STATE OF CONNECTICUT v. JOSE A. B.*
(SC 20332)
Supreme Court of Connecticut
March 22, 2022
Robinson, C. J., and McDonald, D‘Auria, Mullins, Kahn, Ecker and Keller, Js.
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Syllabus
Convicted of sexual assault in the first degree, attempt to commit sexual assault in the first degree, sexual assault in the fourth degree, and two counts of risk of injury to a child, the defendant appealed, claiming that the trial court improperly had overruled defense counsel‘s objections to the prosecutor‘s use of peremptory challenges to excuse two prospective jurors, C and N, and that his conviction of two counts of risk of injury to a child violated the constitutional prohibition against double jeopardy. C is an African-American, and N is also a member of a racial minority. The prosecutor had explained that the basis for the peremptory challenges to C and N was their stated distrust of law enforcement and/or the criminal justice system. Specifically, the prosecutor relied on N‘s statements during voir dire indicating that she previously had been convicted of a crime for which she received a pardon, that she had resented the police at the time she was arrested but no longer felt that way, and that her husband‘s friend had previously pleaded guilty to sexual assault but that she did not believe the truth of the allegations against him. With respect to C, the prosecutor relied on the fact that, although C had disclosed an incident involving a larceny on his juror questionnaire, he also revealed during voir dire an undisclosed conviction resulting from an assault of a police officer, for which C believed he was unfairly prosecuted. Defense counsel objected to the peremptory challenges on the basis of the United States Supreme Court‘s decision in Batson v. Kentucky (476 U.S. 79), which prohibits a party from challenging prospective jurors solely on account of their race. The trial court overruled the Batson challenges, concluding that the reasons proffered by the prosecutor, namely, N‘s resentment toward the police and her criminal conviction resulting in a pardon, as well as C‘s prior arrest for a serious crime for which he believed he was unfairly prosecuted, were race neutral and not a pretext for discrimination. From the judgment of conviction, the defendant appealed. Held:
- The trial court did not commit clear error in determining that the defendant had failed to meet his burden of proving, by a preponderance of the evidence, that the jury selection process in the present case was tainted by purposeful discrimination:
- The defendant conceded that the distrust of law enforcement and/or the criminal justice system is a race neutral reason for exercising a peremptory challenge under federal constitutional law, and this court declined to conclude, on the basis of the record in the present case, that such negative perceptions constitute a facially discriminatory reason for exercising a peremptory challenge under the Connecticut constitution: although neither the text nor the history of the relevant provisions (
article I, §§ 1 ,8 ,19 and20 , as amended) of the Connecticut constitution shed any light on the scope of permissible reasons for peremptory challenges, federal precedent provided no support for the defendant‘s claim, and sister state precedent did not provide overwhelming support for that claim, this court‘s recent decision in State v. Holmes (334 Conn. 202) signaled a shift in this state‘s precedent toward ensuring the impartiality of juries by addressing the problems of implicit bias and disparate impact during jury selection; moreover, in Holmes, this court recognized that significant public policy and sociological reasons support the conclusion that a negative perception of law enforcement is not a race neutral reason for excluding a prospective juror, considering the disparate impact those reasons have on racial minorities and, to that end, announced in that case the creation of the Jury Selection Task Force to study and propose changes to the jury selection process in Connecticut that would remediate the issue of racial discrimination and implicit bias in jury selection; nonetheless, principles of judicial restraint counseled against this court‘s making a new constitutional pronouncement on this issue, as the Jury Selection Task Force recently had proposed a new rule of practice to address these concerns, the proposed rule had been submitted to the judges of the Superior Court for consideration, and the rule-making process was ongoing; accordingly, this court declined to hold in the present case that greater protection was warranted under the Connecticut constitution than is provided under the existing federal Batson scheme. - The trial court‘s finding that the reasons proffered by the prosecutor for peremptorily challenging C and N were not a pretext for impermissible discrimination was not clearly erroneous; the record indicated that the prosecutor questioned all of the prospective jurors in a similar manner as to whether they, or someone close to them, had ever been arrested or charged with a crime, any affirmative responses to those questions were followed by questions regarding the details of any arrest or charge and whether it would influence the prospective juror, the more extensive questioning of C with regard to his criminal history was reflective of the incomplete answers that he provided in his questionnaire and during voir dire rather than reflective of a racially discriminatory intent, and there was no evidence of a pattern of discrimination by the prosecutor in excluding prospective jurors of a particular race.
