State v. Edwards ( 2014 )

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STATE v. EDWARDS—CONCURRENCE
PALMER, J., with whom McDONALD, J., joins, con-
curring in the judgment. I agree with the majority that
the conviction of the defendant, Michael Anthony
Edwards, should be affirmed. In particular, I agree that
the defendant has failed to establish that the trial court
was required to find that the prosecutor’s use of a
peremptory challenge to strike venireperson C.D. vio-
lated the constitutional proscription against racial dis-
crimination in the jury selection process.1 I disagree
with the majority, however, with respect to its conclu-
sion in part I of its opinion, that we may not consider
certain supplemental authority that the defendant fur-
nished to this court in accordance with Practice Book
§ 67-10,2 namely, a recent National Geographic article
entitled ‘‘The Changing Face of America.’’3
The facts and procedural history relevant to this issue
are not in dispute. During the prosecutor’s voir dire
examination of C.D., he observed that C.D., in response
to a question in the confidential juror questionnaire,
had identified her race as ‘‘human.’’ The prosecutor
asked C.D., who apparently is a person of color, ‘‘[w]hy
did you do that?’’ C.D. responded: ‘‘Because that is the
race that I belong to.’’ After both the prosecutor and
defense counsel had completed their questioning of
C.D., the prosecutor exercised a peremptory challenge
against C.D. Defense counsel objected, claiming that
the prosecutor appeared to have done so on account
of impermissible racial considerations. The prosecutor
replied that C.D.’s ‘‘response to the race [question] as
human—I found that to be of concern to me because
it seemed outside the norm of what one would expect
to have placed in a questionnaire box, and I just found
that to be disconcerting and didn’t think that someone
who would fill in . . . a line like that would necessarily
be appropriate to serve as a juror. So that was one of
the reasons . . . for not selecting her. I just was struck
by that response as being unusual.’’ The prosecutor
continued: ‘‘I’m not saying it’s wrong or anything. I
just—that drew a red flag . . . with respect to her ques-
tionnaire, so that would be the primary basis for it
. . . .’’ Defense counsel observed that the race question
‘‘probably shouldn’t even be on the form,’’ and then
stated that, in his view, C.D.’s answer to the question
on race was ‘‘appropriate . . . .’’ The prosecutor
responded that his use of a peremptory challenge
against C.D. had ‘‘nothing to do necessarily with the race
of the venire[person]. It has to do with [her] response to
the questionnaire, which struck me as odd given the
fact that—and I can state this for the record, Your
Honor—having picked a number of jurors in my life-
time, I’ve never seen that done before, and it just struck
me . . . as so odd as to stand out, and [it] raised a red
flag with me. I don’t know that the response is correct
or incorrect; it’s just something that I found to be odd,
and, for that reason . . . I decided not to select this
person as a juror.’’ Defense counsel responded in part
that ‘‘we really are one human race . . . . I don’t think
it’s that odd of a response.’’
At that point, the trial court, after observing that the
prosecutor had not exhibited any ‘‘pattern of exclud-
[ing] . . . all jurors’’ of C.D.’s race, stated as follows:
‘‘[T]he court is going to conclude that, based on the
court’s experience, it is . . . somewhat of an unusual
response to that question. Whether or not that [ques-
tion] should be on the questionnaire . . . as [defense
counsel] points out, it is on the questionnaire, it is asked
. . . and we will certainly make the questionnaire a
court exhibit in this case, but, in fact, as the prosecutor
points out, [C.D.] did write [‘human’] on the form, and,
in the court’s experience, that is somewhat unusual.
So, I am going to find that that’s a nondiscriminatory
explanation for exercising that peremptory challenge
and overrule the objection. . . . So, she will be
excused.’’
On appeal to this court, the defendant claims that
the trial court improperly overruled defense counsel’s
objection to the state’s use of a peremptory challenge
to excuse C.D. because the prosecutor ‘‘zeroed in on
C.D.’s response on the race line of the questionnaire’’;
(emphasis in original); and, in so doing, improperly
predicated his challenge on C.D.’s race in violation of
the equal protection clause of the federal constitution.
