State v. Edwards

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STATE OF CONNECTICUT v. MICHAEL
ANTHONY EDWARDS
(SC 19049)
Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued December 9, 2013—officially released November 11, 2014
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom were Michael L. Regan, state’s attorney, and, on
the brief, Thomas M. Delillo, senior assistant state’s
attorney, for the appellee (state).
Opinion
ZARELLA, J. This appeal arises from a peremptory
challenge pursuant to which a venireperson, C.D., was
excluded from the jury that found the defendant,
Michael Anthony Edwards, guilty of the crime of assault
of public safety personnel in violation of General Stat-
utes § 53a-167c (a) (1).1 During voir dire, the senior
assistant state’s attorney (prosecutor) asked C.D.
whether there was anything that might make it difficult
for her to sit in judgment of people, and C.D. responded:
‘‘Beside[s] being human, no.’’ The prosecutor later
asked C.D. why she had written ‘‘human’’ in response
to an open-ended, optional question about race on her
juror questionnaire, and she answered: ‘‘Because that
is the race that I belong to.’’ The prosecutor then exer-
cised a peremptory challenge on the basis of C.D.’s
answer to the race question. The trial court allowed
the peremptory challenge and excused C.D. After a trial,
the jury found the defendant guilty.
The defendant appeals from the judgment of the trial
court rendered in accordance with the jury’s verdict,2
claiming that his and C.D.’s rights to equal protection
were violated and that this court should exercise its
supervisory authority to disallow peremptory chal-
lenges based on answers to the question about race in
the juror questionnaire. In support of these claims, after
the defendant filed his brief with this court, he submit-
ted a magazine article pursuant to Practice Book § 67-
10 for the purpose of bringing to the court’s attention
what he claimed was a pertinent and significant author-
ity. The state argues that there was no equal protection
violation because the prosecutor articulated a race neu-
tral, nonpretextual explanation for his peremptory chal-
lenge. In addition, the state requests that we do not
consider the magazine article that the defendant submit-
ted because it was not available to the trial court and
is not scientific literature. We agree with the state that
we may not consider this article in our resolution of
the defendant’s constitutional claim and that we should
not consider it in deciding the defendant’s supervisory
authority claim. We also agree with the state that the
defendant’s and C.D.’s constitutional rights were not
violated and that we should not invoke our supervisory
authority in the present case. Accordingly, we affirm
the judgment of the trial court.
The record sets forth the following facts and proce-
dural history. Jury selection in the present case took
place July 19 through 21, 2011. Pursuant to General
Statutes § 51-232 (c),3 the juror questionnaire provides
the option for a venireperson to identify his or her race
and ethnicity in order to enforce nondiscrimination in
jury selection. See Confidential Juror Questionnaire,
Judicial Branch Form JD-JA-5a. Specifically, the juror
questionnaire explains that ‘‘information concerning
race and ethnicity is required solely to enforce nondis-
crimination in jury selection. The furnishing of this
information is not a prerequisite to being qualified for
jury service. This information need not be furnished if
you find it objectionable to do so.’’
C.D. appeared for voir dire on the second day. C.D.
indicated in the juror questionnaire that her race was
‘‘human.’’4 The record does not reveal C.D.’s precise
racial or ethnic background, but she appeared to be
African-American or a person of color.5
During voir dire, the following exchange occurred:
‘‘[The Prosecutor]: Okay. Anything in your back-
ground that would make it difficult for you to sit in
judgment of other people?
‘‘[C.D.]: Beside[s] being human, no.
‘‘[The Prosecutor]: Okay. What is it about the fact that
you’re human that would make it difficult, you think?
‘‘[C.D.]: I think that all human beings come into their
court experience with unique experiences, in my partic-
ular case with more—maybe some more jury experi-
ence, but I think that having served, it has—it’s
convinced me of the need to withhold judgment until
all facts are in. I think my experience probably biases
me that way. However, in any jury deliberation, you’re
dealing with [a] unique mix of personalities, unique
mixes of experiences, prior experiences, positive or
negative, so, I think that a human coming to make
a decision or judgment on any legal matter, you will
probably have a mix of all of those factors.
‘‘[The Prosecutor]: Have you—do you have any other
experiences unique to you that you think might influ-
ence the work you do as a juror here?
‘‘[C.D.]: No. I—I wouldn’t think so.
‘‘[The Prosecutor]: Okay. Anything else that I may
have forgotten to ask you which leads you to believe
you couldn’t be fair and impartial in this case?
‘‘[C.D.]: No, I don’t think there would be anything else.
‘‘[The Prosecutor]: One other thing. I did note on your
questionnaire—and I did want to ask you about this—
you indicated that when you—when you wrote down
race, you wrote human. Why did you do that?
‘‘[C.D.]: Because that is the race that I belong to.
‘‘[The Prosecutor]: Okay. Understood.’’6
After defense counsel questioned C.D., the prosecu-
tor exercised a peremptory challenge to strike C.D.
from the jury. Defense counsel objected and requested
that the prosecutor explain his reasoning because the
prosecutor had posed ‘‘the same questions [to other
venirepersons], and [C.D. was] the first excused by the
state.’’ Defense counsel further stated that he ‘‘didn’t see
[C.D.’s] answers . . . [as] significantly different [from]
anyone [else’s], and [C.D.] was an African-American
woman.’’
The prosecutor explained that he had exercised a
peremptory challenge because C.D. wrote ‘‘human’’ as
her race and the prosecutor ‘‘found that to be of concern
. . . .’’ Specifically, the prosecutor explained that C.D.’s
answer ‘‘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.’’ The
prosecutor then stated that this response was ‘‘one of
the reasons . . . for not selecting her.’’ The prosecutor
also noted that there had been two7 other African-Amer-
ican people in the venire, one woman and one man.
The African-American woman had been selected as a
juror, and the African-American man was excused by
the court on the basis of a conflict.
Defense counsel responded that he would ‘‘probably
[have] answer[ed] [the race] question the same [way
C.D. had]’’ because ‘‘we’re all one race . . . .’’ In addi-
tion, defense counsel indicated that he did not think that
the race question should be in the juror questionnaire
at all. Finally, defense counsel emphasized that C.D.’s
answer was an ‘‘appropriate response’’ because, ‘‘what
is race, really?’’
The prosecutor replied that, ‘‘for the record . . .
[defense counsel] is a white male, and if he wrote
‘human’ on his questionnaire, if he were in front of me,
in all likelihood, I would not select him as a juror either,
so it has nothing to do necessarily with [the] race of
the venire[person].’’ The prosecutor further explained
that, ‘‘having picked a number of jurors in [his] lifetime,
[he had] never seen [C.D.’s response] before . . . .’’
The prosecutor emphasized that the peremptory chal-
lenge had ‘‘nothing to do necessarily with [C.D’s] race
. . . [but had] to do with [her] response to the question-
naire, which struck me . . . as odd . . . .’’ Notably,
the prosecutor’s concerns were not expressly tied to
the race question but, rather, were phrased as a concern
about unusual responses in juror questionnaires gen-
erally.8
The trial court thereafter concluded: ‘‘[I]n the court’s
experience, [C.D.’s answer] is somewhat unusual. So,
I am going to find that that’s a nondiscriminatory expla-
nation for exercising [the] peremptory challenge and
overrule the objection. . . . [S]he will be excused.’’9
The jury selection process resulted in six jurors and
two alternates, all of whom were picked from a venire
of twenty-three people. The record does not reveal how
many racial minorities were on the jury, but it appears
that there was at least one African-American woman.
