to overrule any trial court decision “unless it is clearly erroneous.” In short, the majority of this court does nothing more than pay lip service
The majority in this case adds fuel to the public perception that the judicial branch will tolerate racism. It refuses to review certain aspects of the Batson/Hol-loway issues in this case because it claims that they were not raised at trial or in this court. Although I take issue with my colleagues’ claim that they were not raised in total, I must confess that some issues were not raised or not clearly argued.
More importantly, merely because a lawyer either failed to raise a claim of law or incorrectly argued the law, does not mean that we should establish law that does not comport with concepts of justice. We deal with the precious liberty of persons. Indeed, in establishing and applying the law we sometimes, unfortunately, determine who shall live and who shall die. In other words, this is no game — we have grave responsibilities andmust do justice. Equally important, this opinion not only establishes the law for this case, but also for all the other relevant cases that are pending, as well as those that will arise in the future.
Furthermore, precedent does not support the majority’s myopic review of this case. In the past this court has reviewed nonracial claims that were not raised in the trial court or in the Appellate Court.
In the present case, the defendant, Dennis Hodge, an African-American, was charged with the murder of two Caucasian independent insurance adjusters in a highly publicized case. The murder occurred during a meeting to discuss a settlement agreement that the adjusters had made with an insurance company on behalf of the defendant’s mother, whose kitchen had been damaged as a result of a fire. The defendant and his mother believed that she deserved a larger settlement than the amount procured by the two adjusters. He admitted that he killed the two Caucasian victims, but claimed that he was not guilty due to mental disease or defect; General Statutes § 53a-13 (a); or, in the alternative, was guilty only of manslaughter due to extreme emotional disturbance. General Statutes § 53a-54a (a). The jury deliberated for nine days, during which time it reported that it was deadlocked on two occasions. Nevertheless, after the trial court gave the infamous coercive “Chip Smith”*
During jury selection, the defendant challenged the state’s use of six peremptory challenges in excusing one Hispanic and five African-American venirepersons. The state in this case, as it typically does when a defendant challenges the constitutionality of the use of its peremptory challenges, furnished a laundry list of reasons in the hope that the court would find one to be nondiscriminatory and, therefore, uphold the peremptory challenge. Although I conclude that the trial court ruled incorrectly on all six challenges raised in this appeal, I will limit this dissent to the peremptory challenge of G.D.
I
First, I will discuss those portions of the majority opinion with which I agree, at least for the purpose of this decision. I agree with the majority that we must overrule cases such as State v. Smith,
II
I take issue with the majority’s analysis of the law that is applicable to the present case. More specifically, I am greatly concerned with footnotes 18 and 19 of the majority opinion, wherein it sets forth the analysis required under Batson as modified pursuant to Purkett v. Elem,
In footnote 19 of its opinion, the majority tries to gloss over this departure from Batson, which we adopted as our state law in Holloway, by simply declaring that Purkett “explicated” Batson’s second step. The majority disregards the significance of this change, and summarily adopts Purkett as our state law without allowing defense counsel to be heard or without addressing specifically whether relatedness will continue to be a factor under Connecticut law. The majority argues in footnote 19 that Purkett’s majority rule, as modified by Holloway, should be applied in the present case because: (1) the defendant raised a claim of discrimination under the United States constitution only; (2) the defendant does not argue on appeal that the Purkett dissent should apply, but, rather, asserts that the state failed step three under Batson as modified by Purkett-, and (3) even if a state constitutional claim was raised, the state would still prevail because a Batson claim is treated similarly under the state and federal constitutions.
I disagree. To begin, I must address a fundamental issue regarding this appeal; one that the majority opinion overlooks. Unless we are willing to ignore the plain
Furthermore, the fact that the defendant on appeal argues only that the state’s proffered reasons fail the
It is clear that we have developed our own jurisprudence
The majority concedes that two of the state’s proffered reasons for exercising its peremptory challenge of G.D. “lack any obvious relevance,” but goes on to conclude that, notwithstanding our own jurisprudence, unrelatedness does not necessarily mean that the proffered reasons are pretextual. Unrelatedness must be viewed in light of all relevant circumstances, according to the majority.
Such a holding is amazing in light of the unanimous decision in State v. Beltran,
In contrast, I agree with Beltran, Gonzalez and the dissent in Purkett that the explanation of the state must be at least “race neutral, reasonably specific, and trial related.” (Emphasis in original.) Purkett v. Elem, supra,
Justice Stevens’ dissent in Purkett points out that “ ‘ [ w] ere facially neutral explanations sufficient without more, Batson would be meaningless. It would take little effort for prosecutors who are of such a mind to adopt rote “neutral explanations” which bear facial legitimacy but conceal a discriminatory motive. We do not believe the Supreme Court intended a charade when it announced Batson. ’ ” Id., 773, quoting State v. Antwine,
In the magnificent words of Justice Glass, “because this issue is of such vital importance to our real and perceived adherence to the rule of law, in the exercise of our inherent supervisory authority over the administration of justice”; State v. Holloway, supra,
Ill
I start my analysis with this court’s standard of review for the trial court’s rejection of a Batson/Holloway challenge. The majority claims that the trial court’s decisions on the Batson/Holloway challenges are entitled
First, the majority ignores the heightened standard with which we review findings of factual underpinnings necessary to determine constitutional issues arising from jury selection.
Second, even if the “clearly erroneous” standard applied, which it does not, such deferential review does not mean the kind of deference that the majority applies in this case. “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates.” (Internal quotation marks omitted.) State v. Onofrio,
Finally, under the facts of this case, it would be unfair to defer to the trial court decisions regarding the Bat-son/Holloway challenges because the trial court’s review of the challenges raised by the defendant was superficial. For example, after the defendant made the first Batson/Holloway challenge, the trial court asked the prosecutor if he felt “compelled” to respond to the defendant’s challenge. After a brief discussion about the Batson/Holloway challenge, the court commented: “I don’t know whether a finding is necessary on my part in such a claim.” Indeed, after each Batson/Holloway challenge the trial court failed to make specific findings
The trial court’s analysis was particularly troublesome regarding the Batson/Holloway challenge of G.D., a Hispanic venireperson to be discussed in more detail in part IV of this dissent. The state argued erroneously that it did not have to respond to the charge of discrimination regarding G.D. because “[o]ur law provide[s] that one must be a member of the defendant’s minority for the Batson rule to kick in . . . .” That is not our law. See Powers v. Ohio, supra,
Although I believe that the majority purposefully focuses on the wrong standard of review and deprives the defendant of a meaningful appellate review in order to reach its desired result, I would conclude, no matter what standard of review was employed, that the state exercised its peremptory challenges to exclude purposefully African-Americans and other minorities.
IV
Even though I conclude that in exercising the peremptory challenges the state purposely discriminated based
As set forth in part III of this dissent, when the defendant originally raised a Batson/Holloway challenge regarding the peremptory challenge of G.D., the state argued erroneously that the law did not require it to provide any race neutral reasons for its use of a peremptory challenge against a minority venireperson of a different race than the defendant. Notwithstanding this claim, the state offered the following list of reasons for G.D.’s exclusion: (1) the feeling that G.D. might be overwhelmed by the medical testimony in the case and unable to understand the evidence, based on his education, intelligence and career; (2) G.D.’s supposed friendship with a homicide victim and his murderer, and his exposure to the publicity of that murder; (3) the fact that a friend of G.D. had an “unpleasant experience with a police officer,” which G.D. had witnessed; and (4) the fact that G.D. was the second youngest and only male sibling in a family of seven children.
After hearing the list of proffered reasons for the peremptory challenge, the public defender raised the issue of disparate treatment between G.D. and the acceptance of a Caucasian juror with a fifth grade education and an employment history that consisted only
“We have identified several specific factors that may indicate that the state’s excuse of a venireperson through a peremptory challenge was racially motivated. These include, but are not limited to: (1) The reasons given for the challenge were not related to the trial of the case ... (2) the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race were asked a question to elicit a particular response that was not asked of the other jurors . . . (4) persons with the same or similar characteristics but not the same race ás the challenged juror were not
When a trial court is reviewing a Batson/Holloway challenge it should analyze each proffered reason for exercising the challenge in isolation from one another, but within the context of the entire record. See, e.g., State v. Gonzalez, supra,
While the majority accepts the dual motivation analysis in theory, it fails to indicate that the burden shifts to the state as required by Senkowski. In addition, instead of examining each proffered reason in isolation when applying the Batson/Holloway tests, the majority seems to believe that a finding of pretext should be based on an analysis of all the proffered reasons in aggregate. Such an analysis, however, fails to isolate adequately each proffered reason when determining whether it is pretextual. All of the proffered reasons should be considered and balanced together only when the dual motivation analysis is applied. Thus, the majority’s method blurs the distinction between the Batson/ Holloway tests and the dual motivation test that comes into play under federal law when discrimination is found in part.
