State v. Jackson

808 A.2d 388

73 Conn.App. 338

STATE of Connecticut v. Marquis JACKSON.

State of Connecticut. v. Vernon Horn.

No. 22377.

No. 22378.

Appellate Court of Connecticut.

Argued May 7, 2002.

Decided November 5, 2002.

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DRANGINIS, FLYNN and McDONALD, Js.

Donald D. Dakers, special public defender, for the appellant (defendant in the first case).

Moira L. Buckley, deputy assistant public defender, for the appellant (defendant in the second case).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, Gary Nicholson, senior assistant state's attorney, for the appellee (state).

McDONALD, J.

After a joint jury trial, the defendants, Marquis Jackson and Vernon Horn, appeal from their judgments of conviction. Jackson appeals from his conviction of one count of felony murder in violation of General Statutes § 53a-54c, three counts of robbery in the first degree in violation of General Statutes § 53a1-34(a)(2), two counts of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134(a)(2), one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(2) and one count of carrying a pistol without a permit in violation of General Statutes § 29-35(a).¹ Horn appeals from the conviction of one count of felony murder in violation of § 53a-54c, one count of assault in the first degree in violation of General Statutes § 53a-59, three counts of robbery in the first degree in violation of § 53a-134(a) (2), two counts of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134(a)(2), one count of conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134(a)(2), one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(2) and one count of carrying a pistol without a permit in violation of § 29-35(a). On appeal, both defendants claim² that the trial court improperly (1) denied their Batson³ challenge to the state's peremptory challenges to remove venirepersons, (2) refused to conduct a preliminary inquiry into charges of juror misconduct without first receiving an affidavit from the parties alleging the misconduct and (3) permitted the state to introduce into evidence the prior statement of a witness under the Whelan doctrine.⁴ Horn also claims that the trial court improperly (1) failed to sever his case from Jackson's, (2) denied his motion to suppress certain eyewitness identification testimony and (3) failed to declare a mistrial, sua sponte, after the jury heard evidence of possible witness tampering. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On January 24, 1999, at approximately 3.30 a.m., Jackson and Horn, along with Steven Brown,⁵ entered the Dixwell Deli on Dixwell Avenue in New Haven, wearing masks and carrying handguns. As Horn entered the deli, he fired five or six shots from a nine millimeter pistol. One bullet struck Caprice Hardy, a customer, and killed him. A second bullet struck Abby Yousif, an owner of the deli, in the shoulder. Brown and Jackson followed Horn into the deli.

Jackson then went behind the counter and attempted to open the cash register. Horn and Brown went to the deli's back room where they found Vernon Butler, an off-duty employee, and Warren Henderson, a homeless man who helped out around the store. Butler was hit on his head with the butt of a gun, searched for money and taken to the front of the store by Horn to open the cash register. When Butler could not open the register, Jackson took the cash that Yousif had in his pockets. Butler's cellular telephone was also stolen. The telephone was subsequently used the day after the robbery by Marcus Pearson, who had obtained it from Horn.

During the course of the robbery, two customers, one of whom was Kendall Thompson, entered the deli. Upon entering, each individual was forced to the ground at gunpoint and ordered to turn over whatever money they possessed.

In the back room, Brown riffled through Henderson's pockets, looking for any money that he may have had. Finding no money on Henderson's person, Brown searched the cigar boxes in the back room to see if there was any cash hidden there. After searching the back room, Brown returned to the front of the deli, where Horn was shouting orders by the door and Jackson was still behind the counter near the cash register. Upon hearing the sound of sirens, Jackson, Horn and Brown fled the scene.

The police processed the crime scene and found latent fingerprints on a cigar box in the back room. The prints matched Brown's fingerprints on file with the Bridgeport police department. When interviewed by the New Haven police, Brown admitted his participation in the January 24, 1999 robbery and identified Jackson and Horn as the other individuals involved. Jackson and Horn were arrested and tried jointly. Jackson was found guilty of eight of the ten counts on which he was charged and sentenced to a total effective sentence of forty-five years imprisonment. Horn was found guilty of all ten counts on which he was charged and sentenced to a total effective sentence of seventy years imprisonment. These appeals followed.

I

The defendants claim that the trial court improperly denied their Batson challenges to the state's peremptory strikes of venirepersons. We disagree.

The following additional facts are relevant to our resolution of this claim. Jury selection in this case began on March 8, 2000, and concluded on March 29, 2000, having proceeded for sixteen days. The state was allocated thirty-six peremptory challenges, of which it used twenty-two, and each defendant was allocated eighteen peremptory challenges. Nearly 150 individuals were examined on voir dire before twelve jurors and three alternates were selected. The trial jury, including the alternates, included one black male and three black females.

During the course of voir dire, the state exercised two of its peremptory challenges on black males, C and J.⁶ Each time, Jackson raised a Batson claim.⁷ Following the state's race neutral explanation for using its challenge and the defendants' argument that the state's explanation was a pretext, the court denied the Batson claim and dismissed the venirepersons.

"In Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),] the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a 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 reasons at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried ... the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race ....

"Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venire person's removal.... The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party's] articulated reasons are insufficient or pretextual. ... [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination.... The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his ... particular case was tainted by purposeful discrimination." (Citations omitted; internal quotation marks omitted.) State v. Clark, 62 Conn.App. 182, 197-98, 774 A.2d 183, aff'd, 260 Conn. 813, 801 A.2d 718 (2002).

"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 Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. ... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.... Discriminatory purpose ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 324, 630 A.2d 593 (1993).

"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 ... in a perfunctory manner ... (3) prospective jurors of one race ... were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race ... as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror...