State v. Smith

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STATE OF CONNECTICUT v. BARRY J. SMITH
(SC 19007)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued February 18—officially released August 26, 2014
Mark Rademacher, assistant public defender, for the
appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Terence D. Mariani, senior assistant
state’s attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Barry J. Smith, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of murder in violation of General
Statutes § 53a-54a (a)1 and one count of felony murder
in violation of General Statutes § 53a-54c.2 The defen-
dant claims that the trial court improperly (1) admitted
evidence of uncharged sexual misconduct, (2) rejected
his claim that he was denied a fair trial under Brady
v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963), because the state failed to disclose an
alleged agreement or understanding with a key witness
that she would be given a benefit if she testified for
the state, and (3) permitted the senior assistant state’s
attorney (prosecutor) to exercise a peremptory chal-
lenge with respect to an African-American venireperson
in violation of Batson v. Kentucky, 476 U.S. 79, 96–97,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. On March 21, 1999, a tenant at 17 Burton Street
in the city of Waterbury went to the basement to retrieve
his bicycle and discovered the partially clothed body
of the victim, Michelle McMaster, lying on the floor. A
police investigation later determined that the cause of
the victim’s death was asphyxia by manual strangula-
tion and that the evidence also was consistent with a
sexual assault.
The perpetrator of the crime was not immediately
found. In the years that followed, the police suspected
that a drug user, Donna Russell, who often associated
with a group that included the defendant and the victim,
might have information about the crime, but Russell
repeatedly refused to cooperate until January, 2008.3
At that time, she told investigators at the Waterbury
Police Department that she was in the basement of 17
Burton Street, a local drug hangout, on the evening of
March 20, 1999, for the purpose of using heroin when
she saw the victim arguing with Lawrence Andrews,
whom Russell later identified from a photographic
array, over the victim’s refusal to give Andrews drugs
or money. Russell also saw two other men standing
near the victim, one of whom she knew and later identi-
fied from a photographic array as the defendant. Russell
was familiar with the defendant and Andrews because
they sold drugs in the neighborhood and she had bought
drugs from the defendant many times before. The third
man was someone she did not know.
In July, 2008, a DNA sample from a vaginal swab
used in examining the victim’s body was found to match
a DNA sample from a man named Orenthain Daniel.
Thereafter, in March, 2009, when the police presented
Russell with a photographic array, she identified Daniel
as the third man in the basement with Andrews and
the defendant. She also provided the police with more
information regarding what she had seen.
Russell elaborated that the argument between
Andrews and the victim over her refusal to give him
drugs or money escalated to the point where the victim
was knocked to the ground and Andrews started to
choke her. Given these developments, Russell became
frightened and decided to flee. As she started to leave,
she heard the victim gasping for air and pleading for
help, but Russell was afraid of Andrews and his friends,
feared for her safety, and ignored the victim’s pleas.
The last thing she saw as she fled from the basement
was Andrews choking the victim, the defendant holding
down her arms, and Daniel pulling down her pants.
When Russell ran into Andrews a short time later, he
threatened her and told her never to say anything about
what had happened that evening.
Additional evidence was provided to the police by
Norman Reynolds.4 Reynolds had used drugs with the
defendant in the early to mid-1990s, and his wife was
the defendant’s first cousin. During the summer of 1999,
a few months after the victim’s murder, Reynolds
encountered the defendant at the Brooklyn Correc-
tional Institution, where both men were incarcerated
and sometimes socialized. On one occasion, after the
defendant received a visit from his girlfriend, he seemed
disturbed and ‘‘paranoid . . . .’’ He later confided in
Reynolds that he had killed the victim but did not impli-
cate anyone else. According to Reynolds, the defendant
told him that he had been in the basement with Andrews
and another man named Marvin Slade, and that the
men had given the victim drugs in exchange for sex.
Afterward, the three men left the basement and engaged
in several drug transactions. The defendant then
returned to the basement for more drugs or money,
‘‘[got] high’’ with the victim instead, and started to have
sex with her again while wearing a condom. The defen-
dant told Reynolds that, when the victim resisted, he
began punching, strangling and choking her, and that
her death was accidental.
In March, 2009, largely on the basis of the evidence
provided by Russell and Reynolds, as well as the DNA
results, the defendant was arrested and charged, ini-
tially with felony murder, and subsequently with both
murder and felony murder.5 The defendant entered a
plea of not guilty and elected a jury trial. After one
day of deliberations during which the jury requested a
playback of Russell’s testimony, the jury returned a
verdict of guilty as to both counts, and the court ren-
dered judgment sentencing the defendant to a term of
sixty years incarceration. This appeal followed.
I
The defendant first claims that the trial court improp-
erly admitted evidence that he engaged in uncharged
sexual misconduct similar to the charged crime shortly
after the victim’s murder. Although the defendant
acknowledges that evidence of other sexual misconduct
is admissible in a case involving a sex crime if the
misconduct in both incidents is similar, he contends
that the charged and uncharged misconduct in the pres-
ent case does not satisfy the test established in State
v. DeJesus, 288 Conn. 418, 476, 953 A.2d 45 (2008), for
admission of such evidence, and that, even if it satisfies
the DeJesus test, the evidence was unduly prejudicial.
The state responds that the trial court properly admitted
the uncharged misconduct evidence and that the evi-
dence was not unduly prejudicial. We agree with the
state.
The following additional facts are relevant to our
resolution of this claim. Approximately one week
before commencement of trial, the state learned from
Russell that Yvonne Readus, who was known to Russell
as the defendant’s ‘‘girlfriend,’’ might be able to provide
evidence that the defendant had engaged in uncharged
sexual misconduct around the time of the murder simi-
lar to the conduct that resulted in the victim’s death.
Readus subsequently stated in an interview with the
Office of the State’s Attorney and testified at trial that
she had met the defendant while she was using and
selling drugs and that the defendant would sometimes
supply her with drugs. She also stated that, although
she thought she was the defendant’s ‘‘girl,’’ she ‘‘knew
he already had a girl that he lived with,’’ and she
described her relationship with the defendant at
another point in her testimony as a ‘‘drug and sex rela-
tionship . . . .’’
With respect to the uncharged misconduct, Readus
stated in her interview and also subsequently testified
that, a short time before she learned that the victim
had been murdered, the defendant stopped by her house
with a woman in his car, which caused Readus to
become angry and begin arguing with the defendant.6
The defendant eventually left but returned to her house
later that evening. Readus remained angry, however,
and the two continued to argue. As the argument
became more heated, the defendant grabbed Readus
by the neck, threw her down on the couch and sexually
assaulted her. During the assault, he choked her as she
struggled to push him off. The defendant left after he
finished assaulting her, and they had no further contact
until she saw him at trial.
