State v. Tappin

566 A.2d 709, 20 Conn. App. 241, 1989 Conn. App. LEXIS 351
CourtConnecticut Appellate Court
DecidedNovember 21, 1989
Docket7075
StatusPublished
Cited by3 cases

This text of 566 A.2d 709 (State v. Tappin) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tappin, 566 A.2d 709, 20 Conn. App. 241, 1989 Conn. App. LEXIS 351 (Colo. Ct. App. 1989).

Opinion

Lavery, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of a narcotic substance in violation of General Statutes § 2 la-279 (a). The defendant claims that the trial court erred (1) in failing to compel the state to articulate a nondiscriminatory reason for its peremptory challenge of a black venireperson, and (2) in omitting from its rereading to the jury of its charge on reasonable doubt several crucial instructions, thereby diluting the state’s burden of proof. We find no error.

I

The defendant first claims that the trial court’s failure to compel the state to articulate a nondiscriminatory reason for its peremptory challenge of a black venireperson violated his state and federal constitutional rights to equal protection and an impartial jury. U.S. Const., amend. VI, XIV; Conn. Const. art. I, §§ 8, 20. We disagree.

Of the thirty-three venirepersons voir dired, six jurors and two alternates were chosen, and thirteen venirepersons were excused by the court, eight by the defendant and four by the state. The state asked the same questions of each venireperson. After eliciting background information, the prosecutor asked each venireperson whether he or she believed society suffers from a drug problem, whether he or she would be influenced by the quantity rather than the quality of the testimony, and whether he or she would be able to be fair to both sides, follow the court’s instructions and vote for a verdict of guilty or not guilty according to the evidence.

From our review of the transcripts it appears that each of the first nine panelists responded to these and [243]*243similar questions in a straightforward and unequivocal manner.1 The tenth venireperson2 was challenged by the state. Immediately thereafter, the following colloquy took place:

“The Court: First challenge for the state?
“[State’s Attorney]: Yes, Your Honor.
“The Court: The court will take a short recess.

[244]*244“[Defense Counsel]: Your Honor, I don’t know how many panelists we’ve had for voir dire, it’s quite a few. I’ve lost count.

“The Court: That’s number ten.

“[Defense Counsel]: Number ten, and the state has not exercised any challenges thus far and [this venireperson] was the first black panelist to be subject [245]*245to a voir dire and it was the first man against which the state has exercised the challenge. Now, when [the state’s attorney] was engaging in a voir dire with [this venireperson], I took very good notes about the responses that [he] gave to [the state’s attorney]. The responses by and large were no different than most of the responses given to [the state’s attorney] by all of the white panelists and in accordance with the most [246]*246recent Supreme Court opinion on this issue I move this court for a hearing that [the state’s attorney] be put under oath and made to—

“The Court: Motion denied. Recess.”

Although it has been well settled for over a century that the systematic exclusion of otherwise qualified citizens from jury service on account of race violates the equal protection clause of the fourteenth amendment; Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880); until recently, criminal defendants were unable to challenge effectively the state’s use of peremptory challenges for discriminatory purposes in specific cases. See Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965) (equal protection violation shown only where discriminatory use of peremptory challenges is evident in case after case, whatever the circumstance). In 1986, the Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), overruled Swain v. Alabama, supra, and held that the discriminatory use of a peremptory challenge in a single case violates the equal protection clause.

Under Batson v. Kentucky, supra, the defendant must first make a prima facie showing that the state exer[247]*247cised a peremptory challenge with a racially discriminatory purpose. Id., 96. This showing must include evidence that the defendant “is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. . . . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the venireman from the petit jury on account of their race.” (Citations omitted.) Id. In making his prima facie showing, the defendant may “rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” Id.

If the defendant successfully makes this prima facie showing, the burden shifts to the state to articulate a neutral explanation for excusing members of the defendant’s racial group. Id.; State v. Wylie, 10 Conn. App. 683, 696, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). The trial court must then determine whether the defendant has carried the overall burden of showing purposeful discrimination.

In State v. Holloway, 209 Conn. 636, 553 A.2d 166 (1989), a case published after the defendant’s trial, our Supreme Court, in an exercise of its inherent supervisory authority, modified the Batson procedure, ruling that “in all future cases in which the defendant asserts a Batson claim, we deem it appropriate for the state to provide the court with a prima facie case response consistent with the explanatory mandate of Batson” Id., 646. Because the court expressly limited the applicability of this rule to future cases, the Batson procedure, as outlined above, controls this case.

[248]*248In this case, the state peremptorily challenged the first black venireperson. The defendant objected, gave the factual basis for his objection, and moved to place the state’s attorney under oath to proffer a neutral reason for the challenge. The trial court summarily denied the motion and took a short recess. Under Batson, the trial court should deny such a motion only after determining that the defendant had failed to make a prima facie showing of discriminatory abuse of the challenge. State v. Wylie, supra. Accordingly, we must determine whether the trial court could reasonably have reached such a conclusion.

Our task is complicated by the very flaw in the record that the Holloway rule will eradicate from future cases, namely, the absence of any neutral explanation given by the state for the challenge. See State v. Holloway, supra, 645-46. Nevertheless, we can review the record to determine whether the defendant made the requisite prima facie showing. See, e.g., State v. Martin, 2 Conn.

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Related

State v. Hodge
726 A.2d 531 (Supreme Court of Connecticut, 1999)
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615 A.2d 149 (Connecticut Appellate Court, 1992)
State v. Graham
575 A.2d 1057 (Connecticut Appellate Court, 1990)

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Bluebook (online)
566 A.2d 709, 20 Conn. App. 241, 1989 Conn. App. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tappin-connappct-1989.