State v. Jose A. B.

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STATE OF CONNECTICUT v. JOSE A. B.*
(SC 20332)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of sexual assault in the first degree, attempt to commit sexual
assault in the first degree, sexual assault in the fourth degree, and two
counts of risk of injury to a child, the defendant appealed, claiming that
the trial court improperly had overruled defense counsel’s objections to
the prosecutor’s use of peremptory challenges to excuse two prospective
jurors, C and N, and that his conviction of two counts of risk of injury
to a child violated the constitutional prohibition against double jeopardy.
C is an African-American, and N is also a member of a racial minority. The
prosecutor had explained that the basis for the peremptory challenges
to C and N was their stated distrust of law enforcement and/or the
criminal justice system. Specifically, the prosecutor relied on N’s state-
ments during voir dire indicating that she previously had been convicted
of a crime for which she received a pardon, that she had resented the
police at the time she was arrested but no longer felt that way, and that
her husband’s friend had previously pleaded guilty to sexual assault but
that she did not believe the truth of the allegations against him. With
respect to C, the prosecutor relied on the fact that, although C had
disclosed an incident involving a larceny on his juror questionnaire, he
also revealed during voir dire an undisclosed conviction resulting from
an assault of a police officer, for which C believed he was unfairly
prosecuted. Defense counsel objected to the peremptory challenges on
the basis of the United States Supreme Court’s decision in Batson v.
Kentucky (476 U.S. 79), which prohibits a party from challenging pro-
spective jurors solely on account of their race. The trial court overruled
the Batson challenges, concluding that the reasons proffered by the
prosecutor, namely, N’s resentment toward the police and her criminal
conviction resulting in a pardon, as well as C’s prior arrest for a serious
crime for which he believed he was unfairly prosecuted, were race
neutral and not a pretext for discrimination. From the judgment of
conviction, the defendant appealed. Held:
1. The trial court did not commit clear error in determining that the defendant
had failed to meet his burden of proving, by a preponderance of the
evidence, that the jury selection process in the present case was tainted
by purposeful discrimination:
a. The defendant conceded that the distrust of law enforcement and/or
the criminal justice system is a race neutral reason for exercising a
peremptory challenge under federal constitutional law, and this court
declined to conclude, on the basis of the record in the present case, that
such negative perceptions constitute a facially discriminatory reason for
exercising a peremptory challenge under the Connecticut constitution:
although neither the text nor the history of the relevant provisions (article
I, §§ 1, 8, 19 and 20, as amended) of the Connecticut constitution shed
any light on the scope of permissible reasons for peremptory challenges,
federal precedent provided no support for the defendant’s claim, and
sister state precedent did not provide overwhelming support for that
claim, this court’s recent decision in State v. Holmes (334 Conn. 202)
signaled a shift in this state’s precedent toward ensuring the impartiality
of juries by addressing the problems of implicit bias and disparate impact
during jury selection; moreover, in Holmes, this court recognized that
significant public policy and sociological reasons support the conclusion
that a negative perception of law enforcement is not a race neutral reason
for excluding a prospective juror, considering the disparate impact those
reasons have on racial minorities and, to that end, announced in that
case the creation of the Jury Selection Task Force to study and propose
changes to the jury selection process in Connecticut that would remedi-
ate the issue of racial discrimination and implicit bias in jury selection;
nonetheless, principles of judicial restraint counseled against this court’s
making a new constitutional pronouncement on this issue, as the Jury
Selection Task Force recently had proposed a new rule of practice to
address these concerns, the proposed rule had been submitted to the
judges of the Superior Court for consideration, and the rule-making
process was ongoing; accordingly, this court declined to hold in the
present case that greater protection was warranted under the Connecti-
cut constitution than is provided under the existing federal Batson
scheme.
b. The trial court’s finding that the reasons proffered by the prosecutor
for peremptorily challenging C and N were not a pretext for impermissible
discrimination was not clearly erroneous; the record indicated that the
prosecutor questioned all of the prospective jurors in a similar manner
as to whether they, or someone close to them, had ever been arrested
or charged with a crime, any affirmative responses to those questions
were followed by questions regarding the details of any arrest or charge
and whether it would influence the prospective juror, the more extensive
questioning of C with regard to his criminal history was reflective of the
incomplete answers that he provided in his questionnaire and during
voir dire rather than reflective of a racially discriminatory intent, and
there was no evidence of a pattern of discrimination by the prosecutor
in excluding prospective jurors of a particular race.
2. The defendant could not prevail on his claim that his right to be free
from double jeopardy was violated because risk of injury to a child,
with which the defendant was charged, is a lesser included offense of
sexual assault in the first degree and sexual assault in the fourth degree:
even if it was assumed that the offenses in question arose from the
same act or transaction, the defendant failed to show that those crimes
constituted the same offense for double jeopardy purposes under the
test set forth in Blockburger v. United States (284 U.S. 299), and this
court, in a recently decided case, State v. Tinsley (340 Conn. 425),
rejected the defendant’s argument that, notwithstanding the distinct
elements of each offense charged, a court should consider the facts
alleged in the information when determining whether the statutory ele-
ments of each offense are the same under Blockburger; in the present
case, the crimes of sexual assault in the first degree and sexual assault
in the fourth degree each required proof of a fact that risk of injury to
a child did not, as sexual assault in the first degree required proof that
the defendant engaged in sexual intercourse with the victim and was
more than two years older than the victim, sexual assault in the fourth
degree required proof that the defendant intentionally subjected some-
one under the age of fifteen to sexual contact, and the particular risk
of injury offenses of which the defendant was convicted required proof
of neither of those facts; moreover, because the defendant did not argue
that that the legislature had intended that risk of injury to a child, on
the one hand, and sexual assault in the first or fourth degree, on the
other, should be considered the same offense, he could not rebut the
presumption that those crimes did not constitute the same offense under
Blockburger.
Argued February 26, 2021—officially released March 22, 2022
Procedural History
Substitute information charging the defendant with
two counts of the crime of risk of injury to a child, and
with one count each of the crimes of sexual assault in
the first degree, attempt to commit sexual assault in
the first degree, and sexual assault in the fourth degree,
brought to the Superior Court in the judicial district of
Waterbury and tried to the jury before Doyle, J.; verdict
and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
Drew J. Cunningham, with whom was Damian K.
Gunningsmith, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Elena Ricci Palermo, senior assistant state’s
attorney, for the appellee (state).
Harry Weller, Peter T. Zarella, and C. Ian McLachlan
filed a brief as amici curiae.
Alinor C. Sterling and James J. Healy filed a brief
for the Connecticut Trial Lawyers Association as ami-
cus curiae.
George Welch, human rights attorney, filed a brief for
the Commission on Human Rights and Opportunities
as amicus curiae.
Tadhg Dooley filed a brief for Professors and
Research Scholars at Connecticut’s Law Schools as
amici curiae.
William Tong, attorney general, Clare Kindall, solici-
tor general, and Joshua Perry, special counsel for civil
rights, filed a brief for the Office of the Attorney General
as amicus curiae.
Christine Perra Rapillo, chief public defender, and
Adele V. Patterson, senior assistant public defender,
filed a brief for the Office of the Chief Public Defender
as amicus curiae.
David N. Rosen filed a brief as amicus curiae.
Georgina Yeomans filed a brief for NAACP Legal
Defense and Educational Fund, Inc., as amicus curiae.
Opinion
ROBINSON, C. J. The principal issue in this appeal
asks us to revisit our recent decision in State v. Holmes,
334 Conn. 202, 221 A.3d 407 (2019), and to consider
whether, given the disparate impact on minority com-
munities, a prospective juror’s negative experience
with, or distrust of, the criminal justice system provides
a race neutral reason for the exercise of a peremptory
challenge under the Connecticut constitution. The
defendant, Jose A. B., appeals1 from the judgment of
conviction, rendered after a jury trial, of three counts
of sexual assault or attempt to commit sexual assault
and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2).2 On appeal, the
defendant claims that (1) the trial court improperly
overruled his Batson3 objection to the prosecutor’s
exercise of peremptory challenges to two venire-
persons, and (2) his conviction of two counts of risk
of injury to a child violates his right to be free from
double jeopardy. We disagree, and, accordingly, we
affirm the judgment of the trial court.
The record reveals the following relevant facts, which
the jury reasonably could have found, and procedural
history. The victim lived with the defendant, the defen-
dant’s wife, who was the victim’s legal guardian, and the
victim’s brother, from the time the victim was eighteen
months old. The victim testified that the defendant sex-
ually assaulted her on numerous occasions between
2000 and 2007, when she was between five and twelve
years old.4
The state subsequently charged the defendant with
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2),5 sexual assault in the fourth
degree in violation of General Statutes (Rev. to 2001)
§ 53a-73a (a) (1) (A),6 attempt to commit sexual assault
in the first degree in violation of § 53a-70 (a) (2) and
General Statutes § 53a-49 (a) (2),7 and two counts of
risk of injury to a child in violation of § 53-21 (a) (2).
The case was tried to a jury, which found the defendant
guilty on all counts. The trial court rendered a judgment
of conviction in accordance with the jury’s verdict, sen-
tenced the defendant to a total effective sentence of
seventeen years of imprisonment, followed by two
years of special parole, issued a criminal protective
order and ordered sexual offender registration. This
direct appeal followed.8 Additional relevant facts and
procedural history will be set forth in the context of
each claim on appeal.
I
JURY SELECTION CLAIMS
The defendant first claims that his state and federal
constitutional rights were violated because the state’s
peremptory challenges to two venirepersons, N.L. and
C.J.,9 during jury selection violated Batson v. Kentucky,
476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986). The record reveals the following additional facts
and procedural history relevant to this claim.
During the prosecutor’s voir dire examination of N.L.,
the following exchange occurred:
‘‘[The Prosecutor]: Do you know of anyone who has
ever been accused of a sexual assault besides the one
you just told us about?
‘‘[N.L.]: Yes.
‘‘[The Prosecutor]: Tell me a little bit about that.
‘‘[N.L.]: Well, he was actually a friend of my hus-
band’s. He used to date this girl, and they had kids
together, but she had a son with someone else, and she
didn’t have custody of him. The grandparents did. And
I guess maybe he wanted to, you know, live with them,
and the person got accused of sexually molesting him.
. . . I don’t know if it happened. And he went to jail,
but he’s been out of jail for a long time.10
***
‘‘[The Prosecutor]: Do you think that people [who]
are victims of sexual assault should go to the police?
‘‘[N.L.]: Yes.
***
‘‘[The Prosecutor]: Now, have you or anyone close
to you, besides what you told us, ever been charged or
arrested for a crime?
‘‘[N.L.]: Myself, I have.
‘‘[The Prosecutor]: Can you tell me a little bit about
that?
‘‘[N.L.]: Yeah. It’s years ago. I’ve actually had a pardon.
So I don’t know if I should talk about it.
‘‘The Court: If you have a pardon—I guess the ques-
tion would be, is there anything about that experience
that might affect your ability to be fair and impartial
in this case?
‘‘[N.L.]: I don’t think so.
‘‘[The Prosecutor]: You’re hesitating a little.
‘‘[N.L.]: No, I don’t think so. I think I can separate
the two.11
***
‘‘[The Prosecutor]: Do you think that the fact that
you were arrested and then later pardoned, do you think
that might make you think you might lean more toward
the defense in this case?
‘‘[N.L.]: Not based on that. I would actually have to
hear both sides. Then I can make a decision from there.