- The defendant conceded that the distrust of law enforcement and/or the criminal justice system is a race neutral reason for exercising a peremptory challenge under federal constitutional law, and this court declined to conclude, on the basis of the record in the present case, that such negative perceptions constitute a facially discriminatory reason for exercising a peremptory challenge under the Connecticut constitution: although neither the text nor the history of the relevant provisions (
- The defendant could not prevail on his claim that his right to be free from double jeopardy was violated because risk of injury to a child, with which the defendant was charged, is a lesser included offense of sexual assault in the first degree and sexual assault in the fourth degree: even if it was assumed that the offenses in question arose from the same act or transaction, the defendant failed to show that those crimes constituted the same offense for double jeopardy purposes under the test set forth in Blockburger v. United States (284 U.S. 299), and this court, in a recently decided case, State v. Tinsley (340 Conn. 425), rejected the defendant‘s argument that, notwithstanding the distinct elements of each offense charged, a court should consider the facts alleged in the information when determining whether the statutory elements of each offense are the same under Blockburger; in the present case, the crimes of sexual assault in the first degree and sexual assault in the fourth degree each required proof of a fact that risk of injury to a child did not, as sexual assault in the first degree required proof that the defendant engaged in sexual intercourse with the victim and was more than two years older than the victim, sexual assault in the fourth degree required proof that the defendant intentionally subjected someone under the age of fifteen to sexual contact, and the particular risk of injury offenses of which the defendant was convicted required proof of neither of those facts; moreover, because the defendant did not argue that the legislature had intended that risk of injury to a child, on the one hand, and sexual assault in the first or fourth degree, on the other, should be considered the same offense, he could not rebut the presumption that those crimes did not constitute the same offense under Blockburger.
Argued February 26, 2021—officially released March 22, 2022
Procedural History
Substitute information charging the defendant with two counts of the crime of risk of injury to a child, and with one count each of the crimes of sexual assault in the first degree, attempt to commit sexual assault in the first degree, and sexual assault in the fourth degree, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Doyle, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.
Timothy J. Sugrue, assistant state‘s attorney, with whom, on the brief, were Maureen Platt, state‘s attorney, and Elena Ricci Palermo, senior assistant state‘s attorney, for the appellee (state).
Harry Weller, Peter T. Zarella, and C. Ian McLachlan filed a brief as amici curiae.
Alinor C. Sterling and James J. Healy filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
George Welch, human rights attorney, filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.
Tadhg Dooley filed a brief for Professors and Research Scholars at Connecticut‘s Law Schools as amici curiae.
William Tong, attorney general, Clare Kindall, solicitor general, and Joshua Perry, special counsel for civil rights, filed a brief for the Office of the Attorney General as amicus curiae.
Christine Perra Rapillo, chief public defender, and Adele V. Patterson, senior assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.
David N. Rosen filed a brief as amicus curiae.
Georgina Yeomans filed a brief for NAACP Legal Defense and Educational Fund, Inc., as amicus curiae.
Opinion
ROBINSON, C. J. The principal issue in this appeal asks us to revisit our recent decision in State v. Holmes, 334 Conn. 202, 221 A.3d 407 (2019), and to consider whether, given the disparate impact on minority communities, a prospective juror‘s negative experience with, or distrust of, the criminal justice system provides a race neutral reason for the exercise of a peremptory challenge under the Connecticut constitution. The defendant, Jose A. B., appeals1 from the
The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. The victim lived with the defendant, the defendant‘s wife, who was the victim‘s legal guardian, and the victim‘s brother, from the time the victim was eighteen months old. The victim testified that the defendant sexually assaulted her on numerous occasions between 2000 and 2007, when she was between five and twelve years old.4
The state subsequently charged the defendant with sexual assault in the first degree in violation of
I
JURY SELECTION CLAIMS
The defendant first claims that his state and federal constitutional rights were violated because the state‘s peremptory challenges to two venirepersons, N.L. and C.J., during jury selection violated Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The record reveals the following additional facts and procedural history relevant to this claim.
During the prosecutor‘s voir dire examination of N.L., the following exchange occurred:
“[The Prosecutor]: Do you know of anyone who has ever been accused of a sexual assault besides the one you just told us about?
“[N.L.]: Yes.
“[The Prosecutor]: Tell me a little bit about that.
“[N.L.]: Well, he was actually a friend of my husband‘s. He used to date this girl, and they had kids together, but she had a son with someone else, and she didn‘t have custody of him. The grandparents did. And I guess maybe he wanted to, you know, live with them, and the person got accused of sexually molesting him. . . . I don‘t know if it happened. And he went to jail, but he‘s been out of jail for a long time
.10 * * *
“[The Prosecutor]: Do you think that people [who] are victims of sexual assault should go to the police?
“[N.L.]: Yes.
* * *
“[The Prosecutor]: Now, have you or anyone close to you, besides what you told us, ever been charged or arrested for a crime?
“[N.L.]: Myself, I have.
“[The Prosecutor]: Can you tell me a little bit about that?
“[N.L.]: Yeah. It‘s years ago. I‘ve actually had a pardon. So I don‘t know if I should talk about it.
“The Court: If you have a pardon—I guess the question would be, is there anything about that experience that might affect your ability to be fair and impartial in this case?
“[N.L.]: I don‘t think so.
“[The Prosecutor]: You‘re hesitating a little.
“[N.L.]: No, I don‘t think so. I think I can separate the two.11
* * *
“[The Prosecutor]: Do you think that the fact that you were arrested and then later pardoned, do you think that might make you think you might lean more toward the defense in this case?
“[N.L.]: Not based on that. I would actually have to hear both sides. Then I can make a decision from there.
“[The Prosecutor]: Do you think you would hold it against the state because of what happened?
“[N.L.]: No.
* * *
“[The Prosecutor]: All right. There will . . . probably [be] testimony from at least one police officer in this case. What‘s your feeling about the police in general?
“[N.L.]: Well, I ha[d] a lot of resentment when I got arrested, but, over time, I‘ve learned that whatever happened was not their fault. It was something that I did. And I actually have members that are police officers.