At trial, the jury found the defendant guilty of one
count of assault against public safety personnel, and
the trial court rendered judgment in accordance with
the verdict. The defendant then appealed to the Appel-
late Court, and we transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2. The defendant presented for appeal the
following issue: ‘‘Did the peremptory challenge against
an otherwise qualified minority [venireperson] solely
on the basis of her racial self-identification in the juror
questionnaire deprive the defendant and the [venire-
person] of their right[s] to equal protection of the law,
and, in the exercise of its supervisory authority over
the administration of justice, should this court disallow
the use of racial self-identification in jur[or] question-
naires as a ground for a peremptory challenge?’’ After
oral argument, and after considering the case more
fully, however, we conclude that the issue presented
for appeal was not properly framed. Accordingly, we
rephrase the issue to conform to the issue actually
presented. Cf., e.g., State v. Ouellette, 295 Conn. 173,
183–84, 989 A.2d 1048 (2010). We recast the issue as
follows: ‘‘Did the prosecutor’s peremptory challenge to
a venireperson based on her answer to an open-ended,
optional question about race in a juror questionnaire
deprive the defendant and the venireperson of their
rights to equal protection of the law, and should this
court, in the exercise of its supervisory authority over
the administration of justice, disallow the use of racial
or ethnic self-identification in juror questionnaires as
a ground for a peremptory challenge?’’
On October 16, 2013, the defendant, pursuant to Prac-
tice Book § 67-10,10 submitted a letter notifying this
court of what he claimed was supplemental authority.
The purported supplemental authority was an article
from National Geographic magazine, entitled ‘‘The
Changing Face of America,’’ by Lise Funderburg.11 See L.
Funderburg, ‘‘The Changing Face of America,’’ National
Geographic, October, 2013, pp. 80–91. On October 31,
2013, the court, sua sponte, directed the parties to file
simultaneous statements addressing whether the article
is appropriate authority for submission pursuant to
§ 67-10. The defendant claimed in response that the
article ‘‘is highly relevant to the constitutional and
supervisory authority issues before the court in this
case . . . .’’ The state countered that this court should
not consider the article because it was not available to
the trial court and is not ‘‘ ‘scientific literature . . . .’ ’’12
With respect to the merits of this appeal, the defen-
dant claims that the trial court improperly concluded
that a peremptory challenge based on C.D.’s racial self-
identification was race neutral and nondiscriminatory.
The defendant argues that the prosecutor’s explanation
for the challenge was race based because he focused
on the line of the juror questionnaire on which the
potential juror is asked to indicate his or her race. The
defendant further asserts that the prosecutor’s explana-
tion was pretextual because excluding venirepersons
who provide unusual answers to questions regarding
racial self-identification would disproportionately
affect minorities and the prosecutor’s questioning
regarding C.D.’s response was perfunctory. Finally, the
defendant requests that this court exercise its supervi-
sory authority to prohibit peremptory challenges based
on racial self-identification in juror questionnaires and
to order a new trial in the present case. The defendant
argues that the invocation of our supervisory powers is
appropriate because of the strong public policy against
racial discrimination and because the juror question-
naire notes that the answer to this question will be used
only ‘‘to enforce nondiscrimination in jury selection.’’
The state responds that the prosecutor’s proffered
explanation was race neutral because it had to do with
an ‘‘unusual’’ response to the juror questionnaire rather
than C.D.’s race. The state argues that the trial court
properly found that the prosecutor’s explanation was
not pretextual because the defendant failed to prove
any of the factors that a trial court generally considers
in finding discriminatory intent. Finally, the state
asserts that the invocation of our supervisory powers
in the present case would be inappropriate, as Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986), and its progeny already provide adequate
constitutional protection, and the perceived fairness of
the judicial system as a whole is not in question.
We agree with the state that we should not consider
the National Geographic article. We also agree with the
state that the defendant’s and C.D.’s rights to equal
protection of the law were not violated, and the invoca-
tion of our supervisory powers is inappropriate in the
present case. Accordingly, we affirm the judgment of
the trial court.
I
We begin with the National Geographic article that
the defendant submitted to this court pursuant to Prac-
tice Book § 67-10. The defendant argues that § 67-10
allows for the submission of any material that would be
appropriately cited in a brief. In addition, the defendant
contends that the article’s contents are ‘‘ ‘legislative
facts’ ’’ that provide background information for this
court’s consideration of the defendant’s constitutional
and supervisory authority claims. The state responds
by contending, inter alia, that we should not consider
the article because it was not available to, or considered
by, the trial court. We agree with the state.
We doubt that this article would qualify as an ‘‘author-
ity’’ under Practice Book § 67-10.13 We need not decide
this issue, however, because, with respect to the defen-
dant’s constitutional claim, we cannot consider evi-
dence not available to the trial court to find adjudicative
facts for the first time on appeal.14 Moreover, to the
extent that the defendant relies on this article in support
of his supervisory authority claim, we do not consider
the article because it is irrelevant and does not contain
sufficiently verifiable facts.
It is well established that this court does not find
facts. E.g., State v. Rizzo, 303 Conn. 71, 97 n.16, 31 A.3d
1094 (2011), cert. denied, U.S. , 133 S. Ct. 133,
184 L. Ed. 2d 64 (2012). This 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.’’ Moore v. Moore, 173 Conn. 120, 122,
376 A.2d 1085 (1977). 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.’’ Id.
This court has abided by this distinction. For exam-
ple, in Rizzo, the court cautioned against using social
science evidence to ‘‘second-guess’’ the factual findings
of the three judge panel because such facts are adjudica-
tive facts that should be presented to the trial court.
State v. Rizzo, supra, 303 Conn. 180 n.76. Specifically,
the court determined that it was improper for an appel-
late court to ‘‘rely on excerpts from social science texts
or journal articles that were not recognized as authorita-
tive by an expert and admitted into evidence during the
penalty phase proceedings . . . to make factual find-
ings regarding the defendant’s state of mind for the first
time on direct appeal.’’ (Citations omitted.) Id., 97 n.16.
In the present case, whether multiracial individuals
are more likely to identify in an unusual manner is a
factual question. Furthermore, as we explain herein-
after, the defendant appears to suggest that the article
establishes disparate impact, which courts have recog-
nized as a factor establishing pretext in Batson hear-
ings. As we noted in Rizzo, ‘‘it is clear that non-legal
information introduced for the purpose of assessing
adjudicative facts should be presented to the trial court,
and not on appeal.’’ (Internal quotation marks omitted.)
Id., 98 n.16, quoting E. Margolis, ‘‘Beyond Brandeis:
Exploring the Uses of Non-Legal Materials in Appellate
Briefs,’’ 34 U.S.F. L. Rev. 197, 216 (2000). Therefore,
this court cannot take judicial notice of this information
to second-guess the trial court’s factual findings. See
State v. Rizzo, supra, 303 Conn. 180 n.76. This is particu-
larly true in the present case, in which the defendant
seeks to present a magazine article to discredit the trial
court’s factual findings, which had been based on the
court’s observation of the prosecutor’s demeanor and
credibility. See, e.g., State v. Hodge, 248 Conn. 207, 224,
726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409,
145 L. Ed. 2d 319 (1999). The foregoing principle pro-
tects a basic premise of our judicial system: the trial
court, rather than an appellate court, finds facts.15
Leaving adjudicative fact-finding to the trial court
results in better appellate decision making because the
trial court is best suited to evaluate the authoritative-
ness and reliability of a source. Although this court
occasionally does take judicial notice of scientific litera-
ture, even studies that appear, at first glance, to be
scientific can contain information tainted by confirma-
tion bias or partisanship. See, e.g., J. Simmons et al.,
‘‘False-Positive Psychology: Undisclosed Flexibility in
Data Collection and Analysis Allows Presenting Any-
thing as Significant,’’ 22 Psychol. Sci. 1359, 1359 (2011)
(‘‘it is unacceptably easy to publish ‘statistically signifi-
cant’ evidence consistent with any hypothesis’’ [empha-
sis in original]). For instance, ‘‘data manipulation is
‘‘common’’ and extends to many subjects ‘‘dependent
on statistical study . . . .’’ C. Shea, ‘‘The Data Vigi-
lante,’’ The Atlantic, December, 2012, p. 34. Similarly,
peer review does not necessarily guarantee that a
source will be reliable. See id. (‘‘[S]loppy statistics are
like steroids in baseball . . . . Throughout the affected
fields, researchers who are too intellectually honest
to use these tricks will publish less, and may perish.