In addition, a reviewing court should also consider all relevant circumstances surrounding the peremptory challenges; thus our review of the trial court’s decisions requires consideration of the entire record. Because discrimination in the selection of jurors implicates the basic integrity of this branch of government, we should review a disparate treatment claim within a Batson/ Holloway challenge no matter when the disparate treatment claim is raised, taking the prior accepted jurors as well as subsequently selected jurors into consideration, as long as the Batson/Holloway claim is made prior to the swearing in of the jury. State v. Hinton, supra,
Nevertheless, because the disparate treatment basis of the Batson/Holloway claim is so compelling in this case that it would lead to reversal, the majority changes the rules and refuses to review the entire record pertaining to the selection of all the jurors. For example, the majority refuses to apply any disparate treatment analysis to the three Batson/Holloway challenges in which the defendant did not raise specifically a disparate treatment claim within his challenge at trial.
When the complete record is examined regarding venireperson G.D.,
A
The state’s claim that it challenged G.D. because of a perceived lack of ability to comprehend the medical testimony that would be presented during the trial passes Batson/Holloway’s first test — because it is a neutral explanation related to the case being tried — but fails the second test. According to the state, it based its perception of G.D.’s inability on the fact that he had a “less than illustrious” high school career and held a job that “[does not] demonstrate a position where he has to make decisions.” While such reasons sound like neutral, potentially valid reasons to peremptorily challenge a juror, the transcript exposes these reasons to be pretextual.
Moreover, the disparate treatment of G.D. becomes obvious when the treatment of G.D. is compared to that of W.V. and A.T., two Caucasian venirepersons with substantially less than a high school education. This disparity is not justified and, therefore, the state’s peremptory challenge of G.D. should have been found to be pretextual. See State v. Gonzalez, supra,
Perhaps most significantly, the state employed inexplicable disparate treatment regarding W.V. and A.T. because both of these Caucasian venirepsersons displayed difficulty understanding several key legal concepts, whereas G.D.’s answers manifested no such difficulty. This disparity is especially notable with regard to A.T., who had completed high school but gave a series of confused answers that showed a complete inability to understand legal and psychiatric concepts. In contrast, even the majority concedes that G.D. did not appear to be confused by the many, sometimes legally complicated, questions that he was asked by the state. These disparities demonstrate that the state did not challenge G.D. because it feared he would not be able to understand the complicated medical testimony that would be offered during the trial.
The state’s lack of meaningful questions regarding G.D.’s job and education supply further evidence of pretext;
In sum, both the testimony relating to G.D.’s ability to comprehend medical testimony and the selection of other jurors who demonstrated substantially less comprehension support the conclusion that the trial
B
The state’s second reason for challenging G.D. — his alleged friendships with a homicide victim and his murderer — does not pass even the first prong of the Batson/ Holloway test, for it is not “a neutral explanation related to the particular case to be tried.” Batson v. Kentucky, supra,
The record does not support the state’s claims that either the murder victim or the perpetrator of the murder was even a friend of G.D. On the contrary, G.D., on two separate occasions, clearly stated that he was not friends with either the perpetrator or the victim of the other murder and that he “Lj]ust knew them by name.” Accordingly, the trial court should have found this reason to be pretextual. See State v. Jones, supra,
Beyond very preliminary questions relating to G.D.’s relationship with these two individuals, the state failed to pursue the issue with any questions designed to elicit any bias based on G.D.’s experience with that homicide, which is strong evidence of pretext. See State v. Gonzalez, supra,
In an effort to justify the peremptory challenge against G.D., the state offered: “I am not sure how the fact that a friend of his or an acquaintance was murdered, and he knows the fellow that murdered him,
Moreover, the record indicates that the state treated differently several other prospective jurors with similar relationships, without accounting for this disparate treatment. See State v. Gonzalez, supra,
In sum, an examination of G.D.’s testimony and the state’s proffered reasons and explanations does not reveal any relevance between this information and the present case. The majority even concedes its lack of relevance, but nevertheless affirms the trial court’s determination that it is not pretextual because it apparently examines all the proffered reasons in aggregate when applying the Batson/Holloway tests. As I previously have indicated, that analysis is improper. Even under that analysis, however, one must conclude that
C
The state’s third reason for its peremptory challenge of G.D. was G.D.’s alleged “unpleasant experience with a police officer . . . .’’While this reason is race neutral, the fact that G.D. may have had an unpleasant experience with a police officer is not related to this case. State v. Gonzalez, supra,
The incident to which the state referred involved G.D.’s witnessing a friend’s arrest for breach of the peace. The arresting officer, whom G.D. believed had “tried to be too macho,” was charged with using excessive force regarding the arrest. While G.D. was called as a witness in court, the charge was eventually dropped, and the officer was reprimanded.
Even though it is not uncommon for the state to strike venirepersons who have had negative experiences with the police; see State v. Smith, supra,
G.D. unequivocally denied that either his friend’s arrest or his friendships with police officers would affect his objectivity as a juror. This denial is not undermined by any contrary testimony. Nevertheless, the state claimed that, despite G.D.’s assertion, “one never knows subconsciously how that would play in his judgement in this case.” While it is true that the state is entitled to rely on its own impressions, such impressions must be treated like any other proffered reason. In other words, the trial court must find an asserted impression to be pretextuai where the evidence does not support it. See State v. Gonzalez, supra,
The state also failed to explain its disparate treatment of other venirepersons who were Caucasian and had unpleasant experiences with the police or had relatives who were arrested. For example, the state inexplicably accepted six venirepersons who had relatives who had been arrested
The second venireperson with a direct unpleasant experience with a police officer was A.T., a Caucasian who lost his driver’s license for four years after he was
The fact that G.D. witnessed a friend’s arrest, as opposed to a stranger’s, also cannot account for why the state tried to excuse G.D. because, as I have previously discussed, it accepted six other venirepersons who had close relatives who had been arrested. Furthermore, the charges against G.D.’s friend were eventually dropped. The state offered no reason for this disparate treatment.
The state’s disparate treatment, coupled with the proffered reason’s unrelatedness to this case, lead to the conclusion that the state truly was not concerned with G.D.’s negative experience. Therefore, even if it was determined that this reason was actually related to the present case, and consequently the reason rebutted a prima facie case of discrimination, it still should be held that this incident merely was a pretext for the state’s discriminatory peremptory challenge.
D
The state’s most blatantly pretextual reason for the peremptory challenge of G.D. is its fourth and final one. It clearly is not trial related, and, therefore, fails Batson/ Holloway’s first test. Furthermore, even if the court did not require trial relatedness at that step, this reason is undoubtably pretextual.
At trial the state claimed that the fact that G.D. had six sisters and was one of the youngest of the seven siblings was “of some interest in terms of how he would look at this case.” I agree with the majority that this
Not only did the state fail to relate this reason to the case, the state’s questioning also reveals that G.D.’s familial status in relation to his siblings was never even a concern. Beyond the occupations of G.D.’s sisters and parents, the state failed to ask G.D. any other questions about his relationship with his family or the importance of his birth order.
Lastly, the state also engaged in disparate treatment between chosen jurors and G.D. concerning this topic. For example, W.V., a Caucasian male, and F.O., a Caucasian female, both had seven sisters and one brother. Yet, the state did not challenge either of these jurors. Consequently, the trial court should have found that
V
It is clear that, based upon the marathon deliberation of the jury (nine days) and the jurors’ announcement that they were deadlocked (twice), this was a close case. The defendant will never believe that he had a fair trial before an unbiased jury; indeed, neither will the African-American community because G.D., a Hispanic, and five African-American venirepersons were not allowed to serve on the jury as a result of the state’s exercise of its peremptory challenges based upon impermissible considerations. Under any standard of review, there is only one conclusion that reasonably can be drawn in this case — that the state intentionally used its peremptory challenges to eliminate minorities from the jury. I would therefore reverse the defendant’s conviction and order a new trial. It is terribly troubling that the opinion of the majority is result oriented and ignores long-standing precedent in order to uphold this conviction of an African-American defendant.
Unfortunately, the majority sets that stage for the future by sending a message to the trial courts that Batson/Holloway challenges do not have to be taken seriously. The majority either ignores or fails to appreciate that “[r]ace [or for that matter any impermissible] discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality. ... In the many times we have addressed the problem of racial bias in our system of justice, we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and
Accordingly, I respectfully dissent.
APPENDIX A
The complete transcript of the voir dire of G.D., which occurred on November 10, 1994, is as follows:
“The Court: Madam Clerk, I think it would be the desire of counsel and the court for you to start contacting these jurors that we have, perhaps during the voir dire this morning, to the extent that you can, and tell them that their tentative date for starting is the 17th, Thursday the 17th. Bring in [G.D.]. (Whereupon the next juror, [G.D.], entered the courtroom.)
“The Court: Good morning, sir, you are [G.D.]?
“[G.D.]: Correct.
