State v. Jose A. B., SC 20332

CourtConnecticut Supreme Court
Writing for the CourtROBINSON, C. J.
Decision Date22 March 2022
Docket NumberSC 20332


JOSE A. B.[*]

No. SC 20332

Supreme Court of Connecticut

March 22, 2022

Argued February 26, 2021

Procedural History

Substitute information charging the defendant with two counts of the crime of risk of injury to a child, and with one count each of the crimes of sexual assault in the first degree, attempt to commit sexual assault in the first degree, and sexual assault in the fourth degree, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Doyle, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Drew J. Cunningham, with whom was Damian K. Gunningsmith, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Elena Ricci Palermo, senior assistant state's attorney, for the appellee (state).


Harry Weller, Peter T. Zarella, and C. Ian McLachlan filed a brief as amici curiae.

Alinor C. Sterling and James J. Healy filed a brief for the Connecticut Trial Lawyers Association as ami-cus curiae.

George Welch, human rights attorney, filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.

Tadhg Dooley filed a brief for Professors and Research Scholars at Connecticut's Law Schools as amici curiae.

William Tong, attorney general, Clare Kindall, solicitor general, and Joshua Perry, special counsel for civil rights, filed a brief for the Office of the Attorney General as amicus curiae.

Christine Perra Rapillo, chief public defender, and Adele V. Patterson, senior assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.

David N. Rosen filed a brief as amicus curiae.

Georgina Yeomans filed a brief for NAACP Legal Defense and Educational Fund, Inc., as amicus curiae.

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.




The principal issue in this appeal asks us to revisit our recent decision in State v. Holmes, 334 Conn. 202, 221 A.3d 407 (2019), and to consider whether, given the disparate impact on minority communities, a prospective juror's negative experience with, or distrust of, the criminal justice system provides a race neutral reason for the exercise of a peremptory challenge under the Connecticut constitution. The defendant, Jose A. B., appeals[1] from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault or attempt to commit sexual assault and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).[2] On appeal, the defendant claims that (1) the trial court improperly overruled his Batson[3] objection to the prosecutor's exercise of peremptory challenges to two venirepersons, and (2) his conviction of two counts of risk of injury to a child violates his right to be free from double jeopardy. We disagree, and, accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. The victim lived with the defendant, the defendant's wife, who was the victim's legal guardian, and the victim's brother, from the time the victim was eighteen months old. The victim testified that the defendant sexually assaulted her on numerous occasions between 2000 and 2007, when she was between five and twelve years old.[4]

The state subsequently charged the defendant with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), [5] sexual assault in the fourth degree in violation of General Statutes (Rev. to 2001) § 53a-73a (a) (1) (A), [6] attempt to commit sexual assault in the first degree in violation of § 53a-70 (a) (2) and General Statutes § 53a-49 (a) (2), [7] and two counts of risk of injury to a child in violation of § 53-21 (a) (2). The case was tried to a jury, which found the defendant guilty on all counts. The trial court rendered a judgment of conviction in accordance with the jury's verdict, sentenced the defendant to a total effective sentence of seventeen years of imprisonment, followed by two years of special parole, issued a criminal protective order and ordered sexual offender registration. This direct appeal followed.[8] Additional relevant facts and procedural history will be set forth in the context of each claim on appeal.



The defendant first claims that his state and federal constitutional rights were violated because the state's peremptory challenges to two venirepersons, N.L. and C.J., [9] during jury selection violated Batson v. Kentucky,


476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record reveals the following additional facts and procedural history relevant to this claim.