Following the interview with Readus, the state filed
a notice of intent to offer evidence regarding the inci-
dent for purposes of showing propensity, identity and
intent because it involved choking during a sexual
assault around the same time the defendant had partici-
pated in a similar assault against the victim. The trial
court held a pretrial hearing on the matter, during which
defense counsel objected to admission of the proposed
evidence. Defense counsel argued that neither the mis-
conduct nor the victims in the charged and uncharged
misconduct was sufficiently similar to admit the evi-
dence under the test set forth in DeJesus. The state
focused on the testimony of Reynolds and argued that,
because the defendant’s description to Reynolds of his
sexual assault and choking of the victim was almost
identical to the proposed misconduct testimony of
Readus, the evidence was admissible under DeJesus.
The court subsequently concluded that the evidence
was admissible to show identity and intent. The court
also concluded that the evidence was admissible to
show propensity. It explained that the uncharged mis-
conduct was not too remote in time to the charged
crime and that they were sufficiently similar because
the uncharged misconduct constituted sexual assault
in the first degree whereas one of the qualifying felonies
for the charged crime was sexual assault as a principal
and accessory. In addition, the victims were similar in
age7 and ethnicity, and in their prior sexual contact with
the defendant and their unwillingness to comply with
the defendant’s demands, which had resulted in sexual
violence.8 The court also determined that evidence of
the uncharged misconduct would not be unduly prejudi-
cial because it was similar to the charged crime and any
potential prejudice could be minimized by restricting
Readus’ testimony to a ‘‘bare bones’’ account of what
had happened and by immediately giving a limiting
instruction to the jury. Readus thus testified briefly at
trial regarding the incident, after which the court gave
a limiting instruction. The court also gave a similar
instruction during its final jury charge.
We begin with the standard of review and the applica-
ble legal principles. Generally, ‘‘[e]vidence of a defen-
dant’s uncharged misconduct is inadmissible to prove
that the defendant committed the charged crime or to
show the predisposition of the defendant to commit
the charged crime. . . . Exceptions to this rule have
been recognized, however, to render misconduct evi-
dence admissible if, for example, the evidence is offered
to prove intent, identity, malice, motive, a system of
criminal activity or the elements of a crime.’’ (Internal
quotation marks omitted.) State v. Pena, 301 Conn. 669,
673, 22 A.3d 611 (2011); see also Conn. Code Evid.
§ 4-5 (a) and (b). In cases involving uncharged sexual
misconduct, we apply a more liberal standard. See, e.g.,
State v. Snelgrove, 288 Conn. 742, 758–59, 954 A.2d 165(2008). Under this standard, prior misconduct evidence
may be admitted to establish propensity in sex related
cases if certain conditions are met. See, e.g., State v.
DeJesus, supra, 288 Conn. 470–74, 476. As we explained
in DeJesus, ‘‘evidence of uncharged sexual misconduct
is admissible only if it is relevant to prove that the
defendant had a propensity or a tendency to engage in
the type of aberrant and compulsive criminal sexual
behavior with which he or she is charged. Relevancy
is established by satisfying the liberal standard pursuant
to which evidence previously was admitted under the
common scheme or plan exception. Accordingly, evi-
dence of uncharged misconduct is relevant to prove
that the defendant had a propensity or a tendency to
engage in the crime charged only if it is: (1) . . . not
too remote in time; (2) . . . similar to the offense
charged; and (3) . . . committed upon persons similar
to the prosecuting witness.’’ (Internal quotation marks
omitted.) Id., 473.
We further explained in DeJesus that the admission
of propensity evidence in sex related cases is supported
by certain public policy considerations, one of which
is that ‘‘in sex crime cases generally . . . the offense
often is committed surreptitiously, in the absence of
any neutral witnesses. Consequently, courts allow pros-
ecutorial authorities greater latitude in using prior mis-
conduct evidence to bolster the credibility of the com-
plaining witness and to aid in the obvious difficulty of
proof.’’ (Internal quotation marks omitted.) Id., 468–69.
We added that ‘‘[i]t is inherently improbable that a per-
son whose prior acts show that he is in fact a rapist
. . . would have the bad luck to be later hit with a false
accusation of committing the same type of crime or
that a person would fortuitously be subject to multiple
false accusations by a number of different victims
. . . .’’ (Internal quotation marks omitted.) Id., 470.
If the evidence of sexual misconduct is admissible
under this standard, a determination also must be made
that ‘‘its probative value outweighs the prejudicial effect
that invariably flows from its admission.’’ (Internal quo-
tation marks omitted.) Id., 473. ‘‘[T]o minimize the risk
of undue prejudice to the defendant, the admission of
evidence of uncharged sexual misconduct under the
limited propensity exception . . . must be accompa-
nied by an appropriate cautionary instruction to the
jury.’’ (Internal quotation marks omitted.) Id., 474.
It is well established that we ‘‘review the trial court’s
decision to admit evidence . . . for an abuse of discre-
tion.’’ State v. Saucier, 283 Conn. 207, 218, 926 A.2d
633 (2007). ‘‘When reviewing claims under an abuse of
discretion standard, the unquestioned rule is that great
weight is due to the action of the trial court and every
reasonable presumption should be given in favor of its
correctness . . . . In determining whether there has
been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did.’’
(Internal quotation marks omitted.) State v. Arthur H.,
288 Conn. 582, 595, 953 A.2d 630 (2008). ‘‘[T]he question
is not whether any one of us, had we been sitting as
the trial judge, would have exercised our discretion
differently. . . . Rather, our inquiry is limited to
whether the trial court’s ruling was arbitrary or unrea-
sonable.’’ (Citation omitted; internal quotation marks
omitted.) State v. Cancel, 275 Conn. 1, 18, 878 A.2d
1103 (2005).
In the present case, the defendant claims that the
uncharged misconduct evidence fails to satisfy the sec-
ond prong of DeJesus because the defendant is charged
with holding the victim down while Andrews robbed
and strangled her and Daniel sexually assaulted her,
whereas the uncharged misconduct consisted of the
defendant’s momentary choking and sexual assault of
Readus. The defendant also claims that the victim and
Readus are dissimilar under the third prong of DeJesus
because the victim was a prostitute who had a commer-
cial sexual relationship with the defendant, whereas
Readus was the defendant’s girlfriend with whom he
had a romantic sexual relationship.9 The state responds
that the trial court properly admitted the uncharged
misconduct evidence because it could have found the
uncharged misconduct sufficiently similar in all
respects to the charged crime and the evidence was
not unduly prejudicial. We agree with the state.
