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*********************************************** 
STATE OF CONNECTICUT v. CHESTER J.*

(AC 41403)

Lavine, Moll and Sheldon, Js.**

Syllabus

The defendant, who had been convicted of various crimes in connection

with the sexual assault of the victim, appealed, claiming, inter alia, that

the trial court improperly denied his challenge to the jury panel, which

he claimed did not represent a fair cross section of the community in

violation of the sixth amendment and had been summoned under a

process that violated his right to equal protection. The defendant further

invited this court to exercise its supervisory authority to require the

collection and/or maintenance of venire panel demographic data. During

jury selection, the court conducted a hearing on the defendant’s objection to the jury panel. Relying on census data, information from the

prospective jurors’ questionnaires and the testimony of an expert witness

who used a Baysean probability model to predict the race of the prospective jurors, the defendant claimed that the state failed to engage in

substantive changes to remedy the underrepresentation of minorities

and overrepresentation of Caucasians in prospective jury pools and that

the state failed to adopt measures to increase minority participation in

jury pools. The questionnaires stated that prospective jurors had the

option of providing information as to their race but that they need

not do so if they found it objectionable. The defendant also provided

testimony from eight witnesses about how venire pools were selected

throughout the state and about the nonenforcement of civil penalties

on nonappearing jurors. None of the witnesses testified that they or the

state entities where they were employed compiled or maintained data

as to the racial or ethnic composition of venire panels in the state.

The defendant thus claimed that the Judicial Branch had seemingly

demonstrated wilful blindness in regard to the statutory (§ 51-232 (c))

requirement that it assure that venire panels are nondiscriminatory. He

also asserted that the state’s failure to take action with jurors who did

not report for duty led to underrepresentation of certain groups. The

court ruled, inter alia, that the defendant had presented no evidence that

the purported underrepresentation of African-Americans and Hispanics

resulted from their systematic exclusion in the jury selection process,

or that the jury selection process was susceptible to abuse or racial

bias. Held:

1. The trial court did not err in denying the defendant’s challenges to the

venire panels in violation of his constitutional rights:

a. The defendant did not establish a prima facie violation of the sixth

amendment right that the venire pool represent a fair cross section of

the community, as he failed to demonstrate that any underrepresentation

of African-Americans and Hispanics resulted from their systematic

exclusion in the jury selection process; although the state was generally

aware of a lower response rate to jury summonses from certain minority

groups, the uncontroverted evidence established that the process by

which the Judicial Branch’s jury administration summons jurors is

accomplished without regard to race, and there was no evidence to

support a finding that enforcement of civil penalties against nonappearing jurors would lead to greater responsiveness to juror summonses.

b. The court correctly rejected the defendant’s equal protection claim,

as there was no evidence of a jury selection procedure that is susceptible

to abuse or is not racially neutral; the defendant did not establish that

the state systematically excluded African-Americans or Hispanics from

the jury selection process, and the defendant did not provide any evidence of discriminatory intent with respect to excluding African-Americans or Hispanics, rather, the evidence presented by the defendant

reflected that Judicial Branch officials were either unaware of the racial

and ethnic characteristics of people summoned for jury duty or that

such information was not retained or recorded.

2. This court declined to exercise its supervisory authority over the administration of justice to require the state to collect demographic data in
accord with the directive of § 51-232 (c) to prevent discrimination in

jury selection; the defendant’s claims about the composition of jury

panels at issue were unproven, and, as crafted by the legislature, the

language of § 51-232 (c) explicitly makes the provision of racial and

ethnic information discretionary rather than mandatory.

3. This court declined to review the defendant’s claim that the trial court

erred in prohibiting him from inquiring about certain Probate Court

matters that he claimed were relevant to the victim’s purported bias

against him, the defendant having failed to raise that specific claim

before the trial court and expressly abandoned it in his principal appellate brief.

Argued March 9, 2020—officially released April 27, 2021

Procedural History

Substitute information charging the defendant with

two counts of the crime of sexual assault in the second

degree, and with one count each of the crimes of sexual

assault in the third degree, sexual assault in the fourth

degree and risk of injury to a child, brought to the

Superior Court in the judicial district of Waterbury,

where the court, Alander, J., denied the defendant’s

objection to the composition of the venire panels; thereafter, the matter was tried to the jury before Alander,

J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Trent A. LaLima, with whom, on the brief, was

Hubert J. Santos, for the appellant (defendant).

Ronald G. Weller, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Elena Pelermo, senior assistant state’s

attorney, for the appellee (state).
Opinion

MOLL, J. The defendant, Chester J., appeals from the

judgment of conviction, rendered against him following

a jury trial, of one count each of sexual assault in the

second degree in violation of General Statutes § 53a-71

(a) (1), sexual assault in the second degree in violation

of § 53a-71 (a) (4), sexual assault in the third degree in

violation of General Statutes § 53a-72a (a) (2), sexual

assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and risk of injury to a child

in violation of General Statutes § 53-21 (a) (2). On

appeal, the defendant claims that (1) the trial court

improperly denied his challenge to the jury panel on

the grounds that (A) the panel did not reflect a fair

cross section of the community in violation of the sixth

amendment to the United States constitution1 and (B)

the process by which the panel was summoned violated

his right to equal protection under the fourteenth

amendment to the United States constitution,2

(2) pursuant to our supervisory authority, this court should

require the collection and/or maintenance of a jury panel’s demographic data, and (3) the trial court erred in

barring the defense from inquiring about certain Probate Court matters related to the victim’s bias or motive

in asserting the underlying allegations against the defendant.

