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*********************************************** 
STATE OF CONNECTICUT v. JOSE A. B.*

(SC 20332)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn, Ecker and Keller, Js.

Syllabus

Convicted of sexual assault in the first degree, attempt to commit sexual

assault in the first degree, sexual assault in the fourth degree, and two

counts of risk of injury to a child, the defendant appealed, claiming that

the trial court improperly had overruled defense counsel’s objections to

the prosecutor’s use of peremptory challenges to excuse two prospective

jurors, C and N, and that his conviction of two counts of risk of injury

to a child violated the constitutional prohibition against double jeopardy.

C is an African-American, and N is also a member of a racial minority. The

prosecutor had explained that the basis for the peremptory challenges

to C and N was their stated distrust of law enforcement and/or the

criminal justice system. Specifically, the prosecutor relied on N’s statements during voir dire indicating that she previously had been convicted

of a crime for which she received a pardon, that she had resented the

police at the time she was arrested but no longer felt that way, and that

her husband’s friend had previously pleaded guilty to sexual assault but

that she did not believe the truth of the allegations against him. With

respect to C, the prosecutor relied on the fact that, although C had

disclosed an incident involving a larceny on his juror questionnaire, he

also revealed during voir dire an undisclosed conviction resulting from

an assault of a police officer, for which C believed he was unfairly

prosecuted. Defense counsel objected to the peremptory challenges on

the basis of the United States Supreme Court’s decision in Batson v.

Kentucky (476 U.S. 79), which prohibits a party from challenging prospective jurors solely on account of their race. The trial court overruled

the Batson challenges, concluding that the reasons proffered by the

prosecutor, namely, N’s resentment toward the police and her criminal

conviction resulting in a pardon, as well as C’s prior arrest for a serious

crime for which he believed he was unfairly prosecuted, were race

neutral and not a pretext for discrimination. From the judgment of

conviction, the defendant appealed. Held:

1. The trial court did not commit clear error in determining that the defendant

had failed to meet his burden of proving, by a preponderance of the

evidence, that the jury selection process in the present case was tainted

by purposeful discrimination:

a. The defendant conceded that the distrust of law enforcement and/or

the criminal justice system is a race neutral reason for exercising a

peremptory challenge under federal constitutional law, and this court

declined to conclude, on the basis of the record in the present case, that

such negative perceptions constitute a facially discriminatory reason for

exercising a peremptory challenge under the Connecticut constitution:

although neither the text nor the history of the relevant provisions (article

I, §§ 1, 8, 19 and 20, as amended) of the Connecticut constitution shed

any light on the scope of permissible reasons for peremptory challenges,

federal precedent provided no support for the defendant’s claim, and

sister state precedent did not provide overwhelming support for that

claim, this court’s recent decision in State v. Holmes (334 Conn. 202)

signaled a shift in this state’s precedent toward ensuring the impartiality

of juries by addressing the problems of implicit bias and disparate impact

during jury selection; moreover, in Holmes, this court recognized that

significant public policy and sociological reasons support the conclusion

that a negative perception of law enforcement is not a race neutral reason

for excluding a prospective juror, considering the disparate impact those

reasons have on racial minorities and, to that end, announced in that

case the creation of the Jury Selection Task Force to study and propose

changes to the jury selection process in Connecticut that would remediate the issue of racial discrimination and implicit bias in jury selection;

nonetheless, principles of judicial restraint counseled against this court’s

making a new constitutional pronouncement on this issue, as the Jury
Selection Task Force recently had proposed a new rule of practice to

address these concerns, the proposed rule had been submitted to the

judges of the Superior Court for consideration, and the rule-making

process was ongoing; accordingly, this court declined to hold in the

present case that greater protection was warranted under the Connecticut constitution than is provided under the existing federal Batson

scheme.

b. The trial court’s finding that the reasons proffered by the prosecutor

for peremptorily challenging C and N were not a pretext for impermissible

discrimination was not clearly erroneous; the record indicated that the

prosecutor questioned all of the prospective jurors in a similar manner

as to whether they, or someone close to them, had ever been arrested

or charged with a crime, any affirmative responses to those questions

were followed by questions regarding the details of any arrest or charge

and whether it would influence the prospective juror, the more extensive

questioning of C with regard to his criminal history was reflective of the

incomplete answers that he provided in his questionnaire and during

voir dire rather than reflective of a racially discriminatory intent, and

there was no evidence of a pattern of discrimination by the prosecutor

in excluding prospective jurors of a particular race.

2. The defendant could not prevail on his claim that his right to be free

from double jeopardy was violated because risk of injury to a child,

with which the defendant was charged, is a lesser included offense of

sexual assault in the first degree and sexual assault in the fourth degree:

even if it was assumed that the offenses in question arose from the

same act or transaction, the defendant failed to show that those crimes

constituted the same offense for double jeopardy purposes under the

test set forth in Blockburger v. United States (284 U.S. 299), and this

court, in a recently decided case, State v. Tinsley (340 Conn. 425),

rejected the defendant’s argument that, notwithstanding the distinct

elements of each offense charged, a court should consider the facts

alleged in the information when determining whether the statutory elements of each offense are the same under Blockburger; in the present

case, the crimes of sexual assault in the first degree and sexual assault

in the fourth degree each required proof of a fact that risk of injury to

a child did not, as sexual assault in the first degree required proof that

the defendant engaged in sexual intercourse with the victim and was

more than two years older than the victim, sexual assault in the fourth

degree required proof that the defendant intentionally subjected someone under the age of fifteen to sexual contact, and the particular risk

of injury offenses of which the defendant was convicted required proof

of neither of those facts; moreover, because the defendant did not argue

that that the legislature had intended that risk of injury to a child, on

the one hand, and sexual assault in the first or fourth degree, on the

other, should be considered the same offense, he could not rebut the

presumption that those crimes did not constitute the same offense under

Blockburger.

Argued February 26, 2021—officially released March 22, 2022

Procedural History

Substitute information charging the defendant with

two counts of the crime of risk of injury to a child, and

with one count each of the crimes of sexual assault in

the first degree, attempt to commit sexual assault in

the first degree, and sexual assault in the fourth degree,

brought to the Superior Court in the judicial district of

Waterbury and tried to the jury before Doyle, J.; verdict

and judgment of guilty, from which the defendant

appealed to this court. Affirmed.

Drew J. Cunningham, with whom was Damian K.

Gunningsmith, for the appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Elena Ricci Palermo, senior assistant state’s

attorney, for the appellee (state).
Harry Weller, Peter T. Zarella, and C. Ian McLachlan

filed a brief as amici curiae.

Alinor C. Sterling and James J. Healy filed a brief

for the Connecticut Trial Lawyers Association as amicus curiae.

George Welch, human rights attorney, filed a brief for

the Commission on Human Rights and Opportunities

as amicus curiae.

Tadhg Dooley filed a brief for Professors and

Research Scholars at Connecticut’s Law Schools as

amici curiae.

William Tong, attorney general, Clare Kindall, solicitor general, and Joshua Perry, special counsel for civil

rights, filed a brief for the Office of the Attorney General

as amicus curiae.

Christine Perra Rapillo, chief public defender, and

Adele V. Patterson, senior assistant public defender,

filed a brief for the Office of the Chief Public Defender

as amicus curiae.

David N. Rosen filed a brief as amicus curiae.

Georgina Yeomans filed a brief for NAACP Legal

Defense and Educational Fund, Inc., as amicus curiae.
Opinion

ROBINSON, C. J. The principal issue in this appeal

asks us to revisit our recent decision in State v. Holmes,

334 Conn. 202, 221 A.3d 407 (2019), and to consider

whether, given the disparate impact on minority communities, a prospective juror’s negative experience

with, or distrust of, the criminal justice system provides

a race neutral reason for the exercise of a peremptory

challenge under the Connecticut constitution. The

defendant, Jose A. B., appeals1

from the judgment of

conviction, rendered after a jury trial, of three counts

of sexual assault or attempt to commit sexual assault

and two counts of risk of injury to a child in violation

of General Statutes § 53-21 (a) (2).2 On appeal, the

defendant claims that (1) the trial court improperly

overruled his Batson3 objection to the prosecutor’s

exercise of peremptory challenges to two venirepersons, and (2) his conviction of two counts of risk

of injury to a child violates his right to be free from

double jeopardy. We disagree, and, accordingly, we

affirm the judgment of the trial court.

The record reveals the following relevant facts, which

the jury reasonably could have found, and procedural

history. The victim lived with the defendant, the defendant’s wife, who was the victim’s legal guardian, and the

victim’s brother, from the time the victim was eighteen

months old. The victim testified that the defendant sexually assaulted her on numerous occasions between

2000 and 2007, when she was between five and twelve

years old.4

The state subsequently charged the defendant with

sexual assault in the first degree in violation of General

Statutes § 53a-70 (a) (2),5sexual assault in the fourth

degree in violation of General Statutes (Rev. to 2001)

§ 53a-73a (a) (1) (A),6 attempt to commit sexual assault

in the first degree in violation of § 53a-70 (a) (2) and

General Statutes § 53a-49 (a) (2),7 and two counts of

risk of injury to a child in violation of § 53-21 (a) (2).

The case was tried to a jury, which found the defendant

guilty on all counts. The trial court rendered a judgment

of conviction in accordance with the jury’s verdict, sentenced the defendant to a total effective sentence of

seventeen years of imprisonment, followed by two

years of special parole, issued a criminal protective

order and ordered sexual offender registration. This

direct appeal followed.8 Additional relevant facts and

procedural history will be set forth in the context of

each claim on appeal.

I

JURY SELECTION CLAIMS

The defendant first claims that his state and federal

constitutional rights were violated because the state’s

peremptory challenges to two venirepersons, N.L. and

C.J.,9 during jury selection violated Batson v. Kentucky,
476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d 69

(1986). The record reveals the following additional facts

and procedural history relevant to this claim.

During the prosecutor’s voir dire examination of N.L.,

the following exchange occurred:

‘‘[The Prosecutor]: Do you know of anyone who has

ever been accused of a sexual assault besides the one

you just told us about?

‘‘[N.L.]: Yes.

‘‘[The Prosecutor]: Tell me a little bit about that.

‘‘[N.L.]: Well, he was actually a friend of my husband’s. He used to date this girl, and they had kids

together, but she had a son with someone else, and she

didn’t have custody of him. The grandparents did. And

I guess maybe he wanted to, you know, live with them,

and the person got accused of sexually molesting him.

. . . I don’t know if it happened. And he went to jail,

but he’s been out of jail for a long time.10

* * *

‘‘[The Prosecutor]: Do you think that people [who]

are victims of sexual assault should go to the police?

‘‘[N.L.]: Yes.

* * *

‘‘[The Prosecutor]: Now, have you or anyone close

to you, besides what you told us, ever been charged or

arrested for a crime?

‘‘[N.L.]: Myself, I have.

‘‘[The Prosecutor]: Can you tell me a little bit about

that?