“The Court: Any reason come to mind, [G.D.], why you wouldn’t be able to serve on this case?
“[G.D.]: No reason.
“The Court: No reason at all, okay. Whose turn is it? Mr. Dearington?
“[Michael Dearington, State’s Attorney]: Yes, Your Honor.
“VOIR DIRE EXAMINATION BY MR. DEARINGTON:
“Q. [G.D.], good morning. I am Mike Dearington. I am the prosecutor. We are not trying to pry or embarrass you, these are standard questions. You live up in Meriden?
*309 “A. Yes.
“Q. How long have you lived up there?
“A. All my life, twenty-three years.
“Q. Your family lives in Meriden?
“A. Correct.
“Q. You’re single?
“A. Yes.
“Q. You live with your family?
“A. Yes.
“Q. And I see you work for Cytec — what company?
“A. Cytec Industries in Wallingford.
“Q. How long have you been with them?
“A. Five years.
“Q. What type of work do you do?
“A. Waste water treatment operator.
“Q. Which means what?
“A. I treat chemical waters and I make it — I take the pollution out of it, so when it goes back to the Main Street, it’s okay, there is no pollution in it.
“Q. What is the Main Street?
“A. Back to a river, Quinnipiac River in Wallingford.
“Q. What type of product does that company make?
“A. There’s many joint ventures in Cytec. There’s different buildings. There is plastic moldings. There is a resins department. There is a thermoplastic department. There is all different departments; medical fibers. There’s all different buildings, each building makes a different product.
*310 “Q. Is that part of Industrial Park?
“A. No, it’s not part of Industrial Park. It’s just one company.
“Q. You have been with them for five years?
“A. Yes.
“Q. And did you go with them shortly after graduating from high school?
“A. Yes.
“Q. [G.D.], what high school did you go to?
“A. Francis C. Maloney High.
“Q. Now, as far as your family, do you have any brothers and sisters?
“A. I have six sisters, no brothers.
“Q. As far as the ages, where are you?
“A. Second to the youngest.
“Q. So, you have four older sisters?
“A. Five older sisters.
“Q. Five older sisters. Are any of them working?
“A. Yes.
“Q. What type of work do they do?
“A. One is a housewife in Florida; one is a manager at some business, I don’t even know the exact business she does; another one is a housewife in East Haven; two sisters are in grad school; and one is a college freshman.
“Q. And the college freshman, where does she go to school?
“A. Quinnipiac.
*311 “Q. And the two that are in grad school, where do they go to school?
“A. New England School of Optometry in Boston, and UConn Law School.
“Q. What year is your sister in law school?
“A. Final year.
“Q. What type of law does she want to do when she gets out?
“A. Helping minorities, I forget what it’s called. It’s not criminal law.
“Q. Working for the state in some type of—
“A. Yes.
“Q. Equal employment or — would it be working for some type of state or federal agency?
“A. Yes, it would. It’s not working for a law firm or something like that.
“Q. And the sister who is in optometry school, did she go to college before going to that school?
“A. Yes.
“Q. Where did she go to school?
“A. Gordon College.
“Q. Where is that located?
“A. Wenham, Massachusetts.
“Q. Now, as far as your parents, what type of work do they do?
“A. My mother baby-sits kids for a living, and my father works at Times Fiber Communications in Wall-ingford.
*312 “Q. As far as Cytec, that is your employer. You realize if you’re selected, you will be excused until some time next week and go home today. You will have to come back probably later next week and you may be here for approximately four weeks, Monday through Friday, ten to five. As far as work, will that create a hardship at work?
“A. No, it wouldn’t create a hardship because we are a union shop and it allows for jury duty.
“Q. So, they will pay you?
“A. Yes.
“Q. And will you be sitting here worried or distressed about the fact that you’re not back at work?
“A. Definitely not, no.
“Q. Now, have you ever been on jury duty before, [G.D.]?
“A. No, I haven’t.
“Q. Have you ever been in court for any reason except for perhaps motor vehicle violations?
“A. Yes, I was in court once.
“Q. Can you tell us about that.
“A. My friend got into an altercation with a police officer. The police officer was accused of overstepping his boundaries, so we had to go to court to rectify the situation.
“Q. The police officer was accused of—
“A. Overstepping his boundaries. He tried to be too macho.
“Q. He used excessive force?
“A. Excessive force, yes.
*313 “Q. And did he arrest your friend?
“A. Yes, he did.
“Q. And what happened — what did he arrest him for?
“A. Breach of peace.
“Q. And what happened to that case?
“A. When it went back to court, I was called on to be a witness because I was there, and the police officer was reprimanded and the case was thrown out. Nothing was filed against my friend.
“Q. How long ago was this?
“A. About, I would say, almost two years.
“Q. And was this a Meriden police officer?
“A. No, it was Middletown.
“Q. So, you went to court in Middletown?
“A. Yes.
“Q. And did you actually talk to a prosecutor? Did you personally talk to a prosecutor?
“A. I talked to his lawyer. The prosecutor questioned me on the stand.
“Q. And I am a prosecutor, obviously. As a result of that, do you have a feeling about prosecutors, that they overstep their bounds or are not fair?
“A. No.
“Q. Do you think the prosecutor was fair to you?
“A. Yeah.
“Q. As far as that individual officer, do you know what happened to him?
“A. No.
*314 “Q. Was he disciplined?
“A. I never found out what happened.
“Q. But the case against your friend was dropped; is that correct?
“A. Yes.
“Q. Now, obviously we are going to call a number of police officers, not from Middletown but probably from Hamden, maybe the state police, maybe a federal agent. As the court indicated yesterday, you’ve got to treat a police officer like any other witness. You don’t give them any special credit, but on the other hand, you don’t put him at a disadvantage. Do you think that you could follow that law and treat a policeman like anyone else?
“A. Yes, I could.
“Q. Do you have a feeling, as a result of that experience with that police officer, that might affect your judgment about all police officers?
“A. No, I don’t.
“Q. I assume that you were present when the officer made the arrest of your friend?
“A. Yes, I was.
“Q. Where were you when that occurred?
“A. I was on the street in Middletown, I don’t know the exact street name, but we were heading one place, and the whole thing took place there. He just pulled us over without ever putting on a siren. He called over the megaphone and demanded my friend to get out. He didn’t ask him to step out of the car. He was just real obnoxious.
“Q. Do you realize there are obnoxious people in every profession?
*315 “A. Yes, it’s not just a police officer.
“Q. Have you ever had any other unpleasant experience with a police officer?
“A. No.
“Q. Are you friendly with or related to any police officers?
“A. I know a couple of police officers, yeah.
“Q. From what town?
“A. From Meriden.
“Q. Have you ever discussed their work with them?
“A. No, I haven’t.
“Q. How about the rest of your family, your sisters and your parents, have any of them ever had an unpleasant experience with a police officer?
“A. No.
“Q. Now, any other reason that you were ever in court?
“A. No.
“Q. You put on your questionnaire that you received a speeding ticket, not unlike a lot of people, but when was that?
“A. Um, when I was younger I got a couple of speeding tickets. I had to go to court for them.
“Q. Did you actually go to court?
“A. I never went into court, I just spoke to the D.A.
“Q. And what happened?
“A. She reduced the ticket. She didn’t nolle it, but she just reduced it.
“Q. In both cases?
*316 “A. In both cases, yes.
“Q. Was that in Meriden?
“A. Yes.
“Q. As far as your meeting with the prosecutor, anything about that that you walked away saying that prosecutor is a real pain in the neck?
“A. No.
“Q. So, you don’t have a thing about prosecutors?
“A. No.
“Q. As far as anyone else in your family, sisters or parents or close friends or relatives, anyone who has ever been to court for any type of significant case, civil or criminal?
“A. No.
“Q. Now, as far as this particular case, there are a couple of rules that apply, [G.D.]: Number one, we have to prove our case beyond a reasonable doubt. The judge told you yesterday that’s less than 100 percent certainty. Do you realize you don’t have to be 100 percent certain to convict? Do you understand that?
“A. Yes, I do.
“Q. There are very few things in life that you can be 100 percent certain of. Do you recognize that?
“A. Yes, I do.
“Q. Sentencing, are you aware that the jury has nothing to do with sentencing?
“A. Yes, I am.
“Q. Did you know that before you came to court yesterday?
“A. No, I found that out yesterday.
*317 “Q. Good. The way it works, as you now know, if the jury convicts, then it’s the judge who imposes the appropriate sentence. That’s how it works, and it falls from that that you’re not supposed to worry about the sentence or what the judge would do or let it influence your judgment. You’re not supposed to look over at [the defendant] and think, ‘Gee, if I vote guilty, the judge will put him in jail. That will bother me, so I will vote not guilty.’ Do you understand you’re not supposed to worry about the sentence at all. You have nothing to do with that?
“A. Yes, I do.
“Q. And you can accept that?
“A. Yes.
