State v. Rigual

256 Conn. 1

771 A.2d 939

STATE OF CONNECTICUT v. ANTONIO RIGUAL

(SC 16026)

Supreme Court of Connecticut.

Argued January 19, 2000.

Officially released May 8, 2001.

McDonald, C. J., and Borden, Palmer, Vertefeuille and Callahan, Js.¹ G. Douglas Nash, public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan Benedict, state's attorney, C. Robert Satti, Jr., senior assistant state's attorney, and Daniel Borowy, student intern, for the appellee (state). Karen L. Dowd, Kenneth J. Bartschi and Ronald A. Gonzalez filed a brief for the Connecticut Bar Association et al. as amici curiae.

Opinion

VERTEFEUILLE, J.

The issue in this appeal is whether the state is required to offer a nondiscriminatory reason to the court for exercising a peremptory challenge when the defendant claims the challenge is based on a prospective juror's ancestry or ethnic origin. We conclude that under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986), and its progeny, a prosecutor must offer a nondiscriminatory reason for removing a venireperson when a defendant raises such a claim.

The following procedural history is necessary to an understanding of the issues before this court. After a jury trial on a three count substitute information, the jury found the defendant, Antonio Rigual, not guilty of attempted murder in violation of General Statutes §§ 53a-49 (a)² and 53a-54a (a).³ The jury convicted the defendant, however, of attempted assault of a peace officer in violation of General Statutes § 53a-49 and General Statutes (Rev. to 1995) § 53a-167c (a) (1),⁴ as well as commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k.⁵ The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the trial court improperly had denied his motion to require the state to provide a nondiscriminatory reason for its peremptory challenge of a prospective juror. State v. Rigual, 49 Conn. App. 420, 422, 714 A.2d 707 (1998). The Appellate Court concluded that because the defendant, who is Hispanic, was not of the same racially cognizable group as the venireperson, who is Portuguese, the defendant could not raise a challenge under Batson. Id., 431. The Appellate Court therefore did not reach the merits of the defendant's Batson claim. Id.⁶

We granted the defendant's petition for certification limited to the following issue: "Did the Appellate Court properly conclude that the trial court had not improperly denied the defendant's request to provide a race neutral explanation for [the state's] peremptory challenge of a venireperson of Portuguese descent?" State v. Rigual, 247 Conn. 924, 719 A.2d 1171 (1998). We now must decide: (1) whether the Appellate Court properly concluded that the defendant could not raise a Batson claim to the state's use of a peremptory challenge regarding a venireperson of a different ethnic background from the defendant; and (2) if the Appellate Court's conclusion was not proper, whether the rule in Batson applies to the use of a peremptory challenge on the basis of ethnic origin or ancestry.

The following facts are relevant to these two issues. During voir dire, both the state and the defendant questioned venireperson D.B.⁷ During the questioning, D.B. stated that the Bridgeport police had arrested him nine months previously for driving under the influence.⁸ The court also inquired of D.B., asking him at one point, "[a]re you Hispanic?" D.B. replied, "Portuguese." At the conclusion of the voir dire, the defendant accepted D.B. as a juror. The state, however, exercised a peremptory challenge to excuse him. The defendant then objected to the state's use of a peremptory challenge and asked the court to require the state to provide its reason for excusing D.B. Although defense counsel did not state specifically that his objection was a Batson claim, our reading of the record convinces us that the objection was grounded on Batson. In addition, the state, in its brief and at oral argument before this court, concedes that it treated the objection as a Batson claim. After hearing argument from both counsel, the court stated: "[The state has] a reason. They just haven't been required to state it. And the way we are here, I can't make them do that at this juncture." The defendant's objection to the peremptory challenge was overruled and the state never revealed its reason for excusing D.B.⁹

I

As a threshold matter, we must determine the applicable standard of review that governs our examination of the defendant's claims. The scope of our review depends upon the appropriate characterization of the trial court's rulings. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). In the present case, the defendant contests the correctness of the Appellate Court's legal conclusions. Our review of those conclusions is plenary. Id.