‘‘[N.L.]: Yeah. It’s years ago. I’ve actually had a pardon.

So I don’t know if I should talk about it.

‘‘The Court: If you have a pardon—I guess the question would be, is there anything about that experience

that might affect your ability to be fair and impartial

in this case?

‘‘[N.L.]: I don’t think so.

‘‘[The Prosecutor]: You’re hesitating a little.

‘‘[N.L.]: No, I don’t think so. I think I can separate

the two.11

* * *

‘‘[The Prosecutor]: Do you think that the fact that

you were arrested and then later pardoned, do you think

that might make you think you might lean more toward

the defense in this case?

‘‘[N.L.]: Not based on that. I would actually have to

hear both sides. Then I can make a decision from there.

‘‘[The Prosecutor]: Do you think you would hold it
against the state because of what happened?

‘‘[N.L.]: No.

* * *

‘‘[The Prosecutor]: All right. There will . . . probably [be] testimony from at least one police officer in this

case. What’s your feeling about the police in general?

‘‘[N.L.]: Well, I ha[d] a lot of resentment when I got

arrested, but, over time, I’ve learned that whatever happened was not their fault. It was something that I did.

And I actually have members that are police officers.

‘‘[The Prosecutor]: Members of [your] family?

‘‘[N.L.]: Mm-hmm.

* * *

‘‘[The Prosecutor]: So, you held a lot of resentment

at one time for the police. And now?

‘‘[N.L.]: No.

‘‘[The Prosecutor]: Have you ever had to call the

police yourself for any reason?

‘‘[N.L.]: Yeah.

‘‘[The Prosecutor]: For what?

‘‘[N.L.]: Domestic, when I was like real young.’’ (Footnotes added.)

Upon conclusion of the voir dire examination of N.L.,

the prosecutor exercised a peremptory challenge. The

prosecutor stated, inter alia, that N.L.’s articulated

resentment toward the police and her criminal history

of a conviction resulting in a pardon warranted the

use of a peremptory challenge.12 Defense counsel then

raised a Batson objection to the state’s peremptory

challenge of N.L. The trial court overruled defense counsel’s Batson objection, concluding that the prosecutor’s

proffered reasons for the peremptory challenge of N.L.

were race neutral and not a pretext for discrimination.13

The prosecutor subsequently conducted a voir dire

examination of C.J., during which they discussed C.J.’s

arrest history, which C.J. had only partially disclosed

in his juror questionnaire:

‘‘[The Prosecutor]: Have you or anyone close to you

ever been arrested for any kind of crime?

‘‘[C.J.]: I have been arrested for a crime.

‘‘[The Prosecutor]: For what, sir?

‘‘[C.J.]: Well, a long time ago, coming out [of] my

aunt’s building, an undercover police officer grabbed

my arm, and I’m thinking it’s a robbery, so I swung to

get him off of me, but then that—then everything took

place. Then I find out he was a police officer.

‘‘[The Prosecutor]: Okay. So you were arrested for

that?
‘‘[C.J.]: Yes.14

* * *

‘‘[The Prosecutor]: You gave a little information on

your juror questionnaire, and you . . . put down something about larceny six, but dropped from my job. . . .

What’s that mean?

‘‘[C.J.]: . . . I worked at Stop and Shop for almost

twelve years. All right. We had a hectic night one night.

I had my stuff in a carriage, and I was the key holder,

so, when I was leaving . . . I grabbed my carriage, but

. . . because of the night, I didn’t scan those things

out, so they put a larceny six, but they dropped it—all

that. But that was in 2011.15

* * *

‘‘[The Prosecutor]: Okay. Besides that, any other time

you or anyone else close to you [has] ever been

arrested?

‘‘[C.J.]: No.’’ (Footnotes added.)

The state then questioned C.J. regarding his attitude

toward the police and the criminal justice system:

‘‘[The Prosecutor]: Do you think the fact that you

have been arrested and [that] you’ve kind of dealt with

the criminal justice system, do you think that might

play a part in your deliberations if you’re a juror?

‘‘[C.J.]: Not really.

‘‘[The Prosecutor]: What do you mean?

‘‘[C.J.]: Because, at the end of the day, all these

offense[s] you [are] talking about happened over thirty

years ago.

‘‘[The Prosecutor]: Okay. . . . The fact that you were

arrested [for] the larceny six that ended up getting

dropped. Do you think that you might hold a grudge

against the state because of your background?

‘‘[C.J.]: No.

‘‘[The Prosecutor]: Do you think you were fairly prosecuted?

‘‘[C.J.]: Do I think I was fairly prosecuted? Not on

the first one, no.

‘‘[The Prosecutor]: No? That was the one with the—

‘‘[C.J.]: The assault—

‘‘[The Prosecutor]: —assault?

‘‘[C.J.]: —on the police officer.

‘‘[The Prosecutor]: And that was in Hartford?

‘‘[C.J.]: That was in Hartford. . . .

‘‘[The Prosecutor]: What’s your opinion of the police?

‘‘[C.J.]: I don’t have no opinions on [the] police
because, in my whole family, there’s massive police

officers. Chief of police was my uncle, so I don’t have

[an] opinion on none of them. There’s good police, and

there’s bad police, so I don’t have an opinion on that.

I treat people as individuals.’’

The prosecutor first moved to excuse C.J. for cause,

given his failure to account completely for his past

convictions in his questionnaire by omitting his arrest

for assaulting a police officer. Defense counsel objected

to the challenge for cause, arguing that C.J.’s recollection had been affected by the length of time that had

passed since his arrest. The trial court agreed with

defense counsel and denied the state’s challenge for

cause. The prosecutor then exercised a peremptory

challenge, arguing that, in addition to C.J.’s apparent

omissions in completing the questionnaire, the charge

of assaulting a police officer itself was serious in nature

and that C.J. believed that he had been incorrectly and

unfairly prosecuted in that instance. In response,

defense counsel raised a Batson objection. The court

overruled the Batson objection, finding that ‘‘an objectively neutral reason [for the peremptory challenge]

would be the fact that he was previously arrested [and]

charged with a serious crime, even though it was a long

time ago, [and that] he felt he was not fairly treated.’’

The trial court also found that the prosecutor’s race

neutral reason was not a pretext for discrimination.16

Before addressing the defendant’s claims in detail,

we review the well established general principles under

which we consider Batson claims. ‘‘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[s] 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. . . . 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, supra, 476 U.S.

79] . . . 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.17 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. . . . 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.’’ (Footnote altered; footnote omitted;

internal quotation marks omitted.) State v. Holmes,

supra, 334 Conn. 222–24; see, e.g., State v. Edwards,

314 Conn. 465, 483–85, 102 A.3d 52 (2014).

It is undisputed that the defendant has satisfied the

first step of the Batson inquiry as to N.L. and C.J. See

footnote 9 of this opinion. Turning, then, to the second

step of the Batson inquiry, we must determine whether

the prosecutor’s proffered reason for the peremptory

challenges, namely, a prospective juror’s distrust of the

criminal justice system based on his or her personal

experience, was facially race neutral. This is a question

of law, over which we exercise plenary review. See,

e.g., State v. Holmes, supra, 334 Conn. 226.

The defendant first argues that, as a matter of Connecticut constitutional law, the prosecutor’s proffered

reasons for the peremptory challenges were facially

discriminatory based on race, given their disparate

impact on members of minority groups.18 We address

this argument under the state constitution before turning to the third step of the Batson inquiry, namely, the
defendant’s alternative claim that, even if race neutral,

any proffered reason by the prosecutor was a pretext

for purposeful discrimination.

A

State Constitutional Claim as to the Second

Prong of the Batson Inquiry

The defendant claims that certain provisions of the

Connecticut constitution, namely, §§ 1, 8, 19 and 20 of

article first, as amended,19 provide broader protection

than does the federal constitution with respect to the

exercise of peremptory challenges and the right to an

impartial jury. The defendant contends, therefore, that

our state constitution prohibits the exercise of peremptory challenges based on a venireperson’s distrust of

the criminal justice system or law enforcement.20 In

response, the state argues that an absolute bar to challenging any venireperson who expresses distrust in the

criminal justice system presents an unworkable

approach that is not supported by the text of the applicable state constitutional provisions. The state further

argues that we should exercise decisional restraint in

light of the recent findings and recommendations of

the Jury Selection Task Force (Task Force), including

the Task Force’s proposed change to the rules of practice, which was pending before the Rules Committee

of the Superior Court (Rules Committee) when this

appeal was argued and has since been submitted for a

public hearing before the judges of the Superior Court.

Although the defendant’s arguments are compelling in

light of recent case law and research concerning the

effect of implicit bias, we nevertheless agree with the

state that restraint is warranted at this time with respect

to the adjudication of this issue as a matter of state

constitutional law.

In determining that our state constitution in some

instances provides greater protection than that provided by the federal constitution, ‘‘we have recognized

that [i]n the area of fundamental civil liberties—which

includes all protections of the declaration of rights contained in article first of the Connecticut constitution—

we sit as a court of last resort, subject only to the

qualification that our interpretations may not restrict

the guarantees accorded the national citizenry under

the federal charter.’’ (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289

Conn. 135, 155–56, 957 A.2d 407 (2008).

‘‘In State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d

1225 (1992), we enumerated the following six factors

to be considered in construing the state constitution:

(1) persuasive relevant federal precedents; (2) the text

of the operative constitutional provisions; (3) historical

insights into the intent of our constitutional forebears;

(4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary
understandings of applicable economic and sociological norms, or as otherwise described, relevant public

policies. . . .

‘‘The Geisler factors serve a dual purpose: they

encourage the raising of state constitutional issues in

a manner to which the opposing party . . . can

respond; and they encourage a principled development

of our state constitutional jurisprudence. Although in

Geisler we compartmentalized the factors that should

be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. . . . [N]ot every Geisler factor is relevant in all cases. . . . Moreover, a proper Geisler

analysis does not require us simply to tally and follow

the decisions favoring one party’s state constitutional

claim; a deeper review of those decisions’ underpinnings is required because we follow only persuasive

decisions. . . . The Geisler analysis applies to cases

in which the state constitution has no federal analogue,

as well as those in which the claim is that the state

constitution provides greater protection than does the

federal constitution.’’ (Citations omitted; internal quotation marks omitted.) Fay v. Merrill, 338 Conn. 1, 26–27,

256 A.3d 622 (2021); see, e.g., Feehan v. Marcone, 331

Conn. 436, 449, 204 A.3d 666, cert. denied, U.S. ,

140 S. Ct. 144, 205 L. Ed. 2d 35 (2019).

1

Constitutional Language

We begin with the first Geisler factor, namely, the

relevant constitutional text. See, e.g., Feehan v. Marcone, supra, 331 Conn. 450–51; Doe v. Hartford Roman

Catholic Diocesan Corp., 317 Conn. 357, 409–10, 119

A.3d 462 (2015). Article first, § 19, of the Connecticut

constitution, as amended by article four of the amendments, provides in relevant part: ‘‘The right of trial by

jury shall remain inviolate, the number of such jurors,

which shall not be less than six, to be established by

law . . . . In all civil and criminal actions tried by a

jury, the parties shall have the right to challenge jurors

peremptorily, the number of such challenges to be

established by law. The right to question each juror

individually by counsel shall be inviolate.’’ (Emphasis

added.) We conclude that this Geisler factor does not

favor either party because ‘‘this generally phrased constitutional language is at best ambiguous with respect

to the constitutional issue presented in this appeal.’’