“Q. As far as being on a jury, you’re put in a position of judging other people, judging the accused. Do you have any religious or moral reservations about sitting on a criminal jury and judging someone else?
“A. No.
“Q. Have you ever been the victim of a crime, had your car broken into or vandalized, your apartment broken into, theft of property, pocketbook snatched, anything?
“A. No.
“Q. How about any of your sisters or your parents?
“A. A sister.
“Q. Can you tell us about that.
“A. It was just spousal abuse.
“Q. When she was married or a boyfriend?
“A. Married.
“Q. And did she actually — was an arrest made?
*318 “A. Yes, there was.
“Q. And did she have to go to court?
“A. I believe so, yes.
“Q. How long ago was that?
“A. I don’t think it was a court thing. I think it was just a court for divorce, divorce court. I don’t know how long ago, maybe about three or four years ago.
“Q. So, she is divorced from her husband?
“A. Yes.
“Q. Anything about that that would affect your judgment here as far as police officers or prosecutors or the court, that you think your sister wasn’t treated fairly or the system didn’t work well? Anything about that?
“A. No.
“Q. Anything else as far as being a victim of a crime, any of your other family members?
“A. No.
“Q. Do you have any friends who might have been victims of crimes, any type of crime, an assault or even a homicide, anyone that you know that has been murdered or arrested for a homicide?
“A. Yeah, I know a couple of people, not friends, people I know. That’s about it.
“Q. Arrested or actually victims?
“A. A couple of both.
“Q. A couple of both?
“A. Yeah.
“Q. Are these people that you knew when you were at Maloney?
*319 “A. No, people I played football with, usually on Sundays. That’s how I know them, just to play football.
“Q. Tell us about any — the people who have been victims of homicides that you know, can you tell us about those situations, who they are, when it occurred?
“A. The homicide was someone who was like three years ahead of me in high school. He was shot by another person that went to our high school, and that’s it. He was on the football team. I just knew of him, just a couple of ‘hi’s, ‘bye’s. That’s it.
“Q. So, you weren’t familiar with either the victim or the shooter?
“A. Just knew them by name. We never went out.
“Q. I assume the fellow was arrested and prosecuted for the shooting?
“A. Yes.
“Q. Did you follow the case at all?
“A. At the beginning, but not at the end, no.
“Q. This was about three years ago?
“A. Um, less than three; maybe two.
“Q. Do you remember the name of the fellow who was arrested for the shooting?
“A. Tony Lyons, I think.
“Q. Do you know what happened to him?
“A. I believe he’s in jail.
“Q. Anything about that that might affect your judgment in this case?
“A. No.
“Q. Do you feel — obviously that is a tragedy. Do you feel Mr. Lyons was treated unfairly or the police didn’t*320 respond properly? Anything that you know about the case that might affect your judgment?
“A. No.
“Q. Anyone else, as far as either being the victim or someone who was arrested for a homicide or an assault?
“A. No.
“Q. Now, how about a witness to a crime, ever see someone commit a crime? You weren’t the victim, but maybe you saw someone else, their car was broken into or their house was broken into?
“A. I saw someone do a hit-and-run, hit another car and then take off.
“Q. Did you give a statement to the police?
“A. Yeah. It was after a party, graduation. I went up to the guy’s door, I knocked on it and I said, ‘someone just hit your car.’ I looked quick enough so I could see the license plate. I gave the guy the license plate, and the next day the police officer called up at my house to verify what I saw. I identified the car and the license plate, and that was as far as I heard of it.
“Q. Did you ever hear anything more? Were you ever asked to go to the police department or go to court?
“A. No, I wasn’t.
“Q. Did you know the fellow who was driving the car?
“A. No, I didn’t.
“Q. Have you ever given a statement to the police in any other situation, other than that?
“A. No, just beside that friend that I told you about.
“Q. In Middletown?
“A. Yes.
*321 “Q. Now, as far as the evidence in this case, it may be unpleasant. There may be a photograph of . . . the two victims. There may be testimony by the medical examiner, who did an autopsy, describing the wounds and the cause of death. This will be upsetting, I am sure, to most people, but is there anything about that that would be so upsetting that you do not think that you could sit on this case fairly?
“A. No.
“Q. As far as some of the laws that apply, in terms of murder, in order for us to prove murder, we have to prove [the defendant], with intent to cause the death of another, caused that person’s death. Translated into the allegations here, we have to prove at the time he pulled the trigger, he intended to kill, but what we don’t have to prove, [G.D.], is that he planned it in advance. We don’t have to prove that he went to the office intending to shoot someone. We don’t have to prove ten minutes before the shooting, he intended it, only at the time of the shooting he intended to do it. Do you understand that?
“A. Yes.
“Q. Most people think murder means that you have to plan it, but that is not the case. As far as motive, as far as the reason he committed the crime, we don’t have to prove motive. We don’t have to prove why he did it. I recognize that a jury would like to know why, but legally, we are not bound to prove it. Can you understand that?
“A. Yes.
“Q. Now, that case is almost two and one-half years old. May 4, 1992, was over thirty months ago. Without knowing the reason for the delay in this case going to trial, do you think it’s unfair to either side to try a case this long after the offense?
*322 “A. No.
“Q. So, you’re not going to sit there and say it’s not fair for the state to try him two and one-half years later and hold it against us?
“A. No.
“Q. As far as insurance companies, I mentioned yesterday that our allegation was that [the victims] were public insurance adjusters, and that the meeting was set up to discuss a claim filed by [the defendant’s] mother. Have you ever filed a claim against an insurance company or had a claim filed against you by an insurance company, the most common example being an automobile accident?
“A. No, I haven’t.
“Q. You have never been involved with an insurance company, one way or another, other than medical—
“A. Well, I had a claim filed against me. I also filed one when someone hit me in an accident.
“Q. Were you satisfied with the resolution of the claim?
“A. Yes.
“Q. How about any of your sisters or your parents or close friends or relatives?
“A. Same thing.
“Q. Nothing else?
“A. No.
“Q. Are you familiar with the difference between a public insurance adjuster and an insurance company adjuster? Have you ever heard of the two types of adjusters?
*323 “A. I have never heard of it, but I think I can base an opinion on the evidence.
“Q. As you sit there now, you don’t have a feeling now that insurance companies are all thieves or that they are out to expose other people or — you don’t have an ax to grind with insurance companies, I assume?
“A. No.
“Q. As far as the defense in this case, you heard both myself and the defense mention as possible witnesses several — a couple of psychiatrists and a psychologist. [G.D.], it’s no secret in this case that the defense may offer a psychiatric defense, and in our state, our law recognizes, under certain circumstances, a psychiatric defense as appropriate. The question is whether the circumstances apply here. So my question to you is, as you sit there now, do you have any feeling about the use of a psychiatric defense in a criminal case?
“A. No.
“Q. You’ve never given it any thought?
“A. No.
“Q. So, you could treat that type of defense fairly?
“A. Yes.
“Q. Also in our law, not to confuse this, and if you don’t understand the question, please tell me, in our law, we have to prove our case beyond a reasonable doubt. If the defense chooses to offer a psychiatric defense, they have to prove that defense by a preponderance of the evidence. So, there is a burden on the defense. It’s their obligation to prove that defense. So there are two burdens: we have to prove our case, they have to prove their defense, if they offer that. Can you understand the two burdens?
“A. Yes.
*324 “Q. And can accept — the judge tells you all this stuff, and you don’t take my word for it, but at some point the judge will explain the law. He will explain that to you, about the two burdens. Can you accept that concept of the two burdens in our law?
“A. Yes.
“Q. Have you or a member of your family or close friend, [G.D.], ever retained the services of a psychologist or a psychiatrist or psychotherapist or counselor?
“A. Again, my sister went to a counselor when she was abused.
“Q. Was that a marriage counselor, domestic violence counselor?
“A. I think both, she went to both of them.
“Q. Did she ever discuss with you her opinion about whether those people helped her at all?
“A. Not really sit down and have a big discussion, but she briefly indicated what was happening.
“Q. Did she feel it was worthwhile going to counselors?
“A. Yeah.
“Q. Based on what little you know about the case, you know that we’ve charged [the defendant] with going to a meeting and shooting two people. Based on what little you know, do you have a feeling that he must have been nuts? Are you already starting to decide that that guy, in order to do it, must have been crazy? Are you starting to think that way?
“A. No.
“Q. So, you could sit and listen to the case?
“A. Yes.
*325 “Q. As I recall yesterday, I think you indicated, [G.D.], that you have never heard about this case?
“A. Right.
“Q. Do you have any feeling at all about someone who has any type of mental problem, any feeling that they should never be held accountable for what they do, that if you have a mental problem, that you can do whatever you want without being held accountable? Do you think that way?
“A. No.
“Q. Have you ever given this — most people never thought about this. Have you ever thought about this? Is this an area that interests you or that you read about?
“A. No.