While the defendant’s appeal was pending, our

Supreme Court issued its decision in State v. Moore,

334 Conn. 275, 278, 221 A.3d 40 (2019).3 On the basis

of that decision, this court ordered the parties to file

simultaneous supplemental briefs addressing the

impact of Moore on this appeal. After the parties submitted their supplemental briefs, this court heard oral argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. The victim was born in Jamaica and, in 1995 or

1996, when she was seven or eight years old, arrived

in the United States following her adoption by the defendant and his wife, H, who resided in Waterbury.4 Shortly

after the move, and for many years thereafter, the defendant sexually assaulted the victim. The incidents

occurred frequently when the victim would sleep in her

parents’ bed during the winter months. The defendant

would place his hand in her underwear and touch her

clitoris.

The victim and her parents moved to another location

in Waterbury in 1999. When the victim was thirteen

years old, the defendant began having sexual intercourse with her, which continued until she was approximately twenty-one years of age. Throughout her high

school years, the defendant forced the victim to have

sexual intercourse with him approximately twice a

week. In connection with the defendant’s sexual

advances, the defendant would threaten withholding
from the victim basic necessities, such as clothing or

money for participation in school activities, if she did

not cooperate. The victim’s grades began to suffer during her sophomore year in high school, and she became

suicidal. The defendant employed various measures to

conceal his conduct from H.

Following her graduation from high school in 2007,

the victim was accepted into a college in upstate New

York, but the defendant refused to allow her to attend

there, instead requiring that she enroll in a college

closer to home. The defendant continued to have sexual

intercourse with the victim until she married in 2009,

and moved out of her parents’ home. Shortly thereafter,

the victim disclosed the abuse for the first time, initially

to her mother, H, and several years later, in or about

2015, to her sister. After her disclosure to her sister,

the victim eventually contacted the police.

Once the victim made an initial complaint to the

police, she recorded two conversations between herself

and the defendant regarding the abuse she had suffered.

In the first conversation, the defendant expressed his

sorrow and asked for forgiveness. In the second conversation, which took place in or about June, 2015, the

defendant, after having been contacted by the police,

shouted at the victim, repeatedly apologized, and

expressed concern that his conduct would ‘‘shame the

family’’ and would be ‘‘all over the news.’’ The defendant

also conveyed to the victim his desire to ‘‘get rid of

this whole case’’ and asked her what she wanted in

exchange for retracting her complaint. The victim

explained that she wanted to be able to stay in the

familial home and take care of H, who was suffering

from dementia at the time, and she wanted the defendant out of the house. The defendant indicated he

wanted H’s pension. Amenable to the foregoing terms,

the defendant reduced them to writing, and both he

and the victim signed the document embodying the

agreement. Unbeknownst to the defendant, the victim

had no intention of withdrawing her complaint, and she

turned over the recordings to the police.

The defendant subsequently was arrested, and the

state charged him by way of a substitute information

with one count each of sexual assault in the second

degree in violation of § 53a-71 (a) (1), sexual assault in

the second degree in violation of § 53a-71 (a) (4), sexual

assault in the third degree in violation of § 53a-72a (a)

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

§ 53a-73a (a) (1) (A), and risk of injury to a child in

violation of § 53-21 (a) (2). A jury thereafter convicted

the defendant of all counts and, in accordance with

the verdict, the trial court imposed a total effective

sentence of thirty-three years of imprisonment, execution suspended after eighteen years, followed by fifteen

years of probation. This appeal followed. We will set

forth additional facts and procedural history where nec-
essary.

I

The defendant first claims that the trial court improperly denied his challenge to the jury panel on the

grounds that (1) the panel did not reflect a fair cross

section of the community in violation of the sixth

amendment to the United States constitution, and (2)

the process by which the panel was summoned violated

his right to equal protection under the fourteenth

amendment to the United States constitution. Specifically, the defendant contends that there was an underrepresentation of African-Americans and Hispanics in

the jury array. Although ‘‘[w]e recognize the importance

of fairness in our judicial system, and particularly as

to our jury selection procedures’’; State v. Gibbs, 254

Conn. 578, 585, 758 A.2d 327 (2000); we conclude that

the defendant’s constitutional rights were not violated.

The following additional facts, as set forth in the trial

court’s memorandum of decision or as undisputed in

the record, and procedural history are relevant to our

resolution of these claims. Jury selection took place

over the course of three days, specifically, on November

7, 9, and 13, 2017. Six jurors, plus two alternates, were

selected from three venire panels of thirty members

each. On the second day of jury selection, the defendant

orally objected to the composition of the venire panel.

On the third day, November 13, 2017, the defendant

filed a written objection to the racial and ethnic composition of the November 7 and 9 venire panels, contending that African-Americans and Hispanics were

underrepresented. On November 16, 2017, the defendant filed a motion for the state and the defense to

have immediate access to the jury lists and juror questionnaires, which the court granted that same day with

respect to the panel assignment lists and the juror questionnaires for the three venire panels.

On November 20 and 30, 2017, the trial court held

an evidentiary hearing on the defendant’s objection to

the venire panels. Eight witnesses testified. Among

them, Attorney Philip Miller, as the duly authorized

designee of then Attorney General George Jepsen, testified that, since December, 2012, the Office of the Attorney General had not initiated a civil enforcement proceeding, pursuant to General Statutes § 51-237,5

to seek

imposition of a fine against any nonappearing juror. He

explained that the Judicial Branch provides a list of

nonappearing jurors to the Office of the Attorney General either on a monthly or a quarterly basis. Those lists

do not include, among other things, the race of the

nonappearing jurors. When questioned about the lack

of enforcement, Attorney Miller stated, in part, that

the legislature had not provided any appropriations to

accomplish that task. Attorney Miller also testified that,

prior to pursuing a civil penalty against a nonappearing

juror, the Office of the Attorney General would first
have to investigate the reasons for the nonappearance.

Shari DeLuca, the jury outreach coordinator for the

Judicial Branch, testified that she engages in community outreach for the purpose of educating the public

about jury duty and that her goal is to increase public

responsiveness to jury summonses. To effectuate that

goal, she has given presentations at high schools, colleges, and community events. DeLuca also has appeared

on Hispanic radio stations.