Doe v. Hartford Roman Catholic Diocesan Corp., supra,

409; see id., 409–10 (concluding that ‘‘ ‘without . . .

delay’ ’’ language in article first, § 10, was ambiguous

as to whether undue delay in administration of justice

is unconstitutional).

The defendant argues that, because article first, § 19,

of the Connecticut constitution, unlike the applicable

provisions of the federal constitution that govern crimi-
nal jury trials,21 specifically references the right to

peremptory challenges, a more expansive right to an

inclusive jury is available under the state constitution.

We agree with the defendant that Connecticut’s constitution provides an express right to peremptory challenges, which the federal constitution does not guarantee, and that ‘‘[j]ury impartiality is a core requirement

of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8 . . . .’’ (Footnote

omitted; internal quotation marks omitted.) State v.

Rhodes, 248 Conn. 39, 46, 726 A.2d 513 (1999). However,

even when read in the context of the state constitution’s

equal protection clause; see Conn. Const. art. I, § 20;

the plain language of article first, § 19, sheds no light

on the scope of permissible reasons for peremptory

challenges under the state constitution; its breadth

could also be understood not to warrant additional

restrictions on a litigant’s exercise of that right to exercise peremptory challenges. Put differently, the text of

the applicable provisions of the Connecticut constitution does not provide guidance as to whether particular

reasons for peremptory challenges are constitutional

and, therefore, neutral with respect to whether distrust

of law enforcement or the criminal justice system is a

constitutionally valid, race neutral reason for the exercise of a peremptory challenge. Accordingly, with the

text being not dispositive, we continue with our review

of the other Geisler factors. See, e.g., Fay v. Merrill,

supra, 338 Conn. 36.

2

Constitutional History

Neither party has cited any historical source that

discusses negative perceptions of the criminal justice

system or law enforcement as an unconstitutionally

discriminatory ground on which to base a peremptory

challenge. Although it is of limited value to our inquiry

in this case, we now briefly consider the history of voir

dire and peremptory challenges under the Connecticut

constitution generally. See, e.g., Doe v. Hartford Roman

Catholic Diocesan Corp., supra, 317 Conn. 410–11. The

right to a trial by jury was established in Connecticut

as early as 1636. See W. Horton, The Connecticut State

Constitution (2d Ed. 2012) p. 90. ‘‘Prior to the adoption

of the fourth amendment to Connecticut’s constitution,

article first, § 19 provided only that ‘[t]he right of trial

by jury shall remain inviolate.’ In 1971, in response to the

increasing congestion of court dockets and mounting

court costs, the legislature proposed a constitutional

amendment to permit mandatory [six person] juries in

place of [twelve person] juries in certain circumstances.

. . . In order to preserve what the legislature perceived

as the fundamental character of jury trials, however,

the proposed amendment contained two provisions

guaranteeing that parties would continue to have certain rights, previously granted only by statute, regarding
the selection of individual jurors. As adopted by the

electors of Connecticut in 1972, the amendment constitutionalized the right of the parties ‘to challenge jurors

peremptorily’ and the right ‘to question each juror individually by counsel.’ ’’ (Citations omitted; footnote

omitted.) Rozbicki v. Huybrechts, 218 Conn. 386, 391–

92, 589 A.2d 363 (1991). This amendment, however,

predated the United States Supreme Court’s decision

in Batson by fourteen years.

‘‘The purpose and effect of [article first, §§ 8 and 19]

is to preserve . . . as a political right the institution of

jury trial, in all its essential features as derived from

our ancestors and [existent] by force of our common

law.’’ (Emphasis in original; internal quotation marks

omitted.) State v. Griffin, 251 Conn. 671, 694, 741 A.2d

913 (1999). A discussion by Chief Justice Zephaniah

Swift, written in 1822, describes the ways in which an

impartial jury may be secured and demonstrates that

such challenges to venirepersons were intended to

exclude jurors with bias, including bias resulting from

favor or enmity toward either party: ‘‘Challenges to

the polls, or to particular jurors, are [1], the want of

qualifications, [2] for crimes, and [3] for partiality. . . .

‘‘[3] A juror may be challenged for suspicion of bias,

or partiality, which may be either a principal challenge,

or a challenge to the favour.

* * *

‘‘Challenges to the favour, are founded merely on

probable circumstances of suspicion, as particular

friendship or enmity to either of the parties: and where

the court has reason to think that there is such a bias

or prejudice on the mind of a juror, as renders it probable there will not be a candid and fair trial, they have

a discretionary power to dismiss him . . . but they

ought not to indulge any unreasonable and groundless

suspicion of the party.’’ (Emphasis added; footnotes

omitted.) 1 Z. Swift, A Digest of the Laws of the State of

Connecticut (1822) pp. 737–38; accord State v. Griffin,

supra, 251 Conn. 693–94. Although Chief Justice Swift’s

discussion is interesting to the extent that he observes

that contemplated sources of unwanted bias, justifying

exclusion of a juror from service, could well include

enmity toward a party to the case, the value of his

insights with respect to the Batson inquiry in this case

is ultimately diminished by the fact that, in his time,

only landowning males were qualified to serve as jurors.

See 1 Z. Swift, supra, p. 737. Thus, historical insights

into the intentions of our constitutional forebears are

not particularly instructive with respect to the defendant’s state constitutional claim.

3

Federal Precedent

Federal precedent does not support the defendant’s

claim with respect to the disparate impact of a peremp-
tory challenge based on a prospective juror’s distrust

of law enforcement and the criminal justice system. ‘‘In

Hernandez [v. New York, 500 U.S. 352, 362–63, 111 S.

Ct. 1859, 114 L. Ed. 2d 395 (1991)], the United States

Supreme Court concluded that a prosecutor had not

violated Batson by using peremptory challenges to

exclude Latino jurors by reason of their ethnicity when

he offered as a race neutral explanation his concern

that bilingual jurors might have difficulty accepting the

court interpreter’s official translation of multiple witnesses’ testimony given in Spanish. . . . In so concluding, the Supreme Court rejected the argument that the

prosecutor’s reasons, if assumed to be true, were not

race neutral and thus violated the equal protection

clause as a matter of law because of their disproportionate impact on Latino jurors.’’ (Citation omitted.) State

v. Holmes, supra, 334 Conn. 228. ‘‘[T]he only post-Hernandez cases we have located on [whether distrust of

law enforcement or the criminal justice system is not

a race neutral reason under Batson for exercising a

peremptory challenge] have expressly rejected this disparate impact argument.’’22 Id., 231–32. Moreover, the

defendant has not cited any concurrences, dissents, or

other federal authority on point. Therefore, this Geisler

factor does not support the defendant’s state constitutional claim.

4

Connecticut Precedent

The defendant begins his analysis of Connecticut

precedent with well established case law from this court

construing the due process protections under article

first, § 8, of the Connecticut constitution not to impose

the same meaning and limitations as its federal counterpart. See, e.g., State v. Morales, 232 Conn. 707, 717–18,

657 A.2d 585 (1995). He then contends that we should

extend a greater state constitutional protection against

racial bias in the exercise of peremptory challenges.

Although we agree with the defendant that our state

constitution affords greater protections to peremptory

challenges than is provided by the federal constitution,

that does not—without more—resolve the question of

whether particular reasons for striking jurors are race

neutral as a matter of state constitutional law.

As the defendant acknowledges, a line of Connecticut

cases has addressed whether a prosecutor’s reason for

a peremptory challenge is race neutral if there is a

disparate impact on jurors of a certain racial group.

For instance, in State v. Smith, 222 Conn. 1, 14, 608

A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121

L. Ed. 2d 293 (1992), this court recognized that prosecutors commonly seek to exclude from juries those individuals who have had negative interactions with law

enforcement ‘‘because they fear that such people will

be biased against the government.’’ The court ‘‘decline[d]

to ascribe a racial animus to the state’s excusal of a
venireperson with an arrest record simply because that

venireperson was [B]lack.’’ Id.; see State v. King, 249

Conn. 645, 666, 735 A.2d 267 (1999) (prosecutor’s reasons for striking venireperson were ‘‘not motivated by

discriminatory considerations’’ because ‘‘it was reasonable for the prosecutor to conclude that [the prospective juror’s] concerns about the fairness of the criminal

justice system might make it difficult for him to view

the state’s case with complete objectivity’’); State v.

Hodge, 248 Conn. 207, 231, 726 A.2d 531 (venireperson’s

past experiences with law enforcement and perception

that family had been treated unfairly were race neutral

reasons for state to exercise peremptory challenge),

cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d

319 (1999); State v. Jackson, 73 Conn. App. 338, 350–51,

808 A.2d 388 (rejecting defendant’s disproportionate

impact argument against prosecutor’s race neutral

explanations), cert. denied, 262 Conn. 929, 814 A.2d 381

(2002), and cert. denied, 262 Conn. 930, 814 A.2d 381

(2002); State v. Morales, 71 Conn. App. 790, 807, 804 A.2d

902 (prospective juror’s ‘‘negative opinion concerning

police performance’’ was valid, nondiscriminatory reason for peremptory challenge), cert. denied, 262 Conn.

902, 810 A.2d 270 (2002).

Beyond this line of cases, this court has previously

held—in a decision that the defendant asks us to overrule—that there is ‘‘nothing in the language of article

first, § 8, to suggest that the meaning of the term ‘impartial jury’ in our state constitution is different from the

meaning of that same term in the federal constitution—

namely, a jury that is: (1) composed of individuals able

to decide the case solely on the evidence and [to] apply

the law in accordance with the court’s instructions; and

(2) properly selected from venire panels comprising a

representative cross section of the community.’’ State

v. Griffin, supra, 251 Conn. 691–92; see id., 708–709

(‘‘the death qualification process’’ does not violate capital defendant’s state constitutional right to impartial

jury). Moreover, in discussing the purpose of voir dire

leading to a challenge for cause or peremptory challenge, we have observed that, especially with respect

to criminal defendants, ‘‘[i]f there is any likelihood that

some prejudice is in the 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 questions designed to uncover that prejudice.’’ (Internal quotation marks omitted.) Id., 698–99.

