State v. Holmes

LAVINE, J., concurring.

I agree with the majority's conclusion that in the present case, the peremptory challenge was properly exercised under prevailing law and practices. I especially agree with the observations expressed in footnote 5 of the majority's opinion, including
the admonition that trial courts must be particularly diligent in assessing the use of peremptory challenges in cases in which the opportunity for pretextual use of such challenges is present. It is my view, however, that no amount of judicial diligence and over-sight can remedy a problem that has become embedded in the

Batson

1

procedure itself unless that procedure is revised. I write separately because this case brings into sharp relief a serious flaw in the way

Batson

has been, and can be, applied.

Batson

is designed to prevent lawyers from peremptorily challenging prospective jurors for manifestly improper reasons based on race, national origin, and the like. It was

not

designed to permit prosecutors-and other lawyers-to challenge members of suspect classes solely because they hold widely shared beliefs within the prospective juror's community that are based on life experiences. This flaw is in plain sight for all to see and must be remedied if the jury selection process is to attain the goal of producing juries representing all of the communities in our state
and gaining their confidence and trust. I believe a blatant flaw that significantly disadvantages black defendants

2

-and people belonging to other suspect classes-has become part of the

Batson

process itself. I conclude that Connecticut should reform its jury selection process to eliminate the perverse way in which

Batson

has come to be used. I put forth a suggestion that, I hope, will prompt discussion.

In the present case, the prospective juror, W.T., a social worker and a volunteer for the Department of Correction, was asked if he had had any interactions with the police in which he had developed either a strong or unfavorable impression of the police or of the way in which he was treated by the police in any situation. He responded by stating that based on his experiences growing up in this society, he fears for his life. He stated that he sometimes is concerned when he sees a police car behind him when he is driving and wonders if he's going to be stopped. He further stated that he has family members who had spent time in jail, but that he would not be influenced by that fact. In addition, he noted that, based on his experiences working with inmates, he is aware of issues within the American criminal justice system, such as the fact that African-Americans represent a disproportionate number of inmates in jail.

3

He stated, however,
that he could
be fair and would have no trouble following the court's instructions.

Notwithstanding the concerns I express here, I think that, under the present regime, there was at least an arguable basis to conclude that W.T. could not be fair. In light of all of his views considered together, not having been in the courtroom to personally observe W.T., and taking the prosecutor at his word, I am unable to conclude that the use of a peremptory challenge was pretextual.

Acknowledging that there is a diversity of opinion within every community, however, W.T.'s views appear to me to be by no means radical or unreasonable. On the contrary, they appear to be logical, fact-based, and understandable in light of the troubling-to use a euphemism-history of relations between minority communities, on the one hand, and the police and criminal justice system, on the other. They are particularly understandable in light of the many shootings of young black men by police around the country in recent years. One need not share W.T.'s beliefs in every respect to believe them to be rational and widely held in his community. Yet, under

Batson

, W.T.'s understandable beliefs provide a basis for the proper use of a peremptory challenge given the way

Batson

is presently administered.

Justice Marshall noted in his concurring opinion in

Batson

that "defendants cannot attack the discriminatory use of peremptory challenges at all unless the challenges are ... flagrant .... A prosecutor's own conscious or unconscious racism may lead him easily
to the conclusion that a prospective black juror is 'sullen,' or 'distant,' a characterization that would not have come to his mind if a white juror had acted identically. A judge's own conscious or unconscious racism may lead him to accept such as an explanation as well supported." (Citations omitted.)

Batson

v.

Kentucky

,

476 U.S. 79

, 105-106,

106 S.Ct. 1712

,

90 L.Ed.2d 69

(1986).

Indeed, disingenuous explanations for the use of peremptory challenges against various categories of prospective jurors abound in the case law.

4

Justice Marshall himself urged the total elimination of all peremptory challenges.

Id., at 107

,

106 S.Ct. 1712

. Judge Mark W. Bennett, a
United States District Court judge in the Northern District of Iowa, shares that view and has written that "[b]ecause

Batson

's framework is flawed, it has produced the lingering and tragic legacy that the courts always

do not

find purposeful discrimination, regard-less of how outrageous the asserted race-neutral reasons are." (Emphasis in original.) M. Bennett,
" Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of

Batson

, and Proposed Solutions," 4 Harv. L. & Policy Rev. 149, 161 (2010).

The reality is that "[u]nder [the] current

Batson

doctrine, the trial court cannot reject a peremptory challenge unless it makes a finding of attorney misconduct that has at least two facets, either of which would give any reasonable trial judge pause. First, the judge must make a factual finding that the race- or gender-neutral explanation proffered by the striking attorney at

Batson

's second step is not, in fact, the reason for the strike but is instead 'pretextual ....' In other words, the court must find that the attorney has made a misrepresentation to the court of a material fact-a serious breach of the attorney's ethical duty of candor. Second and relatedly, the judge must find that the attorney exercised a peremptory challenge based on race or gender and accordingly violated the juror's constitutional right to equal protection under the law. Indeed, considered together, a trial court ruling in favor of a

Batson

movant constitutes a judicial determination that an attorney, in open court, engaged in a misrepresentation of a material fact to obscure a violation of the law-an action that, in other contexts, could warrant criminal prosecution. ... Given the implications of the findings required to establish a

Batson

violation, it is understandable that in all but the most extreme cases, trial courts will err on the side of crediting the reason proffered for a strike." (Footnotes omitted.) J. Bellin & J. Semitsu, " Widening

Batson

's Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney,"

96 Cornell L. Rev. 1075

, 1113-14 (2011). Put simply, judges are reluctant to find that a
prosecutor's stated reasons are based on conscious, or unconscious, racist beliefs or assumptions.

5

The problem presented by this case, then, must be viewed in the context of the generally ineffectual application of

Batson

.

Where does that leave things? What is to be the fate of the hypothetical black prospective juror who testifies under oath that he can be fair to both the state and the defense, but also indicates that he has concerns because he has been stopped, for no apparent, valid reason, while driving? Or because members of his family have been jailed? What about the hypothetical female prospective juror, who is being questioned in a criminal sex assault case, who swears that she can be fair to the state and the defendant, but who has formed the opinion that police sometimes do not treat the victims of sexual assault with all the seriousness and dignity to
which they are entitled? Or the hypothetical Japanese-American prospective juror, in a civil case in which a federal employee is the plaintiff, who swears he or she could be fair to both sides, but who recounts his or her family's suffering at the hands of the federal government when subject to internment during World War II?

There are two things fundamentally wrong with a system that permits someone with the rational and fact-based views of these hypothetical prospective jurors to be peremptorily challenged and excluded from jury service.

First, permitting someone with the stated beliefs of these hypothetical prospective jurors to be excluded from jury service is an affront to the community with which he or she identifies and undermines the claim of the jury selection system to be fairly representative of all segments of our diverse society. The reality is that permitting the use of peremptory challenges under these circumstances

effectively excludes a significant number of people belonging to suspect classes from jury service

.

Batson

, as it has evolved, permits the elimination of certain categories of prospective jurors whose views are reasonable and widely shared in their communities. The potential for the kind of categorical exclusion that

Batson

permits is simply unacceptable in a system that strives to treat everyone equally. It sends a troubling message to members of minority communities who should be encouraged-not discouraged-to actively engage in, and trust, the criminal justice system.

Second, permitting a peremptory challenge to be used under these circumstances is an affront to the dignity of the individual prospective juror who is excluded for honestly voicing reasonable and widely held views. It minimizes or negates his or her life experience in an insulting and degrading way. It must be remembered that one of the rationales for

Batson

is that the inappropriate exclusion of prospective jurors deprives the

prospective juror

of his or her constitutional right to serve on a jury-a basic right of citizenship. See

Batson

v.

Kentucky

, supra,

476 U.S. at 87

,

106 S.Ct. 1712

. To prohibit a significant percentage of people belonging to a suspect class from serving on a jury because they express a reasonable, fact-based, and widely held view cannot be countenanced. As Justice Powell, writing for the court, stated in

Batson

, "[s]election procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice."

Id.

Moreover, if members of a suspect class are punished for honestly voicing their widely shared views; for example, they are concerned when they see a police car behind them when they are driving because they fear being stopped for no valid reason;

6

the present regime creates
an incentive for them to give dishonest or deceitful answers, rather than honest ones. This, in and of itself, undermines a fair jury selection system, which relies on prospective jurors honestly answering the questions put to them.

It is true, of course, that peremptory challenges play an important function in our system because they permit lawyers to use their intuition in the very human
jury selection process. Lawyers should have the opportunity to look prospective jurors in the eye, size them up, and evaluate their answers. This is a time-honored and important practice. However, as Justice Marshall noted in his concurring opinion in

Batson

, "the right of peremptory challenge is not of constitutional magnitude, and may be withheld altogether without impairing the constitutional guarantee of impartial jury and fair trial."

Id., at 108

,

106 S.Ct. 1712

. When the use of a peremptory challenge, in cases similar to the present one, has the potential to exclude categorically large swaths of people within a suspect class, the price the system pays for maintaining that practice is too high.

This problem cannot be solved simply by urging restraint upon the lawyers selecting a jury. Their job, after all, is to win their clients' cases by selecting a jury most likely to return a verdict in their favor. The player in the system with the responsibility for ensuring that prospective jurors belonging to suspect classes are properly treated so that the system is fair, and is perceived as fair, is the judge. Our judges are tasked with making many difficult and sensitive decisions in a wide variety of contexts. Our judges decide which parent a child should live with in highly contested divorce cases; and decide what sort of a sentence to mete out when serious violent crimes are committed; and decide whether and how much punitive damages should be awarded in bitter business disputes. And judges already determine whether a prospective juror should be excused for cause. Our judges can be trusted to administer the jury selection process so as to protect all of the important societal interests involved, not only those of the state and the defendant.

I understand Connecticut's deep and long-standing attachment to the individual

voir dire

.

7

Therefore, I
suggest an alteration in the way

Batson

is administered in Connecticut to ameliorate the negative effects of the present regime. I would remove some of the discretion from the lawyers selecting a jury and reallocate it to the judge supervising the process. I believe the flaw illustrated by cases of this sort could be ameliorated substantially if judges are given the discretion to disallow the use of peremptory challenges in cases
in which: (1) the prospective juror is part of a suspect class; (2) the prospective juror gives an unequivocal assurance, under oath, that he or she can be fair to both sides; (3) the prospective juror expresses reasonable and fact-based views, which, in the opinion of the judge, following argument by the lawyers, are widely shared in the prospective juror's particular community; and (4) the judge concludes that the prospective juror can, in fact, be fair.

The application of this proposed test would tend to ensure that a peremptory challenge could not exclude the previously discussed hypothetical jurors. Suppose, however, that one of these prospective jurors testifies that he or she distrusts the criminal justice system because he or she heard someone on "talk radio" criticize it. In this instance, the judge would permit the exercise of a peremptory challenge because the prospective juror's views, in part, would not be reasonable and based on the potential juror's life experience.

I acknowledge that this approach would deprive lawyers of some degree of discretion in their use of peremptory challenges and would transfer that discretion to the judge. But I believe this reallocation of discretion from lawyers picking juries, to judges supervising the process, is needed. As cases raising these issues illustrate, the price society pays by permitting prospective
jurors, like W.T., to be excluded is unacceptably high. The justice system has an obligation to do everything it can to encourage participation by all segments of society, particularly those who have grown understandably suspicious of that system. I can think of no better way to accomplish this than by trusting our judges to monitor this process, keeping well in mind the lamentable history of racial discrimination that has afflicted African-American communities and other people belonging to suspect classes. The

Batson

problem discussed here deserves study in the interest of ensuring that Connecticut juries are fairly composed of representatives from the many diverse groups that make up our great state.

See

Batson

v.

Kentucky

,

476 U.S. 79

,

106 S.Ct. 1712

,

90 L.Ed.2d 69

(1986).

Many reported

Batson

cases arise from criminal cases in which the prospective juror struck was African-American, and the party exercising the challenge is a prosecutor. However,

Batson

is applicable in civil and criminal cases, irrespective of which party is seeking to exercise a peremptory challenge against someone from a suspect class. While

Batson

itself primarily discusses issues relating to African-American prospective jurors, it applies as well to other suspect classes and categories of people. For simplicity, I will use the phrase "suspect class" throughout this opinion.

The problem of over-incarceration of African-American males has been the subject of much discussion and debate in recent years. See, e.g., M. Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012). Studies indicate that the percentage of black men in prison is disproportionately higher than the percentage of black men in the general population. The September, 2014 bulletin of the United States Department of Justice, Bureau of Justice Statistics, indicates that as of December 31, 2013, of 1,516,879 sentenced prisoners under the jurisdiction of state or federal correction authorities, 526,000 were black men; 454,100 were white men; and 314,600 were Hispanic men. E. Carson, "Prisoners in 2013," (September 2014), p. 8, Bureau of Justice Statistics, United States Department of Justice, available at https://www.bjs.gov/content/pub/pdf/p13.pdf (last visited August 30, 2017).

In

People

v.

Randall,

283 Ill.App.3d 1019

, 1025-26,

219 Ill.Dec. 395

,

671 N.E.2d 60

(1996), former Justice Alan J. Greiman, the author of the majority opinion, offered a harsh appraisal of the ease with which

Batson

could be subverted through disingenuous explanations for the use of a peremptory challenge. He stated: "Having made these observations, we now consider the charade that has become the

Batson

process. The State may provide the trial court with a series of pat race-neutral reasons for exercise of peremptory challenges. Since reviewing courts examine only the record, we wonder if the reasons can be given without a smile. Surely, new prosecutors are given a manual, probably entitled, 'Handy Race-Neutral Explanations' or '20 Time-Tested Race-Neutral Explanations.' "

Id.

For a discussion of some of the "almost laughable" race neutral reasons some prosecutors have proffered, and courts have accepted, see J. Bellin & J. Semitsu, "Widening

Batson

's Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney,"

96 Cornell L. Rev. 1075

, 1093 (2011). In truth, decisions in jury selection-as in other areas of life-are often influenced by the sometimes very subtle implicit biases we all carry with us. See, e.g., M. Bennett, "Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of

Batson

, and Proposed Solutions," 4 Harv. L. & Policy Rev. 149, 161 (2010) ; J. Kang, "Implicit Bias-A Primer for Courts," National Center St. Cts., (August 2009), available at http://wp.jerrykang.net.s110363.gridserver.com/wp-content/uploads/2010/10/kang-Implicit-Bias-Primer-for-courts-09.pdf (last visited August 30, 2017).

Chief Justice Warren E. Burger, in his dissenting opinion in

Batson

, points out that permitting lawyers to use their intuition to excuse certain prospective jurors can redound to the benefit of members of suspect classes. He posits an example in which an Asian defendant is on trial for the murder of a white victim and the prospective jurors, all white, deny harboring racial prejudice. The defendant, however, continues to harbor a hunch, an assumption, or an intuitive judgment that these white prospective jurors will be unfair to him due to racial biases. The ability of the defendant to use peremptory challenges without need for explanation can protect that defendant, notes Burger. See

Batson

v.

Kentucky

,

supra,

476 U.S. at 128

,

106 S.Ct. 1712

.

Connecticut law requires the maintenance of records by police departments so authorities can annually track the nature and extent of racial profiling of black drivers. Annual reports indicate that there are racial and ethnic disparities in the traffic stop patterns of various police departments. A. Ba Tran, "Digging Deeper Into Racial Disparities in Connecticut Traffic Stops," TrendCt.org, (June 14, 2016), available at http://trafficstops.trendct.org/story/digging-deeper-into-racial-disparities-in-ct-traffic-stops/ (last visited August 30, 2017). Connecticut police officials have claimed that independent reviews have demonstrated that reports that minority drivers are stopped disproportionately are flawed. D. Collins, "Connecticut Chiefs Say Police Profiling Reports are Flawed," Associated Press, May 4, 2017, available at https://www.usnews.com/news/best-states/connecticut/articles/2017-05-04/connecticut-chiefs-say-police-profiling-reports-are-flawed (last visited August 30, 2017).