A
We first conclude that the trial court properly deter-
mined that the charged crime and uncharged miscon-
duct were sufficiently similar under the second prong
of DeJesus because both acts involved a sexual assault
during which the victim was choked as she resisted her
attacker. This is true regardless of whether the court
relied on the testimony of Russell, the eyewitness who
stated that she saw Andrews choking the victim, Daniel
pulling down the victim’s pants, and the defendant hold-
ing down the victim’s arms, or on the testimony of
Reynolds, the jailhouse informant who testified that the
defendant admitted that he had started to punch and
choke the victim when she resisted the sexual assault
and had accidentally killed her.
The misconduct evidence was admissible on the basis
of Reynolds’ testimony because his description of what
had happened was nearly identical to the sexual assault
described by Readus, who similarly testified that the
defendant started choking her as she struggled to push
him away. The misconduct evidence likewise was
admissible on the basis of Russell’s testimony. Although
Russell did not observe the defendant choking or sexu-
ally assaulting the victim, her testimony did not contra-
dict Reynolds’ testimony because Russell left the scene
while the victim was still alive, and it is entirely possible
that the three men exchanged roles before the victim
died. Moreover, only Reynolds testified as to who was
choking the victim at the moment of her death, and,
accordingly, there was no inconsistency regarding that
fact. That Russell, the eyewitness, saw three men attack
the victim, whereas the defendant made no reference
to any other participants in his confession to Reynolds,
does not detract from the fact that both accounts
described the same offense, which was a fight involving
a sexual assault and choking that resulted in the victim’s
death. We thus conclude that the attack on the victim
and the attack on Readus were sufficiently similar to
render the testimony of Readus admissible under the
second prong of DeJesus.
The defendant argues that, to the extent the trial
court may have relied on the testimony of Russell,
DeJesus and its progeny did not involve defendants
charged as accomplices in sex crimes, and that DeJesus
still requires that a defendant himself must engage in
both the charged and uncharged misconduct for the
latter to be admissible. See State v. DeJesus, supra, 288
Conn. 474–75; see also State v. Gupta, 297 Conn. 211,
215–19, 998 A.2d 1085 (2010); State v. Johnson, 289
Conn. 437, 455–56, 958 A.2d 713 (2008); State v. Snel-
grove, supra, 288 Conn. 762–64.10 The defendant further
argues that ignoring this precedent would vastly expand
the concept of similarity articulated in DeJesus beyond
the limits set by Gupta.11 We need not consider this
argument because, as previously discussed, the victim
was still alive when Russell left the basement. Accord-
ingly, to the extent the defendant’s argument relies on
Russell’s description of the defendant as holding down
the victim’s arms, her testimony, unlike that of Rey-
nolds, did not provide a complete portrayal of what
had happened before the victim died and thus cannot
be relied on to support the defendant’s argument that
the charged crime and the uncharged misconduct
were dissimilar.
The defendant further claims that, to the extent the
trial court may have relied on the testimony of Reynolds
in deeming the uncharged misconduct admissible, it did
so improperly because the state’s ‘‘true claim’’ is that
the defendant’s only role in the crime was to hold down
the victim’s arms.12 We disagree.
The state charged the defendant as both a principal
and an accessory in the bill of particulars filed on Febru-
ary 15, 2012, without citing to the underlying evidence.
The arrest warrant, however, included information
obtained from both Russell and Reynolds, among many
others. It is also undisputed that the state referred prin-
cipally to the testimony of Reynolds during the pretrial
hearing on the admissibility of the uncharged miscon-
duct evidence. Thus, it cannot be said that the state’s
‘‘true claim’’ was limited to the conduct described in
Russell’s testimony. Rather, the state relied on the testi-
mony of both Russell and Reynolds in charging the
defendant as a principal and an accessory. Accordingly,
it was not improper for the trial court in the present
case to consider whether the testimony of Readus was
admissible under the second prong of DeJesus.
B
The defendant next claims that there were insuffi-
cient similarities between the victim and Readus to
satisfy the third prong of DeJesus. We disagree.
It was within the discretion of the trial court to deter-
mine that the victim and Readus were sufficiently simi-
lar to satisfy the third prong of DeJesus because they
were alike in age, ethnicity, their prior consensual sex-
ual contact with the defendant and their resistance to
the defendant’s demands, which led to his choking them
during the charged and uncharged misconduct. The evi-
dence indicates that the victim and Readus were
approximately thirty years old when the assaults
occurred and that both women knew the defendant
prior to the assaults. Although Readus may have known
the defendant for a longer period of time, she identified
the victim as the passenger in the defendant’s car when
he stopped by her home before the murder, thus indicat-
ing that the victim and the defendant were not strangers.
Moreover, even if Readus knew the defendant longer,
the evidence supports the conclusion that both women
were drug users and that their individual relationships
with the defendant were based at least in part on sex
in exchange for drugs. Although Russell described
Readus as the defendant’s girlfriend and Readus also
identified herself as the defendant’s ‘‘girl,’’ she testified
that she knew the defendant lived with another woman
and that her own relationship with the defendant was
a ‘‘drug and sex relationship . . . .’’ This was also true
of the victim who, according to Reynolds, had consen-
sual sex with the defendant in the basement at 17 Burton
Street before he left to sell more drugs and then
returned to commit the sexual assault and murder.
Finally, both women were sexually assaulted and
choked upon resisting the defendant’s demands.
An analysis of the relevant case law on which the
defendant relies does not persuade us otherwise. See,
e.g., State v. Johnson, supra, 289 Conn. 455 (similar
victims were prostitutes who had sex with defendant);
State v. Snelgrove, supra, 288 Conn. 764 (similar victims
were adult women who met defendant in social settings
and voluntarily engaged in sex with him before he
assaulted them); State v. DeJesus, supra, 288 Conn.
475 (similar victims were young women with mental
disabilities who worked for defendant in store where
they were assaulted); cf. State v. Gupta, supra, 297
Conn. 229–30 (dissimilar victim was female patient, like
other victims, but also was defendant’s employee,
unlike other victims). No two victims in any particular
case are exactly alike. A trial court thus must determine
in each case whether the victims are sufficiently similar
to satisfy the third prong of DeJesus. In Snelgrove, for
example, we focused on the fact that all of the victims
were adult women who had met the defendant in social
settings and had engaged in sex with him voluntarily
before the assaults; see State v. Snelgrove, supra, 764;
and we did not consider the fact that one victim was
a former girlfriend, another was a stranger, and the
third was an acquaintance to be so important as to
overcome their other similarities under DeJesus. See
id., 762–64. We thus conclude that the trial court did
not abuse its discretion in determining that the third
prong of DeJesus was satisfied.