In asking us to overrule or limit this line of cases,

the defendant relies heavily on criticisms, in recent

opinions of this court and the Appellate Court, of the

adequacy of Batson as a remedy for disparate impact

and implicit bias within the jury selection process.23 In

Holmes, we recently stated that, ‘‘[a]lthough Batson has

serious shortcomings with respect to addressing the

effects of disparate impact and unconscious bias, we

decline to throw up our hands in despair at what
appears to be an intractable problem. Instead, we

should recognize the challenge presented by unconscious stereotyping in jury selection and rise to meet

it.’’ (Internal quotation marks omitted.) State v. Holmes,

supra, 334 Conn. 245; see also State v. Holmes, 176

Conn. App. 156, 192–93, 169 A.3d 264 (2017) (Lavine,

J., concurring) (urging reform of Batson procedures

‘‘because this case brings into sharp relief a serious

flaw in the way Batson has been, and can be, applied,’’

which ‘‘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’’), aff’d, 334 Conn. 202, 221 A.3d

407 (2019). We then announced the creation of the Task

Force, to be appointed by the Chief Justice; State v.

Holmes, supra, 334 Conn. 250; anticipating that it would

‘‘propose meaningful changes to be implemented via

court rule or legislation, including, but not limited to

(1) proposing any necessary changes to General Statutes § 51-232 (c),24 which governs the confirmation form

and questionnaire provided to prospective jurors, (2)

improving the process by which we summon prospective jurors in order to ensure that venires are drawn

from a fair cross section of the community that is representative of its diversity, (3) drafting model jury instructions about implicit bias, and (4) promulgating new

substantive standards that would eliminate Batson’s

requirement of purposeful discrimination.’’ (Footnote

in original.) Id., 251–52.

Notwithstanding past precedent in this state rejecting

disparate impact arguments in the context of jury selection, we conclude that the state precedent factor has

recently shifted in light of this court’s resolve in Holmes

to ensure the impartiality of juries by addressing the

problems of implicit bias and disparate impact during

jury selection. Our recent criticism of the shortcomings

of the Batson process in Holmes, with concrete action

taken by the formation of the Task Force, supports the

conclusion that Connecticut’s case law has squarely

identified the ineffectiveness of Batson in addressing

the effects of implicit bias and disparate impact on the

rights of members of minority communities during the

jury selection process. This concern remains salient,

notwithstanding our conclusion in part I B of this opinion that the prosecutor’s reasons for the peremptory

challenges at issue in this case were not a pretext for

racial discrimination.

5

Sister State Precedent

The defendant does not cite any sister state court

decision that has held, as a matter of state constitutional

law, that a negative perception of law enforcement or

the criminal justice system is a facially discriminatory

reason to exclude a venireperson under the second

step of Batson. Indeed, a review of sister state court
decisions reveals the opposite. See People v. Hardy, 5

Cal. 5th 56, 81, 418 P.3d 309, 233 Cal. Rptr. 3d 378 (2018)

(‘‘[a] prospective juror’s distrust of the criminal justice

system is a [race neutral] basis for his excusal’’ (internal

quotation marks omitted)), cert. denied, U.S. ,

139 S. Ct. 917, 202 L. Ed. 2d 648 (2019); State v. Mootz,

808 N.W.2d 207, 219 (Iowa 2012) (‘‘[Iowa] cases have

repeatedly noted that a juror’s interactions with law

enforcement and the legal system are a valid, [race

neutral] reason for a peremptory challenge’’); State v.

Pendleton, 725 N.W.2d 717, 727 (Minn. 2007) (‘‘we are

not persuaded that the state’s reference to the prospective juror’s equivocal feeling toward [the] police, as

a result of her negative encounter with the [Willmar,

Minnesota] police, is evidence that the state racially

discriminated against the prospective juror by exercising a peremptory challenge’’); State v. Nave, 284 Neb.

477, 487–88, 821 N.W.2d 723 (2012) (‘‘ ‘heightened distrust of law enforcement personnel’ ’’ was race neutral

reason for peremptory challenge), cert. denied, 568 U.S.

1236, 133 S. Ct. 1595, 185 L. Ed. 2d 591 (2013).

Some states—consistent with our decision in

Holmes—have elected to address the failings of Batson

through means other than construing state constitutional provisions to demand other protections. Leading

the way is the Washington Supreme Court’s decision

in State v. Saintcalle, 178 Wn. 2d 34, 309 P.3d 326, cert.

denied, 571 U.S. 1113, 134 S. Ct. 831, 187 L. Ed. 2d 691

(2013), which upheld ‘‘the trial court’s finding that the

prosecutor had not acted with purposeful discrimination in exercising a peremptory challenge, but also

[took] the ‘opportunity to examine whether [Washington’s] Batson procedures are robust enough to effectively combat race discrimination in the selection of

juries’ . . . by convening a work group of relevant

stakeholders to study the problem and [to] resolve it

via the state’s rule-making process, which is superintended by that court.’’ (Citation omitted.) State v.

Holmes, supra, 334 Conn. 246–47. Washington’s highest

court subsequently adopted a comprehensive rule of

practice, Washington General Rule 37, which eliminated

Batson’s requirement of purposeful discrimination in

the use of peremptory challenges. See Wn. Gen. R. 37

(e). Instead, General Rule 37 asks only whether ‘‘an

objective observer could view race or ethnicity as a

factor in the use of the peremptory challenge’’; Wn.

Gen. R. 37 (e); and lists a number of reasons that are

presumptively invalid, including a distrust of law

enforcement. See Wn. Gen. R. 37 (h); see also State v.

Holmes, supra, 334 Conn. 247–49 n.23 (providing full

text of General Rule 37). The highest courts of New

Jersey and Utah have also recently directed consideration of rule based remedies for disparate impact discrimination in jury selection.25 See State v. Andujar,

247 N.J. 275, 317–18, 254 A.3d 606 (2021); State v. Aziakanou, 498 P.3d 391, 407 n.12 (Utah 2021).
Nevertheless, our independent research has revealed

two recent state supreme court decisions that support

the defendant’s argument. Most recently, in State v.

Andujar, supra, 247 N.J. 275, which was decided after

oral argument in this appeal, the New Jersey Supreme

Court, while directing a rule based, systemic remedy;

see id., 317–18; also relied on the equal protection and

jury trial provisions in that state’s constitution to conclude that ‘‘implicit bias is no less real and no less

problematic than intentional bias. The effects of both

can be the same: a jury selection process that is tainted

by discrimination.’’ Id., 303. The court observed: ‘‘From

the standpoint of the [New Jersey] [c]onstitution, it

makes little sense to condemn one form of racial discrimination yet permit another. What matters is that

juries selected to hear and decide cases are chosen free

from racial bias—whether deliberate or unintentional.’’

Id. The New Jersey court then concluded that the record

demonstrated that the jury selection process in that

case had been tainted by implicit bias, given the prosecutor’s request of a criminal background check of a

minority juror who had been seated the day before over

the prosecutor’s objection. Id., 312. That background

check revealed that the juror had not been entirely

truthful in his answers about his personal criminal history, although his criminal record would not have disqualified him from service. See id., 312–14; see also id.,

308–309 (invoking supervisory authority to require ‘‘any

party seeking to run a criminal history check on a prospective juror [to] first get permission from the trial

court,’’ emphasizing that ‘‘the prosecution or defense

should present a reasonable, individualized, [good faith]

basis to believe that a record check might reveal pertinent information unlikely to be uncovered through the

ordinary voir dire process,’’ with ‘‘mere hunches’’ being

insufficient and reasons such as distrust of law enforcement being presumptively invalid, and affording both

parties notice and opportunity to be heard).

In State v. Jefferson, 192 Wn. 2d 225, 249, 429 P.3d

467 (2018), the Washington Supreme Court appeared

to exercise its authority to provide greater protections

under the state constitution and modified the Batson

framework, as applied in that state, in order to render

the substance of General Rule 37, adopted after that

court’s decision in State v. Saintcalle, supra, 178 Wn.

2d 34, applicable in pending appeals.26 Bearing in mind

‘‘the pervasive force of unconscious bias’’; State v. Jefferson, supra, 251; the court held that ‘‘the question at

the third step of the Batson framework is not whether

the proponent of the peremptory strike is acting out of

purposeful discrimination. Instead, the relevant question is whether ‘an objective observer could view race

or ethnicity as a factor in the use of the peremptory

challenge.’ ’’ (Emphasis in original.) Id., 249. Given the

objective nature of the new standard, the court also

applied de novo review in determining whether race
was a factor in the state’s exercise of a peremptory

challenge. Id., 249–50.

Although there is a persuasive body of recent sister

state case law expressing dissatisfaction with the Batson framework in combatting implicit bias and disparate impact effects during jury selection, those cases

extending state constitutional protections to this area

are factually or legally distinguishable—at least at this

point. First, the New Jersey and Washington constitutions considered in Andujar and Jefferson, respectively, do not have a specific guarantee of peremptory

challenges like article first, § 19, of the Connecticut

constitution. Second, the Washington court’s decision

in Jefferson followed the final adoption of a court rule

on this point; it rendered that rule’s provisions applicable to pending cases, rather than acting in the first

instance. Thus, neither decision provides overwhelming

support for an ultimate conclusion that the best remedy

at this time for the shortcomings of Batson lies in state

constitutional adjudication.

6

Economic, Sociological, and Public

Policy Considerations

‘‘[T]he economic and sociological considerations factor . . . is in essence a public policy analysis . . . .’’

Fay v. Merrill, supra, 338 Conn. 50. The public policy

arguments set forth by both parties demonstrate the

complexity and importance of addressing implicit bias

and disparate impact in the jury selection process. As

this court previously recognized, there are significant

public policy and sociological reasons to support the

conclusion that a negative perception or distrust of law

enforcement or the criminal justice system is not a race

neutral reason to exclude a venireperson, given the

disparate impact that such a reason has on racial minorities. See State v. Holmes, supra, 334 Conn. 236–37. As

we stated in Holmes, the Batson framework has widely

been considered ‘‘a toothless tiger when it comes to

combating racially motivated jury selection . . . .’’

Id., 236.

The report of the Task Force commissioned in Holmes

demonstrates the present failings of the Batson framework. The report emphasizes the Task Force’s conclusion

that implicit bias and disparate impact ‘‘ ‘raise extremely

serious concerns with respect to the public perception

and fairness of the criminal justice system.’ ’’ Jury Selection Task Force, Report of the Jury Selection Task Force

to Chief Justice Richard A. Robinson (December 31, 2020)

p. 19, available at https://jud.ct.gov/Committees/jury_task

force/ReportJurySelectionTaskForce.pdf (last visited

March 15, 2022), quoting State v. Holmes, supra, 334

Conn. 234. The Task Force therefore proposed a new

rule of practice to address the role of implicit bias and

disparate impact insofar as they both contribute to the
exclusion of potential jurors on the basis of race or ethnicity, particularly with respect to the exercise of peremptory challenges.27 Jury Selection Task Force, supra, p.