Meanwhile, the less fastidious flourish.’’ [Internal quota-
tion marks omitted.]). Thus, parties must introduce
adjudicative facts in the trial court, where they can be
explained through expert testimony and tested through
cross-examination.
For similar reasons, we do not consider the National
Geographic article in our evaluation of the defendant’s
supervisory authority claim. Even if we assume that
the article could provide the court with legislative rather
than adjudicative facts with respect to this claim, we
would not consider it because its contents are either
anecdotal, opinion based, or unverified. The majority
of the article consists of anecdotal material drawn from
interviews with multiracial individuals who describe
what they think about their identities. See L. Funder-
burg, supra, pp. 80–91. The author opines that the con-
cept of self-identification has been changing in recent
decades as the number of multiracial individuals has
increased. Id., pp. 83–87. There is no conclusion based
on scientific investigation, however, regarding the
extent to which the concept of self-identification has
changed and how, if at all, it has affected human behav-
ior. The author also does not provide any data regarding
the effect of multiracial individuals’ self-identification
on the juror selection process. Because the author of
the article engages in conjecture on the basis of limited
data, and does not engage in any sort of scientific analy-
sis in coming to her conclusion, the contents of the
article could be the result of partisanship rather than
facts. From a policy perspective, the exclusion of unver-
ifiable, opinion evidence at the appellate level will pre-
vent more subjective decisions that may reflect the
personal biases of the members of the court.
The article appears to contain only three potentially
verifiable, nonanecdotal facts, none of which is sup-
ported by a citation: (1) that the United States Census
Bureau has been collecting data on multiracial persons
since 2000; (2) that 6.8 million respondents identified
with more than one racial category in that year; and
(3) that the number of respondents identifying with
more than one racial category increased 32 percent ten
years later, at the time of the next census. Id., p. 83.
Even if we assumed that these facts are true, they are
not relevant to the defendant’s supervisory authority
claim because they do not establish that current prac-
tices discourage or prohibit multiracial Americans from
participating in jury service. Thus, we decline to con-
sider this article’s contents in our resolution of the
defendant’s supervisory authority claim.
II
We next turn to the defendant’s claim that the prose-
cutor’s peremptory challenge against C.D. deprived the
defendant and C.D. of their equal protection rights. We
begin our analysis with an overview of the jury selection
process and the use of peremptory challenges.
‘‘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 each
party, typically through his or her attorney, to question
each prospective juror individually, outside the pres-
ence of other prospective jurors, to determine [his or
her] fitness to serve on the jury. Conn. Const., art. I,
§ 19; General Statutes § 54-82f; Practice Book [§ 42-12].
. . . 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 subcon-
sciously 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 chal-
lenges 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 . . . .’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) State v. Hodge, supra, 248 Conn.
216–17. Nevertheless, ‘‘[i]n Batson [v. Kentucky, supra,
476 U.S. 79] . . . the United States Supreme Court rec-
ognized 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 . . . .’’ (Footnotes omit-
ted; internal quotation marks omitted.) State v. Hodge,
supra, 218.
Under Connecticut law, a Batson inquiry involves
three steps.16 First, a party must assert ‘‘a Batson claim
. . . . [Second] the [opposing party] must advance a
neutral explanation for the venireperson’s removal.’’
(Internal quotation marks omitted.) State v. Latour, 276
Conn. 399, 408, 886 A.2d 404 (2005). ‘‘In evaluating the
race neutrality of an attorney’s explanation, a court
must determine whether, assuming the proffered rea-
sons for the peremptory challenges are true, the chal-
lenges violate the [e]qual [p]rotection [c]lause as a
matter of law.’’ Hernandez v. New York, 500 U.S. 352,
359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). At this
stage, the court does not evaluate the persuasiveness
or plausibility of the proffered explanation but, rather,
determines only its ‘‘facial validity’’—that is, whether
the reason on its face, is ‘‘based on something other
than the race of the juror.’’ Id., 360; see also Purkett v.
Elem, 514 U.S. 765, 767–68, 115 S. Ct. 1769, 131 L. Ed.
2d 834 (1995) (‘‘[t]he second step . . . does not
demand an explanation that is persuasive, or even plau-
sible’’); State v. Hodge, supra, 248 Conn. 219 n.18
(same). ‘‘Thus, even if the [s]tate produces only a frivo-
lous or utterly nonsensical justification for its strike, the
case does not end—it merely proceeds to step three.’’
Johnson v. California, 545 U.S. 162, 171, 125 S. Ct. 2410,
162 L. Ed. 2d 129 (2005).
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.’’ (Internal quotation marks omitted.) State v.
Latour, supra, 276 Conn. 408. In evaluating pretext, the
court must assess the persuasiveness of the proffered
explanation and whether the party exercising the chal-
lenge was, in fact, motivated by race. See, e.g., id.,
409–10. 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. (Internal quotation marks
omitted.) State v. Hodge, supra, 248 Conn. 219 n.18,
quoting Purkett v. Elem, supra, 514 U.S. 768.
‘‘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 explanation based on a group bias where
the group trait is not shown to apply to the challenged
juror specifically . . . and (6) the [party exercising the
peremptory strike] used a disproportionate number of
peremptory challenges to exclude members of one race
. . . .’’ (Internal quotation marks omitted.) State v.
Latour, supra, 276 Conn. 409.
‘‘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.’’
(Internal quotation marks omitted.) Id., 409–10. Ulti-
mately, the party asserting the Batson claim ‘‘carries
the . . . burden of persuading the trial court, by a pre-
ponderance of the evidence, that the jury selection pro-
cess in his or her particular case was tainted by
purposeful discrimination.’’ (Internal quotation marks
omitted.) Id., 409.
This court previously has articulated the standard of
review applicable to Batson claims without differentiat-
ing between the second and third analytical steps, or,
at the very least, has not specifically stated the standard
applicable to a trial court’s determination with respect
to the second step.17 We take this opportunity to clarify
the standard of review for Batson claims. The second
step of the Batson inquiry involves a determination of
whether the party’s proffered explanation is facially
race neutral and, thus, is a question of law. See, e.g.,
Hernandez v. New York, supra, 500 U.S. 359 (‘‘[i]n evalu-
ating the race neutrality of an attorney’s explanation, a
court must determine whether, assuming the proffered
reasons for the peremptory challenges are true, the
challenges violate the [e]qual [p]rotection [c]lause as
a matter of law’’ [emphasis added]); State v. Hinton,
227 Conn. 301, 324, 630 A.2d 593 (1993) (same). Because
this inquiry involves a matter of law, we exercise ple-
nary review.18 See State v. Hodge, supra, 248 Conn. 289
(Berdon, J., dissenting).
The third Batson step, however, requires the court
to determine if the prosecutor’s proffered race neutral
explanation is pretextual. See, e.g., Hernandez v. New
York, supra, 500 U.S. 364–65. ‘‘Deference [to the trial
court’s findings of credibility] is necessary because a
reviewing court, which analyzes only the transcripts
from voir dire, is not as well positioned as the trial
court is to make credibility determinations.’’ Miller-El
v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 154 L.
Ed. 2d 931 (2003). Whether pretext exists is a factual
question, and, therefore, we shall not disturb the trial
court’s finding unless it is clearly erroneous. See, e.g.,
Hernandez v. New York, supra, 364 (‘‘[i]n Batson, we
explained that the trial court’s decision on the ultimate
question of discriminatory intent represents a finding
of fact of the sort accorded great deference on appeal’’).