‘‘[The Prosecutor]: Do you think you would hold it
against the state because of what happened?
‘‘[N.L.]: No.
***
‘‘[The Prosecutor]: All right. There will . . . proba-
bly [be] testimony from at least one police officer in this
case. What’s your feeling about the police in general?
‘‘[N.L.]: Well, I ha[d] a lot of resentment when I got
arrested, but, over time, I’ve learned that whatever hap-
pened was not their fault. It was something that I did.
And I actually have members that are police officers.
‘‘[The Prosecutor]: Members of [your] family?
‘‘[N.L.]: Mm-hmm.
***
‘‘[The Prosecutor]: So, you held a lot of resentment
at one time for the police. And now?
‘‘[N.L.]: No.
‘‘[The Prosecutor]: Have you ever had to call the
police yourself for any reason?
‘‘[N.L.]: Yeah.
‘‘[The Prosecutor]: For what?
‘‘[N.L.]: Domestic, when I was like real young.’’ (Foot-
notes added.)
Upon conclusion of the voir dire examination of N.L.,
the prosecutor exercised a peremptory challenge. The
prosecutor stated, inter alia, that N.L.’s articulated
resentment toward the police and her criminal history
of a conviction resulting in a pardon warranted the
use of a peremptory challenge.12 Defense counsel then
raised a Batson objection to the state’s peremptory
challenge of N.L. The trial court overruled defense coun-
sel’s Batson objection, concluding that the prosecutor’s
proffered reasons for the peremptory challenge of N.L.
were race neutral and not a pretext for discrimination.13
The prosecutor subsequently conducted a voir dire
examination of C.J., during which they discussed C.J.’s
arrest history, which C.J. had only partially disclosed
in his juror questionnaire:
‘‘[The Prosecutor]: Have you or anyone close to you
ever been arrested for any kind of crime?
‘‘[C.J.]: I have been arrested for a crime.
‘‘[The Prosecutor]: For what, sir?
‘‘[C.J.]: Well, a long time ago, coming out [of] my
aunt’s building, an undercover police officer grabbed
my arm, and I’m thinking it’s a robbery, so I swung to
get him off of me, but then that—then everything took
place. Then I find out he was a police officer.
‘‘[The Prosecutor]: Okay. So you were arrested for
‘‘[C.J.]: Yes.14
***
‘‘[The Prosecutor]: You gave a little information on
your juror questionnaire, and you . . . put down some-
thing about larceny six, but dropped from my job. . . .
What’s that mean?
‘‘[C.J.]: . . . I worked at Stop and Shop for almost
twelve years. All right. We had a hectic night one night.
I had my stuff in a carriage, and I was the key holder,
so, when I was leaving . . . I grabbed my carriage, but
. . . because of the night, I didn’t scan those things
out, so they put a larceny six, but they dropped it—all
that. But that was in 2011.15
***
‘‘[The Prosecutor]: Okay. Besides that, any other time
you or anyone else close to you [has] ever been
arrested?
‘‘[C.J.]: No.’’ (Footnotes added.)
The state then questioned C.J. regarding his attitude
toward the police and the criminal justice system:
‘‘[The Prosecutor]: Do you think the fact that you
have been arrested and [that] you’ve kind of dealt with
the criminal justice system, do you think that might
play a part in your deliberations if you’re a juror?
‘‘[C.J.]: Not really.
‘‘[The Prosecutor]: What do you mean?
‘‘[C.J.]: Because, at the end of the day, all these
offense[s] you [are] talking about happened over thirty
years ago.
‘‘[The Prosecutor]: Okay. . . . The fact that you were
arrested [for] the larceny six that ended up getting
dropped. Do you think that you might hold a grudge
against the state because of your background?
‘‘[C.J.]: No.
‘‘[The Prosecutor]: Do you think you were fairly pros-
ecuted?
‘‘[C.J.]: Do I think I was fairly prosecuted? Not on
the first one, no.
‘‘[The Prosecutor]: No? That was the one with the—
‘‘[C.J.]: The assault—
‘‘[The Prosecutor]: —assault?
‘‘[C.J.]: —on the police officer.
‘‘[The Prosecutor]: And that was in Hartford?
‘‘[C.J.]: That was in Hartford. . . .
‘‘[The Prosecutor]: What’s your opinion of the police?
‘‘[C.J.]: I don’t have no opinions on [the] police
because, in my whole family, there’s massive police
officers. Chief of police was my uncle, so I don’t have
[an] opinion on none of them. There’s good police, and
there’s bad police, so I don’t have an opinion on that.
I treat people as individuals.’’
The prosecutor first moved to excuse C.J. for cause,
given his failure to account completely for his past
convictions in his questionnaire by omitting his arrest
for assaulting a police officer. Defense counsel objected
to the challenge for cause, arguing that C.J.’s recollec-
tion had been affected by the length of time that had
passed since his arrest. The trial court agreed with
defense counsel and denied the state’s challenge for
cause. The prosecutor then exercised a peremptory
challenge, arguing that, in addition to C.J.’s apparent
omissions in completing the questionnaire, the charge
of assaulting a police officer itself was serious in nature
and that C.J. believed that he had been incorrectly and
unfairly prosecuted in that instance. In response,
defense counsel raised a Batson objection. The court
overruled the Batson objection, finding that ‘‘an objec-
tively neutral reason [for the peremptory challenge]
would be the fact that he was previously arrested [and]
charged with a serious crime, even though it was a long
time ago, [and that] he felt he was not fairly treated.’’
The trial court also found that the prosecutor’s race
neutral reason was not a pretext for discrimination.16
Before addressing the defendant’s claims in detail,
we review the well established general principles under
which we consider Batson claims. ‘‘Voir dire plays a
critical function in assuring the criminal defendant that
his [or her] [s]ixth [a]mendment right to an impartial
jury will be honored. . . . Part of the guarantee of a
defendant’s right to an impartial jury is an adequate
voir dire to identify unqualified jurors. . . . Our consti-
tutional and statutory law permit[s] each party, typically
through his or her attorney, to question each prospec-
tive juror individually, outside the presence of other
prospective jurors, to determine [his or her] fitness to
serve on the jury. . . . Because the purpose of voir
dire is to discover if there is any likelihood that some
prejudice is in the [prospective] juror’s mind [that] will
even subconsciously affect his [or her] decision of the
case, the party who may be adversely affected should
be permitted [to ask] questions designed to uncover
that prejudice. This is particularly true with reference
to the defendant in a criminal case. . . . The purpose
of voir dire is to facilitate [the] intelligent exercise of
peremptory challenges and to help uncover factors that
would dictate disqualification for cause. . . .
‘‘Peremptory challenges are deeply rooted in our
nation’s jurisprudence and serve as one [state created]
means to the constitutional end of an impartial jury and
a fair trial. . . . [S]uch challenges generally may be
based on subjective as well as objective criteria . . . .
Nevertheless, [i]n Batson [v. Kentucky, supra, 476 U.S.
79] . . . the United States Supreme Court recognized
that a claim of purposeful racial discrimination on the
part of the prosecution in selecting a jury raises consti-
tutional questions of the utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . The court concluded that [a]lthough a prosecutor
ordinarily is entitled to exercise permitted peremptory
challenges for any reason at all, as long as that reason
is related to his [or her] view concerning the outcome
of the case to be tried . . . the [e]qual [p]rotection
[c]lause forbids [a party] to challenge potential jurors
solely on account of their race . . . .
‘‘Under Connecticut law, a Batson inquiry involves
three steps.17 First, a party must assert a Batson claim
. . . . [Second] the [opposing party] must advance a
neutral explanation for the venireperson’s removal.
. . . In evaluating 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. . . . 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. . . . Thus, even if the [s]tate produces only a
frivolous or utterly nonsensical justification for its
strike, the case does not end—it merely proceeds to
step three. . . .
‘‘In the third step, the burden shifts to the party
asserting the Batson objection to demonstrate that the
[opposing party’s] articulated reasons are insufficient
or pretextual.’’ (Footnote altered; footnote omitted;
internal quotation marks omitted.) State v. Holmes,
supra, 334 Conn. 222–24; see, e.g., State v. Edwards,
314 Conn. 465, 483–85, 102 A.3d 52 (2014).
It is undisputed that the defendant has satisfied the
first step of the Batson inquiry as to N.L. and C.J. See
footnote 9 of this opinion. Turning, then, to the second
step of the Batson inquiry, we must determine whether
the prosecutor’s proffered reason for the peremptory
challenges, namely, a prospective juror’s distrust of the
criminal justice system based on his or her personal
experience, was facially race neutral. This is a question
of law, over which we exercise plenary review. See,
e.g., State v. Holmes, supra, 334 Conn. 226.
The defendant first argues that, as a matter of Con-
necticut constitutional law, the prosecutor’s proffered
reasons for the peremptory challenges were facially
discriminatory based on race, given their disparate
impact on members of minority groups.18 We address
this argument under the state constitution before turn-
ing to the third step of the Batson inquiry, namely, the
defendant’s alternative claim that, even if race neutral,
any proffered reason by the prosecutor was a pretext
for purposeful discrimination.
A
State Constitutional Claim as to the Second
Prong of the Batson Inquiry
The defendant claims that certain provisions of the
Connecticut constitution, namely, §§ 1, 8, 19 and 20 of
article first, as amended,19 provide broader protection
than does the federal constitution with respect to the
exercise of peremptory challenges and the right to an
impartial jury. The defendant contends, therefore, that
our state constitution prohibits the exercise of peremp-
tory challenges based on a venireperson’s distrust of
the criminal justice system or law enforcement.20 In
response, the state argues that an absolute bar to chal-
lenging any venireperson who expresses distrust in the
criminal justice system presents an unworkable
approach that is not supported by the text of the applica-
ble state constitutional provisions. The state further
argues that we should exercise decisional restraint in
light of the recent findings and recommendations of
the Jury Selection Task Force (Task Force), including
the Task Force’s proposed change to the rules of prac-
tice, which was pending before the Rules Committee
of the Superior Court (Rules Committee) when this
appeal was argued and has since been submitted for a
public hearing before the judges of the Superior Court.
Although the defendant’s arguments are compelling in
light of recent case law and research concerning the
effect of implicit bias, we nevertheless agree with the
state that restraint is warranted at this time with respect
to the adjudication of this issue as a matter of state
constitutional law.
In determining that our state constitution in some
instances provides greater protection than that pro-
vided by the federal constitution, ‘‘we have recognized
that [i]n the area of fundamental civil liberties—which
includes all protections of the declaration of rights con-
tained in article first of the Connecticut constitution—
we sit as a court of last resort, subject only to the
qualification that our interpretations may not restrict
the guarantees accorded the national citizenry under
the federal charter.’’ (Internal quotation marks omit-
ted.) Kerrigan v. Commissioner of Public Health, 289
Conn. 135, 155–56, 957 A.2d 407 (2008).
‘‘In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992), we enumerated the following six factors
to be considered in construing the state constitution:
(1) persuasive relevant federal precedents; (2) the text
of the operative constitutional provisions; (3) historical
insights into the intent of our constitutional forebears;
(4) related Connecticut precedents; (5) persuasive prec-
edents of other state courts; and (6) contemporary
understandings of applicable economic and sociologi-
cal norms, or as otherwise described, relevant public
policies. . . .