20. The new rule would replace Connecticut’s modified,

three step Batson test with a wholly different methodology, eliminating the necessity of proving purposeful

discrimination and considering, instead, whether ‘‘the use

of the challenge against the prospective juror, as reasonably viewed by an objective observer, legitimately raises

the appearance that the prospective juror’s race or ethnicity was a factor in the challenge . . . .’’ Id., p. 16. The

Task Force’s proposed rule would require trial judges

to articulate their reasoning in ruling on peremptory

challenges and would deem certain reasons for peremptory challenges presumptively invalid. Id. It also would

provide a new standard of appellate review applicable

to claims of racial or ethnic discrimination in jury selection. Id.

Principles of judicial restraint counsel against this

court making a sweeping constitutional pronouncement

when the process of addressing the deficiencies of Batson is ongoing through the rule-making process, superintended by the Rules Committee. Cf. State v. Lockhart,

298 Conn. 537, 561, 4 A.3d 1176 (2010) (declining to

impose electronic recording requirement during custodial interrogations that was not mandated by state constitution because legislature is better suited to decide

policy). The Rules Committee, which has the ability to

conduct hearings and to respond to the positions of the

various stakeholders before recommending action by

the judges of the Superior Court,28 ‘‘is charged . . .

with the responsibility of formulating rules of practice

and procedure that directly control the conduct of litigation. It sets the parameters of the adjudicative process

that regulates the interactions between individual litigants and the courts.’’ Rules Committee of the Superior

Court v.Freedom of Information Commission, 192 Conn.

234, 246, 472 A.2d 9 (1984). On December 13, 2021,

the Rules Committee voted to submit the Task Force’s

proposed rule for a public hearing prior to consideration

by the judges of the Superior Court. See Rules Committee of the Superior Court, Minutes of the Meeting (December 13, 2021) p. 2, available at https://www.jud.ct.gov/

Committees/rules/rules_minutes_121321.pdf (last visited March 15, 2022). Thus, although the public policy

factor weighs substantially in favor of an alteration to

the Batson analysis, it does not support the defendant’s

claim that such a remedy requires us to resort immediatelytonewconstitutionalstandards.Arestrainedapproach

is prudent in these circumstances, particularly given

the ongoing rule-making process previously set into

motion by the comprehensive report and recommendation of the Task Force.

Having reviewed the relevant case law and materials

revealed by our Geisler analysis, we are not prepared

to conclude, on this record, that a prosecutor’s exercise
of a peremptory challenge on the basis of a venireperson’s negative perceptions or distrust of law enforcement or the criminal justice system constitutes an

impermissible, race based reason under the Connecticut constitution pursuant to the second step of the

Batson inquiry. Without making any final pronouncement on the matter, or issuing a determination applicable to any and all factual scenarios involving the exercise of peremptory challenges on the basis of negative

perceptions of this nature, we are disinclined on the

present record to hold that greater protection is warranted under the Connecticut constitution than is provided under the existing federal Batson scheme.

B

Pretext Analysis Under the Third Prong of Batson

We now turn to the third step of the Batson inquiry

to determine whether the reasons provided by the prosecutor in exercising peremptory challenges were pretexts for purposeful discrimination.29 See, e.g., State v.

Edwards, supra, 314 Conn. 493. We begin by setting

forth the standard of review. ‘‘The third Batson step

. . . 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.’’30 (Internal quotation marks omitted.) State v. Holmes, supra, 334 Conn.

226.

‘‘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 [when]

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.’’ (Internal quotation marks

omitted.) Id., 224–25.

The defendant first argues that the prosecutor’s questioning of both N.L. and C.J. was uniquely targeted in his

focus on their respective criminal histories. Specifically,

concerning C.J., defense counsel argued during voir

dire, echoed in the defendant’s brief on appeal, that the

prosecutor’s questions to C.J. about his convictions and

the answers in his juror questionnaire were more extensive than those posed to other jurors. In response, the

state argues that the prosecutor’s extended questioning

of C.J. regarding his criminal history was a product of

his incomplete juror questionnaire and the ‘‘piecemeal

disclosure’’ of his criminal history. Similarly, the trial

court noted that the questioning of C.J. was consistent

with the questioning of other jurors.

We conclude that the trial court did not commit clear

error in determining that the race neutral reasons proffered by the prosecutor were not a pretext for impermissible discrimination. The record demonstrates that the

prosecutor asked each potential juror if they, or someone who was close to them, had ever been arrested or

charged with a crime. The state further points out that

each affirmative response was followed by questions

regarding the details of that arrest or charge and

whether it would influence that venireperson in his or

her service as a juror. Although the questioning regarding C.J.’s criminal history was more extensive, the

record indicates that the more extensive questioning

reflected the incomplete answers that C.J. had provided

both during voir dire and in his juror questionnaire.

The defendant further points out that, of the four

venirepersons who admitted to having previously been

arrested, the state exercised three peremptory challenges, and the court dismissed the fourth for cause.

The record does not indicate the races of those venire-
persons, other than C.J. and N.L.,31 and, therefore, it

does not support an inference or a pattern of the prosecutor’s exclusion of potential jurors of a particular race.

Indeed, no Batson claim was raised with respect to

either of the other jurors with criminal histories

excused by the prosecutor’s peremptory challenges.

Accordingly, we conclude that the trial court did not

commit clear error in determining that the defendant

failed to meet his burden of proving, by a preponderance of the evidence, that the jury selection process in

his case was tainted by purposeful discrimination.

II

DOUBLE JEOPARDY CLAIMS

The defendant next claims that his right to be free

from double jeopardy was violated as a result of his

conviction of two counts of risk of injury to a child in

violation of § 53-21 (a) (2), in addition to his conviction

of sexual assault in the first degree in violation of § 53a70 (a) (2), attempt to commit sexual assault in the first

degree in violation of §§ 53a-70 (a) (2) and 53a-49 (a)

(2), and sexual assault in the fourth degree in violation

of § 53a-73 (a) (1) (A).32 See footnotes 2, 5, 6 and 7

of this opinion (relevant text of statutory provisions).

Relying on the Appellate Court’s decision in State v.

Tinsley, 197 Conn. App. 302, 232 A.3d 86 (2020), rev’d,

340 Conn. 425, 264 A.3d 560 (2021), the defendant

asserts that, as charged in the information, it is not

possible to commit the offenses of sexual assault in the

first and fourth degrees without having already committed risk of injury to a child and, therefore, that risk of

injury to a child is a lesser included offense of both

sexual assault charges, as described in the information.

In response, the state relies heavily on this court’s decision in State v. Alvaro F., 291 Conn. 1, 10, 966 A.2d 712,

cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d

140 (2009), and argues that, even if it is assumed that

the offenses arose out of the same act or transaction,

they are not the ‘‘same offense’’ under the well established standard set forth in Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

(1932). Guided by our recent decision in State v. Tinsley, 340 Conn. 425, 264 A.3d 560 (2021), which reversed

the Appellate Court’s decision on which the defendant

relies; id., 428; we conclude that the defendant’s right

against double jeopardy was not violated because the

offenses of sexual assault in the first and fourth degrees

contain distinct elements from that of risk of injury to

a child, rendering them not greater and lesser included

offenses.

We first address the appropriate standard of review.

‘‘A defendant’s double jeopardy claim presents a question of law, over which our review is plenary. . . . The

double jeopardy clause of the fifth amendment to the

United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in
jeopardy of life or limb. The double jeopardy clause

[applies] to the states through the due process clause

of the fourteenth amendment. . . . This constitutional

guarantee prohibits not only multiple trials for the same

offense, but also multiple punishments for the same

offense in a single trial.’’ (Internal quotation marks omitted.) State v. Porter, 328 Conn. 648, 654–55, 182 A.3d

625 (2018).

‘‘Double jeopardy analysis in the context of a single

trial is a [two step] process, and, to succeed, the defendant must satisfy both steps. . . . First, the charges

must arise out of the same act or transaction [step one].

Second, it must be determined whether the charged

crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met.

. . . At step two, we [t]raditionally . . . have applied

the Blockburger test to determine whether two statutes

criminalize the same offense, thus placing a defendant

prosecuted under both statutes in double jeopardy:

[When] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses

or only one, is whether each provision requires proof

of a fact which the other does not.’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

Id., 655; see State v. Miranda, 260 Conn. 93, 125, 794

A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154

L. Ed. 2d 175 (2002); State v. Goldson, 178 Conn. 422,

424, 423 A.2d 114 (1979).

For purposes of the present analysis, we assume,

without deciding, that step one of the Blockburger analysis is met, that is, that the state alleged in its information that the offenses in question arose from the same

act or transaction. We therefore turn to the defendant’s

argument under step two, that is, that risk of injury to

a child is a lesser included offense of sexual assault in

the first and fourth degrees.

‘‘Our case law has been consistent and unequivocal’’

that the second step of Blockburger ‘‘is a technical one

and examines only the statutes, charging instruments,

and bill of particulars as opposed to the evidence presented at trial.’’ (Internal quotation marks omitted.)

State v. Porter, supra, 328 Conn. 656; see, e.g., State v.

Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert.

denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811

(2013). When conducting this analysis, ‘‘we are concerned with theoretical possibilities, and do not focus

on the evidence presented.’’ (Internal quotation marks

omitted.) State v. Mezrioui, 26 Conn. App. 395, 403–404,

602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d

169 (1992).

The defendant argues that, notwithstanding the distinct elements of each offense charged, risk of injury

to a child is a lesser included offense of sexual assault

in the first and fourth degrees because of how each
charge was alleged in the information. We recently

rejected this argument in State v. Tinsley, supra, 340

Conn. 434. In Tinsley, we clarified that ‘‘the ‘manner

described in the information’ is relevant in determining

whether one crime is a lesser included offense of

another only to the extent the reviewing court is consulting the information in order to determine whether

it alleges distinct elements for each offense, rather than

to determine the particular factual predicate of the

case.’’ Id., 442. Therefore, we now consider the elements

of each charge and consider whether each contains an

element that the other does not.

In the present case, the defendant was convicted of

first degree sexual assault in violation of § 53a-70 (a) (2),

which requires the state to prove that (1) the defendant

‘‘engage[d] in sexual intercourse with another person,’’

(2) ‘‘such other person is under thirteen years of age,’’

and (3) ‘‘the [defendant] is more than two years older

than such person . . . .’’ The defendant was also convicted of fourth degree sexual assault in violation of

§ 53a-73a (a) (1) (A). The state had to prove that ‘‘(1)

the defendant intentionally subjected, (2) a person

under the age of fifteen years, (3) to sexual contact.

The term [s]exual contact for the purposes of § 53a73a is further defined as any contact with the intimate

parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any

contact of the intimate parts of the actor with a person

not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or

humiliating such person.’’ (Emphasis omitted; internal

quotation marks omitted.) State v. Alvaro F., supra, 291

Conn. 10. Finally, the defendant was charged with risk

of injury to a child in violation of § 53-21 (a) (2). ‘‘To

convict the defendant of risk of injury to a child under

§ 53-21 [a] (2), the state must prove that (1) the defendant had contact with the intimate parts of, or subjected

to contact with his intimate parts, (2) a child under the

age of sixteen years, (3) in a sexually and indecent

manner likely to impair the health or morals of such

child.’’ (Internal quotation marks omitted.) Id.; accord

State v. Bletsch, 281 Conn. 5, 28, 912 A.2d 992 (2007).