C
The defendant also claims that the uncharged miscon-
duct evidence was unduly prejudicial because the
notion that the defendant had sexually assaulted a
friend, namely, Readus, very likely overwhelmed and
distracted the jury. We disagree.
The uncharged misconduct evidence was not as
extreme as the charged crime because it did not result
in Readus’ death, and the trial court instructed the state
to limit Readus’ testimony to a ‘‘bare bones’’ account
of the assault. The court also gave a limiting instruction
immediately after Readus’ testimony and in its final jury
charge. See, e.g., State v. Cutler, 293 Conn. 303, 314,
977 A.2d 209 (2009) (‘‘[w]e are mindful that a trial court’s
limiting instructions about the restricted purpose for
which the jury may consider prior misconduct evidence
serve to minimize any prejudicial effect that such evi-
dence otherwise may have had’’ [internal quotation
marks omitted]). Accordingly, we conclude that the
prior misconduct evidence was unlikely to have aroused
the jurors’ emotions and that the trial court did not
abuse its discretion in concluding that the evidence
was admissible.
II
The defendant next claims that the trial court improp-
erly rejected his claim under Brady v. Maryland, supra,373 U.S. 83, that the state failed to disclose to the
defense that it had offered Readus a ‘‘get out of jail
free card’’ if she would testify for the state. The state
responds that the trial court correctly found that there
was no agreement or understanding between Readus
and the state prior to her testimony and that any ideas
regarding favorable treatment in return for her testi-
mony arose in her mind only after a fellow inmate had
suggested as much many days after the verdict in the
present case. We agree with the state.
The following additional facts are relevant to our
resolution of this claim. On March 14, 2012, six days
after the jury returned a verdict of guilty on both counts,
the Office of the State’s Attorney in the judicial district
of Waterbury received a letter from Readus, who was
then incarcerated. The letter was postmarked March
13, 2012, and was addressed to the prosecutor, Terence
D. Mariani, Jr., and one of his investigators, James Clary.
In the letter, Readus wrote that she had been told that
her daughter and grandson were being threatened
because of her testimony in the defendant’s case. She
then wrote that she was ‘‘calling in a favor’’ and
‘‘need[ed] that . . . get out of jail free card [Clary] was
talking about.’’ Readus suggested that the prosecutor
‘‘maybe . . . [could] put in a word for [her] with the
state and the judge’’ that would facilitate her release
from prison with restrictions, conditions or the imposi-
tion of a fine. She concluded: ‘‘I need [your] help now
just like you needed me.’’ She added in a postscript:
‘‘[D]id we put him away?’’
The prosecutor immediately notified the defense of
the letter and its contents. The defendant responded
by filing a motion for a new trial on the grounds that
(1) the state had violated Brady by failing to disclose
exculpatory material, namely, an alleged agreement or
understanding that Readus would be given a benefit if
she testified for the state, (2) the information in the
letter constituted newly discovered evidence, and (3)
the defendant’s conviction was obtained through the
perjured testimony of Readus.
On the day scheduled for sentencing, the trial court
instead held a hearing on the defendant’s motion. The
first witness was Readus, who was appointed counsel
for purposes of the hearing and waived her fifth amend-
ment privilege against self-incrimination following a
canvas by the court. Readus testified that she initially
became aware that the Office of the State’s Attorney
was looking for her in connection with the present
case after a woman named Gloria Guy gave her Clary’s
business card and said that Clary had been showing
Readus’ photograph around the neighborhood and
wanted Readus to contact him. At that time, Guy said
nothing to Readus about a ‘‘get out of jail free card
. . . .’’ Readus was on probation for a prior offense but
had no pending cases and had not known that Clary
was looking for her. Readus later contacted Clary and
met with him and the prosecutor, among others, several
times to discuss what she knew about the case and
whether she would be testifying. During one of these
meetings, Readus gave the police a statement that later
formed the basis for her testimony at trial.
The day before Readus was scheduled to testify, she
was arrested in connection with a shoplifting incident
involving her boyfriend and was detained at the Water-
bury Police Department overnight. When she was
brought to the Waterbury courthouse the next day, she
asked the marshals to contact Clary to let him know
about her situation and that she would not be able to
comply with the subpoena requiring her to testify at
trial. Clary, however, eventually made arrangements
to bring Readus to the courtroom. Readus thereafter
testified that, as of the date of the hearing on the defen-
dant’s motion, the larceny charges had not been
resolved and she had not been charged with a proba-
tion violation.
Regarding the letter, Readus testified as follows: ‘‘I
wrote [the prosecutor] a letter and I explained to him,
but, before that, [neither the prosecutor] nor . . .
Clary . . . promised me anything. How I found out was
people [were] coming to jail telling me things, that they
were looking for me, and they said I could get out of
jail free and all this. It was because of my daughter
[that] I wrote that letter. That’s the only reason why.’’
Readus testified that she did not hear about the ‘‘get
out of jail free card’’ from Clary or the prosecutor and
that ‘‘[i]t just came from people that came to jail.’’ When
she was asked to name the people from whom she
heard this language, Readus at first refused to identify
anyone. After the trial court ordered her to do so, she
named Guy but stated that their conversation took place
after Readus was transferred to York Correctional Insti-
tution (York), which occurred after she appeared as a
witness for the state in the defendant’s case on March
5, 2012.
Readus emphasized at the hearing that she never had
been promised anything by Clary or anyone else in the
Office of the State’s Attorney in return for her testimony
at trial. She further stated that she had no expectation
when she testified at trial that she would obtain future
favors from the state. She explained that her use of the
phrase ‘‘calling in a favor’’ when writing the letter was
inaccurate and that she really was asking the state for
a favor rather than calling one in.
The prosecutor next testified that he had made no
promises to Readus in exchange for her testimony at
trial and that no one else in his office had made any
such promises in his presence. Clary also denied telling
anyone he spoke to when initially trying to locate
Readus that she would receive any benefits or that it
would be in her best interest to get in touch with his
office. Clary stated that he told no one why he wanted
to speak with Readus but only that it was important
and that he ‘‘need[ed] to speak to her as soon as possi-
ble.’’ He also specifically denied telling Guy that Readus
would be given a ‘‘get out of jail free card’’ if she cooper-
ated with the state. He admitted only that when Readus
indicated being nervous about testifying and told him
about the threats to her daughter or grandchild, he
told her that she should feel free to contact him if she
believed her safety was in jeopardy.
