March 13, 2017
Alan Black, assigned counsel, for the appellant (defendant).
J. Narducci, senior assistant state's attorney, with whom
were Sarah Bowman, assistant state' sattorney, and, on
the brief, Michael L. Regan, state's attorney, for the
Lavine, Prescott and Beach, Js.
of the crimes of felony murder, home invasion, conspiracy to
commit home invasion and criminal possession of a pistol or
revolver, the defendant appealed. The defendant's
conviction stemmed from an incident in which he and S
allegedly forced their way into the apartment of the victim
and fired ten gunshots from an automatic pistol at the
victim, who died from his injuries. The defendant claimed,
inter alia, that the trial court improperly overruled his
objection, pursuant to Batson v. Kentucky
(476 U.S. 79), to the state's use of a peremptory
challenge to strike W, an African-American prospective juror.
The state exercised its peremptory challenge to exclude W
after he made comments suggesting that he may harbor
resentment toward police and prosecutors, and that he had
concerns regarding the fairness of the criminal justice
trial court properly denied the defendant's
Batson challenge and determined that the state's
use of its peremptory challenge to exclude W from the jury
was not tainted by purposeful racial discrimination, the
state having advanced a plausible and, on its face, race
neutral explanation for its having exercised a peremptory
challenge, and the defendant having failed to show that the
trial court's factual conclusion that the prosecutor did
not act with discriminatory intent in exercising the
peremptory challenge was clearly erroneous; the state's
reasons for excluding W were his stated distrust of police
and the criminal justice system, which clearly related to the
trial of this criminal proceeding, in which the police would
provide significant evidence, the state exercised its
peremptory challenge only after engaging in a detailed
discussion with W about the views he had expressed in
response to defense counsel's questions, the state asked
a relatively uniform set of questions of all jurors, there
was no evidence of any venireperson of a race different from
that of W who expressed the same or similar views regarding
the police and the criminal justice system but who was
nevertheless permitted to serve on the jury, the state did
not advance any explanation that was based on an inapplicable
group trait, and it did not use a disproportionate number of
peremptory challenges to exclude African-Americans from the
jury, which, was comprised in part of three
African-Americans; moreover, our Supreme Court previously has
held that a venireperson's expressed fear of police is a
race neutral ground for exercising a peremptory challenge,
and this court cannot modify a decision of our Supreme Court
and must follow it as binding precedent, and, furthermore,
the state was not required to accept W's assurances that
he believed he could follow the court's instructions and
act as an impartial juror.
defendant could not prevail on his claim that the trial court
improperly admitted a tape-recorded statement of a witness as
a prior inconsistent statement pursuant to State v.
Whelan (200 Conn. 743) because it lacked the
necessary indicia of reliability; the defendant having failed
to adequately brief how he was prejudiced by the court's
allegedly erroneous evidentiary ruling or how it may have
affected the outcome of the trial, he failed to meet his
burden of showing both that the court's evidentiary
ruling was improper and harmful, and, therefore, the claim
was deemed abandoned and this court declined to address its
defendant could not prevail on his claim, raised pursuant to
Doyle v. Ohio (426 U.S. 610), that
the state improperly infringed on his constitutional right to
remain silent when it cross-examined him at trial about his
failure to disclose to the police at the time of his arrest
certain exculpatory information that he later testified to at
trial: although defense counsel raised a Doyle
objection at trial, it was subsequently abandoned, and the
defendant could not prevail on his resurrected Doyle
claim on appeal pursuant to State v.
Golding (213 Conn. 233) because he failed to
demonstrate that a constitutional violation existed that
deprived him of a fair trial, as the record showed that the
defendant voluntarily spoke to a detective after he was in
custody and had been advised of his Miranda rights,
that he did not invoke his right to remain silent until after
he was transported to the police department, that he chose to
tell the detective that neither he nor his girlfriend had
anything to do with the shooting incident and that there was
no gun in his vehicle, and that he nevertheless testified on
cross-examination that he never told the detective certain
facts to which he testified on direct examination, and,
therefore, rather than impermissibly attempting to impeach
the defendant with his choice to remain silent, the
state's cross-examination focused on why, having chosen
to speak with the detective, the defendant never provided the
same exculpatory details that he later testified to at trial;
accordingly, the state properly inquired about the
defendant's prior inconsistent statement to the
detective, and that inquiry did not violate the rule set
forth in Doyle that the impeachment of a defendant
through evidence of his silence following his arrest and
receipt of Miranda warnings violates due process.