The first issue in this appeal is whether the Appellate Court properly concluded that the defendant, who is Hispanic, could not raise a Batson claim to the state's challenge of a venireperson who identified himself as being Portuguese. In Batson v. Kentucky, supra, 476 U.S. 89, the United States Supreme Court held that the use of peremptory challenges by the state to strike venirepersons solely because they are members of the defendant's race violated the equal protection clause of the federal constitution. Batson established a three step procedure pursuant to which the defendant in a criminal case can challenge the state's use of peremptory challenges to exclude jurors because of their race. Id., 96-98. First, the defendant must provide proof of a prima facie case of discrimination by the state. Id., 96. The state then must proffer a neutral explanation for the peremptory challenge. Id., 97. Finally, the defendant must establish purposeful discrimination by the state. Id., 98. The Batson court explicitly limited its ruling to the use of peremptory challenges "to remove from the venire members of the defendant's race." (Emphasis added.) Id., 96.

Several years later, however, the Supreme Court expanded the applicability of Batson claims, ruling that a criminal defendant may object to race-based exclusions of jurors through peremptory challenges regardless of whether the defendant and the excluded venirepersons are of the same race. Powers v. Ohio, 499 U.S. 400, 415-16, 111 S. Ct. 1364, 113 L. Ed.2d 411 (1991). The defendant in Powers, a Caucasian, objected to the state's use of peremptory challenges to exclude black venirepersons. Id., 403. The trial court did not consider his objection because of the racial disparity between the defendant and the venirepersons. Id. The Supreme Court, however, concluded that the defendant had standing to raise the equal protection rights of jurors excluded from jury service. Id., 415. "We conclude that a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race.... To bar [a] petitioner's claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury services. In Holland [v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed.2d 905 (1990)] and Batson, we spoke of the significant role peremptory challenges play in our trial procedures, but we noted also that the utility of the peremptory challenge system must be accommodated to the command of racial neutrality." (Citation omitted.) Powers v. Ohio, supra, 415.

In ruling that the Hispanic defendant in the present case could not make a Batson claim to the state's exclusion of a Portuguese venireperson, the Appellate Court relied on Batson and this court's application of Batson, with modification, in State v. Holloway, 209 Conn. 636, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed.2d 643 (1989). State v. Rigual, supra, 49 Conn. App. 430-31. The Appellate Court failed to consider, however, the United States Supreme Court's ruling in Powers v. Ohio, supra, 499 U.S. 415-16, which expanded the applicability of Batson to cases where the defendant and the excluded venireperson are not of the same race. As a result, the Appellate Court improperly concluded that the defendant, a Hispanic, could not raise a Batson claim to the exclusion of the Portuguese venireperson. State v. Rigual, supra, 49 Conn. App. 431. We conclude that the defendant had standing to object to the state's use of a peremptory challenge to excuse D.B. from becoming a juror in this case.

II

We next must decide whether the rule in Batson, as modified by this court's decision in State v. Holloway, supra, 209 Conn. 636,¹⁰ applies to prohibit the use of peremptory challenges on the basis of ethnic origin or ancestry. We conclude that it does.

In Batson, the United States Supreme Court established the rule of law that the use of peremptory challenges to exclude "a cognizable racial group"; Batson v. Kentucky, supra, 476 U.S. 96; from a jury violates the equal protection clause of the United States constitution. Id., 97. In subsequent cases, the Supreme Court extended Batson protection to other group classifications that trigger heightened scrutiny under traditional equal protection analysis. The court concluded in Hernandez v. New York, 500 U.S. 352, 355, 111 S. Ct. 1859, 114 L. Ed.2d 395 (1991), that the use by the state of peremptory challenges to exclude Latinos from a jury because of their ethnic origin would violate the equal protection clause. On the particular facts of that case, however, where the state's proffered reason for excusing the Latino venirepersons was that the venirepersons would have difficulty in accepting the court translator's rendition of testimony from Spanish to English because of their own knowledge of the Spanish language, the court found the...