State v. Patterson

• Decision Date: 26 June 1995
• Docket Number: 10855,Nos. 10752,s. 10752
• Citation: 37 Conn.App. 801,658 A.2d 121
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Warren PATTERSON.

Page 121

658 A.2d 121

37 Conn.App. 801

STATE of Connecticut v. Warren PATTERSON.

Nos. 10752, 10855.

Appellate Court of Connecticut.

Argued Dec. 1, 1994.

Decided May 16, 1995.

Certification Granted Limited to the

Following Issues June 26, 1995.

David M. Cohen, with whom, was Gregory J. Williams, Stamford, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, were Eugene Callahan, State's Atty., and Carol Dreznick, Asst. State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, LAVERY and LANDAU, JJ.

LANDAU, Judge.

This matter is currently before us on remand from our Supreme Court. State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994). In this consolidated appeal, the defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b) ¹ and a judgment of revocation of probation. The defendant was also charged with possession of marijuana in violation of General Statutes § 21a-279(c), but was acquitted of that charge. In State v. Patterson, 31 Conn.App. 278, 624 A.2d 1146 (1993), rev'd, 230 Conn. 385, 645 A.2d 535 (1994), we reversed both judgments of the trial court. The Supreme Court granted certification, reversed our judgment and remanded the case for our consideration of the defendant's remaining claims. The defendant claims that the trial court improperly (1) sustained the state's peremptory challenge of an African-American venireperson, (2) failed to suppress an inculpatory statement made by the defendant to the police, and (3) failed to follow certain procedural rules when sentencing the defendant. ²

I

The defendant, who is African-American, first claims that the trial court improperly concluded that the state did not discriminatorily employ a peremptory challenge to exclude an African-American venireperson from the jury in violation of Batson v. Kentucky 76 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). ³

The following facts are relevant to our analysis. The jury selection in this case occurred on October 3 and 4, 1991. The trial judge, without objection from either party, chose not to be present during these proceedings. Counsel for the parties examined twenty-three venirepersons, from which six jurors and two alternates were chosen. Five venirepersons were excused by the trial court for cause, seven were excused by the defendant, and three by the state.

There were three African-American venirepersons in the panel. The state exercised peremptory challenges to excuse the first two African-American panel members questioned. On the state's second peremptory challenge, which it used to excuse venireperson Barbara Dereff, the defendant made a Batson challenge. The trial judge reentered the courtroom and the defendant argued that the state's two successive peremptory challenges to prospective African-American jurors and Dereff's impartiality, demonstrated by her testimony, indicated a Batson violation. The trial judge asked the prosecutor whether she had neutral reasons for excusing Dereff. The prosecutor replied that "[b]ased on one of the questions where asked if she makes up her mind, does she listen to other people--it was the impression that I got that she--once she makes up her mind, she makes up her mind and doesn't listen to what anybody else has to say when she goes straight into the jury room." The trial court then requested to hear the tape recording of the state's questions and Dereff's replies regarding the issue. ⁴ After listening to the tape recording, the trial court ruled: "I've listened to what the juror said and I agree with the state--that the state had a legitimate motive and reason for excusing this juror. It has nothing to do with the juror's race, color or creed." The defendant took an exception and the judge returned to his chambers.

"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. Holloway, 209 Conn. 636, 640, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989); see State v. Gonzalez, 206 Conn. 391, 394-95, 538 A.2d 210 (1988). A defendant who alleges that he has been the victim of purposeful racial discrimination in the use of a peremptory challenge carries the ultimate burden of persuasion. 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.... The defendant is then afforded the opportunity to demonstrate that the state's articulated reasons are insufficient or pretextual." State v. Holloway, supra, 209 Conn. at 641, 553 A.2d 166. "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of [the prosecutor's] credibility ... a trial court's determination that there has or has not been intentional discrimination is entitled to appropriate deference upon review on appeal." (Citation omitted; internal quotation marks omitted.) Id., quoting State v. Gonzalez, supra, 206 Conn. at 395, 538 A.2d 210. Therefore, we may overrule the trial court's conclusion only if we determine that it was clearly erroneous.