information charging the defendant with the crimes of murder,
felony murder, home invasion, conspiracy to commit home
invasion, burglary in the first degree and criminal
possession of a pistol or revolver, brought to the Superior
Court in the judicial district of New London, where the first
five counts were tried to the jury before Jongbloed,
J.; verdict of guilty of the lesser included offense of
manslaughter in the first degree with a firearm, felony
murder, home invasion, conspiracy to commit home invasion and
burglary in the first degree; thereafter, the charge of
criminal possession of a pistol or revolver was tried to the
court; judgment of guilty; subsequently, the court vacated
the verdict as to the lesser included offense of manslaughter
in the first degree with a firearm and burglary in the first
degree, and rendered judgment of guilty of felony murder,
home invasion, conspiracy to commit home invasion and
criminal possession of a pistol or revolver, from which the
defendant appealed; thereafter, the court, Jongbloed,
J., issued an articulation of its decision.
defendant, Evan Jaron Holmes, appeals from the judgment of
conviction, rendered after a jury trial, of felony murder in
violation of General Statutes § 53a-54c, home invasion
in violation of General Statutes § 53a-100aa (a) (2),
and conspiracy to commit home invasion in violation of
General Statutes §§ 53a-48 (a) and 53a-100aa. The
defendant also appeals from the judgment of conviction,
rendered after a trial to the court, of criminal possession
of a pistol or revolver in violation of General Statutes
§ 53a-217.On appeal, the defendant claims that
the trial court improperly (1) overruled his objection to the
state's use of a peremptory challenge to strike an
African-American prospective juror; (2) admitted a
tape-recorded statement of a witness pursuant to State
v. Whelan, 200 Conn. 743, 753, 513 A.2d 86,
cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598
(1986); and (3) permitted the state to cross-examine the
defendant regarding his conversation with a police detective
at the time of his arrest in violation of his right to remain
silent. We are not persuaded by the defendant's claims on
appeal and, thus, affirm the judgment of conviction.
jury reasonably could have found the following facts. During
the early morning hours of November 12, 2011, the defendant,
who recently had been released from prison, attended an
after-hours party at a club in New London with friends,
including Davion Smith. During the party, the defendant was
involved in an altercation outside the club with other
attendees of the party, including Todd Silva. During the
fight, the defendant suffered a laceration on his finger, a
black eye, and other scratches and abrasions on his face.
Following the fight, the defendant was angry and in a highly
around 4 a.m. that same day, the defendant and Smith forced
entry into a third floor apartment at 252 Montauk Avenue in
New London, where the victim, Jorge Rosa, lived. The victim
also was known by his nickname ‘‘Loc'' or
‘‘Loke.'' At that time, Silva lived in
the apartment with the victim.
the apartment, the victim and his girlfriend, Gabriela
Gonzales, were sleeping in his bed. The defendant and
Gonzales previously had been in a romantic relationship that
began in high school, but that relationship had ended when
Gonzales obtained a restraining order against the defendant,
who shortly thereafter went to prison.
awoke to find the defendant and Smith standing at the foot of
her bed, each pointing a gun at the victim. The defendant
asked who ‘‘Loke'' is. The defendant then
fired ten shots from an automatic pistol at the victim, who
died within a few minutes from numerous gunshot wounds,
including several to his chest, arms, and genitalia. The
defendant and Smith subsequently fled the apartment. The
defendant's blood, from his lacerated finger, and DNA
were subsequently found in the stairwell leading up to the
victim's apartment and in various rooms inside the
apartment, including the bedroom.
called 911, and the police arrived a few minutes later.
