State v. Raynor ( 2019 )

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STATE OF CONNECTICUT v. JAMES RAYNOR
(SC 20042)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
Convicted, after a jury trial, of the crimes of assault in the first degree as
an accessory and conspiracy to commit assault in the first degree, the
defendant, an African-American, appealed to the Appellate Court, claim-
ing that the prosecutor engaged in racially disparate treatment during
jury selection, in violation of Batson v. Kentucky (476 U.S. 79), by
excusing a prospective juror, R, on the basis of his employment history,
even though the prosecutor accepted two other venirepersons, I and G,
whom the defendant claimed were nonminority venirepersons with work
restrictions similar to those of R. The Appellate Court affirmed the
judgment of the trial court and concluded that the record was inadequate
to review the defendant’s unpreserved Batson claim because, inter alia,
the transcripts of the voir dire did not indicate the racial composition
of the empaneled jury. The Appellate Court also found that, although
the trial court had, sua sponte, remarked that R was not the same race
as the defendant, there was nothing in the record to indicate the race
or ethnicity of either R or I, and, without that information, the court
could not engage in a disparate treatment analysis under Batson. On
the granting of certification, the defendant appealed to this court. Held
that the defendant could not prevail on his claim that the Appellate
Court incorrectly concluded that the failure of the record to indicate
the racial composition of the empaneled jury rendered it inadequate to
review his Batson claim: this court adopted the Appellate Court’s well
reasoned opinion as a proper statement of the certified issue and the
applicable law concerning that issue and, accordingly, affirmed the
Appellate Court’s judgment; moreover, this court agreed with the state’s
alternative ground for affirmance that the trial court’s finding that the
prosecutor did not commit purposeful discrimination in exercising a
peremptory challenge to strike R was not clearly erroneous; furthermore,
with respect to the defendant’s request that this court exercise its super-
visory authority over the administration of justice to require that pro-
spective jurors identify their race prior to jury selection, this court
anticipated that such a proposal would be addressed by the Jury Selec-
tion Task Force that the Chief Justice will appoint, pursuant to this
court’s decision in the companion case of State v. Holmes (334 Conn.
), to suggest changes to court rules, policies, and legislation necessary
to ensure that Connecticut juries are representative of the state’s
diverse population.
Argued January 16—officially released December 24, 2019
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree as an accessory
and conspiracy to commit assault in the first degree,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before Mullarkey, J.;
verdict and judgment of guilty, from which the defen-
dant appealed to the Appellate Court, DiPentima,
C. J., and Sheldon and Flynn, Js., which affirmed the
trial court’s judgment, and the defendant, on the grant-
ing of certification, appealed to this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
PER CURIAM. The defendant, James Raynor,
appeals, upon our grant of his petition for certification,1
from the judgment of the Appellate Court affirming his
conviction, rendered after a jury trial, of assault in the
first degree as an accessory in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-8, and conspiracy to
commit assault in the first degree in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-48. State v. Raynor,
175 Conn. App. 409, 412–13, 167 A.3d 1076 (2017). On
appeal, the defendant claims that the Appellate Court
incorrectly concluded that that the record was inade-
quate to review his challenge under Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to
the prosecutor’s exercise of a peremptory challenge on
prospective juror R.E.2 on the basis of his employment
history, even though the record does not indicate the
race or ethnicity of both R.E. and one of the two jurors,
I.L. and G.H., whom the defendant highlighted as exam-
ples of disparate treatment by the prosecutor. In
response, the state disagrees and also proffers, as an
alternative ground for affirmance, that the trial court
did not commit clear error in finding that the prosecutor
did not engage in purposeful discrimination when he
peremptorily challenged R.E. We affirm the judgment
of the Appellate Court.
The Appellate Court’s opinion sets forth the following
relevant facts and procedural history. ‘‘Jury selection
occurred over the course of two days, October 30 and
31, 2014. On the first day of jury selection, the parties
conducted voir dire of a prospective juror, R.E. Prior
to defense counsel’s questioning of R.E., the court
inquired as to whether R.E. would suffer any financial
hardship by participating in jury duty. In response, R.E.
initially informed the court that, although he worked
part-time, his shift began at 4:30 p.m. and . . . his job
was within walking distance of the courthouse. The
court then asked R.E. to contact his employer to deter-
mine whether he would be compensated for any work
he missed or, alternatively, whether he would be able
to begin his shift after 5 p.m. After speaking with his
employer, R.E. stated that, if he were selected to serve,
he would be able to start his shifts after the court had
adjourned for the day, and thus he had no financial
concerns about being selected as a juror.