Readus’ probation officer, Megan Clifford, testified
that the reason Readus had not yet been charged with
a violation of probation as a result of her larceny arrest,
which Clifford attributed to the stress Readus was expe-
riencing at that time, was that Readus otherwise had
complied with the conditions of her probation and had
been responding to her outpatient drug treatment. Clif-
ford thus believed the more appropriate response was
to try to get Readus into an inpatient treatment facility
after her release from custody for the larceny arrest.
Finally, Erin Murphy-Pelletier, an official with the
Department of Correction, testified that, according to
official records, Guy did not arrive at York until April
17, 2012, more than one month after Readus claimed to
have spoken with Guy about Clary’s alleged statements.
After hearing this and other sometimes contrary testi-
mony, the trial court denied the defendant’s motion for
a new trial. Among the trial court’s findings were: (1)
Clary told one or more persons with whom he spoke
when looking in the neighborhood for Readus that they
should tell her that he might have a ‘‘get out of jail free
card’’ for her; (2) four days after the jury verdict in
the defendant’s case, when Readus was incarcerated
at York, another woman inmate informed her that Clary
had been looking for her about one month earlier and
said he had a ‘‘get out of jail free card,’’ and, as a result
of this comment, the woman encouraged Readus to
write to the Office of the State’s Attorney and ask for
assistance with her pending larceny case; (3) at no time
prior to Readus’ testimony did the Office of the State’s
Attorney promise her anything in exchange for her testi-
mony; (4) Readus did not believe when she testified at
trial that any promises had been made to her; (5) neither
Mariani nor Clary had promised her anything, including
a ‘‘get out of jail free card,’’ in exchange for her testi-
mony; (6) Readus was untruthful in identifying Guy as
the person who told her about the ‘‘get out of jail free
card’’ because she did not want to identify the person
who told her; (7) the remainder of Readus’ testimony
regarding how she came to learn about the ‘‘get out of
jail free card’’ was credible; and (8) Clifford chose not
to have Readus charged with a violation of probation
because she believed it would be better if Readus con-
tinued with her probation and drug treatment to address
her problems and not because of an agreement with
the state.
We begin with the standard of review. The defen-
dant’s claim that the trial court improperly rejected
his Brady claim is, in reality, a claim that the court
improperly denied his motion for a new trial on the
ground that there was no Brady violation. ‘‘Appellate
review of a trial court’s decision granting or denying a
motion for a new trial must take into account the trial
judge’s superior opportunity to assess the proceedings
over which he or she has personally presided. . . .
Thus, [a] motion for a new trial is addressed to the
sound discretion of the trial court and is not to be
granted except on substantial grounds. . . . In our
review of the denial of a motion for [a new trial], we
have recognized the broad discretion that is vested in
the trial court to decide whether an occurrence at trial
has so prejudiced a party that he or she can no longer
receive a fair trial. The decision of the trial court is
therefore reversible on appeal only if there has been
an abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Skakel, 276 Conn. 633, 699 n.66, 888 A.2d
985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L.
Ed. 2d 428 (2006).
With respect to the Brady claim, ‘‘[t]he law governing
the state’s obligation to disclose exculpatory evidence
to defendants in criminal cases is well established. The
defendant has a right to the disclosure of exculpatory
evidence under the due process clauses of both the
United States constitution and the Connecticut consti-
tution. . . . In order to prove a Brady violation, the
defendant must show: (1) that the prosecution sup-
pressed evidence after a request by the defense; (2)
that the evidence was favorable to the defense; and (3)
that the evidence was material. . . .
‘‘It is well established that [i]mpeachment evidence
as well as exculpatory evidence [fall] within Brady’s
definition of evidence favorable to an accused. . . .
[An express or implied] plea agreement between the
state and a key witness is impeachment evidence falling
within the definition of exculpatory evidence contained
in Brady. . . .
‘‘The [United States] Supreme Court established a
framework for the application of Brady to witness plea
agreements in Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173, 3 L. Ed. 2d 1217 (1959), and Giglio v. United
States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104(1972). . . . Drawing from these cases, this court has
stated: [D]ue process is . . . offended if the state,
although not soliciting false evidence, allows it to go
uncorrected when it appears. . . . If a government wit-
ness falsely denies having struck a bargain with the
state, or substantially mischaracterizes the nature of
the inducement, the state is obliged to correct the mis-
conception. . . . Regardless of the lack of intent to lie
on the part of the witness, Giglio and Napue require
that the prosecutor apprise the court when he knows
that his witness is giving testimony that is substantially
misleading. . . . A new trial is required if the false testi-
mony could . . . in any reasonable likelihood have
affected the judgment of the jury. . . .
‘‘The prerequisite of any claim under the Brady,
Napue and Giglio line of cases is the existence of an
undisclosed agreement or understanding between the
cooperating witness and the state. . . . Normally, this
is a fact based claim to be determined by the trial court,
subject only to review for clear error.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Ouel-
lette, 295 Conn. 173, 185–87, 989 A.2d 1048 (2010).
In the present case, the trial court conducted an evi-
dentiary hearing and made several factual findings
regarding the existence of an express or implied undis-
closed agreement, including that, at no time prior to trial
did the Office of the State’s Attorney promise Readus
anything in exchange for her testimony, Readus did not
believe at that time that any promises had been made
to her, and neither Mariani nor Clary promised Readus
anything, including a ‘‘get out of jail free card,’’ in
exchange for her testimony. The defendant acknowl-
edges these findings but, instead of challenging them
as clearly erroneous, argues that ‘‘[t]he court found that
the state made [an] offer of leniency but it was not
material because it was never conveyed . . . to Readus
before she testified. The court [thus] erred because
one or more jurors reasonably could have inferred that
[Readus] heard about Clary’s offer before she testified,
and, therefore, the offer was material.’’ The defendant
then cites the standard of review for a trial court’s
determination regarding materiality and argues that the
state must disclose evidence favorable to the defendant
when the evidence is material to his guilt. The defendant
further argues that the evidence in the present case
was favorable to the defense, the evidence was sup-
pressed, and the evidence was material. The defendant
concludes by stating that ‘‘one or more jurors could
have reasonably inferred that Readus heard about
Clary’s promise before she testified’’ and that the ‘‘court
[improperly] treated its inference as the only reasonable
inference . . . . The state’s failure to disclose Clary’s
offer of a get out of jail free card to Readus undermines
confidence in the outcome of [the defendant’s] trial.’’
(Internal quotation marks omitted.)
We quote extensively from the defendant’s brief to
show that he does not challenge the trial court’s findings
regarding the existence of an undisclosed agreement
on the ground that they were clearly erroneous. Rather,
he argues that the jurors could have examined the evi-
dence and reached a different conclusion, and that, if
Readus knew about the get out of jail free card before
she testified, as he claims the jurors could have con-
cluded, such evidence was material and should have
been disclosed to the defendant. As previously noted,
however, ‘‘[t]he prerequisite of any claim under the
Brady, Napue and Giglio line of cases is the existence
of an undisclosed agreement or understanding between
the cooperating witness and the state’’; State v. Ouel-
lette, supra, 295 Conn. 186; a determination that is made
by the trial court and must be reviewed for clear error.