Alternatively, the defendant asserts that we should
exercise our supervisory authority over the administra-
tion of justice ‘‘in jury selection, as [this court] has
done before4 . . . to preclude the use of racial self-
identification as a ground for a peremptory challenge
and to order a new trial in this case.’’ (Citations omitted;
footnote added.) According to the defendant, a new trial
is warranted because, contrary to the state’s contention,
the manner in which C.D. chose to identify herself in
regard to race is not odd or unusual but, rather, exempli-
fies an emerging new approach to racial self-identifica-
tion among many persons of color, and, because this
mode of self-identification relates to race, it is not a
proper basis for excluding a venireperson from jury
service. In support of his contention, the defendant
cites to numerous articles and social science studies
that demonstrate how changes in popular attitudes
about race are reflected in the different ways in which
people identify themselves with respect to race.5 The
state maintains that the prosecutor’s use of a peremp-
tory challenge against C.D. was proper because ‘‘[i]t
was C.D.’s idiosyncratic answer to the race question,
and not C.D.’s race, that triggered the prosecutor’s exer-
cise of [the] peremptory challenge.’’ The state, however,
did not object to any of the articles or studies cited by
the defendant; instead, the state simply ignored them,
essentially treating them as irrelevant to the issue of
whether the trial court properly concluded that the
prosecutor’s decision to exercise a peremptory chal-
lenge to excuse C.D. was not racially motivated.
After the parties filed their briefs in this court but
before oral argument, the defendant, pursuant to Prac-
tice Book § 67-10, submitted a National Geographic arti-
cle entitled ‘‘The Changing Face of America.’’ See
footnote 3 of this opinion. Like many of the articles on
which the defendant relied in his briefs, the National
Geographic article focuses on the fact that more and
more people, like the multiracial persons who are dis-
cussed in the article, identify themselves differently
than in the past. See L. Funderburg, ‘‘The Changing
Face of America,’’ National Geographic, October, 2013,
pp. 83–87 (‘‘The [United States] Census Bureau is aware
that its racial categories are flawed instruments, dis-
avowing any intention ‘to define race biologically,
anthropologically, or genetically.’ And indeed, for most
multiple-race Americans, including the people pictured
[in this article], identity is a highly nuanced concept,
influenced by politics, religion, history, and geography,
as well as by how the person believes the answer will
be used. . . . In today’s presumably more accepting
world, people with complex cultural and racial origins
become more fluid and playful with what they call them-
selves.’’). Thus, for example, one individual depicted in
the article, who identifies herself as ‘‘black’’ for census
purposes, self-identifies as ‘‘biracial/‘human being’
. . . .’’ Id., p. 84. The state did not file an objection
or other response to the defendant’s submission. Two
weeks after the submission was filed, however, this
court, sua sponte, ordered that the parties ‘‘file simulta-
neous statements addressing whether the [National
Geographic] article . . . is appropriate authority for
submission pursuant to Practice Book § 67-10.’’ In its
statement, the state argued that the submission was
improper; the defendant expressed the contrary view
in his statement. This court elected not to act on the
issue until after oral argument.