‘‘Thereafter, defense counsel questioned R.E. as to
whether he could keep an open mind, determine which
witnesses were credible, follow the court’s instructions
on the law, and engage in a free exchange of ideas with
his fellow jurors during deliberations. R.E. answered
in the affirmative to each of these questions. Thereafter,
the following colloquy occurred during the prosecutor’s
voir dire of R.E.:
‘‘ ‘[The Prosecutor]: . . . You’re from Hartford?
‘‘ ‘[R.E.]: Yes.
‘‘ ‘[The Prosecutor]: You haven’t heard anything about
this incident—
‘‘ ‘[R.E.]: No, sir.
‘‘ ‘[The Prosecutor]: —which was presented to you?
None of the names that were listed to you sounded
familiar—
‘‘ ‘[R.E.]: No, sir.
‘‘ ‘[The Prosecutor]: —anything like that? So, you’re
[employed] at Easter Seals. You’ve been there for how
long? You said about four years?
‘‘ ‘[R.E.]: Four years.
***
‘‘ ‘[The Prosecutor]: Have you ever had anyone close
to you, friends, family members, anyone like that, that
has been the victim of a crime?
‘‘ ‘[R.E.]: No, sir.
‘‘ ‘[The Prosecutor]: And if you were to hear informa-
tion about drugs within this trial, do you think you
could still consider that information and make your
decisions or would you be turned off by that?
‘‘ ‘[R.E.]: I could still make my decision.
‘‘ ‘[The Prosecutor]: Okay. Still be open-minded and
consider all the information—
‘‘ ‘[R.E.]: Yes.
‘‘ ‘[The Prosecutor]: —presented?
‘‘ ‘[R.E.]: Yes, sir.
‘‘ ‘[The Prosecutor]: Is there anything either of us
have left out that you think would—would be important
to tell us about your ability to sit here as a juror?
‘‘ ‘[R.E.]: No, sir.
‘‘ ‘[The Prosecutor]: Great. Thanks for your time.’
‘‘Thereafter, R.E. exited the courtroom, and the fol-
lowing colloquy occurred:
‘‘ ‘[Defense Counsel]: Accepted.
‘‘ ‘[The Prosecutor]: Excused.
‘‘ ‘[Defense Counsel]: Your Honor, I would ask for a
gender or a race neutral explanation or basis.
‘‘ ‘[The Prosecutor]: Should I give one?
‘‘ ‘[The Court]: Yes.
‘‘ ‘[The Prosecutor]: It would be his employment his-
tory, Your Honor, and just basically his sense of secu-
rity. I do have concerns also that he’s from Hartford,
although he did indicate that he knew nothing about
the offense.
‘‘ ‘[Defense Counsel]: Your Honor, if I may. We have
two Caucasian women on the panel at this point in
time. He answered all the questions, in my view at least,
and I think counsel would agree, honestly. He didn’t
express any reservations about security. Being from
Hartford is not a bar to be in this case. He did not
express any familiarity with the case. I think he
answered all the questions right. I think he’s got a right
to serve on this panel.
‘‘ ‘[The Prosecutor]: I think I presented a race neutral
reason, Your Honor. It’s my prerogative. I don’t
believe—or I’ve indicated to the court that I am not
excusing him based on his race.
‘‘ ‘[The Court]: His work history?
‘‘ ‘[The Prosecutor]: Yes.
‘‘ ‘[The Court]: All right. He’s excused.’
‘‘R.E. was then summoned to the courtroom and
informed that he had been excused. After R.E. had been
dismissed, the court, sua sponte, stated: ‘I would note
that [R.E.] is not the same race as the defendant, Afri-
can-American.’