Although Gonzales initially stated to the police in the 911
call and at the scene that she did not know the identity of
the shooter, within a short period of time and while still at
the scene, she stated that the defendant had shot the victim
and that Smith had accompanied him. She also described the
defendant's automobile, a white ‘‘Crown Vic,
'' to assist the police in locating him.
approximately 4:45 a.m., the defendant picked up his
girlfriend, Shanice Sebastian, and told her that they were
going to stay in a motel. The defendant and Sebastian then
checked into the Days Inn in Old Saybrook, despite the
existence of numerous motels closer to their location in New
London. While at the Days Inn, the defendant admitted to
Sebastian that he had been looking for the kid that
‘‘jumped him, '' that he had gone to the
apartment of Gonzales' boyfriend and shot somebody, and
that he had been with ‘‘his boy.''
approximately 9:30 a.m., a patrolman employed by the Old
Saybrook Police Department observed the defendant's
vehicle at the Days Inn. Other police units responded and
located the defendant, who then attempted to flee. He was
apprehended in the parking lot with the assistance of a K-9
officer. The defendant was still bleeding from his finger at
the time of his arrest. Additional facts will be set forth as
necessary to discuss the specific claims of the defendant.
defendant subsequently was tried before a jury and elected to
testify at trial. He denied shooting the victim but admitted
that he had been in the victim's apartment with Smith and
another individual, Zach Perkins, just prior to the time of
the shooting in order to resolve amicably his dispute with
Silva. The defendant testified that he left
the apartment after being told that Silva was not there.
Defense counsel argued to the jury that Gonzales had framed
the defendant for the victim's murder, which actually had
been committed by Perkins, who, after the shooting, had a
sexual relationship with Gonzales and fathered a child with
previously discussed, the jury found the defendant guilty of
felony murder, home invasion, and other charges; see footnote
1 of this opinion; and the court found the defendant guilty
of the gun possession charge. The jury found the defendant
not guilty of murder. This appeal followed.
defendant first claims that the court improperly overruled
his objection to the state's use of a peremptory
challenge to strike an African-American prospective juror. We
following facts are relevant to this claim. The defendant is
of mixed race. On the first day of jury selection, defense
counsel noted that the entire venire panel appeared to be
‘‘white Caucasian'' and that every
prospective juror who had completed a jury questionnaire had
indicated that they were either white or Caucasian, or had
not indicated a race or ethnicity.
second day of jury selection, only one prospective juror had
indicated on the questionnaire that he or she was
African-American. During the voir dire examination of one
venireperson, W.T., he stated to defense counsel that he was
African-American. W.T. indicated that he had obtained a
master's degree in social work from the University of
Connecticut and currently was employed by the state of
Connecticut as a supervisory social worker with the
Department of Children and Families.
disclosed that he performed volunteer work for the Department
of Correction and had worked directly with inmates. When
asked by defense counsel whether that work might affect him
as a juror, W.T. responded: ‘‘Because I work
with, like I say, inmates, and also my work, I do-I mean, you
see a lot of different things and you see a lot of sad
situations. I'm sure as a professional and because I work
with people who've been through a lot of stuff, you know,
I'm sure I have an understanding of what they're
doing. And also, just-just in the criminal justice system in
general, I know how sometimes people are not, you know, given
a fair trial or they may be disproportionately have to go to
jail and different things of that nature. So, part of my
whole experience is as an African-American, as an American
and also studying these situations, I know that there's a
lot of issues go on in various systems. The criminal justice
system, the educational system and various systems, but
people are not fairly treated, so I know that much. But I
don't use that, you know, I can-I could make a
professional-and I think keep my composure and do my job just
like-as a professional, as I work-even as I do volunteer
work, but you have to know the reality in life as well,
though.'' In response to a subsequent question by
defense counsel regarding whether, in light of his life
experiences, he could be fair to both sides in the case, W.T.
stated that he could.
the state's voir dire examination of W.T., the following
‘‘[The Prosecutor]: Now, you've obviously
had a little more dealing with the court systems than
most-most people that we see in through here. Have you
formulated any opinions about the criminal justice system
based on your experiences? Is it too lenient, too
stringent, it works, it doesn't work; any feeling about
‘‘[W.T.]: And like I said, probably already
share too much stuff about-that talk about in terms of I
have seen people, have had family members had went to
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: And I just think-I think that's
why I became a social worker, because I wanted to make a
difference, and that's why I have been doing mentoring
‘‘[The Prosecutor]: Yep.
‘‘[W.T.]: -try to help young people so they
won't get into trouble. So, I meant the system, all
various systems, there's a lot of discrimination still
goes out. Even today, ladies are still not getting equal
pay. So, it's a lot. We've come a long way, but we
have a long way to go.
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: But I think I can make-I could keep
the facts and be able to look at the facts of the case and
judge by the facts.
‘‘[The Prosecutor]: . . . We need to know how
you're feeling, so we can make the appropriate
assessment and you can make the appropriate assessment. . .