“Q. Let’s assume that you are selected, [G.D.], and you listen to all the evidence and you sit here, you listen to everything that goes on and what the judge tells you the law is, what the rules are that apply to your deliberations, and then you deliberate and you’re convinced that we have proven [the defendant] guilty in the shooting death of [the victims]. If you’re convinced we have proven him guilty beyond a reasonable doubt, do you think you could actually vote guilty for the crime of murder?
“A. Yes.
“Q. Can you think of anything that might in any way prevent you from being fair on this case or treating this case fairly?
“A. No.
“Mr. Dearington: Okay. Thank you.
“VOIR DIRE EXAMINATION BY [THOMAS ULL-MANN, DEFENSE COUNSEL]:
*326 “Q. Good morning. How are you today?
“A. Fine, thanks.
“Q. I have some additional questions to ask of you. They are [not] meant to pry into your personal affairs. If you feel they do, please tell the judge. That is not the purpose of the questions, nor Mr. Dearington’s. We are both looking at the form that you filled out, and I apologize in advance if I cover some territory that he has already gone over. If you could just raise your voice so everyone in the courtroom could hear you.
“A. Okay.
“Q. We try to estimate as best as possible how long this trial will last, and we think it will get started some time next week and it will span through approximately December 16. We could be off by a couple of days on the short end or on the long end. We try to let jurors know that so they can plan accordingly. Is there anything of a personal, professional or financial hardship that you feel would make it difficult for you to sit on the case during that period of time?
“A. No.
“Q. I assume that you understand that we need to have people who can focus their attention on what is going on in the courtroom and not be distracted by anything that’s going on in their personal or professional lives. Can you assure us that you would give us that attention?
“A. Yes.
“Q. You have never gone through this process before?
“A. No.
“Q. Never been on jury duty before?
“A. No.
*327 “Q. Now, you were born and raised in Meriden?
“A. Yes.
“Q. You live with—
“A. My parents.
“Q. They own their own home?
“A. Yes, they do.
“Q. What part of the city of Meriden do you live in, what’s it called? What’s it referred to?
“A. Meriden-Wallingford town line.
“Q. Is that where you have been for your entire life?
“A. No, I was on the west side for like my first eleven years. I have lived there for the last twelve.
“Q. When your sisters were undergraduates in Gordon, what were their majors in school?
“A. I believe [one sister’s] was science, because she’s going into optometry, and [another sister’s], I don’t know what the major was there.
“Q. She is at UConn?
“A. Yes.
“Q. Is she a full-time student or works on the side?
“A. Full-time.
“Q. Your father, what does he do for Times Fiber?
“A. A tool crib attendant.
“Q. How long has he been there, approximately?
“A. About twenty-five years.
“Q. And your mom does the baby-sitting out of her house or—
“A. Out of her house, yes.
*328 “Q. How long has she been doing that?
“A. Less than a year.
“Q. And at Maloney High School, what was your— did you participate in a lot of different things at the high school? What was your focus at high school? WTiat were your plans, going through high school, in terms of what you would do after that?
“A. Getting it over with. I wasn’t really too good of a student. I didn’t get too involved with it. I just did my work.
“Q. Were you involved in sports activities?
“A. Yeah, a couple of sports.
“Q. And what were those?
“A. Track and field, cross-country.
“Q. And were you involved in any organizations connected with the high school at all?
“A. No.
“Q. And how would you describe the racial makeup of the school when you were there, in terms of whites, African-American, Hispanic, if you can venture to guess at the percentages?
“A. Probably broken into a pie, maybe forty, thirty, thirty, pretty even.
“Q. How would you describe what the relationships were among the different groups?
“A. Very good.
“Q. And how about the community that you grew up in?
“A. The same.
“Q. Same kind of mix?
*329 “A. Same kind.
“Q. And you’re currently living in Meriden?
“A. Yes.
“Q. Any military history at all?
“A. No.
“Q. Any association with any charitable organization or volunteer groups of any kind? I don’t mean a donation here and there, I mean active involvement.
“A. No.
“Q. Let me be a little bit more specific as it might relate to this particular case. Any connection at all with gun control organizations or a group like the [National Rifle Association]?
“A. No.
“Q. Do you have any particular hobbies or things that you enjoy doing outside of your work?
“A. Yeah, collectibles like collecting autographs, baseball cards, stuff like that.
“Q. How long have you been doing that?
“A. About ten years.
“Q. Specifically in baseball or other sports?
“A. Baseball.
“Q. And do you enjoy doing a lot of reading or not really?
“A. No.
“Q. Now, did you graduate from high school in the normal period of time?
“A. Yes, I did.
“Q. Which is something you didn’t like school?
*330 “A. Yes.
“Q. How about at work, you went to work right after high school?
“A. Yes.
“Q. And you have been there ever since?
“A. Yes.
“Q. Is that the only place that you’ve worked subsequent to high school?
“A. I worked at a couple of places while I was in high school.
“Q. Doing what kind of things?
“A. I was a cook at the Yankee Silversmith and I was a bank teller.
“Q. Now, at Cytec, how long have you been in this particular position?
“A. About six months.
“Q. What were you doing before that?
“A. Before that I was in building one, it’s plastic moldings.
“Q. What’s the specific tasks now?
“A. Waste water treatment.
“Q. What do you particularly do?
“A. I take samples of the water and I get the pHs, make sure everything is within range, it’s not out of regulation.
“Q. These are waters that have been treated—
“A. Yeah, we treat the water.
“Q. That’s done in another building or is it done in your building?
*331 “A. It’s done in my plant, not my specific end of the plant, but at the whole facility.
“Q. Yours is sort of a quality control check?
“A. Yes.
“Q. At that point, once it passes you, if it’s okay, it goes back into the Main Street?
“A. Yes.
“Q. That’s a union position that you have?
“A. Yes.
“Q. And the plant that you work in, how would you describe the racial makeup of the plant there? Would you say there is a fair mix of Caucasians, African-Americans and Hispanics?
“A. Yes.
“Q. Or is it leaning in one direction or the other?
“A. I think it’s relatively fair.
“Q. Now, we have two different kinds of cases in our court system, we have civil cases and we have criminal cases. In a civil case the plaintiff, the person who brings the action, has the burden of proof by what is called a fair preponderance of the evidence, kind of tipping the scale one way or the other. In a criminal case the state brings the action and the state has the burden of proof beyond a reasonable doubt. There’s a much greater burden of proof in the criminal case. Do you understand the distinction and can apply it if instructed how?
“A. Yes.
“Q. Proof beyond a reasonable doubt does not mean proof to an absolute certainty. New things in life can be proven to that level of certainty. However, you must be certain that each one of the charges here have been*332 proven beyond any reasonable doubt. Do you have any problem with that principle or concept?
“A. No.
“Q. Now, obviously the charges here are very serious allegations, as serious as you can get under our laws. Is there anything about the nature of the charges or the kind of testimony that you might expect to hear, given that set of charges, that you feel would predispose you in one direction or another for whatever reason?
“A. No.
“Q. Let me ask you what your reaction was when you heard what the case was about, when you first came in here?
“A. My reaction? I was not shocked, but just—
“Q. Were you surprised?
“A. Surprised, yes.
“Q. And nothing rang a bell at that point because you had not — you didn’t remember anything about this?
“A. No.
“Q. And you might expect, as Mr. Dearington indicated, that there would be some rather graphic and unpleasant testimony in this case, photographs depicting deceased individuals with gunshot wounds and medical examiner testimony relating to the cause of death and the tracks of those wounds, nothing that we look at in our day-to-day lives, or talk about. Do you feel that you could put whatever natural emotional reaction you might have aside and not let that affect your objective determination of the facts in the case?
“A. Yes, I do.
“Q. There also will be testimony regarding the recovery of shell casings and bullet fragments, both at the*333 scene as well as during the course of the autopsies that were performed, and there will also be testimony about the use of a firearm. Is there anything about the nature of that kind of testimony that you feel would affect your ability to be fair and impartial?
“A. No.
“Q. Do you have any strong opinions about guns and the use of guns?
“A. No.
“Q. Do you have any familiarity at all with the location that was mentioned here, the Dixwell Avenue, Chimney Square area?
“A. I just know Dixwell Avenue. I don’t know where the Chimney Square area is.
“Q. And Dixwell Avenue you know in what regard? Just from coming to the city every once in a while?
“A. Yeah.
“Q. Can I ask you what your source of news is on a daily basis?
“A. Source of news? ESPN. I am not much of a news man. I like sports.
“Q. So, you’re not reading a daily newspaper or watching the local news at night?
“A. No.
“Q. Now, have you heard of my name before at all?
“A. No, I haven’t.
“Q. And have you read anything or observed anything concerning the public defender’s office recently?
“A. No.