Id., 187. Accordingly, we reject the defendant’s Brady
claim and conclude that the trial court did not abuse
its discretion in denying his motion for a new trial
because he has failed to challenge as clearly erroneous
the trial court’s finding that there was no undisclosed
agreement or understanding between Readus and the
state, which is a necessary predicate to his arguments
on materiality.
III
The defendant finally claims that the trial court
improperly permitted the prosecutor to exercise a
peremptory challenge with respect to J.W.,13 an African-
American venireperson, in violation of Batson v. Ken-
tucky, supra, 476 U.S. 79. The defendant specifically
claims that the prosecutor challenged J.W. because he
knew too many people in the area and he might have
known the victim, but accepted M.C., a Caucasian
venireperson who might have known just as many peo-
ple in the area. The state responds that the trial court
properly rejected the defendant’s Batson claim because
J.W. demonstrated a much greater familiarity with the
area and persons connected with the case than M.C.
The state also argues that the defendant makes no claim
that the prosecutor’s use of peremptory challenges with
respect to any other venirepersons suggested a poten-
tially discriminatory intent, which is one of the factors
considered in determining whether a violation of Bat-
son has occurred. See id., 96–98. We agree with the state.
The following additional facts are relevant to our
resolution of this issue. Before the individual voir dire,
venireperson J.W. raised his hand when the court asked
whether those present knew any of the persons whom
the attorneys listed as being associated with the case.
In contrast, venireperson M.C. did not raise her hand
or otherwise indicate her familiarity with any of the
listed persons.
Thereafter, prior to individual voir dire, the trial court
queried J.W., who stated that he knew John Maia, one
of the persons listed as being associated with the case,
through a mutual acquaintance and occasionally saw
him. J.W. also stated that ‘‘[t]he victim’s name sound[ed]
familiar, but [he could not] actually picture the face.’’
Despite these comments, the court did not dismiss J.W.
for cause.
Individual voir dire of M.C. and J.W. occurred later
that day. There is no indication in the record of M.C.’s
race. M.C. stated that she was a full-time health care
worker at Saint Mary’s Hospital in Waterbury, where
she had been employed for forty-three years. She also
stated that she had lived in Waterbury when she was
younger and had attended Waterbury Catholic High
School but had moved to Watertown thirty-five years
earlier and had lived there ever since. When asked if
she could find her way to Burton Street without seeking
directions, M.C. answered that she could not. M.C. also
indicated that she had never known anyone who had
been charged with a crime or had been the victim of a
crime. In addition, she was highly complimentary of
the Waterbury Police Department and stated that she
had an amicable relationship with the Office of the
State’s Attorney when she worked on several child
abuse cases as a health care worker. M.C. subsequently
was deemed acceptable by both parties.
After M.C. was accepted as a juror, the parties ques-
tioned J.W., who the court noted for the record
appeared to be African-American. J.W. clarified at that
time that he knew Maia through two sources, namely,
his godparents and his ex-wife, whose family knew Maia
very well. Upon further questioning by the prosecutor
regarding his familiarity with the victim, J.W. again indi-
cated that her name sounded familiar. He further
explained that he knew the victim’s brother but was
uncertain if he had known the victim, although he might
have remembered the victim’s name from having heard
about the case in 1999. When asked whether he would
be troubled, after viewing the autopsy photographs, if
he recognized the victim as someone he had known,
J.W. responded: ‘‘Possibly, I’m not too sure.’’
With respect to the names listed by the attorneys,
J.W. said he would have to see a face in order to be
certain of whether he knew the named person and that
he probably had gone to school with a lot of people in
the area. He stated he had grown up in Waterbury, had
attended Crosby High School, and probably knew many
people from Waterbury, although more by face than by
name. He also stated he was ‘‘[a] little’’ familiar with
the Burton Street area but had never hung out there.
He indicated that his ‘‘god brother’’ had been convicted
of armed robbery and attempted murder about twelve
years earlier. He added that he was forty years old
and that some of his ex-wife’s family members were
employed by the Department of Correction.
The prosecutor asked the court to excuse J.W. for
cause, noting that J.W. had expressed familiarity with
the victim’s name and that the victim, like some of
J.W.’s ex-wife’s family members, had worked for the
Department of Correction. The prosecutor also
expressed concern that his key witnesses were from
the north end of Waterbury, the witnesses were within
one or two years of J.W.’s age, and J.W. was likely to
know people from the north end or from the Burton
Street neighborhood, which could color his view of
the testimony adduced at trial. The court denied the
prosecutor’s challenge for cause, explaining that it did
not believe that J.W. showed sufficient familiarity with
the victim or any of the potential witnesses to justify
being excused for cause.
The prosecutor then indicated that he wished to exer-
cise a peremptory challenge with respect to J.W.
Defense counsel responded by asking the court to note
that J.W. and the defendant are both African-American.
She also asked the prosecutor to explain his reasons
for seeking to excuse J.W. The prosecutor reiterated
his earlier concerns regarding J.W.’s possible knowl-
edge of, and opinion regarding, witnesses from a neigh-
borhood with which J.W. was familiar, and the similarity
of J.W.’s age and that of the potential witnesses, adding
that he would have the same concerns if J.W. was Cau-
casian or Hispanic. Defense counsel noted that the pros-
ecutor had not tried to excuse M.C., even though she
had worked at a local hospital for forty-three years and
might also recognize some of the witnesses. The court
immediately rejected defense counsel’s comparison,
however, stating that M.C. had lived in Watertown for
the past thirty-five years and had dealt mostly with staff
rather than patients at the hospital where she worked,
whereas J.W. might actually know some of the wit-
nesses who would testify at trial. The court thus con-
cluded that the prosecutor had articulated a neutral,
nondiscriminatory basis for the peremptory challenge.
Nevertheless, the court stated that it would be watching
to see if a discriminatory pattern developed during the
remainder of the juror selection process, although it
did not believe that such a pattern was ‘‘even close’’ to
developing. The defense did not test any other peremp-
tory challenge by the prosecutor for the remainder of
the jury selection process. At the end of jury selection,
the prosecutor had eight unused peremptory chal-
lenges. One other juror was identified on the record as
African-American, and there is nothing in the record
indicating the race of any of the other venirepersons
questioned or of any of the jurors and alternate
jurors seated.