Still, the ubiquitous stopping of black drivers-particularly black males-is widely recognized. See F. Weatherspoon, "Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection,"

38 J. Marshall L. Rev. 439

(2004). Professor Weatherspoon cites a study undertaken by the Washington Post and the Black America's Political Action Committee, which determined that "approximately forty-six percent of African-American males registered to vote believe they had been stopped by law enforcement officers on the basis of their race."

Id.,

444 n.25 ; see also D. Harris, "The Stories, the Statistics and the Law: Why 'Driving While Black' Matters,"

84 Minn. L. Rev. 265

, 298 (1999) ("Racially targeted traffic stops cause deep cynicism among blacks about the fairness and legitimacy of law enforcement and courts. ... Thus, it is no wonder that blacks view the criminal justice system in totally different terms than whites do. They have completely different experiences within the system than whites have, so they do not hold the same beliefs about it.").

A recent article in the Connecticut Law Review concludes that abolition of the peremptory challenge is the only way to remedy problems posed by

Batson

. See N. Marder, "

Foster v. Chapman

: A Missed Opportunity for

Batson

and the Peremptory Challenge,"

49 Conn. L. Rev. 1137

, 1185 (May 2017).

***********************************************
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The syllabus and procedural history accompanying the
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***********************************************
STATE OF CONNECTICUT v. EVAN JARON HOLMES
(AC 39077)
Lavine, Prescott and Beach, Js.

Syllabus

Convicted of the crimes of felony murder, home invasion, conspiracy to
commit home invasion and criminal possession of a pistol or revolver,
the defendant appealed. The defendant’s conviction stemmed from an
incident in which he and S allegedly forced their way into the apartment
of the victim and fired ten gunshots from an automatic pistol at the
victim, who died from his injuries. The defendant claimed, inter alia, that
the trial court improperly overruled his objection, pursuant to Batson
v. Kentucky (476 U.S. 79), to the state’s use of a peremptory challenge
to strike W, an African-American prospective juror. The state exercised
its peremptory challenge to exclude W after he made comments sug-
gesting that he may harbor resentment toward police and prosecutors,
and that he had concerns regarding the fairness of the criminal justice
system. Held:
1. The trial court properly denied the defendant’s Batson challenge and
determined that the state’s use of its peremptory challenge to exclude
W from the jury was not tainted by purposeful racial discrimination,
the state having advanced a plausible and, on its face, race neutral
explanation for its having exercised a peremptory challenge, and the
defendant having failed to show that the trial court’s factual conclusion
that the prosecutor did not act with discriminatory intent in exercising
the peremptory challenge was clearly erroneous; the state’s reasons for
excluding W were his stated distrust of police and the criminal justice
system, which clearly related to the trial of this criminal proceeding, in
which the police would provide significant evidence, the state exercised
its peremptory challenge only after engaging in a detailed discussion with
W about the views he had expressed in response to defense counsel’s
questions, the state asked a relatively uniform set of questions of all
jurors, there was no evidence of any venireperson of a race different
from that of W who expressed the same or similar views regarding
the police and the criminal justice system but who was nevertheless
permitted to serve on the jury, the state did not advance any explanation
that was based on an inapplicable group trait, and it did not use a
disproportionate number of peremptory challenges to exclude African-
Americans from the jury, which, was comprised in part of three African-
Americans; moreover, our Supreme Court previously has held that a
venireperson’s expressed fear of police is a race neutral ground for
exercising a peremptory challenge, and this court cannot modify a deci-
sion of our Supreme Court and must follow it as binding precedent,
and, furthermore, the state was not required to accept W’s assurances
that he believed he could follow the court’s instructions and act as an
impartial juror.
2. The defendant could not prevail on his claim that the trial court improperly
admitted a tape-recorded statement of a witness as a prior inconsistent
statement pursuant to State v. Whelan (200 Conn. 743) because it lacked
the necessary indicia of reliability; the defendant having failed to ade-
quately brief how he was prejudiced by the court’s allegedly erroneous
evidentiary ruling or how it may have affected the outcome of the trial,
he failed to meet his burden of showing both that the court’s evidentiary
ruling was improper and harmful, and, therefore, the claim was deemed
abandoned and this court declined to address its merits.
3. The defendant could not prevail on his claim, raised pursuant to Doyle
v. Ohio (426 U.S. 610), that the state improperly infringed on his constitu-
tional right to remain silent when it cross-examined him at trial about
his failure to disclose to the police at the time of his arrest certain
exculpatory information that he later testified to at trial: although
defense counsel raised a Doyle objection at trial, it was subsequently
abandoned, and the defendant could not prevail on his resurrected Doyle
claim on appeal pursuant to State v. Golding (213 Conn. 233) because
he failed to demonstrate that a constitutional violation existed that
deprived him of a fair trial, as the record showed that the defendant
voluntarily spoke to a detective after he was in custody and had been
advised of his Miranda rights, that he did not invoke his right to remain
silent until after he was transported to the police department, that he
chose to tell the detective that neither he nor his girlfriend had anything
to do with the shooting incident and that there was no gun in his vehicle,
and that he nevertheless testified on cross-examination that he never
told the detective certain facts to which he testified on direct examina-
tion, and, therefore, rather than impermissibly attempting to impeach the
defendant with his choice to remain silent, the state’s cross-examination
focused on why, having chosen to speak with the detective, the defendant
never provided the same exculpatory details that he later testified to at
trial; accordingly, the state properly inquired about the defendant’s prior
inconsistent statement to the detective, and that inquiry did not violate
the rule set forth in Doyle that the impeachment of a defendant through
evidence of his silence following his arrest and receipt of Miranda
warnings violates due process.
(One judge concurring separately)
Argued March 13—officially released September 5, 2017

Procedural History

Substitute information charging the defendant with
the crimes of murder, felony murder, home invasion,
conspiracy to commit home invasion, burglary in the
first degree and criminal possession of a pistol or
revolver, brought to the Superior Court in the judicial
district of New London, where the first five counts were
tried to the jury before Jongbloed, J.; verdict of guilty
of the lesser included offense of manslaughter in the
first degree with a firearm, felony murder, home inva-
sion, conspiracy to commit home invasion and burglary
in the first degree; thereafter, the charge of criminal
possession of a pistol or revolver was tried to the court;
judgment of guilty; subsequently, the court vacated the
verdict as to the lesser included offense of manslaughter
in the first degree with a firearm and burglary in the
first degree, and rendered judgment of guilty of felony
murder, home invasion, conspiracy to commit home
invasion and criminal possession of a pistol or revolver,
from which the defendant appealed; thereafter, the
court, Jongbloed, J., issued an articulation of its deci-
sion. Affirmed.
Jay Alan Black, assigned counsel, for the appellant
(defendant).
Paul J. Narducci, senior assistant state’s attorney,
with whom were Sarah Bowman, assistant state’s attor-
ney, and, on the brief, Michael L. Regan, state’s attor-
ney, for the appellee (state).
Opinion