The majority now concludes, first, that the National
Geographic article probably would not qualify as sup-
plemental ‘‘authority’’ under Practice Book § 67-10
‘‘because it certainly is not legal authority, as it is not
a judicial or administrative decision; nor is it a treatise,
annotation, or law review article.’’ Footnote 13 of the
majority opinion. The majority states that it need not
decide definitively whether the article constitutes
‘‘authority’’ for purposes of § 67-10, because it is inap-
propriate for appellate courts to consider evidence that
was not available to the trial court in order to conclude
that the trial court’s factual findings were clearly errone-
ous. In support of this conclusion, the majority, quoting
Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085
(1977), explains that ‘‘[t]his court has previously distin-
guished between legislative facts . . . which help
determine the content of law and policy, and adjudica-
tive facts . . . concerning the parties and events of a
particular case. . . . Legislative facts may be judicially
noticed without affording the parties an opportunity to
be heard, but adjudicative facts, at least if central to
the case, may not.’’ (Citation omitted; internal quotation
marks omitted.) According to the majority, because the
article consists largely of ‘‘anecdotal material drawn
from interviews with multiracial individuals who
describe what they think about their identities,’’ and
pertains to the ‘‘factual question’’ of whether C.D.’s
response to the question of race in the juror question-
naire was unusual, this court may not properly con-
sider it.
Although I agree with the majority that the defendant
cannot prevail on either his constitutional claim or his
supervisory authority claim,6 I do not agree with the
majority’s analysis or conclusion with respect to the
National Geographic article. First, I agree with the
defendant that ‘‘[a]nything [that] would be appropriate
to cite in [a party’s] brief is appropriate to bring to the
court’s attention [pursuant to] Practice Book § 67-10.’’
As I explain more fully hereinafter, the National Geo-
graphic article would have been appropriate to include
in the defendant’s brief, and, consequently, it is appro-
priate supplemental authority under § 67-10. Indeed, as
I previously noted, the defendant’s initial brief and reply
brief contain numerous references to similar articles;
see footnote 5 of this opinion; and neither the state nor
this court has questioned the propriety of the defen-
dant’s reliance on them.7
I believe that the National Geographic article is appro-
priate authority for this court to consider for several
reasons. First, the explanation that the prosecutor gave
for exercising the peremptory challenge against C.D.
was itself anecdotal in the sense that it was based solely
on his personal experience in examining prospective
jurors. Specifically, the prosecutor explained that he
was uncomfortable with having C.D. serve as a juror
because, in his experience, her response to the question
about race in the jury questionnaire was ‘‘outside the
norm,’’ ‘‘unusual,’’ and ‘‘odd . . . .’’ Defense counsel’s
reply was similarly anecdotal: in his subjective view,
the prosecutor’s reason for striking C.D. was inadequate
because C.D.’s response in the juror questionnaire was
neither inappropriate nor odd or peculiar. Finally, the
trial court rejected defense counsel’s argument that the
prosecutor’s use of the challenge was a pretext for
discrimination on the basis of the court’s own observa-
tion that, ‘‘in the court’s experience, [C.D.’s response
was] somewhat unusual.’’
In such circumstances, when the propriety of the
prosecutor’s conduct in striking a prospective juror
depends entirely on anecdotal or subjective observa-
tions or considerations, I do not see why it is improper
for this court to consider articles or similar sources of
information that bear directly on the reliability of those
observations or considerations. Although such an arti-
cle is not likely to be particularly persuasive—and it is
not in the present case—it is at least minimally relevant
when, as in the present case, the issue presented is the
reasonableness of the trial court’s determination, based
solely on the court’s own experience, that the prosecu-
tor’s reason for exercising the peremptory challenge
was legitimate and not pretextual. Because of the anec-
dotal nature of the prosecutor’s rationale for exercising
a peremptory challenge against C.D., it also is not unfair
to the state for this court to consider the National Geo-
graphic article even though that article contains anec-
dotal evidence. In other words, because the prose-
cutor’s explanation for striking C.D. as a juror was
not based on the ‘‘fact’’ that her response to the juror
questionnaire was odd or unusual but on the prosecu-
tor’s belief, in light of his own experience, that the
response was odd, it is not unfair for the defendant to
use similar evidence to support his contention that the
response was not odd or unusual.