‘‘The Geisler factors serve a dual purpose: they
encourage the raising of state constitutional issues in
a manner to which the opposing party . . . can
respond; and they encourage a principled development
of our state constitutional jurisprudence. Although in
Geisler we compartmentalized the factors that should
be considered in order to stress that a systematic analy-
sis is required, we recognize that they may be inextrica-
bly interwoven. . . . [N]ot every Geisler factor is rele-
vant in all cases. . . . Moreover, a proper Geisler
analysis does not require us simply to tally and follow
the decisions favoring one party’s state constitutional
claim; a deeper review of those decisions’ underpin-
nings is required because we follow only persuasive
decisions. . . . The Geisler analysis applies to cases
in which the state constitution has no federal analogue,
as well as those in which the claim is that the state
constitution provides greater protection than does the
federal constitution.’’ (Citations omitted; internal quota-
tion marks omitted.) Fay v. Merrill, 338 Conn. 1, 26–27,
256 A.3d 622 (2021); see, e.g., Feehan v. Marcone, 331
Conn. 436, 449, 204 A.3d 666, cert. denied, U.S. ,
140 S. Ct. 144, 205 L. Ed. 2d 35 (2019).
1
Constitutional Language
We begin with the first Geisler factor, namely, the
relevant constitutional text. See, e.g., Feehan v. Mar-
cone, supra, 331 Conn. 450–51; Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 409–10, 119
A.3d 462 (2015). Article first, § 19, of the Connecticut
constitution, as amended by article four of the amend-
ments, provides in relevant part: ‘‘The right of trial by
jury shall remain inviolate, the number of such jurors,
which shall not be less than six, to be established by
law . . . . In all civil and criminal actions tried by a
jury, the parties shall have the right to challenge jurors
peremptorily, the number of such challenges to be
established by law. The right to question each juror
individually by counsel shall be inviolate.’’ (Emphasis
added.) We conclude that this Geisler factor does not
favor either party because ‘‘this generally phrased con-
stitutional language is at best ambiguous with respect
to the constitutional issue presented in this appeal.’’
Doe v. Hartford Roman Catholic Diocesan Corp., supra,
409; see id., 409–10 (concluding that ‘‘ ‘without . . .
delay’ ’’ language in article first, § 10, was ambiguous
as to whether undue delay in administration of justice
is unconstitutional).
The defendant argues that, because article first, § 19,
of the Connecticut constitution, unlike the applicable
provisions of the federal constitution that govern crimi-
nal jury trials,21 specifically references the right to
peremptory challenges, a more expansive right to an
inclusive jury is available under the state constitution.
We agree with the defendant that Connecticut’s consti-
tution provides an express right to peremptory chal-
lenges, which the federal constitution does not guaran-
tee, and that ‘‘[j]ury impartiality is a core requirement
of the right to trial by jury guaranteed by the constitu-
tion of Connecticut, article first, § 8 . . . .’’ (Footnote
omitted; internal quotation marks omitted.) State v.
Rhodes, 248 Conn. 39, 46, 726 A.2d 513 (1999). However,
even when read in the context of the state constitution’s
equal protection clause; see Conn. Const. art. I, § 20;
the plain language of article first, § 19, sheds no light
on the scope of permissible reasons for peremptory
challenges under the state constitution; its breadth
could also be understood not to warrant additional
restrictions on a litigant’s exercise of that right to exer-
cise peremptory challenges. Put differently, the text of
the applicable provisions of the Connecticut constitu-
tion does not provide guidance as to whether particular
reasons for peremptory challenges are constitutional
and, therefore, neutral with respect to whether distrust
of law enforcement or the criminal justice system is a
constitutionally valid, race neutral reason for the exer-
cise of a peremptory challenge. Accordingly, with the
text being not dispositive, we continue with our review
of the other Geisler factors. See, e.g., Fay v. Merrill,
supra, 338 Conn. 36.
2
Constitutional History
Neither party has cited any historical source that
discusses negative perceptions of the criminal justice
system or law enforcement as an unconstitutionally
discriminatory ground on which to base a peremptory
challenge. Although it is of limited value to our inquiry
in this case, we now briefly consider the history of voir
dire and peremptory challenges under the Connecticut
constitution generally. See, e.g., Doe v. Hartford Roman
Catholic Diocesan Corp., supra, 317 Conn. 410–11. The
right to a trial by jury was established in Connecticut
as early as 1636. See W. Horton, The Connecticut State
Constitution (2d Ed. 2012) p. 90. ‘‘Prior to the adoption
of the fourth amendment to Connecticut’s constitution,
article first, § 19 provided only that ‘[t]he right of trial
by jury shall remain inviolate.’ In 1971, in response to the
increasing congestion of court dockets and mounting
court costs, the legislature proposed a constitutional
amendment to permit mandatory [six person] juries in
place of [twelve person] juries in certain circumstances.
. . . In order to preserve what the legislature perceived
as the fundamental character of jury trials, however,
the proposed amendment contained two provisions
guaranteeing that parties would continue to have cer-
tain rights, previously granted only by statute, regarding
the selection of individual jurors. As adopted by the
electors of Connecticut in 1972, the amendment consti-
tutionalized the right of the parties ‘to challenge jurors
peremptorily’ and the right ‘to question each juror indi-
vidually by counsel.’ ’’ (Citations omitted; footnote
omitted.) Rozbicki v. Huybrechts, 218 Conn. 386, 391–
92, 589 A.2d 363 (1991). This amendment, however,
predated the United States Supreme Court’s decision
in Batson by fourteen years.
‘‘The purpose and effect of [article first, §§ 8 and 19]
is to preserve . . . as a political right the institution of
jury trial, in all its essential features as derived from
our ancestors and [existent] by force of our common
law.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Griffin, 251 Conn. 671, 694, 741 A.2d
913 (1999). A discussion by Chief Justice Zephaniah
Swift, written in 1822, describes the ways in which an
impartial jury may be secured and demonstrates that
such challenges to venirepersons were intended to
exclude jurors with bias, including bias resulting from
favor or enmity toward either party: ‘‘Challenges to
the polls, or to particular jurors, are [1], the want of
qualifications, [2] for crimes, and [3] for partiality. . . .
‘‘[3] A juror may be challenged for suspicion of bias,
or partiality, which may be either a principal challenge,
or a challenge to the favour.
***
‘‘Challenges to the favour, are founded merely on
probable circumstances of suspicion, as particular
friendship or enmity to either of the parties: and where
the court has reason to think that there is such a bias
or prejudice on the mind of a juror, as renders it proba-
ble there will not be a candid and fair trial, they have
a discretionary power to dismiss him . . . but they
ought not to indulge any unreasonable and groundless
suspicion of the party.’’ (Emphasis added; footnotes
omitted.) 1 Z. Swift, A Digest of the Laws of the State of
Connecticut (1822) pp. 737–38; accord State v. Griffin,
supra, 251 Conn. 693–94. Although Chief Justice Swift’s
discussion is interesting to the extent that he observes
that contemplated sources of unwanted bias, justifying
exclusion of a juror from service, could well include
enmity toward a party to the case, the value of his
insights with respect to the Batson inquiry in this case
is ultimately diminished by the fact that, in his time,
only landowning males were qualified to serve as jurors.
See 1 Z. Swift, supra, p. 737. Thus, historical insights
into the intentions of our constitutional forebears are
not particularly instructive with respect to the defen-
dant’s state constitutional claim.
3
Federal Precedent
Federal precedent does not support the defendant’s
claim with respect to the disparate impact of a peremp-
tory challenge based on a prospective juror’s distrust
of law enforcement and the criminal justice system. ‘‘In
Hernandez [v. New York, 500 U.S. 352, 362–63, 111 S.
Ct. 1859, 114 L. Ed. 2d 395 (1991)], the United States
Supreme Court concluded that a prosecutor had not
violated Batson by using peremptory challenges to
exclude Latino jurors by reason of their ethnicity when
he offered as a race neutral explanation his concern
that bilingual jurors might have difficulty accepting the
court interpreter’s official translation of multiple wit-
nesses’ testimony given in Spanish. . . . In so conclud-
ing, the Supreme Court rejected the argument that the
prosecutor’s reasons, if assumed to be true, were not
race neutral and thus violated the equal protection
clause as a matter of law because of their disproportion-
ate impact on Latino jurors.’’ (Citation omitted.) State
v. Holmes, supra, 334 Conn. 228. ‘‘[T]he only post-Her-
nandez cases we have located on [whether distrust of
law enforcement or the criminal justice system is not
a race neutral reason under Batson for exercising a
peremptory challenge] have expressly rejected this dis-
parate impact argument.’’22 Id., 231–32. Moreover, the
defendant has not cited any concurrences, dissents, or
other federal authority on point. Therefore, this Geisler
factor does not support the defendant’s state constitu-
tional claim.
4
Connecticut Precedent
The defendant begins his analysis of Connecticut
precedent with well established case law from this court
construing the due process protections under article
first, § 8, of the Connecticut constitution not to impose
the same meaning and limitations as its federal counter-
part. See, e.g., State v. Morales, 232 Conn. 707, 717–18,
657 A.2d 585 (1995). He then contends that we should
extend a greater state constitutional protection against
racial bias in the exercise of peremptory challenges.
Although we agree with the defendant that our state
constitution affords greater protections to peremptory
challenges than is provided by the federal constitution,
that does not—without more—resolve the question of
whether particular reasons for striking jurors are race
neutral as a matter of state constitutional law.
As the defendant acknowledges, a line of Connecticut
cases has addressed whether a prosecutor’s reason for
a peremptory challenge is race neutral if there is a
disparate impact on jurors of a certain racial group.
For instance, in State v. Smith, 222 Conn. 1, 14, 608
A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121
L. Ed. 2d 293 (1992), this court recognized that prosecu-
tors commonly seek to exclude from juries those indi-
viduals who have had negative interactions with law
enforcement ‘‘because they fear that such people will
be biased against the government.’’ The court ‘‘decline[d]
to ascribe a racial animus to the state’s excusal of a
venireperson with an arrest record simply because that
venireperson was [B]lack.’’ Id.; see State v. King, 249
Conn. 645, 666, 735 A.2d 267 (1999) (prosecutor’s rea-
sons for striking venireperson were ‘‘not motivated by
discriminatory considerations’’ because ‘‘it was reason-
able for the prosecutor to conclude that [the prospec-
tive juror’s] concerns about the fairness of the criminal
justice system might make it difficult for him to view
the state’s case with complete objectivity’’); State v.
Hodge, 248 Conn. 207, 231, 726 A.2d 531 (venireperson’s
past experiences with law enforcement and perception
that family had been treated unfairly were race neutral
reasons for state to exercise peremptory challenge),
cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d
319 (1999); State v. Jackson, 73 Conn. App. 338, 350–51,
808 A.2d 388 (rejecting defendant’s disproportionate
impact argument against prosecutor’s race neutral
explanations), cert. denied, 262 Conn. 929, 814 A.2d 381(2002), and cert. denied, 262 Conn. 930, 814 A.2d 381(2002); State v. Morales, 71 Conn. App. 790, 807, 804 A.2d
902 (prospective juror’s ‘‘negative opinion concerning
police performance’’ was valid, nondiscriminatory rea-
son for peremptory challenge), cert. denied, 262 Conn.
902, 810 A.2d 270 (2002).