PRESCOTT, J. The defendant, Evan Jaron Holmes,
appeals from the judgment of conviction, rendered after
a jury trial, of felony murder in violation of General
Statutes § 53a-54c, home invasion in violation of Gen-
eral Statutes § 53a-100aa (a) (2), and conspiracy to com-
mit home invasion in violation of General Statutes
§§ 53a-48 (a) and 53a-100aa. The defendant also appeals
from the judgment of conviction, rendered after a trial
to the court, of criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217.1On
appeal, the defendant claims that the trial court improp-
erly (1) overruled his objection to the state’s use of
a peremptory challenge to strike an African-American
prospective juror; (2) admitted a tape-recorded state-
ment of a witness pursuant to State v. Whelan, 200
Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994,
107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); and (3) permitted
the state to cross-examine the defendant regarding his
conversation with a police detective at the time of his
arrest in violation of his right to remain silent. We are
not persuaded by the defendant’s claims on appeal and,
thus, affirm the judgment of conviction.
The jury reasonably could have found the following
facts. During the early morning hours of November 12,
2011, the defendant, who recently had been released
from prison, attended an after-hours party at a club
in New London with friends, including Davion Smith.
During the party, the defendant was involved in an
altercation outside the club with other attendees of
the party, including Todd Silva. During the fight, the
defendant suffered a laceration on his finger, a black
eye, and other scratches and abrasions on his face.
Following the fight, the defendant was angry and in a
highly agitated state.
Sometime around 4 a.m. that same day, the defendant
and Smith forced entry into a third floor apartment at
252 Montauk Avenue in New London, where the victim,
Jorge Rosa, lived. The victim also was known by his
nickname ‘‘Loc’’ or ‘‘Loke.’’ At that time, Silva lived in
the apartment with the victim.
Inside the apartment, the victim and his girlfriend,
Gabriela Gonzales, were sleeping in his bed. The defen-
dant and Gonzales previously had been in a romantic
relationship that began in high school, but that relation-
ship had ended when Gonzales obtained a restraining
order against the defendant, who shortly thereafter
went to prison.
Gonzales awoke to find the defendant and Smith
standing at the foot of her bed, each pointing a gun at
the victim. The defendant asked who ‘‘Loke’’ is. The
defendant then fired ten shots from an automatic pistol
at the victim, who died within a few minutes from
numerous gunshot wounds, including several to his
chest, arms, and genitalia. The defendant and Smith
subsequently fled the apartment. The defendant’s blood,
from his lacerated finger, and DNA were subsequently
found in the stairwell leading up to the victim’s apart-
ment and in various rooms inside the apartment, includ-
ing the bedroom.
Gonzales called 911, and the police arrived a few
minutes later. Although Gonzales initially stated to the
police in the 911 call and at the scene that she did not
know the identity of the shooter, within a short period
of time and while still at the scene, she stated that
the defendant had shot the victim and that Smith had
accompanied him. She also described the defendant’s
automobile, a white ‘‘Crown Vic,’’ to assist the police
in locating him.
At approximately 4:45 a.m., the defendant picked up
his girlfriend, Shanice Sebastian, and told her that they
were going to stay in a motel. The defendant and Sebas-
tian then checked into the Days Inn in Old Saybrook,
despite the existence of numerous motels closer to their
location in New London. While at the Days Inn, the
defendant admitted to Sebastian that he had been look-
ing for the kid that ‘‘jumped him,’’ that he had gone to
the apartment of Gonzales’ boyfriend and shot some-
body, and that he had been with ‘‘his boy.’’
At approximately 9:30 a.m., a patrolman employed
by the Old Saybrook Police Department observed the
defendant’s vehicle at the Days Inn. Other police units
responded and located the defendant, who then
attempted to flee. He was apprehended in the parking
lot with the assistance of a K-9 officer. The defendant
was still bleeding from his finger at the time of his
arrest. Additional facts will be set forth as necessary
to discuss the specific claims of the defendant.
The defendant subsequently was tried before a jury
and elected to testify at trial. He denied shooting the
victim but admitted that he had been in the victim’s
apartment with Smith and another individual, Zach Per-
kins, just prior to the time of the shooting in order to
resolve amicably his dispute with Silva.2 The defendant
testified that he left the apartment after being told that
Silva was not there. Defense counsel argued to the jury
that Gonzales had framed the defendant for the victim’s
murder, which actually had been committed by Perkins,
who, after the shooting, had a sexual relationship with
Gonzales and fathered a child with her.
As previously discussed, the jury found the defendant
guilty of felony murder, home invasion, and other
charges; see footnote 1 of this opinion; and the court
found the defendant guilty of the gun possession charge.
The jury found the defendant not guilty of murder. This
appeal followed.
I
The defendant first claims that the court improperly
overruled his objection to the state’s use of a peremp-
tory challenge to strike an African-American prospec-
tive juror. We disagree.
The following facts are relevant to this claim. The
defendant is of mixed race. On the first day of jury
selection, defense counsel noted that the entire venire
panel appeared to be ‘‘white Caucasian’’ and that every
prospective juror who had completed a jury question-
naire had indicated that they were either white or Cau-
casian, or had not indicated a race or ethnicity.
On the second day of jury selection, only one prospec-
tive juror had indicated on the questionnaire that he or
she was African-American. During the voir dire exami-
nation of one venireperson, W.T., he stated to defense
counsel that he was African-American. W.T. indicated
that he had obtained a master’s degree in social work
from the University of Connecticut and currently was
employed by the state of Connecticut as a supervisory
social worker with the Department of Children and
Families.
He also disclosed that he performed volunteer work
for the Department of Correction and had worked
directly with inmates. When asked by defense counsel
whether that work might affect him as a juror, W.T.
responded: ‘‘Because I work with, like I say, inmates,
and also my work, I do—I mean, you see a lot of differ-
ent things and you see a lot of sad situations. I’m sure
as a professional and because I work with people
who’ve been through a lot of stuff, you know, I’m sure
I have an understanding of what they’re doing. And
also, just—just in the criminal justice system in general,
I know how sometimes people are not, you know, given
a fair trial or they may be disproportionately have to
go to jail and different things of that nature. So, part
of my whole experience is as an African-American, as
an American and also studying these situations, I know
that there’s a lot of issues go on in various systems.
The criminal justice system, the educational system and
various systems, but people are not fairly treated, so I
know that much. But I don’t use that, you know, I
can—I could make a professional—and I think keep
my composure and do my job just like—as a profes-
sional, as I work—even as I do volunteer work, but you
have to know the reality in life as well, though.’’ In
response to a subsequent question by defense counsel
regarding whether, in light of his life experiences, he
could be fair to both sides in the case, W.T. stated that
he could.
During the state’s voir dire examination of W.T., the
following exchange occurred:
‘‘[The Prosecutor]: Now, you’ve obviously had a little
more dealing with the court systems than most—most
people that we see in through here. Have you formu-
lated any opinions about the criminal justice system
based on your experiences? Is it too lenient, too strin-
gent, it works, it doesn’t work; any feeling about that.
‘‘[W.T.]: And like I said, probably already share too
much stuff about—that talk about in terms of I have
seen people, have had family members had went to
prison before.
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: And I just think—I think that’s why I became
a social worker, because I wanted to make a difference,
and that’s why I have been doing mentoring programs—
‘‘[The Prosecutor]: Yep.
‘‘[W.T.]: —try to help young people so they won’t get
into trouble. So, I meant the system, all various systems,
there’s a lot of discrimination still goes out. Even today,
ladies are still not getting equal pay. So, it’s a lot. We’ve
come a long way, but we have a long way to go.
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: But I think I can make—I could keep the
facts and be able to look at the facts of the case and
judge by the facts.
‘‘[The Prosecutor]: . . . We need to know how
you’re feeling, so we can make the appropriate assess-
ment and you can make the appropriate assessment.
. . . I think that it’s not a perfect system, but it’s improv-
ing every day, and [there are] not as many systems that
I can think of that are, any—come anywhere close. One
of the concerns that people may have is, jurors who
are in the—using their time as a juror to try to fix the
system. You indicated, and I think you said, that you
would listen to the evidence and decide it on the evi-
dence and you wouldn’t let any concerns that you had
filter in.
‘‘[W.T.]: That’s correct.
‘‘[The Prosecutor]: Fair to say?
‘‘[W.T.]: That’s correct.
‘‘[The Prosecutor]: Okay. And so, that you would sit
and listen to what all the evidence is and make a deci-
sion based on the evidence.
‘‘[W.T.]: That’s correct. . . . .
‘‘[The Prosecutor]: Okay. With respect to that, as
much as you know about those situations, were you
satisfied with the way the police reacted to your family
being or friend being the victim of a crime?
‘‘[W.T.]: Sometimes and sometimes not.
‘‘[The Prosecutor]: Okay.
‘‘[W.T.]: So-so.
‘‘[The Prosecutor]: Fair to say that it’s an individual
situation and that the police have been—have acted in
a way that was satisfactory toward your family mem-
bers or friends, and in other situations they weren’t
satisfied with what the police did.
‘‘[W.T.]: That’s correct.
‘‘[The Prosecutor]: Okay. Had you had any interac-
tions with the police in any respect in which you devel-
oped an—either a strong, favorable impression or an
unfavorable impression about the police and the way
they treated you in any situation, speeding tickets, call-
ing up to complain about any noisy neighbor, something
with work.
‘‘[W.T.]: I’m, like—just growing up in this society, I
fear, you know, I fear my life. I got a new car, I feared
that, you know, I might get stopped, you know, for
being black, you know. So, you know, that’s concerning
and sometimes I get afraid—even me, you know, I—
when I see the police in back of me, I wonder, you
know, if I’m going to be stopped.
‘‘[The Prosecutor]: Okay. Now with—with respect to
that, there will probably be police officers who will be
testifying here, and the judge will tell you that [you]
can’t give a police officer more credibility merely
because they are a police officer. Conversely, though,
they don’t get less credibility merely became they are
police officers. They are to be treated like anybody else.
Would you have any difficulty following the judge’s
instructions concerning that?
‘‘[W.T.]: No, I wouldn’t.
‘‘[The Prosecutor]: Okay. And I can appreciate what
you’re saying. Obviously, I haven’t been in that—in your
shoes. I haven’t been in your situation, nor do we ask
the jury to put themselves in the shoes of either the
police or a particular defendant. We can’t ask you to do
that. But having now life’s experience, is that something
that you think you can put aside and decide the evidence
based on everything that’s presented to you, or is there
some concern that you might have that you might not
be able to do that.’’[W.T.]: No, I will be able to because
another thing, too, is, I know good police officers who
are—who are good people, nice people, mentors who
work in the community. So—so, yes, I’d be able to.
‘‘[The Prosecutor]: Okay. Okay. And have you had
the positive experiences with the police as well?
‘‘[W.T.]: Yes.
‘‘[The Prosecutor]: Okay. So, I guess like anybody
else, there are bad lawyers and there are good lawyers.
There are bad social workers, there are good social
workers. . . . But what I’m driving at is, we make an
individual assessment based on what we hear and what
we see and what we listen to. And that is what we’re
going to ask you to do if you’re a juror.
‘‘[W.T.]: Yes.
‘‘[The Prosecutor]: We want to make sure you don’t
carry in any preconceived notions one way or the other.
‘‘[W.T.]: Yes.
‘‘[The Prosecutor]: No problems with that.
‘‘[W.T.]: No problem.
‘‘[The Prosecutor]: Okay. We can count on your word
on that, then.
‘‘[W.T.]: That’s right.
‘‘[The Prosecutor]: Okay. I asked about being the
victim of a crime and your family member. The flip side
to that, have you, any member of your family or any
close personal friends ever been either accused or ever
convicted of crimes?
‘‘[W.T.]: Yes. I have family members who’ve been in—
who served time in jail.
‘‘[The Prosecutor]: Okay. This obviously is a crime
of violence. Any—any family members who have been
convicted of crimes of violence?
‘‘[W.T.]: No. . . .
‘‘[The Prosecutor]: You mentioned that your family
members have—have served time. With respect to that,
were—did you develop any feelings about the way the
police had treated your family members in those situ-
ations?
‘‘[W.T.]: Well, I think the—like I told you earlier, my
life experiences living in this world—
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: —you see that things are not fair. And then
you—I mean, you—you experience things, you know,
and you see things happen. And some things are not
fair, some things not—not all people are the same, all
police are not bad or, like, you know, just like you said
everybody, but when you see firsthand your own family
members, then you experience something a little bit dif-
ferent.
‘‘[The Prosecutor]: Of course.
‘‘[W.T.]: Other people who, you know, so—
‘‘[The Prosecutor]: Of course. And I guess it’s kind
of tough, because I—you know, I could ask you ques-
tions all day long and I’m not going to get to know you
as well you know yourself. But there’s a difference, I
think, between I’m upset that my family member had
to go through this versus I’m upset that the police
treated my family member in such a way. Do you under-
stand the distinction I’m trying to make, that you’re not
satisfied that your family member ended up in prison
versus I’m not satisfied that they were treated properly
by either the court system or by the police. There’s a
difference, and I’m not sure I’m explaining it very well.
‘‘[W.T.]: Are you saying more, like, for instance, like,
someone may have gone to jail because they did some-
thing wrong—
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: —and they had to pay the consequences.
‘‘[The Prosecutor]: Right. And you know, like that,
but—
‘‘[W.T.]: So—exactly. You have to—even if it’s your
family member or not, you did something wrong, you
need to pay the consequences.
‘‘[The Prosecutor]: Right.
‘‘[W.T.]: You need to pay the consequences for what-
ever you’ve done wrong, you know.
‘‘[The Prosecutor]: Right.’’
Following the voir dire examination, defense counsel
stated that W.T. was acceptable to the defendant. The
state, however, exercised a peremptory challenge and
asked that W.T. be excused.
The defendant immediately raised a Batson3 objec-
tion to the state’s use of a peremptory challenge, citing
the fact that W.T. was the first African-American venire-
person to be examined and that, in essence, W.T. had
assured the court and the state that, regardless of his
views about the criminal justice system or the police,
he could be a fair and impartial juror.
The state then responded: ‘‘I understand exactly
where [defense counsel] is coming from, would agree
with him for the most part with the exception of, I do
believe that there are race neutral reasons for this. It
was somewhat of a struggle for me, but I looked at
some of the answers. And even though he responded
favorably after further questioning, the concerns that I
did have was the—the comments that—about dispro-
portionate amount of people being sent to jail, dispro-
portionate amount of jail time, the fact that he’s had
family members who have been convicted and have
served time, the fact that he works to rehabilitate peo-
ple. And none of this is per se bad, but I think in the
context of this particular case, it’s important, it’s race
neutral. If we had a Caucasian who was in the same
situation, the exercising of a peremptory challenge
would be the same, I think.
‘‘Additionally, the fact that he did mention . . . his
concern about and his life’s experience about driving
and seeing a police officer behind him and his concern
about police officers. Yes, he said that there are other
police officers who are good and people can be good,
but there is that life’s experience that I would submit
would make it difficult for him to be fair and impartial
in this particular—in this particular case.
‘‘Again, I understand exactly what [defense counsel]
is saying. I believe that they are race neutral reasons,
and I was exercising the peremptory based on those
race neutral reasons.’’
The court then asked for argument from the defen-
dant, and defense counsel gave the following response:
‘‘With respect to being, as an African-American male,
fearful when the police are behind you, I mean, that’s
just, you know, something that [the prosecutor] and I
never have had to deal with it, but if this gentleman
sitting next [to] me is entitled to a jury of his peers,
we’ve picked three white people already. We’ve
accepted them. I mean, isn’t he—and that’s a common
complaint by African-American people, that they feel
that they get pulled over too often, and there are proba-
bly studies that say it’s disproportionate. So, that partic-
ular reason does seem to me to be race based . . . .
It was [W.T.]’s view and, I mean, again, that’s—he’s
entitled to a jury of his peers, and we get nobody who
feels that way or has those thoughts is not really his
peers because that’s probably the experience or experi-
ences of a lot of African-Americans go through.’’
The prosecutor, when asked if he wanted to argue
further, stated: ‘‘Only briefly, and maybe it’s a matter
of semantics. I think Batson’s is, oh, I see an African-
American gentleman, I see an Asian-American, I see
a Hispanic, I’m going to excuse them. If an African-
American comes in with a distrust of the police and
will not listen to a police officer and says he will not
listen to a police officer, that isn’t a challenge based
on that person’s race or ethnicity; it’s a challenge based
on that person’s personal views.
‘‘If a white—a Caucasian person came in and said, I
don’t like being followed by the cops because I see a
number of cops punch friends of mine in the face, it’s
not because he is a Caucasian, it’s because of life’s
experiences. And I think that’s what I would be arguing,
that the comments that were made were not because
of his ethnicity or his race, but rather his—his expressed
opinions. And I think it’s a distinction, I think it’s a
legitimate distinction, but I defer to Your Honor with
respect to this.’’
After argument by counsel, the court orally denied
the Batson challenge, stating: ‘‘I do think that in both
situations it’s an issue with regard to negative contact
with the police and that, I believe, has been found to
be a legitimate race neutral reason for exercising the
peremptory challenge. So, under all the circumstances,
I am going to find that the state has given a race neutral
reason for exercising a peremptory challenge in this
case. And I’m going to overrule the Batson challenge.’’
Throughout the remainder of the voir dire process, the
state asked a uniform set of questions of all jurors.
Furthermore, three African-American jurors were
selected to serve in this case—two as regular jurors
and one as an alternate juror.
Following the filing of this appeal, the defendant filed
with this court a motion for articulation, which was
referred to the trial court pursuant to Practice Book
§ 66-5. The trial court granted the motion and in a memo-
randum concluded that all of the reasons set forth by
the state in exercising its peremptory challenge were
race neutral.
On appeal, the defendant claims that the court
improperly denied his Batson challenge to the state’s
use of its peremptory challenge with respect to W.T.
because the state’s reasons were not race neutral. We
are not persuaded by the defendant’s claim.
Our Supreme Court in State v. Edwards, 314 Conn.
465, 483–90, 102 A.3d 52 (2014), recently reviewed Con-
necticut’s jury selection process and the contours of
Batson challenges to the state’s use of its peremptory
challenges: ‘‘Voir dire plays a critical function in assur-
ing the criminal defendant that his [or her] [s]ixth
[a]mendment right to an impartial jury will be honored.
. . . Part of the guarantee of a defendant’s right to
an impartial jury is an adequate voir dire to identify
unqualified jurors. . . . Our constitutional and statu-
tory law permit each party, typically through his or her
attorney, to question each prospective juror individu-
ally, outside the presence of other prospective jurors,
to determine [his or her] fitness to serve on the jury.
Conn. Const., art. I, § 19; General Statutes § 54-82f; Prac-
tice Book [§ 42-12]. . . . Because the purpose of voir
dire is to discover if there is any likelihood that some
prejudice is in the [prospective] juror’s mind [that] will
even subconsciously affect his [or her] decision of the
case, the party who may be adversely affected should
be permitted [to ask] questions designed to uncover
that prejudice. This is particularly true with reference
to the defendant in a criminal case. . . . The purpose
of voir dire is to facilitate [the] intelligent exercise of
peremptory challenges and to help uncover factors that
would dictate disqualification for cause. . . .
‘‘Peremptory challenges are deeply rooted in our
nation’s jurisprudence and serve as one state-created
means to the constitutional end of an impartial jury and
a fair trial. . . . [S]uch challenges generally may be
based on subjective as well as objective criteria . . . .
Nevertheless, [i]n Batson [v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] . . . the United
States Supreme Court recognized that a claim of pur-
poseful racial discrimination on the part of the prosecu-
tion in selecting a jury raises constitutional questions
of the utmost seriousness, not only for the integrity of
a particular trial but also for the perceived fairness of
the judicial system as a whole. . . . The court con-
cluded that [a]lthough a prosecutor ordinarily is entitled
to exercise permitted peremptory challenges for any
reason at all, as long as that reason is related to his [or
her] view concerning the outcome of the case to be
tried . . . the [e]qual [p]rotection [c]lause forbids [a
party] to challenge potential jurors solely on account
of their race . . . .
‘‘Under Connecticut law, a Batson inquiry involves
three steps. First, a party must assert a Batson claim
. . . . [Second] the [opposing party] must advance a
neutral explanation for the venireperson’s removal.
. . . In evaluating the race neutrality of an attorney’s
explanation, a court must determine whether, assuming
the proffered reasons for the peremptory challenges
are true, the challenges violate the [e]qual [p]rotection
[c]lause as a matter of law. . . . At this stage, the court
does not evaluate the persuasiveness or plausibility of
the proffered explanation but, rather, determines only
its facial validity—that is, whether the reason on its
face, is based on something other than the race of the
juror. . . . [See] Purkett v. Elem, 514 U.S. 765, 767–68,
115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) ([t]he second
step . . . does not demand an explanation that is per-
suasive, or even plausible) . . . . Thus, even if the
[s]tate produces only a frivolous or utterly nonsensical
justification for its strike, the case does not end—it
merely proceeds to step three. . . .
‘‘In the third step, the burden shifts to the party
asserting the Batson objection to demonstrate that the
[opposing party’s] articulated reasons are insufficient
or pretextual. . . . In evaluating pretext, the court
must assess the persuasiveness of the proffered expla-
nation and whether the party exercising the challenge
was, in fact, motivated by race. . . . Thus, although an
improbable explanation might pass muster under the
second step, implausible or fantastic justifications may
(and probably will) be found to be pretexts for purpose-
ful discrimination at the third stage of the inquiry. . . .
‘‘We have identified several specific factors that may
indicate that [a party’s removal] of a venireperson
through a peremptory challenge was . . . motivated
[by race]. These include, but are not limited to: (1) [t]he
reasons given for the challenge were not related to
the trial of the case . . . (2) the [party exercising the
peremptory strike] failed to question the challenged
juror or only questioned him or her in a perfunctory
manner . . . (3) prospective jurors of one race . . .
were asked a question to elicit a particular response
that was not asked of other jurors . . . (4) persons
with the same or similar characteristics but not the
same race . . . as the challenged juror were not struck
. . . (5) the [party exercising the peremptory strike]
advanced an explanation based on a group bias where
the group trait is not shown to apply to the challenged
juror specifically . . . and (6) the [party exercising the
peremptory strike] used a disproportionate number of
peremptory challenges to exclude members of one
race . . . .
‘‘In deciding the ultimate issue of discriminatory
intent, the [court] is entitled to assess each explanation
in light of all the other evidence relevant to [a party’s]
intent. The [court] may think a dubious explanation
undermines the bona fides of other explanations or
may think that the sound explanations dispel the doubt
raised by a questionable one. As with most inquiries
into state of mind, the ultimate determination depends
on an aggregate assessment of all the circumstances.
. . . Ultimately, the party asserting the Batson claim
carries the . . . 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. . . .
‘‘This court previously has articulated the standard
of review applicable to Batson claims without differ-
entiating between the second and third analytical steps,
or, at the very least, has not specifically stated the
standard applicable to a trial court’s determination with
respect to the second step. We take this opportunity
to clarify the standard of review for Batson claims. The
second step of the Batson inquiry involves a determina-
tion of whether the party’s proffered explanation is
facially race neutral and, thus, is a question of law. . . .
Because this inquiry involves a matter of law, we exer-
cise plenary review. . . .
‘‘The third Batson step, however, requires the court
to determine if the prosecutor’s proffered race neutral
explanation is pretextual. . . . Deference [to the trial
court’s findings of credibility] is necessary because a
reviewing court, which analyzes only the transcripts
from voir dire, is not as well positioned as the trial
court is to make credibility determinations. . . .
Whether pretext exists is a factual question, and, there-
fore, we shall not disturb the trial court’s finding unless
it is clearly erroneous.’’ (Citations omitted; emphasis
added; footnotes omitted; internal quotation marks
omitted.) State v. Edwards, supra, 314 Conn. 483–90.
The defendant’s brief is unclear regarding whether
he is challenging the court’s resolution of both the sec-
ond and third Batson steps, or whether he is challenging
only the court’s ultimate factual conclusion that the
prosecutor did not act with discriminatory intent in
exercising a peremptory challenge with respect to W.T.
To the extent that the defendant is arguing that the
state’s proffered explanation for its use of a peremptory
challenge—that W.T. may harbor resentment toward
the police or prosecutors, or has concerns regarding
the fairness of the criminal justice system as a whole—
are not facially neutral, we disagree that such explana-
tions violate the equal protection clause as a matter
of law.
Distrust of the police or concerns regarding the fair-
ness of the criminal justice system are viewpoints that
may be shared by whites and nonwhites alike. In other
words, the prosecutor’s questions regarding potential
jurors’ attitudes about the police and the criminal jus-
tice system are likely to divide jurors into two potential
categories: (1) those who have generally positive views
about the police and our criminal justice system, and
(2) those who have generally negative views of the
police or concerns regarding the criminal justice sys-
tem. See id., 491–92 (prosecutor’s explanation for use
of peremptory challenge race neutral because it divided
jurors into two general categories, either of which may
include racial minorities). As in Edwards, the prosecu-
tor here also did not refer to race in his explanation
except as necessary to respond to the Batson challenge.
Indeed, our case law supports the conclusion that
such explanations are facially neutral. For example, in
State v. King, 249 Conn. 645, 644–67, 735 A.2d 267
(1999), our Supreme Court upheld the state’s use of a
peremptory challenge to an African-American juror who
expressed ‘‘his belief that African-American defendants
often receive more sentences than white defendants
for the same crimes’’; id., 664; on the ground that the
venireperson’s views ‘‘might make it difficult for him
to view the state’s case with complete objectivity.’’ Id.,
666. In State v. Hinton, 227 Conn. 301, 327, 630 A.2d
593 (1993), the court similarly upheld the use of a
peremptory challenge to a potential juror who
expressed distrust of the judicial system’s treatment of
minority defendants. See also State v. Hodge, 248 Conn.
207, 231, 726 A.2d 531 (resentment or distrust of police
and prosecuting authorities legitimate and race neutral
bases for use of peremptory challenge), cert. denied,
528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999);
United States v. Arnold, 835 F.3d 833, 842 (8th Cir.
2016) (‘‘dissatisfaction with law enforcement by itself
was a legitimate reason for the government to strike
. . . two jurors’’).
Furthermore, to the extent that the defendant
attempts to advance an argument that resentment of
police and distrust of the criminal justice system are
not racially neutral justifications for exercising a
peremptory challenge because there is a much higher
prevalence of such beliefs among African-Americans,4
such a ‘‘disproportionate impact’’ argument is not
legally cognizable with respect to our analysis under
the second step of the Batson rubric. A race neutral
explanation for purposes of our analysis under step two
‘‘means an explanation based on something other than
the race of the juror. At this step of the inquiry, the issue
is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the prose-
cutor’s explanation, the reason offered will be deemed
race neutral.’’ (Emphasis added; internal quotation
marks omitted.) State v. Hinton, supra, 227 Conn. 324.