Furthermore, because the issue presented by the
prosecutor’s use of the peremptory challenge against
C.D. does not give rise to a typical question of fact—
as I have explained, the question can be resolved only
on the basis of anecdotal experiences as distinguished
from truly verifiable facts—I do not believe that the
distinction between legislative and adjudicative facts
bears any real relevance to the determination of
whether it is permissible for this court to consider the
National Geographic article. I therefore do not agree
that the defendant should be barred from furnishing
this court with that article, or with any other such arti-
cle, merely because defense counsel did not produce
it during jury selection.8 But that is what the majority
would require: according to the majority, because the
issue raised by the prosecutor’s use of a peremptory
challenge against C.D. involved adjudicative facts, the
defendant is barred from providing this court with any-
thing that he did not provide to the trial court. In fact,
the majority states that, in a case involving the kind
of ‘‘facts’’ that are implicated in the present case, the
‘‘parties must introduce [those] facts in the trial court,
where they can be explained through expert testimony
and tested through cross-examination.’’ In other words,
in response to the prosecutor’s explanation as to why
he had exercised a peremptory challenge against C.D.,
defense counsel was required to find any and all articles
and to call any and all expert witnesses, right then and
there, or else be denied the opportunity to provide the
reviewing court with any such support for his position.
For obvious reasons, imposing such a rigid and
unyielding rule on counsel selecting a jury—especially
in circumstances such as those in the present case, in
which the prosecutor’s reason for striking a prospective
juror was based entirely on the prosecutor’s personal
experience—is highly impractical and unnecessary.
Any such determination should be based on the particu-
lar facts and circumstances involved, including the pre-
cise nature of the Batson9 claim, and not on an unbend-
ing application of the general principle that issues
involving adjudicative facts ordinarily should first be
presented to the trial court. It is one thing to impose
such a burden on the parties at trial, as counsel will be
aware at that time of the issue or issues for which expert
testimony or other legal support may be necessary. See,
e.g., State v. Rizzo, 303 Conn. 71, 180 n.76, 31 A.3d 1094
(2011) (this court will not consider extra-record social
science reference materials to second-guess fact find-
er’s weighing of aggravating and mitigating circum-
stances), cert. denied, U.S. , 133 S. Ct. 133, 184
L. Ed. 2d 64 (2012). It is something entirely different,
however, to adhere to those requirements for purposes
of jury selection, when counsel cannot possibly be
expected to anticipate and prepare for any number of
idiosyncratic responses by any number of venire-
persons, or for the limitless number of reasons why
opposing counsel might wish to exercise a peremptory
challenge to strike any one or more of those venire-
persons. I believe that we set a bad precedent by placing
counsel in such an untenable position.10
Finally, even if it is improper for us to consider the
National Geographic article in the context of the defen-
dant’s constitutional claim, in the present case, the
defendant contends, as an alternative to that claim, that
we should exercise our supervisory authority over the
administration of justice to bar the use of racial self-
identification as a justification for the exercise of a
peremptory challenge. In support of this claim, the
defendant relies on a number of policy considerations,
including the importance of eradicating all forms of
unfair discrimination and the need for diversity in our
jury system. The defendant’s supervisory authority
claim, therefore, is not predicated or dependent on the
fact-finding of the trial court in the present case; on
the contrary, the defendant contends that we should
adopt a new rule of general applicability, irrespective
of the particular findings in this case, for reasons of
public policy. Insofar as the National Geographic article
might provide some insight into the broader issue of
self-identification that animates the defendant’s super-
visory authority claim, this court should not preclude
the defendant from furnishing it to this court for consid-
eration of that claim. On the contrary, we should be
free to consider it and to accord it whatever weight, if
any, we deem appropriate.
For the foregoing reasons, I disagree with the majori-
ty’s determination that it may not consider the National
Geographic article that the defendant had submitted
pursuant to Practice Book § 67-10. Because I agree,
however, with the majority that the defendant cannot
prevail on his claim for a new trial, I concur in the
judgment.