Girvan Dinnall, an information technology analyst for

the Judicial Branch, testified that he compiles data from

the Department of Revenue Services, the Department

of Motor Vehicles, voter registration rolls, and the

Department of Labor to create a master list for the

purpose of summoning potential jurors. The information collected from those sources includes names,

addresses, dates of birth, and social security numbers,

if available. A compilation process—whereby the data,

through a series of mostly computerized processes, are

placed into a ‘‘clean,’’ standardized master list—yields

approximately 3.15 million records (i.e., individuals).

The names on the list are separated by, and then randomized for, each of the state’s thirteen judicial districts, and then all towns within those districts. Individuals are randomly selected to receive juror summonses

on the basis of the proportional representation of the

population of the town in which they reside in relation

to that of their judicial district (based on United States

Census Bureau data). Dinnall repeatedly explained that

a prospective juror’s race has no bearing on his work

and that he does not have access to that information.

Esther Harris, the jury administrator for the Judicial

Branch, is responsible for summoning jurors in Connecticut. Harris testified that the process of summoning

jurors is governed by statute, is race blind, and is done

randomly. See General Statutes § 51-219a et seq. During

Harris’ testimony, the parties stipulated that AfricanAmericans and Hispanics respond to jury summonses

at a lower rate than others, particularly within cities.

Harris described how, in order to address the higher

nonresponse rate among African-Americans and Hispanics, her office requested, and the Department of

Motor Vehicles now provides, information relating to

identification card holders, and not just to licensed drivers. When questioned about the Office of the Attorney

General’s nonenforcement of the civil penalty for failure

to appear for jury duty, Harris responded as follows,

referencing a period when enforcement was within the

purview of the Office of the State’s Attorney: ‘‘It’s been

difficult because you want to make sure that any

enforcement that is done is effective. It’s complicated.

It has been tried before, and it did not turn out the way

that we expected because what ended up happening,

and this is years ago . . . there was a fine attached to

it, and individuals felt as if, well, there is a fine, how
much is it, I’ll pay the fine rather than show. So, individuals looked at it as an alternative . . . . [T]hey were

looking at it as, well, I would rather pay the fine than

show up.’’

Finally, the defendant presented the testimony of

Camille Seaberry, a research associate at Data Haven,

who was called as an expert witness to opine, as a

starting point, on the probable race of those individuals

in the ninety person venire who did not provide their

racial information on their individual questionnaires.

Fifty-nine venirepersons filled out their racial information in their questionnaires, which Seaberry treated as

definitive with respect to the venireperson’s race. With

respect to the remaining venirepersons, who did not

fill out such information, Seaberry used a Bayesian

probability model based on surnames, addresses, and

census data to predict their race. Out of the ninety

venirepersons, she calculated that seventy-five were

white, five were African-American, eight were Hispanic,

and two were deemed ‘‘other,’’ likely those of Asian

descent. Seaberry drew the following conclusions with

respect to the judicial district of Waterbury: (1) Caucasians made up 71.5 percent of its citizens, 68.9 percent

of its population of adults aged eighteen to seventyfour, and 83.3 percent of the venire panel, (2) AfricanAmericans made up 10.4 percent of its citizens, 11 percent of its population of adults aged eighteen to seventyfour, and 5.6 percent of the venire panel, and (3) Hispanics made up 15.5 percent of its citizens, 16.8 percent

of its population of adults aged eighteen to seventyfour, and 8.9 percent of the venire panel. On the basis

of the foregoing percentages, Seaberry calculated an

absolute disparity, a comparative disparity, and a standard deviation for the relevant population of adults aged

eighteen to seventy-four as follows: (1) with respect to

African-Americans, 0.054, 0.494, and 1.644, respectively,

and (2) with respect to Hispanics, 0.079, 0.471, and

2.008, respectively.6 Seaberry explained that two standard deviations is ‘‘a pretty standard benchmark to use,’’

meaning if ‘‘something . . . falls outside of this range

. . . that makes us think that it’s not totally random.’’

She opined that the standard deviation for Hispanic

adults was ‘‘just over that two standard deviations

threshold,’’ meaning outside the range that one would

expect if the deviation were caused by random chance.

According to Seaberry’s findings, the standard deviation

for Hispanics dropped below two standard deviations

when comparing the venire panel to adult citizens in

the relevant population.

Following the presentation of evidence, defense

counsel addressed the court. In support of the defendant’s objection to the venire panel on fair cross section

grounds, defense counsel argued that the state had

failed to engage in substantive changes to remedy the

underrepresentation of minorities and overrepresentation of Caucasians in the jury pool. With regard to his
equal protection claim, defense counsel argued that the

state had demonstrated a wilful ‘‘institutional blindness’’ by failing to adopt measures to increase minority

participation in jury pools. The state countered that

the defendant failed to prove that it systematically had

excluded jurors and, rather, the evidence demonstrated

that it had engaged in methods to increase minority

participation. In addition, the state explained that any

underrepresentation of minorities and any lack of

responsiveness to jury summonses were not attributable to the jury summoning system because the system

is not responsible for the personal conduct of summoned individuals who fail to appear for jury duty.

In its memorandum of decision dated December 15,

2017, the trial court denied the defendant’s challenge

to the venire panels. First addressing the fair cross

section claim, the court, applying the three part test set

forth in Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct.

664, 58 L. Ed. 2d 579 (1979), concluded that the defendant had failed to establish a prima facie violation of

the sixth amendment’s fair cross section requirement

because the evidence did not demonstrate that the purported underrepresentation of African-Americans and

Hispanics resulted from their systematic exclusion in

the jury selection process (i.e., the third prong of the

Duren test).7 The court observed that ‘‘[t]he only

aspects of the jury selection process which the defendant points to as flaws leading to the underrepresentation of African-Americans and Hispanics are the state’s

failure to take any action against nonappearing individuals duly summoned for jury duty and its failure to conduct outreach efforts targeted at minority residents.’’