Beyond this line of cases, this court has previously
held—in a decision that the defendant asks us to over-
rule—that there is ‘‘nothing in the language of article
first, § 8, to suggest that the meaning of the term ‘impar-
tial jury’ in our state constitution is different from the
meaning of that same term in the federal constitution—
namely, a jury that is: (1) composed of individuals able
to decide the case solely on the evidence and [to] apply
the law in accordance with the court’s instructions; and
(2) properly selected from venire panels comprising a
representative cross section of the community.’’ State
v. Griffin, supra, 251 Conn. 691–92; see id., 708–709
(‘‘the death qualification process’’ does not violate capi-
tal defendant’s state constitutional right to impartial
jury). Moreover, in discussing the purpose of voir dire
leading to a challenge for cause or peremptory chal-
lenge, we have observed that, especially with respect
to criminal defendants, ‘‘[i]f there is any likelihood that
some prejudice is in the juror’s mind [that] will even
subconsciously affect his [or her] decision of the case,
the party who may be adversely affected should be
permitted questions designed to uncover that preju-
dice.’’ (Internal quotation marks omitted.) Id., 698–99.
In asking us to overrule or limit this line of cases,
the defendant relies heavily on criticisms, in recent
opinions of this court and the Appellate Court, of the
adequacy of Batson as a remedy for disparate impact
and implicit bias within the jury selection process.23 In
Holmes, we recently stated that, ‘‘[a]lthough Batson has
serious shortcomings with respect to addressing the
effects of disparate impact and unconscious bias, we
decline to throw up our hands in despair at what
appears to be an intractable problem. Instead, we
should recognize the challenge presented by uncon-
scious stereotyping in jury selection and rise to meet
it.’’ (Internal quotation marks omitted.) State v. Holmes,
supra, 334 Conn. 245; see also State v. Holmes, 176
Conn. App. 156, 192–93, 169 A.3d 264 (2017) (Lavine,
J., concurring) (urging reform of Batson procedures
‘‘because this case brings into sharp relief a serious
flaw in the way Batson has been, and can be, applied,’’
which ‘‘must be remedied if the jury selection process
is to attain the goal of producing juries representing
all of the communities in our state and gaining their
confidence and trust’’), aff’d, 334 Conn. 202, 221 A.3d
407 (2019). We then announced the creation of the Task
Force, to be appointed by the Chief Justice; State v.
Holmes, supra, 334 Conn. 250; anticipating that it would
‘‘propose meaningful changes to be implemented via
court rule or legislation, including, but not limited to
(1) proposing any necessary changes to General Stat-
utes § 51-232 (c),24 which governs the confirmation form
and questionnaire provided to prospective jurors, (2)
improving the process by which we summon prospec-
tive jurors in order to ensure that venires are drawn
from a fair cross section of the community that is repre-
sentative of its diversity, (3) drafting model jury instruc-
tions about implicit bias, and (4) promulgating new
substantive standards that would eliminate Batson’s
requirement of purposeful discrimination.’’ (Footnote
in original.) Id., 251–52.
Notwithstanding past precedent in this state rejecting
disparate impact arguments in the context of jury selec-
tion, we conclude that the state precedent factor has
recently shifted in light of this court’s resolve in Holmes
to ensure the impartiality of juries by addressing the
problems of implicit bias and disparate impact during
jury selection. Our recent criticism of the shortcomings
of the Batson process in Holmes, with concrete action
taken by the formation of the Task Force, supports the
conclusion that Connecticut’s case law has squarely
identified the ineffectiveness of Batson in addressing
the effects of implicit bias and disparate impact on the
rights of members of minority communities during the
jury selection process. This concern remains salient,
notwithstanding our conclusion in part I B of this opin-
ion that the prosecutor’s reasons for the peremptory
challenges at issue in this case were not a pretext for
racial discrimination.
5
Sister State Precedent
The defendant does not cite any sister state court
decision that has held, as a matter of state constitutional
law, that a negative perception of law enforcement or
the criminal justice system is a facially discriminatory
reason to exclude a venireperson under the second
step of Batson. Indeed, a review of sister state court
decisions reveals the opposite. See People v. Hardy, 5
Cal. 5th 56, 81, 418 P.3d 309, 233 Cal. Rptr. 3d 378 (2018)
(‘‘[a] prospective juror’s distrust of the criminal justice
system is a [race neutral] basis for his excusal’’ (internal
quotation marks omitted)), cert. denied, U.S. ,
139 S. Ct. 917, 202 L. Ed. 2d 648 (2019); State v. Mootz,
808 N.W.2d 207, 219 (Iowa 2012) (‘‘[Iowa] cases have
repeatedly noted that a juror’s interactions with law
enforcement and the legal system are a valid, [race
neutral] reason for a peremptory challenge’’); State v.
Pendleton, 725 N.W.2d 717, 727 (Minn. 2007) (‘‘we are
not persuaded that the state’s reference to the prospec-
tive juror’s equivocal feeling toward [the] police, as
a result of her negative encounter with the [Willmar,
Minnesota] police, is evidence that the state racially
discriminated against the prospective juror by exercis-
ing a peremptory challenge’’); State v. Nave, 284 Neb.
477, 487–88, 821 N.W.2d 723 (2012) (‘‘ ‘heightened dis-
trust of law enforcement personnel’ ’’ was race neutral
reason for peremptory challenge), cert. denied, 568 U.S.
1236, 133 S. Ct. 1595, 185 L. Ed. 2d 591 (2013).
Some states—consistent with our decision in
Holmes—have elected to address the failings of Batson
through means other than construing state constitu-
tional provisions to demand other protections. Leading
the way is the Washington Supreme Court’s decision
in State v. Saintcalle, 178 Wn. 2d 34, 309 P.3d 326, cert.
denied, 571 U.S. 1113, 134 S. Ct. 831, 187 L. Ed. 2d 691(2013), which upheld ‘‘the trial court’s finding that the
prosecutor had not acted with purposeful discrimina-
tion in exercising a peremptory challenge, but also
[took] the ‘opportunity to examine whether [Washing-
ton’s] Batson procedures are robust enough to effec-
tively combat race discrimination in the selection of
juries’ . . . by convening a work group of relevant
stakeholders to study the problem and [to] resolve it
via the state’s rule-making process, which is superin-
tended by that court.’’ (Citation omitted.) State v.
Holmes, supra, 334 Conn. 246–47. Washington’s highest
court subsequently adopted a comprehensive rule of
practice, Washington General Rule 37, which eliminated
Batson’s requirement of purposeful discrimination in
the use of peremptory challenges. See Wn. Gen. R. 37
(e). Instead, General Rule 37 asks only whether ‘‘an
objective observer could view race or ethnicity as a
factor in the use of the peremptory challenge’’; Wn.
Gen. R. 37 (e); and lists a number of reasons that are
presumptively invalid, including a distrust of law
enforcement. See Wn. Gen. R. 37 (h); see also State v.
Holmes, supra, 334 Conn. 247–49 n.23 (providing full
text of General Rule 37). The highest courts of New
Jersey and Utah have also recently directed consider-
ation of rule based remedies for disparate impact dis-
crimination in jury selection.25 See State v. Andujar,
247 N.J. 275, 317–18, 254 A.3d 606 (2021); State v. Azia-
kanou, 498 P.3d 391, 407 n.12 (Utah 2021).
Nevertheless, our independent research has revealed
two recent state supreme court decisions that support
the defendant’s argument. Most recently, in State v.
Andujar, supra, 247 N.J. 275, which was decided after
oral argument in this appeal, the New Jersey Supreme
Court, while directing a rule based, systemic remedy;
see id., 317–18; also relied on the equal protection and
jury trial provisions in that state’s constitution to con-
clude that ‘‘implicit bias is no less real and no less
problematic than intentional bias. The effects of both
can be the same: a jury selection process that is tainted
by discrimination.’’ Id., 303. The court observed: ‘‘From
the standpoint of the [New Jersey] [c]onstitution, it
makes little sense to condemn one form of racial dis-
crimination yet permit another. What matters is that
juries selected to hear and decide cases are chosen free
from racial bias—whether deliberate or unintentional.’’
Id. The New Jersey court then concluded that the record
demonstrated that the jury selection process in that
case had been tainted by implicit bias, given the prose-
cutor’s request of a criminal background check of a
minority juror who had been seated the day before over
the prosecutor’s objection. Id., 312. That background
check revealed that the juror had not been entirely
truthful in his answers about his personal criminal his-
tory, although his criminal record would not have dis-
qualified him from service. See id., 312–14; see also id.,308–309 (invoking supervisory authority to require ‘‘any
party seeking to run a criminal history check on a pro-
spective juror [to] first get permission from the trial
court,’’ emphasizing that ‘‘the prosecution or defense
should present a reasonable, individualized, [good faith]
basis to believe that a record check might reveal perti-
nent information unlikely to be uncovered through the
ordinary voir dire process,’’ with ‘‘mere hunches’’ being
insufficient and reasons such as distrust of law enforce-
ment being presumptively invalid, and affording both
parties notice and opportunity to be heard).
In State v. Jefferson, 192 Wn. 2d 225, 249, 429 P.3d
467 (2018), the Washington Supreme Court appeared
to exercise its authority to provide greater protections
under the state constitution and modified the Batson
framework, as applied in that state, in order to render
the substance of General Rule 37, adopted after that
court’s decision in State v. Saintcalle, supra, 178 Wn.
2d 34, applicable in pending appeals.26 Bearing in mind
‘‘the pervasive force of unconscious bias’’; State v. Jef-
ferson, supra, 251; the court held that ‘‘the question at
the third step of the Batson framework is not whether
the proponent of the peremptory strike is acting out of
purposeful discrimination. Instead, the relevant ques-
tion is whether ‘an objective observer could view race
or ethnicity as a factor in the use of the peremptory
challenge.’ ’’ (Emphasis in original.) Id., 249. Given the
objective nature of the new standard, the court also
applied de novo review in determining whether race
was a factor in the state’s exercise of a peremptory
challenge. Id., 249–50.
Although there is a persuasive body of recent sister
state case law expressing dissatisfaction with the Bat-
son framework in combatting implicit bias and dispa-
rate impact effects during jury selection, those cases
extending state constitutional protections to this area
are factually or legally distinguishable—at least at this
point. First, the New Jersey and Washington constitu-
tions considered in Andujar and Jefferson, respec-
tively, do not have a specific guarantee of peremptory
challenges like article first, § 19, of the Connecticut
constitution. Second, the Washington court’s decision
in Jefferson followed the final adoption of a court rule
on this point; it rendered that rule’s provisions applica-
ble to pending cases, rather than acting in the first
instance. Thus, neither decision provides overwhelming
support for an ultimate conclusion that the best remedy
at this time for the shortcomings of Batson lies in state
constitutional adjudication.
6
Economic, Sociological, and Public
Policy Considerations
‘‘[T]he economic and sociological considerations fac-
tor . . . is in essence a public policy analysis . . . .’’
Fay v. Merrill, supra, 338 Conn. 50. The public policy
arguments set forth by both parties demonstrate the
complexity and importance of addressing implicit bias
and disparate impact in the jury selection process. As
this court previously recognized, there are significant
public policy and sociological reasons to support the
conclusion that a negative perception or distrust of law
enforcement or the criminal justice system is not a race
neutral reason to exclude a venireperson, given the
disparate impact that such a reason has on racial minori-
ties. See State v. Holmes, supra, 334 Conn. 236–37. As
we stated in Holmes, the Batson framework has widely
been considered ‘‘a toothless tiger when it comes to
combating racially motivated jury selection . . . .’’
Id., 236.