“[The Prosecutor]: Members of [your] family?
“[N.L.]: Mm-hmm.
* * *
“[The Prosecutor]: So, you held a lot of resentment at one time for the police. And now?
“[N.L.]: No.
“[The Prosecutor]: Have you ever had to call the police yourself for any reason?
“[N.L.]: Yeah.
“[The Prosecutor]: For what? “[N.L.]: Domestic, when I was like real young.” (Footnotes added.)
Upon conclusion of the voir dire examination of N.L., the prosecutor exercised a peremptory challenge. The prosecutor stated, inter alia, that N.L.‘s articulated resentment toward the police and her criminal history of a conviction resulting in a pardon warranted the use of a peremptory challenge.12 Defense counsel then raised a Batson objection to the state‘s peremptory challenge of N.L. The trial court overruled defense counsel‘s Batson objection, concluding that the prosecutor‘s proffered reasons for the peremptory challenge of N.L. were race neutral and not a pretext for discrimination.13
The prosecutor subsequently conducted a voir dire examination of C.J., during which they discussed C.J.‘s arrest history, which C.J. had only partially disclosed in his juror questionnaire:
“[The Prosecutor]: Have you or anyone close to you ever been arrested for any kind of crime?
“[C.J.]: I have been arrested for a crime.
“[The Prosecutor]: For what, sir?
“[C.J.]: Well, a long time ago, coming out [of] my aunt‘s building, an undercover police officer grabbed my arm, and I‘m thinking it‘s a robbery, so I swung to get him off of me, but then that—then everything took place. Then I find out he was a police officer.
“[The Prosecutor]: Okay. So you were arrested for that?
“[C.J.]: Yes.14
* * *
“[The Prosecutor]: You gave a little information on your juror questionnaire, and you . . . put down something about larceny six, but dropped from my job. . . . What‘s that mean?
“[C.J.]: . . . I worked at Stop and Shop for almost twelve years. All right. We had a hectic night one night. I had my stuff in a carriage, and I was the key holder, so, when I was leaving . . . I grabbed my carriage, but . . . because of the night, I didn‘t scan those things out, so they put a larceny six, but they dropped it—all that. But that was in 2011.15 * * *
“[The Prosecutor]: Okay. Besides that, any other time you or anyone else close to you [has] ever been arrested?
“[C.J.]: No.” (Footnotes added.)
The state then questioned C.J. regarding his attitude toward the police and the criminal justice system:
“[The Prosecutor]: Do you think the fact that you have been arrested and [that] you‘ve kind of dealt with the criminal justice system, do you think that might play a part in your deliberations if you‘re a juror?
“[C.J.]: Not really.
“[The Prosecutor]: What do you mean?
“[C.J.]: Because, at the end of the day, all these offense[s] you [are] talking about happened over thirty years ago.
“[The Prosecutor]: Okay. . . . The fact that you were arrested [for] the larceny six that ended up getting dropped. Do you think that you might hold a grudge against the state because of your background?
“[C.J.]: No.
“[The Prosecutor]: Do you think you were fairly prosecuted?
“[C.J.]: Do I think I was fairly prosecuted? Not on the first one, no.
“[The Prosecutor]: No? That was the one with the—
“[C.J.]: The assault—
“[The Prosecutor]: —assault?
“[C.J.]: —on the police officer.
“[The Prosecutor]: And that was in Hartford?
“[C.J.]: That was in Hartford. . . .
“[The Prosecutor]: What‘s your opinion of the police?
“[C.J.]: I don‘t have no opinions on [the] police because, in my whole family, there‘s massive police officers. Chief of police was my uncle, so I don‘t have [an] opinion on none of them. There‘s good police, and there‘s bad police, so I don‘t have an opinion on that. I treat people as individuals.”
The prosecutor first moved to excuse C.J. for cause, given his failure to account completely for his past convictions in his questionnaire by omitting his arrest for assaulting a police officer. Defense counsel objected to the challenge for cause, arguing that C.J.‘s recollection had been affected by the length of time that had passed since his arrest. The trial court agreed with defense counsel and denied the state‘s challenge for cause. The prosecutor then exercised a peremptory challenge, arguing that, in addition to C.J.‘s apparent omissions in completing the questionnaire, the charge of assaulting a police officer itself was serious in nature and that C.J. believed
Before addressing the defendant‘s claims in detail, we review the well established general principles under which we consider Batson claims. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] [s]ixth [a]mendment right to an impartial jury will be honored. . . . Part of the guarantee of a defendant‘s right to an impartial jury is an adequate voir dire to identify unqualified jurors. Our constitutional and statutory law permit[s] each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine [his or her] fitness to serve on the jury. . . . Because the purpose of voir dire is to discover if there is any likelihood that some prejudice is in the [prospective] juror‘s mind [that] will even subconsciously affect his [or her] decision of the case, the party who may be adversely affected should be permitted [to ask] questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case. . . . The purpose of voir dire is to facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause. . . .
“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. . . . [S]uch challenges generally may be based on subjective as well as objective criteria . . . . Nevertheless, [i]n Batson [v. Kentucky, supra, 476 U.S. 79] . . . the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the [e]qual [p]rotection [c]lause forbids [a party] to challenge potential jurors solely on account of their race . . . .
