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State v. Moore

Court of Appeals of Connecticut

November 29, 2016


          Argued September 20, 2016

         Appeal from Superior Court, judicial district of New London, Jongbloed, J.

          Allison M. Near, for the appellant (defendant).

          David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

          Beach, Keller and Norcott, Js.


          KELLER, J.

         The defendant, Darnell Moore, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly (1) denied his motion to strike the jury panel and (2) denied his motion to suppress evidence. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found that during the evening of August 26, 2010, in the vicinity of Lake Street in Norwich, the defendant and the victim, Namdi Smart, [1]became embroiled in an argument over liquor. The defendant, known as ‘‘Boo'' or ‘‘Boo-Boo, '' was accompanied during this initial altercation by his friend, Tjamel Hendrickson, known as ‘‘Soda Pop.'' During the course of the loud, verbal dispute, the victim ripped the defendant's T-shirt. As the defendant walked away from the scene, he was observed pointing to the victim, and was overheard uttering an expletive and stating that he would return to ‘‘get'' the victim.

         Shortly thereafter, Hendrickson called Samuel Gomez on the telephone. He requested that Gomez come to Norwich with a firearm. Gomez drove to Spaulding Street in Norwich, where he met with Hendrickson and the defendant. Gomez handed a .45 caliber handgun to the defendant. Gomez drove the defendant and another man, Jordan Brown, to the vicinity of Lake Street so that the defendant could search for the victim. After the defendant identified the victim, the three men returned to Spaulding Street for a period of time. Thereafter, Gomez drove the defendant and Brown to yet another location, where Gomez parked his automobile. The defendant exited the automobile and, within a few minutes, he shot the victim on Lake Street, causing his death. The shooting was witnessed by three bystanders who lived near the scene of the shooting: Kimberly Harris, Roslyn Hill, and Laryssa Reeves. The defendant, who was dressed in a black hooded sweatshirt, a black hat, a black mask, and jeans, returned to the automobile still in possession of the gun that Gomez had delivered to him. The defendant gave possession of the gun to Brown, who later exited the automobile with it. Gomez drove the defendant to his mother's residence before returning to New London.

         Subsequent to these events, the police arrested the defendant on a murder charge. Following a trial before a jury, the defendant was found guilty, and the court sentenced him to serve a fifty-three year term of incarceration. This appeal followed. Additional facts related to the claims raised in this appeal will be set forth as necessary.


         The defendant's first claim is that the trial court improperly denied his motion to strike the voir dire panel. He argues (1) that the trial court improperly rejected his argument that the voir dire panel did not reflect a fair cross section of the judicial district from which it was drawn, in violation of the sixth amendment to the United States constitution; (2) that the trial court improperly rejected his argument that the jury selection procedure violated his right to equal protection guaranteed by the United States constitution; and (3) that this court should exercise its supervisory authority ‘‘to mandate that the jury administrator collect demographic data so that it is able to follow the statutory directive to prevent [discrimination] in jury selection.'' (Internal quotation marks omitted.) We disagree.

         The following additional facts are relevant to this claim. Jury selection in the defendant's case commenced on November 14, 2012. At that time, defense counsel noted for the record that the defendant was an African-American and that, of the twenty venirepersons brought to the courtroom that day, there were no African-Americans. Defense counsel stated: ‘‘I have no basis to claim that there was any systemic effort to exclude people of color I noted. So, it's available for other purposes and on the record.''

         As jury selection progressed, on November 16, 2012, defense counsel stated for the record that, of sixty-eight venirepersons in the case to that point, ‘‘we've not had one African-American male and, to my knowledge, there's been one woman of color, who we did select as juror number five . . . .'' Defense counsel stated, in relevant part: ‘‘I don't think there's a systemic effort on the part of the state to suppress African-American jury participation, but there certainly is an inadequate effort made to assure it.'' After observing that the defendant was entitled to a jury composed of his peers, defense counsel stated that he was ‘‘now on the cusp of raising this as an issue.''

         On November 27, 2012, defense counsel made further observations with respect to the nature of the venirepersons. He stated that out of four venire panels in the case to that point in time, consisting of ninety-nine venirepersons, there were only two ‘‘people of color, both women. We've not had one black male.'' Defense counsel stated his belief that 14 percent of the population in Connecticut was African-American and that ‘‘the venire that we're getting day by day is not representative of a fair cross section of the community.'' Stating his belief that the racial composition of the venire panels was possibly accidental, but not intentional, defense counsel stated that ‘‘there is a disparate impact in the manner in which juries are being selected, apparently, at this time in this county because I'm not seeing any of my client's peers.'' Responding to the observations made by defense counsel, the prosecutor stated that, although the venirepersons generally did not appear to be racial peers of the defendant, he did not have enough information about such venirepersons to address the issue of their race. The court stated that it would address the issue if requested to do so by the defense.