The report of the Task Force commissioned in Holmes
demonstrates the present failings of the Batson frame-
work. The report emphasizes the Task Force’s conclusion
that implicit bias and disparate impact ‘‘ ‘raise extremely
serious concerns with respect to the public perception
and fairness of the criminal justice system.’ ’’ Jury Selec-
tion Task Force, Report of the Jury Selection Task Force
to Chief Justice Richard A. Robinson (December 31, 2020)
p. 19, available at https://jud.ct.gov/Committees/jury_task
force/ReportJurySelectionTaskForce.pdf (last visited
March 15, 2022), quoting State v. Holmes, supra, 334
Conn. 234. The Task Force therefore proposed a new
rule of practice to address the role of implicit bias and
disparate impact insofar as they both contribute to the
exclusion of potential jurors on the basis of race or eth-
nicity, particularly with respect to the exercise of peremp-
tory challenges.27 Jury Selection Task Force, supra, p.
20. The new rule would replace Connecticut’s modified,
three step Batson test with a wholly different methodol-
ogy, eliminating the necessity of proving purposeful
discrimination and considering, instead, whether ‘‘the use
of the challenge against the prospective juror, as reason-
ably viewed by an objective observer, legitimately raises
the appearance that the prospective juror’s race or eth-
nicity was a factor in the challenge . . . .’’ Id., p. 16. The
Task Force’s proposed rule would require trial judges
to articulate their reasoning in ruling on peremptory
challenges and would deem certain reasons for peremp-
tory challenges presumptively invalid. Id. It also would
provide a new standard of appellate review applicable
to claims of racial or ethnic discrimination in jury selec-
tion. Id.
Principles of judicial restraint counsel against this
court making a sweeping constitutional pronouncement
when the process of addressing the deficiencies of Bat-
son is ongoing through the rule-making process, super-
intended by the Rules Committee. Cf. State v. Lockhart,
298 Conn. 537, 561, 4 A.3d 1176 (2010) (declining to
impose electronic recording requirement during custo-
dial interrogations that was not mandated by state con-
stitution because legislature is better suited to decide
policy). The Rules Committee, which has the ability to
conduct hearings and to respond to the positions of the
various stakeholders before recommending action by
the judges of the Superior Court,28 ‘‘is charged . . .
with the responsibility of formulating rules of practice
and procedure that directly control the conduct of litiga-
tion. It sets the parameters of the adjudicative process
that regulates the interactions between individual liti-
gants and the courts.’’ Rules Committee of the Superior
Court v. Freedom of Information Commission, 192 Conn.
234, 246, 472 A.2d 9 (1984). On December 13, 2021,
the Rules Committee voted to submit the Task Force’s
proposed rule for a public hearing prior to consideration
by the judges of the Superior Court. See Rules Commit-
tee of the Superior Court, Minutes of the Meeting (Decem-
ber 13, 2021) p. 2, available at https://www.jud.ct.gov/
Committees/rules/rules_minutes_121321.pdf (last vis-
ited March 15, 2022). Thus, although the public policy
factor weighs substantially in favor of an alteration to
the Batson analysis, it does not support the defendant’s
claim that such a remedy requires us to resort immedi-
atelytonewconstitutionalstandards.Arestrainedapproach
is prudent in these circumstances, particularly given
the ongoing rule-making process previously set into
motion by the comprehensive report and recommenda-
tion of the Task Force.
Having reviewed the relevant case law and materials
revealed by our Geisler analysis, we are not prepared
to conclude, on this record, that a prosecutor’s exercise
of a peremptory challenge on the basis of a venire-
person’s negative perceptions or distrust of law enforce-
ment or the criminal justice system constitutes an
impermissible, race based reason under the Connecti-
cut constitution pursuant to the second step of the
Batson inquiry. Without making any final pronounce-
ment on the matter, or issuing a determination applica-
ble to any and all factual scenarios involving the exer-
cise of peremptory challenges on the basis of negative
perceptions of this nature, we are disinclined on the
present record to hold that greater protection is war-
ranted under the Connecticut constitution than is pro-
vided under the existing federal Batson scheme.
B
Pretext Analysis Under the Third Prong of Batson
We now turn to the third step of the Batson inquiry
to determine whether the reasons provided by the pros-
ecutor in exercising peremptory challenges were pre-
texts for purposeful discrimination.29 See, e.g., State v.
Edwards, supra, 314 Conn. 493. We begin by setting
forth the standard of review. ‘‘The third Batson step
. . . requires the court to determine if the prosecutor’s
proffered race neutral explanation is pretextual. . . .
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 posi-
tioned as the trial court is to make credibility determina-
tions. . . . Whether pretext exists is a factual question,
and, therefore, we shall not disturb the trial court’s
finding unless it is clearly erroneous.’’30 (Internal quota-
tion marks omitted.) State v. Holmes, supra, 334 Conn.
226.
‘‘In evaluating pretext, the court must assess the per-
suasiveness of the proffered explanation and whether
the party exercising the challenge was, in fact, moti-
vated by race. . . . Thus, although an improbable
explanation might pass muster under the second step,
implausible or fantastic justifications may (and proba-
bly will) be found to be pretexts for purposeful discrimi-
nation at the third stage of the inquiry. . . .
‘‘We have identified several specific factors that may
indicate that [a party’s removal] of a venireperson
through a peremptory challenge was . . . motivated
[by race]. These include, but are not limited to: (1) [t]he
reasons given for the challenge were not related to
the trial of the case . . . (2) the [party exercising the
peremptory strike] failed to question the challenged
juror or only questioned him or her in a perfunctory
manner . . . (3) prospective jurors of one race . . .
were asked a question to elicit a particular response
that was not asked of other jurors . . . (4) persons
with the same or similar characteristics but not the
same race . . . as the challenged juror were not struck
. . . (5) the [party exercising the peremptory strike]
advanced an explanation based on a group bias [when]
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 deciding the ultimate issue of discriminatory
intent, the [court] is entitled to assess each explanation
in light of all the other evidence relevant to [a party’s]
intent. The [court] may think a dubious explanation
undermines the bona fides of other explanations or
may think that the sound explanations dispel the doubt
raised by a questionable one. As with most inquiries
into state of mind, the ultimate determination depends
on an aggregate assessment of all the circumstances.
. . . Ultimately, the party asserting the Batson claim
carries the . . . burden of persuading the trial court, by
a preponderance of the evidence, that the jury selection
process in his or her particular case was tainted by
purposeful discrimination.’’ (Internal quotation marks
omitted.) Id., 224–25.
The defendant first argues that the prosecutor’s ques-
tioning of both N.L. and C.J. was uniquely targeted in his
focus on their respective criminal histories. Specifically,
concerning C.J., defense counsel argued during voir
dire, echoed in the defendant’s brief on appeal, that the
prosecutor’s questions to C.J. about his convictions and
the answers in his juror questionnaire were more exten-
sive than those posed to other jurors. In response, the
state argues that the prosecutor’s extended questioning
of C.J. regarding his criminal history was a product of
his incomplete juror questionnaire and the ‘‘piecemeal
disclosure’’ of his criminal history. Similarly, the trial
court noted that the questioning of C.J. was consistent
with the questioning of other jurors.
We conclude that the trial court did not commit clear
error in determining that the race neutral reasons prof-
fered by the prosecutor were not a pretext for impermis-
sible discrimination. The record demonstrates that the
prosecutor asked each potential juror if they, or some-
one who was close to them, had ever been arrested or
charged with a crime. The state further points out that
each affirmative response was followed by questions
regarding the details of that arrest or charge and
whether it would influence that venireperson in his or
her service as a juror. Although the questioning regard-
ing C.J.’s criminal history was more extensive, the
record indicates that the more extensive questioning
reflected the incomplete answers that C.J. had provided
both during voir dire and in his juror questionnaire.
The defendant further points out that, of the four
venirepersons who admitted to having previously been
arrested, the state exercised three peremptory chal-
lenges, and the court dismissed the fourth for cause.
The record does not indicate the races of those venire-
persons, other than C.J. and N.L.,31 and, therefore, it
does not support an inference or a pattern of the prose-
cutor’s exclusion of potential jurors of a particular race.
Indeed, no Batson claim was raised with respect to
either of the other jurors with criminal histories
excused by the prosecutor’s peremptory challenges.
Accordingly, we conclude that the trial court did not
commit clear error in determining that the defendant
failed to meet his burden of proving, by a preponder-
ance of the evidence, that the jury selection process in
his case was tainted by purposeful discrimination.
II
DOUBLE JEOPARDY CLAIMS
The defendant next claims that his right to be free
from double jeopardy was violated as a result of his
conviction of two counts of risk of injury to a child in
violation of § 53-21 (a) (2), in addition to his conviction
of sexual assault in the first degree in violation of § 53a-
70 (a) (2), attempt to commit sexual assault in the first
degree in violation of §§ 53a-70 (a) (2) and 53a-49 (a)
(2), and sexual assault in the fourth degree in violation
of § 53a-73 (a) (1) (A).32 See footnotes 2, 5, 6 and 7
of this opinion (relevant text of statutory provisions).
Relying on the Appellate Court’s decision in State v.
Tinsley, 197 Conn. App. 302, 232 A.3d 86 (2020), rev’d,
340 Conn. 425, 264 A.3d 560 (2021), the defendant
asserts that, as charged in the information, it is not
possible to commit the offenses of sexual assault in the
first and fourth degrees without having already commit-
ted risk of injury to a child and, therefore, that risk of
injury to a child is a lesser included offense of both
sexual assault charges, as described in the information.
In response, the state relies heavily on this court’s deci-
sion in State v. Alvaro F., 291 Conn. 1, 10, 966 A.2d 712,
cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d
140 (2009), and argues that, even if it is assumed that
the offenses arose out of the same act or transaction,
they are not the ‘‘same offense’’ under the well estab-
lished standard set forth in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306(1932). Guided by our recent decision in State v. Tin-
sley, 340 Conn. 425, 264 A.3d 560 (2021), which reversed
the Appellate Court’s decision on which the defendant
relies; id., 428; we conclude that the defendant’s right
against double jeopardy was not violated because the
offenses of sexual assault in the first and fourth degrees
contain distinct elements from that of risk of injury to
a child, rendering them not greater and lesser included
offenses.
We first address the appropriate standard of review.
‘‘A defendant’s double jeopardy claim presents a ques-
tion of law, over which our review is plenary. . . . The
double jeopardy clause of the fifth amendment to the
United States constitution provides: [N]or shall any per-
son be subject for the same offense to be twice put in
jeopardy of life or limb. The double jeopardy clause
[applies] to the states through the due process clause
of the fourteenth amendment. . . . This constitutional
guarantee prohibits not only multiple trials for the same
offense, but also multiple punishments for the same
offense in a single trial.’’ (Internal quotation marks omit-
ted.) State v. Porter, 328 Conn. 648, 654–55, 182 A.3d
625 (2018).
‘‘Double jeopardy analysis in the context of a single
trial is a [two step] process, and, to succeed, the defen-
dant must satisfy both steps. . . . First, the charges
must arise out of the same act or transaction [step one].
Second, it must be determined whether the charged
crimes are the same offense [step two]. Multiple punish-
ments are forbidden only if both conditions are met.
. . . At step two, we [t]raditionally . . . have applied
the Blockburger test to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both statutes in double jeopardy:
[When] the same act or transaction constitutes a viola-
tion of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact which the other does not.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Id., 655; see State v. Miranda, 260 Conn. 93, 125, 794
A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154
L. Ed. 2d 175 (2002); State v. Goldson, 178 Conn. 422,
424, 423 A.2d 114 (1979).