“Under Connecticut law, a Batson inquiry involves three steps.17
“In the third step, the burden shifts to the party asserting the Batson objection to demonstrate that the [opposing party‘s] articulated reasons are insufficient or pretextual.” (Footnote altered; footnote omitted; internal quotation marks omitted.) State v. Holmes, supra, 334 Conn. 222–24; see, e.g., State v. Edwards, 314 Conn. 465, 483–85, 102 A.3d 52 (2014).
It is undisputed that the defendant has satisfied the first step of the Batson inquiry as to N.L. and C.J. See footnote 9 of this opinion. Turning, then, to the second step of the Batson inquiry, we must determine whether the prosecutor‘s proffered reason for the peremptory challenges, namely, a prospective juror‘s distrust of the criminal justice system based on his or her personal experience, was facially race neutral. This is a question of law, over which we exercise plenary review. See, e.g., State v. Holmes, supra, 334 Conn. 226.
The defendant first argues that, as a matter of Connecticut constitutional law, the prosecutor‘s proffered reasons for the peremptory challenges were facially discriminatory based on race, given their disparate impact on members of minority groups.18 We address this argument under the state constitution before turning to the third step of the Batson inquiry, namely, the defendant‘s alternative claim that, even if race neutral, any proffered reason by the prosecutor was a pretext for purposeful discrimination.
A
State Constitutional Claim as to the Second Prong of the Batson Inquiry
The defendant claims that certain provisions of the Connecticut constitution,
In determining that our state constitution in some instances provides greater protection than that provided by the federal constitution, “we have recognized that [i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter.” (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155–56, 957 A.2d 407 (2008).
“In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), we enumerated the following six factors to be considered in construing the state constitution: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies. . . .
“The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party . . . can respond; and they encourage a principled development of our state constitutional jurisprudence. Although in Geisler we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. . . . [N]ot every Geisler factor is relevant in all cases. . . . Moreover, a proper Geisler analysis does not require us simply to tally and follow the decisions favoring one party‘s state constitutional claim; a deeper review of those decisions’ underpinnings is required because we follow only persuasive decisions. . . . The Geisler analysis applies to cases in which the state constitution has no federal analogue, as well as those in which the claim is that the state constitution provides greater protection than does the federal constitution.” (Citations omitted; internal quotation marks omitted.) Fay v. Merrill, 338 Conn. 1, 26–27, 256 A.3d 622 (2021); see, e.g., Feehan v. Marcone, 331 Conn. 436, 449, 204 A.3d 666 (2019), cert. denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d 35 (2019).
1
Constitutional Language
We begin with the first Geisler factor, namely, the relevant constitutional text. See, e.g., Feehan v. Marcone, supra, 331 Conn. 450–51; Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 409–10, 119 A.3d 462 (2015).
The defendant argues that, because
2
Constitutional History
Neither party has cited any historical source that discusses negative perceptions of the criminal justice system or law enforcement as an unconstitutionally discriminatory ground on which to base a peremptory challenge. Although it is of limited value to our inquiry in this case, we now briefly consider the history of voir dire and peremptory challenges under the Connecticut constitution generally. See, e.g., Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 410–11. The right to a trial by jury was established in Connecticut as early as 1636. See W. Horton, The Connecticut State Constitution (2d Ed. 2012) p. 90.
“The purpose and effect of [
“[3] A juror may be challenged for suspicion of bias, or partiality, which may be either a principal challenge, or a challenge to the favour.
* * *
“Challenges to the favour, are founded merely on probable circumstances of suspicion, as particular friendship or enmity to either of the parties: and where the court has reason to think that there is such a bias or prejudice on the mind of a juror, as renders it probable there will not be a candid and fair trial, they have a discretionary power to dismiss him . . . but they ought not to indulge any unreasonable and groundless suspicion of the party.” (Emphasis added; footnotes omitted.) 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) pp. 737–38; accord State v. Griffin, supra, 251 Conn. 693–94.
Although Chief Justice Swift‘s discussion is interesting to the extent that he observes that contemplated sources of unwanted bias, justifying exclusion of a juror from service, could well include enmity toward a party to the case, the value of his insights with respect to the Batson inquiry in this case is ultimately diminished by the fact that, in his time, only landowning males were qualified to serve as jurors. See 1 Z. Swift, supra, p. 737. Thus, historical insights into the intentions of our constitutional forebears are not particularly instructive with respect to the defendant‘s state constitutional claim.
3
Federal Precedent
Federal precedent does not support the defendant‘s claim with respect to the disparate impact of a peremp-tory challenge based on a prospective juror‘s distrust of law enforcement and the criminal
4
Connecticut Precedent
The defendant begins his analysis of Connecticut precedent with well established case law from this court construing the due process protections under
As the defendant acknowledges, a line of Connecticut cases has addressed whether a prosecutor‘s reason for a peremptory challenge is race neutral if there is a disparate impact on jurors of a certain racial group. For instance, in State v. Smith, 222 Conn. 1, 14, 608 A.2d 63 (1992), cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992), this court recognized that prosecutors commonly seek to exclude from juries those individuals who have had negative interactions with law enforcement “because they fear that such people will be biased against the government.” The court “decline[d] to ascribe a racial animus to the state‘s excusal of a venireperson with an arrest record simply because that venireperson was [B]lack.” Id.; see State v. King, 249 Conn. 645, 666, 735 A.2d 267 (1999) (prosecutor‘s reasons for striking venireperson were “not motivated by discriminatory considerations” because “it was reasonable for the prosecutor to conclude that [the prospective juror‘s] concerns about the fairness of the criminal justice system might make it difficult for him to view the state‘s case with complete objectivity“); State v. Hodge, 248 Conn. 207, 231, 726 A.2d 531 (1999) (venireperson‘s past experiences with law enforcement and perception that family had been treated unfairly were race neutral reasons for state to exercise peremptory challenge), cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999); State v. Jackson, 73 Conn. App. 338, 350–51, 808 A.2d 388 (2002) (rejecting defendant‘s disproportionate impact argument against prosecutor‘s race neutral explanations), cert. denied, 262 Conn. 929, 814 A.2d 381 (2002), and cert. denied, 262 Conn. 930, 814 A.2d 381 (2002); State v. Morales, 71 Conn. App. 790, 807, 804 A.2d 902 (2002) (prospective juror‘s “negative opinion concerning police performance” was valid, nondiscriminatory reason for peremptory challenge), cert. denied, 262 Conn. 902, 810 A.2d 270 (2002).
Beyond this line of cases, this court has previously held—in a decision that the defendant asks us to overrule—that there is “nothing in the language of article first, § 8, to suggest that the meaning of the term ‘impartial jury’ in our state constitution is different from the meaning of that same term in the federal constitution—namely, a jury that is: (1) composed of individuals able to decide the case solely on the evidence and [to] apply the law in accordance with the court‘s instructions; and (2) properly selected from venire panels comprising a representative cross section of the community.” State v. Griffin, supra, 251 Conn. 691–92; see id., 708–709 (“the death qualification process” does not violate capital defendant‘s state constitutional right to impartial jury). Moreover, in discussing the purpose of voir dire leading to a challenge for cause or peremptory challenge, we have observed that, especially with respect to criminal defendants, “[i]f there is any likelihood that some prejudice is in the juror‘s mind [that] will even subconsciously affect his [or her] decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice.” (Internal quotation marks omitted.) Id., 698–99.
In asking us to overrule or limit this line of cases, the defendant relies heavily on criticisms, in recent opinions of this court and the Appellate Court, of the adequacy of Batson as a remedy for disparate impact and implicit bias within the jury selection
Notwithstanding past precedent in this state rejecting disparate impact arguments in the context of jury selection, we conclude that the state precedent factor has recently shifted in light of this court‘s resolve in Holmes to ensure the impartiality of juries by addressing the problems of implicit bias and disparate impact during jury selection. Our recent criticism of the shortcomings of the Batson process in Holmes, with concrete action taken by the formation of the Task Force, supports the conclusion that Connecticut‘s case law has squarely identified the ineffectiveness of Batson in addressing the effects of implicit bias and disparate impact on the rights of members of minority communities during the jury selection process. This concern remains salient, notwithstanding our conclusion in part I B of this opinion that the prosecutor‘s reasons for the peremptory challenges at issue in this case were not a pretext for racial discrimination.
5
Sister State Precedent
The defendant does not cite any sister state court decision that has held, as a matter of state constitutional law, that a negative perception
Some states—consistent with our decision in Holmes—have elected to address the failings of Batson through means other than construing state constitutional provisions to demand other protections. Leading the way is the Washington Supreme Court‘s decision in State v. Saintcalle, 178 Wn. 2d 34, 309 P.3d 326 (2013), cert. denied, 571 U.S. 1113, 134 S. Ct. 831, 187 L. Ed. 2d 691 (2013), which upheld “the trial court‘s finding that the prosecutor had not acted with purposeful discrimination in exercising a peremptory challenge, but also [took] the ‘opportunity to examine whether [Washington‘s] Batson procedures are robust enough to effectively combat race discrimination in the selection of juries’ . . . by convening a work group of relevant stakeholders to study the problem and [to] resolve it via the state‘s rule-making process, which is superintended by that court.” (Citation omitted.) State v. Holmes, supra, 334 Conn. 246–47. Washington‘s highest court subsequently adopted a comprehensive rule of practice, Washington General Rule 37, which eliminated Batson‘s requirement of purposeful discrimination in the use of peremptory challenges. See Wn. Gen. R. 37 (e). Instead, General Rule 37 asks only whether
Nevertheless, our independent research has revealed two recent state supreme court decisions that support the defendant‘s argument. Most recently, in State v. Andujar, supra, 247 N.J. 275, which was decided after oral argument in this appeal, the New Jersey Supreme Court, while directing a rule based, systemic remedy; see id., 317–18; also relied on the equal protection and jury trial provisions in that state‘s constitution to conclude that “implicit bias is no less real and no less problematic than intentional bias. The effects of both can be the same: a jury selection process that is tainted by discrimination.” Id., 303. The court observed: “From the standpoint of the [New Jersey] [c]onstitution, it makes little sense to condemn one form of racial discrimination yet permit another. What matters is that juries selected to hear and decide cases are chosen free from racial bias—whether deliberate or unintentional.” Id. The New Jersey court then concluded that the record demonstrated that the jury selection process in that case had been tainted by implicit bias, given the prosecutor‘s request of a criminal background check of a minority juror who had been seated the day before over the prosecutor‘s objection. Id., 312. That background check revealed that the juror had not been entirely truthful in his answers about his personal criminal history, although his criminal record would not have disqualified him from service. See id., 312–14; see also id., 308–309 (invoking supervisory authority to require “any party seeking to run a criminal history check on a prospective juror [to] first get permission from the trial court,” emphasizing that “the prosecution or defense
In State v. Jefferson, 192 Wn. 2d 225, 249, 429 P.3d 467 (2018), the Washington Supreme Court appeared to exercise its authority to provide greater protections under the state constitution and modified the Batson framework, as applied in that state, in order to render the substance of General Rule 37, adopted after that court‘s decision in State v. Saintcalle, supra, 178 Wn. 2d 34, applicable in pending appeals.26 Bearing in mind “the pervasive force of unconscious bias“; State v. Jefferson, supra, 251; the court held that “the question at the third step of the Batson framework is not whether the proponent of the peremptory strike is acting out of purposeful discrimination. Instead, the relevant question is whether ‘an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.‘” (Emphasis in original.) Id., 249. Given the objective nature of the new standard, the court also applied de novo review in determining whether race was a factor in the state‘s exercise of a peremptory challenge. Id., 249–50.