. I think that it's not a perfect system, but it's
improving every day, and [there are] not as many systems
that I can think of that are, any-come anywhere close. One
of the concerns that people may have is, jurors who are in
the-using their time as a juror to try to fix the system.
You indicated, and I think you said, that you would listen
to the evidence and decide it on the evidence and you
wouldn't let any concerns that you had filter in.
‘‘[W.T.]: That's correct.
‘‘[The Prosecutor]: Fair to say?
‘‘[W.T.]: That's correct.
‘‘[The Prosecutor]: Okay. And so, that you
would sit and listen to what all the evidence is and make a
decision based on the evidence.
‘‘[W.T.]: That's correct .....
‘‘[The Prosecutor]: Okay. With respect to that,
as much as you know about those situations, were you
satisfied with the way the police reacted to your family
being or friend being the victim of a crime?
‘‘[W.T.]: Sometimes and sometimes not.
‘‘[The Prosecutor]: Okay.
‘‘[The Prosecutor]: Fair to say that it's
an individual situation and that the police have been-have
acted in a way that was satisfactory toward your family
members or friends, and in other situations they
weren't satisfied with what the police did.
‘‘[W.T.]: That's correct.
‘‘[The Prosecutor]: Okay. Had you had any
interactions with the police in any respect in which you
developed an-either a strong, favorable impression or an
unfavorable impression about the police and the way they
treated you in any situation, speeding tickets, calling up
to complain about any noisy neighbor, something with work.
‘‘[W.T.]: I'm, like-just growing up in this
society, I fear, you know, I fear my life. I got a new car,
I feared that, you know, I might get stopped, you know, for
being black, you know. So, you know, that's concerning
and sometimes I get afraid-even me, you know, I- when I see
the police in back of me, I wonder, you know, if I'm
going to be stopped.
‘‘[The Prosecutor]: Okay. Now with-with respect
to that, there will probably be police officers who will be
testifying here, and the judge will tell you that [you]
can't give a police officer more credibility merely
because they are a police officer. Conversely, though, they
don't get less credibility merely became they are
police officers. They are to be treated like anybody else.
Would you have any difficulty following the judge's
instructions concerning that?
‘‘[W.T.]: No, I wouldn't.
‘‘[The Prosecutor]: Okay. And I can appreciate
what you're saying. Obviously, I haven't been in
that-in your shoes. I haven't been in your situation,
nor do we ask the jury to put themselves in the shoes of
either the police or a particular defendant. We can't
ask you to do that. But having now life's experience,
is that something that you think you can put aside and
decide the evidence based on everything that's
presented to you, or is there some concern that you might
have that you might not be able to do
that.''[W.T.]: No, I will be able to because
another thing, too, is, I know good police officers who
are-who are good people, nice people, mentors who work in
the community. So-so, yes, I'd be able to.
‘‘[The Prosecutor]: Okay. Okay. And have you
had the positive experiences with the police as well?
‘‘[The Prosecutor]: Okay. So, I guess like
anybody else, there are bad lawyers and there are good
lawyers. There are bad social workers, there are good
social workers. . . . But what I'm driving at is, we
make an individual assessment based on what we hear and
what we see and what we listen to. And that is what
we're going to ask you to do if you're a juror.
‘‘[The Prosecutor]: We want to make sure you
don't carry in any preconceived notions one way or the
‘‘[The Prosecutor]: No problems with that.
‘‘[W.T.]: No problem.
‘‘[The Prosecutor]: Okay. We can count on your
word on that, then.
‘‘[W.T.]: That's right.
‘‘[The Prosecutor]: Okay. I asked about being
the victim of a crime and your family member. The flip side
to that, have you, any member of your family or any close
personal friends ever been either accused or ever convicted
‘‘[W.T.]: Yes. I have family members who've
been in- who served time in jail.
‘‘[The Prosecutor]: Okay. This obviously is a
crime of violence. Any-any family members who have been
convicted of crimes of violence?
‘‘[W.T.]: No. . . .
‘‘[The Prosecutor]: You mentioned that your
family members have-have served time. With respect to that,
were-did you develop any feelings about the way the police
had treated your family members in those situations?
‘‘[W.T.]: Well, I think the-like I told you
earlier, my life experiences living in this world-
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: -you see that things are not fair.