A
It is uncontested that the defense raised a Batson
claim with respect to the prosecutor’s peremptory chal-
lenge to C.D., and, thus, we begin our inquiry with
the second step to determine whether the prosecutor’s
proffered explanation was race neutral. The defendant
claims that the prosecutor’s peremptory challenge was
not race neutral because the peremptory challenge was
based solely on C.D.’s racial self-identification in the
juror questionnaire. The defendant also argues that an
‘‘ ‘unusual’ ’’ racial identification is a proxy for race,
and, thus, the court should find discriminatory intent
inherent in the prosecutor’s explanation. The state
counters that the prosecutor’s proffered explanation
was race neutral because it was based not on C.D.’s
race but, rather, on the unusual manner in which she
answered a question about race in the juror question-
naire. We agree with the state.
We are guided in our analysis of this claim by Hernan-
dez v. New York, supra, 500 U.S. 352. In Hernandez, the
petitioner, Dionisio Hernandez, objected to the district
attorney’s use of peremptory challenges to strike four
potential Latino jurors in a trial involving testimony in
Spanish and the use of an interpreter to translate from
Spanish to English. See id., 355–57. The district attor-
ney’s proffered race neutral explanation for excluding
these potential jurors was that they were bilingual and
that he felt ‘‘very uncertain that they would be able to
listen [to] and follow the interpreter’’ as opposed to
adhering to their own understanding of the testimony.
(Internal quotation marks omitted.) Id., 356. Hernandez
claimed that ‘‘Spanish-language ability bears a close
relation to ethnicity, and that, as a consequence, it vio-
lates the [e]qual [p]rotection [c]lause to exercise a
peremptory challenge on the ground that a . . . poten-
tial [Latino] juror speaks Spanish.’’ Id., 360.
The court concluded that the peremptory challenges
‘‘rested neither on the intention to exclude Latino or
bilingual jurors, nor on stereotypical assumptions about
Latinos or bilinguals. The [district attorney’s] articu-
lated basis for these challenges divided potential jurors
into two classes: those whose conduct during voir dire
would persuade him they might have difficulty in
accepting the translator’s rendition of Spanish-language
testimony and those potential jurors who gave no such
reason for doubt. Each category would include both
Latinos and non-Latinos.’’ Id., 361. The court also clari-
fied that ‘‘disparate impact should be given appropriate
weight in determining whether [a] prosecutor acted
with a forbidden intent, but it will not be conclusive
in the preliminary race-neutrality step of the Batson
inquiry.’’ Id., 362; see also State v. Hinton, supra, 227
Conn. 328–31 (finding prosecutor’s explanation race
neutral when prosecutor stated that excluded jurors
lived in close proximity to crime scene, which might
lead to disparate impact on minority racial groups).
In the present case, the prosecutor’s explanation that
C.D.’s answer was ‘‘unusual’’ is facially race neutral.
This explanation would divide venirepersons into two
potential categories: (1) those who answered the ques-
tionnaire in a normal or usual way; and (2) those who,
like C.D., answered the questionnaire with an unusual
response that the prosecutor and court had not seen
before. Each of these categories could include, or not
include, racial minorities. Further, the prosecutor did
not explicitly mention race in his explanation; rather,
he brought up race only in response to the Batson claim.
Specifically, the prosecutor stated that the peremptory
challenge had ‘‘nothing to do necessarily with [C.D.’s]
race . . . [but had] to do with [her] response to the
questionnaire, which struck [him] as odd . . . .’’
The defendant posits that a racial minority is more
likely to identify himself or herself as an ‘‘unusual’’
race, and, thus, the prosecutor’s proffered reason is
inherently discriminatory. This argument is, in essence,
a disparate impact argument, which is not dispositive
of the issue of race neutrality. See Hernandez v. New
York, supra, 500 U.S. 361. The discriminatory nature of
the explanation must be clear on its face in order for
the explanation to be inherently discriminatory. In addi-
tion, to the degree to which we will consider disparate
impact at this stage, the disparate impact must be clear
from the party’s proffered explanation. In the present
case, the prosecutor explained that he was concerned
about an ‘‘unusual’’ response to a question in the juror
questionnaire. He did not tie his concerns to the race
question specifically but, rather, stated that C.D.’s
response raised a ‘‘red flag,’’ which was based on his
years of experience in selecting juries. The defendant
does not assert that minorities will answer every ques-
tion in a potentially unusual manner, and, thus, even if
we were to assume that more racial minorities will
identify in an unusual manner, we still would not find
that the prosecutor’s explanation was inherently dis-
criminatory.
Defense counsel also asserted that ‘‘we’re all one
race,’’ thus implying that the prosecutor’s explanation
was inherently discriminatory against those identifying
with the human race. We note that the purpose behind
Batson is to protect cognizable groups that historically
have been excluded from juries. See, e.g., J.E.B. v. Ala-
bama ex rel. T.B., 511 U.S. 127, 136, 114 S. Ct. 1419,
128 L. Ed. 2d 89 (1994) (‘‘[c]ertainly, with respect to
jury service, African-Americans . . . share a history of
total exclusion’’); Batson v. Kentucky, supra, 476 U.S.
85 (‘‘[e]xclusion of black citizens from service as jurors
constitutes a primary example of the evil the [f]our-
teenth [a]mendment was designed to cure’’). Within
other contexts, the United States Supreme Court has
expanded the definition of ‘‘race’’ to include ‘‘identifi-
able classes of persons who are subjected to intentional
discrimination solely because of their ancestry or ethnic
characteristics.’’ Saint Francis College v. Al-Khazraji,
481 U.S. 604, 613, 107 S. Ct. 2022, 95 L. Ed. 2d 582 (1987)
(discussing racial discrimination within context of 42
U.S.C. § 1981). The specific race with which C.D. identi-
fied, however, would encompass all persons, regardless
of their physical characteristics, ancestry or ethnicity.19
Thus, the use of a peremptory challenge against an
individual who identifies as being part of the human
race cannot logically be facially race based.
B
Now that we have concluded that the prosecutor’s
explanation was race neutral, we turn to Batson’s third
step to determine whether that explanation was pre-
textual.20 The trial court made factual findings in the
present case that C.D.’s answer was ‘‘somewhat of an
unusual response’’21 and that the prosecutor’s explana-
tion was nondiscriminatory. The defendant claims that
the prosecutor’s explanation was pretextual because it
focused exclusively on the ‘‘race’’ question in the juror
questionnaire and C.D. was African-American or a per-
son of color. The state responds that the defendant has
not established even one of the factors that this court
generally considers in determining that a party’s expla-
nation for a peremptory challenge is pretextual. We
agree with the state that the defendant has not demon-
strated that the trial court’s findings were clearly erro-
neous. Although the factors that courts normally con-
sider in determining pretext are not conclusive, the
defendant’s failure to establish any of these factors—
or to suggest any alternative grounds—gives us no rea-
son to second-guess the trial court’s findings. Thus,
although a peremptory challenge based on an ‘‘unusual’’
answer to the race question might, in some circum-
stances, be pretextual, we agree with the state that the
trial court did not improperly find a lack of discrimina-
tory intent in the present case.
First, the defendant contends that the prosecutor’s
explanation was ‘‘vague’’ and had nothing to do with
the present case. In support of this contention, the
defendant argues that the prosecutor failed to note any-
thing else in voir dire that he found disconcerting. To
the contrary, however, the prosecutor did explain what
made C.D.’s answer disconcerting: it was ‘‘unusual’’ and
‘‘outside the norm of what one would expect . . . .’’22
A party is within his or her right to seek to exclude
jurors on the basis of unusual responses because such
responses might demonstrate, for example, the exis-
tence of certain beliefs23 or an inability to follow instruc-
tions.24 In the present case, C.D. previously had indi-
cated that being ‘‘human’’ might make it difficult for
her to be impartial.25 The record thus supports the pros-
ecutor’s concern, as potential partiality would clearly
have an effect on the trial.
Furthermore, the prosecutor did not question C.D.
in a perfunctory manner. Rather, the prosecutor asked
C.D. a variety of questions to determine her general
suitability, and he already had asked her to explain
what she meant by being ‘‘human’’ in the context of
sitting in judgment of others. There is no evidence that
the prosecutor questioned C.D. or other venirepersons
who were racial minorities any differently from other
venirepersons. Moreover, the defendant has not sug-
gested any sort of group bias regarding C.D.’s race on
which the prosecutor might have based his challenge.