Although the defendant presented evidence that (1) the

Office of the Attorney General has not pursued civil

enforcement against nonappearing jurors in the recent

past, and (2) the Judicial Branch does not specifically

focus its juror outreach efforts on the responsiveness

of minorities to jury summonses, ‘‘the defendant did

not present . . . any evidence that such enforcement

or focused outreach efforts would lead to a material

increase in the number of African-Americans and Hispanics appearing for jury service.’’ In other words, the

defendant’s argument assumed, without evidence, that

had the state engaged in the suggested activities, minority juror participation would increase. The court found,

on the basis of the record before it, that ‘‘that assumption [was] unwarranted and unproven.’’

Turning to the equal protection claim, the court

applied the three part test set forth in State v. Gibbs,

supra, 254 Conn. 578, which requires, as proof of an

equal protection violation in jury selection ‘‘(1) underrepresentation of a recognizable group; (2) substantial

underrepresentation over a significant period of time;

and (3) a selection procedure susceptible to abuse or

not racially neutral.’’ (Internal quotation marks omitted.) Id., 594, citing Castaneda v. Partida, 430 U.S. 482,
494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). The court

concluded that the defendant’s claim failed because, as

in Gibbs, the defendant had not demonstrated that the

jury selection process was susceptible to abuse or was

racially biased. The court explained that ‘‘the defendant

. . . failed to establish that the greater propensity of

African-Americans and Hispanics to fail to respond to

jury summons was due to anything other than external

factors, such as poverty, residential mobility, linguistic

isolation, or distrust of the legal system. The defendant

certainly has not met his burden of showing that the

failure to bring any legal action seeking the imposition

of civil fines or to initiate focused outreach efforts is

subject to abuse or not racially neutral.’’ Therefore, the

defendant’s claim faltered on the third prong of the

equal protection test, i.e., a selection procedure that is

susceptible to abuse or that is not racially neutral.

In addition, the court determined that the defendant

had failed to meet his burden with respect to the second

prong of the equal protection test, requiring a showing

of ‘‘substantial underrepresentation over a significant

period of time.’’ The court found that, at best, the defendant had shown an underrepresentation in the selection

process for one trial. The court further noted that,

although Seaberry’s analysis resulted in a standard deviation for Hispanics aged eighteen to seventy-four of

2.008, once it accounted for those eligible for jury service, i.e., native born and naturalized citizens (as only

United States citizens presently can serve as jurors in

Connecticut), the standard deviation dropped to 1.7394,

‘‘a number which the defendant admits is insufficient

to establish a lack of randomness.’’ On the basis of the

foregoing, the court denied the defendant’s challenge

to the jury array.

Before addressing the merits of the defendant’s constitutional and supervisory authority claims, we provide

an overview of State v. Moore, 169 Conn. App. 470, 151

A.3d 412 (2016), appeal dismissed, 334 Conn. 275, 221

A.3d 40 (2019), which largely guides our resolution of

those claims. In Moore, the defendant, convicted of

murder, claimed that the trial court erred in denying

his motion to strike the venire panel in violation of (1)

his sixth amendment right to a panel drawn from a fair

cross section of the community and (2) his fourteenth

amendment right to equal protection. Id., 474–75. He

also requested that this court exercise its supervisory

authority ‘‘ ‘to mandate that the jury administrator collect demographic data so that it is able to follow the

statutory directive to prevent [discrimination] in jury

selection.’ ’’ Id., 475. During jury selection, the defendant filed an objection to the composition of the venire

panel on the basis of defense counsel’s observation that

of the approximately 100 venirepersons, there were 2

African-American women, and, to his belief, 1 AfricanAmerican man (even though that individual self-identified on his jury questionnaire as Hispanic and Latin
American). Id., 476. At the evidentiary hearing on the

defendant’s objection, defense counsel orally amended

his objection to move to strike the venire panel. Id., 477.

The defense presented the testimony of six witnesses,

including the information technology manager for jury

administration, the jury administrator for the Judicial

Branch, and the jury clerk for the judicial district of

New London. Id., 477–80. Following the hearing,

defense counsel argued that the lack of diversity in the

jury pools, and the absence of African-American men,

established a fair cross section violation under the sixth

amendment and an equal protection violation under the

fourteenth amendment. Id., 480. Relying on census data,

defense counsel also argued that African-Americans

were underrepresented in the jury pool in light of statewide and New London county demographics. Id.

The trial court denied the defendant’s motion to strike

the venire panel, finding that there was no systematic

exclusion of jurors on the basis of race. Id., 481. With

respect to the defendant’s fair cross section claim, the

court concluded that there was ‘‘insufficient evidence

of the racial makeup of the jury pool or any statistical

support for the claim that [African-Americans were]

underrepresented in the pool.’’ (Internal quotation

marks omitted.) Id., 483. The court similarly rejected

the defendant’s equal protection claim, ruling that the

defendant had failed to demonstrate discriminatory

intent on the part of Connecticut’s jury selection system. Id., 483–84.

On appeal, this court affirmed the judgment, first

concluding with respect to the fair cross section claim

that ‘‘[t]he defendant failed to present evidence to demonstrate that the representation of African-American

males in venires from which juries are selected was

not fair and reasonable in relation to the number of

such persons eligible to serve as jurors in the community.’’ Id., 485. This court explained that the census

data on which the defendant relied was not probative

evidence because it reflected the percentage of all African-Americans in Connecticut and New London county,

rather than the percentage of African-American males

eligible for jury service. Id. Addressing the equal protection claim, this court concluded that there was no evidence that potential jurors systematically were

excluded from jury service. Id., 486. Additionally, ‘‘[t]he

undisputed evidence presented by the defendant

reflected that Judicial Branch officials were unaware

of the racial and ethnic characteristics of persons summoned for jury duty and that, to the extent that prospective jurors voluntarily provided information related to

their race or ethnicity on their confidential juror questionnaire, such information was not retained or

recorded.’’ Id.