*334 “Q. These days there is a lot in the media, even in headlines, about crime and the use of guns and homicides in our cities and surrounding towns. Is there anything that you have either read, observed, heard or a case that you may have followed that you feel has caused you to form some strong personal opinions about the criminal justice system that you feel would affect how you looked at this case in this courtroom?
“A. I have been reading about the Susan Smith case, just following that a little bit.
“Q. I think everybody was affected by that. Have you formed any opinions at all about either that case or anything else that you’ve read that you feel would affect how you looked at the facts of this particular case?
“A. No.
“Q. Some people have opinions about the criminal justice system, that there are too many legal technicalities or courts are too lenient, things like that. Do you share any opinions like that?
“A. No.
“Q. Have you had — outside of what you described previously, have you had any prior contact with the criminal justice system for any reason, ever witness an incident — I am excluding what you talked about, the motor vehicle hit-and-run and the other thing that happened with your friend — ever witness any other kind of incident or given a statement to a police officer or testified in a court of law?
“A. No.
“Q. And you never had a lawsuit brought against you?
“A. No.
“Q. And you never brought a lawsuit against anybody else?
*335 “A. No.
“Q. You made a claim regarding damages for a motor vehicle accident?
“A. Yes.
“Q. And I assume you did that with your insurance company?
“A. Yes.
“Q. And have you ever — how many times have you done that, if you can recall, made a claim to an insurance company?
“A. Mine, just once.
“Q. And have you or your family suffered any kind of property damage, like a fire in a home or bodily injury, anything like that?
“A. No.
“Q. Have you ever been the victim of a crime?
“A. No.
“Q. Any family member or close friend that’s been the victim of a crime?
“A. Just my sister.
“Q. And how long ago did that occur?
“A. It had to be three to four years ago.
“Q. Is there anything about your sister’s victimization, that was the spousal relationship, that you feel would in any way affect your ability to be fair and impartial sitting here in this case?
“A. No.
“Q. I assume she was physically assaulted on some occasions?
*336 “A. Yes.
“Q. And was she living in Meriden at the time, or was she—
“A. Yes, she was.
“Q. She was, okay. Now, have either a colleague at work, a neighbor, a friend or family member been the victim of a homicide, some kind of sexual assault or some kind of other crime of violence?
“A. Just the incident—
“Q. Just what you mention about the people from high school?
“A. Yes.
“Q. How about [besides] that?
“A. No.
“Q. Now, when you said you followed that case initially, they were both people that you weren’t friends with but you knew from high school?
“A. Yes.
“Q. How did you follow it? You looked at the news coverage on it.
“A. A little bit [from] hearsay from other friends.
“Q. From people in the community?
“A. And a little bit reading about it.
“Q. Did you have any impressions, either from what you heard from other people or what you read, about the criminal justice system or defense attorneys or prosecutors, anything like that?
“A. No.
“Q. Now, you heard the list of witnesses. They include a number of police officers. Would you have a tendency*337 to credit a police officer with any greater weight just because they are a police officer?
“A. No.
“Q. And you wouldn’t give them any less weight just because they are a police officer?
“A. No.
“Q. Is it a fair statement that a police officer comes into this witness box like anybody else, you listen to what they have to say, what they may have observed, and you scrutinize their testimony like anybody else?
“A. Yes.
“Q. Any relatives or friends that are law enforcement officials, either police officers, attorneys or judges, anything like that?
“A. A couple of friends, a couple of people that I know are police officers, and I know a lawyer, but I think he’s just a real estate lawyer.
“Q. And the police officers are Meriden uniform police officers?
“A. Yes.
“Q. Not detectives?
“A. I believe one is a detective now.
“Q. They made detective recently?
“A. Yes.
“Q. Where are they friends from? Are they from high school or growing up in the neighborhood?
“A. No, a couple of people that I play softball with, their fathers are police officers.
*338 “Q. Anything about those relationships at all that you feel would affect, one, how you looked at police officers’ testimony, or two, your objectivity here?
“A. No.
“Q. Now, do you think that [the defendant] must have done something wrong because he’s sitting in court here today?
“A. I am here to hear the facts. I don’t make an assumption that he did something wrong.
“Q. Obviously somebody does think he has done something wrong because he has been arrested and accused. His is presumed innocent like every person would be.
“A. Yes.
“Q. Can you assure us that you would not use the fact that he had been arrested and accused as evidence against him?
‘A. Yes.
“Q. The sequence of our trial is such that Mr. Dearing-ton presents the state’s case first, and that could go on for awhile. The defense can then choose to put on a case, but doesn’t necessarily have to do that. After the close of all the evidence, the lawyers will argue the merits of the case to the jury and then the judge will give you the instructions on the law. That is really the first time that you hear what specific principles of law apply to the facts of this case, and thereafter you will begin to deliberate this case with your fellow jurors. Can you assure us that you would honor the presumption of innocence until such time as you’ve heard all the witnesses, all the legal arguments and the instructions from the judge?
“A. Yes.
*339 “Q. And then begin your deliberations?
“A. Yes.
“Q. And you can understand the importance of not making up your mind after witness number one or number five or number ten, you wait until you hear the whole case?
“A. Yes.
“Q. Now, a decision hasn’t been made whether [the defendant] will testify during the course of the trial. Let’s say he did not, would you have a tendency to hold that against him?
“A. No, I would not hold that against him.
“Q. That is an interesting principle, because sometimes, in reality, we kind of sit back and say, T really would like to have heard what that guy had to say, if the defense is taking that kind of position,’ but that doesn’t always happen here in the courtroom. Do you feel you could honor his right not to testify?
“A. Yes.
“Q. You would be instructed that you should draw no unfavorable inference from the fact that he didn’t testify. Any problem with that?
“A. No.
“Q. Conversely, if he did testify, I assume you would scrutinize his testimony like any other witness according to the instructions the judge gives you?
“A. Yes.
“Q. Now, the defense is under no burden to put on any evidence whatsoever, we can simply rest after the state’s case. Can you assure us that you would hold the state to its burden of proof even if we did not call a single witness?
*340 “A. Yes.
“Q. In other words, the state has to meet that burden of proof irrespective of what the defense does.
“A. Yes.
“Q. Their threshold isn’t lower or lesser. Now, every crime we have in our state is defined, and we define them into terms that we call elements. The judge will tell you what the elements are to each of the four offenses here. He will also tell you each and every element of each offense has to be proven beyond a reasonable doubt, and I want to give you a hypothetical for a moment. You’re sitting on a case, and unlike this one, which has four charges, you only have to make a decision on one charge. You sit and listen to all the testimony, you listen to the lawyers make their arguments to you. Now the judge is giving you the instructions on the law, and among the instructions you receive are the following: that this one offense is made up of three separate elements and that each one of those three elements has to be proven beyond a reasonable doubt, okay? Now it’s time for you to go back into that room and deliberate with your fellow jurors and it’s your opinion, based on what you observed and what you heard in the courtroom, that there’s plenty of evidence about element number one, well beyond a reasonable doubt, and there’s plenty of evidence about element number two, also well beyond a reasonable doubt, but you have a doubt about element number three, it could be based on the evidence or lack of the evidence. Would you have any hesitation in returning a not guilty verdict under those circumstances?
“A. No hesitation.
“Q. I assume that’s because that if the judge tells you that an offense is comprised of three elements and all three have to be proven, two out of three is not enough?
*341 “A. Right.
“Q. Even though it sure looks like something was wrong. That is a very important principle. That analysis applies to each one of the four charges here because each charge has their own set of elements, and the jury is required to return a verdict on each one. What that means, in a case like this with multiple charges, the jury could come back with any number of different verdicts: it could be not guilty on everything, it could be guilty of everything, it could be not guilty on some, guilty on some, or vice versa, or you may hear some instructions from the judge regarding what is called lesser included offenses such as manslaughter, or you may not be able to reach a unanimous verdict with your fellow jurors. Any problem with that scenario?
“A. No problem.
“Q. Now, if you were selected as a juror in this case, would you voice your own opinion when it came time to discuss this case with your fellow jurors?
“A. Yes.
“Q. Are you the kind of person that would stand by your own opinion even if you were in the minority?
“A. Yes.
“Q. I assume you would listen to what other people would have to say?
“A. Yes.
“Q. If they reasonably persuaded you, that would be one thing, but you wouldn’t just change your vote because of the numbers?
“A. Yes.
“Q. How do you feel about working in a group situation with the jury? Do you feel you would speak out, speak your mind?
*342 “A. Yes.
“Q. Do you — let’s say the vote was eleven to one and you were the one, how do you feel you would handle that situation?
“A. Well, I would make sure that everyone knows why I am voting against it or for it, whatever. If I was in the minority, I would try to see if they would see my point of view.
“Q. Again, you would listen to what their position would be, and you would not change your vote just because of the numbers, it doesn’t matter whether you’re voting for guilty or for not guilty, correct?
“A. Right.
