State v. Thomas, No. 15740

• Court: Appellate Court of Connecticut
• Writing for the Court: SCHALLER
• Citation: 50 Conn.App. 369,717 A.2d 828
• Parties: STATE of Connecticut v. Barry THOMAS.
• Docket Number: No. 15740
• Decision Date: 15 September 1998

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717 A.2d 828 50 Conn.App. 369 STATE of Connecticut
v.
Barry THOMAS. No. 15740. Appellate Court of Connecticut. Argued March 17, 1998.
Decided Sept. 15, 1998.

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Susan M. Hankins, Assistant Public Defender, for appellant (defendant).

Ellen A. Jawitz, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Warren Maxwell, Senior Assistant State's Attorney, for appellee (State).

Before LANDAU, SCHALLER and SULLIVAN, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(1). On appeal, the defendant claims that the trial court improperly (1) permitted the state to exercise a peremptory challenge to remove a venireperson, (2) failed to instruct the jury that disbelief of the defendant's testimony was not [50 Conn.App. 371] affirmative proof of the opposite and (3) instructed the jury on flight as evidence of consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 18, 1994, the defendant's mother approached him and told him that a Hispanic male, who was later identified as the victim, had broken into their home and left with a boom box. The defendant had seen a Hispanic man running through the neighborhood with a boom box, and he left on a bicycle to find the man. The defendant's mother returned home and called the police.

The defendant found the victim, who was attempting to sell the boom box, and approached with bricks in his hands. He asked the victim how he had obtained the boom box, and the victim said that it belonged to him. The men argued and the defendant hit the victim in the head with one of the bricks. Mary Thorpe, who owned the property where the altercation was taking place, asked them to leave her yard. The defendant picked up the victim by his pants carried him out to the street. As the defendant punched and kicked the victim, the victim did not fight back.

The defendant produced a knife from his back pocket and stabbed the victim in the chest. The defendant then pulled the knife out of the victim's chest and threw it to the ground. ¹ The victim ran up the street, holding his chest, leaving a trail of blood. The defendant took the boom box and returned home. Police were summoned to the back yard of 58-60 Edgewood Street, where they found the victim in a pool of blood. The victim was rushed to a hospital, where he died as the result of the stab wound to the chest.

[50 Conn.App. 372] Police Officer Julio Camacho, who had gone to the defendant's home to investigate the burglary complaint lodged by the defendant's mother, was speaking to the defendant's mother when the defendant returned home and told Camacho that he had caught

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the man who had broken into his mother's house and that he "got into it with him." The defendant told Camacho that the police were no longer needed.

Camacho left in his cruiser and was headed south on Albany Avenue when he heard a radio broadcast that a person fitting the defendant's description had been involved in a stabbing. Camacho returned, found the defendant and arrested him.

At trial, the defendant claimed that he had acted in self-defense, and later admitted that he had stabbed the victim in retaliation because the victim had swung at him. ² The defendant was found guilty of one count of manslaughter in the first degree in violation of § 53a-55 (a)(1). ³ This appeal followed.

I

The defendant first claims that the trial court improperly permitted the state to exercise a peremptory challenge violating the defendant's right to equal protection under the state and federal constitutions. The defendant claims that the state's use of the peremptory challenge was racially motivated and that the trial court improperly denied his motion on the Batson challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

[50 Conn.App. 373] The following additional facts are necessary to our resolution of this claim. The jury selection spanned nine days, and counsel questioned forty-four prospective jurors. The venireperson in question, D, was the twenty-first prospective juror to be questioned by the parties. At that point, five jurors had been chosen to serve on the panel, at least one of whom was African-American. The defendant in this case is also African-American. ⁴

Before D came forward for voir dire, the prosecutor indicated to defense counsel that he would probably excuse D for lack of education, having seen on the questionnaire that D had completed only eight or ten years of school. Both counsel questioned D, who is African-American, with defense counsel proceeding first.

At the close of questioning, the defendant found D acceptable as a juror, but the prosecutor exercised a peremptory challenge against him. ⁵ Defense counsel did [50 Conn.App. 374] not

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attempt to show that the prosecutor's reasons for striking D were insufficient or pretextual, and the trial court made no findings in that regard. The trial court denied the defendant's motion on the Batson challenge and defense counsel did not take exception or address this issue further until taking this appeal.

The defendant claims that the trial court improperly allowed the state to use a peremptory challenge to remove an African-American venireperson because the reasons advanced by the state were pretextual and not race neutral. We do not agree.

"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 [50 Conn.App. 375] v. Kentucky, supra, 476 U.S. at 94 n. 18, 106 S.Ct. 1712. 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, 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.... Id., quoting State v. Gonzalez, supra, 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.) State v. Holloway, supra, 209 Conn. at 646 n. 4, 553 A.2d 166, quoting State v. Jones, 293 S.C. 54, 57-58, 358 S.E.2d 701 (1987)." State v. Patterson, 37 Conn.App. 801, 805-807, 658 A.2d 121 (1995), rev'd on other grounds, 236 Conn. 561, 674 A.2d 416 (1996), quoting State v. Patterson, 31 Conn.App. 278, 290-92, 624 A.2d 1146, (1993), rev'd on other grounds, 230 Conn. 385, 645 A.2d 535 (1994).

[50 Conn.App. 376] A

The threshold issue that must be addressed in this appeal is whether the trial court afforded the defendant a hearing on his Batson claim. We note that the trial court ruled on the merits of the Batson challenge immediately after hearing the state's explanation of its peremptory challenge.

"In State v. Patterson, [230 Conn. 385, 393, 645 A.2d 535 (1994) ], our Supreme Court concluded that 'because the defendant can waive one of the primary rights protected by judicial supervision of the entire voir dire, namely, his equal protection right against

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discriminatory peremptory challenges, the defendant can also waive the right to judicial supervision over the voir dire process itself.' It follows that the defendant can waive part of the process intended to protect his equal protection right, that is, his opportunity to demonstrate that the state's neutral explanation of its peremptory challenge is in fact pretextual.

"The Patterson court also held that, in such circumstances, 'waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.' Id., [at] 396[, 645 A.2d 535]." State v. Patterson, supra, 37 Conn.App. at 809, 658 A.2d 121. In this case, the record indicates that defense counsel did not take an exception to the trial court's ruling that his Batson claim was denied. Moreover, there is no indication that defense counsel objected to the court's failure to afford him an opportunity to respond to the state's neutral explanation. Nor does the record reflect that defense counsel requested such an opportunity. We conclude, therefore, that the defendant was afforded a hearing on his Batson claim and waived his right to respond to the state's explanation of its peremptory challenge.

B

"The ultimate decision as to whether the defendant has successfully...