Finally, the defendant also argued on appeal in Moore

that this court should, pursuant to its supervisory
authority over the administration of justice, ‘‘ ‘enforce

the collection of demographic data to permit analysis

of the diversity of jury panels in Connecticut.’ ’’8

Id.,

487. This court declined that request, reasoning: ‘‘As a

preliminary matter, the defendant’s request is supported by an unproven premise, namely, that the jury

panels at issue in the present case reflected significant

underrepresentation of a recognized group or were not

representative of a fair cross section of the community.

Moreover, it is difficult to discern how the relief sought

by the defendant—the collection of information related

to the race and ethnicity of all prospective jurors—

would comport with the plain language of [General

Statutes] § 51-232 (c), which expressly states that prospective jurors need not provide such information.’’

(Emphasis in original.) Id., 488.

Our Supreme Court granted certification to appeal,9

ultimately dismissing the appeal on the ground that

certification was improvidently granted. See State v.

Moore, supra, 334 Conn. 278. With respect to the defendant’s supervisory authority claim regarding the collection of racial and demographic data of potential jurors,

the court stated the following: ‘‘[T]he fact that the legislature has acted in this area by enacting § 51-232 (c)—

which specifically makes the provision of racial and

ethnic data optional for the juror—renders us reluctant

to exercise our supervisory authority in the sweeping

manner sought by the defendant . . . .’’ Id., 279.

Against this backdrop, we now consider the defendant’s constitutional claims.

A

We begin with the defendant’s fair cross section claim

pursuant to the sixth amendment to the United States

constitution.10 ‘‘Fair cross section claims are governed

by a well established set of constitutional principles.

In order to establish a violation of his federal constitutional right to a jury drawn from a fair cross section of

the community, the defendant must demonstrate the

following: (1) that the group alleged to be excluded

is a distinctive group in the community;11 (2) that the

representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the

number of such persons in the community; and (3) that

this underrepresentation is due to systematic exclusion

of the group in the [jury selection] process. Duren v.

Missouri, [supra, 439 U.S. 364] . . . .’’ (Footnote

added; internal quotation marks omitted.) State v.

Gibbs, supra, 254 Conn. 588. ‘‘[I]n a fair cross section

claim, the defendant need not prove intent. [S]ystematic

disproportion itself demonstrates an infringement of

the defendant’s interest in a jury chosen from a fair

community cross section. The only remaining question

is whether there is adequate justification for this

infringement.’’ (Internal quotation marks omitted.) Id.

‘‘[W]e review the [trial] court’s factual determinations
relevant to the defendant’s [s]ixth [a]mendment . . .

challenge for clear error . . . but we review de novo

the court’s legal determination whether a prima facie

violation of the fair cross section requirement has

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

Moore, supra, 169 Conn. App. 484.

In support of his claim that the trial court improperly

found that he had failed to demonstrate systematic

exclusion of African-Americans and Hispanics in the

jury selection process (i.e., the third prong of the Duren

test), the defendant makes two contentions: (1) the

state was aware that these minority groups were

appearing for jury duty at a lower rate than other

groups; and (2) the Office of the Attorney General has

failed to enforce the civil penalty prescribed by § 51-

237 against nonappearing jurors, the enforcement of

which would have led to an increase in responsiveness.

These arguments are unavailing.

First, there exists no basis to equate the state’s general awareness of a lower response rate to jury summonses among certain minority groups with a finding

that it has systematically excluded those groups in the

jury selection process. As the United States Court of

Appeals for the Second Circuit has explained, ‘‘the existence of systematic underrepresentation turns on the

process of selecting venires, not the outcome of that

process in a particular case.’’ United States v. Jackman,

46 F.3d 1240, 1248 (2d Cir. 1995). With regard to the

process by which the Judicial Branch’s jury administration summons potential jurors, the uncontroverted evidence established that it is accomplished without

regard to race.

Second, as the trial court correctly explained, with

respect to the Attorney General’s nonenforcement of

civil penalties on nonappearing jurors pursuant to § 51-

237, there was no evidence to support a finding that

such enforcement would lead to greater responsiveness

to juror summonses. See State v. Moore, supra, 169

Conn. App. 481–85 (noting ‘‘correctness’’ of trial court’s

legal analysis of defendant’s fair cross section claim,

whereby court rejected claim because, among other

things, there was no evidence that ‘‘ ‘representation of

jurors from a distinctive group would be affected by

enforcement action’ ’’). Moreover, it is difficult to perceive how enforcement of civil penalties against nonappearing jurors would even be probative, for constitutional purposes, with respect to whether the state had

systematically excluded individuals in the jury selection

process. That is, any nonappearing juror was necessarily included in the juror summoning process but did

not appear for any number of reasons external to the

process by which he or she was summoned. See State

v. Gibbs, supra, 254 Conn. 596–97.

In sum, we conclude that the defendant did not establish a prima facie violation of the sixth amendment’s
fair cross section requirement because he failed to demonstrate that any underrepresentation of AfricanAmericans and Hispanics resulted from their systematic

exclusion in the jury selection process.12

B

We now turn to the defendant’s claim that the jury

summoning process violated his fourteenth amendment

right to equal protection. The defendant largely relies

on the arguments made with respect to his sixth amendment claim. For the reasons that follow, this claim is

similarly unavailing.

‘‘An equal protection violation in jury selection procedures may be established by proof of (1) underrepresentation of a recognizable group; (2) substantial underrepresentation over a significant period of time; and (3) a

selection procedure susceptible to abuse or not racially

neutral. . . . Although the equal protection test is similar to the cross section test, the critical difference is

that in an equal protection claim the defendant must

prove discriminatory purpose.’’ (Citation omitted;

emphasis omitted; internal quotation marks omitted.)