There also is no evidence of a pattern of discrimina-
tion or disparate treatment in the prosecutor’s exercise
of peremptory challenges. There 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 evi-
dence that other, nonminority jurors answered the juror
questionnaire in an unusual way or were treated differ-
ently. The defendant has provided no further informa-
tion regarding any alleged pattern of discrimination,
and, thus, we shall not disturb the trial court’s finding
that ‘‘there certainly [was] no pattern established at all.’’
Finally, there is insufficient evidence to find any sort
of disparate impact from the prosecutor’s proffered
explanation.26 The defendant cites to a variety of social
science studies for the proposition that a racial minority
is more likely to give an unusual answer to a racial
identification question. We are limited in our consider-
ation of these sources, however, because they were not
available to the trial court when it made its factual
determination and do not constitute scientific litera-
ture. Regardless, even if we accepted the facts in these
sources as true, the defendant has proven only that
racial minorities are more likely to self-identify in cre-
ative and unusual ways, not that these same individuals
would write an unusual answer in an official document.
Furthermore, the prosecutor’s proffered explanation
related to unusual answers in the questionnaire gener-
ally, not to the race line specifically. Thus, the prosecu-
tor’s explanation would affect not just jurors who wrote
unusual responses to the race question but also jurors
who wrote unusual answers to other questions such as
those seeking the prospective juror’s address or occu-
pation.27
To be sure, a policy of excluding all individuals who
provide an answer other than the usual answer to the
question of race, i.e., ‘‘Caucasian,’’ ‘‘African-American,’’
or other well-known races, ‘‘without regard to the par-
ticular circumstances of the trial or the individual
responses of the [potential] jurors, may be found by the
trial [court] to be a pretext for racial discrimination.’’
Hernandez v. New York, supra, 500 U.S. 372. That is
not the case before us, however. We therefore deter-
mine that the trial court’s finding of a lack of discrimina-
tory intent was not clearly erroneous.
III
The defendant also requests that this court exercise
its supervisory authority to prohibit peremptory chal-
lenges based on a venireperson’s response to the
optional race question in the juror questionnaire. We
decline to exercise our supervisory authority to create
such a rule.
Supervisory authority is an extraordinary remedy that
should be used ‘‘sparingly . . . .’’ (Citation omitted.)
State v. Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012).
‘‘Although [a]ppellate courts possess an inherent super-
visory authority over the administration of justice . . .
[that] authority . . . is not a form of free-floating jus-
tice, untethered to legal principle. . . . Our supervi-
sory powers are not a last bastion of hope for every
untenable appeal. They are an extraordinary remedy
to be invoked only when circumstances are such that
the issue at hand, while not rising to the level of a
constitutional violation, is nonetheless of utmost seri-
ousness, not only for the integrity of a particular trial
but also for the perceived fairness of the judicial system
as a whole. . . . Constitutional, statutory and proce-
dural limitations are generally adequate to protect the
rights of the defendant and the integrity of the judicial
system. Our supervisory powers are invoked only in
the rare circumstance [in which] these traditional pro-
tections are inadequate to ensure the fair and just
administration of the courts.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Wade, 297
Conn. 262, 296, 998 A.2d 1114 (2010). Overall, ‘‘the integ-
rity of the judicial system serves as a unifying principle
behind the seemingly disparate use of our supervisory
powers.’’ State v. Anderson, 255 Conn. 425, 439, 773
A.2d 287 (2001). Thus, we are more likely to invoke
our supervisory powers when there is a ‘‘pervasive and
significant problem’’; State v. Hill, 307 Conn. 689, 706,
59 A.3d 196 (2013); or when the conduct or violation
at issue is ‘‘offensive to the sound administration of
justice . . . .’’ State v. Colon, 272 Conn. 106, 239, 864
A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct.
102, 163 L. Ed. 2d 116 (2005).
In the present case, the record and our independent
research do not indicate that improper peremptory chal-
lenges based on the optional race question are a ‘‘perva-
sive and significant problem.’’ State v. Hill, supra, 307
Conn. 706. The defendant urges us to respond to the
‘‘changing population in Connecticut and the need to
encourage all people to participate in our democratic
institutions.’’ The defendant presents no evidence, how-
ever, that our current practices result in fewer racial
minorities participating in the jury selection process.28
First, the legislature specifically has noted the impor-
tance of the optional race question in the juror question-
naire ‘‘to enforce nondiscrimination in jury selection
. . . .’’29 General Statutes § 51-232 (c). Second, the juror
questionnaire provides all individuals with the option
not to answer the race question if they find it ‘‘objection-
able’’ to furnish such information. Third, our decision
should not be construed to limit how an individual can
identify his or her race in the juror questionnaire. An
individual will still be free to list ‘‘human’’ as his or her
race. We merely conclude that a peremptory challenge
based on such an unusual answer is race neutral under
the circumstances of the present case and that a trial
court in a future case may or may not find pretext,
depending on the particular facts of the case. Finally,
we note that a peremptory challenge based on a venire-
person’s offensive or ridiculous answer to the race ques-
tion might in fact further the interests of justice. As the
defendant himself acknowledges in his brief, an answer
such as ‘‘Aryan’’ might indeed signal that the venire-
person likely would be ‘‘unable impartially to consider
the state’s case against [an African-American] defen-
dant.’’ We therefore decline to invoke our supervisory
powers to create a rule preventing parties from exercis-
ing peremptory challenges based on answers to the race
question in the juror questionnaire.
The judgment is affirmed.
In this opinion EVELEIGH and ESPINOSA, Js., con-
curred.
1
General Statutes § 53a-167c (a) provides in relevant part: ‘‘A person is
guilty of assault of public safety . . . personnel when, with intent to prevent
a reasonably identifiable . . . employee of the Department of Correction
. . . from performing his or her duties, and while such . . . employee . . .
is acting in the performance of his or her duties, (1) such person causes
physical injury to such . . . employee . . . .’’
Although § 53a-167c (a) was amended in 2011 and 2013; see Public Acts
2013, No. 13-111, § 1; Public Acts 2011, No. 11-175, § 4; those amendments
have no bearing on the merits of this appeal. In the interest of simplicity,
we refer to the current revision of § 53a-167c.
2
The defendant was sentenced to a term of nine years incarceration, to
be served consecutively to the fifty year sentence that the defendant already
was serving for another conviction. The defendant has not challenged the
sufficiency of the evidence to sustain his conviction of assault of public
safety personnel.
3
General Statutes § 51-232 (c) provides in relevant part: ‘‘The Jury Admin-
istrator 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. . . .’’
4
After voir dire, the wrong questionnaire was marked as court exhibit 1,
and C.D.’s questionnaire was lost. On June 8, 2012, the defendant filed a
motion for rectification of the record to reflect the facts that (1) the defen-
dant is African-American, (2) C.D. ‘‘appeared to be African-American,’’ (3)
the wrong juror questionnaire was marked as court exhibit 1, and C.D. had
written ‘‘human’’ on the line designated for race in the questionnaire. The
Appellate Court granted the defendant’s motion on July 13, 2012.
5
Although C.D.’s precise racial and ethnic background is unclear from
the record, the court and the parties treated C.D. as being a racial minority
for purposes of determining whether there was a constitutional violation.
Therefore, we similarly treat her as a racial minority for purposes of our
equal protection analysis.
6
C.D. also referred to being ‘‘human’’ at another point during voir dire
prior to this exchange. When the prosecutor asked C.D. whether she had
any opinions about correction officers, C.D. responded: ‘‘No. [Correction]
officers are all unique individuals.’’ When the prosecutor asked her to
explain, C.D. stated: ‘‘Because they’re human . . . and humans are all
unique.’’