‘‘Our courts have addressed the relationship between

risk of injury to a child and the various degrees of

sexual assault in the context of double jeopardy claims

on several occasions, each time concluding that the

two crimes do not constitute the same offense’’; State

v. Alvaro F., supra, 291 Conn. 7; and we decline to come

to a different conclusion in the present case.33 See id.,

9 (convictions of risk of injury to child and fourth degree

sexual assault did not violate prohibition against double

jeopardy); State v. Bletsch, supra, 281 Conn. 28–29 (sexual assault in second degree and risk of injury to child

are not same offense because language of two statutes

makes it possible to have ‘‘sexual intercourse’’ under
General Statutes § 53a-71 (a) without touching victim’s

‘‘intimate parts’’ under General Statutes (Rev. to 1999)

§ 53-21 (2), and vice versa); State v. Ellison, 79 Conn.

App. 591, 602, 830 A.2d 812 (sexual assault in second

degree and risk of injury to child are not same offense

because sexual assault in second degree does not

require contact to be ‘‘ ‘in a sexual and indecent manner

likely to impair the health or morals of such child’ ’’),

cert. denied, 267 Conn. 901, 838 A.2d 211 (2003); State

v. Morris, 49 Conn. App. 409, 419, 716 A.2d 897 (‘‘the

element of ‘sexual contact,’ included within the offense

of sexual assault in the fourth degree, is not necessarily

equivalent to the touching of the private parts of a child

in a ‘ ‘‘sexual and indecent manner’’ ’ . . . prohibited

by the risk of injury to a child statute’’ (citation omitted)), cert. denied, 247 Conn. 904, 720 A.2d 516 (1998);

see also State v. James, 211 Conn. 555, 586, 560 A.2d

426 (1989) (‘‘[S]pecific intent is not an element of the

crime defined in the second part of § 53-21 . . . . Only

an intention to make the bodily movement [that] constitutes the act [that] the crime requires, which we have

referred to as a general intent, is necessary.’’ (Citations

omitted; internal quotation marks omitted.)); State v.

Perruccio, 192 Conn. 154, 162, 471 A.2d 632 (‘‘sexual

assault in the fourth degree and risk of injury [to a

child] each require proof of an element not required by

the other’’), appeal dismissed, 469 U.S. 801, 105 S. Ct.

55, 83 L. Ed. 2d 6 (1984); State v. Shaw, 186 Conn. 45,

51, 438 A.2d 872 (1982) (sexual assault in fourth degree

requires additional specific intent element that risk of

injury to child does not).

Sexual assault in the first degree in violation of § 53a70 (a) (2) requires proof that the defendant engaged in

sexual intercourse with the victim and was more than

two years older than the victim. Sexual assault in the

fourth degree in violation of § 53a-73a (a) (1) (A)

requires proof that the defendant intentionally subjected someone under the age of fifteen to sexual contact. Risk of injury to a child in violation of § 53-21 (a)

(2) contains neither of those elements. In contrast, that

statute requires proof only that the child was under the

age of sixteen and that the defendant had contact with

the child in a manner likely to impair the child’s health

or morals. From the statutory language, it is evident

that each charge contains an element of proof that

the other does not. Therefore, neither of the offenses

constitutes a greater or lesser included offense of the

other.

‘‘Our analysis of [the defendant’s] double jeopardy

[claim] does not end, however, with a comparison of

the offenses. The Blockburger test is a rule of statutory

construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling [when], for example, there is a clear indication

of contrary legislative intent. . . . Thus, the Blockburger

test creates only a rebuttable presumption of legislative
intent, [and] the test is not controlling when a contrary

intent is manifest. . . . When the conclusion reached

under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the

contrary.’’ (Internal quotation marks omitted.) State v.

Schovanec, 326 Conn. 310, 326, 163 A.3d 581 (2017); see

State v. Tinsley, supra, 340 Conn. 445–46. The defendant

in the present case, however, does not argue that the

legislature intended to treat §§ 53a-70 (a) (2) and 53a73a (a) (1) (A), on the one hand, and § 53-21 (a) (2),

on the other, as the same offense for double jeopardy

purposes. Accordingly, we conclude that, because §§ 53a70 (a) (2) and 53a-73a (a) (1) (A), and § 53-21 (a) (2)

are not the same offense for double jeopardy purposes,

the defendant’s conviction of two counts of risk of

injury does not violate his right to be free from double

jeopardy.

The judgment is affirmed.

In this opinion the other justices concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual assault and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.

1 The defendant appeals directly to this court pursuant to General Statutes

§ 51-199 (b) (3).

2 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) has contact with the intimate parts, as defined in section 53a-65,

of a child under the age of sixteen years or subjects a child under sixteen

years of age to contact with the intimate parts of such person, in a sexual

and indecent manner likely to impair the health or morals of such child

. . . shall be guilty of . . . a class B felony . . . .’’

Although § 53-21 has been amended numerous times since the defendant’s

commission of the crimes that formed the basis of his conviction; see, e.g.,

Public Acts 2007, No. 07-143, § 4; Public Acts 2013, No. 13-297, § 1; those

amendments have no bearing on the merits of this appeal. In the interest of

simplicity, we refer to the current revision of § 53-21 throughout this opinion.

3 Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d

69 (1986).

4 The victim testified that the defendant forcibly kissed her, put his tongue

inside her mouth and on her vagina, attempted, but failed, to insert his penis

in her vagina, touched her breasts and her outer vaginal area, and made

her touch his penis.

5 General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is

guilty of sexual assault in the first degree when such person . . . (2) engages

in sexual intercourse with another person and such other person is under

thirteen years of age and the actor is more than two years older than such

person . . . .’’

Section 53a-70 was amended by No. 02-138, § 5, of the 2002 Public Acts

and No. 15-211, § 16, of the 2015 Public Acts. Those amendments made

certain changes to the statute that are not relevant to this appeal. In the

interest of simplicity, we refer to the current revision of the statute.

6 General Statutes (Rev. to 2001) § 53a-73a (a) provides in relevant part:

‘‘A person is guilty of sexual assault in the fourth degree when: (1) Such

person intentionally subjects another person to sexual contact who is (A)

under fifteen years of age . . . .’’

All references to § 53a-73a in this opinion are to the 2001 revision of

the statute.

7 General Statutes § 53a-49 (a) provides in relevant part: ‘‘A person is

guilty of an attempt to commit a crime if, acting with the kind of mental

state required for commission of the crime, he . . . (2) intentionally does

or omits to do anything which, under the circumstances as he believes them

to be, is an act or omission constituting a substantial step in a course of

conduct planned to culminate in his commission of the crime.’’
8 Following oral argument, this court sua sponte ordered the parties to

submit simultaneous supplemental briefs, limited to the following issue:

‘‘Whether this court should exercise its supervisory powers to hold, pursuant

to the proposal of the Jury Selection Task Force, that, ‘[t]he denial of an

objection to a peremptory challenge shall be reviewed by an appellate court

de novo, except [that] the trial court’s express factual findings shall be

reviewed under a clearly erroneous standard.’ Jury Selection Task Force,

Report [of the Jury Selection Task Force] to Chief Justice Richard A. Robinson (December 31, 2020) p. 16 [available at https://jud.ct.gov/Committees/

jury_taskforce/ReportJurySelectionTaskForce.pdf (last visited March 15,

2022)]. But see id., pp. 22–23, statement of Judge Douglas Lavine in Opposition.’’

We also invited amici curiae to file briefs on this issue. We are grateful

to the following amici curiae for responding to our invitation with their

thoughtful briefs: (1) Harry Weller, Peter T. Zarella, and C. Ian McLachlan;

(2) the Office of the Chief Public Defender; (3) the Office of the Attorney

General; (4) the Commission on Human Rights and Opportunities; (5) David

N. Rosen; (6) NAACP Legal Defense and Educational Fund, Inc.; (7) the

Connecticut Trial Lawyers Association; and (8) Professors and Research

Scholars at Connecticut’s Law Schools.

9 We note that the record indicates that C.J. is an African-American man.

The record does not specify the racial identity of N.L., but it is undisputed

that she is a member of a racial minority.

10 The record reveals the following additional colloquy concerning the

sexual assault allegations against N.L.’s acquaintance:

‘‘[The Prosecutor]: This was a friend of—

‘‘[N.L.]: My husband’s.

‘‘[The Prosecutor]: Do you ever talk to him about any of this?

‘‘[N.L.]: No.

‘‘[The Prosecutor]: Were you personally close to this person?

‘‘[N.L.]: Not close, but I know who he is.

‘‘[The Prosecutor]: Anything about that that would make you think, I can’t

sit on this case?

‘‘[N.L.]: No. I didn’t believe the allegations.

‘‘[The Prosecutor]: Why didn’t you believe the allegations?

‘‘[N.L.]: Because of the circumstances, how it was told to me, not me

knowing personally, and [I] didn’t feel like it was true to me. I felt like he

just took it because he’s already been convicted of something else, which

ha[s] nothing to do with that. And he just—I guess they told him, if he didn’t

take the deal, this would happen.

‘‘[The Prosecutor]: Anything about that situation with him that you think

might impact your decision [in] this case?

‘‘[N.L.]: No.’’

11 The record reveals the following additional colloquy about N.L.’s conviction:

‘‘[The Prosecutor]: How long ago was this?

‘‘[N.L.]: ‘97, ‘95, ‘97.

‘‘[Prosecutor]: Did it involve any children?

‘‘[N.L.]: No.

‘‘[The Prosecutor]: Anything about a sexual assault?

‘‘[N.L.]: No.’’

12 The other reasons the prosecutor provided for the peremptory challenge

were (1) N.L.’s initial response that she would not be able to convict the

defendant based on the testimony of a single witness, (2) her initial response

that she would not be able to return a guilty verdict if she were not 100

percent certain, and (3) her disbelief of the allegations of sexual assault

against her husband’s friend.

13 The trial court cited the following additional observation regarding N.L.:

‘‘There was an additional issue that [the prosecutor] did raise . . . which

was when [N.L.] said that she would expect a sexual assault victim to report

[the assault] immediately to the police. That’s obviously not this case. I do

think there were race neutral reasons to remove her at this time.’’

14 The record reveals the following colloquy about C.J.’s arrest for the

incident with the police officer:

‘‘[The Prosecutor]: And when was that?

‘‘[C.J.]: That was over thirty-five years ago, almost forty years ago, probably. Thirty-five.

‘‘[The Prosecutor]: So did you go to jail?

‘‘[C.J.]: I was already in jail. I never got out.