And then you-I mean, you-you experience things, you know,
and you see things happen. And some things are not fair,
some things not-not all people are the same, all police are
not bad or, like, you know, just like you said everybody,
but when you see firsthand your own family members, then
you experience something a little bit different.
‘‘[The Prosecutor]: Of course.
‘‘[W.T.]: Other people who, you know, so-
‘‘[The Prosecutor]: Of course. And I guess
it's kind of tough, because I-you know, I could ask you
questions all day long and I'm not going to get to know
you as well you know yourself. But there's a
difference, I think, between I'm upset that my family
member had to go through this versus I'm upset that the
police treated my family member in such a way. Do you
understand the distinction I'm trying to make, that
you're not satisfied that your family member ended up
in prison versus I'm not satisfied that they were
treated properly by either the court system or by the
police. There's a difference, and I'm not sure
I'm explaining it very well.
‘‘[W.T.]: Are you saying more, like, for
instance, like, someone may have gone to jail because they
did something wrong-
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: -and they had to pay the
‘‘[The Prosecutor]: Right. And you know, like
‘‘[W.T.]: So-exactly. You have to-even if
it's your family member or not, you did something
wrong, you need to pay the consequences.
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: You need to pay the consequences for
whatever you've done wrong, you know.
‘‘[The Prosecutor]: Right.''
the voir dire examination, defense counsel stated that W.T.
was acceptable to the defendant. The state, however,
exercised a peremptory challenge and asked that W.T. be
defendant immediately raised a Batson objection to
the state's use of a peremptory challenge, citing the
fact that W.T. was the first African-American venire-person
to be examined and that, in essence, W.T. had assured the
court and the state that, regardless of his views about the
criminal justice system or the police, he could be a fair and
state then responded: ‘‘I understand exactly
where [defense counsel] is coming from, would agree with him
for the most part with the exception of, I do believe that
there are race neutral reasons for this. It was somewhat of a
struggle for me, but I looked at some of the answers. And
even though he responded favorably after further questioning,
the concerns that I did have was the-the comments that-about
disproportionate amount of people being sent to jail,
disproportionate amount of jail time, the fact that he's
had family members who have been convicted and have served
time, the fact that he works to rehabilitate people. And none
of this is per se bad, but I think in the context of this
particular case, it's important, it's race neutral.
If we had a Caucasian who was in the same situation, the
exercising of a peremptory challenge would be the same, I
the fact that he did mention . . . his concern about and his
life's experience about driving and seeing a police
officer behind him and his concern about police officers.
Yes, he said that there are other police officers who are
good and people can be good, but there is that life's
experience that I would submit would make it difficult for
him to be fair and impartial in this particular-in this
I understand exactly what [defense counsel] is saying. I
believe that they are race neutral reasons, and I was
exercising the peremptory based on those race neutral
court then asked for argument from the defendant, and defense
counsel gave the following response: ‘‘With
respect to being, as an African-American male, fearful when
the police are behind you, I mean, that's just, you know,
something that [the prosecutor] and I never have had to deal
with it, but if this gentleman sitting next [to] me is
entitled to a jury of his peers, we've picked three white
people already. We've accepted them. I mean, isn't
he-and that's a common complaint by African-American
people, that they feel that they get pulled over too often,
and there are probably studies that say it's
disproportionate. So, that particular reason does seem to me
to be race based . . . . It was [W.T.]'s view and, I
mean, again, that's-he's entitled to a jury of his
peers, and we get nobody who feels that way or has those
thoughts is not really his peers because that's probably
the experience or experiences of a lot of African-Americans
prosecutor, when asked if he wanted to argue further, stated:
‘‘Only briefly, and maybe it's a matter of
semantics. I think Batson's is, oh, I see an
African-American gentleman, I see an Asian-American, I see a
Hispanic, I'm going to excuse them. If an
African-American comes in with a distrust of the police and
will not listen to a police officer and says he will not
listen to a police officer, that isn't a challenge based
on that person's race or ethnicity; it's a challenge
based on that person's personal views.
a white-a Caucasian person came in and said, I don't like
being followed by the cops because I see a number of cops
punch friends of mine in the face, it's not because he is
a Caucasian, it's because of life's experiences. And
I think that's what I would be arguing, that the comments
that were made were not because of his ethnicityorhis race,
but rather his-his expressed opinions. And I think ...