“Q. Now, every case has issues of credibility that come up during the course of the case, both civil and criminal, and this case will be no different. One of the— and the judge will provide you with a series of factors to take into account in assessing a witness’ credibility and believability. Many of them axe what we use in our everyday judgments of people in general. One of the things not to use is sympathy, and there could be a lot of sympathy in a case like this. You have two deceased individuals, you have family members present in court, and will be for the duration of the trial. [The defendant] is sitting here, he’s facing very serious allegations and repercussions for those allegations, and family members of his will be present as well. Can you assure us that you could put whatever natural sympathies you might have aside and not let that affect your objective determination of the facts in this case?
“A. Yes.
“Q. Now, have you ever studied or read books in the field of psychology or psychiatry or psychotherapy, anything like that?
*343 “A. No.
“Q. And you indicated to Mr. Dearington the only time that a family member has utilized the services of a therapist was when your sister was going through the marital dissolution with her husband?
“A. Yes.
“Q. How long did she attend therapy, do you know?
“A. It’s hard to determine how long it was. It was for a couple of months, I think.
“Q. Has there been any other instance at all, within the family, in which either a psychotherapist or mental health worker or psychiatrist has been utilized?
“A. No.
“Q. And can I ask you what your impressions are of the field of psychiatrist or psychology or psychotherapy?
“A. My impressions?
“Q. Yes.
“A. I don’t really understand. I don’t understand how they go. I never witnessed someone analyze someone.
“Q. You don’t really know?
“A. Right.
“Q. Some people feel that it’s not a qualified profession or they don’t pay it a lot of attention or they don’t give it a lot of respect. Do you have any feelings like that?
“A. No.
“Q. Now, how do you feel about the use of, or do you have any opinions about the use of, psychiatric testimony in a courtroom?
*344 “A. No.
“Q. And let me extend it one step further. Do you have any opinions concerning the use of psychiatric testimony in a criminal case?
“A. No.
“Q. Some people feel that when the defense introduces psychiatric testimony regarding state of mind, that that shouldn’t be allowed, that that’s a legal technicality and it shouldn’t be allowed in a courtroom, even though the law allows it. Do you have any kind of feelings like that at all?
“A. No.
“Q. Do you feel that you would listen to psychiatric testimony fairly, that was presented in this case, look at it and scrutinize it carefully?
“A. Yes.
“Q. And are you coming in with any kind of preconceived notions that evidence like that has two strikes against it to start off with?
“A. Evidence of what?
“Q. Of a psychiatric nature.
“A. No.
“Q. I think it’s obvious that if the defense attorney is listing a psychiatrist and a psychologist and the prosecutor is listing a psychologist and you’re being asked questions about that, it’s obvious that the defense will not contest that [the defendant] was involved in the shootings in this case. Does that offend you or bother you in that the defense would rely on psychiatric testimony, the relevance of that testimony, to a state of mind?
“A. No.
*345 “Q. So, I assume that you could scrutinize that testimony, listen to the instructions that the judge provides and make your decisions based on that?
“A. Yes.
“Q. Obviously [the defendant] is black. Is there any underlying prejudice at all that you feel would in any way affect your ability to be fair and impartial sitting on his case in this courtroom?
“A. No.
“Q. Both deceased individuals are both white males. Is there anything about the fact that the case presents a situation where a black man is accused of killing two white men that you feel presents any difficulties for you at all?
“A. No.
“Q. And the defense psychiatrist, Dr. Ezra Griffith, is a black male. Is there anything about that fact that you feel in any way would affect how you looked at his testimony?
“A. No.
“Q. Okay, we all, in society, are consumers of goods and services. Have you ever felt taken advantage of in purchasing goods or services?
“A. Yeah.
“Q. Does anything stand out in your mind about that?
“A. Buying a car, buying something that’s falsified, like a collectible show.
“Q. Do you feel that you were taken advantage of because of race or your professional status or lack of professional status, or by the status of the person who was selling the goods?
*346 “A. Taken advantage of because of lack of knowledge, because I didn’t know about it.
“Q. Can you assure [the defendant] that you would give him a fair trial in this case?
“A. Yes.
“Q. Any question about that?
“A. No.
“Mr. Ullmann: Okay. Thank you, sir.
“The Court: Would you be good enough to step into the jury room right behind you, for just a moment.
“(Whereupon the juror stepped out of the courtroom.)”
See appendix B of this dissent for the argument of trial counsel regarding the Batson/Holloway challenge.
APPENDIX B
The transcript of the entire argument by counsel with respect to the Batson/Holloway hearing — which in my view demonstrates that the trial court never gave a meaningful review of the claim — is as follows:
“The Court [addressing G.D.]: Would you be good enough to step into the jury room right behind you, for just a moment.
“(Whereupon the juror stepped out of the courtroom.)
“[Michael Dearington, State’s Attorney]: Excused.
“The Court: Bring him back.
“[Thomas Ullmann, Defense Counsel]: I would like to be heard on this. I would like to ask for — I know that [G.D.] is not a member of the defendant’s race, but he is a minority, a Hispanic minority, and I would ask for a racially neutral reason for that challenge.
*347 “The Court: Mr. Dearington.
“Mr. Dearington: Our law provide[s] that one must be a member of the defendant’s minority for the Batson rule to kick in, or the Batson case. I don’t think I am obligated to do that.
“The Court: Do you have any reason otherwise? Do you have any other reasons?
“Mr. Dearington: Yes, I do.
“The Court: Why don’t you recite them for the record.
“Mr. Dearington: In terms of his ability to, his intellectual ability to understand a psychiatric defense bothers me. I think he was never put in a position where he had to make decisions. He admitted that his high school career was less than illustrious. His position at work doesn’t demonstrate a position where he has to make decisions. That concerns me.
“Again, the psychiatric defense, I have a feeling that he might be overwhelmed by the testimony by all of the doctors, if not one of them. That concerns me. I am not sure how the fact that a friend of his or an acquaintance was murdered, and he knows the fellow that murdered him, how it took place. He indicated that he initially did follow the case and I guess lost interest. He was obviously exposed to an unpleasant experience with a police officer, and I know he says that would not play a part in this case, [but] one never knows subconsciously how that would play in his judgment in this case.
“I mentioned his education. Although we have taken people with twelve years of education, I have a sense in this case that — I just don’t feel that he would be up to understanding the evidence in this case and dealing with it, as I have already elaborated on that.
*348 “Also, he being one of [seven] children, the other [six] of them sisters, he being near the youngest, that’s something that I find of some interest in terms of how he would look at this case. Those are a few of the reasons, Your Honor.
“The Court: Thank you.
“Mr. Ullmann: Your Honor, I guess it’s okay to take a Romanian citizen [in reference to W.V., a juror who was selected] [who has] a fifth grade education, who worked on cars in his backyard for his entire life, but a man with a twelfth grade education [who is] working for five years at Cytec, he’s got problems understanding that? I strongly disagree.
“I think that the United States Supreme Court has indicated that in addition to the Batson case ground for racially neutral explanations, that minority members have rights in themselves as jurors to be seated on a jury, and I am exercising that right on behalf of [G.D.]; and I think that under our own case law in the state of Connecticut, which has exceeded the Batson requirements and which the court, our Supreme Court, has stated they have supervisory control of this particular issue in seating minority members on juries, that they would frown upon the excuses that were made by Mr. Dearington regarding [G.D.].
“[G.D.] is a working man. He graduated from high school. He is someone who grew up in Meriden. He didn’t say he was friends, he said he knew these people, and other than that, he had no connection with those particular individuals.
“I don’t think there’s the slightest basis for excusing [G.D.] from this particular case, and I really find the state’s position outrageous. I am asking the court to seat [G.D.] in the case and reject the explanation that was raised by Mr. Dearington.
*349 “Mr. Dearington: We did select someone who had less than twelve years education, but he was substantially older than this gentleman, who is twenty-three. I am just citing our Connecticut law, that a Batson showing must include evidence that the defendant is a member of a cognizable racial group, and this prosecutor has exercised a peremptory challenge to remove the venireman, who is not a member of the defendant’s race. I mean the law is clear.
“Mr. Ullmann: Is Mr. Dearington suggesting that people can be eliminated based on racial or religious or sexual grounds if they are somewhat different in terms of their racial makeup than the defendant? I don’t think that’s the case law, I don’t think that’s United States Supreme Court case law, and I don’t think that our Connecticut Supreme Court would tolerate that explanation at all particularly under Atate v. Holloway [supra,209 Conn. 636 ] in which this Supreme Court went further than the United States Supreme Court in Batson in exercising its supervisory capacity on this particular issue. So, I don’t think that the citation or authority there would apply to this particular instance.
“The Court: All right, the court is satisfied that the use of the peremptory challenge here was not racially motivated and that the reasons advanced by the state are sufficient in the court’s judgment and not pretextual. So, bring him back, please.
“(Whereupon the juror returned to the courtroom.)