During the prosecutor's voir dire examination of N.L., the following exchange occurred:

‘‘[The Prosecutor]: Do you know of anyone who has ever been accused of a sexual assault besides the one you just told us about
‘‘[N.L.]: Yes.
‘‘[The Prosecutor]: Tell me a little bit about that.
‘‘[N.L.]: Well, he was actually a friend of my husband's. He used to date this girl, and they had kids together, but she had a son with someone else, and she didn't have custody of him. The grandparents did. And I guess maybe he wanted to, you know, live with them, and the person got accused of sexually molesting him. . . . I don't know if it happened. And he went to jail, but he's been out of jail for a long time.[10]
‘‘[The Prosecutor]: Do you think that people [who] are victims of sexual assault should go to the police?
‘‘[N.L.]: Yes.
‘‘[The Prosecutor]: Now, have you or anyone close to you, besides what you told us, ever been charged or arrested for a crime?
‘‘[N.L.]: Myself, I have.
‘‘[The Prosecutor]: Can you tell me a little bit about that?
‘‘[N.L.]: Yeah. It's years ago. I've actually had a pardon. So I don't know if I should talk about it.
‘‘The Court: If you have a pardon-I guess the question would be, is there anything about that experience that might affect your ability to be fair and impartial in this case?
‘‘[N.L.]: I don't think so.
‘‘[The Prosecutor]: You're hesitating a little.
‘‘[N.L.]: No, I don't think so. I think I can separate the two.[11]
‘‘[The Prosecutor]: Do you think that the fact that you were arrested and then later pardoned, do you think that might make you think you might lean more toward the defense in this case?
‘‘[N.L.]: Not based on that. I would actually have to hear both sides. Then I can make a decision from there.
‘‘[The Prosecutor]: Do you think you would hold it
against the state because of what happened?
‘‘[N.L.]: No.
‘‘[The Prosecutor]: All right. There will . . . probably [be] testimony from at least one police officer in this case. What's your feeling about the police in general?
‘‘[N.L.]: Well, I ha[d] a lot of resentment when I got arrested, but, over time, I've learned that whatever happened was not their fault. It was something that I did. And I actually have members that are police officers.
‘‘[The Prosecutor]: Members of [your] family?
‘‘[N.L.]: Mm-hmm.
‘‘[The Prosecutor]: So, you held a lot of resentment at one time for the police. And now?
‘‘[N.L.]: No.
‘‘[The Prosecutor]: Have you ever had to call the police yourself for any reason?
‘‘[N.L.]: Yeah.
‘‘[The Prosecutor]: For what?
‘‘[N.L.]: Domestic, when I was like real young.''

(Footnotes added.)

Upon conclusion of the voir dire examination of N.L., the prosecutor exercised a peremptory challenge. The prosecutor stated, inter alia, that N.L.'s articulated resentment toward the police and her criminal history of a conviction resulting in a pardon warranted the use of a peremptory challenge.[12] Defense counsel then raised a Batson objection to the state's peremptory challenge of N.L. The trial court overruled defense counsel's Batson objection, concluding that the prosecutor's proffered reasons for the peremptory challenge of N.L. were race neutral and not a pretext for discrimination.[13]

The prosecutor subsequently conducted a voir dire examination of C.J., during which they discussed C.J.'s arrest history, which C.J. had only partially disclosed in his juror questionnaire:

‘‘[The Prosecutor]: Have you or anyone close to you ever been arrested for any kind of crime?
‘‘[C.J.]: I have been arrested for a crime.
‘‘[The Prosecutor]: For what, sir?
‘‘[C.J.]: Well, a long time ago, coming out [of] my aunt's building, an undercover police officer grabbed my arm, and I'm thinking it's a robbery, so I swung to get him off of me, but then that-then everything took place. Then I find out he was a police officer.
‘‘[The Prosecutor]: Okay. So you were arrested for that?
‘‘[C.J.]: Yes.[14]
‘‘[The Prosecutor]: You gave a little information on your juror questionnaire, and you . . . put down something about larceny six, but dropped from my job. . . . What's that mean?
‘‘[C.J.]: . . . I worked at Stop and Shop for almost twelve years. All right. We had a hectic night one night. I had my stuff in a carriage, and I was the key holder, so, when I was leaving . . . I grabbed my carriage, but . . . because of the night, I didn't scan those things out, so they put a larceny six, but they dropped it-all that. But that was in 2011.[15]
‘‘[The Prosecutor]: Okay. Besides that, any other time you or anyone else close to you [has] ever been arrested?
‘‘[C.J.]: No.'' (Footnotes added.)
The state then questioned C.J. regarding his attitude toward the police and the criminal justice system:
‘‘[The Prosecutor]:

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