We begin with the governing legal principles and the
standard of review. ‘‘In Batson . . . the United States
Supreme Court recognized that a claim of purposeful
racial discrimination on the part of the prosecution in
selecting a jury raises constitutional questions of the
utmost seriousness, not only for the integrity of a partic-
ular trial but also for the perceived fairness of the judi-
cial 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 . . . . State v. Peeler, 267 Conn. 611, 620–21, 841
A.2d 181 (2004). . . .
‘‘Under Connecticut law, [o]nce a [party] asserts a
Batson claim, the [opposing party] must advance a neu-
tral explanation for the venireperson’s removal. . . .
The [party asserting the Batson claim] is then afforded
the opportunity to demonstrate that the [opposing par-
ty’s] articulated reasons are insufficient or pretextual.
. . . [T]he trial court then [has] the duty to determine
if the [party asserting the Batson claim] has established
purposeful discrimination. . . . The [party asserting
the Batson claim] carries the ultimate burden of per-
suading the trial court, by a preponderance of the evi-
dence, that the jury selection process in his or her
particular case was tainted by purposeful discrimina-
tion. . . .
‘‘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 the 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 . . . .
‘‘In assessing the reasons proffered in support of the
use of a peremptory challenge . . . [a]n explanation
. . . need not . . . be pigeon-holed as wholly accept-
able or wholly unacceptable . . . and even where the
acceptability of a particular explanation is doubtful, the
inquiry is not at an end. In deciding the ultimate issue
of discriminatory intent, the judicial officer is entitled to
assess each explanation in light of all the other evidence
relevant to [a party’s] intent. The [judicial] officer may
think a dubious explanation undermines the bona fides
of other explanations or may think that the sound expla-
nations 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. . . .
‘‘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. . . . Accord-
ingly, 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. . . . 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.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) State v. Latour, 276 Conn.
399, 408–10, 886 A.2d 404 (2005).
In the present case, the defendant claims that the
prosecutor violated Batson when he accepted a Cauca-
sian venireperson, M.C., who held views similar to those
of an African-American venireperson, J.W., whom the
prosecutor prevented from serving on the jury by way
of a peremptory challenge. The defendant contends that
a side-by-side comparison of J.W. and M.C. shows that
the prosecutor treated African-American venirepersons
differently from other venirepersons and that the prose-
cutor’s failure to explain why he had accepted M.C. but
rejected J.W. requires reversal because the prosecutor
did not rebut the inference of discrimination. Thus, in
the absence of an explanation for the different treat-
ment of these two venirepersons, the defendant claims
he has established purposeful discrimination because
the prosecutor failed to meet his burden of offering a
race neutral explanation for his use of the peremptory
challenge to exclude J.W.
The state responds that the trial court properly
rejected the defendant’s Batson claim because the
record does not support the defendant’s view that M.C.
and J.W. were similar with respect to their familiarity
with the neighborhood in which the crime occurred.
The state also argues that the trial court’s immediate
recognition of the differences between M.C. and J.W.
relative to their familiarity with the neighborhood and
the people involved in the case made it unnecessary for
the prosecutor to articulate other differences between
them. These differences included that J.W.’s ‘‘god
brother’’ was prosecuted for murder in the same Water-
bury courthouse, whereas M.C. had never known any-
one charged with a crime and had worked well with the
Office of the State’s Attorney. We agree with the state.
It is well established that ‘‘[i]f a prosecutor’s proffered
reason for striking a black panelist applies just as well
to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful dis-
crimination to be considered [under Batson] . . . .’’
Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317,
162 L. Ed. 2d 196 (2005); see also State v. Latour, supra,276 Conn. 409. In the present case, the prosecutor exer-
cised a peremptory challenge to exclude J.W. on the
grounds that J.W. had indicated some degree of familiar-
ity with the victim’s name and that the victim had
worked for the Department of Correction, as had some
of J.W.’s ex-wife’s family members. The prosecutor also
was concerned that the state’s key witnesses were from
the same neighborhood with which J.W. was familiar
and were about the same age as J.W., and that J.W.’s
familiarity with a neighborhood witness could color his
view of the witness’ testimony. Although it was the trial
court that responded to defense counsel’s interjection
that the same could be true of anyone from a small
community who was older than twenty-one years of
age,14 the prosecutor provided the required explanation
as to why he had challenged J.W., and the evidence in
the record supported the trial court’s factual finding
that important differences existed between M.C. and
J.W. This included evidence that M.C. was much older
than J.W. because she had been employed for forty-
three years, thus implying that she would not be as
likely to know any witnesses who were about J.W.’s
age. M.C. also no longer lived in Waterbury; indeed, she
had moved to Watertown thirty-five years earlier and
had lived there ever since. In addition, M.C. testified
that she would not be able to find her way to Burton
Street without seeking directions, she had never known
anyone who had been charged with a crime or was the
victim of a crime, and she was highly complimentary
of the Waterbury Police Department. Most significantly,
M.C.’s employment at Saint Mary’s Hospital did not
bring her into constant contact with its patients because
she worked mostly with staff, which limited her poten-
tial exposure to persons living in Waterbury and the
neighborhood in which the crime had occurred. The
trial court also noted, with respect to the prosecutor’s
credibility, that it had presided over other trials at which
the prosecutor selected juries and had no concern that
he ever had sought to excuse potential jurors on the
basis of their race. The court nonetheless stated that
it would look for a pattern of possible discrimination
as the jury selection process continued, although it did
not believe it was ‘‘even close’’ to finding such a pat-
tern.15 Accordingly, under the deferential standard we
apply to claims of purposeful discrimination, we cannot
conclude that the trial court’s findings regarding the
differences between M.C. and J.W., and its finding that
the prosecutor had proffered a race neutral explanation
for his peremptory challenge to exclude J.W. as a juror,
were clearly erroneous. See State v. Latour, supra,409–10.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
2
General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty
of murder when, acting either alone or with one or more persons, he commits
or attempts to commit robbery, burglary, kidnapping, sexual assault in the
first degree, aggravated sexual assault in the first degree, sexual assault in
the third degree, sexual assault in the third degree with a firearm, escape
in the first degree, or escape in the second degree and, in the course of and
in furtherance of such crime . . . he, or another participant, if any, causes
the death of a person other than one of the participants . . . .’’
3
Russell later explained that she had resisted talking to the police for
many years because she lived in Waterbury and was afraid of Lawrence
Andrews, an acquaintance of the defendant, and his friends, but that she
had decided to speak with the police after they attempted to obtain informa-
tion from her sister, in whom she had confided ‘‘a little bit’’ on the evening
of the murder so that she would help Russell leave Waterbury.