“The Court: [G.D], you have been excused from service in this particular case. Since you were carried over from yesterday, that means that your jury service is completed. We appreciate your coming back, but please go back to the ninth floor and tell them that you’re all done. Thank you very much.
“(Whereupon the juror [G.D.] was excused and left the courtroom.)”
“One of the cornerstones of our judicial system is the right to a jury trial; yet minorities do not serve on jury trials in proportion to their eligible population. This is of concern both because of the importance of minorities serving on jury duty, and because of the perception that racial and ethnic biases among non-minority jurors can have an adverse effect on civil and criminal case deliberations. An overwhelming percentage of Judicial Branch judges and attorneys reported that minority litigants felt they would not be judged by a jury of their peers. 75% of judges felt this was true more than 25% of the time; 99% of minority attorneys and 86% of Caucasian attorneys agreed. This fuels a perception that the system does not mete equal justice for all.” Connecticut Judicial Branch Task Force on Minority Fairness, supra, p. 41.
The survey conducted was a telephone poll of 1201 Connecticut residents. Connecticut Judicial Branch, Statewide Public Trust and Confidence Study (October 1998) p. 4.
Under our Batson/Holloway test for demonstrating purposeful discrimination, once such a challenge has been made (1) “the burden shifts to the state to advance a neutral explanation for the venireperson’s removal” and (2) “[t]he defendant is then afforded the opportunity to demonstrate that the state’s articulated reasons are insufficient or pretextual.” State v. Holloway, supra,
State v. Beltran,
In the one case that we did reverse; State v. Robinson, supra,
See footnote 17 of this dissent.
The majority is absolutely correct that at our first conference on this case I did not move to order the parties to file supplemental briefs addressing the issue of whether we should formally adopt the dissent in Purkett under our state jurisprudence. I have two responses. First, work on this case has been a long, slow process for both the majority and the dissent. For example, a justice’s decision to join the concurring opinion and revised drafts of the majority’s opinion were circulated as recently as March, 1999 — several months after I made the motion that the majority maligns as “belated.” Moreover, the majority did not circulate its first draft opinion in this matter until July 2,1998, followed by a second draft on July 31 — the last day before the beginning of our summer recess. Accordingly, I had no opportunity to respond to the majority’s sixty-four page opinion until we returned to chambers in September. I filed my thirty-six page draft dissent in relatively short order, in October.
Moreover, this court, albeit during a different era, recognized the problems of trial attorneys and public defenders. In State v. Barrett,
Smith did not involve a claim of racism, but merely the question of whether the trial court properly imposed a condition of probation one year after the defendant was sentenced.
In Genovese, I commended the majority’s activism as follows: “I also write separately to endorse the procedural activism employed by the majority in this case. The plaintiff in this case failed to raise his claim under [General Statutes] § 31-51bb both in the trial court and initially before this court. We, on our own, raised the applicability of § 31-51bb and ordered ihe parties to submit supplemental briefs. Accordingly, the majority has decided this case on the basis of a claim that was never raised in the trial court and was raised in this court only as a result of our direction. Although I do not agree with the majority’s interpretation of § 31-51bb, I applaud the procedural route employed in this case. We may now employ this procedure in other cases as justice demands. Certainly, if we may use this newly
State v. Smith,
Like the majority, I will use the venireperson’s initials throughout this dissent in order to protect his privacy.
I do not understand the majority’s reluctance to state explicitly that it overrules these cases to the extent that they hold that Batson/Holloway was satisfied whenever the trial court found that one proffered reason was not pretextual. Although one justice who is part of the majority in this case was a member of the panel in State v. Smith, supra,
Because I believe the defendant is entitled to a new trial under federal law as embellished by the Batson/Holloway analysis, I need not reach the obvious issue of whether the state constitution requires more protection than that which is provided by Senkowski. See Cologne v. Westfarms Associates,
There is no question that. Purkett changed the law of Batson. The dissent in Purkett points out “[i]n my opinion it is unwise for the Court to announce a law-changing decision without first ordering full briefing and argument on the merits of the case. The Court does this today when it overrules a portion of our opinion in Batson . . . .” Purkett v. Elem, supra,
The voir dire for jury selection in the present case was conducted throughout the fall of 1994 and the jury returned a verdict in early January, 1995, while Purkett was not decided until May, 1995.
The majority is absolutely correct that the defendant, in his appellate brief, accepts the majority’s decision in Purkett and argues that relatedness should be considered in step two of Batson/Holloway. But, as I have already pointed out, the fact that the defendant incorrectly argues the law does not mean we should so apply it. We are here to do justice.
Nevertheless, although the public defender at trial did not specifically argue that the proffered reasons were not related, he implicitly raised the issue when his argument is considered in light of the fact that the Purkett decision was decided approximately five months after the completion of the trial in the present case. Defense counsel implicitly raised the issue as follows: “[Thomas Ullmann, Defense Counsel]: I think that under our own case law in the state of Connecticut, which has exceeded the Batson requirements and which the court, our Supreme Court, has stated they have supervisory control of this particular issue . . . that they would frown upon the excuses that were made by [the state’s attorney] regarding [G.D.].” (Emphasis added.) Defense counsel continued to discuss Connecticut law and its supervisory powers throughout his objection to the state’s challenge of G.D. See appendix B of this dissent for the entire argument by counsel with respect to the Batson/Holloway hearing regarding G.D., the one venireperson on which this dissent focuses.
“It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Cologne v. Westfarms Associates,
The majority cites United States v. Alvarado,
Beltran does not mention Purkett.
The majority claims in footnote 19 that State v. Gonzalez, supra,
Second, the majority correctly points out that Gonzalez directly quotes Batson in order to reach its legal conclusion. The majority, however, misreads the significance of this reference when it argues that Gonzalez follows Batson, therefore, our state jurisprudence must blindly follow the majority opinion in Purkett. A decision that invites counsel to advance fantastic, silly or superstitious reasons evades the mandate of Batson, as well as that of Gonzalez. Thus, we should recognize that the Purkett majority overruled Batson, and should refuse to allow that mischief to undermine our well established jurisprudence that goes back to 1988, seven years before Purkett was decided, that requires counsel to advance neutral reasons that are based upon legitimate claims related to the trial. Our jurisprudence that requires relatedness for the neutral reason to rebut a prima facie case of discrimination, as I point out in this dissent, was confirmed in State v. Beltran, supra,
The majority’s response in footnote 22 of its opinion that the defendant has not sought a heightened review is of no consequence. A reviewing court should not apply an incorrect standard of review simply because a party does not request such review. Within the same footnote the majority once again tries to limit this court to the federal law. As I pointed out in parts I and II of this dissent, we are not limited by the federal constitution when we are reviewing a claim that also encompasses a parallel provision in the Connecticut constitution and our state common law, as long as we grant more rights for the defendant than are provided by the federal constitution.
In footnote 22 of its opinion, the majority tries to refute our standard of review by arguing that when we have applied this heightened standard it has been “within the broader context of the clearly erroneous standard.” Whatever the majority means by this statement, it is of no significance. Simply put, we reviewed those factual findings under a heightened review because of the importance of the issues. State v. Webb,
Despite the majority’s confused discussion regarding an inadequate record for review, the record with respect to G.D. is adequate for review, as the majority ultimately concedes.
See part III of this dissent.
See footnote 14 of this dissent. Under federal constitutional law as set forth in Batson, the Second Circuit Court of Appeals has adopted the dual motivation analysis. Howard v. Senkowski, supra,
In order to maintain that the defendant’s disparate treatment claims are unpreserved, the majority misconstrues State v. Robinson, supra,
In footnote 23 of its opinion, the majority claims unpersuasively that our review in Gonzalez of the disparate treatment claim under Batson that was raised for the first time on appeal is no longer relevant to this case because Gonzalez was decided before Golding. Golding did not change our jurisprudence regarding the review of alleged constitutional violations that are raised for the first time on appeal. State v. Golding,
See appendix A of this dissent.
The proper inquiry should not, as the state argues, compare the challenges of the various excused venirepersons.
The four jurors were: J.O., who was twenty-four years old; D.S., who was twenty-ñve; J.F., who was twenty-eight; and E.B., who was twenty-one. The two alternates were M.K. and G.T., who were both twenty-eight.
The only question the state asked regarding G.D.’s education was the name of his high school. See appendix A of this dissent.
The three venirepersons were: J.S., a Caucasian venireperson who was accepted by the state but excused by the defendant (fireman who deals with homicide victims); J.C., a Caucasian venireperson who was accepted by the state but excused by the defendant (cousin murdered); and E.B., a Hispanic juror (two friends murdered).
See part IV C and footnote 36 of this dissent.
See the introduction to part IV of this dissent for a further discussion.
Those venirepersons accepted by the state (with their relatives who had been arrested identified in the parentheses) were: M.B., a venireperson
The only other references to G.D.’s family occurred when he offered responses to questions that included his family, such as the fact that he lived with his parents and that one sister had been the victim of domestic violence.