For purposes of the present analysis, we assume,
without deciding, that step one of the Blockburger anal-
ysis is met, that is, that the state alleged in its informa-
tion that the offenses in question arose from the same
act or transaction. We therefore turn to the defendant’s
argument under step two, that is, that risk of injury to
a child is a lesser included offense of sexual assault in
the first and fourth degrees.
‘‘Our case law has been consistent and unequivocal’’
that the second step of Blockburger ‘‘is a technical one
and examines only the statutes, charging instruments,
and bill of particulars as opposed to the evidence pre-
sented at trial.’’ (Internal quotation marks omitted.)
State v. Porter, supra, 328 Conn. 656; see, e.g., State v.
Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert.
denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811(2013). When conducting this analysis, ‘‘we are con-
cerned with theoretical possibilities, and do not focus
on the evidence presented.’’ (Internal quotation marks
omitted.) State v. Mezrioui, 26 Conn. App. 395, 403–404,
602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d
169 (1992).
The defendant argues that, notwithstanding the dis-
tinct elements of each offense charged, risk of injury
to a child is a lesser included offense of sexual assault
in the first and fourth degrees because of how each
charge was alleged in the information. We recently
rejected this argument in State v. Tinsley, supra, 340
Conn. 434. In Tinsley, we clarified that ‘‘the ‘manner
described in the information’ is relevant in determining
whether one crime is a lesser included offense of
another only to the extent the reviewing court is con-
sulting the information in order to determine whether
it alleges distinct elements for each offense, rather than
to determine the particular factual predicate of the
case.’’ Id., 442. Therefore, we now consider the elements
of each charge and consider whether each contains an
element that the other does not.
In the present case, the defendant was convicted of
first degree sexual assault in violation of § 53a-70 (a) (2),
which requires the state to prove that (1) the defendant
‘‘engage[d] in sexual intercourse with another person,’’
(2) ‘‘such other person is under thirteen years of age,’’
and (3) ‘‘the [defendant] is more than two years older
than such person . . . .’’ The defendant was also con-
victed of fourth degree sexual assault in violation of
§ 53a-73a (a) (1) (A). The state had to prove that ‘‘(1)
the defendant intentionally subjected, (2) a person
under the age of fifteen years, (3) to sexual contact.
The term [s]exual contact for the purposes of § 53a-
73a is further defined as any contact with the intimate
parts of a person not married to the actor for the pur-
pose of sexual gratification of the actor or for the pur-
pose of degrading or humiliating such person or any
contact of the intimate parts of the actor with a person
not married to the actor for the purpose of sexual gratifi-
cation of the actor or for the purpose of degrading or
humiliating such person.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Alvaro F., supra, 291
Conn. 10. Finally, the defendant was charged with risk
of injury to a child in violation of § 53-21 (a) (2). ‘‘To
convict the defendant of risk of injury to a child under
§ 53-21 [a] (2), the state must prove that (1) the defen-
dant had contact with the intimate parts of, or subjected
to contact with his intimate parts, (2) a child under the
age of sixteen years, (3) in a sexually and indecent
manner likely to impair the health or morals of such
child.’’ (Internal quotation marks omitted.) Id.; accord
State v. Bletsch, 281 Conn. 5, 28, 912 A.2d 992 (2007).
‘‘Our courts have addressed the relationship between
risk of injury to a child and the various degrees of
sexual assault in the context of double jeopardy claims
on several occasions, each time concluding that the
two crimes do not constitute the same offense’’; State
v. Alvaro F., supra, 291 Conn. 7; and we decline to come
to a different conclusion in the present case.33 See id.,
9 (convictions of risk of injury to child and fourth degree
sexual assault did not violate prohibition against double
jeopardy); State v. Bletsch, supra, 281 Conn. 28–29 (sex-
ual assault in second degree and risk of injury to child
are not same offense because language of two statutes
makes it possible to have ‘‘sexual intercourse’’ under
General Statutes § 53a-71 (a) without touching victim’s
‘‘intimate parts’’ under General Statutes (Rev. to 1999)
§ 53-21 (2), and vice versa); State v. Ellison, 79 Conn.
App. 591, 602, 830 A.2d 812 (sexual assault in second
degree and risk of injury to child are not same offense
because sexual assault in second degree does not
require contact to be ‘‘ ‘in a sexual and indecent manner
likely to impair the health or morals of such child’ ’’),
cert. denied, 267 Conn. 901, 838 A.2d 211 (2003); State
v. Morris, 49 Conn. App. 409, 419, 716 A.2d 897 (‘‘the
element of ‘sexual contact,’ included within the offense
of sexual assault in the fourth degree, is not necessarily
equivalent to the touching of the private parts of a child
in a ‘ ‘‘sexual and indecent manner’’ ’ . . . prohibited
by the risk of injury to a child statute’’ (citation omit-
ted)), cert. denied, 247 Conn. 904, 720 A.2d 516 (1998);
see also State v. James, 211 Conn. 555, 586, 560 A.2d
426 (1989) (‘‘[S]pecific intent is not an element of the
crime defined in the second part of § 53-21 . . . . Only
an intention to make the bodily movement [that] consti-
tutes the act [that] the crime requires, which we have
referred to as a general intent, is necessary.’’ (Citations
omitted; internal quotation marks omitted.)); State v.
Perruccio, 192 Conn. 154, 162, 471 A.2d 632 (‘‘sexual
assault in the fourth degree and risk of injury [to a
child] each require proof of an element not required by
the other’’), appeal dismissed, 469 U.S. 801, 105 S. Ct.
55, 83 L. Ed. 2d 6 (1984); State v. Shaw, 186 Conn. 45,
51, 438 A.2d 872 (1982) (sexual assault in fourth degree
requires additional specific intent element that risk of
injury to child does not).
Sexual assault in the first degree in violation of § 53a-
70 (a) (2) requires proof that the defendant engaged in
sexual intercourse with the victim and was more than
two years older than the victim. Sexual assault in the
fourth degree in violation of § 53a-73a (a) (1) (A)
requires proof that the defendant intentionally sub-
jected someone under the age of fifteen to sexual con-
tact. Risk of injury to a child in violation of § 53-21 (a)
(2) contains neither of those elements. In contrast, that
statute requires proof only that the child was under the
age of sixteen and that the defendant had contact with
the child in a manner likely to impair the child’s health
or morals. From the statutory language, it is evident
that each charge contains an element of proof that
the other does not. Therefore, neither of the offenses
constitutes a greater or lesser included offense of the
other.
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling [when], for example, there is a clear indication
of contrary legislative intent. . . . Thus, the Blockburger
test creates only a rebuttable presumption of legislative
intent, [and] the test is not controlling when a contrary
intent is manifest. . . . When the conclusion reached
under Blockburger is that the two crimes do not consti-
tute the same offense, the burden remains on the defen-
dant to demonstrate a clear legislative intent to the
contrary.’’ (Internal quotation marks omitted.) State v.
Schovanec, 326 Conn. 310, 326, 163 A.3d 581 (2017); see
State v. Tinsley, supra, 340 Conn. 445–46. The defendant
in the present case, however, does not argue that the
legislature intended to treat §§ 53a-70 (a) (2) and 53a-
73a (a) (1) (A), on the one hand, and § 53-21 (a) (2),
on the other, as the same offense for double jeopardy
purposes. Accordingly, we conclude that, because §§ 53a-
70 (a) (2) and 53a-73a (a) (1) (A), and § 53-21 (a) (2)
are not the same offense for double jeopardy purposes,
the defendant’s conviction of two counts of risk of
injury does not violate his right to be free from double
jeopardy.
The judgment is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The defendant appeals directly to this court pursuant to General Statutes
§ 51-199 (b) (3).
2
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . .’’
Although § 53-21 has been amended numerous times since the defendant’s
commission of the crimes that formed the basis of his conviction; see, e.g.,
Public Acts 2007, No. 07-143, § 4; Public Acts 2013, No. 13-297, § 1; those
amendments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of § 53-21 throughout this opinion.
3
Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986).
4
The victim testified that the defendant forcibly kissed her, put his tongue
inside her mouth and on her vagina, attempted, but failed, to insert his penis
in her vagina, touched her breasts and her outer vaginal area, and made
her touch his penis.
5
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’
Section 53a-70 was amended by No. 02-138, § 5, of the 2002 Public Acts
and No. 15-211, § 16, of the 2015 Public Acts. Those amendments made
certain changes to the statute that are not relevant to this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
6
General Statutes (Rev. to 2001) § 53a-73a (a) provides in relevant part:
‘‘A person is guilty of sexual assault in the fourth degree when: (1) Such
person intentionally subjects another person to sexual contact who is (A)
under fifteen years of age . . . .’’
All references to § 53a-73a in this opinion are to the 2001 revision of
the statute.
7
General Statutes § 53a-49 (a) provides in relevant part: ‘‘A person is
guilty of an attempt to commit a crime if, acting with the kind of mental
state required for commission of the crime, he . . . (2) intentionally does
or omits to do anything which, under the circumstances as he believes them
to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.’’
8
Following oral argument, this court sua sponte ordered the parties to
submit simultaneous supplemental briefs, limited to the following issue:
‘‘Whether this court should exercise its supervisory powers to hold, pursuant
to the proposal of the Jury Selection Task Force, that, ‘[t]he denial of an
objection to a peremptory challenge shall be reviewed by an appellate court
de novo, except [that] the trial court’s express factual findings shall be
reviewed under a clearly erroneous standard.’ Jury Selection Task Force,
Report [of the Jury Selection Task Force] to Chief Justice Richard A. Rob-
inson (December 31, 2020) p. 16 [available at https://jud.ct.gov/Committees/
jury_taskforce/ReportJurySelectionTaskForce.pdf (last visited March 15,
2022)]. But see id., pp. 22–23, statement of Judge Douglas Lavine in Opposi-
tion.’’
We also invited amici curiae to file briefs on this issue. We are grateful
to the following amici curiae for responding to our invitation with their
thoughtful briefs: (1) Harry Weller, Peter T. Zarella, and C. Ian McLachlan;
(2) the Office of the Chief Public Defender; (3) the Office of the Attorney
General; (4) the Commission on Human Rights and Opportunities; (5) David
N. Rosen; (6) NAACP Legal Defense and Educational Fund, Inc.; (7) the
Connecticut Trial Lawyers Association; and (8) Professors and Research
Scholars at Connecticut’s Law Schools.
9
We note that the record indicates that C.J. is an African-American man.
The record does not specify the racial identity of N.L., but it is undisputed
that she is a member of a racial minority.
10
The record reveals the following additional colloquy concerning the
sexual assault allegations against N.L.’s acquaintance:
‘‘[The Prosecutor]: This was a friend of—
‘‘[N.L.]: My husband’s.
‘‘[The Prosecutor]: Do you ever talk to him about any of this?
‘‘[N.L.]: No.
‘‘[The Prosecutor]: Were you personally close to this person?
‘‘[N.L.]: Not close, but I know who he is.
‘‘[The Prosecutor]: Anything about that that would make you think, I can’t
sit on this case?
‘‘[N.L.]: No. I didn’t believe the allegations.
‘‘[The Prosecutor]: Why didn’t you believe the allegations?
‘‘[N.L.]: Because of the circumstances, how it was told to me, not me
knowing personally, and [I] didn’t feel like it was true to me. I felt like he
just took it because he’s already been convicted of something else, which
ha[s] nothing to do with that. And he just—I guess they told him, if he didn’t
take the deal, this would happen.
‘‘[The Prosecutor]: Anything about that situation with him that you think
might impact your decision [in] this case?
‘‘[N.L.]: No.’’