         On November 28, 2012, the defense filed a written objection to the composition of the venire panels and a request for an evidentiary hearing ‘‘whereby the jury administrator [in New London County] may testify as to how the jury venires are [assembled] to determine whether the defendant's sixth and fourteenth amendment rights to a fair and impartial jury are being infringed.'' The defendant argued that, of approximately 100 venirepersons, there were two African-American women and, to his belief, one male ‘‘who appeared to have African-American features, '' but referred to himself in his jury questionnaire as both Hispanic and Latin American. In his memorandum of law, defense counsel argued that more information was necessary before the defense could set forth a prima facie case that the defendant's rights under the sixth amendment had been violated because the venire panels were not representative of a fair cross section of the community. Specifically, the defendant argued that ‘‘it needs to be determined how many potential jurors are in both the state and in the county, and how those potential jurors are then organized into venires. Without this information, we cannot determine whether there is systemic exclusion that accounts for the underrepresentation of African-Americans in the defendant's jury venire in violation of his sixth and fourteenth amendment rights.'' Defense counsel and the prosecutor requested that the court mark the completed, confidential jury questionnaires in the present case as court exhibits, and the court did so. Attached as exhibits to the defendant's memorandum of law were demographic statistics compiled by the United States Census Bureau. The defendant cited to these exhibits to demonstrate that, in 2011, Connecticut's population was 11.1 percent African-American and that New London's population was 6.5 percent African-American. At the subsequent hearing on the defendant's motion, these exhibits were admitted into evidence absent objection. At the conclusion of the court proceeding on November 28, 2014, defense counsel observed that, once again, the venire panel brought to the courtroom that day did not include any African-American men.

         On December 4, 2012, the court held an evidentiary hearing on the defendant's motion. At that time, defense counsel orally amended his motion to request that the court strike the venire panel. In addition to the confidential jury questionnaires that had been marked as a court exhibit, as well as the census data, the defense presented testimony from six witnesses: Sam Hannan, Esther Harris, Monica Endres, Robert Brothers, Louis Bucari, and Lynn Blackwell.

         Hannan, the information technology manager for jury administration, testified with respect to the manner by which he compiles a master list of jurors for the Judicial Branch. He testified that, in compliance with state law, [2]he generates this master list by compiling information from ‘‘source list[s]'' obtained from four sources: the Department of Revenue Services, the Department of Motor Vehicles, the Department of Labor, and the registrars of voters of each town. Hannan testified that nothing in the information at his disposal provides him with any information with respect to race or ethnicity. Moreover, he testified that he is unaware of any discussions within the jury administrator's office as to whether the master list is likely to produce an adequate and statistically representative cross section of the community as potential jurors. Hannan went on to testify that persons who fail to report for jury duty in compliance with their summonses to do so are automatically referred to the attorney general's office, but he was unable to provide any information with respect to the racial or ethnic characteristics of such persons. Hannan testified that, to his knowledge, there have never been any efforts by his office to systematically exclude members of a certain race from the jury pool.

         Harris, the jury administrator for the Judicial Branch, testified that her duties included summoning jurors, selecting jurors, and utilizing jurors for the superior courts in the state. She stated that she does not collect statistics with respect to the racial characteristics of jurors because she is not required to collect such information. Harris acknowledged that the confidential jury questionnaire that is provided to jurors affords prospective jurors the option of providing information concerning their race, but that the form expressly states that jurors need not furnish such information if they find it objectionable to do so.[3] When asked if she was ‘‘aware of any tool, any procedure, any policy in the Judicial Branch that assures that the list of potential jurors generated from each town reflects the racial composition of that town, '' Harris responded that she was not aware of any. Harris testified that, to her knowledge, neither she nor anyone in her office had systematically excluded persons from the jury selection process on the basis of their race.

         Endres, the jury clerk for New London, testified that she collects questionnaires from those jurors who report for jury duty, but that she does not require them to provide information concerning their race and that she does not record such data. She testified that she has no way of knowing the race of persons who are summoned for jury duty. Endres testified that she does not systematically exclude anyone from being a potential juror on the basis of their race.

         Brothers, the executive director of the Commission on Human Rights and Opportunities, testified that his office did not maintain any racial statistics with respect to persons who file income tax returns, persons who register motor vehicles, persons who file for unemployment compensation, or persons who register to vote. Bucari, the first assistant commissioner and general counsel for the Department of Revenue Services, testified that his office did not maintain any information with respect to the racial characteristics of persons who file income tax returns. Lynn Blackwell, an employee of the Department of Motor Vehicles, testified that the department did not collect any data with respect to racial characteristics.