State v. Moore, supra, 169 Conn. App. 486; see also State

v. Castonguay, 194 Conn. 416, 421, 481 A.2d 56 (1984)

(discriminatory intent required to prove equal protection violation).

By way of review, the trial court concluded that the

defendant failed to establish an equal protection violation, finding a failure of proof as to each of the prongs

of the equal protection test. We need focus our analysis

only on the third prong.13 Specifically, the trial court

found, and we agree, that the defendant failed to demonstrate that Connecticut’s jury selection procedure is

susceptible to abuse or is not racially neutral. As our

Supreme Court explained in Gibbs, the third prong is

satisfied when ‘‘a defendant [demonstrates] that the jury

selection process is equally capable of being applied in

such a manner as practically to proscribe any group

thought by the law’s administrators to be undesirable

. . . or that the [s]tate [has] . . . deliberately and systematically [denied] to members of [a] race the right

to participate as jurors in the administration of justice.’’

(Citation omitted; internal quotation marks omitted.)

State v. Gibbs, supra, 254 Conn. 596. As set forth in

part I A of this opinion, the defendant has not established that the state systematically excluded AfricanAmericans and/or Hispanics from the jury selection process. Furthermore, the defendant did not provide the

court with any evidence of discriminatory intent with

respect to excluding African-Americans or Hispanics.

Here, as we found in Moore, ‘‘[t]he undisputed evidence

presented by the defendant reflected that Judicial

Branch officials were unaware of the racial and ethnic

characteristics of persons summoned for jury duty and

that, to the extent that prospective jurors voluntarily

provided information related to their race or ethnicity
on their confidential juror questionnaire, such information was not retained or recorded.’’ State v. Moore,

supra, 169 Conn. App. 486. As in Gibbs, the defendant

has failed to establish how the higher rate of nonreporting in response to jury summonses among AfricanAmericans and Hispanics is attributable to the state,

rather than to external factors beyond the state’s control. See State v. Gibbs, supra, 596–97 (‘‘[a]s the trial

court found, there is a greater occurrence of undeliverable jury summonses and failures to report for jury service in the Hispanic community than in the general

population, not as a result of racial discrimination, but

in the main because of residential mobility and linguistic

isolation’’).

Mindful of the marked similarity between the unsuccessful equal protection claims made in Gibbs and

Moore and the claim asserted in the present case, we

conclude that the court properly determined that the

defendant failed to establish an equal protection violation because, at a minimum, there was no evidence of

a jury selection procedure that is susceptible to abuse

or that is not racially neutral.

II

The defendant next invites this court to exercise its

supervisory authority over the administration of justice

to require the collection and/or maintenance of venire

panel demographic data in order to allow for analysis of

underrepresentation claims. We decline the invitation.

‘‘It is well settled that [a]ppellate courts possess an

inherent supervisory authority over the administration

of justice. . . . Supervisory powers are exercised to

direct trial courts to adopt judicial procedures that will

address matters that are of utmost seriousness, not only

for the integrity of a particular trial but also for the

perceived fairness of the judicial system as a whole.

. . . Under our supervisory authority, we have adopted

rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.

. . . The exercise of our supervisory powers is an

extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising

to the level of a constitutional violation, is nonetheless

of utmost seriousness, not only for the integrity of a

particular trial but also for the perceived fairness of

the judicial system as a whole. . . . Indeed, there is

no principle that would bar us from exercising our

supervisory authority to craft a remedy that might

extend beyond the constitutional minimum because

articulating a rule of policy and reversing a conviction

under our supervisory powers is perfectly in line with

the general principle that this court ordinarily invoke[s]

[its] supervisory powers to enunciate a rule that is not

constitutionally required but that [it] think[s] is preferable as a matter of policy.’’ (Citations omitted; internal

quotation marks omitted.) State v. Elson, 311 Conn.
726, 764–65, 91 A.3d 862 (2014).

Section 51-232 (c) provides in relevant part: ‘‘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. . . .’’ (Emphasis added.)

At bottom, the defendant asks us to make mandatory

what the legislature, in enacting § 51-232 (c), has made

discretionary—the provision of information concerning

race and ethnicity from a prospective juror in a confidential juror questionnaire. Beyond dismissing the

appeal in Moore, in addressing a similar request, our

Supreme Court voiced its reluctance, then its refusal,

‘‘to exercise [its] supervisory authority in the sweeping

manner sought by the defendant . . . .’’ State v. Moore,

supra, 334 Conn. 279. Here, the defendant asserts in his

supplemental appellate brief, without citation to any

authority, that ‘‘the Supreme Court’s reluctance does

not bar this [c]ourt’s use of [supervisory] authority.’’

We defer to the consideration of these issues by our

Supreme Court’s Jury Selection Task Force. See State

v. Holmes, 334 Conn. 202, 250–52, 221 A.3d 407 (2019)

(establishing Jury Selection Task Force to be appointed

by Chief Justice); State v. Moore, supra, 334 Conn. 279

(‘‘we anticipate these issues will be considered by the

Jury Selection Task Force . . . to suggest those

changes to court policies, rules, and legislation necessary to ensure that our state court juries are representative of Connecticut’s diverse population’’ (citation omitted)).14

Furthermore, in Moore, this court expressed concern

with exercising its supervisory authority in a manner

that would effectively rewrite the language of § 51-232

(c). State v. Moore, supra, 169 Conn. App. 488. Our

Supreme Court voiced a similar concern in its opinion.