‘‘[The Prosecutor]: You were in jail for what?
‘‘[C.J.]: Went from the incident, from the time it happened . . . until they

gave me that disposition, so, by the time I got the disposition, it was almost

like time served.

‘‘[The Prosecutor]: Okay. So how much time do you think you—

‘‘[C.J.]: Sixteen months.

‘‘[The Prosecutor]: Okay. And that was how long ago?

‘‘[C.J.]: That was all the way back in ‘87.

‘‘[The Prosecutor]: Besides that one time, were you ever arrested any

other time?

‘‘[C.J.]: No. All—everything ended over thirty years [ago]. That’s it.

‘‘[The Prosecutor]: That’s the only time you were ever arrested?

‘‘[C.J.]: Well . . . everything was in that time period. [Nineteen ninetyseven] was the end, when the charge was done with.

‘‘[The Prosecutor]: Say that again.

‘‘[C.J.]: All of those arrests [were] in that time frame. It was the same

thing. Violation of probation to all this stuff right here.’’

15 The record reveals the following colloquy with respect to the Stop and

Shop incident:

‘‘[The Prosecutor]: That was—

‘‘[C.J.]: That’s what I was talking about.

‘‘[The Prosecutor]: That was in 2011?

‘‘[C.J.]: In ‘11. So that’s what I was talking about. It was—but they—that

was—I worked for that company.

‘‘[The Prosecutor]: Okay. So—

‘‘[C.J.]: So they—they—that’s how. Because I didn’t have a receipt for

those items, because, through the night . . . I was stocking and everything,

rushing. We had two alarm calls, a whole bunch of things [were] happening,

and, when I was leaving in the morning, I didn’t even pay attention that

those didn’t get scanned out, so when I went to court, they dropped all

that stuff.’’

16 The trial court found the prosecutor’s questioning of C.J. to be consistent

with that of the other prospective jurors, noting: ‘‘[O]n our first day of jury

selection, there was a [prospective] juror . . . who was a white male . . .

who had been previously found not guilty but [who] was prosecuted for

operating under the influence, and he was not selected by the state. . . .

I believe this is a race neutral reason, and I find the questioning so far, from

what I observed, to be consistent and nothing pretextual that would warrant

the court to take further actions.’’

17 ‘‘We note that a Batson inquiry under Connecticut law is different from

most federal and state Batson inquiries. Under federal law, a three step

procedure is followed when a Batson violation is claimed: (1) the party

objecting to the exercise of the peremptory challenge must establish a prima

facie case of discrimination; (2) the party exercising the challenge then

must offer a neutral explanation for its use; and (3) the party opposing the

peremptory challenge must prove that the challenge was the product of

purposeful discrimination. . . . Pursuant to this court’s supervisory authority over the administration of justice, we have eliminated the requirement,

contained in the first step of this process, that the party objecting to the

exercise of the peremptory challenge establish a prima facie case of discrimination.’’ (Internal quotation marks omitted.) State v. Holmes, supra, 334

Conn. 223–24 n.15; see State v. Holloway, 209 Conn. 636, 646 and n.4, 553

A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).

18 The defendant concedes that, as a matter of federal constitutional law

in the wake of the United States Supreme Court’s decision in Hernandez

v. New York, 500 U.S. 352, 362–63, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991),

distrust of law enforcement is a facially race neutral reason to exclude a

potential juror under the United States constitution. See State v. Holmes,

supra, 334 Conn. 231–33; see also footnote 22 of this opinion and accompanying text.

19 Article first, § 1, of the Connecticut constitution provides: ‘‘All men

when they form a social compact, are equal in rights; and no man or set of

men are entitled to exclusive public emoluments or privileges from the

community.’’

Article first, § 8, of the Connecticut constitution, as amended by article

seventeen of the amendments, provides in relevant part: ‘‘In all criminal

prosecutions, the accused shall have a right . . . in all prosecutions by

information, to a speedy, public trial by an impartial jury. No person shall

. . . be deprived of life, liberty or property without due process of law

. . . .’’

Article first, § 19, of the Connecticut constitution, as amended by article
four of the amendments, provides in relevant part: ‘‘The right of trial by

jury shall remain inviolate, the number of such jurors, which shall not be

less than six, to be established by law . . . . In all civil and criminal actions

tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to

question each juror individually by counsel shall be inviolate.’’

Article first, § 20, of the Connecticut constitution, as amended by articles

five and twenty-one of the amendments, provides: ‘‘No person shall be

denied the equal protection of the law nor be subjected to segregation or

discrimination in the exercise or enjoyment of his or her civil or political

rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.’’

20 We note that the defendant did not claim at trial that distrust of the

criminal justice system was not a race neutral reason under either the

state or federal constitution for the peremptory challenges of N.L and C.J.

Although unpreserved, the defendant’s constitutional claims nevertheless

are reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),

as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

Golding requires the following conditions to be met in order for a defendant

to prevail on a claim of constitutional error not preserved at trial: ‘‘(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.’’ (Footnote omitted.) State v. Golding, supra,

239–40; see In re Yasiel R., supra, 781.

The state asserts, however, that the defendant’s claim has ‘‘no basis in

fact’’ and, thus, is not reviewable under Golding because ‘‘neither N.L. nor

C.J. was excused on the basis of distrust of the criminal justice system born

of personal experience.’’ The record does not support this argument. The

prosecutor’s stated reasons for excusing both N.L. and C.J. expressly

included, to some extent, their distrust or resentment of the police or the

criminal justice system. In exercising a peremptory challenge to N.L., the

prosecutor referenced N.L.’s criminal history and reluctance to discuss her

prior arrest, as well as her resentment toward the police. Similarly, the

prosecutor referenced C.J.’s apparent reluctance to discuss his criminal

record, as well as his belief that he was not ‘‘correctly accused or rightfully

charged’’ of assaulting a police officer. We therefore disagree with the state’s

argument that there is no basis in fact for the defendant’s claim that both

venirepersons were excused because of their distrust of the criminal justice system.

21 The fifth amendment to the United States constitution provides in relevant part: ‘‘No person shall . . . be deprived of life, liberty, or property,

without due process of law . . . .’’

The sixth amendment to the United States constitution provides in relevant

part: ‘‘In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury . . . .’’

Section 1 of the fourteenth amendment to the United States constitution

provides in relevant part: ‘‘No State shall . . . deprive any person of life,

liberty or property, without due process of law . . . .’’

22 See United States v. Arnold, 835 F.3d 833, 842 (8th Cir. 2016) (‘‘[a

prospective] juror’s bias or dissatisfaction with law enforcement is a [race

neutral] reason for striking the juror’’ (internal quotation marks omitted));

United States v. Brown, 809 F.3d 371, 376 (7th Cir.) (‘‘we have acknowledged

that bias against law enforcement is a legitimate [race neutral] justification’’),

cert. denied, 578 U.S. 977, 136 S. Ct. 2034, 195 L. Ed. 2d 219 (2016); United

States v. Alvarez-Ulloa, 784 F.3d 558, 567 (9th Cir. 2015) (distrust of law

enforcement is valid ground for peremptory strike); United States v. Moore,

651 F.3d 30, 43 (D.C. Cir. 2011) (‘‘[the prospective juror’s] concern about

‘rogue police officers,’ and a ‘bad experience’ with law enforcement that

‘[l]eft a bad taste’ . . . provided a [race neutral] explanation for the prosecution’s decision to strike her’’ (citation omitted)), aff’d sub nom. Smith v.

United States, 568 U.S. 106, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013); United

States v. Gamory, 635 F.3d 480, 496 (11th Cir.) (noting that ‘‘[the prospective

juror] harbored doubts about her ability to be impartial based [on] her

belief that her brother had been the victim of police brutality’’ and that this

characteristic ‘‘is [not] peculiar to any race’’), cert. denied, 565 U.S. 1080,

132 S. Ct. 826, 181 L. Ed. 2d 527 (2011); United States v. Carter, 111 F.3d

509, 511–12 (7th Cir. 1997) (prior negative experience with law enforcement
was race neutral reason to exclude prospective juror); United States v.

Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (prospective juror’s potential prejudice

against law enforcement was race neutral reason to exclude him); United

States v. Thomas, Docket No. 2:19-cr-00461-LSC-JHE-3, 2021 WL 76562, *5–6

(N.D. Ala. January 8, 2021) (rejecting defendant’s argument that fear or

distrust of law enforcement is not race neutral reason for peremptory challenge); Jordan v. Lefevre, 22 F. Supp. 2d 259, 272 (S.D.N.Y. 1998) (‘‘[n]egative

experience with law enforcement has been found to constitute a [race

neutral] factor for peremptorily challenging a [prospective] juror’’), rev’d in

part on other grounds, 206 F.3d 196 (2d Cir. 2000).

23 The defendant also relies on this court’s decision in State v. Brown,

232 Conn. 431, 451, 656 A.2d 997 (1995), which held that the impartial jury

provision of article first, § 8, ‘‘requires the trial court to ensure that a jury

remains impartial and unprejudiced throughout the trial,’’ in tasking our

trial judges with ‘‘an independent obligation’’ to investigate by holding an

evidentiary hearing when alerted of juror misconduct. That decision was,

however, superseded after an en banc rehearing by this court in State v.

Brown, 235 Conn. 502, 525–26, 668 A.2d 1288 (1995), which retreated from

the state constitutional analysis and utilized the court’s supervisory authority

to mandate only a preliminary inquiry into juror misconduct, the scope of

which remains within the trial court’s discretion. See id., 537–38 (Berdon,

J., dissenting) (criticizing majority’s conclusion that hearing was required

under supervisory authority, rather than state constitution, given that ‘‘the

jury is a bedrock of our democracy’’ and that ‘‘the allegations involved the

jury’s possible exposure to racist remarks made by the court’s own sheriffs’’).

24 ‘‘General Statutes § 51-232 (c) provides: ‘The Jury Administrator shall

send to a prospective juror a juror confirmation form and a confidential

juror questionnaire. Such questionnaire shall include questions eliciting the

juror’s name, age, race and ethnicity, occupation, education and information

usually raised in voir dire examination. The questionnaire shall inform the

prospective juror that information concerning race and ethnicity is required

solely to enforce nondiscrimination in jury selection, that the furnishing of

such information is not a prerequisite to being qualified for jury service and

that such information need not be furnished if the prospective juror finds

it objectionable to do so. Such juror confirmation form and confidential

juror questionnaire shall be signed by the prospective juror under penalty

of false statement. Copies of the completed questionnaires shall be provided

to the judge and counsel for use during voir dire or in preparation therefor.

Counsel shall be required to return such copies to the clerk of the court

upon completion of the voir dire. Except for disclosure made during voir

dire or unless the court orders otherwise, information inserted by jurors

shall be held in confidence by the court, the parties, counsel and their

authorized agents. Such completed questionnaires shall not constitute a

public record.’ ’’ State v. Holmes, supra, 334 Conn. 251–52 n.27.

