State v. Raynor

334 Conn. 264

221 A.3d 401

STATE of Connecticut

v.James RAYNOR

SC 20042

Supreme Court of Connecticut.

Argued January 16, 2019

Officially released December 24, 2019

Alice Osedach, assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

Robinson, C.J., and Palmer, McDonald, D'Auria, Kahn, Ecker and Vertefeuille, Js.

PER CURIAM.

The defendant, James Raynor, appeals, upon our grant of his petition for certification,¹ from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-48. State v. Raynor , 175 Conn. App. 409, 412–13, 167 A.3d 1076 (2017). On appeal, the defendant claims that the Appellate Court incorrectly concluded that that the record was inadequate to review his challenge under Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the prosecutor's exercise of a peremptory challenge on prospective juror R.E.² on the basis of his employment history, even though the record does not indicate the race or ethnicity of both R.E. and one of the two jurors, I.L. and G.H., whom the defendant highlighted as examples of disparate treatment by the prosecutor. In response, the state disagrees and also proffers, as an alternative ground for affirmance, that the trial court did not commit clear error in finding that the prosecutor did not engage in purposeful discrimination when he peremptorily challenged R.E. We affirm the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following relevant facts and procedural history. "Jury selection occurred over the course of two days, October 30 and 31, 2014. On the first day of jury selection, the parties conducted voir dire of a prospective juror, R.E. Prior to defense counsel's questioning of R.E., the court inquired as to whether R.E. would suffer any financial hardship by participating in jury duty. In response, R.E. initially informed the court that, although he worked part-time, his shift began at 4:30 p.m. and ... his job was within walking distance of the courthouse. The court then asked R.E. to contact his employer to determine whether he would be compensated for any work he missed or, alternatively, whether he would be able to begin his shift after 5 p.m. After speaking with his employer, R.E. stated that, if he were selected to serve, he would be able to start his shifts after the court had adjourned for the day, and thus he had no financial concerns about being selected as a juror.

"Thereafter, defense counsel questioned R.E. as to whether he could keep an open mind, determine which witnesses were credible, follow the court's instructions on the law, and engage in a free exchange of ideas with his fellow jurors during deliberations. R.E. answered in the affirmative to each of these questions. Thereafter, the following colloquy occurred during the prosecutor's voir dire of R.E.:

" ‘[The Prosecutor]: ... You're from Hartford?

" ‘[R.E.]: Yes.

" ‘[The Prosecutor]: You haven't heard anything about this incident—

" ‘[R.E.]: No, sir.

" ‘[The Prosecutor]: —which was presented to you? None of the names that were listed to you sounded familiar—

" ‘[R.E.]: No, sir.

" ‘[The Prosecutor]: —anything like that? So, you're [employed] at Easter Seals. You've been there for how long? You said about four years?

" ‘[R.E.]: Four years.

* * *

" ‘[The Prosecutor]: Have you ever had anyone close to you, friends, family members, anyone like that, that has been the victim of a crime?

" ‘[R.E.]: No, sir.

" ‘[The Prosecutor]: And if you were to hear information about drugs within this trial, do you think you could still consider that information and make your decisions or would you be turned off by that?

" ‘[R.E.]: I could still make my decision.

" ‘[The Prosecutor]: Okay. Still be open-minded and consider all the information—

" ‘[R.E.]: Yes.

" ‘[The Prosecutor]: —presented?

" ‘[R.E.]: Yes, sir.

" ‘[The Prosecutor]: Is there anything either of us have left out that you think would—would be important to tell us about your ability to sit here as a juror?

" ‘[R.E.]: No, sir.

" ‘[The Prosecutor]: Great. Thanks for your time.’

"Thereafter, R.E. exited the courtroom, and the following colloquy occurred:

" ‘[Defense Counsel]: Accepted.

" ‘[The Prosecutor]: Excused.

" ‘[Defense Counsel]: Your Honor, I would ask for a gender or a race neutral explanation or basis.

" ‘[The Prosecutor]: Should I give one?

" ‘[The Court]: Yes.

" ‘[The Prosecutor]: It would be his employment history, Your Honor, and just basically his sense of security. I do have concerns also that he's from Hartford, although he did indicate that he knew nothing about the offense.