‘‘In evaluating the race-neutrality of an attorney’s
explanation, a court must determine whether, assuming
the proffered reasons for the peremptory challenges
are true, the challenges violate the [e]qual [p]rotection
[c]lause as a matter of law. A court addressing this
issue must keep in mind the fundamental principle that
official action will not be held unconstitutional solely
because it results in a racially disproportionate
impact. . . . Proof of racially discriminatory intent or
purpose is required to show a violation of the [e]qual
[p]rotection [c]lause. . . . Discriminatory purpose
. . . implies more than intent as volition or intent as
awareness of consequences. It implies that the deci-
sionmaker . . . selected . . . a particular course of
action at least in part because of, not merely in spite
of, its adverse effects upon an identifiable group.’’
(Emphasis added; internal quotation marks omitted.)
Id. Any disproportionate impact argument is more
appropriately confined to step three, the rationale for
such argument being that the proffered explanation,
even if neutral on its face, applies disproportionately
to a particular protected class and is invoked solely as
a pretext for excluding that class from the jury. See
State v. Edwards, supra, 314 Conn. 479 (noting dispro-
portionate impact arguments recognized as factor
establishing pretext in Batson hearing).
On the basis of our plenary review of the record,
and considering the present state of the case law, we
conclude that the state in the present case advanced a
plausible and, on its face, race neutral explanation for
its having exercised a peremptory challenge with
respect to W.T. We, thus, turn our attention to the third
step of the Batson analysis, namely, whether the court’s
ultimate factual conclusion—that the prosecutor did
not act with discriminatory intent in exercising the
peremptory challenge against W.T.-—is clearly
erroneous.
In challenging the court’s rejection of his Batson chal-
lenge, the defendant does not appear to argue that due
consideration of any of the six factors enumerated by
our Supreme Court in Edwards would weigh in favor
of his assertion that the prosecutor acted with any dis-
criminatory intent. Although the ultimate determination
of whether a discriminatory intent was the basis for
exercising a peremptory strike depends on ‘‘ ‘an aggre-
gate assessment of all the circumstances’ ’’; State v.
Hodge, supra, 248 Conn. 223; it is significant that, in
the present case, all of the Edwards factors support
the court’s conclusion that the state properly exercised
its right to use a peremptory challenge with regard
to W.T.
First, the state’s reasons for excluding W.T. were his
stated distrust of police and the criminal justice system,
which clearly related to the trial of this case because it
is a criminal proceeding in which police would provide
significant evidence. Second, the state did not exercise
its peremptory challenge without questioning W.T., but
rather engaged in a detailed discussion with W.T. about
the views he had expressed in response to defense
counsel’s questions. Third, the defendant concedes, and
our review of the record confirms, that the state asked
a relatively uniform set of questions of all jurors.
Accordingly, W.T. and the other African-American
venirepersons were not asked questions that were not
asked of other jurors or that sought to elicit a particular
response. Fourth, we are unaware of any venireperson
of a race different from W.T.’s, who expressed the same
or similar views regarding police and the criminal jus-
tice system as those of W.T., but, nevertheless, was
permitted to serve on the defendant’s jury. Fifth, the
state did not advance any explanation that was based
on an inapplicable group trait. Finally, and perhaps most
significantly, the state did not use a disproportionate
number of peremptory challenges to exclude African-
Americans from the jury. In fact, as the defendant
acknowledges, three African-Americans were selected
to serve, two as regular jurors and one as an alternate.
Although the racial composition of an empaneled jury
certainly is not dispositive of the issue of impermissible
motive for use of a peremptory strike as to a particular
juror, it is among the various factors that a reviewing
court can consider in evaluating whether the explana-
tion for exercising a peremptory challenge is pretextual
and, thus, constitutionally infirm. State v. Hinton,
supra, 227 Conn. 332.
The primary argument advanced by the defendant in
support of his Batson claim is that distrust of the crimi-
nal justice system and fear of being stopped by police is
‘‘a real fear among probably the majority of the African-
American people’’ and that if the court were to accept
the expression of such concerns as a racially neutral
ground for excluding venirepersons, this reason could
be used as a pretext to challenge a large proportion of
African-American venirepersons. The defendant urges
this court to modify the holding in King that a venire-
person’s expressed fear of police is a race neutral
ground for exercising a peremptory challenge. Even if
we were inclined to do so, we are compelled to decline
this invitation for at least two reasons.
First, King is a decision of our Supreme Court, which
this court cannot modify and must follow as binding
precedent. See Stuart v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010) (‘‘it is manifest to our hierarchical
judicial system that this court has the final say on mat-
ters of Connecticut law and that the Appellate Court
and Superior Court are bound by our precedent’’). We
recognize, of course, that the defendant is required to
make this claim in order to preserve it for further appel-
late review.5
Second, the defendant is correct that W.T. indicated
during his voir dire testimony that, despite his
expressed concerns and fears, he believed that he could
follow the court’s instructions and act as an impartial
juror. The state was not required, however, simply to
accept those reassurances at face value. Rather, a prose-
cutor is ‘‘entitled to rely on his or her own experience,
judgment and intuition in such matters.’’ State v. Hodge,
supra, 248 Conn. 231. ‘‘A venireperson’s assessment of
his own prejudices may be untrustworthy for a variety
of reasons. For instance, he may be lying in an effort to
be chosen for the jury, embarrassed to reveal unsavory
truths publicly or simply unaware of the existence of
bias. Through subtle questioning and scrutiny of body
language during the jury selection process, counsel may
uncover subconscious prejudice even in the face of an
outright denial of prejudice by the venireperson.’’ State
v. Smith, 222 Conn. 1, 14–15, 608 A.2d 63, cert. denied,
506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).
On the basis of our careful scrutiny of the record,
we conclude that the defendant has not demonstrated
that the court made an erroneous factual finding that the
explanation offered by the state was neither insufficient
nor pretextual. In sum, we conclude that the court prop-
erly determined that the state’s use of its peremptory
challenge to exclude W.T. from the jury was not tainted
by purposeful racial discrimination, and, therefore, it
properly denied the defendant’s Batson challenge.
II
The defendant next claims that the court improperly
admitted a tape-recorded statement of a witness, Melvin
Simmons, pursuant to State v. Whelan, supra, 200 Conn.
753.6 The police had identified Simmons as having been
around the defendant during much of the evening pre-
ceding the defendant’s arrest. Although Simmons never
gave a formal written statement to the police, he was
interviewed prior to trial. The officer who conducted
that interview prepared a report. Later, he contacted
Simmons by telephone to review the report with him,
the contents of which Simmons verbally acknowledged
and affirmed. That telephone conversation was
recorded by the officer. After Simmons testified at trial
that he did not remember any specifics regarding the
events in question, the state sought to introduce the
tape recording as a prior inconsistent statement
under Whelan.
The defendant argues on appeal that the court should
not have admitted the tape recording because it lacked
the necessary indicia of reliability, it was not inconsis-
tent with Simmons’ trial testimony, and the defendant
was deprived of an opportunity to engage in any mean-
ingful cross-examination. The state responds that the
tape recording was properly admitted under the Whelan
hearsay exception, and even if it was not, the defendant
has failed to demonstrate on appeal how the admission
of the tape could have affected the result of the trial.
Because the defendant has failed to adequately brief
how he was prejudiced by the court’s allegedly errone-
ous evidentiary ruling, we deem the claim abandoned
and decline to address its merits.
‘‘[T]he admissibility of evidence, including the admis-
sibility of a prior inconsistent statement pursuant to
Whelan, is a matter within the . . . discretion of the
trial court. . . . [T]he trial court’s decision will be
reversed only where abuse of discretion is manifest or
where an injustice appears to have been done.’’ (Inter-
nal quotation marks omitted.) State v. Simpson, 286
Conn. 634, 643, 945 A.2d 449 (2008). ‘‘Additionally, it is
well settled that even if the evidence was improperly
admitted, the [party opposing its admission] must also
establish that the ruling was harmful and likely to affect
the result of the trial.’’ (Internal quotation marks omit-
ted.) State v. Vidro, 71 Conn. App. 89, 98, 800 A.2d 661,
cert. denied, 261 Conn. 935, 806 A.2d 1070 (2002). ‘‘In
nonconstitutional claims, the defendant has the burden
of demonstrating the harmfulness of the claimed error.
. . . He must show that it is more probable than not
that the claimed error affected the verdict.’’ Id. A chal-
lenge to the admission of a prior inconsistent statement
for substantive purposes under the Whelan exception
to the hearsay rule is not of constitutional magnitude.
State v. Hannah, 104 Conn. App. 710, 721, 935 A.2d 645
(2007), cert. denied, 285 Conn. 916, 943 A.2d 475 (2008).
‘‘[W]hether [an improper ruling] is harmless in a par-
ticular case depends upon a number of factors, such
as the importance of the witness’ testimony in the prose-
cution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case.’’ (Internal quotation marks omitted.)
State v. Toro, 172 Conn. App. 810, 817, 162 A.3d 63
(2017).
If the defendant fails to address in his principal brief
on appeal how he purportedly was harmed by an alleg-
edly improper evidentiary ruling, we will not reach the
merits of the evidentiary claim. Id., 817–18. ‘‘[W]e are
not required to review claims that are inadequately
briefed. . . . We consistently have held that [a]nalysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the
issue properly. . . . Where the parties cite no law and
provide no analysis of their claims, we do not review
such claims.’’ (Internal quotation marks omitted.) State
v. Davila, 75 Conn. App. 432, 441 n.6, 816 A.2d 673,
cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), cert.
denied, 543 U.S. 897, 125 S. Ct. 92, 160 L. Ed. 2d 166
(2004).
In his brief in the present case, the defendant
addresses and analyzes only whether the tape recording
at issue should have been admitted under Whelan, with-
out any additional discussion or analysis of how that
allegedly erroneous admission was harmful to his
defense or may have affected the outcome of the trial.
Because the defendant has the burden to show not only
that the court’s evidentiary ruling was improper, but
that he was prejudiced by the adverse ruling, his failure
to address the prejudice portion of his claim renders
it unreviewable.
III
Finally, the defendant, relying upon Doyle v. Ohio,
426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976),
claims that the state improperly infringed upon his con-
stitutional right to remain silent when it cross-examined
him at trial about his failure to disclose to the police
at the time of his arrest certain exculpatory information
that he later testified to at trial. We are not persuaded.
The following additional facts, which the jury reason-
ably could have found on the basis of the evidence
presented, and procedural history are relevant to our
resolution of this claim. Detective Matthew Galante of
the New London Police Department was among the
officers who responded to the Days Inn after learning
that the defendant’s vehicle had been located there.
Galante arrived at about the time the defendant was
being apprehended in the parking lot and placed into
custody. As he approached the defendant in the parking
lot, Galante noticed a female, whom he later learned
was the defendant’s girlfriend, Sebastian, sitting nearby
with another police officer. The defendant, who recog-
nized Galante from prior dealings, asked, ‘‘what was
up, what was going on with his . . . shorty.’’7 Galante
first responded by advising the defendant of his
Miranda rights8 and asking the defendant if he under-
stood those rights, to which the defendant responded
in the affirmative. Galante then asked the defendant
what he was asking about his girlfriend.
The defendant told Galante that Sebastian had had
nothing to do with whatever had transpired in New
London. When Galante asked what he was referring to,
the defendant said he didn’t know, but also volunteered
that, whatever was going on in New London, he also had
nothing to do with it. Shortly thereafter, the defendant
asked if he could sit in his vehicle because he was cold.
Galante told the defendant that the vehicle was part of
an active crime scene. The defendant then stated that
the police were not going to find a gun in the car, so
he should be allowed to wait in there. Eventually, a
police cruiser was dispatched to take the defendant to
the New London police headquarters. Prior to transpor-
tation, Galante advised the defendant that his Miranda
rights still applied and that Galante would speak with
the defendant when Galante returned to headquarters.
At trial, the defendant testified on his own behalf.
According to his direct testimony, he admitted to
attending an after-hours party on the night of November
11, 2012. He explained that, at about 4 a.m., he had
attempted to break up an altercation and ‘‘got jumped.’’
He was beaten up ‘‘pretty badly,’’ cut his finger, and
was bleeding as a result. He asked his friends to take
him to a hospital. He got into his car with Simmons
and two other persons, Perkins and Smith. Simmons
was driving. On the way to the hospital, the car made
a stop at 252 Montauk Avenue. The defendant was told
that Silva wanted to discuss the earlier altercation to
explain that it was a mistake. The defendant claims that
Perkins entered the apartment first and that he and
Smith followed. Simmons stayed with the car. The
defendant, Perkins and Smith made their way toward
the back of the apartment looking for Silva. When the
defendant asked where Silva was, he was ‘‘[s]hooed out
of the room.’’ He went back outside and waited for
Simmons, who had apparently left on an errand, to
return with his car. When Perkins and Smith returned
outside, they got into the car and the defendant told
them that ‘‘they got to get out. Enough is enough. I’m
tired of running around.’’ The defendant never went to
a hospital, but instead called Sebastian, picked her up,
and went to the Days Inn in Old Saybrook, where he
eventually was arrested.
On cross-examination by the state, the defendant
acknowledged that he had listened to all of the other
witnesses testify at trial and, in particular, heard the
testimony that his blood was found throughout the
apartment at 252 Montauk Avenue. He also acknowl-
edged that this was the first time he had ‘‘told anybody
about this story about . . . Perkins going in there
. . . .’’ He admitted that he had spoken with Galante
at the Days Inn after he was given his Miranda warnings
and that he was familiar with Galante from ‘‘prior deal-
ings’’ with him. The prosecutor asked the defendant:
‘‘And at that point in time, you didn’t tell Detective
Galante what you’ve told us here today after you’ve
listened to all this evidence, have you?’’ Defense counsel
objected to the question, arguing that it came close to
violating the defendant’s right to remain silent. The
prosecutor stated that he believed his question was
proper cross-examination because it went to the credi-
bility of the defendant’s direct testimony, but that he
would try to further focus his inquiry.
The prosecutor then elicited from the defendant that
he had never told Galante about getting into a fight
earlier in the evening, about going to 252 Montauk Ave-
nue, or anything about Perkins’ involvement in the
events of that night. Defense counsel renewed his objec-
tion. Because cross-examination of the defendant had
started near the end of the day, the court dismissed the
jury and inquired whether counsel would like to be
heard on the objection before the court adjourned for
the day. Defense counsel indicated that he would like
the state to cite the case that allows this type of ques-
tioning. The parties agreed to confer on that issue and
suggested that the court could resume hearing argu-
ment the following morning. In the morning, however,
defense counsel indicated to the court that after con-
sulting with the prosecutor about the scope of the ques-
tions, he now ‘‘understood his basis’’ and was
withdrawing his objection.
Cross-examination of the defendant resumed, and
upon inquiry, the defendant recounted his asking
Galante why Sebastian was being arrested because she
had nothing to do with what was going on. He also
acknowledged that he never mentioned that he had
been ‘‘jumped’’ at the after-hours party or that he had
been inside 252 Montauk Avenue with Perkins and
Smith. Defense counsel did not object to this line of
questioning.
Despite defense counsel’s expressly having raised a
Doyle objection at trial that he subsequently abandoned,
the defendant argues that he is entitled to review of his
resurrected Doyle claim on appeal pursuant to State
v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).9 As
established in Golding, and later modified in In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), ‘‘a defen-
dant can prevail on a claim of constitutional error not
preserved at trial only if all of the following conditions
are met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis omit-
ted; footnote omitted.) State v. Golding, supra, 239–40.
Although we agree with the defendant that the first two
prongs are met here, we conclude that the claim fails
on the third prong because the defendant has not dem-
onstrated that a constitutional violation existed that
deprived him of a fair trial.
‘‘In Doyle . . . the United States Supreme Court held
that the impeachment of a defendant through evidence
of his silence following his arrest and receipt of
Miranda warnings violates due process. The court
based its holding [on] two considerations: First, it noted
that silence in the wake of Miranda warnings is insolu-
bly ambiguous and consequently of little probative
value. Second and more important[ly], it observed that
while it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives
the warnings. In such circumstances, it would be funda-
mentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.
. . .
‘‘Doyle applies whenever Miranda warnings have
been given regardless of an arrest or custody. . . .
There are limits, however, to the protection afforded
to an accused by Doyle and its progeny. Doyle does not
apply to cross-examination regarding prior inconsistent
statements.’’ (Citation omitted; internal quotation
marks omitted.) State v. Bell, 283 Conn. 748, 764–65,
931 A.2d 198 (2007). ‘‘Inconsistencies may be shown
not only by contradictory statements but also by omis-
sions.’’ State v. Whelan, supra, 200 Conn. 748 n.4. The
court in Bell cited to Anderson v. Charles, 447 U.S. 404,
408, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980), which held
that questioning regarding prior inconsistent state-
ments ‘‘makes no unfair use of silence, because a defen-
dant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent. As to
the subject matter of his statements, the defendant has
not remained silent at all.’’
In State v. Talton, 197 Conn. 280, 292–93, 497 A.2d
35 (1985), our Supreme Court noted for purposes of
evaluating a claimed Doyle violation that there is a
distinction between a defendant who remains silent
after he is arrested and advised of his rights, and a
defendant who, after being given Miranda warnings,
chooses to forgo such rights. ‘‘Once an arrestee has
waived his right to remain silent, the Doyle rationale is
not operative because the arrestee has not remained
silent and an explanatory statement assuredly is no
longer insolubly ambiguous. By speaking, the defendant
has chosen unambiguously not to assert his right to
remain silent. He knows that anything he says can and
will be used against him and it is manifestly illogical
to theorize that he might be choosing not to assert the
right to remain silent as to part of his exculpatory story,
while invoking that right as to other parts of his story.
While a defendant may invoke his right to remain silent
at any time, even after he has initially waived his right
to remain silent, it does not necessarily follow that
he may remain selectively silent.’’ (Internal quotation
marks omitted.) Id., 295.
We agree with the state that the defendant has failed
to establish that any of the prosecutor’s questions dur-
ing cross-examination of the defendant implicated the
concerns expressed in Doyle. The defendant in this case
voluntarily spoke to Galante after he was in custody
and after being advised of his Miranda rights. By his
own admission, he did not invoke his right to remain
silent until after he was transported to the police depart-
ment. He chose to speak to Galante about the fact that
neither he nor Sebastian had anything to do with what
happened in New London and that there was no gun
in his vehicle. He nevertheless admitted during cross-
examination that he never told Galante that he had been
in a fight in New London or that he had gone into 252
Montauk Avenue with Smith or Perkins, both facts that
he testified to at trial. Rather than impermissibly
attempting to impeach the defendant with his choice
to remain silent after being informed of his Miranda
rights, the state’s cross-examination focused on why,
having chosen to speak with Galante, the defendant
never provided the same exculpatory details that he
later testified to at trial. We conclude that the state
properly inquired about the defendant’s prior inconsis-
tent statement to Galante; see State v. Bell, supra, 283
Conn. 764–65; and that the inquiry did not violate the
rule set forth in Doyle. Because the defendant has failed
to demonstrate the existence of a constitutional viola-
tion, his claim fails to satisfy the third prong of Golding.
The judgment is affirmed.
In this opinion BEACH, J., concurred.
1
The jury found the defendant not guilty of murder, but found him guilty
of the lesser included offense of manslaughter in the first degree with a
firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a. The
jury also found the defendant guilty of burglary in the first degree in violation
of General Statutes § 53a-101 (a) (1). The trial court subsequently vacated
the manslaughter and burglary verdicts on the ground that they are lesser
included offenses of felony murder and home invasion. See State v. Polanco,
308 Conn. 242, 255, 61 A.3d 1084 (2013) (if defendant convicted of greater
and lesser included offenses, trial court must vacate conviction of lesser
offense rather than merging convictions and vacating sentence for lesser
included offense). That determination is not challenged on appeal. The
defendant received a total effective sentence of seventy years of incar-
ceration.
2
According to the defendant’s testimony, he first encountered Perkins
shortly after the altercation at the after-hours party.
3
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
4
In his brief, the defendant states: ‘‘[W.T.] was merely stating a real fear
among probably the majority of the African-American people; that of being
stopped by the police. If this is to be considered by the courts to be a race
neutral reason for exclusion, this reason could be used to challenge a large
proportion of the potential African-American . . . venirepersons. Espe-
cially with the recent rash of police shootings of minority populations, the
defendant would urge this court to modify [the] holding in King concerning
being afraid of the police as a nonrace neutral reason. Minority populations
are genuinely afraid of police, and therefore this is not race neutral.’’
5
We are not blind to the reality that African-Americans and other minority
groups have disproportionately negative views regarding law enforcement
and the criminal justice system as a whole when compared with whites.
Although the defendant did not offer any evidence at trial regarding these
facts, our review of studies conducted by reputable research firms strongly
supports this understanding. For example, in a 2016 study of 4538 United
States adults conducted by the Pew Research Center, ‘‘[o]nly about a third
of blacks but roughly three-quarters of whites say police in their communities
do an excellent or good job in using the appropriate force on suspects,
treating all racial and ethnic minorities equally and holding officers account-
able when misconduct occurs.’’ R. Morin & R. Stepler, Pew Research Center,
‘‘The Racial Confidence Gap in Police Performance,’’ (September 29, 2016),
p. 1, available at http://www.pewsocialtrends.org/2016/09/29/the-racial-confi-
dence-gap-in-police-performance/ (last visited August 30, 2017) (copy con-
tained in the file of this case in the Appellate Court clerk’s office). A 2016
study that aggregated multiple Gallup polls yielded similar evidence: ‘‘Fifty-
eight percent of whites have confidence in the police, compared with 29%
of blacks.’’ F. Newport, Gallup, ‘‘Public Opinion Context: Americans, Race
and Police,’’ (July 8, 2016), p. 1, available at http://www.gallup.com/opinion/
polling-matters/193586/public-opinion-context-americans-race-police.aspx
(last visited August 30, 2017) (copy contained in the file of this case in the
Appellate Court clerk’s office). In the same study, only 28 percent of blacks
rate the honesty of police officers as very high or high compared with 60
percent of whites. Id., p. 3. Thus, permitting the use of peremptory challenges
with respect to potential jurors who express negative views toward the
police or the justice system may well result in a disproportionate exclusion
of minorities from our juries, a deeply troubling result.
Moreover, we are also cognizant that ‘‘[p]sychological studies suggest that
people readily provide a nonracial explanation of their behavior even when
race is actually influencing their decision.’’ J. Bellin & J. Semitsu, ‘‘Widening
Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully
Unimaginative Attorney,’’ 96 Cornell L. Rev. 1075, 1102–1103 (2011). Profes-
sors Bellin and Semitsu state that ‘‘judges . . . inevitably struggle to dis-
credit proffered race-neutral explanations. Any investigation will be
unproductive because attorneys not only are hesitant to admit bias but also
may not even be aware of their bias.’’ Id., 1104.
We make this point not to suggest that the prosecutor conducting voir
dire in this case was motivated by racial bias, but to recognize the need
to be particularly vigilant in assessing a prosecutor’s use of peremptory
challenges, especially if the proffered explanation may have a disproportion-
ate impact on minority participation on juries. As Justice Thurgood Marshall
predicted in his concurring opinion in Batson, ‘‘[a]ny prosecutor can easily
assert facially neutral reasons for striking a juror, and trial courts are ill-
equipped to second-guess those reasons.’’ United States v. Batson, supra,
476 U.S. 106. Recently, in Foster v. Chapman, U.S. , 136 S. Ct. 1737,
195 L. Ed. 2d 1 (2016), the United States Supreme Court determined that a
Batson violation had occurred in that case. Foster, however, involved the
unusual situation in which the evidence included various markings and
notes on the jury venire list used by the prosecutor during jury selection,
which the Supreme Court concluded evidenced a clear intent to preclude
prospective black jurors, despite the facially neutral explanation advanced
by the prosecutor. Id., 1748–55. Foster, therefore, is simply not truly represen-
tative of a typical Batson challenge, which often turns in large part solely
upon the court’s assessment of the credibility of the party exercising the
peremptory challenge. See N. Marder, ‘‘Foster v. Chapman: A Missed Oppor-
tunity for Batson and the Peremptory Challenge,’’ 49 Conn. L. Rev. 1137,
1183–85 (May 2017) (discussing why Batson challenges are easily evaded
by lawyers and difficult for courts to review and advocating for elimination
of peremptory challenges because ‘‘mere tweaks’’ to Batson test were
unlikely to resolve problems).
We share many of the concerns expressed by Judge Lavine in his concur-
ring opinion, but, as an intermediate state appellate court, we are, of course,
bound by extensive precedent that limits our ability to remedy the weak-
nesses inherent in the Batson standard. Our cases are clear that disparate
impact alone is insufficient to demonstrate a Batson violation. Accordingly,
as our Supreme Court did in State v. Hinton, supra, 227 Conn. 330, we are
confined to reminding trial courts to be particularly diligent in assessing
the use of peremptory challenges in circumstances that, if left unscrutinized
for pretext, may result in ‘‘an unconstitutionally disparate impact on certain
racial groups.’’
6
‘‘In State v. Whelan, supra, 200 Conn. 753 . . . we adopted a hearsay
exception allowing the substantive use of prior written inconsistent state-
ments, signed by the declarant, who has personal knowledge of the facts
stated, when the declarant testifies at trial and is subject to cross-examina-
tion. This rule has also been codified in § 8-5 (1) of the Connecticut Code
of Evidence . . . . The Whelan hearsay exception applies to a relatively
narrow category of prior inconsistent statements . . . [and was] carefully
limited . . . to those prior statements that carry such substantial indicia of
reliability as to warrant their substantive admissibility.’’ (Internal quotation
marks omitted.) State v. Bonds, 172 Conn. App. 108, 128–29, 158 A.3d 826,
cert. denied, 326 Conn. 907, A.3d (2017).
7
At trial, Galante testified that, in street lingo, ‘‘a shorty is somebody’s girl-
friend.’’
8
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
9
Because the state does not challenge the defendant’s assertion that he
is entitled to Golding review, we will afford his claim that review. Neverthe-
less, it is important to note that our decision to do so is limited to the
particular circumstances of this case. Golding review arguably should be
unavailable to the defendant because, rather than failing to preserve the
Doyle claim by not raising it in any fashion before the trial court, the claim
here was undeniably raised at trial, but later expressly abandoned by defense
counsel, who withdrew the objection before the court ruled on the issue.
Because we have determined that he cannot prevail on the merits of his
claim, there is no prejudice to the state in engaging in Golding review of
the defendant’s Doyle claim and, in doing so, we avoid the more thorny
issue of waiver. This case should not be cited, however, for the proposition
that an evidentiary claim that a defendant is entitled to Golding review in
circumstances in which he raised and then expressly abandoned a claim
at trial.

PRESCOTT, J.

The defendant, Evan Jaron Holmes, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa(a)(2), and conspiracy to commit home invasion in violation of General Statutes §§ 53a-48(a) and 53a-100aa. The defendant also appeals from the judgment of conviction, rendered after a trial to the court, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217.

1

On appeal, the defendant claims that the trial court improperly (1) overruled his objection to the state's use of a peremptory challenge to strike an African-American prospective juror; (2) admitted a tape-recorded statement of a witness pursuant to

State

v.

Whelan

,

200 Conn. 743

, 753,

513 A.2d 86

, cert. denied,

479 U.S. 994

,

107 S.Ct. 597

,

93 L.Ed.2d 598

(1986) ; and (3) permitted the state to cross-examine the defendant regarding his conversation with a police detective at the time of his arrest in violation of his right to remain silent. We are not persuaded by the defendant's claims on appeal and, thus, affirm the judgment of conviction.

The jury reasonably could have found the following facts. During the early morning hours of November 12,
2011, the defendant, who recently had been released from prison, attended an after-hours party at a club in New London with friends, including Davion Smith. During the party, the defendant was involved in an altercation outside the club with other attendees of the party, including Todd Silva. During the fight, the defendant suffered a laceration on his finger, a black eye, and other scratches and abrasions on his face. Following the fight, the defendant was angry and in a highly agitated state.

Sometime around 4 a.m. that same day, the defendant and Smith forced entry into a third floor apartment at 252 Montauk Avenue in New London, where the victim, Jorge Rosa, lived. The victim also was known by his nickname "Loc" or "Loke." At that time, Silva lived in the apartment with the victim.

Inside the apartment, the victim and his girlfriend, Gabriela Gonzales, were sleeping in his bed. The defendant and Gonzales
previously had been in a romantic relationship that began in high school, but that relationship had ended when Gonzales obtained a restraining order against the defendant, who shortly thereafter went to prison.

Gonzales awoke to find the defendant and Smith standing at the foot of her bed, each pointing a gun at the victim. The defendant asked who "Loke" is. The defendant then fired ten shots from an automatic pistol at the victim, who died within a few minutes from numerous gunshot wounds, including several to his chest, arms, and genitalia. The defendant and Smith subsequently fled the apartment. The defendant's blood, from his lacerated finger, and DNA were subsequently found in the stairwell leading up to the victim's apartment and in various rooms inside the apartment, including the bedroom.

Gonzales called 911, and the police arrived a few minutes later. Although Gonzales initially stated to the police in the 911 call and at the scene that she did not know the identity of the shooter, within a short period of time and while still at the scene, she stated that the defendant had shot the victim and that Smith had accompanied him. She also described the defendant's automobile, a white "Crown Vic," to assist the police in locating him.

At approximately 4:45 a.m., the defendant picked up his girlfriend, Shanice Sebastian, and told her that they were going to stay in a motel. The defendant and Sebastian then checked into the Days Inn in Old Saybrook, despite the existence of numerous motels closer to their location in New London. While at the Days Inn, the defendant admitted to Sebastian that he had been looking for the kid that "jumped him," that he had gone to the apartment of Gonzales' boyfriend and shot somebody, and that he had been with "his boy."

At approximately 9:30 a.m., a patrolman employed by the Old Saybrook Police Department observed the defendant's vehicle at the Days Inn. Other police units responded and located the defendant, who then attempted to flee. He was apprehended in the parking lot with the assistance of a K-9 officer. The defendant was still bleeding from his finger at the time of his arrest. Additional facts will be set forth as necessary to discuss the specific claims of the defendant.

The defendant subsequently was tried before a jury and elected to testify at trial. He denied shooting the victim but admitted that he had been in the victim's apartment with Smith and another individual, Zach Perkins, just prior to the time of the shooting in order to resolve amicably his dispute with Silva.

2

The defendant
testified that he left the apartment after being told that Silva was not there. Defense counsel argued to the jury that Gonzales had framed the defendant for the victim's murder, which actually had been committed by Perkins, who, after the shooting, had a sexual relationship with Gonzales and fathered a child with her.

As previously discussed, the jury found the defendant guilty of felony murder, home invasion, and other charges; see footnote 1 of this opinion; and the court found the defendant guilty of the gun possession charge. The jury found the defendant not guilty of murder. This appeal followed.

I

The defendant first claims that the court improperly overruled his objection to the
state's use of a peremptory challenge to strike an African-American prospective juror. We disagree.

The following facts are relevant to this claim. The defendant is of mixed race. On the first day of jury selection, defense counsel noted that the entire venire panel appeared to be "white Caucasian" and that every prospective juror who had completed a jury questionnaire had indicated that they were either white or Caucasian, or had not indicated a race or ethnicity.

On the second day of jury selection, only one prospective juror had indicated on the questionnaire that he or she was African-American. During the voir dire examination of one venireperson, W.T., he stated to defense counsel that he was African-American. W.T. indicated that he had obtained a master's degree in social work from the University of Connecticut and currently was employed by the state of Connecticut as a supervisory social worker with the Department of Children and Families.

He also disclosed that he performed volunteer work for the Department of Correction and had worked directly with inmates. When asked by defense counsel whether that work might affect him as a juror, W.T. responded: "Because I work with, like I say, inmates, and also my work, I do-I mean, you see a lot of different things and you see a lot of sad situations. I'm sure as a professional and because I work with people who've been through a lot of stuff, you know, I'm sure I have an understanding of what they're doing. And also, just-just in the criminal justice system in general, I know how sometimes people are not, you know, given a fair trial or they may be disproportionately have to go to jail and different things of that nature. So, part of my whole experience is as an African-American, as an American and also studying these situations, I know that there's a lot of issues go on in various systems. The criminal justice system, the educational system and various systems, but people are not fairly treated, so I know that much. But I don't use that, you know, I can-I could make a professional-and I think keep my composure and do my job just like-as a professional, as I work-even as I do volunteer work, but you have to know the reality in life as well, though." In response to a subsequent question by defense counsel regarding whether, in light of his life experiences, he could be fair to both sides in the case, W.T. stated that he could.

During the state's voir dire examination of W.T., the following exchange occurred:

"[The Prosecutor]: Now, you've obviously had a little more dealing with the court systems than most-most people that we see in through here. Have you formulated any opinions about the criminal justice system based on your experiences? Is it too lenient, too stringent, it works, it doesn't work; any feeling about that.

"[W.T.]: And like I said, probably already share too much stuff about-that talk about in terms of I have seen people, have had family members had went to prison before.

"[The Prosecutor]: Right.

"[W.T.]: And I just think-I think that's why I became a social worker, because I wanted to make a difference, and that's why I have been doing mentoring programs-

"[The Prosecutor]: Yep.

"[W.T.]: -try to help young people so they won't get into trouble. So, I meant the system, all various systems, there's a lot of discrimination still goes out. Even today, ladies are still not getting equal pay. So, it's a lot. We've come a long way, but we have a long way to go.

"[The Prosecutor]: Right.

"[W.T.]: But I think I can make-I could keep the facts and be able to look at the facts of the case and judge by the facts.

"[The Prosecutor]: ... We need to know how you're feeling, so we can make the appropriate assessment and you can make the appropriate assessment.... I think that it's not a perfect system, but it's improving every day, and [there are] not as many systems that I can think of that are, any-come anywhere close. One of the concerns that people may have is, jurors who are in the-using their time as a juror to try to fix the system. You indicated, and I think you said, that you would listen to the evidence and decide it on the evidence and you wouldn't let any concerns that you had filter in.

"[W.T.]: That's correct.

"[The Prosecutor]: Fair to say?

"[W.T.]: That's correct.

"[The Prosecutor]: Okay. And so, that you would sit and listen to what all the evidence is and make a decision based on the evidence.

"[W.T.]: That's correct.....

"[The Prosecutor]: Okay. With respect to that, as much as you know about those situations, were you satisfied with the way the police reacted to your family being or friend being the victim of a crime?

"[W.T.]: Sometimes and sometimes not.

"[The Prosecutor]: Okay.

"[W.T.]: So-so.

"[The Prosecutor]: Fair to say that it's an individual situation and that the police have been-have acted in a way that was satisfactory toward your family members or friends, and in other situations they weren't satisfied with what the police did.

"[W.T.]: That's correct.

"[The Prosecutor]: Okay. Had you had any interactions with the police in any respect in which you developed an-either a strong, favorable impression or an unfavorable impression about the police and the way they treated you in any situation, speeding tickets, calling up to complain about any noisy neighbor, something with work.

"[W.T.]: I'm, like-just growing up in this society, I fear, you know, I fear my life. I got a new car, I feared that, you know, I might get stopped, you know, for being black, you know. So, you know, that's concerning and sometimes I get afraid-even me, you know, I-when I see the police in back of me, I wonder, you know, if I'm going to be stopped.

"[The Prosecutor]: Okay. Now with-with respect to that, there will probably be police officers who will be
testifying here, and the judge will tell you that [you] can't give a police officer more credibility merely because they are a police officer. Conversely, though, they don't get less credibility merely became they are police officers. They are to be treated like anybody else. Would you have any difficulty following the judge's instructions concerning that?

"[W.T.]: No, I wouldn't.

"[The Prosecutor]: Okay. And I can appreciate what you're saying. Obviously, I haven't been in that-in your shoes. I haven't been in your situation, nor do we ask the jury to put themselves in the shoes of either the police or a particular defendant. We can't ask you to do that. But having now life's experience, is that something that you think you can put aside and decide the evidence based on everything that's presented to you, or is there some concern that you might have that you might not be able to do that." [W.T.]: No, I will be able to because another thing, too,
is, I know good police officers who are-who are good people, nice people, mentors who work in the community. So-so, yes, I'd be able to.

"[The Prosecutor]: Okay. Okay. And have you had the positive experiences with the police as well?

"[W.T.]: Yes.

"[The Prosecutor]: Okay. So, I guess like anybody else, there are bad lawyers and there are good lawyers. There are bad social workers, there are good social workers.... But what I'm driving at is, we make an individual assessment based on what we hear and what we see and what we listen to. And that is what we're going to ask you to do if you're a juror.

"[W.T.]: Yes.

"[The Prosecutor]: We want to make sure you don't carry in any preconceived notions one way or the other.

"[W.T.]: Yes.

"[The Prosecutor]: No problems with that.

"[W.T.]: No problem.

"[The Prosecutor]: Okay. We can count on your word on that, then.

"[W.T.]: That's right.

"[The Prosecutor]: Okay. I asked about being the victim of a crime and your family member. The flip side to that, have you, any member of your family or any close personal friends ever been either accused or ever convicted of crimes?

"[W.T.]: Yes. I have family members who've been in-who served time in jail.

"[The Prosecutor]: Okay. This obviously is a crime of violence. Any-any family members who have been convicted of crimes of violence?

"[W.T.]: No....

"[The Prosecutor]: You mentioned that your family members have-have served time. With respect to that, were-did you develop any feelings about the way the police had treated your family members in those situations?

"[W.T.]: Well, I think the-like I told you earlier, my life experiences living in this world-

"[The Prosecutor]: Right.

"[W.T.]: -you see that things are not fair. And then you-I mean, you-you experience things, you know, and you see things happen. And some things are not fair, some things not-not all people are the same, all police are not bad or, like, you know, just like you said everybody, but when you see firsthand your own family
members, then you experience something a little bit different.

"[The Prosecutor]: Of course.

"[W.T.]: Other people who, you know, so-

"[The Prosecutor]: Of course. And I guess it's kind of tough, because I-you know, I could ask you questions all day long and I'm not going to get to know you as well you know yourself. But there's a difference, I think, between I'm upset that my family member had to go through this versus I'm upset that the police treated my family member in such a way. Do you understand the distinction I'm trying to make, that you're not satisfied that your family member ended up in prison versus I'm not satisfied that they were treated properly by either the court system or by the police. There's a difference, and I'm not sure I'm explaining it very well.

"[W.T.]: Are you saying more, like, for instance, like, someone may have gone to jail because they did something wrong-

"[The Prosecutor]: Right.

"[W.T.]: -and they had to pay the consequences.

"[The Prosecutor]: Right. And you know, like that, but-

"[W.T.]: So-exactly. You have to-even if it's your family member or not, you did something wrong, you need to pay the consequences.

"[The Prosecutor]: Right.

"[W.T.]: You need to pay the consequences for whatever you've done wrong, you know.

"[The Prosecutor]: Right."

Following the voir dire examination, defense counsel stated that W.T. was acceptable to the defendant. The
state, however, exercised a peremptory challenge and asked that W.T. be excused.

The defendant immediately raised a

Batson

3

objection to the state's use of a peremptory challenge, citing the fact that W.T. was the first African-American venireperson to be examined and that, in essence, W.T. had assured the court and the state that, regardless of his views about the criminal justice system or the police, he could be a fair and impartial juror.

The state then responded: "I understand exactly where [defense counsel] is coming from, would agree with him for the most part with the exception of, I do believe that there are race neutral reasons for this. It was somewhat of a struggle for me, but I looked at some of the answers. And even though he responded favorably after further questioning, the concerns that I did have was the-the comments that-about disproportionate amount of people being sent to jail, disproportionate amount of jail time, the fact that he's had family members who have been convicted and have served time, the fact that he works to rehabilitate people. And none of this is per se bad, but I think in the context of this particular case, it's important, it's race neutral. If we had a Caucasian who was in the same situation, the exercising of a peremptory challenge would be the same, I think.

"Additionally, the fact that he did mention ... his concern about and his life's experience about driving and seeing a police officer behind him and his concern about police officers. Yes, he said that there are other police officers who are good and people can be good, but there is that life's experience that I would submit would make it difficult for him to be fair and impartial in this particular-in this particular case.

"Again, I understand exactly what [defense counsel] is saying. I believe that they are race neutral reasons, and I was exercising the peremptory based on those race neutral reasons."

The court then asked for argument from the defendant, and defense counsel gave the following response: "With respect to being, as an African-American male, fearful when the police are behind you, I mean, that's just, you know, something that [the prosecutor] and I never have had to deal with it, but if this gentleman sitting next [to] me is entitled to a jury of his peers, we've picked three white people already. We've accepted them. I mean, isn't he-and that's a common complaint by African-American people, that they feel that they get pulled over too often, and there are probably studies that say it's disproportionate. So, that particular reason does seem to me to be race based .... It was [W.T.]'s view and, I mean, again, that's-he's entitled to a jury of his peers, and we get nobody who feels that way or has those thoughts is not really his peers because that's probably the experience or experiences
of a lot of African-Americans go through."

The prosecutor, when asked if he wanted to argue further, stated: "Only briefly, and maybe it's a matter of semantics. I think

Batson

's is, oh, I see an African-American gentleman, I see an Asian-American, I see a Hispanic, I'm going to excuse them. If an African-American comes in with a distrust of the police and will not listen to a police officer and says he will not listen to a police officer, that isn't a challenge based on that person's race or ethnicity; it's a challenge based on that person's personal views.

"If a white-a Caucasian person came in and said, I don't like being followed by the cops because I see a number of cops punch friends of mine in the face, it's not because he is a Caucasian, it's because of life's
experiences. And I think that's what I would be arguing, that the comments that were made were not because of his ethnicity or his race, but rather his-his expressed opinions. And I think it's a distinction, I think it's a legitimate distinction, but I defer to Your Honor with respect to this."

After argument by counsel, the court orally denied the

Batson

challenge, stating: "I do think that in both situations it's an issue with regard to negative contact with the police and that, I believe, has been found to be a legitimate race neutral reason for exercising the peremptory challenge. So, under all the circumstances, I am going to find that the state has given a race neutral reason for exercising a peremptory challenge in this case. And I'm going to overrule the

Batson

challenge." Throughout the remainder of the voir dire process, the state asked a uniform set of questions of all jurors. Furthermore, three African-American jurors were selected to serve in this case-two as regular jurors and one as an alternate juror.

Following the filing of this appeal, the defendant filed with this court a motion for articulation, which was referred to the trial court pursuant to Practice Book § 66-5. The trial court granted the motion and in a memorandum concluded that all of the reasons set forth by the state in exercising its peremptory challenge were race neutral.

On appeal, the defendant claims that the court improperly denied his

Batson

challenge to the state's use of its peremptory challenge with respect to W.T. because the state's reasons were not race neutral. We are not persuaded by the defendant's claim.

Our Supreme Court in

State

v.

Edwards

,

314 Conn. 465

, 483-90,

102 A.3d 52

(2014), recently reviewed Connecticut's jury selection process and the contours of

Batson

challenges to the state's use of its peremptory
challenges: "Voir dire plays a critical function in assuring the criminal defendant that his [or her] [s]ixth [a]mendment right to an impartial jury will be honored.... Part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors.... Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine [his or her] fitness to serve on the jury. Conn. Const., art. I, § 19 ; General Statutes § 54-82f ; Practice Book [§ 42-12 ].... Because the purpose of voir dire is to discover if there is any likelihood that some prejudice is in the [prospective] juror's mind [that] will even subconsciously affect his [or her] decision of the case, the party who may be adversely affected should be permitted [to ask] questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.... The purpose
of voir dire is to facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause....

"Peremptory challenges are deeply rooted in our nation's jurisprudence and serve as one state-created means to the constitutional end of an impartial jury and a fair trial.... [S]uch challenges generally may be based on subjective as well as objective criteria .... Nevertheless, [i]n

Batson

[v.

Kentucky

,

476 U.S. 79

,

106 S.Ct. 1712

,

90 L.Ed.2d 69

(1986) ] ... the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.... The court concluded that [a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any
reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried ... the [e]qual [p]rotection [c]lause forbids [a party] to challenge potential jurors solely on account of their race ....

"Under Connecticut law, a

Batson

inquiry involves three steps. First, a party must assert a

Batson

claim .... [Second] the [opposing party] must advance a neutral explanation for the venireperson's removal.... In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the [e]qual [p]rotection [c]lause as a matter of law.... At this stage, the court does not evaluate the persuasiveness or plausibility of the proffered explanation but, rather, determines only its facial validity-that is, whether the reason on its face, is based on something other than the race of the juror.... [See]

Purkett

v.

Elem

,

514 U.S. 765

, 767-68,

115 S.Ct. 1769

,

131 L.Ed.2d 834

(1995) ( [t]he second step ... does not demand an explanation that is persuasive, or even plausible) .... Thus, even if the [s]tate produces only a frivolous or utterly nonsensical justification for its strike, the case does not end-it merely proceeds to step three....

"In the third step, the burden shifts to the party asserting the

Batson

objection to demonstrate that the [opposing party's] articulated reasons are insufficient or pretextual.... In evaluating pretext, the court must assess the persuasiveness of the proffered explanation and whether the party exercising the challenge was, in fact, motivated by race.... Thus, although an improbable explanation might pass muster under the second step, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination at the third stage of the inquiry....

"We have identified several specific factors that may indicate that [a party's removal] of a venireperson through a peremptory challenge was ... motivated [by race]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race ... were asked a question to elicit a particular response that was not asked of other jurors ... (4) persons with the same or similar characteristics but not the same race ... as the challenged juror were not struck ... (5) the [party exercising the peremptory
strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically ... and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race ....

"In deciding the ultimate issue of discriminatory intent, the [court] is entitled to assess each explanation

in light of all the other evidence relevant to

[

a party's

]

intent.

The [court] may think a dubious explanation undermines the bona fides of other explanations or may think that the sound explanations dispel the doubt raised by a questionable one. As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances.... Ultimately, the party asserting the

Batson

claim carries the ... 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....

"This court previously has articulated the standard of review applicable to

Batson

claims without differentiating between the second and third analytical steps,
or, at the very least, has not specifically stated the standard applicable to a trial court's determination with respect to the second step. We take this opportunity to clarify the standard of review for

Batson

claims. The second step of the

Batson

inquiry involves a determination of whether the party's proffered explanation is facially race neutral and, thus, is a question of law.... Because this inquiry involves a matter of law, we exercise plenary review....

"The third

Batson

step, however, requires the court to determine if the prosecutor's proffered race neutral explanation is pretextual.... Deference [to the trial court's findings of credibility] is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.... Whether pretext exists is a factual question, and, therefore, we shall not disturb the trial court's finding unless it is clearly erroneous." (Citations omitted; emphasis added; footnotes omitted; internal quotation marks omitted.)

State

v.

Edwards

, supra,

314 Conn. at 483-90

,

102 A.3d 52

.

The defendant's brief is unclear regarding whether he is challenging the court's resolution of both the second and third

Batson

steps, or whether he is challenging only the court's ultimate factual conclusion that the prosecutor did not act with discriminatory intent in exercising a peremptory challenge with respect to W.T. To the extent that the defendant is arguing that the state's proffered explanation for its use of a peremptory challenge-that W.T. may harbor resentment toward the police or prosecutors, or has concerns regarding the fairness of the criminal justice system as a whole-are not facially neutral, we disagree that such explanations violate the equal protection clause as a matter of law.

Distrust of the police or concerns regarding the fairness of the criminal justice system are viewpoints that
may be shared by whites and nonwhites alike. In other words, the prosecutor's questions regarding potential jurors' attitudes about the police and the criminal justice system are likely to divide jurors into two potential categories: (1) those who have generally positive views about the police and our criminal justice system, and (2) those who have generally negative views of the police or concerns regarding the criminal justice system. See id., at 491-92,

102 A.3d 52

(prosecutor's explanation for use of peremptory challenge race neutral because it divided jurors into two general categories, either of which may include racial minorities). As in

Edwards

, the prosecutor here also did not refer to race in his explanation except as necessary to respond to the

Batson

challenge.

Indeed, our case law supports the conclusion that such explanations are facially neutral. For example, in

State

v.

King

,

249 Conn. 645

, 664-67,

735 A.2d 267

(1999), our Supreme Court upheld the state's use of a peremptory challenge to an African-American juror who expressed "his belief that African-American defendants often receive more sentences than white defendants for the same crimes"; id., at 664,

735 A.2d 267

; on the ground that the venireperson's views "might make it difficult for him to view the state's case with complete objectivity." Id., at 666,

735 A.2d 267

. In

State

v.

Hinton

,

227 Conn. 301

, 327,

630 A.2d 593

(1993), the court similarly upheld the use of a peremptory challenge to a potential juror who expressed distrust of the judicial system's treatment of minority defendants. See also

State

v.

Hodge

,

248 Conn. 207

, 231,

726 A.2d 531

(resentment or distrust of police and prosecuting authorities legitimate and race neutral bases for use of peremptory challenge), cert. denied,

528 U.S. 969

,

120 S.Ct. 409

,

145 L.Ed.2d 319

(1999) ;

United States

v.

Arnold

,

835 F.3d 833

, 842 (8th Cir. 2016) ("dissatisfaction with law enforcement by itself was a legitimate reason for the government to strike ... two jurors").

Furthermore, to the extent that the defendant attempts to advance an argument that resentment of police and distrust of the criminal justice system are not racially neutral justifications for exercising a peremptory challenge because there is a much higher prevalence of such beliefs among African-Americans,

4

such a "disproportionate impact" argument is not legally cognizable with respect to our analysis under the second step of the

Batson

rubric. A race neutral explanation for purposes of our analysis under step two "means an explanation based on something other than the race of the juror. At this step of 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." (Emphasis added; internal quotation marks omitted.)

State

v.

Hinton

, supra,

227 Conn. at 324

,

630 A.2d 593

.

"In evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the [e]qual [p]rotection [c]lause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that official action will not be held unconstitutional

solely because it results in a racially disproportionate impact

.... Proof of racially discriminatory intent or purpose is required to show a violation of the [e]qual [p]rotection [c]lause.... Discriminatory purpose ... implies more than intent as volition or intent as
awareness of consequences.
It implies that the decisionmaker ... selected ... a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." (Emphasis added; internal quotation marks omitted.)

Id.

Any disproportionate impact argument is more appropriately confined to step three, the rationale for such argument being that the proffered explanation, even if neutral on its face, applies disproportionately to a particular protected class and is invoked solely as a pretext for excluding that class from the jury. See

State

v.

Edwards

, supra,

314 Conn. at 479

,

102 A.3d 52

(noting disproportionate impact arguments recognized as factor establishing pretext in

Batson

hearing).

On the basis of our plenary review of the record, and considering the present state of the case law, we conclude that the state in the present case advanced a plausible and, on its face, race neutral explanation for its having exercised a peremptory challenge with respect to W.T. We, thus, turn our attention to the third step of the

Batson

analysis, namely, whether the court's ultimate factual conclusion-that the prosecutor did not act with discriminatory intent in exercising the peremptory challenge against W.T.-is clearly erroneous.

In challenging the court's rejection of his

Batson

challenge, the defendant does not appear to argue that due consideration of any of the six factors enumerated by our Supreme Court in

Edwards

would weigh in favor of his assertion that the prosecutor acted with any discriminatory intent. Although the ultimate determination of whether a discriminatory intent was the basis for exercising a peremptory strike depends on " 'an aggregate assessment of all the circumstances' ";

State

v.

Hodge

, supra,

248 Conn. at 223

,

726 A.2d 531

; it is significant that, in the present case, all of the

Edwards

factors support the court's conclusion that the state properly exercised
its right to use a peremptory challenge with regard to W.T.

First, the state's reasons for excluding W.T. were his stated distrust of police and the criminal justice system, which clearly related to the trial of this case because it is a criminal proceeding in which police would provide significant evidence. Second, the state did not exercise its peremptory challenge without questioning W.T., but rather engaged in a detailed discussion with W.T. about the views he had expressed in response to defense counsel's questions. Third, the defendant concedes, and our review of the record confirms, that the state asked a relatively uniform set of questions of all jurors. Accordingly, W.T. and the other African-American venirepersons were not asked questions that were not asked of other jurors or that sought to elicit a particular response. Fourth, we are unaware of any venireperson of a race different from W.T.'s, who expressed the same or similar views regarding police and the criminal justice system as those of W.T., but, nevertheless, was permitted to serve on the defendant's jury. Fifth, the state did not advance any explanation that was based on an inapplicable group trait. Finally, and perhaps most significantly, the state did not use a disproportionate number of peremptory challenges to exclude African-Americans from the jury. In fact, as the defendant acknowledges, three African-Americans were selected to serve, two as regular jurors and one as an alternate. Although the racial composition of an empaneled jury certainly is not dispositive of the issue of impermissible motive for use of a peremptory strike as to a particular juror, it is among the various factors that a reviewing court can consider in evaluating whether the explanation for exercising a peremptory challenge is pretextual and, thus, constitutionally infirm.

State

v.

Hinton

, supra,

227 Conn. at 332

,

630 A.2d 593

.

The primary argument advanced by the defendant in support of his

Batson

claim is that distrust of the criminal justice system and fear of being stopped by police is "a real fear among probably the majority of the African-American people" and that if the court were to accept the expression of such concerns as a racially neutral ground for excluding venirepersons, this reason could be used as a pretext to challenge a large proportion of African-American venirepersons. The defendant urges this court to modify the holding in

King

that a venireperson's expressed fear of police is a race neutral ground for exercising a peremptory challenge. Even if we were inclined to do so, we are compelled to decline this invitation for at least two reasons.

First,

King

is a decision of our Supreme Court, which this court cannot modify and must follow as binding precedent. See

Stuart

v.

Stuart

,

297 Conn. 26

, 45-46,

996 A.2d 259

(2010) ("it is manifest to our hierarchical judicial system that this court has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by our precedent"). We recognize, of course, that the defendant is required to make this claim in order to preserve it for further appellate review.

5

Second, the defendant is correct that W.T. indicated during his voir dire testimony that, despite his expressed concerns and fears, he believed that he could follow the court's instructions and act as an impartial juror. The state was not required, however, simply to accept those reassurances at face value. Rather, a prosecutor is "entitled to rely on his or her own experience, judgment and intuition in such matters."

State

v.

Hodge

, supra,

248 Conn. at 231

,

726 A.2d 531

. "A venireperson's assessment of his own prejudices may be untrustworthy for a variety of reasons. For instance, he may be lying in an effort to be chosen for the jury, embarrassed to reveal unsavory truths publicly or simply unaware of the existence of bias. Through subtle questioning and scrutiny of body language during the jury selection process, counsel may uncover subconscious prejudice even in the face of an outright denial of prejudice by the venireperson."

State

v.

Smith

,

222 Conn. 1

, 14-15,

608 A.2d 63

, cert. denied,

506 U.S. 942

,

113 S.Ct. 383

,

121 L.Ed.2d 293

(1992).

On the basis of our careful scrutiny of the record, we conclude that the defendant has not demonstrated that the court made an erroneous factual finding that the explanation offered by the state was neither insufficient nor pretextual. In sum, we conclude that the court properly determined that the state's use of its peremptory challenge to exclude W.T. from the jury was not tainted by purposeful racial discrimination, and, therefore, it properly denied the defendant's

Batson

challenge.

II

The defendant next claims that the court improperly admitted a tape-recorded statement of a witness, Melvin Simmons, pursuant to

State

v.

Whelan

, supra,

200 Conn. at 753

,

513 A.2d 86

.

6

The
police had identified Simmons as having been around the defendant during much of the evening preceding the defendant's arrest. Although Simmons never gave a formal written statement to the police, he was interviewed prior to trial. The officer who conducted that interview prepared a report. Later, he contacted Simmons by telephone to review the report with him, the contents of which Simmons verbally acknowledged and affirmed. That telephone conversation was recorded by the officer. After Simmons testified at trial that he did not remember any specifics regarding the events in question, the state sought to introduce the tape recording as a prior inconsistent statement under

Whelan

.

The defendant argues on appeal that the court should not have admitted the tape recording because it lacked the necessary indicia of reliability, it was not inconsistent with Simmons' trial testimony, and the defendant was deprived of an opportunity to engage in any meaningful cross-examination. The state responds that the tape recording was properly admitted under the

Whelan

hearsay exception, and even if it was not, the defendant has failed to demonstrate on appeal how the admission of the tape could have affected the result of the trial. Because the defendant has failed to adequately brief how he was prejudiced by the court's allegedly erroneous evidentiary ruling, we deem the claim abandoned and decline to address its merits.

"[T]he admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to

Whelan

, is a matter within the ... discretion of the trial court.... [T]he trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done." (Internal quotation marks omitted.)

State

v.

Simpson

,

286 Conn. 634

, 643,

945 A.2d 449

(2008). "Additionally, it is well settled that even if the evidence was improperly admitted, the [party opposing its admission] must also establish that the ruling was harmful and likely to affect the result of the trial." (Internal quotation marks omitted.)

State

v.

Vidro

,

71 Conn.App. 89

, 98,

800 A.2d 661

, cert. denied,

261 Conn. 935

,

806 A.2d 1070

(2002). "In nonconstitutional claims, the defendant has the burden of demonstrating the harmfulness of the claimed error.... He must show that it is more probable than not that the claimed error affected the verdict."

Id.

A challenge to the admission of a prior inconsistent statement for substantive purposes under the

Whelan

exception to the hearsay rule is not of constitutional magnitude.

State

v.

Hannah

,

104 Conn.App. 710

, 721,

935 A.2d 645

(2007), cert. denied,

285 Conn. 916

,

943 A.2d 475

(2008).

"[W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.)

State

v.

Toro

,

172 Conn.App. 810

, 817,

162 A.3d 63

(2017).

If the defendant fails to address in his principal brief on appeal how
he purportedly was harmed by an allegedly improper evidentiary ruling, we will not reach the
merits of the evidentiary claim.

Id., at 817-18

,

162 A.3d 63

. "[W]e are not required to review claims that are inadequately briefed.... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.... Where the parties cite no law and provide no analysis of their claims, we do not review such claims." (Internal quotation marks omitted.)

State

v.

Davila

,

75 Conn.App. 432

, 441 n.6,

816 A.2d 673

, cert. denied,

264 Conn. 909

,

826 A.2d 180

(2003), cert. denied,

543 U.S. 897

,

125 S.Ct. 92

,

160 L.Ed.2d 166

(2004).

In his brief in the present case, the defendant addresses and analyzes only whether the tape recording at issue should have been admitted under

Whelan

, without any additional discussion or analysis of how that allegedly erroneous admission was harmful to his defense or may have affected the outcome of the trial. Because the defendant has the burden to show not only that the court's evidentiary ruling was improper, but that he was prejudiced by the adverse ruling, his failure to address the prejudice portion of his claim renders it unreviewable.

III

Finally, the defendant, relying upon

Doyle

v.