‘‘Later that afternoon, the court asked defense coun-
sel whether he wanted to offer any rebuttal to the [pros-
ecutor’s] race neutral explanation for using its peremp-
tory challenge to strike R.E. In response, defense
counsel stated: ‘Well, I mean the idea that his employ-
ment, because he was freelancing, and the idea that he
was still working, these are tough times, there was
nothing extraordinary about being a freelancer. I meant
that the record speaks for itself. I didn’t hear anything
extraordinary, like, he’d been a victim of a crime or
had a brother incarcerated or had been harassed by the
police or all the things that you typically hear from . . .
individuals who . . . live in the city. His answers were
. . . for lack of a better word, you know, correct, either
posed by me or by counsel. So, no, I guess . . . I don’t
really have a rebuttal because I think the record . . .
that’s . . . kind of the point, the record speaks for
itself.’ ’’ (Footnote omitted.) State v. Raynor, supra, 175
Conn. App. 454–58.
On appeal, the Appellate Court rejected the defen-
dant’s claim that the prosecutor had violated Batson
in exercising a peremptory challenge on R.E. because
his race neutral explanation was a pretext for discrimi-
nation. Id., 458–59. The Appellate Court further dis-
agreed with the defendant’s argument that the ‘‘[prose-
cutor’s] willingness to accept two other venirepersons,
I.L. and G.H.—both of whom the defendant claims were
nonminority venirepersons who also held part-time
jobs—demonstrates that the [prosecutor’s] peremptory
challenge as to R.E. was racially motivated.’’ Id., 458.
The Appellate Court concluded that this claim of dispa-
rate treatment was unpreserved and unreviewable
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), because ‘‘the transcripts of the voir dire do
not indicate the racial composition of the empaneled
jury’’ or support the ‘‘defendant’s assertion that there
are adequate facts of record to demonstrate that the
[prosecutor] engaged in racially disparate treatment by
accepting both I.L. and G.H., whom the defendant
claims were nonminority venirepersons with work
restrictions similar to R.E.’s. First, although the court
expressly noted that R.E. was not of the same race as the
defendant, there is nothing in the record demonstrating
R.E.’s personal race or ethnicity. . . . Second, the state
correctly recognizes a similar lack of facts regarding
I.L.’s race. Without such information, [the court] cannot
engage in an analysis of disparate treatment between
I.L. and R.E.’’ (Citation omitted; emphasis in original.)
State v. Raynor, supra, 175 Conn. App. 458–59; see
id., 459 (‘‘[a]bsent such necessary facts of record, we
decline to reach the merits of the defendant’s claim’’).
Accordingly, the Appellate Court affirmed the judgment
of the trial court. Id., 459. This certified appeal followed.
See footnote 1 of this opinion.
On appeal, the defendant claims that the Appellate
Court incorrectly concluded that the failure of the
record to indicate the racial composition of the empan-
eled jury rendered it inadequate to review his Batson
claim, to the extent that it was founded on the prosecu-
tor’s disparate treatment of R.E. relative to I.L. and
G.H. We disagree. To the contrary, we believe that the
Appellate Court’s well reasoned opinion fully addresses
and properly resolves the certified issue. It would serve
no purpose for us to repeat the discussion contained
therein. We therefore adopt the Appellate Court’s opin-
ion as the proper statement of the issue and the applica-
ble law concerning that issue. See, e.g., Griswold v.
Camputaro, 331 Conn. 701, 711, 207 A.3d 512 (2019);
Brenmor Properties, LLC v. Planning & Zoning Com-
mission, 326 Conn. 55, 62, 161 A.3d 545 (2017).
Beyond affirming the judgment of the Appellate
Court, we offer three additional observations. First,
although we have expressed concerns about the
existing Batson inquiry, it remains controlling at this
time, and we agree with the state’s proffered alternative
ground for affirmance that the trial court did not commit
clear error in finding, under the third step of Batson,
that the prosecutor did not commit purposeful discrimi-
nation in peremptorily challenging R.E. See, e.g., State
v. Edwards, 314 Conn. 465, 493–97, 102 A.3d 52 (2014);
see also State v. Holmes, 334 Conn. , , A.3d
(2019) (discussing, inter alia, Batson’s failure to
address implicit bias and enforceability issues created
by purposeful discrimination requirement).
Second, with respect to the trial court’s sua sponte
observation that the defendant and R.E. are not the
same race; see State v. Raynor, supra, 175 Conn. App.