State v. Moore, supra, 334 Conn. 279. In an attempt to

alleviate the separation of powers concerns underlying

the rationale for declining to invoke our supervisory

power in Moore, the defendant asserts that we could

direct the state to ‘‘maintain the data regarding prospective jurors who do fill out the questionnaire.’’ As this

court recognized in Moore, however, ‘‘the resulting data,

reflecting information concerning some but not all prospective jurors, would not provide an accurate basis

on which to assess the racial and ethnic characteristics

of prospective jurors as a whole.’’ State v. Moore, supra,
169 Conn. App. 489 n.6.

In light of the foregoing, we decline to exercise our

supervisory authority and craft the extraordinary remedy requested by the defendant.

III

The defendant’s final claim is that the trial court erred

in prohibiting him from inquiring about certain Probate

Court matters that he claimed to be relevant to the

victim’s purported bias against him. The state contends,

as an initial matter, that because the defendant raises

a different claim on appeal than he did at trial, the claim

is unreviewable. We agree with the state.

The scope of our appellate review of evidentiary

issues on appeal is limited to those issues that were

pursued at trial. ‘‘Appellate review of evidentiary rulings

is ordinarily limited to the specific legal [ground] raised

by the objection of trial counsel. . . . To permit a party

to raise a different ground on appeal than [that] raised

during trial would amount to trial by ambuscade, unfair

both to the trial court and to the opposing party.’’ (Internal quotation marks omitted.) State v. Bennett, 324

Conn. 744, 761, 155 A.3d 188 (2017).

The following additional background is relevant to

our resolution of this claim. On December 6, 2017, during the defendant’s case-in-chief, the defendant sought

to call as a witness Attorney Bryan McEntee, who had

been appointed by the Probate Court to represent H.

On the state’s request for an offer of proof as to Attorney

McEntee’s testimony, the defendant proffered three

purposes, the second of which is in dispute on appeal.

First, the defendant sought to enter into evidence,

through Attorney McEntee, a copy of H’s passport to

show that H was in Jamaica during a particular period

of time. The state had no objection.

Second, the defendant sought to offer Attorney

McEntee’s ‘‘position about whether [the victim] should

. . . be appointed . . . conservator of [H’s] estate.’’

When the court questioned the relevance of such evidence, the defendant responded that Attorney McEntee’s ‘‘concern about [the victim’s] misuse of funds’’

went to her ‘‘truthfulness and trustworthiness,’’ which,

according to the defendant, supported his defense that

the victim had fabricated the allegations against him in

order to acquire H’s money and the familial home. The

court excluded Attorney McEntee’s ‘‘opinion as to

whether [the victim] was misusing funds’’ as irrelevant

and, thus, inadmissible. Notwithstanding the defendant’s statement in his principal appellate brief that he

‘‘is not pursuing the claim that . . . Attorney McEntee’s opinions regarding [the victim] should have been

admitted,’’ this second category of evidence remains the

subject of the defendant’s evidentiary claim on appeal.

Third, the defendant sought to introduce a bank
record indicating that the victim had already paid for

H’s nursing home care in Jamaica before the victim went

to Jamaica. According to the defendant, this evidence

would demonstrate that the victim lied under oath

before the Probate Court when she testified there that

her decision with respect to H’s care was not made

until after she visited Jamaica and consulted with her

family. The court sustained the state’s objection on

relevance grounds. On appeal, the defendant has

expressly abandoned any challenge to the exclusion of

this evidence.

On appeal, the defendant claims that the court

‘‘wrongly sustained the objection to all evidence regarding the probate matter, wrongly deeming it ‘collateral.’ ’’15 The defendant contends that the court ‘‘should

have admitted evidence which pertained to the [victim’s] bias or motive to lie about [the defendant].’’ The

defendant further argues that ‘‘Attorney McEntee’s recollection of ‘what happened’ at the probate proceeding

(the [victim’s] efforts to seek [H’s] property), would be

fact evidence rather than his opinion.’’

As our careful review of the trial transcript reveals,

the fundamental flaw with the defendant’s evidentiary

claim is that his proffer before the trial court, with

respect to the second category of evidence, went no

further than to seek Attorney McEntee’s ‘‘position

about whether or not [the victim] should also be

appointed . . . conservator of the estate,’’ and ‘‘his

concern about [the victim’s] misuse of funds.’’16

(Emphasis added.) As stated previously in this opinion,

the defendant expressly abandoned in his principal

appellate brief ‘‘the claim that . . . Attorney McEntee’s

opinions regarding [the victim] should have been admitted.’’ Accordingly, we conclude that the defendant’s

present claim, which attempts to cast a wider net than

the proffer before the trial court, was not raised before

the trial court and, therefore, we decline to review it.

See State v. Fernando V., 331 Conn. 201, 211–13, 202

A.3d 350 (2019).

The judgment is affirmed.

In this opinion the other judges 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 use the defendant’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

** The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The sixth amendment’s fair cross section requirement is enforceable

against the states under the due process clause of the fourteenth amendment

to the United States constitution. See State v. McCarthy, 197 Conn. 247, 249

n.1, 496 A.2d 513 (1985).

2 We address the defendant’s constitutional claims together. See parts I

A and B of this opinion.

3 On November 15, 2019, this court granted the defendant’s motion to stay

this appeal pending our Supreme Court’s disposition of Moore.

4 We refer to the defendant and H as the victim’s parents in this opinion.

5 General Statutes § 51-237 provides: ‘‘Each juror, duly chosen, drawn and

summoned, who fails to appear shall be subject to a civil penalty, the amount
of which shall be established by the judges of the Superior Court, but the

court may excuse such juror from the payment thereof. If a sufficient number

of the jurors summoned do not appear, or if for any cause there is not a

sufficient number of jurors to make up the panel, the court may order such

number of persons who qualify for jury service under section 51-217 to be

summoned as may be necessary, as talesmen, and any talesman so summoned who makes default of appearance without sufficient cause shall be

subject to a civil penalty, the amount of which shall be established by the

judges of the Superior Court. The provisions of this section shall be enforced

by the Attorney General within available appropriations.’’