"In Holloway, our Supreme Court departed from Batson to the extent that it held that an accused does not have to first make out a prima facie case to be entitled to an explanation from the state. The court in Holloway stated that rather than deciding, based on the existence of a prima facie case, whether an accused is entitled to an explanation of the prosecutor's use of peremptory challenges, 'the better course to follow would be to hold a Batson hearing on the defendant's request whenever the defendant is a member of a cognizable racial group and the prosecutor exercises peremptory challenges to remove members of the defendant's race from the venire....' " (Internal quotation marks omitted.) Id., at 646 n. 4, 553 A.2d 166, quoting State v. Jones, 293 S.C. 54, 57-58, 358 S.E.2d 701 (1987).

"The ultimate decision as to whether the defendant has successfully demonstrated that the prosecution has used their peremptory challenges in a racially discriminatory manner rests with the trial court. Batson v. Kentucky, supra, [476 U.S. at] 96-97 . In deciding whether the defendant has made the requisite showing, or if the prosecution's explanation is neutral or merely pretextual, the trial court should consider all relevant factors and circumstances. Id. A neutral explanation 'means an explanation based on something other than the race of the juror. At this step in the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' Hernandez v. New York, 500 U.S. 352 [358-60], 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). If the prosecutor's reason, however, is 'without regard to the particular circumstances of the trial or the individual responses of the jurors, [it] may be found by the judge to be a pretext for racial discrimination.' Id. [at 371-73, 111 S.Ct. at] 1873; see also State v. Jones, 29 Conn.App. 304, 331-32, 615 A.2d 149 (1992). The factors that might be used to determine pretext have been discussed by our appellate courts. See State v. Smith, [222 Conn. 1, 6, 608 A.2d 63, cert. denied, --- U.S. ----, 113 S.Ct. 383, 121 L.Ed.2d 293 (1992) ]; State v. Gonzalez, supra, [206 Conn. 391, 538 A.2d 210]; State v. Jones, supra, 29 Conn.App. [at] 329 (Norcott, J., dissenting). 'These include whether the prosecutor's reasons are related to the case or are based on a group bias inapplicable to the prospective juror; whether the prosecutor questioned the juror, did so only perfunctorily, or asked questions not asked of other jurors so as to elicit a particular response; whether jurors of different races but similar characteristics were treated differently; and whether a disproportionate number of peremptory challenges were used to strike from the venire members of one particular race.' State v Jones, supra, 29 Conn.App. [at] 332 ; State v. Gonzalez, supra [at] 399 . In Hernandez v. New York, supra, [500 U.S. 352, 111 S.Ct. 1859,] the United States Supreme Court stated that 'invidious discriminatory purpose may often be inferred from the totality of the relevant facts....' As Justice Norcott noted in his dissent in State v. Jones, supra, 29 Conn.App. [at] 334 , 'the most basic element in any determination of whether there was purposeful discrimination is the voir dire proceedings themselves.' See also Gomez v. United States, [490 U.S. 858, 874-75, 109 S.Ct. 2237, 2247-48, 104 L.Ed.2d 923 (1989) ]." ' State v. Patterson, supra, 31 Conn.App. at 290-92, 624 A.2d 1146.

In this case, the trial court determined that the state's explanation of its peremptory challenge was facially valid. The court concluded that the explanation concerned the individual response of the juror and had "nothing to do with the juror's race, color or creed." The state's justification was couched in terms of a "holdout" claim; that is, that Dereff would not listen to what any other juror had to say during deliberations. The defendant argues that Dereff subsequently testified, in response to his questioning, that she would, in fact, listen to other jurors. The state was certainly free to accept Dereff's first statement and discount her testimony on the defendant's rehabilitation. We conclude that the trial court's evaluation of the prosecutor's credibility and its finding that a neutral explanation existed for Dereff's removal was not clearly erroneous. ⁵

The defendant also claims that the trial court's ruling was improper because the court ruled on the merits of the Batson challenge immediately...