7
There is some inconsistency in the record regarding how many African-
American people were part of the venire. The number appears to be some-
where between two and four.
8
In response to the prosecutor’s explanation, defense counsel noted: ‘‘Just
for . . . the record, my son and I were talking about this the other day,
and he thought that it would be an incredible art exhibit to take the whitest
of white persons, and take the blackest of black persons, and have them
in the Guggenheim Museum in New York and up the spiral staircase, and
have the shades slowly but surely [come] into the middle, and then have
a—one question, you decide, where do you draw the line. So, we really are
one human race, Your Honor. I don’t think it’s that odd of a response.’’
9
The trial court specifically concluded: ‘‘All right. Well, obviously, the
[defense] has raised a . . . 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 [his] peremptory challenge. As I understand it, since [the defense] has
raised the objection, certainly, that triggers the requirement that the party
exercising the challenge, in this case the [prosecutor], respond with a nondis-
criminatory reason for excusing the prospective juror, and, as the court
analyzes this, some of the factors that the court should consider would be
. . . whether there was a pattern of exclusion of all jurors of the same race,
and, certainly, that’s one of the factors that the court can consider.
‘‘In this case, there certainly is no pattern established at all. As the prosecu-
tor has pointed out, the previous jurors who have been—well, one juror
who was actually selected in this case, and then another who was excused
for a different reason, would not support the existence of any kind of a
pattern. I’m just looking at some of the other factors.
‘‘Well, it’s—the court is going to conclude that, based on the court’s
experience, it is—it is somewhat of an unusual response to that question.
Whether or not that should be on the questionnaire . . . as [defense coun-
sel] 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 that 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 chal-
lenge and overrule the objection. All right? So, she will be excused.’’
10
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.
. . . 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. . . .’’ (Emphasis added.)
11
The author of the article suggests that traditional racial categories are
breaking down and that an increasing number of individuals are identifying
themselves as belonging to more than one category. L. Funderburg, ‘‘The
Changing Face of America,’’ National Geographic, October, 2013, pp. 83–87.
In support of this conclusion, the author states that, since 2000, when the
United States Census Bureau began collecting data on multiracial respon-
dents by allowing them to indicate that they belonged to more than one
race, the number of individuals identifying themselves as multiracial has
jumped 32 percent from the 6.8 million reported that year. Id., p. 83. The
author also opines that ‘‘people with complex cultural and racial origins
[have] become more fluid and playful with what they call themselves’’; id.,
pp. 83–87; and cites anecdotal evidence in support of this view. See id., p. 87.
12
The concurrence states that our decision not to consider the article
occurs ‘‘on our own motion . . . .’’ Footnote 7 of the concurring opinion.
First, our consideration of this issue occurs as the result of a sua sponte
directive from this court, not a motion. Moreover, although the state did
not file an opposition to the defendant’s letter, the state did contest the
court’s consideration of the article following the court’s directive.
The concurrence also asserts that the state ‘‘did not object to any of the
articles or studies cited by the defendant’’ in his brief and ‘‘simply ignored
them, essentially treating them as irrelevant . . . .’’ The state did, however,
address in its brief the defendant’s use of social science articles. For instance,
the state acknowledged that the defendant ‘‘relies on sociology based theo-
ries that indicate that persons of mixed racial backgrounds sometimes
choose not to identify with any one particular race but describe their identi-
ties in ways that transcend race, by using terms like ‘human’ or ‘American.’ ’’
The state then counters the defendant’s reliance on these articles by noting
that ‘‘the defendant assumes facts that are not part of the record in this
appeal. It is sheer speculation that C.D. is mixed or multiracial or that she
wrote ‘human’ in response to the race question [in] the juror [questionnaire]
because she is a mixed or multiracial person who embraces a nonracial or
transcendent identity. . . . In fact, the record before this court actually
supports an inference that C.D. wrote ‘human’ in response to the question
about race [in] the juror questionnaire . . . not because she identified as
a mixed or multiracial person but because, regardless of her race, she is a
humanist or simply eschews racial classification altogether.’’ (Citations
omitted.)
13
Although the rules of practice do not define ‘‘supplemental authorities,’’
the only specific example within Practice Book § 67-10 of such authority is
an unreported judicial decision. In addition, the rules of practice and Rules
of Professional Conduct consistently use the word ‘‘authorities’’ to refer to
legal authorities. See, e.g., Practice Book § 10-39 (c) (‘‘[e]ach motion to
strike must be accompanied by a memorandum of law citing the legal
authorities upon which the motion relies’’ [emphasis added]); Practice Book
§ 34a-17 (a) (‘‘[e]ach motion to strike must be accompanied by an appropriate
memorandum of law citing the legal authorities upon which the motion
relies’’ [emphasis added]); Rules of Professional Conduct 3.3, commentary
(‘‘[a] lawyer . . . must recognize the existence of pertinent legal authori-
ties’’ [emphasis added]). Finally, the rules of practice refer to a ‘‘table of
authorities’’ in appellate briefs and set forth guidelines for the citation of
cases but not for other types of writings. See Practice Book § 67-11; see
also Practice Book § 67-4 (b) (‘‘A table of authorities cited in the brief, with
references to the page or pages of the brief where the citations to those
authorities appear. Citations shall be in the form provided in Section 67-
11.’’); Practice Book § 67-5 (b) (same). Although Practice Book § 67-10 uses
the broader term ‘‘authorities’’ rather than ‘‘legal authorities,’’ it seems clear
that an authority must hold some sort of precedential weight or, at the very
least, contain verifiable information.
Dictionary definitions of ‘‘authority’’ support this interpretation. Black’s
Law Dictionary defines ‘‘authority’’ within this context as ‘‘[a] legal writing
taken as definitive or decisive; esp[ecially], a judicial or administrative deci-
sion cited as a precedent . . . . The term includes not only the decisions
of tribunals but also statutes, ordinances, and administrative rulings.’’ Black’s
Law Dictionary (9th Ed. 2009) p. 153; see also Merriam Webster’s Collegiate
Dictionary (11th Ed. 2003) p. 83 (defining ‘‘authority’’ as ‘‘a conclusive state-
ment or set of statements [as an official decision of a court]’’ or ‘‘a decision
taken as a precedent’’ or ‘‘testimony’’). Black’s Law Dictionary further differ-
entiates between primary and secondary authority, defining the latter as
‘‘[a]uthority that explains the law but does not itself establish it, such as a
treatise, annotation, or law-review article.’’ Black’s Law Dictionary, supra,
p. 153. The National Geographic article thus probably would not qualify as
an ‘‘authority’’ 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.
14
The concurrence agrees 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.’’ (Internal quotation marks
omitted.) Even if this were true, it still would be inappropriate for this court
to consider the National Geographic article in the context of deciding the
defendant’s constitutional claim because, as we explain hereinafter, the
information therein constitutes adjudicative facts that were not presented
to the trial court.
15
The concurrence claims that, ‘‘because the prosecutor’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 prosecutor’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.’’ (Emphasis in original.) The prosecutor’s
belief and experience, however, are a part of the trial court’s factual findings
regarding the prosecutor’s intent in a Batson hearing, and, thus, they are
adjudicative facts. See State v. Hodge, supra, 248 Conn. 224 (‘‘[T]he trial
court’s decision on the question of discriminatory intent represents a finding
of fact that will necessarily turn on the court’s evaluation of the demeanor
and credibility of the attorney of the party exercising the peremptory chal-
lenge. . . . Accordingly, a trial court’s determination that there has or has
not been intentional discrimination is afforded great deference and will not
be disturbed unless it is clearly erroneous.’’ [Citations omitted.]). Therefore,
the defendant should have submitted any evidence of this nature at the
Batson hearing.
The concurrence suggests that it would place counsel in an ‘‘untenable
position’’ to require that he or she submit this evidence at the Batson hearing.
Text accompanying footnote 10 of the concurring opinion. Specifically, the
concurrence asserts that ‘‘counsel cannot possibly be expected to anticipate
and prepare for any number of idiosyncratic responses by any number of
venirepersons, 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 venirepersons.’’ We do not see any reason, however, why a Batson
hearing would be different from any number of other hearings throughout
the trial process that require counsel to do exactly that. Thus, if defense
counsel wished to introduce evidence to support his Batson claim, he should
have done so at the Batson hearing. See Watkins v. Texas, 245 S.W.3d 444,
455–56 (Tex. Crim. App.) (‘‘The [defendant] urges us to consider the results
of a study commissioned by the Dallas Morning News that he contends
shows a continuing pattern on Dallas County’s part of exercising peremptory
challenges in a racially discriminatory manner. . . . We do not think the
court of appeals abused its discretion in refusing to judicially notice the
Dallas Morning News study on appeal. To do so would have put the [s]tate
at a distinct disadvantage in our adversarial system, because . . . the [s]tate
would have been given no opportunity to challenge the integrity or prove-
nance of the study, as it could have done had the study been presented
for judicial notice at the Batson hearing.’’ [Emphasis added; footnotes
omitted.]), cert. denied, 555 U.S. 846, 129 S. Ct. 92, 172 L. Ed. 2d 78 (2008);
see also Gray v. Maryland, 317 Md. 250, 257, 562 A.2d 1278 (1989) (explaining
that trial court generally has ‘‘broad discretion’’ to determine whether cross-
examination of prosecutor will occur at Batson hearing); Ohio v. Powers,
92 Ohio App. 3d 400, 410, 635 N.E.2d 1298 (1993) (noting that there is no
per se rule against admission of expert testimony at Batson hearing), cert.
denied, 513 U.S. 951, 115 S. Ct. 366, 130 L. Ed. 2d 319 (1994).
16
We note that a Batson inquiry under Connecticut law is different from
most federal and state Batson inquiries. ‘‘Under federal law, a three step
procedure is followed when a Batson violation is claimed: (1) the party
objecting to the exercise of the peremptory challenge must establish a prima
facie case of discrimination; (2) the party exercising the challenge then
must offer a neutral explanation for its use; and (3) the party opposing the
peremptory challenge must prove that the challenge was the product of
purposeful discrimination. . . . Pursuant to this court’s supervisory author-
ity over the administration of justice, we have eliminated the requirement,
contained in the first step of this process, that the party objecting to the
exercise of the peremptory challenge establish a prima facie case of discrimi-
nation. State v. Holloway, 209 Conn. 636, 646 [and] n.4, 553 A.2d 166, cert.
denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).’’ (Citations
omitted; internal quotation marks omitted.) State v. King, 249 Conn. 645,
658 n.18, 735 A.2d 267 (1999).
17
This court has specifically referred to the standard of review applicable
to a trial court’s determination only with respect to the third step, which
requires a factual inquiry into the existence of discriminatory intent: ‘‘Finally,
the trial court’s decision on the question of discriminatory intent represents
a finding of fact that will necessarily turn on the court’s evaluation of
the demeanor and credibility of the attorney of the party exercising the
peremptory challenge. . . . Accordingly, a trial court’s determination that
there has or has not been intentional discrimination is afforded great defer-
ence and will not be disturbed unless it is clearly erroneous. . . . A finding
of fact is clearly erroneous when there is no evidence in the record to support
it . . . or when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’’ (Internal quotation marks omitted.) State v.
Latour, supra, 276 Conn. 410.
18
This standard of review is consistent with the United States Supreme
Court’s admonition against conflating the various steps of a Batson inquiry.
In Purkett, the United States Supreme Court admonished the Eighth Circuit
Court of Appeals for ‘‘combining Batson’s second and third steps into one,
requiring that the justification tendered at the second step be not just neutral
but also at least minimally persuasive, i.e., a plausible basis for believing
that the person’s ability to perform his or her duties as a juror will be
affected.’’ (Internal quotation marks omitted.) Purkett v. Elem, supra, 514
U.S. 768. The court emphasized that ‘‘[i]t is not until the third step that the
persuasiveness of the justification becomes relevant—the step [at] which
the trial court determines whether the opponent of the strike has carried
his burden of proving purposeful discrimination.’’ (Emphasis in original.)
Id. Because the third step involves a factual determination and the second
step does not, we should treat the standard of review for each step dif-
ferently.
Our research reveals that this standard of review is in accord with most
federal circuit courts of appeals that have examined this issue. See, e.g.,
Stubbs v. Gomez, 189 F.3d 1099, 1105 (9th Cir. 1999) (‘‘[w]e review de
novo a district court’s holding that a prosecutor’s proffered reason for a
peremptory challenge is race-neutral’’), cert. denied sub nom. Stubbs v.
Terhune, 531 U.S. 832, 121 S. Ct. 88, 148 L. Ed. 2d 49 (2000); United States
v. Uwaezhoke, 995 F.2d 388, 392 (3d Cir. 1993) (‘‘if the government’s explana-
tion does not, on its face, discriminate on the basis of race, then we must
find that the explanation passes Batson muster as a matter of law’’), cert.
denied, 510 U.S. 1091, 114 S. Ct. 920, 127 L. Ed. 2d 214 (1994); United States
v. Johnson, 941 F.2d 1102, 1108 (10th Cir. 1991) (‘‘we analyze the prosecutor’s
explanation for his actions as a legal issue’’). The Eleventh Circuit, like this
court, previously has not specifically articulated the standard of review for
the second step. See, e.g., United States v. Stewart, 65 F.3d 918, 923 (11th Cir.
1995) (‘‘[o]nce past the prima facie step, the [D]istrict [C]ourt’s determination
concerning the actual motivation behind each challenged strike amounts to
pure factfinding’’), cert. denied sub nom. Daniel v. United States, 516 U.S.
1134, 116 S. Ct. 958, 133 L. Ed. 2d 881 (1996).
State courts that explicitly have addressed this issue also have found that
review of a trial court’s determination with respect to the second step is a
question of law. See, e.g., Frazier v. State, 899 So. 2d 1169, 1173 (Fla. App.
2005) (‘‘federal courts consider the facial validity of an explanation to be a
question of law and thus review the trial court’s ruling on this issue de
novo’’); People v. Knight, 473 Mich. 324, 343, 701 N.W.2d 715 (‘‘we believe
that those jurisdictions that have concluded that the second step is subject
to review de novo have the better view . . . [because] such an approach
is consistent with controlling United States Supreme Court precedent’’ [cita-
tions omitted]), cert. denied sub nom. Rice v. Michigan, 546 U.S. 1043, 126
S. Ct. 759, 163 L. Ed. 2d 590 (2005); State v. Thorpe, 280 Neb. 11, 17, 783
N.W.2d 749 (2010) (‘‘[f]or Batson challenges, we will review de novo the facial
validity of an attorney’s race-neutral explanation for using a peremptory
challenge as a question of law’’); Moeller v. Blanc, 276 S.W.3d 656, 660 (Tex.
App. 2008) (‘‘At the second step of the [Batson] analysis . . . there is no
fact-finding to be done. The trial court simply accepts the explanation for
the strike at face value and determines whether it is a reasonably specific
race-neutral reason. Accordingly, the second step presents a legal question
. . . .’’), review denied, Texas Supreme Court, Docket No. 09-0285 (Tex.
August 21, 2009).
Many courts, like this court and the Eleventh Circuit Court of Appeals,
either have not differentiated between the second and third steps or have
not specifically articulated a standard of review for the second step. See,
e.g., State v. Adams, 269 Kan. 681, 687–88, 8 P.3d 724 (2000) (‘‘It is important
to emphasize . . . the district judge’s authority to reject pretextual race-
neutral justifications in executing the third step of the Batson test. . . .
Because the district judge’s findings . . . will turn [largely] on evaluation of
the credibility of the prosecutor’s explanation, we ordinarily accord [those]
findings great deference.’’ [Citations omitted; emphasis added.]); State v.
