Argued
January 18, 2019
Procedural
History
Substitute
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 firearm, 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 firearm 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 firearm, from which the defendant appealed to this
court; thereafter, the appeal was transferred to the
Appellate Court, Prescott and Beach, Js.,
with Lavine, J., concurring, which affirmed
the trial court's judgment, and the defendant, on the
granting of certification, appealed to this court.
Affirmed.
Alan
Jay Black, assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom
were Paul J. Narducci, senior assistant state's attorney,
and, on the brief, Michael L. Regan, state's attorney,
for the appellee (state).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
OPINION
ROBINSON, C. J.
From
its inception, the United States Supreme Court's landmark
decision in Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986), has been roundly criticized
as ineffectual in addressing the discriminatory use of
peremptory challenges during jury selection, largely because
it fails to address the effect of implicit bias or lines of
voir dire questioning with a disparate impact on minority
jurors.[1]Consistent with these long-standing
criticisms of Batson, the defendant, Evan Jaron
Holmes, asks us in this certified appeal[2] to overrule the
line of cases in which this court held that a prospective
juror's negative views about the police and the fairness
of the criminal justice system constitute a race neutral
reason for the use of a peremptory challenge to strike that
juror. See, e.g., State v. King, 249 Conn. 645,
664-67, 735 A.2d 267 (1999). We conclude that the challenged
line of cases, on which the Appellate Court relied in
upholding the defendant's conviction of felony murder on
the basis of its rejection of his Batson claim
arising from the prosecutor's use of a peremptory
challenge during jury selection; see State v.
Holmes, 176 Conn.App. 156, 175-77, 169 A.3d 264 (2017);
remains consistent with the federal constitutional case law
that provides the sole basis for the Batson claim.
Accordingly, we affirm the judgment of the Appellate Court in
this case but refer the systemic concerns about
Batson's failure to address the effects of
implicit bias and disparate impact to a Jury Selection Task
Force, appointed by the Chief Justice, to consider measures
intended to promote the selection of diverse jury panels in
our state's courthouses.
The
record and the Appellate Court's opinion reveal the
following relevant facts and procedural history. In
connection with a shooting at an apartment in New London,
[3] the
state charged the defendant with numerous offenses, including
felony murder in violation of General Statutes §
53a-54c, and the defendant elected a jury
trial.[4] ‘‘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.[5]
‘‘On
the 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., [6] 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 . . . as
a supervisory social worker with the Department of Children
and Families.
‘‘He
also 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 [maybe]
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 [going]
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.
‘‘During the state's voir dire examination of
W.T., the following exchange occurred:
‘‘ ‘[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 that?
‘‘ ‘[W.T.]: And like I said, probably
already share[d] too much stuff about-that talk about in
terms of I have seen people, have had family members [who]
went to prison before.
‘‘ ‘[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 programs-
‘‘ ‘[The Prosecutor]: Yep.
‘‘ ‘[W.T.]: -try[ing] 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
[that] 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 . . .
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 . .
. or friend being the victim of a crime?
‘‘ ‘[W.T.]: Sometimes and sometimes not.
‘‘ ‘[The Prosecutor]: Okay.
‘‘ ‘[W.T.]: So-so.
‘‘ ‘[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 [a] noisy neighbor, something with work?
‘‘ ‘[W.T.]: I'm, like-just growing up
in this society, I fear, you know, I fear [for] 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 [he or she is] a police officer. Conversely, though,
they don't get less credibility merely [because] 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 . . . positive experiences with the police as well?
‘‘ ‘[W.T.]: Yes.
‘‘ ‘[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.
‘‘ ‘[W.T.]: Yes.
‘‘ ‘[The Prosecutor]: We want to make sure
you don't carry in any preconceived notions one way or
the other.
‘‘ ‘[W.T.]: Yes.
‘‘ ‘[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 of crimes?
‘‘ ‘[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 [as] 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
consequences.
‘‘ ‘[The Prosecutor]: Right. And you know,
like that, but-
‘‘ ‘[W.T.]: So-exactly. You have to-even if
it's your family member or not, you did something wrong,
...