6

In State v. Gibbs, supra, 254 Conn. 578, our Supreme Court described

these measures. Absolute disparity ‘‘measures the difference between the

percentage of the cognizable class in the population and the percentage of

that group represented in the venire.’’ (Internal quotation marks omitted.) Id.,

589 n.12. Comparative disparity ‘‘subtract[s] the percentage of the cognizable

group in the challenged jury pool from the percentage of the cognizable

group in the relevant population, and then divid[es] that amount by the

percentage of the cognizable group in the relevant population.’’ Id., 589 n.13.

Standard deviation is ‘‘the range within which the percentage of persons

from the recognizable group selected for the jury array could vary and still

be the product of random chance, with the likelihood of random chance

being the source of the deviation decreasing as the number of standard

deviations increases. From that standard deviation one may then calculate

the chance that an actual disparate percentage occurred randomly.’’ Id.,

595 n.19.

7

‘‘In order to establish a prima facie violation of the [fair cross section]

requirement, the defendant must show (1) that the group alleged to be

excluded is a ‘distinctive’ group in the community; (2) that the representation

of this group in venires from which juries are selected is not fair and

reasonable in relation to the number of such persons in the community;

and (3) that this underrepresentation is due to systematic exclusion of the

group in the [jury selection] process.’’ Duren v. Missouri, supra, 439 U.S. 364.

Although the court concluded that the defendant’s claim failed to satisfy

the third prong of the Duren test, it briefly addressed the evidence elicited

through Seaberry insofar as it was presented to satisfy the second prong

thereof. The court stated that ‘‘[t]he established law in Connecticut rejects

each of these three measures [absolute disparity, comparative disparity, and

standard deviation] as an appropriate basis for determining underrepresentation with respect to a sixth amendment claim. See State v. Castonguay, 194

Conn. 416, 427–30, [481 A.2d 56] (1984); State v. Gibbs, supra, [254 Conn.]

590–91. ‘Ultimately . . . the decision is not one of numbers but rather a

subjective determination of whether the disparity is constitutionally significant.’ State v. Castonguay, supra, 427.’’ In light of its holding with respect

to the third prong, the court declined to address further the second prong

of Duren because the Duren requirements are stated in the conjunctive.

8 The defendant also claimed on appeal that the trial court erred in denying

his motion to suppress identification evidence, with which this court disagreed. See State v. Moore, supra, 169 Conn. App. 489.

9 Specifically, our Supreme Court granted certification, limited to the following issues: ‘‘In concluding that the defendant could not prevail on his

motion to strike the voir dire panel on the ground that it failed to constitute

a fair cross section of the community:

‘‘1. Did the Appellate Court properly conclude that census data pertaining

to the entire African-American population in Connecticut and New London

county was not probative evidence with respect to the claimed underrepresentation of African-American males in the jury pool?

‘‘2. Did the Appellate Court properly decline, in light of the provisions of

. . . § 51-232 (c), to exercise its supervisory authority over the administration of justice to enforce the collection of demographic data to permit

analysis of the diversity of jury panels in Connecticut?’’ (Internal quotation

marks omitted.) State v. Moore, 324 Conn. 915, 915–16, 153 A.3d 1289 (2017).

10 Although the defendant states in his principal appellate brief that his

‘‘claim regarding the jury panel is one of both state and federal constitutional

magnitude,’’ he has not provided an independent analysis of any state constitutional claim in accordance with State v. Geisler, 222 Conn. 672, 684–86,

610 A.2d 1225 (1992). Accordingly, we deem abandoned any such claim.

See, e.g., State v. Bennett, 324 Conn. 744, 748 n.1, 155 A.3d 188 (2017).

11 The parties agree that the defendant satisfied this first prong because

African-Americans and Hispanics ‘‘clearly comprise . . . distinctive

group[s].’’ State v. Gibbs, supra, 254 Conn. 588.
12 Although we need not address the second prong of the defendant’s fair

cross section claim, we make the following observation. Through Seaberry,

the defendant offered the following three statistical models to demonstrate

underrepresentation of African-Americans and Hispanics: (1) absolute disparity; (2) comparative disparity; and (3) statistical decision theory. In Gibbs,

our Supreme Court rejected each of these models, requiring instead that a

defendant utilize the substantial impact test in establishing a fair cross

section violation. State v. Gibbs, supra, 254 Conn. 589–91 (explaining differences among those statistical models and reasons for rejecting them). The

defendant did not utilize the substantial impact test in the present case.

13 Because the test for an equal protection violation in jury selection

procedures is stated in the conjunctive, we need not address either of the

other two prongs, as a failure of proof on any of the prongs defeats the claim.

14 The charge of the task force, whose work has been completed, was ‘‘[t]o

propose meaningful changes to be implemented via court rule or legislation,

including, but not limited to (1) proposing any necessary changes to . . .

[§] 51-232 (c) 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.’’ Connecticut Judicial Branch Jury Selection Task

Force Charge, available at https://jud.ct.gov/Committees/jury taskforce/

default.htm (last visited April 15, 2021).

On December 31, 2020, the task force issued its final report, containing

recommendations for systemic jury reform in Connecticut. See Jury Selection Task Force, Report of the Jury Selection Task Force to Chief Justice

Richard A. Robinson (December 31, 2020), available at https://jud.ct.gov/

Committees/jury taskforce/ReportJurySelectionTaskForce.pdf (last visited

April 15, 2021).

15 We note that, in making this assertion, the defendant cites to the portion

of the transcript in which the court was ruling on the third category of

proposed evidence.

16 The record also makes clear that, by its own comments, the court

understood the defendant’s proffer in this regard to be limited to Attorney

McEntee’s ‘‘opinion’’ as to whether the victim was misusing funds.