Although there is a persuasive body of recent sister state case law expressing dissatisfaction with the Batson framework in combatting implicit bias and disparate impact effects during jury selection, those cases extending state constitutional protections to this area are factually or legally distinguishable—at least at this point. First, the New Jersey and Washington constitutions considered in Andujar and Jefferson, respectively, do not have a specific guarantee of peremptory challenges like
6
Economic, Sociological, and Public Policy Considerations
“[T]he economic and sociological considerations factor . . . is in essence a public policy analysis . . . .” Fay v. Merrill, supra, 338 Conn. 50. The public
The report of the Task Force commissioned in Holmes demonstrates the present failings of the Batson framework. The report emphasizes the Task Force‘s conclusion that implicit bias and disparate impact “‘raise extremely serious concerns with respect to the public perception and fairness of the criminal justice system.‘” Jury Selection Task Force, Report of the Jury Selection Task Force to Chief Justice Richard A. Robinson (December 31, 2020) p. 19, available at https://jud.ct.gov/Committees/jury_task_force/ReportJurySelectionTaskForce.pdf (last visited March 15, 2022), quoting State v. Holmes, supra, 334 Conn. 234. The Task Force therefore proposed a new rule of practice to address the role of implicit bias and disparate impact insofar as they both contribute to the
exclusion of potential jurors on the basis of race or ethnicity, particularly with respect to the exercise of peremptory challenges.27 Jury Selection
Principles of judicial restraint counsel against this court making a sweeping constitutional pronouncement when the process of addressing the deficiencies of Batson is ongoing through the rule-making process, superintended by the Rules Committee. Cf. State v. Lockhart, 298 Conn. 537, 561, 4 A.3d 1176 (2010) (declining to impose electronic recording requirement during custodial interrogations that was not mandated by state constitution because legislature is better suited to decide policy). The Rules Committee, which has the ability to conduct hearings and to respond to the positions of the various stakeholders before recommending action by the judges of the Superior Court,28 “is charged with the responsibility of formulating rules of practice and procedure that directly control the conduct of litigation. It sets the parameters of the adjudicative process that regulates the interactions between individual litigants and the courts.” Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 246, 472 A.2d 9 (1984). On December 13, 2021, the Rules Committee voted to submit the Task Force‘s proposed rule for a public hearing prior to consideration by the judges of the Superior Court. See Rules Committee of the Superior Court, Minutes of the Meeting (December 13, 2021) p. 2, available at https://www.jud.ct.gov/Committees/rules/rules_minutes_121321.pdf (last visited March 15, 2022). Thus, although the public policy factor weighs substantially in favor of an alteration to the Batson analysis, it does not support the defendant‘s claim that such a remedy requires us to resort immediately to new constitutional standards. A restrained approach is prudent in these circumstances, particularly given the ongoing rule-making process previously set into motion by the comprehensive report and recommendation of the Task Force.
Having reviewed the relevant case law and materials revealed by our Geisler analysis, we are not prepared to conclude, on this record, that a prosecutor‘s exercise of a peremptory challenge on the basis of a venireperson‘s negative perceptions or distrust of law enforcement or the criminal justice system constitutes an impermissible, race based reason under the Connecticut constitution pursuant to the second step of the Batson inquiry. Without making any final pronouncement on the matter, or issuing a determination applicable to any and all factual scenarios involving the exercise of peremptory challenges on the basis of negative perceptions of this nature, we are disinclined on the present record to hold that greater protection is warranted under the Connecticut constitution than is provided under the existing federal Batson scheme.
B
Pretext Analysis Under the Third Prong of Batson
We now turn to the third step of the Batson inquiry to determine whether
“In evaluating pretext, the court must assess the persuasiveness of the proffered explanation and whether the party exercising the challenge was, in fact, motivated by race. . . . Thus, although an improbable explanation might pass muster under the second step, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination at the third stage of the inquiry. . . .