Ohio

,

426 U.S. 610

,

96 S.Ct. 2240

,

49 L.Ed.2d 91

(1976), claims that the state improperly infringed upon his constitutional right to remain silent when it cross-examined him at trial about his failure to disclose to the police at the time of his arrest certain exculpatory information that he later testified to at trial. We are not persuaded.

The following additional facts, which the jury reasonably could have found on the basis of the evidence presented, and procedural history are relevant to our resolution of this claim. Detective Matthew Galante of the New London Police Department was among the
officers who responded to the Days Inn after learning that the defendant's vehicle had been located there. Galante arrived at about the time the defendant was being apprehended in the parking lot and placed into custody. As he approached the defendant in the parking lot, Galante noticed a female, whom he later learned was the defendant's girlfriend, Sebastian, sitting nearby with another police officer. The defendant, who recognized Galante from prior dealings, asked, "what was up, what was going on with his ... shorty."

7

Galante first responded by advising the defendant of his

Miranda

rights

8

and asking the defendant if he understood those rights, to which the defendant responded in the affirmative. Galante then asked the defendant what he was asking about his girlfriend.

The defendant told Galante that Sebastian had had nothing to do with whatever had transpired in New London. When Galante asked what he was referring to, the defendant said he didn't know, but also volunteered that, whatever was going on in New London, he also had nothing to do with it. Shortly thereafter, the defendant asked if he could sit in his vehicle because he was cold. Galante told the defendant that the vehicle was part of an active crime scene. The defendant then stated that the police were not going to find a gun in the car, so he should be allowed to wait in there. Eventually, a police cruiser was dispatched
to take the defendant to the New London police headquarters. Prior to transportation, Galante advised the defendant that his

Miranda

rights still applied and that Galante would speak with the defendant when Galante returned to headquarters.

At trial, the defendant testified on his own behalf. According to his direct testimony, he admitted to
attending an after-hours party on the night of November 11, 2012. He explained that, at about 4 a.m., he had attempted to break up an altercation and "got jumped." He was beaten up "pretty badly," cut his finger, and was bleeding as a result. He asked his friends to take him to a hospital. He got into his car with Simmons and two other persons, Perkins and Smith. Simmons was driving. On the way to the hospital, the car made a stop at 252 Montauk Avenue. The defendant was told that Silva wanted to discuss the earlier altercation to explain that it was a mistake. The defendant claims that Perkins entered the apartment first and that he and Smith followed. Simmons stayed with the car. The defendant, Perkins and Smith made their way toward the back of the apartment looking for Silva. When the defendant asked where Silva was, he was "[s]hooed out of the room." He went back outside and waited for Simmons, who had apparently left on an errand, to return with his car. When Perkins and Smith returned outside, they got into the car and the defendant told them that "they got to get out. Enough is enough. I'm tired of running around." The defendant never went to a hospital, but instead called Sebastian, picked her up, and went to the Days Inn in Old Saybrook, where he eventually was arrested.

On cross-examination by the state, the defendant acknowledged that he had listened to all of the other witnesses testify at trial and, in particular, heard the testimony that his blood was found throughout the apartment at 252 Montauk Avenue. He also acknowledged that this was the first time he had "told anybody about this story about ... Perkins going in there ...." He admitted that he had spoken with Galante at the Days Inn after he was given his

Miranda

warnings and that he was familiar with Galante from "prior dealings" with him. The prosecutor asked the defendant: "And at that point in time, you didn't tell Detective
Galante what you've told us here today after you've listened to all this evidence, have you?" Defense counsel objected to the question, arguing that it came close to violating the defendant's right to remain silent. The prosecutor stated that he believed his question was proper cross-examination because it went to the credibility of the defendant's direct testimony, but that he would try to further focus his inquiry.

The prosecutor then elicited from the defendant that he had never told Galante about getting into a fight earlier in the evening, about going to 252 Montauk Avenue, or anything about Perkins' involvement in the events of that night. Defense counsel renewed his objection. Because cross-examination of the defendant had started near the end of the day, the court dismissed the jury and inquired whether counsel would like to be heard on the objection before the court adjourned for the day. Defense counsel indicated that he would like the state to cite the case that allows this type of questioning. The parties agreed to confer on that issue and suggested that the court could resume hearing argument the following morning. In the morning, however, defense counsel indicated to the court that after consulting with the prosecutor about the scope of the questions, he now "understood his basis" and was withdrawing his objection.

Cross-examination of the defendant resumed, and upon inquiry, the defendant recounted his asking Galante why Sebastian was being arrested because she had nothing to do with what was going on. He also acknowledged that he never mentioned that he had been "jumped" at the after-hours party or that he had been inside 252 Montauk Avenue with Perkins and Smith. Defense counsel did not object to this line of questioning.

Despite defense counsel's expressly having raised a

Doyle

objection at trial that he subsequently abandoned,
the defendant argues that he is entitled to review of his resurrected

Doyle

claim on appeal pursuant to

State

v.

Golding

,

213 Conn. 233

,

567 A.2d 823

(1989).

9

As established in

Golding

, and later modified in

In re Yasiel R.

,

317 Conn. 773

, 781,

120 A.3d 1188

(2015), "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis omitted; footnote omitted.)

State

v.

Golding

, supra, at 239-40,

567 A.2d 823

. Although we agree with the defendant that the first two prongs are met here, we conclude that the claim fails on the third prong because the defendant has not demonstrated that a constitutional violation existed that deprived him of a fair trial.

"In

Doyle

... the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of

Miranda

warnings violates due process. The court based its holding [on] two considerations: First, it noted that silence in the wake of

Miranda

warnings is insolubly ambiguous and consequently of little probative value. Second and more important[ly], it observed that while it is true that the

Miranda

warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial....

"

Doyle

applies whenever

Miranda

warnings have been given regardless of an arrest or custody.... There are limits, however, to the protection afforded to an accused by

Doyle

and its progeny.

Doyle

does not apply to cross-examination regarding prior inconsistent statements." (Citation omitted; internal quotation marks omitted.)

State

v.

Bell

,

283 Conn. 748

, 764-65,

931 A.2d 198

(2007). "Inconsistencies may be shown not only by contradictory statements but also by omissions."

State

v.

Whelan

, supra,

200 Conn. at

748 n.4,

513 A.2d 86

. The court in

Bell

cited to

Anderson

v.

Charles

,

447 U.S. 404

, 408,

100 S.Ct. 2180

,

65 L.Ed.2d 222

(1980), which held that questioning regarding prior inconsistent statements "makes no unfair use of silence, because a defendant who voluntarily speaks after receiving

Miranda

warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all."

In

State

v.

Talton

,

197 Conn. 280

, 292-93,

497 A.2d 35

(1985), our Supreme Court noted for purposes of evaluating a claimed

Doyle

violation that there is a distinction between a defendant who remains silent after he is arrested and advised of his rights, and a defendant who, after being given

Miranda

warnings,
chooses to forgo such rights. "Once an arrestee has waived his right to remain silent, the

Doyle

rationale is not operative because the arrestee has not remained silent and an explanatory statement assuredly is no longer insolubly ambiguous. By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain selectively silent." (Internal quotation marks omitted.) Id., at 295,

497 A.2d 35

.

We agree with the state that the defendant has failed to establish that any of the prosecutor's questions during cross-examination of the defendant implicated the concerns expressed in

Doyle

. The defendant in this case voluntarily spoke to Galante after he was in custody and after being advised of his

Miranda

rights. By his own admission, he did not invoke his right to remain silent until after he was transported to the police department. He chose to speak to Galante about the fact that neither he nor Sebastian had anything to do with what happened in New London and that there was no gun in his vehicle. He nevertheless admitted during cross-examination that he never told Galante that he had been in a fight in New London or that he had gone into 252 Montauk Avenue with Smith or Perkins, both facts that he testified to at trial. Rather than impermissibly attempting to impeach the defendant with his choice to remain silent after being informed of his

Miranda

rights, the state's cross-examination focused on why, having chosen to speak with Galante, the defendant never provided the same exculpatory details that he
later testified to at trial. We conclude that the state properly inquired about the defendant's prior inconsistent statement to Galante; see

State

v.

Bell

, supra,

283 Conn. at 764-65

,

931 A.2d 198

; and that the inquiry did not violate the rule set forth in

Doyle

. Because the defendant has failed to demonstrate the existence of a constitutional violation, his claim fails to satisfy the third prong of

Golding

.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

The jury found the defendant not guilty of murder, but found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55(a)(1) and 53a-55a. The jury also found the defendant guilty of burglary in the first degree in violation of General Statutes § 53a-101(a)(1). The trial court subsequently vacated the manslaughter and burglary verdicts on the ground that they are lesser included offenses of felony murder and home invasion. See

State

v.

Polanco

,

308 Conn. 242

, 255,

61 A.3d 1084

(2013) (if defendant convicted of greater and lesser included offenses, trial court must vacate conviction of lesser offense rather than merging convictions and vacating sentence for lesser included offense). That determination is not challenged on appeal. The defendant received a total effective sentence of seventy years of incarceration.

According to the defendant's testimony, he first encountered Perkins shortly after the altercation at the after-hours party.

See

Batson

v.

Kentucky

,

476 U.S. 79

,

106 S.Ct. 1712

,

90 L.Ed.2d 69

(1986).

In his brief, the defendant states: "[W.T.] was merely stating a real fear among probably the majority of the African-American people; that of being stopped by the police. If this is to be considered by the courts to be a race neutral reason for exclusion, this reason could be used to challenge a large proportion of the potential African-American ... venirepersons. Especially with the recent rash of police shootings of minority populations, the defendant would urge this court to modify [the] holding in

King

concerning being afraid of the police as a nonrace neutral reason. Minority populations are genuinely afraid of police, and therefore this is not race neutral."

We are not blind to the reality that African-Americans and other minority groups have disproportionately negative views regarding law enforcement and the criminal justice system as a whole when compared with whites. Although the defendant did not offer any evidence at trial regarding these facts, our review of studies conducted by reputable research firms strongly supports this understanding. For example, in a 2016 study of 4538 United States adults conducted by the Pew Research Center, "[o]nly about a third of blacks but roughly three-quarters of whites say police in their communities do an excellent or good job in using the appropriate force on suspects, treating all racial and ethnic minorities equally and holding officers accountable when misconduct occurs." R. Morin & R. Stepler, Pew Research Center, "The Racial Confidence Gap in Police Performance," (September 29, 2016), p. 1, available at http://www.pewsocialtrends.org/2016/09/29/the-racial-confidence-gap-in-police-performance/ (last visited August 30, 2017) (copy contained in the file of this case in the Appellate Court clerk's office). A 2016 study that aggregated multiple Gallup polls yielded similar evidence: "Fifty-eight percent of whites have confidence in the police, compared with 29% of blacks." F. Newport, Gallup, "Public Opinion Context: Americans, Race and Police," (July 8, 2016), p. 1, available at http://www.gallup.com/opinion/polling-matters/193586/public-opinion-context-americans-race-police.aspx (last visited August 30, 2017) (copy contained in the file of this case in the Appellate Court clerk's office). In the same study, only 28 percent of blacks rate the honesty of police officers as very high or high compared with 60 percent of whites. Id., p. 3. Thus, permitting the use of peremptory challenges with respect to potential jurors who express negative views toward the police or the justice system may well result in a disproportionate exclusion of minorities from our juries, a deeply troubling result.

Moreover, we are also cognizant that "[p]sychological studies suggest that people readily provide a nonracial explanation of their behavior even when race is actually influencing their decision." J. Bellin & J. Semitsu, "Widening

Batson

's Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney,"

96 Cornell L. Rev. 1075

, 1102-1103 (2011). Professors Bellin and Semitsu state that "judges ... inevitably struggle to discredit proffered race-neutral explanations. Any investigation will be unproductive because attorneys not only are hesitant to admit bias but also may not even be aware of their bias."

Id., 1104

.

We make this point not to suggest that the prosecutor conducting voir dire in this case was motivated by racial bias, but to recognize the need to be particularly vigilant in assessing a prosecutor's use of peremptory challenges, especially if the proffered explanation may have a disproportionate impact on minority participation on juries. As Justice Thurgood Marshall predicted in his concurring opinion in

Batson

, "[a]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons."

United States

v.

Batson

,

supra,

476 U.S. at 106

,

106 S.Ct. 1712

. Recently, in

Foster

v.

Cha t man

, --- U.S. ----,

136 S.Ct. 1737

,

195 L.Ed.2d 1

(2016), the United States Supreme Court determined that a

Batson

violation had occurred in that case.

Foster

, however, involved the unusual situation in which the evidence included various markings and notes on the jury venire list used by the prosecutor during jury selection, which the Supreme Court concluded evidenced a clear intent to preclude prospective black jurors, despite the facially neutral explanation advanced by the prosecutor.

Id., at 1748-55

.

Foster

, therefore, is simply not truly representative of a typical

Batson

challenge, which often turns in large part solely upon the court's assessment of the credibility of the party exercising the peremptory challenge. See N. Marder, "

Foster v. Chapman

: A Missed Opportunity for

Batson

and the Peremptory Challenge,"

49 Conn. L. Rev. 1137

, 1183-85 (May 2017) (discussing why

Batson

challenges are easily evaded by lawyers and difficult for courts to review and advocating for elimination of peremptory challenges because "mere tweaks" to

Batson

test were unlikely to resolve problems).

We share many of the concerns expressed by Judge Lavine in his concurring opinion, but, as an intermediate state appellate court, we are, of course, bound by extensive precedent that limits our ability to remedy the weaknesses inherent in the

Batson

standard. Our cases are clear that disparate impact alone is insufficient to demonstrate a

Batson

violation. Accordingly, as our Supreme Court did in

State

v.

Hinton

, supra,

227 Conn. at 330

,

630 A.2d 593

, we are confined to reminding trial courts to be particularly diligent in assessing the use of peremptory challenges in circumstances that, if left unscrutinized for pretext, may result in "an unconstitutionally disparate impact on certain racial groups."

"In

State

v.

Whelan

, supra,

200 Conn. at 753

,

513 A.2d 86

... we adopted a hearsay exception allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. This rule has also been codified in § 8-5 (1) of the Connecticut Code of Evidence.... The

Whelan

hearsay exception applies to a relatively narrow category of prior inconsistent statements ... [and was] carefully limited ... to those prior statements that carry such substantial indicia of reliability as to warrant their substantive admissibility." (Internal quotation marks omitted.)

State

v.

Bonds

,

172 Conn.App. 108

, 128-29,

158 A.3d 826

, cert. denied,

326 Conn. 907

,

163 A.3d 1206

(2017).

At trial, Galante testified that, in street lingo, "a shorty is somebody's girlfriend."

See

Miranda

v.

Arizona

,

384 U.S. 436

, 478-79,

86 S.Ct. 1602

,

16 L.Ed.2d 694

(1966).

Because the state does not challenge the defendant's assertion that he is entitled to

Golding

review, we will afford his claim that review. Nevertheless, it is important to note that our decision to do so is limited to the particular circumstances of this case.

Golding

review arguably should be unavailable to the defendant because, rather than failing to preserve the

Doyle

claim by not raising it in any fashion before the trial court, the claim here was undeniably raised at trial, but later expressly abandoned by defense counsel, who withdrew the objection before the court ruled on the issue. Because we have determined that he cannot prevail on the merits of his claim, there is no prejudice to the state in engaging in

Golding

review of the defendant's

Doyle

claim and, in doing so, we avoid the more thorny issue of waiver. This case should not be cited, however, for the proposition that an evidentiary claim that a defendant is entitled to

Golding

review in circumstances in which he raised and then expressly abandoned a claim at trial.