State v. Latour

• Decision Date: 13 December 2005
• Docket Number: No. 17177.,17177.
• Citation: 886 A.2d 404,276 Conn. 399
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael J. LATOUR.

886 A.2d 404

276 Conn. 399

STATE of Connecticut v. Michael J. LATOUR.

No. 17177.

Supreme Court of Connecticut.

Argued October 19, 2005.

Decided December 13, 2005.

Adele V. Patterson, assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, was Patricia M. Froehlich, state's attorney, for the appellee (state).

SULLIVAN, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

Opinion

KATZ, J.

The dispositive issue in this direct appeal is whether the denial of a defendant's request to exercise a peremptory challenge of a venireperson, who served solely as an alternate, can constitute an impropriety that requires a new trial in the absence of an analysis on the issue of harm. The defendant, Michael J. Latour, appeals from the trial court's judgment of conviction, rendered after a jury trial, claiming that the trial court improperly denied his peremptory challenge of a venire-person and that the impropriety was a structural error requiring a new trial.¹ We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The defendant was charged with the murder of Jenny McMechen in violation of General Statutes § 53a-54a (a) and criminal possession of a firearm by a person previously convicted of a felony in violation of General Statutes § 53a-217 (a)(1). During the trial, although there were no eyewitnesses to the murder, the jury heard from several state's witnesses who, in their descriptions of the defendant's whereabouts on the night in question, placed him coming and going from the house where the victim was shot. Additionally, these witnesses testified that, when the defendant entered the house, he was in possession of a firearm, that they heard him call the victim's name, followed by gunshots, and that later that night and the next day he admitted to the shooting. The jury also learned that the defendant and the victim had been in a relationship for more than one year and that the victim was thirty-six weeks pregnant at the time of her death. The defendant presented no witnesses.

Following the trial court's denial of the defendant's motion for judgment of acquittal on the criminal possession charge, the court found the defendant guilty of that charge. The jury then found the defendant guilty on the murder charge and, by special verdict, also found the defendant guilty of having used a firearm in the commission of that offense in violation of General Statutes § 53-202k. The trial court thereafter rendered judgment in accordance with the verdicts and imposed a total effective sentence of life imprisonment plus ten years. This appeal followed.

Because the sole issue on appeal concerns legal rulings made during the jury selection process, we highlight the following additional facts reflected in the record. Twelve jurors and four alternates ultimately were selected to serve on the defendant's jury. The advanced stage of the victim's pregnancy at the time of her death was a significant subject of voir dire. During the third day of jury selection, the state objected to the defendant's exercise of his eighth peremptory challenge, alleging that he unlawfully had been exercising his peremptory challenges with the intent of excluding women from serving on his jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The state recited as part of its objection that, up to that point in time, the record reflected the following facts. On December 2, 2003, the first day of jury selection, three male jurors were impaneled; the state struck one prospective male juror, the defendant struck two prospective female jurors and the court excused one other prospective female juror for cause. On December 3, 2003, four jurors were impaneled, three males and one female; the state struck one prospective male juror, the defendant struck one prospective male juror and two prospective female jurors, and the court excused five prospective female jurors for cause. Subsequently, on December 4, 2003, three male jurors were impaneled; the state struck one prospective male juror, the defendant struck one prospective female juror and the court excused one prospective male juror for cause. In sum, ten jurors, nine of whom were males, had been selected, the defendant had exercised seven of his eighteen allotted peremptory challenges, five as to females, and the state had exercised four peremptory challenges, three of them as to males. It was when the defendant attempted to exercise a peremptory challenge of venireperson D.L., his sixth challenge as to a female, that the state objected.

The defendant argued that he should not be required to articulate a gender neutral reason for excusing the juror. Following a brief argument on what standard should be applied before requiring the defendant to state his reasons for exercising a peremptory challenge,² the trial court allowed the defendant to excuse the juror without any explanation, indicating that it would see how things developed with the next three jurors.

The next venireperson to be questioned was E.W., a female, against whom the defendant also exercised a peremptory challenge. Again, the state objected, claiming a Batson challenge based on gender, and the defendant again argued that he should not be required to articulate a gender neutral reason for excusing the juror, suggesting as a remedy that the court instead impanel the female venireperson whom the state had challenged the previous day. The trial court noted that the state justifiably had excluded that female juror in light of her difficult disposition, but allowed the defendant to excuse E.W. without requiring him to assert a gender neutral reason, stating that the court would familiarize itself with the pertinent legal authorities as to whether such an articulation should be required. Later that same day, however, the court did express concern that it perceived a pattern by the defendant—in that seven out of eight of his challenges had been against females, thus resulting in the selection of one female juror out of ten jurors—and hoped that this pattern would cease.

On December 9, 2003, of the fourteen females on the venire panel, the court excused seven for cause without questioning. Of the six females who were fully voir dired, the court excused three for cause, the state exercised its peremptory challenges as to two others and the defendant attempted to exercise a peremptory challenge as to the sixth female venireperson, L.S., after the court had denied the defendant's attempt to challenge her for cause. Claiming its right to invoke the equal protection clause of the fourteenth amendment to the federal constitution to limit the defendant's use of his peremptory challenge to excuse L.S., the state again objected to the defendant's challenge. The trial court ruled that it would adhere to Connecticut practice, which does not require the party raising such an objection to make a showing of purposeful discrimination before requiring the party seeking to exercise the peremptory challenge to provide a gender neutral explanation for the challenge. The court then found that the defendant had excluded seven females through the use of his peremptory challenges and that the state had established a prima facie case of discrimination. Accordingly, the court ordered the defendant "to advance a nondiscriminatory explanation for [L.S.'s] removal.... [Thereafter], the state will have the opportunity to demonstrate that the explanation is [pretextual] or otherwise insufficient. The state bears the ultimate burden of persuading the court by a preponderance of the evidence that the jury selection is tainted." The defendant then provided a nondiscriminatory reason for his challenge.³ Following argument on the issue, the trial court allowed the challenge, relying in part on the defendant's explanation.

By December 10, 2003, eleven males and one female had been impaneled to serve as jurors, and two females and one male had been selected to serve as alternates. That day, both the state and the defendant exercised one peremptory challenge against prospective alternate male jurors, and the defendant, after being required by the court to state a gender neutral reason, exercised a challenge to a prospective alternate female juror, L.W. With one more alternate juror to select, the defendant questioned another female venireperson, K.N., against whom he also tried to exercise a peremptory challenge. Without any instigation by the state, the court required the defendant to provide a "gender neutral explanation...." Over objection, the defendant provided two reasons, the primary one being that he personally had sensed some hostility from K.N.⁴ The state disagreed with the defendant's perceptions of K.N. and claimed that the defendant's reason was pretextual. The trial court agreed with the state. Although the court accepted the defendant's explanation as to his feelings about K.N., it did not consider that explanation to be "a valid reason" to exclude K.N. from the panel. Accordingly, the court disallowed the peremptory challenge, and K.N. was seated as a fourth alternate juror. On January 6, 2004, two of the alternate jurors were selected by drawing lots to replace excused jurors. K.N. was not one of those alternates chosen. It is the trial court's disallowance of the defendant's peremptory challenge to K.N. that forms the basis of this appeal.

On appeal, the defendant first contends that the trial court unnecessarily engaged in the first step of the Batson analysis when concluding that the state had established a prima facie case of gender discrimination. He acknowledged both that he failed to object to this alleged procedural flaw and that this determination would not constitute a significant impropriety had the court...