“We have identified several specific factors that may indicate that [a party‘s removal] of a venireperson through a peremptory challenge was . . . motivated [by race]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case . . . (2) the [party exercising the peremptory strike] 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 other jurors . . . (4) persons with the same or similar characteristics but not the same race . . . as the challenged juror were not struck . . . (5) the [party exercising the peremptory strike] advanced an
“In deciding the ultimate issue of discriminatory intent, the [court] is entitled to assess each explanation in light of all the other evidence relevant to [a party‘s] intent. The [court] 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. . . . Ultimately, the party asserting the Batson claim carries the . . . burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.) Id., 224-25.
The defendant first argues that the prosecutor‘s questioning of both N.L. and C.J. was uniquely targeted in his focus on their respective criminal histories. Specifically, concerning C.J., defense counsel argued during voir dire, echoed in the defendant‘s brief on appeal, that the prosecutor‘s questions to C.J. about his convictions and the answers in his juror questionnaire were more extensive than those posed to other jurors. In response, the state argues that the prosecutor‘s extended questioning of C.J. regarding his criminal history was a product of his incomplete juror questionnaire and the “piecemeal disclosure” of his criminal history. Similarly, the trial court noted that the questioning of C.J. was consistent with the questioning of other jurors.
We conclude that the trial court did not commit clear error in determining that the race neutral reasons proffered by the prosecutor were not a pretext for impermissible discrimination. The record demonstrates that the prosecutor asked each potential juror if they, or someone who was close to them, had ever been arrested or charged with a crime. The state further points out that each affirmative response was followed by questions regarding the details of that arrest or charge and whether it would influence that venireperson in his or her service as a juror. Although the questioning regarding C.J.‘s criminal history was more extensive, the record indicates that the more extensive questioning reflected the incomplete answers that C.J. had provided both during voir dire and in his juror questionnaire.
The defendant further points out that, of the four venirepersons who admitted to having previously been arrested, the state exercised three peremptory challenges, and the court dismissed the fourth for cause. The record does not indicate the races of those venire-persons, other than C.J. and N.L.,31 and, therefore, it does not support an inference or a pattern of the prosecutor‘s exclusion of potential jurors of a particular race. Indeed, no Batson claim was raised with respect to either of the other jurors with criminal histories excused by the prosecutor‘s peremptory challenges. Accordingly, we conclude that the trial court did not commit clear error in determining that the defendant failed to meet his burden of proving, by a preponderance of the evidence, that the jury selection process in his case was tainted by purposeful discrimination.
DOUBLE JEOPARDY CLAIMS
The defendant next claims that his right to be free from double jeopardy was violated as a result of his conviction of two counts of risk of injury to a child in violation of
We first address the appropriate standard of review. “A defendant‘s double jeopardy claim presents a question of law, over which our review is plenary. . . . The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.” (Internal quotation marks omitted.) State v. Porter, 328 Conn. 648, 654-55, 182 A.3d 625 (2018).
“Double jeopardy analysis in the context of a single trial is a [two step] process, and, to succeed, the defendant must satisfy both steps. . . . First, the charges must arise out of the same act or transaction [step one]. Second, it must be determined whether the charged crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met. . . . At step two, we [t]raditionally . . . have applied the Blockburger test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [When] the same act or transaction constitutes a violation
For purposes of the present analysis, we assume, without deciding, that step one of the Blockburger analysis is met, that is, that the state alleged in its information that the offenses in question arose from the same act or transaction. We therefore turn to the defendant‘s argument under step two, that is, that risk of injury to a child is a lesser included offense of sexual assault in the first and fourth degrees.
“Our case law has been consistent and unequivocal” that the second step of Blockburger “is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial.” (Internal quotation marks omitted.) State v. Porter, supra, 328 Conn. 656; see, e.g., State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013). When conducting this analysis, “we are concerned with theoretical possibilities, and do not focus on the evidence presented.” (Internal quotation marks omitted.) State v. Mezrioui, 26 Conn. App. 395, 403-404, 602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d 169 (1992).
The defendant argues that, notwithstanding the distinct elements of each offense charged, risk of injury to a child is a lesser included offense of sexual assault in the first and fourth degrees because of how each charge was alleged in the information. We recently rejected this argument in State v. Tinsley, supra, 340 Conn. 425. In Tinsley, we clarified that “the ‘manner described in the information’ is relevant in determining whether one crime is a lesser included offense of another only to the extent the reviewing court is consulting the information in order to determine whether it alleges distinct elements for each offense, rather than to determine the particular factual predicate of the case.” Id., 442. Therefore, we now consider the elements of each charge and consider whether each contains an element that the other does not.