1
This bar against invidious discrimination in the selection of jurors and
the manner in which that prohibition is enforced are set forth in the majority
opinion, and I do not repeat them here. Suffice it to say that this prohibition
and the process to be used for enforcing the bar were first articulated by
the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986). As the majority explains; see footnote
16 of the majority opinion; that process is somewhat different under Connect-
icut law. See, e.g., State v. Latour, 276 Conn. 399, 408–10, 886 A.2d 404
(2005). That difference, however, has no material bearing on the issues
presented by this appeal.
2
Practice Book § 67-10 provides in relevant part: ‘‘When pertinent and
significant authorities come to the attention of a party after the party’s brief
has been filed, or after oral argument but before decision, a party may
promptly advise the appellate clerk of such supplemental authorities, by
letter, with a copy certified to all counsel of record in accordance with
Section 62-7. . . . The letter shall set forth the citations of the authorities.
If the authority is an unreported decision, a copy of the text of the decision
must accompany the letter. The letter shall concisely and without argument
state the relevance of the supplemental citations and shall include, where
applicable, reference to the pertinent page(s) of the brief. Any response
shall be made promptly and shall be similarly limited.
‘‘This section may not be used after oral argument to elaborate on points
made or to address points not made.’’
3
L. Funderburg, ‘‘The Changing Face of America,’’ National Geographic,
October, 2013, pp. 80–91.
4
See State v. Patterson, 230 Conn. 385, 400, 645 A.2d 535 (1994) (exercising
supervisory authority to direct that trial judges in criminal cases must be
present during jury selection); State v. Holloway, 209 Conn. 636, 645–46, 553
A.2d 166 (exercising supervisory authority to modify three step framework
adopted in Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L.
Ed. 2d 69 [1986], by relieving defendant asserting Batson claim of burden
of making initial prima facie showing of discrimination), cert. denied, 490
U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).
5
The following articles and studies are among those to which the defen-
dant cited, without objection by the state, in his initial brief and reply brief
that he filed with this court: N. Khanna, ‘‘Multiracial Americans: Racial
Identity Choices and Implications for the Collection of Race Data,’’ 6 Soc.
Compass 316 (2012); P. Linehan, ‘‘Thinking Outside of the Box: The Multira-
cial Category and Its Implications for Race Identity Development,’’ 44 How-
ard L.J. 43 (2000); J. Rosato, ‘‘ ‘A Color of Their Own’: Multiracial Children
and the Family,’’ 36 Brandeis J. Fam. L. 41 (1997–98); S. Sommers & M.
Norton, ‘‘Race and Jury Selection: Psychological Perspectives on the
Peremptory Challenge Debate,’’ 63 Am. Psychologist 527 (2008); S. Townsend
et al., ‘‘My Choice, Your Categories: The Denial of Multiracial Categories,’’
65 J. Soc. Issues 185 (2009); N. Angier, ‘‘Do Races Differ? Not Really, DNA
Shows,’’ N.Y. Times, August 22, 2000, p. F1; M. Fletcher, ‘‘Woods Puts Per-
sonal Focus on Mixed-Race Identity,’’ Washington Post, April 23, 1997, p.
A1; S. Saulny, ‘‘Black? White? Asian? More Young Americans Choose All of
the Above,’’ N.Y. Times, January 29, 2011, p. A1.
6
I would reject the defendant’s claims for the reasons set forth in the
majority opinion.
7
It seems odd to me that, on our own motion, we are precluding the
defendant from submitting the National Geographic article, and, at the same
time, we are free to consider the many similar articles that the defendant
cited in his initial brief and reply brief. See footnote 5 of this opinion.
8
I note that the National Geographic article had not even been published
at the time of jury selection in the present case.
9
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
10
I also note that, as a consequence of the majority’s decision, counsel
who are confronted with a situation like that presented by this case may
well need to seek an extension of time within which to complete jury
selection to allow counsel adequate time to obtain the kind of legal support
and authority, including, perhaps, expert testimony, for presentation to the
trial court. Delays in jury selection will be inevitable because it would be
unreasonable for the trial court to expect counsel to identify and obtain
such legal support without additional time.