457; we emphasize that this fact does not affect the
defendant’s right to seek relief under Batson because,
in ‘‘Powers v. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364,
113 L. Ed. 2d 411 (1991), the United States Supreme
Court extended the Batson principle to prohibit the use
of racially motivated peremptory challenges irrespec-
tive of the race of the defendant.’’3 State v. Hodge, 248
Conn. 207, 252–53, 726 A.2d 531, cert. denied, 528 U.S.
969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999); see, e.g.,
State v. Rigual, 256 Conn. 1, 8, 771 A.2d 939 (2001)
(Hispanic defendant had standing to raise Batson claim
to challenge exclusion of Portuguese venireperson).
Finally, the defendant seeks to have this court ‘‘exer-
cise its supervisory authority to require that prospective
jurors identify their race’’ prior to the jury selection
process. The defendant argues that the optional disclo-
sure of race presently required on the juror question-
naires promulgated pursuant to General Statutes § 51-
232 (c)4 renders it ‘‘impossible’’ to meet an apparent
precondition to review of a Batson claim that the record
reveal the ‘‘racial composition of the venire and empan-
eled jury . . . .’’ As counsel suggested in colloquy at
oral argument before this court, in the absence of volun-
tary disclosure by the prospective juror, improving the
record of the racial composition of the venire or empan-
eled jury might well better facilitate the resolution of
Batson claims, many of which are supported by a com-
parative analysis that goes beyond the voir dire of the
challenged juror. See, e.g., State v. Edwards, supra, 314
Conn. 496. The extent to which such disclosure should
be required, however, raises significant administrative
and public policy questions in an area in which our
legislature has acted by enacting § 51-232 (c), particu-
larly given the potentially difficult intersection of a
juror’s racial self-identification with the striking attor-
ney’s perception of that juror.5 See E. Margolis, Note,
‘‘Color as a Batson Class in California,’’ 106 Calif. L.
Rev. 2067, 2088 (2018) (‘‘[Arguing that] [r]ecognition of
color as a distinct cognizable class may aid in establish-
ing an operational alternative to race’’ because ‘‘[r]acial
complexity challenges the basic Batson framework’’
insofar as ‘‘[n]o [bright line] rule exists to guide trial
courts as to how to categorize mixed-race prospective
jurors for Batson purposes: if a person’s physical
appearance and self-identified race or ethnicity do not
match attorneys’ or the trial judge’s assumptions, whose
definition controls? If a prospective juror identifies as
belonging to multiple racial groups, in which of those
groups may they be placed for making Batson motions
and rulings?’’). These exchanges at oral argument are
part of the ongoing, robust discussions about the effi-
cacy of Batson in addressing discrimination during the
jury selection process, particularly when accounting for
unconscious or implicit bias. We thank counsel for their
thoughtful contributions to these discussions, which
we expect will inform the work of the Jury Selection
Task Force that the Chief Justice will appoint pursuant
to our decision in State v. Holmes, supra, 334 Conn. ,
to suggest those changes to court rules, policies, and
legislation necessary to ensure that our state court
juries are representative of Connecticut’s diverse popu-
lation.
The judgment of the Appellate Court is affirmed.
1
We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly conclude that
the record’s failure to indicate the racial composition of the venire or the
empaneled jury rendered the record inadequate for review of the defendant’s
claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986)?’’ State v. Raynor, 327 Conn. 969, 173 A.3d 952 (2017).
We note that the state asks us to rephrase the certified question because
it does not accurately reflect the holding of the Appellate Court, the analysis
of which focused only on the jurors that had been empaneled and did not
discuss the venire as a whole. See State v. Raynor, 175 Conn. App. 409,
458–59, 167 A.3d 1076 (2017). ‘‘After hearing the parties and considering the
case more fully, we conclude that the certified question [must be rephrased
as it] does not properly frame the issues presented in the appeal because
it inaccurately reflects the holding of the Appellate Court.’’ In re Jacob W.,
330 Conn. 744, 747 n.1, 200 A.3d 1091 (2019); see Stamford Hospital v. Vega,
236 Conn. 646, 656, 674 A.2d 821 (1996). Accordingly, we rephrase the
certified question to eliminate the reference to the venire.
