State v. Holloway, 13020

• Decision Date: 24 January 1989
• Docket Number: No. 13020,13020
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony HOLLOWAY.

Page 166

553 A.2d 166

209 Conn. 636

STATE of Connecticut v. Anthony HOLLOWAY.

No. 13020.

Supreme Court of Connecticut.

Argued Nov. 3, 1988.

Decided Jan. 24, 1989.

Erskine D. McIntosh, Asst. Public Defender, with whom, on the brief, were William Holden, Public Defender, and Victoria Campbell, Legal Intern, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Jonathan Benedict, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and SANTANIELLO, JJ.

GLASS, Associate Justice.

The principal issue on this appeal is whether the defendant, Anthony Holloway, has established that the state discriminatorily employed a peremptory challenge to exclude a black venireman from the jury that convicted him of the crime of felony murder in violation of General Statutes § 53a-54c. ¹ The defendant appeals from the judgment rendered by the trial court as a result of the guilty verdict of the jury.

The jury could reasonably have found the following facts. On July 12, 1985, Roy Lee MacIntyre and his friend, Ernest Reed, were riding in MacIntyre's automobile in Bridgeport. The defendant hitched a ride with MacIntyre to Beardsley Terrace, a public housing project in Bridgeport. At Beardsley Terrace, the defendant was let off on Trumbull Avenue. MacIntyre and Reed continued driving on Trumbull Avenue, turned around and drove back towards the defendant. The defendant requested another ride. This time MacIntyre took him farther down Trumbull Avenue into Beardsley Terrace near building number 16, where MacIntyre stopped the automobile. The defendant pulled a pistol from his pocket, demanded MacIntyre's car keys and the gold chain that he was wearing. The defendant then shot MacIntyre once in the back of the neck and fled. The autopsy report indicated that MacIntyre died as a result of a single gunshot wound to the back of the neck which caused injury to his cervical spine and brain.

After his trial and conviction of felony murder, the defendant was sentenced to forty-five years imprisonment. On appeal he claims that the trial court erred in: (1) finding that he had failed to establish a prima facie case of purposeful discrimination in the state's use of a peremptory challenge to remove a black venireman; (2) instructing the jury to determine whether prior inconsistent statements properly admitted into evidence as such were indeed inconsistent; (3) instructing the jury as to the limited purpose of prior inconsistent statements; and (4) instructing the jury that flight, if unexplained, tends to prove consciousness of guilt. We conclude that there is no error.

I

The defendant, who is black, first claims that the trial court violated his federal and state constitutional rights to equal protection in concluding that he had failed to establish a prima facie case of purposeful discrimination in the state's use of a peremptory challenge to remove a black venireman from the jury venire. The panel from which the defendant's jury was selected was composed of fifty-seven venirepersons. Four of the fifty-seven venirepersons were black and three were hispanic. There is no indication that the remaining venirepersons were of any racial minority. In the process of selecting a jury of twelve and two alternates for the defendant's case, the court excused fourteen persons, the state eleven, and the defendant eighteen. The first black person voir dired was accepted by the state and the defendant. The second black person voir dired was excused by the court because of a prior commitment. The third black person voir dired was Floyd Gaddy. Gaddy was accepted by the defendant, but was peremptorily challenged by the state. ² The fourth black person voir dired was accepted by the defendant and the state. The defendant's claim is based on the state's removal of Gaddy. It was revealed at oral argument that the victim, MacIntyre, and the state's principal witness were also black.

After considering the arguments of the state and defense counsel concerning the state's use of a peremptory challenge to exclude Gaddy from the venire, the trial court concluded that because there was no pattern in the action of the state, the defendant had failed to present a prima facie case. ³ Specifically, the trial court stated: "The Court sees no pattern at this stage of the proceeding that that would be the situation on the part of the State. I think you do have to set up a prima facie case and what you just indicated alone does not set a prima facie case. I will not require the State to make any neutral explanation of its peremptory challenge."

Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the defendant argues that the trial court erred in using the standard of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in evaluating the defendant's claim that the state had used a peremptory challenge based on purposeful racial discrimination to exclude Gaddy from the defendant's venire. Under Swain v. Alabama, supra, a defendant was required to "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'...." State v. Gonzalez, 206 Conn. 391, 394-95, 538 A.2d 210 (1988).

Batson established the guidelines for evaluating a criminal defendant's claim that the state's exercise of a peremptory challenge was based on purposeful racial discrimination. State v. Gonzalez, supra, at 395, 538 A.2d 210. Procedurally, the defendant bears the burden of persuading the trial court by a preponderance of evidence that the state's use of the peremptory challenge was tainted by purposeful racial discrimination. Batson v. Kentucky, supra, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18. Once the defendant has established a prima facie case of purposeful racial discrimination, the burden shifts to the state to advance a neutral explanation for the venireperson's removal. Id., at 97, 106 S.Ct. at 1723. The defendant is then afforded the opportunity to demonstrate that the state's articulated reasons are insufficient or pretextual. " 'Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility'; [Batson v. Kentucky, supra, at 98 n. 21, 106 S.Ct. at 1723 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." State v. Gonzalez, supra.

Batson set forth the following standard for establishing claims of racially motivated peremptory challenges. "[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.' Finally, the defendant must show that these facts and any 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. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination." Batson v. Kentucky, supra, at 96, 106 S.Ct. at 1722.

The Batson court indicated that "[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose." Id., at 96-97, 106 S.Ct. at 1722-1723. The court, however, indicated that these examples were illustrative only, and declined to establish a complete list of factors relevant to determining whether an inference of purposeful discrimination has been raised. Id., at 97, 106 S.Ct. at 1723.

We first note that the trial court's analysis of whether the defendant had established a prima facie claim did not fully comport with the plenary consideration of relevant facts and circumstances contemplated by Batson. The trial court concluded that it perceived "no pattern at this stage of the proceeding" to indicate purposeful racial discrimination. As we noted in State v. Gonzalez, supra, 206 Conn. at 400, 538 A.2d 210, "the striking of even one juror on the basis of race violates the equal protection clause, even when other jurors of the defendant's race were seated...." Thus, although a lack of evidence of a "pattern" of striking venirepersons of the defendant's race is one factor, that factor is not dispositive. Batson v. Kentucky, supra. The relevant circumstances may indicate purposeful racial discrimination where any one venireperson of the defendant's race has been removed. State v. Gonzalez, supra.

Despite the trial court's incomplete consideration of the circumstances, we conclude that it was correct in determining that the defendant had failed to establish a prima facie case. See Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). In State v. Gonzalez, supra, we identified several factors relevant to the question of whether the state's explanation of its use of a peremptory challenge was neutral. Many of these factors are equally relevant to the prior determination of whether the defendant has established a prima facie case. These include (1) whether "th...