" ‘[Defense Counsel]: Your Honor, if I may. We have two Caucasian women on the panel at this point in time. He answered all the questions, in my view at least, and I think counsel would agree, honestly. He didn't express any reservations about security. Being from Hartford is not a bar to be in this case. He did not express any familiarity with the case. I think he answered all the questions right. I think he's got a right to serve on this panel.

" ‘[The Prosecutor]: I think I presented a race neutral reason, Your Honor. It's my prerogative. I don't believe—or I've indicated to the court that I am not excusing him based on his race.

" ‘[The Court]: His work history?

" ‘[The Prosecutor]: Yes.

" ‘[The Court]: All right. He's excused.’ "R.E. was then summoned to the courtroom and informed that he had been excused. After R.E. had been dismissed, the court, sua sponte, stated: ‘I would note that [R.E.] is not the same race as the defendant, African-American.’

"Later that afternoon, the court asked defense counsel whether he wanted to offer any rebuttal to the [prosecutor's] race neutral explanation for using its peremptory challenge to strike R.E. In response, defense counsel stated: ‘Well, I mean the idea that his employment, because he was freelancing, and the idea that he was still working, these are tough times, there was nothing extraordinary about being a freelancer. I meant that the record speaks for itself. I didn't hear anything extraordinary, like, he'd been a victim of a crime or had a brother incarcerated or had been harassed by the police or all the things that you typically hear from ... individuals who ... live in the city. His answers were ... for lack of a better word, you know, correct, either posed by me or by counsel. So, no, I guess ... I don't really have a rebuttal because I think the record ... that's ... kind of the point, the record speaks for itself.’ " (Footnote omitted.) State v. Raynor , supra, 175 Conn. App. at 454–58, 167 A.3d 1076.

On appeal, the Appellate Court rejected the defendant's claim that the prosecutor had violated Batson in exercising a peremptory challenge on R.E. because his race neutral explanation was a pretext for discrimination. Id., at 458–59, 167 A.3d 1076. The Appellate Court further disagreed with the defendant's argument that the "[prosecutor's] willingness to accept two other venirepersons, I.L. and G.H.—both of whom the defendant claims were nonminority venirepersons who also held part-time jobs—demonstrates that the [prosecutor's] peremptory challenge as to R.E. was racially motivated."

Id., at 458, 167 A.3d 1076. The Appellate Court concluded that this claim of disparate treatment was unpreserved and unreviewable under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), because "the transcripts of the voir dire do not indicate the racial composition of the empaneled jury" or support the "defendant's assertion that there are adequate facts of record to demonstrate that the [prosecutor] engaged in racially disparate treatment by accepting both I.L. and G.H., whom the defendant claims were nonminority venirepersons with work restrictions similar to R.E.'s. First, although the court expressly noted that R.E. was not of the same race as the defendant , there is nothing in the record demonstrating R.E.'s personal race or ethnicity.... Second, the state correctly recognizes a similar lack of facts regarding I.L.'s race. Without such information, [the court] cannot engage in an analysis of disparate treatment between I.L. and R.E." (Citation omitted; emphasis in original.) State v. Raynor , supra, 175 Conn. App. at 458–59, 167 A.3d 1076 ; see id., at 459, 167 A.3d 1076 ("[a]bsent such necessary facts of record, we decline to reach the merits of the defendant's claim"). Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., at 459, 167 A.3d 1076. This certified appeal followed. See footnote 1 of this opinion.

On appeal, the defendant claims that the Appellate Court incorrectly concluded that the failure of the record to indicate the racial composition of the empaneled jury rendered it inadequate to review his Batson claim, to the extent that it was founded on the prosecutor's disparate treatment of R.E. relative to I.L. and G.H. We disagree. To the contrary, we believe that the Appellate Court's well reasoned opinion fully addresses and properly resolves the certified issue. It would serve no purpose for us to repeat the discussion contained therein. We therefore adopt the Appellate Court's opinion as the proper statement of the issue and the applicable law concerning that issue. See, e.g., Griswold v. Camputaro , 331 Conn. 701, 711, 207 A.3d 512 (2019) ; Brenmor Properties, LLC v. Planning & Zoning Commission , 326 Conn. 55, 62, 161 A.3d 545 (2017).

Beyond affirming the judgment of the Appellate Court, we offer three additional observations. First, although we have expressed concerns about the existing Batson inquiry, it...