4
Reynolds first provided this evidence to the Office of the State’s Attorney
in the judicial district of Waterbury in 2003. The authorities did not use it,
however, until they obtained additional evidence from Russell and received
the DNA results. Reynolds stated at trial that he agreed to testify against
the defendant in exchange for the state’s agreement to allow him to seek
modification of a sentence he then was serving and for the state’s assistance
in keeping him housed at a certain prison facility.
5
The defendant initially was charged by information dated March 4, 2009,
with one count of felony murder. The state subsequently filed a substitute
information dated February 3, 2012, charging the defendant with murder
and felony murder. The felony murder charge was based on theories of both
principal and accessory liability for attempted robbery and/or sexual assault
in the first degree.
6
Readus did not know the woman in the defendant’s car but had seen
her around town. After reading about the victim’s murder in the newspaper,
however, Readus realized that the victim was the woman whom she had seen
in the defendant’s car. It is unclear exactly when the uncharged misconduct
described by Readus occurred, but the record suggests that it occurred
within hours following the victim’s murder. Neither party has argued that
the uncharged misconduct evidence was inadmissible because it occurred
after, rather than before, the charged offenses.
7
The state had argued that, according to its calculations, the victim and
Readus were only three years apart in age and both had had consensual
sex with the defendant around the time of the victim’s murder.
8
The court stated that the state’s proffer suggested that the defendant
reacted to women who had not given him what he wanted by engaging in
sexual violence. In the case of Readus, the defendant engaged in sexual
violence after she argued with him about his unfaithfulness and, in the
victim’s case, after she refused to give the defendant drugs or money.
9
The defense conceded at trial that the uncharged misconduct was not
too remote in time under the first prong of DeJesus, and, therefore, the
defendant does not challenge on appeal the trial court’s decision with respect
to that issue.
10
See State v. Gupta, supra, 297 Conn. 215–19, 226 (finding misconduct
in two cases in which defendant physician improperly touched breasts of
patients during medical exams without bona fide medical purpose dissimilar
to misconduct in third case in which defendant made improper sexual
comments to patient and sucked her breasts during medical exam, and,
therefore, evidence was not cross admissible); State v. Johnson, supra, 289
Conn. 440–43, 455–56 (finding evidence of murders cross admissible under
DeJesus when defendant’s semen was found in or on victims, victims died
from blunt force trauma to head, and victims were found partially nude,
their shirts pushed up, and their pants dangling from their left legs in publicly
accessible but secluded places within one mile of each other); State v.
Snelgrove, supra, 288 Conn. 764 (finding charged and other crimes similar
when defendant met victims in public places on weekend nights, socialized
with victims, left location at same time as victims, engaged in voluntary
sexual activities with victims before committing crime, and attempted to
kill himself following commission of crimes against two of three victims);
State v. DeJesus, supra, 288 Conn. 474–75 (finding charged and uncharged
misconduct similar when defendant used supervisory authority to lure young
female employees with mental disabilities to empty, isolated room on upper
level of store where he sexually assaulted them).
11
The defendant relies on State v. Ellis, 270 Conn. 337, 852 A.2d 676(2004), but Ellis was decided four years before DeJesus and, therefore, is
not among its progeny, as the defendant claims.
12
The defendant also claims that Reynolds’ testimony is not relevant
because this court concluded in State v. Snelgrove, supra, 288 Conn. 763–64
n.9, that the testimony of a jailhouse informant was not pertinent to a
relevancy analysis under DeJesus. We disagree. The defendant takes our
statement in Snelgrove regarding the testimony of a jailhouse informant out
of context. In Snelgrove, the defendant claimed that the testimony of the
jailhouse informant in that case lacked credibility because it had been given
as part of a plea deal pursuant to which the informant ‘‘was spared the
death penalty in his own criminal case . . . .’’ Id., 763 n.9. In response to
that claim, we stated that ‘‘[the informant’s] testimony [was] not pertinent
to our relevancy analysis under DeJesus. The testimony was intended not
to establish that the victim was killed in a manner similar to the manner in
which the defendant had killed [or assaulted the other two victims], but to
establish that the defendant had killed the victim. If we were to assume
that [the informant] was telling the truth, his testimony would be sufficient
to establish the defendant’s guilt, and there would be no need to consider
whether his conduct toward the victim was similar to his conduct toward
[the other two victims]. If [the informant] was lying, there would be no
basis for a conclusion that the victim was strangled.’’ (Emphasis omitted.)
Id., 764 n.9.
To the extent there may be any misunderstanding, we clarify that our
comments in Snelgrove were directed to the credibility of the jailhouse
informant’s testimony in that case, and we did not mean that the testimony
of a jailhouse informant could not be used in conducting a DeJesus analysis.
To the contrary, if a jailhouse informant’s testimony shows not only that a
defendant killed the victim but did so in a certain manner, that testimony,
along with other evidence, may serve as a basis for comparing the charged
and uncharged misconduct evidence to determine whether it is sufficiently
similar for the latter to be deemed admissible.
13
We use the initials of the venireperson to protect his or her legitimate
privacy interests. E.g., State v. Peeler, 267 Conn. 611, 620 n.9, 841 A.2d
181 (2004).
14
Insofar as the defendant claims that the prosecutor failed to satisfy his
burden of providing a race neutral explanation because he did not specifi-
cally address his reasons for not exercising a peremptory challenge against
M.C., he misconstrues the applicable standard. As previously noted, the
party exercising the peremptory challenge must provide a race neutral expla-
nation for the challenge, and the opposing party then must establish that
the explanation is insufficient or pretextual. See, e.g., State v. Latour, supra,276 Conn. 408 (‘‘Under Connecticut law, [o]nce a [party] asserts a Batson
claim, the [opposing party] must advance a neutral explanation for the
venireperson’s removal. . . . The [party asserting the Batson claim] is then
afforded the opportunity to demonstrate that the [opposing party’s] articu-
lated reasons are insufficient or pretextual. . . . [T]he trial court then [has]
the duty to determine if the [party asserting the Batson claim] has established
purposeful discrimination.’’ [Emphasis added; internal quotation marks omit-
ted.]). In the present case, the prosecutor explained its race neutral reasons
for seeking to exclude J.W., and the defense failed to convince the court
that M.C. and J.W. were similar. Thus, because the record supported the
trial court’s reasoning, we defer to its decision.
15
As previously discussed, the record indicates that the defense did not
object to any other of the prosecutor’s peremptory challenges and that the
prosecutor had eight remaining peremptory challenges at the end of the
jury selection process. In addition, one other juror was identified on the
record as being African-American. No other jurors or alternate jurors seated
and no other venirepersons were identified on the record by their race.