11
The record reveals the following additional colloquy about N.L.’s convic-
tion:
‘‘[The Prosecutor]: How long ago was this?
‘‘[N.L.]: ‘97, ‘95, ‘97.
‘‘[Prosecutor]: Did it involve any children?
‘‘[N.L.]: No.
‘‘[The Prosecutor]: Anything about a sexual assault?
‘‘[N.L.]: No.’’
12
The other reasons the prosecutor provided for the peremptory challenge
were (1) N.L.’s initial response that she would not be able to convict the
defendant based on the testimony of a single witness, (2) her initial response
that she would not be able to return a guilty verdict if she were not 100
percent certain, and (3) her disbelief of the allegations of sexual assault
against her husband’s friend.
13
The trial court cited the following additional observation regarding N.L.:
‘‘There was an additional issue that [the prosecutor] did raise . . . which
was when [N.L.] said that she would expect a sexual assault victim to report
[the assault] immediately to the police. That’s obviously not this case. I do
think there were race neutral reasons to remove her at this time.’’
14
The record reveals the following colloquy about C.J.’s arrest for the
incident with the police officer:
‘‘[The Prosecutor]: And when was that?
‘‘[C.J.]: That was over thirty-five years ago, almost forty years ago, proba-
bly. Thirty-five.
‘‘[The Prosecutor]: So did you go to jail?
‘‘[C.J.]: I was already in jail. I never got out.
‘‘[The Prosecutor]: You were in jail for what?
‘‘[C.J.]: Went from the incident, from the time it happened . . . until they
gave me that disposition, so, by the time I got the disposition, it was almost
like time served.
‘‘[The Prosecutor]: Okay. So how much time do you think you—
‘‘[C.J.]: Sixteen months.
‘‘[The Prosecutor]: Okay. And that was how long ago?
‘‘[C.J.]: That was all the way back in ‘87.
‘‘[The Prosecutor]: Besides that one time, were you ever arrested any
other time?
‘‘[C.J.]: No. All—everything ended over thirty years [ago]. That’s it.
‘‘[The Prosecutor]: That’s the only time you were ever arrested?
‘‘[C.J.]: Well . . . everything was in that time period. [Nineteen ninety-
seven] was the end, when the charge was done with.
‘‘[The Prosecutor]: Say that again.
‘‘[C.J.]: All of those arrests [were] in that time frame. It was the same
thing. Violation of probation to all this stuff right here.’’
15
The record reveals the following colloquy with respect to the Stop and
Shop incident:
‘‘[The Prosecutor]: That was—
‘‘[C.J.]: That’s what I was talking about.
‘‘[The Prosecutor]: That was in 2011?
‘‘[C.J.]: In ‘11. So that’s what I was talking about. It was—but they—that
was—I worked for that company.
‘‘[The Prosecutor]: Okay. So—
‘‘[C.J.]: So they—they—that’s how. Because I didn’t have a receipt for
those items, because, through the night . . . I was stocking and everything,
rushing. We had two alarm calls, a whole bunch of things [were] happening,
and, when I was leaving in the morning, I didn’t even pay attention that
those didn’t get scanned out, so when I went to court, they dropped all
that stuff.’’
16
The trial court found the prosecutor’s questioning of C.J. to be consistent
with that of the other prospective jurors, noting: ‘‘[O]n our first day of jury
selection, there was a [prospective] juror . . . who was a white male . . .
who had been previously found not guilty but [who] was prosecuted for
operating under the influence, and he was not selected by the state. . . .
I believe this is a race neutral reason, and I find the questioning so far, from
what I observed, to be consistent and nothing pretextual that would warrant
the court to take further actions.’’
17
‘‘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.’’ (Internal quotation marks omitted.) State v. Holmes, supra, 334
Conn. 223–24 n.15; see 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).
18
The defendant concedes that, as a matter of federal constitutional law
in the wake of the United States Supreme Court’s decision in Hernandez
v. New York, 500 U.S. 352, 362–63, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991),
distrust of law enforcement is a facially race neutral reason to exclude a
potential juror under the United States constitution. See State v. Holmes,
supra, 334 Conn. 231–33; see also footnote 22 of this opinion and accompa-
nying text.
19
Article first, § 1, of the Connecticut constitution provides: ‘‘All men
when they form a social compact, are equal in rights; and no man or set of
men are entitled to exclusive public emoluments or privileges from the
community.’’
Article first, § 8, of the Connecticut constitution, as amended by article
seventeen of the amendments, provides in relevant part: ‘‘In all criminal
prosecutions, the accused shall have a right . . . in all prosecutions by
information, to a speedy, public trial by an impartial jury. No person shall
. . . be deprived of life, liberty or property without due process of law
. . . .’’
Article first, § 19, of the Connecticut constitution, as amended by article
four of the amendments, provides in relevant part: ‘‘The right of trial by
jury shall remain inviolate, the number of such jurors, which shall not be
less than six, to be established by law . . . . In all civil and criminal actions
tried by a jury, the parties shall have the right to challenge jurors perempto-
rily, the number of such challenges to be established by law. The right to
question each juror individually by counsel shall be inviolate.’’
Article first, § 20, of the Connecticut constitution, as amended by articles
five and twenty-one of the amendments, provides: ‘‘No person shall be
denied the equal protection of the law nor be subjected to segregation or
discrimination in the exercise or enjoyment of his or her civil or political
rights because of religion, race, color, ancestry, national origin, sex or physi-
cal or mental disability.’’
20
We note that the defendant did not claim at trial that distrust of the
criminal justice system was not a race neutral reason under either the
state or federal constitution for the peremptory challenges of N.L and C.J.
Although unpreserved, the defendant’s constitutional claims nevertheless
are reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
Golding requires the following conditions to be met in order for a defendant
to prevail on a claim of constitutional error not preserved at trial: ‘‘(1) the
record is adequate to review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . . deprived the defen-
dant of a fair trial; and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged constitutional violation
beyond a reasonable doubt.’’ (Footnote omitted.) State v. Golding, supra,
239–40; see In re Yasiel R., supra, 781.
The state asserts, however, that the defendant’s claim has ‘‘no basis in
fact’’ and, thus, is not reviewable under Golding because ‘‘neither N.L. nor
C.J. was excused on the basis of distrust of the criminal justice system born
of personal experience.’’ The record does not support this argument. The
prosecutor’s stated reasons for excusing both N.L. and C.J. expressly
included, to some extent, their distrust or resentment of the police or the
criminal justice system. In exercising a peremptory challenge to N.L., the
prosecutor referenced N.L.’s criminal history and reluctance to discuss her
prior arrest, as well as her resentment toward the police. Similarly, the
prosecutor referenced C.J.’s apparent reluctance to discuss his criminal
record, as well as his belief that he was not ‘‘correctly accused or rightfully
charged’’ of assaulting a police officer. We therefore disagree with the state’s
argument that there is no basis in fact for the defendant’s claim that both
venirepersons were excused because of their distrust of the criminal jus-
tice system.
21
The fifth amendment to the United States constitution provides in rele-
vant part: ‘‘No person shall . . . be deprived of life, liberty, or property,
without due process of law . . . .’’
The sixth amendment to the United States constitution provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .’’
Section 1 of the fourteenth amendment to the United States constitution
provides in relevant part: ‘‘No State shall . . . deprive any person of life,
liberty or property, without due process of law . . . .’’
22
See United States v. Arnold, 835 F.3d 833, 842 (8th Cir. 2016) (‘‘[a
prospective] juror’s bias or dissatisfaction with law enforcement is a [race
neutral] reason for striking the juror’’ (internal quotation marks omitted));
United States v. Brown, 809 F.3d 371, 376 (7th Cir.) (‘‘we have acknowledged
that bias against law enforcement is a legitimate [race neutral] justification’’),
cert. denied, 578 U.S. 977, 136 S. Ct. 2034, 195 L. Ed. 2d 219 (2016); United
States v. Alvarez-Ulloa, 784 F.3d 558, 567 (9th Cir. 2015) (distrust of law
enforcement is valid ground for peremptory strike); United States v. Moore,
651 F.3d 30, 43 (D.C. Cir. 2011) (‘‘[the prospective juror’s] concern about
‘rogue police officers,’ and a ‘bad experience’ with law enforcement that
‘[l]eft a bad taste’ . . . provided a [race neutral] explanation for the prosecu-
tion’s decision to strike her’’ (citation omitted)), aff’d sub nom. Smith v.
United States, 568 U.S. 106, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013); United
States v. Gamory, 635 F.3d 480, 496 (11th Cir.) (noting that ‘‘[the prospective
juror] harbored doubts about her ability to be impartial based [on] her
belief that her brother had been the victim of police brutality’’ and that this
characteristic ‘‘is [not] peculiar to any race’’), cert. denied, 565 U.S. 1080,
132 S. Ct. 826, 181 L. Ed. 2d 527 (2011); United States v. Carter, 111 F.3d
509, 511–12 (7th Cir. 1997) (prior negative experience with law enforcement
was race neutral reason to exclude prospective juror); United States v.
Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (prospective juror’s potential prejudice
against law enforcement was race neutral reason to exclude him); United
States v. Thomas, Docket No. 2:19-cr-00461-LSC-JHE-3, 2021 WL 76562, *5–6
(N.D. Ala. January 8, 2021) (rejecting defendant’s argument that fear or
distrust of law enforcement is not race neutral reason for peremptory chal-
lenge); Jordan v. Lefevre, 22 F. Supp. 2d 259, 272 (S.D.N.Y. 1998) (‘‘[n]egative
experience with law enforcement has been found to constitute a [race
neutral] factor for peremptorily challenging a [prospective] juror’’), rev’d in
part on other grounds, 206 F.3d 196 (2d Cir. 2000).
23
The defendant also relies on this court’s decision in State v. Brown,
232 Conn. 431, 451, 656 A.2d 997 (1995), which held that the impartial jury
provision of article first, § 8, ‘‘requires the trial court to ensure that a jury
remains impartial and unprejudiced throughout the trial,’’ in tasking our
trial judges with ‘‘an independent obligation’’ to investigate by holding an
evidentiary hearing when alerted of juror misconduct. That decision was,
however, superseded after an en banc rehearing by this court in State v.
Brown, 235 Conn. 502, 525–26, 668 A.2d 1288 (1995), which retreated from
the state constitutional analysis and utilized the court’s supervisory authority
to mandate only a preliminary inquiry into juror misconduct, the scope of
which remains within the trial court’s discretion. See id., 537–38 (Berdon,
J., dissenting) (criticizing majority’s conclusion that hearing was required
under supervisory authority, rather than state constitution, given that ‘‘the
jury is a bedrock of our democracy’’ and that ‘‘the allegations involved the
jury’s possible exposure to racist remarks made by the court’s own sheriffs’’).
24
‘‘General Statutes § 51-232 (c) provides: ‘The Jury Administrator shall
send to a prospective juror a juror confirmation form and a confidential
juror questionnaire. Such questionnaire shall include questions eliciting the
juror’s name, age, race and ethnicity, occupation, education and information
usually raised in voir dire examination. The questionnaire shall inform the
prospective juror that information concerning race and ethnicity is required
solely to enforce nondiscrimination in jury selection, that the furnishing of
such information is not a prerequisite to being qualified for jury service and
that such information need not be furnished if the prospective juror finds
it objectionable to do so. Such juror confirmation form and confidential
juror questionnaire shall be signed by the prospective juror under penalty
of false statement. Copies of the completed questionnaires shall be provided
to the judge and counsel for use during voir dire or in preparation therefor.