         The parties stipulated that the secretary of the state did not possess any data with respect to the racial characteristics of registered voters and that there was no way for the secretary of the state to determine the racial composition of the lists provided to the jury administrator. Moreover, the parties stipulated that although the attorney general has the authority to bring enforcement actions against nonappearing jurors, the attorney general had not pursued a case of juror delinquency for at least three years. Finally, the parties stipulated that the Department of Labor did not maintain data with respect to the racial or gender characteristics of recipients of unemployment compensation.

         At the conclusion of the hearing, defense counsel argued that, of approximately 120 prospective jurors in the present case, it appeared that there were three African-American women and no African-American men. Defense counsel stated that the defense did not intend to argue that there was ‘‘any systemic effort to exclude people of color'' from the venire pool. Nonetheless, defense counsel argued, he believed that the defendant had a viable cross-section claim under the sixth amendment as well as an equal protection claim because of the lack of diversity in the venire pool and, particularly, the absence of any African-American men in the venire pool. Defense counsel, relying on the census data, argued that African-Americans generally were vastly underrepresented in the venire pool in light of state and New London County demographics, and stated that ‘‘the question is [whether] this is an isolated snapshot, does it reflect some larger systemic issue. I can't know that and there is no way, based on the evidence that is available to [the defendant], that he can know that, and the reason he can't know that is the state refuses to keep that data.'' Also, defense counsel argued that the Judicial Branch, bound by statute ‘‘to assure a nondiscriminatory [venire] panel, '' had seemingly demonstrated its ‘‘wilful blindness'' with respect to the issue by not compiling or maintaining data with respect to the racial composition of venire panels. He went on to argue that there seemingly had been a lack of any commitment to ensure ‘‘any people of color in this panel . . . .''

         The prosecutor objected to the defendant's motion on the ground that, in light of the lack of racial and ethnic information for many of the venirepersons at issue, the defendant had failed to demonstrate that the state had substantially underrepresented a particular group of prospective jurors. Moreover, the prosecutor argued, the defendant had not demonstrated any wilful or systematic discrimination by way of the race-blind procedures employed in the present case.

         By way of a thorough and well reasoned memorandum of decision, the court denied the defendant's motion to strike the venire panel. The court discussed in detail the evidence presented by the defendant at the hearing on the motion. Among its findings, the court stated: ‘‘A total of 117 potential jurors appeared in Norwich throughout the jury selection process . . . . On a number of occasions during jury selection, counsel for the defendant observed that there were no males who appeared to be African-American on the Norwich jury panels. Counsel observed that there were a total of three females who appeared to be African-American (one of whom was selected to serve on the jury) and one male who indicated on his questionnaire that he was Hispanic/Latino.''

         The court also found: ‘‘No jurors are systematically excluded on the basis of race. None of the witnesses who testified had any way of knowing the racial makeup of the jurors summoned for jury duty in this or any other case other than [from] the information provided voluntarily on the confidential juror questionnaire, which is available for use during voir dire of the particular individual and not retained or recorded.''

         In addressing the defendant's sixth amendment fair cross section claim, the court observed that, under Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the defendant bore the burden of proving that ‘‘(1) the group claimed to be excluded is distinctive in the community, (2) the representation of the group in the jury pool is not fair and reasonable in relation to the number of members of the group in the community, and (3) the underrepresentation is the result of systematic exclusion of the group in the jury selection process.'' (Internal quotation marks omitted.)

         The court, assuming for purposes of its analysis that African-American males were distinctive in the community, stated that ‘‘the defendant has presented no evidence of any statistical analysis to support his claim and no evidence from which the court could conclude any degree of underrepresentation. He points to census data showing that black people represent 6.5 percent of the population of New London County and 11.1 percent of the state of Connecticut. . . . He observed that three jurors in the pool were females who appeared to be African-American or who represented themselves as such on the questionnaire. He concedes that he offered no other data as to the racial makeup of the panel or the percentage of the group in the pool, claiming the information was simply not available. The witnesses testified credibly that no information was maintained as to the racial or ethnic makeup of jurors reporting for jury duty in this judicial district. Although there is a section on the confidential jury questionnaire where jurors may enter that information voluntarily, they are not required to do so. The defendant argues that the action of the state in failing to record or require such information effectively precludes him from satisfying his burden. The defendant, however, provides no authority in support of his contention that the ...

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