State v. Young, (AC 22860).

• Court: Appellate Court of Connecticut
• Writing for the Court: SCHALLER, J.
• Citation: 76 Conn. App. 392,819 A.2d 884
• Parties: STATE OF CONNECTICUT v. WILLIE YOUNG.
• Docket Number: (AC 22860).
• Decision Date: 29 April 2003

76 Conn. App. 392

819 A.2d 884

STATE OF CONNECTICUT v. WILLIE YOUNG.

(AC 22860).

Appellate Court of Connecticut.

Argued December 9, 2002.

Officially released April 29, 2003.

Foti, Schaller and Freedman, Js. Mary Anne Royle, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Elpedio N. Vitale, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Willie Young, appeals from the judgment of conviction, rendered after a jury trial, of one count each of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). The defendant claims that (1) the court improperly permitted the state, during jury selection, to exercise a peremptory challenge in a racially discriminatory manner, (2) the prosecutor committed misconduct during rebuttal argument to the jury and (3) the court improperly denied the defendant's motion to suppress the in-court identification of him by a witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 5:20 p.m. on December 12, 1999, two employees at the Family Dollar store in Hamden, Laura Chesmar and George Cole, were approached by the defendant as they were counting cash at the registers. The defendant ordered Chesmar and Cole to sit on the floor while he took cash from the registers. He then ordered them to accompany him to the back of the store, where he forced Cole at gunpoint to unlock the door to the store's back office. Once inside the office, the defendant forced Cole to retrieve approximately $8000 from a money box kept in a filing cabinet. He then bound Chesmar and Cole using electrical cords. They subsequently freed themselves and escaped to a nearby restaurant, where they telephoned the police. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly permitted the state, during jury selection, to exercise a peremptory challenge in a racially discriminatory manner. Specifically, the defendant argues that the court, in considering his objection to the state's use of a peremptory challenge against a black venireperson, failed to apply the third prong of the test set forth in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The defendant further argues that the court improperly failed to make a finding of discrimination in light of what he claims was the prosecutor's disparate treatment of that black venireperson and a white venireperson with similar characteristics.

The following additional facts are relevant to the defendant's claim. During jury selection, the prosecutor questioned L,¹ a black male venireperson. In response to the prosecutor's questions, L stated that someone had once broken into his home and stolen some items. L also indicated that many of his acquaintances had been victims of crimes, including armed robbery, and that he had a good friend who was a convicted murderer. When the prosecutor asked L whether he would have any trouble making a decision as a juror in light of his familiarity with people on both sides of the law, L answered in the negative. In elaborating on his answer, however, L stated that "God is the final judge, so it's nothing on me." Later, during examination by defense counsel, L stated that "if [the defendant] is guilty and I see that he's guilty, then, you know, all I can do is pray for him, because God is his judge." Nevertheless, in response to questioning by both the prosecutor and defense counsel, L repeatedly stated that he thought he could put his personal beliefs aside and consider the case based on the judge's explanation of the law.

The state exercised a peremptory challenge to excuse L from the venire. The defendant objected and requested that the state give a race neutral reason for the challenge. In response, the state articulated two reasons for the challenge. First, the state noted that L had given contradictory and confusing responses regarding his ability to follow instructions inconsistent with his personal beliefs. Second, the state indicated that its decision was based on L's familiarity with both criminals and victims of crimes, and his friendship with a convicted murderer, in particular.

The defendant responded by arguing that the state's proffered reasons for exercising the peremptory challenge were pretextual. With regard to the state's first proffered reason, the defendant argued that L clearly had indicated that he could set his personal beliefs aside and decide the case according to the judge's instructions. As to the state's second proffered reason, the defendant argued that most young black men from New Haven know victims of crime and criminal defendants, and that allowing challenges on that basis would result in a situation in which the court would not "have. . . any sitting jurors that are young African-American males who live in New Haven." The court overruled the defendant's objection to the peremptory challenge, stating that "on this record, [the court is] not prepared to make a finding that the reasons given are pretextual."

A

The defendant first argues that the court, in considering his objection to the state's use of a peremptory challenge against L, failed to apply the third prong of the test, as set forth in Batson v. Kentucky, supra, 476 U.S. 79, for determining whether a peremptory challenge has been exercised in a discriminatory manner. We are not persuaded.

We begin by setting forth the proper standard of review. The defendant's argument requires that we determine whether the court applied the appropriate legal standard in evaluating his claim of discrimination. That issue presents a question of law, and our review is therefore plenary. See Adams v. State, 259 Conn. 831, 837, 792 A.2d 809 (2002).

Batson v. Kentucky, supra, 476 U.S. 96-98, "establishes a three-step procedure for evaluating claims that a prosecutor has used peremptory challenges in a manner violative of the equal protection clause. . . . First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. . . . In the second step, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. . . . The third step requires the defendant to show that the articulated reasons of the state are insufficient or merely pretextual." (Citations omitted.) State v. Rodriguez, 37 Conn. App. 589, 596-97, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995). "The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination." (Internal quotation marks omitted.) State v. Carrasco, 259 Conn. 581, 585-86 n.9, 791 A.2d 511 (2002).

After hearing the defendant's arguments as to why the state's proffered reasons for exercising the peremptory challenge were pretextual, the court stated only that it was "not prepared to make a finding that the reasons given are pretextual." It appears from that statement that the court concluded that the defendant had failed to carry his burden of showing that the state had purposefully discriminated in exercising the peremptory challenge against L. It therefore appears that the court applied the proper Batson analysis in evaluating the defendant's objection to the state's peremptory challenge.

The defendant nevertheless urges us to conclude that the court failed to make the inquiry required under the third step of the Batson analysis because "[t]he record does not show that the court made a sufficient inquiry into why the prosecutor's explanation was race neutral." We note in that regard that "the appellant bears the burden of providing an appellate court with an adequate record for review. . . . It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling. . . ." (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 394, 757 A.2d 1074 (2000). We see no reason to depart from that well established rule in the present case. The defendant has failed to establish through an adequate record that the court failed to apply the appropriate legal standard.² In the absence of a motion for articulation, we will not assume that the court failed to apply the proper legal standard simply because it failed to articulate its reasoning. Consequently, on the basis of the record before us, we reject the defendant's argument that the court applied the incorrect legal standard.

B

The defendant next argues that the court improperly failed to make a finding of discrimination in light of the prosecutor's disparate treatment of L and a white venireperson with similar characteristics. The defendant makes his argument for the first time on appeal and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³

Our Supreme Court has stated that "[i]t would be both unfair and unreasonable to require the trial court to conduct a comparative evaluation of the backgrounds of venirepersons who have not been identified by the defendant in support of his Batson claim. Because a party is entitled to raise a Batson challenge at any time prior to the swearing in of the jury . . . there is no reason why the burden of identifying, with reasonable...