In the present case, the defendant was convicted of first degree sexual assault in violation of
“Our courts have addressed the relationship between risk of injury to a child and the various degrees of sexual assault in the context of double jeopardy claims on several occasions, each time concluding that the two crimes do not constitute the same offense“; State v. Alvaro F., supra, 291 Conn. 7; and we decline to come to a different conclusion in the present case.33 See id., 9 (convictions of risk of injury to child and fourth degree sexual assault did not violate prohibition against double jeopardy); State v. Bletsch, supra, 281 Conn. 28-29 (sexual assault in second degree and risk of injury to child are not same offense because language of two statutes makes it possible to have “sexual intercourse” under
Sexual assault in the first degree in violation of
“Our analysis of [the defendant‘s] double jeopardy [claim] does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling [when], for example, there is a clear indication of contrary legislative intent. Thus, the Blockburger test creates only a rebuttable presumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest. . . . When the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary.” (Internal quotation marks omitted.) State v. Schovanec, 326 Conn. 310, 326, 163 A.3d 581 (2017); see State v. Tinsley, supra, 340 Conn. 445-46. The defendant in the present case, however, does not argue that the legislature intended to treat
The judgment is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim‘s identity may be ascertained. See
1 The defendant appeals directly to this court pursuant to
2
Although
3 Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
4 The victim testified that the defendant forcibly kissed her, put his tongue inside her mouth and on her vagina, attempted, but failed, to insert his penis in her vagina, touched her breasts and her outer vaginal area, and made her touch his penis.
5
Section 53a-70 was amended by No. 02-138, § 5, of the 2002 Public Acts and No. 15-211, § 16, of the 2015 Public Acts. Those amendments made certain changes to the statute that are not relevant to this appeal. In the interest of simplicity, we refer to the current revision of the statute.
6
All references to
7
Notes
“(b) Scope; Appellate Review. The rule applies to all parties in all jury trials. The denial of an objection to a peremptory challenge made under this rule shall be reviewed by an appellate court de novo, except that the trial court‘s express factual findings shall be reviewed under a clearly erroneous standard. The reviewing court shall not impute to the trial court any findings, including findings of the prospective juror‘s demeanor, which the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given and shall not speculate as to, or consider reasons, that were not given to explain either the party‘s use of the peremptory challenge or the party‘s failure to challenge similarly situated jurors, who are not members of the same protected group as the challenged juror. Should the reviewing court determine that the objection was erroneously denied, then the error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.
“(c) Objection. A party may object to the use of a peremptory challenge to raise a claim of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the prospective juror.
“(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reason that the peremptory challenge has been exercised.
“(e) Determination. The court shall then evaluate from the perspective of an objective observer, as defined in section (f) herein, the reason given to justify the peremptory challenge in light of the totality of the circumstances. If the court determines that the use of the challenge against the prospective juror, as reasonably viewed by an objective observer, legitimately raises the appearance that the prospective juror‘s race or ethnicity was a factor in the challenge, then the challenge shall be disallowed and the prospective juror shall be seated. If the court determines that the use of the challenge does not raise such an appearance, then the challenge shall be permitted and the prospective juror shall be excused. The court need not find purposeful discrimination to disallow the peremptory challenge. The court must explain its ruling on the record. A party whose peremptory challenge has been disallowed pursuant to this rule shall not be prohibited from attempting to challenge peremptorily the prospective juror for any other reason, or from conducting further voir dire of the prospective juror.
“(f) Nature of Observer. For the purpose of this rule, an objective observer (1) is aware that purposeful discrimination, and implicit, institutional, and unconscious biases, have historically resulted in the unfair exclusion of potential jurors on the basis of their race, or ethnicity; and (2) is deemed to be aware of and to have given due consideration to the circumstances set forth in section (g) herein.
“(g) Circumstances considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following: (i) the number and types of questions posed to the prospective juror including consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the questions asked about it; (ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the prospective juror, unrelated to his testimony, than were asked of other prospective jurors; (iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party; (iv) whether a reason might be disproportionately associated with a race or ethnicity; (v) if the party has used peremptory challenges disproportionately against a given race or ethnicity in the present case, or has been found by a court to have done so in a previous case; (vi) whether issues concerning race or ethnicity play a part in the facts of the case to be tried; (vii) whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record.
“(h) Reasons Presumptively Invalid. Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Connecticut or maybe influenced by implicit or explicit bias, the following are presumptively invalid reasons for a peremptory challenge: (i) having prior contact with law enforcement officers; (ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (iv) living in a high-crime neighborhood; (v) having a child outside of marriage; (vi) receiving state benefits; (vii) not being a native English speaker; and (viii) having been a victim of a crime. The presumptive invalidity of any such reason may be overcome as to the use of a peremptory challenge on a prospective juror if the party exercising the challenge demonstrates to the court‘s satisfaction that the reason, viewed reasonably and objectively, is unrelated to the prospective juror‘s race or ethnicity and, while not seen by the court as sufficient to warrant excusal for cause, legitimately bears on the prospective juror‘s ability to be fair and impartial in light of particular facts and circumstances at issue in the case.
“(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection: allegations that the prospective juror was inattentive, failing to make eye contact or exhibited a problematic attitude, body language, or demeanor. If any party intends to offer one of these reasons or a similar reason as a justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A party who intends to exercise a peremptory challenge for reasons relating to those listed above . . . shall, as soon as practicable, notify the court and the other party in order to determine whether such conduct was observed by the court or that party. If the alleged conduct is not corroborated by observations of the court or the objecting party, then a presumption of invalidity shall apply but may be overcome as set forth in subsection (h).
“(j) Review Process. The chief justice shall appoint an individual or individuals to monitor issues relating to this rule.” Jury Selection Task Force, supra, pp. 16-18.