25 In this vein, California recently enacted legislation, signed into law on

September 30, 2020, similar in substance to Washington’s General Rule 37

and the rule proposed by the Task Force, that enumerates presumptively

invalid reasons for the exercise of peremptory challenges. See Assembly

Bill No. 3070, §§ 2 and 4 (Cal. 2020), codified at Cal. Civ. Pro. Code § 231.7

(Deering Supp. 2021). Similar legislation is pending in Massachusetts, and

several other states are studying the issue through task forces or commissions. See Berkeley Law Death Penalty Clinic, ‘‘Batson Reform: State by

State,’’ available at https://www.law.berkeley.edu/experiential/clinics/deathpenalty-clinic/projects-and-cases/whitewashing-the-jury-box-howcalifornia-perpetuates-the-discriminatory-exclusion-of-black-and-latinxjurors/batson-reform-state-by-state/ (last visited March 15, 2022).

We note that Arizona has gone one step further. The Arizona Supreme

Court recently amended that state’s civil and criminal rules of practice to

eliminate peremptory challenges entirely. See Ariz. R. Civ. Proc. 47 (e); Ariz.

R. Crim. Proc. 18.4 and 18.5; see also Berkeley Law Death Penalty Clinic,

supra (noting legislation pending in New York to eliminate peremptory

challenges); see also State v. Holmes, supra, 334 Conn. 254 (Mullins, J.,

concurring) (suggesting ‘‘substantially restricting the use,’’ or ‘‘substantially

reduc[ing] the number,’’ of peremptory challenges as ‘‘the next best thing’’

to their elimination while comporting with provision of peremptory challenges in article first, § 19, of Connecticut constitution).

26 We note that the doctrinal basis for the Washington court’s decision to

change the Batson framework in Jefferson is not entirely clear. For the

authority to do so, the court does not tie its decision to any particular

provision of the Washington constitution but, instead, cites its prior decisions
in Seattle v. Erickson, 188 Wn. 2d 721, 733–34, 398 P.3d 1124 (2017), and

State v. Saintcalle, supra, 178 Wn. 2d 51. See State v. Jefferson, supra, 192

Wn. 2d 249. The court’s decision in Erickson is doctrinally silent with respect

to the authority for changing the Batson framework, itself citing only to

Saintcalle. See Seattle v. Erickson, supra, 733–34. A review of the cited

portion of Saintcalle reveals that the court discussed, but did need not to

choose, given the rules based disposition of that case, several options for

altering the Batson framework, including both (1) ‘‘authority under federal

law to pioneer new procedures within existing [f]ourteenth [a]mendment

frameworks,’’ and (2) ‘‘greater-than-federalBatson protections to defendants

under the greater protection afforded under [the Washington] state jury trial

right . . . .’’ State v. Saintcalle, supra, 51.

27 The proposed rule provides in relevant part: ‘‘(a) Policy and Purpose.

The purpose of this rule is to eliminate the unfair exclusion of potential

jurors based upon race or ethnicity.

‘‘(b) Scope; Appellate Review. The rule applies to all parties in all jury

trials. The denial of an objection to a peremptory challenge made under

this rule shall be reviewed by an appellate court de novo, except that

the trial court’s express factual findings shall be reviewed under a clearly

erroneous standard. The reviewing court shall not impute to the trial court

any findings, including findings of the prospective juror’s demeanor, which

the trial court did not expressly state on the record. The reviewing court

shall consider only reasons actually given and shall not speculate as to, or

consider reasons, that were not given to explain either the party’s use of

the peremptory challenge or the party’s failure to challenge similarly situated

jurors, who are not members of the same protected group as the challenged

juror. Should the reviewing court determine that the objection was erroneously denied, then the error shall be deemed prejudicial, the judgment shall

be reversed, and the case remanded for a new trial.

‘‘(c) Objection. A party may object to the use of a peremptory challenge

to raise a claim of improper bias. The court may also raise this objection

on its own. The objection shall be made by simple citation to this rule,

and any further discussion shall be conducted outside the presence of the

prospective juror.

‘‘(d) Response. Upon objection to the exercise of a peremptory challenge

pursuant to this rule, the party exercising the peremptory challenge shall

articulate the reason that the peremptory challenge has been exercised.

‘‘(e) Determination. The court shall then evaluate from the perspective

of an objective observer, as defined in section (f) herein, the reason given

to justify the peremptory challenge in light of the totality of the circumstances. If the court determines that the use of the challenge against the

prospective juror, as reasonably viewed by an objective observer, legitimately raises the appearance that the prospective juror’s race or ethnicity

was a factor in the challenge, then the challenge shall be disallowed and

the prospective juror shall be seated. If the court determines that the use

of the challenge does not raise such an appearance, then the challenge shall

be permitted and the prospective juror shall be excused. The court need

not find purposeful discrimination to disallow the peremptory challenge.

The court must explain its ruling on the record. A party whose peremptory

challenge has been disallowed pursuant to this rule shall not be prohibited

from attempting to challenge peremptorily the prospective juror for any

other reason, or from conducting further voir dire of the prospective juror.

‘‘(f) Nature of Observer. For the purpose of this rule, an objective observer

(1) is aware that purposeful discrimination, and implicit, institutional, and

unconscious biases, have historically resulted in the unfair exclusion of

potential jurors on the basis of their race, or ethnicity; and (2) is deemed

to be aware of and to have given due consideration to the circumstances

set forth in section (g) herein.

‘‘(g) Circumstances considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following: (i) the number and types of questions posed to the prospective juror

including consideration of whether the party exercising the peremptory

challenge failed to question the prospective juror about the alleged concern

or the questions asked about it; (ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of

the prospective juror, unrelated to his testimony, than were asked of other

prospective jurors; (iii) whether other prospective jurors provided similar

answers but were not the subject of a peremptory challenge by that party;

(iv) whether a reason might be disproportionately associated with a race or

ethnicity; (v) if the party has used peremptory challenges disproportionately
against a given race or ethnicity in the present case, or has been found by

a court to have done so in a previous case; (vi) whether issues concerning

race or ethnicity play a part in the facts of the case to be tried; (vii) whether

the reason given by the party exercising the peremptory challenge was

contrary to or unsupported by the record.

‘‘(h) Reasons Presumptively Invalid. Because historically the following

reasons for peremptory challenges have been associated with improper

discrimination in jury selection in Connecticut or maybe influenced by

implicit or explicit bias, the following are presumptively invalid reasons for

a peremptory challenge: (1) having prior contact with law enforcement

officers; (ii) expressing a distrust of law enforcement or a belief that law

enforcement officers engage in racial profiling; (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime;

(iv) living in a high-crime neighborhood; (v) having a child outside of marriage; (vi) receiving state benefits; (vii) not being a native English speaker;

and (viii) having been a victim of a crime. The presumptive invalidity of

any such reason may be overcome as to the use of a peremptory challenge

on a prospective juror if the party exercising the challenge demonstrates

to the court’s satisfaction that the reason, viewed reasonably and objectively,

is unrelated to the prospective juror’s race or ethnicity and, while not seen

by the court as sufficient to warrant excusal for cause, legitimately bears

on the prospective juror’s ability to be fair and impartial in light of particular

facts and circumstances at issue in the case.

‘‘(i) Reliance on Conduct. The following reasons for peremptory challenges

also have historically been associated with improper discrimination in jury

selection: allegations that the prospective juror was inattentive, failing to

make eye contact or exhibited a problematic attitude, body language, or

demeanor. If any party intends to offer one of these reasons or a similar

reason as a justification for a peremptory challenge, that party must provide

reasonable notice to the court and the other parties so the behavior can be

verified and addressed in a timely manner. A party who intends to exercise

a peremptory challenge for reasons relating to those listed above . . . shall,

as soon as practicable, notify the court and the other party in order to

determine whether such conduct was observed by the court or that party.

If the alleged conduct is not corroborated by observations of the court or

the objecting party, then a presumption of invalidity shall apply but may

be overcome as set forth in subsection (h).

‘‘(j) Review Process. The chief justice shall appoint an individual or individuals to monitor issues relating to this rule.’’ Jury Selection Task Force,

supra, pp. 16–18.

28 ‘‘The Rules Committee is a body composed of judges of the Superior

Court. Its function is to consider proposed changes in the rules of practice

for the Superior Court, and to recommend amendments to the Practice

Book, which may be adopted by vote of the Superior Court judges. Once

proposed Practice Book amendments have been approved by the Rules

Committee, they are published in the Connecticut Law Journal, and are

subject to public comment before their adoption by the judges.’’ Rules

Committee of the Superior Court v. Freedom of Information Commission,

192 Conn. 234, 237, 472 A.2d 9 (1984).

29 The state argues that ‘‘the defendant’s claim of pretext is inadequately

briefed and deficient because he has failed to demonstrate that [the] trial

court’s finding of no pretext is clearly erroneous on the basis of the entire

. . . record.’’ (Emphasis omitted.) We disagree. The defendant’s brief spends

several pages analyzing the record and comparing the voir dire of C.J. in

particular to that of several other venirepersons in an attempt to establish

pretext. But cf. Getty Properties Corp. v. ATKR, LLC, 315 Conn. 387, 413,

107 A.3d 931 (2015) (claim was inadequately briefed when appellants undertook ‘‘no analysis or application of the law to the facts of [the] case’’);

Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444 n.40,

35 A.3d 188 (2012) (‘‘Claims are inadequately briefed when they are merely

mentioned and not briefed beyond a bare assertion. . . . Claims are also

inadequately briefed when they . . . consist of conclusory assertions . . .

with no mention of relevant authority and minimal or no citations from the

record . . . .’’ (Citations omitted; internal quotation marks omitted.)).

30 As we noted previously, after oral argument in this appeal, we ordered

supplemental briefing and invited amicus curiae briefs on whether we should

adopt the standard of appellate review proposed by the Task Force, which

would provide for de novo review of denials of objections to peremptory

challenges, with the exception of express factual findings that would remain

subject to the clearly erroneous standard of review. See footnotes 8 and 27
of this opinion. Having considered these thoughtful briefs, we are constrained to agree with the state’s argument that it would be premature to

adopt this standard of appellate review before the judges of the Superior

Court take action with respect to the rule of practice proposed by the Task

Force, which the Rules Committee has voted to send for a public hearing

in advance of action by the judges of the Superior Court. Accordingly, at

this time, we decline to adopt the de novo standard of review in the absence

of any change to the substantive Batson inquiry, and we leave that issue

for another day.

31 See footnote 9 of this opinion.

32 Because this double jeopardy claim was not raised at trial, we review

it—at the unopposed request of the defendant—pursuant to State v. Golding,

213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,

317 Conn. 773, 781, 120 A.3d 1188 (2015). See footnote 20 of this opinion.

33 As this court noted in Alvaro F., although the prior cases addressing

this question involved the pre-1995 amendments to § 53-21, their reasoning

remains relevant and persuasive. See State v. Alvaro F., supra, 291 Conn.

8–9; see also footnote 2 of this opinion.