2
‘‘In accordance with our usual practice, we identify jurors by initial in
order to protect their privacy interests.’’ State v. Berrios, 320 Conn. 265,
268 n.3, 129 A.3d 696 (2016).
3
Nevertheless, the overall racial composition of the empaneled jury is
one of several nondispositive factors that the court may consider under
the third step of Batson, namely, determining whether the race neutral
explanation proffered by the attorney exercising the peremptory challenge
under the second step of Batson was a pretext for purposeful discrimination.
See, e.g., State v. Hodge, 248 Conn. 207, 260, 726 A.2d 531 (The court
rejected the defendant’s claim of pretext because, ‘‘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. . . . [T]he 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 venirepersons.’’), cert.
denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999); State v. Smith,
222 Conn. 1, 13, 608 A.2d 63 (noting that ‘‘the panel ultimately chosen
contained three black jurors and one black alternate’’ and stating that,
‘‘[a]lthough the racial composition of the jury impaneled is certainly not
dispositive of the issue, since the striking of even one juror on the basis of
race violates the equal protection clause, even when other jurors of the
defendant’s race were seated . . . it is a factor that we must consider in
assessing the prosecutor’s explanation’’ [citation omitted; internal quotation
marks omitted]), cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d
293 (1992); see also State v. Edwards, supra, 314 Conn. 496 (The court
concluded that there was no evidence of discrimination or disparate treat-
ment in the prosecutor’s use of peremptory challenges and observed that
‘‘[t]here were twenty-three venirepersons, six of whom were selected to
serve on the jury and two of whom were selected as alternate jurors. It is
unclear how many of the selected jurors were racial minorities, but the
record reveals that at least one was African-American. There also is no
evidence that other, nonminority jurors answered the juror questionnaire
in an unusual way or were treated differently.’’).
4
General Statutes § 51-232 (c) provides: ‘‘The Jury Administrator shall
send to a prospective juror a juror confirmation form and a confidential
juror questionnaire. Such questionnaire shall include questions eliciting the
juror’s name, age, race and ethnicity, occupation, education and information
usually raised in voir dire examination. The questionnaire shall inform the
prospective juror that information concerning race and ethnicity is required
solely to enforce nondiscrimination in jury selection, that the furnishing of
such information is not a prerequisite to being qualified for jury service and
that such information need not be furnished if the prospective juror finds
it objectionable to do so. Such juror confirmation form and confidential
juror questionnaire shall be signed by the prospective juror under penalty
of false statement. Copies of the completed questionnaires shall be provided
to the judge and counsel for use during voir dire or in preparation therefor.
Counsel shall be required to return such copies to the clerk of the court
upon completion of the voir dire. Except for disclosure made during voir
dire or unless the court orders otherwise, information inserted by jurors
shall be held in confidence by the court, the parties, counsel and their
authorized agents. Such completed questionnaires shall not constitute a
public record.’’
5
We note that the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq.,
which governs jury selection in the federal court system, requires that juror
questionnaires elicit information about a prospective juror’s race, but—
similar to § 51-232 (c)—also provides that such questionnaires must advise
the prospective juror that ‘‘the furnishing of any information with respect
to his religion, national origin, or economic status is not a prerequisite to
his qualification for jury service, that such information need not be furnished
if the person finds it objectionable to do so, and that information concerning
race is required solely to enforce nondiscrimination in jury selection and
has no bearing on an individual’s qualification for jury service.’’ 28 U.S.C.
§ 1869 (h) (2012). One federal District Court has suggested maximizing
responses to the race inquiry on the questionnaire by moving the advisory
about its use in preventing nondiscrimination to a more prominent location.
See United States v. Hernandez-Estrada, Docket No. 10CR0558 BTM, 2011
WL 1119063, *10 (S.D. Cal. March 25, 2011) (‘‘[m]oving the instructions to
the front of the form would potentially increase the response rate because
people might be more willing to provide information regarding race/ethnicity
if it is made clear that such information is required for beneficial purposes,
not to invade privacy or collect meaningless data’’), aff’d, 704 F.3d 1015 (9th
Cir. 2012), aff’d en banc, 749 F.3d 1154 (9th Cir. 2014), cert. denied,
U.S. , 135 S. Ct. 709, 190 L. Ed. 2d 445 (2014).