Counsel shall be required to return such copies to the clerk of the court
upon completion of the voir dire. Except for disclosure made during voir
dire or unless the court orders otherwise, information inserted by jurors
shall be held in confidence by the court, the parties, counsel and their
authorized agents. Such completed questionnaires shall not constitute a
public record.’ ’’ State v. Holmes, supra, 334 Conn. 251–52 n.27.
25
In this vein, California recently enacted legislation, signed into law on
September 30, 2020, similar in substance to Washington’s General Rule 37
and the rule proposed by the Task Force, that enumerates presumptively
invalid reasons for the exercise of peremptory challenges. See Assembly
Bill No. 3070, §§ 2 and 4 (Cal. 2020), codified at Cal. Civ. Pro. Code § 231.7(Deering Supp. 2021). Similar legislation is pending in Massachusetts, and
several other states are studying the issue through task forces or commis-
sions. See Berkeley Law Death Penalty Clinic, ‘‘Batson Reform: State by
State,’’ available at https://www.law.berkeley.edu/experiential/clinics/death-
penalty-clinic/projects-and-cases/whitewashing-the-jury-box-how-
california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-
jurors/batson-reform-state-by-state/ (last visited March 15, 2022).
We note that Arizona has gone one step further. The Arizona Supreme
Court recently amended that state’s civil and criminal rules of practice to
eliminate peremptory challenges entirely. See Ariz. R. Civ. Proc. 47 (e); Ariz.
R. Crim. Proc. 18.4 and 18.5; see also Berkeley Law Death Penalty Clinic,
supra (noting legislation pending in New York to eliminate peremptory
challenges); see also State v. Holmes, supra, 334 Conn. 254 (Mullins, J.,
concurring) (suggesting ‘‘substantially restricting the use,’’ or ‘‘substantially
reduc[ing] the number,’’ of peremptory challenges as ‘‘the next best thing’’
to their elimination while comporting with provision of peremptory chal-
lenges in article first, § 19, of Connecticut constitution).
26
We note that the doctrinal basis for the Washington court’s decision to
change the Batson framework in Jefferson is not entirely clear. For the
authority to do so, the court does not tie its decision to any particular
provision of the Washington constitution but, instead, cites its prior decisions
in Seattle v. Erickson, 188 Wn. 2d 721, 733–34, 398 P.3d 1124 (2017), and
State v. Saintcalle, supra, 178 Wn. 2d 51. See State v. Jefferson, supra, 192
Wn. 2d 249. The court’s decision in Erickson is doctrinally silent with respect
to the authority for changing the Batson framework, itself citing only to
Saintcalle. See Seattle v. Erickson, supra, 733–34. A review of the cited
portion of Saintcalle reveals that the court discussed, but did need not to
choose, given the rules based disposition of that case, several options for
altering the Batson framework, including both (1) ‘‘authority under federal
law to pioneer new procedures within existing [f]ourteenth [a]mendment
frameworks,’’ and (2) ‘‘greater-than-federal Batson protections to defendants
under the greater protection afforded under [the Washington] state jury trial
right . . . .’’ State v. Saintcalle, supra, 51.
27
The proposed rule provides in relevant part: ‘‘(a) Policy and Purpose.
The purpose of this rule is to eliminate the unfair exclusion of potential
jurors based upon race or ethnicity.
‘‘(b) Scope; Appellate Review. The rule applies to all parties in all jury
trials. The denial of an objection to a peremptory challenge made under
this rule shall be reviewed by an appellate court de novo, except that
the trial court’s express factual findings shall be reviewed under a clearly
erroneous standard. The reviewing court shall not impute to the trial court
any findings, including findings of the prospective juror’s demeanor, which
the trial court did not expressly state on the record. The reviewing court
shall consider only reasons actually given and shall not speculate as to, or
consider reasons, that were not given to explain either the party’s use of
the peremptory challenge or the party’s failure to challenge similarly situated
jurors, who are not members of the same protected group as the challenged
juror. Should the reviewing court determine that the objection was errone-
ously denied, then the error shall be deemed prejudicial, the judgment shall
be reversed, and the case remanded for a new trial.
‘‘(c) Objection. A party may object to the use of a peremptory challenge
to raise a claim of improper bias. The court may also raise this objection
on its own. The objection shall be made by simple citation to this rule,
and any further discussion shall be conducted outside the presence of the
prospective juror.
‘‘(d) Response. Upon objection to the exercise of a peremptory challenge
pursuant to this rule, the party exercising the peremptory challenge shall
articulate the reason that the peremptory challenge has been exercised.
‘‘(e) Determination. The court shall then evaluate from the perspective
of an objective observer, as defined in section (f) herein, the reason given
to justify the peremptory challenge in light of the totality of the circum-
stances. If the court determines that the use of the challenge against the
prospective juror, as reasonably viewed by an objective observer, legiti-
mately raises the appearance that the prospective juror’s race or ethnicity
was a factor in the challenge, then the challenge shall be disallowed and
the prospective juror shall be seated. If the court determines that the use
of the challenge does not raise such an appearance, then the challenge shall
be permitted and the prospective juror shall be excused. The court need
not find purposeful discrimination to disallow the peremptory challenge.
The court must explain its ruling on the record. A party whose peremptory
challenge has been disallowed pursuant to this rule shall not be prohibited
from attempting to challenge peremptorily the prospective juror for any
other reason, or from conducting further voir dire of the prospective juror.
‘‘(f) Nature of Observer. For the purpose of this rule, an objective observer
(1) is aware that purposeful discrimination, and implicit, institutional, and
unconscious biases, have historically resulted in the unfair exclusion of
potential jurors on the basis of their race, or ethnicity; and (2) is deemed
to be aware of and to have given due consideration to the circumstances
set forth in section (g) herein.
‘‘(g) Circumstances considered. In making its determination, the circum-
stances the court should consider include, but are not limited to, the follow-
ing: (i) the number and types of questions posed to the prospective juror
including consideration of whether the party exercising the peremptory
challenge failed to question the prospective juror about the alleged concern
or the questions asked about it; (ii) whether the party exercising the peremp-
tory challenge asked significantly more questions or different questions of
the prospective juror, unrelated to his testimony, than were asked of other
prospective jurors; (iii) whether other prospective jurors provided similar
answers but were not the subject of a peremptory challenge by that party;
(iv) whether a reason might be disproportionately associated with a race or
ethnicity; (v) if the party has used peremptory challenges disproportionately
against a given race or ethnicity in the present case, or has been found by
a court to have done so in a previous case; (vi) whether issues concerning
race or ethnicity play a part in the facts of the case to be tried; (vii) whether
the reason given by the party exercising the peremptory challenge was
contrary to or unsupported by the record.
‘‘(h) Reasons Presumptively Invalid. Because historically the following
reasons for peremptory challenges have been associated with improper
discrimination in jury selection in Connecticut or maybe influenced by
implicit or explicit bias, the following are presumptively invalid reasons for
a peremptory challenge: (1) having prior contact with law enforcement
officers; (ii) expressing a distrust of law enforcement or a belief that law
enforcement officers engage in racial profiling; (iii) having a close relation-
ship with people who have been stopped, arrested, or convicted of a crime;
(iv) living in a high-crime neighborhood; (v) having a child outside of mar-
riage; (vi) receiving state benefits; (vii) not being a native English speaker;
and (viii) having been a victim of a crime. The presumptive invalidity of
any such reason may be overcome as to the use of a peremptory challenge
on a prospective juror if the party exercising the challenge demonstrates
to the court’s satisfaction that the reason, viewed reasonably and objectively,
is unrelated to the prospective juror’s race or ethnicity and, while not seen
by the court as sufficient to warrant excusal for cause, legitimately bears
on the prospective juror’s ability to be fair and impartial in light of particular
facts and circumstances at issue in the case.
‘‘(i) Reliance on Conduct. The following reasons for peremptory challenges
also have historically been associated with improper discrimination in jury
selection: allegations that the prospective juror was inattentive, failing to
make eye contact or exhibited a problematic attitude, body language, or
demeanor. If any party intends to offer one of these reasons or a similar
reason as a justification for a peremptory challenge, that party must provide
reasonable notice to the court and the other parties so the behavior can be
verified and addressed in a timely manner. A party who intends to exercise
a peremptory challenge for reasons relating to those listed above . . . shall,
as soon as practicable, notify the court and the other party in order to
determine whether such conduct was observed by the court or that party.
If the alleged conduct is not corroborated by observations of the court or
the objecting party, then a presumption of invalidity shall apply but may
be overcome as set forth in subsection (h).
‘‘(j) Review Process. The chief justice shall appoint an individual or individ-
uals to monitor issues relating to this rule.’’ Jury Selection Task Force,
supra, pp. 16–18.
28
‘‘The Rules Committee is a body composed of judges of the Superior
Court. Its function is to consider proposed changes in the rules of practice
for the Superior Court, and to recommend amendments to the Practice
Book, which may be adopted by vote of the Superior Court judges. Once
proposed Practice Book amendments have been approved by the Rules
Committee, they are published in the Connecticut Law Journal, and are
subject to public comment before their adoption by the judges.’’ Rules
Committee of the Superior Court v. Freedom of Information Commission,
192 Conn. 234, 237, 472 A.2d 9 (1984).
29
The state argues that ‘‘the defendant’s claim of pretext is inadequately
briefed and deficient because he has failed to demonstrate that [the] trial
court’s finding of no pretext is clearly erroneous on the basis of the entire
. . . record.’’ (Emphasis omitted.) We disagree. The defendant’s brief spends
several pages analyzing the record and comparing the voir dire of C.J. in
particular to that of several other venirepersons in an attempt to establish
pretext. But cf. Getty Properties Corp. v. ATKR, LLC, 315 Conn. 387, 413,
107 A.3d 931 (2015) (claim was inadequately briefed when appellants under-
took ‘‘no analysis or application of the law to the facts of [the] case’’);
Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444 n.40,
35 A.3d 188 (2012) (‘‘Claims are inadequately briefed when they are merely
mentioned and not briefed beyond a bare assertion. . . . Claims are also
inadequately briefed when they . . . consist of conclusory assertions . . .
with no mention of relevant authority and minimal or no citations from the
record . . . .’’ (Citations omitted; internal quotation marks omitted.)).
30
As we noted previously, after oral argument in this appeal, we ordered
supplemental briefing and invited amicus curiae briefs on whether we should
adopt the standard of appellate review proposed by the Task Force, which
would provide for de novo review of denials of objections to peremptory
challenges, with the exception of express factual findings that would remain
subject to the clearly erroneous standard of review. See footnotes 8 and 27
of this opinion. Having considered these thoughtful briefs, we are con-
strained to agree with the state’s argument that it would be premature to
adopt this standard of appellate review before the judges of the Superior
Court take action with respect to the rule of practice proposed by the Task
Force, which the Rules Committee has voted to send for a public hearing
in advance of action by the judges of the Superior Court. Accordingly, at
this time, we decline to adopt the de novo standard of review in the absence
of any change to the substantive Batson inquiry, and we leave that issue
for another day.
31
See footnote 9 of this opinion.
32
Because this double jeopardy claim was not raised at trial, we review
it—at the unopposed request of the defendant—pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). See footnote 20 of this opinion.
33
As this court noted in Alvaro F., although the prior cases addressing
this question involved the pre-1995 amendments to § 53-21, their reasoning
remains relevant and persuasive. See State v. Alvaro F., supra, 291 Conn.
8–9; see also footnote 2 of this opinion.