State v. Gonzalez

Decision Date01 March 1988
Docket NumberNo. 13055,13055
Citation206 Conn. 391,538 A.2d 210
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Carlos GONZALEZ.

Jean Elmblad Blue, Sp. Public Defender, Hartford, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on the brief, was Mary Galvin, Asst. State's Atty., New Haven, for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

PETERS, Chief Justice.

The principal issue on this appeal is whether the defendant, Carlos Gonzalez, has established that the prosecutor discriminatorily employed peremptory challenges to exclude Hispanics from the jury that convicted him of the crime of murder in violation of General Statutes § 53a-54a(a). 1 The defendant appeals from the judgment rendered by the court in accordance with the verdict of the jury.

The jury could reasonably have found the following facts. On September 27, 1985, the defendant was a prisoner at the community correctional center in New Haven. The defendant used a handmade weapon known as a shank to stab the victim, a fellow inmate named Dennis Artis, in the day room of the correctional center. The victim was taken to a hospital and died shortly thereafter.

At trial, the defendant admitted having killed the victim but denied having had the requisite criminal intent. On appeal, the defendant does not challenge the sufficiency of the evidence against him on that issue, but raises two claims of error. He maintains that he is entitled to a new trial because the trial court erred in ruling that: (1) the prosecutor's use of peremptory challenges was not discriminatory, and (2) a pathologist could give an expert opinion about the interpretation of an autopsy report that he had not prepared. We find no error.

I

In order to review the trial court's ruling with regard to the prosecutor's challenges to the venirepersons called to try the defendant, we must examine the factual record of the jury selection process in this case. The defendant is Cuban, while his victim was black. Fourteen jurors, including two alternates, were selected from a panel of forty-one venirepersons. The trial court excluded ten prospective jurors, including one of Puerto Rican background, for cause. The defendant exercised his peremptory challenges to exclude nine jurors, including three who were black. The state exercised its peremptory challenges to exclude eight jurors, including two of Puerto Rican background. The jury that convicted the defendant included no Hispanics. The record fails to indicate whether it included any black persons.

The defendant maintains that he was deprived of a fair trial, in violation of rights guaranteed to him by the equal protection clause of the fourteenth amendment to the constitution of the United States, because of purposeful racial discrimination in the selection of the petit jury that convicted him. 2 The recent decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1717-18, 90 L.Ed.2d 69 (1986), emphasizes that such a claim 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.

Batson v. Kentucky, supra, reaffirms that the federal constitutional right to equal protection encompasses the right to question prosecutorial use of peremptory challenges. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). "Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his 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 or on the assumption that [Hispanic] jurors as a group will be unable impartially to consider the State's case against [an Hispanic] defendant." Batson v. Kentucky, supra, 106 S.Ct. at 1718-19.

In Swain v. Alabama, supra, 380 U.S. at 224, 85 S.Ct. at 838, the United States Supreme Court held that a defendant must prove a systematic exclusion of members of a racial group from the petit jury to establish a constitutional violation. Batson modifies this burden of proof. A defendant is no longer required to prove that the peremptory challenges are being exercised to deny equal protection in "case after case"; Swain v. Alabama, supra, at 223, 85 S.Ct. at 837; but, under Batson, "may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson v. Kentucky, supra, at 1722-23.

Batson delineates the process by which claims of discriminatory peremptory challenges are to be adjudicated. The defendant carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. Id., at 1721 n. 18. As in other litigation involving allegations of racial discrimination, the adjudication of claims of discrimination in the selection of the petit jury normally proceeds through two stages. A defendant who is a member of a cognizable racial group must first establish a prima facie case of purposeful discrimination. Id., at 1723. Once that threshold has been crossed, the burden of production shifts to the state to advance a neutral explanation for its peremptory challenges of jurors of the defendant's race. Id. At this juncture, the defendant has an opportunity to show that the articulated reasons are insufficient or merely pretextual. "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility"; id., at 1724 n. 21; a trial court's determination that there has or has not been intentional discrimination is "entitled to appropriate deference" upon review on appeal. Id.

We now turn to the first stage of the Batson inquiry. The defendant must establish by a preponderance of the evidence a prima facie case of purposeful discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Batson defines how this burden may be satisfied. "[T]he defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, [345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." 3 Batson v. Kentucky, supra, at 1723.

In this case, the defendant, as an Hispanic, was a member of a racially cognizable group. Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 51 L.Ed. 2d 498 (1977); see Hernandez v. Texas, 347 U.S. 475, 479-80, 74 S.Ct. 667, 98 L.Ed. 866 (1954). He preserved his right to challenge the discriminatory nature of the removal of all Hispanics from his petit jury by his timely objection to their removal, and his motions for the dismissal of the jury panel in its entirety. The trial court impliedly ruled that the defendant had raised a reasonable inference of discrimination when the court asked the prosecutor to articulate neutral reasons for her peremptory challenges. See Batson v. Kentucky, supra, at 1723.

The state now asks us to review the merits of the trial court's ruling, even though at trial the prosecutor complied with the trial court's request to articulate her neutral reasons without then indicating any reservation about its propriety. The state argues, first, that the trial court's request for the prosecutor's articulation was not the functional equivalent of a finding of a prima facie case, and second, that the record does not support the making of such a finding. We disagree. The state's acquiescence at trial in the inquiry proposed by the trial court may reasonably have been understood by all of the parties as a concession that the defendant had succeeded in raising an inference of a discriminatory prosecutorial purpose. Under these circumstances, the trial court should be deemed to have made the finding that was implicit in its request to the prosecutor. See People v. Turner, 42 Cal.3d 711, 719, 726 P.2d 102, 230 Cal.Rptr. 656 (1986). Furthermore, a finding of a prima facie case is a mixed finding of fact and law. If the state harbored doubts about the underpinnings of this finding, it was its responsibility, as the appellant on this issue, to provide a record that would permit orderly appellate review. Practice Book § 4061; J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 376, 528 A.2d 786 (1987); DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983).

We turn then to the second stage of the Batson analysis, an examination of the neutral reasons advanced by the prosecutor for her peremptory challenges to two Hispanic jurors on the venire. 4 Batson requires a prosecutor, after a prima facie showing of discrimination, to give a clear, neutral and reasonably specific explanation of the state's reasons for exercising such a challenge. Batson v. Kentucky, supra, at 1723. The purpose of requiring an articulation of neutral reasons is to dispel the inference of discrimination raised by the defendant's prima facie case. While reliance on intuitive judgment or an affirmation of good faith is insufficient, the explanation need not rise to the level of a finding of cause to...

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