Elie, 936 So. 2d 791, 800 (La. 2006) (‘‘If the race-neutral explanation is
tendered, the trial court must decide, in step three of the Batson analysis,
whether the defendant has proven purposeful discrimination. . . . A
reviewing court owes the district judge’s evaluation of discriminatory intent
great deference and should not reverse them unless they are clearly errone-
ous.’’ [Citation omitted.]); Khan v. State, 213 Md. App. 554, 571, 74 A.3d 844
(2013) (‘‘we do not see clear error in the court’s finding that this particular
explanation was pretextual and that purposeful discrimination had
occurred’’); State v. Antwine, 743 S.W.2d 51, 66 (Mo. 1987) (‘‘[a] finding of
discrimination, or a finding of no discrimination, is a finding of fact’’), cert.
denied, 486 U.S. 1017, 108 S. Ct. 1755, 100 L. Ed. 2d 217 (1988).
Our research reveals only two states that explicitly have employed a
different standard of review for the second step of Batson review. One of
these states, namely, Wisconsin, had employed a clearly erroneous standard
but subsequently expressed hesitation concerning the propriety of this stan-
dard. See State v. King, 215 Wis. 2d 295, 301 n.1, 572 N.W.2d 530 (App.
1997) (‘‘[The defendant] argues that the deferential standard is incorrect
with respect to the second Batson step, that our ruling on this point in State
v. Lopez, 173 Wis. 2d 724, 729, 486 N.W.2d [617 (App. 1992)], was dict[um],
and that we should use a de novo standard [of review with respect to] the
second step. The reason we decided in Lopez to employ the ‘clearly errone-
ous’ standard at each step in the Batson analysis is that the question of
discriminatory intent is largely informed by the trial judge’s perceptions at
voir dire. . . . We acknowledge that the issue presented [in] this appeal
. . . does not depend . . . on competing inferences from the evidence or
the trial court perceptions and may be described as purely a question of
law. However, we will not modify our decision in Lopez because we are
bound by our published decisions and may not overrule, modify or withdraw
language from them.’’ [Citation omitted.]). The other state, Utah, employs
an abuse of discretion standard. See State v. Jackson, 243 P.3d 902, 909
(Utah. App. 2010), cert. denied, 247 P.3d 774 (Utah 2011) (‘‘[t]he second
step, a determination of whether the [s]tate presented a facially neutral
reason for the strike, is reviewed for an abuse of discretion’’).
19
In addition, as we noted previously, it is unclear from the record whether
C.D. was a racial minority at all. The record merely indicates that C.D.
appeared to be African-American or a person of color. Nevertheless, we
reject the defendant’s arguments regarding race neutrality because it is
unclear from the face of the prosecutor’s explanation that his peremptory
challenge was based on C.D.’s race, whatever her race might be.
20
The state argues that the defendant has not preserved this issue for
appeal, the record is inadequate to review this claim, and no constitutional
violation clearly existed to deprive the defendant of a fair trial. Because the
record does not conclusively establish whether this issue was preserved,
we extend the benefit of the doubt to the defendant as the trial court clearly
understood the claim to be of constitutional magnitude.
21
The defendant also contends that the prosecutor’s proffered explanation
would exclude individuals such as Tiger Woods, who describes himself as
‘‘Cablinasian’’ based on his Caucasian, African-American, American-Indian
and Asian ancestry. This argument is unpersuasive. First, a party would
have the ability to question, during voir dire, a venireperson who gives such
a response; in such a dialogue, the logic behind the choice of ‘‘Cablinasian’’
would be revealed. The trial court then would be in the best position to
determine if the venireperson’s answer was indeed ‘‘unusual’’ and whether
the party’s challenge was merely pretextual.
In addition, we note that a response of ‘‘human’’ to the question of race
is particularly unusual because, generally, race refers to specific physical
characteristics based on ethnicity and ancestry; see, e.g., Saint Francis
College v. Al-Khazraji, supra, 481 U.S. 613; rather than the human race
generally. Indeed, at least one other jurisdiction has found that the response
of ‘‘human’’ to the question of race in a juror questionnaire is ‘‘unusual.’’
People v. Lomax, 49 Cal. 4th 530, 565, 234 P.3d 377, 112 Cal. Rptr. 3d 96 (2010).
22
It is easy to imagine other situations in which a potential juror’s answer
to a questionnaire might be troubling. If a juror wrote ‘‘refrigerator’’ for his
or her address, for example, it would be reasonable for an attorney to find
that answer disconcerting, ask about it during voir dire, and exercise a
peremptory challenge at his or her discretion.
23
For example, the prosecutor could suggest that a person who would
indicate that her race was ‘‘human’’ might hold certain beliefs about race.
Exercising a peremptory challenge on the basis of such beliefs is different
from exercising a peremptory challenge on the basis of the person’s race.
For example, if a venireperson identified her race as ‘‘Aryan,’’ that might
indicate that she held certain beliefs about race. If a party exercised a
peremptory challenge against that venireperson on the basis of that answer,
that explanation would not necessarily be race based simply because it
focused on the race question in the juror questionnaire.
24
See, e.g., Hernandez v. New York, supra, 500 U.S. 356 (accepting district
attorney’s explanation that he felt ‘‘very uncertain that [the prospective
bilingual jurors] would be able to listen [to] and follow the interpreter’’
[internal quotation marks omitted]).
25
The defendant claims that the state attempts to raise additional reasons
for the peremptory challenge for the first time on appeal because, although
the prosecutor referred only to the juror questionnaire at the Batson hearing,
the state’s brief refers to C.D.’s other responses regarding humans. We
conclude, however, that C.D.’s answer to the juror questionnaire should be
read in light of her other responses, as those responses serve to explain what
she meant when she listed ‘‘human’’ as her race in the juror questionnaire. We
also note that the prosecutor might not have found C.D.’s questionnaire
response quite so disturbing if C.D. previously had not indicated that being
‘‘human’’ might make her less able to be impartial.
26
‘‘[A]n invidious discriminatory purpose may often be inferred from the
totality of the relevant facts, including the fact, if it is true, that the [classifica-
tion] bears more heavily on one race than another.’’ (Internal quotation
marks omitted.) Hernandez v. New York, supra, 500 U.S. 363.
27
The defendant also contends that there is evidence of discriminatory
intent in a specific comment that the prosecutor made during the proceed-
ings in the present case: ‘‘I would only indicate for the record . . . that
[defense counsel] is a white male, and if he wrote ‘human’ on his question-
naire, if he were in front of me, in all likelihood, I would not select him as
a juror either . . . .’’ (Emphasis added.) The defendant argues that, because
the prosecutor would not necessarily have excluded defense counsel, but
did exclude C.D., the prosecutor acted with discriminatory intent.
This argument is unpersuasive. The defendant reads too much into the
words ‘‘in all likelihood . . . .’’ The fact that the prosecutor did exercise a
peremptory challenge against C.D. does not necessarily mean that he would
have done so with respect to a minority venireperson in all cases. In addition,
we note that the prosecutor did not initially bring race up in the dialogue but,
rather, was responding to the allegation by the defense that his peremptory
challenge was motivated by race.
28
The defendant relies on social science studies that indicate that minority
and multiracial Americans are more likely to self-identify in an ‘‘unusual’’
way. These sources, however, do not prove that our current practices dis-
courage or prohibit minority or multiracial Americans from participating in
jury service.
29
The defendant contends that it is unfair to use answers to the race
question because the juror questionnaire provides that ‘‘information con-
cerning race and ethnicity is required solely to enforce nondiscrimination
in jury selection.’’ That statement does not necessarily mean, however, that
the manner in which an individual responds to such a question cannot cause
a party to be concerned about the individual’s ability to serve as an impartial
juror. It is unreasonable to think that a venireperson would read this instruc-
tion in an official document and believe that it gives him or her the freedom
to write any sort of ridiculous, obscene, or threatening words that he or
she wishes.