Opinion
CR10112785.
12-10-2012
STATE of Connecticut v. Darnell MOORE.
UNPUBLISHED OPINION
JONGBLOED, J.
On November 28, 2012, the defendant, Darnell Moore, filed an Objection to Composition of Jury Venire Panels and Request for a Hearing together with a Memorandum of Law in support thereof The objection alleged underrepresentation of African-Americans in the jury pool and sought a hearing in order to determine whether " systemic exclusion in the jury selection process accounts for the underrepresentation." Berghuis v. Smith, 130 S.Ct. 1382 (2010). The court granted the request for a hearing in connection with this claim and six witnesses testified during the hearing which took place on December 4 and December 6, 2012. For the reasons set forth below, the court finds that the defendant has not met his burden of showing that " systemic exclusion in the jury selection process accounts for the underrepresentation" and the motion is therefore denied. The Court makes the following findings of fact:
1. On November 14, 2012, jury selection commenced in this case at the Superior Court in Norwich. It continued on November 15, 16, 19, 27 and 28. By the end of the day on November 28, 2012, twelve jurors and four alternates had been selected.
2. A total of 117 potential jurors appeared in Norwich throughout the jury selection process having first reported to the Judicial District Courthouse at 70 Huntington Street in New London, CT. On a number of occasions during jury selection, counsel for defendant observed that there were no males who appeared to be African-American on the Norwich jury panels. Counsel observed that there were a total of three females who appeared to be African-American (one of whom was selected to serve on the jury) and one male who indicated on his questionnaire that he was Hispanic/Latino.
3. The Deputy Director of Information Systems for the Judicial Branch, Sam Hannan, testified that he was responsible for creating and managing the jury list for the State of Connecticut. The list is created with information from four sources: the Department of Revenue Services, (" DRS"), the Department of Motor Vehicles, (" DMV"), the Department of Labor, (" DOL"), and the Registrar of Voters. He testified that the list contains information including the first and last name, address, town, zip code, social security numbers and, as to the voter registration information, whether it is active or inactive. He testified that there is no information obtained from the four sources that reflects the race of the individuals on the list and that this is the list from which all jurors are summoned for jury service statewide. The information from the four sources is entered into a data base where obvious errors are corrected, the data is standardized, and " de-duplicated" through a match process and finally randomized before the number of summonses requested by the clerk's offices are mailed out. The total number of summonses mailed for a particular judicial district are sent out to potential jurors in various towns by the same proportion of the town's population compared to the entire population of the district.
The de-duplication process involves making sure that a person's name appears on the list only once even if their name appears in the information from more than one of the four sources. For example, an individual could be included in the list from the Department of Revenue Services as well as the Department of Motor Vehicles. The name is reflected on the master list once even though there may have been up to four records provided.
4. Mr. Hannan testified that there is a weekly program that compiles a list of delinquent jurors or jurors who fail to report for jury service for a 13-month period. The list is automatically generated and forwarded to the State of Connecticut Attorney General's Office. Mr. Hannan was not aware of any jurors who had been penalized for failing to appear for jury service.
5. Esther Harris testified that she is the Jury Administrator for the Judicial Branch. She testified that the Judicial Branch does not collect any information or statistics on the racial composition of jurors or delinquent jurors. Ms. Harris testified that the information concerning race and ethnicity on the confidential juror questionnaires, (Form JD-JA-5a 7-96 CGS 51-232) (Court Ex. 2) is voluntary. There is a section on the confidential juror questionnaire which reads as follows:
Pursuant to Sec. 51-232(c) of the Connecticut General Statutes information concerning race and ethnicity is required solely to enforce nondiscrimination in jury selection. The furnishing of this information is not a prerequisite to being qualified for jury service. This information need not be furnished if you find it objectionable to do so. (Court Ex. 2.)6. Monica Endres, the acting jury clerk for the New London Judicial District testified that she checks jurors in at the courthouse located at 70 Huntington Street in New London, gives them an orientation and shows them a video about the voir dire process. Ms. Endres testified that she sees them for the first time when they report to court, and that she looks over their questionnaires to be sure the forms are signed and dated. In her experience, most people fill out most of the information requested, but she was not trained to require that all of it be included. She had no way of knowing the race of any of those who report for jury duty unless that information is included on the form voluntarily and even then, the information is not retained or recorded.
7. Robert Brothers, Jr., the Executive Director of the Connecticut Commission on Human Rights and Opportunities, testified that he was not aware of any statistics and no records were maintained as to the racial make-up of those filing tax returns, registering with the DMV, registering to vote, or filing unemployment claims with the DOL. He had no information as to whether young African-American males were underrepresented in these groups.
8. Attorney Louis Bucari of the Department of Revenue Services testified that no information is recorded or maintained regarding the racial composition of tax filers in the State of Connecticut.
9. Lynn Blackwell of the Department of Motor Vehicles testified that there was no data in the possession of the DMV regarding the racial make-up of those who apply for drivers licenses or Connecticut identification cards and that the DMV does not collect that data.
10. The parties have stipulated that the Secretary of State does not have any data reflecting racial composition of those who register to vote and there is no way to determine the racial composition of the persons whose names are forwarded to the Judicial Branch for inclusion in the jury list.
11. The parties have stipulated that the responsibility for bringing actions against delinquent jurors rests with the State of Connecticut Attorney General's office and that for at least the last three years, the Attorney General's Office has not filed a single action against a delinquent juror.
12. The parties have stipulated that the Department of Labor does not have race or gender information regarding the persons whose names are forwarded to the Judicial Branch for inclusion in the jury list.
13. No jurors are systematically excluded on the basis of race. None of the witnesses who testified had any way of knowing the racial make-up of the jurors summoned for jury duty in this or any other case other than the information provided voluntarily on the confidential juror questionnaire which is available for use during voir dire of the particular individual and not retained or recorded.
DISCUSSION
The defendant seeks to have the jury selected here stricken and requests that jury selection begin anew. He argues that the state's failure to keep data regarding the racial make up of jurors summoned for jury duty makes it impossible to ensure nondiscrimination in jury selection. The defendant argues that the state's failure to take action against any delinquent jurors permits jurors to scorn the process at will and works an impermissible hardship on the defendant who suffers an injury in fact when members of a distinctive group are not represented in the jury array. He raises both a " fair cross section" claim and an Equal Protection claim.
A. Sixth Amendment-Fair Cross Section Claim
" The fair administration of justice depends on a jury selection system that is devoid of the systematic exclusion of any cognizable group." State v. Gibbs, 254 Conn. 578, 585, 758 A.2d 327 (2000). The Sixth Amendment requires that the jury panels be drawn from a source representing a " fair cross section" of the community in which the defendant is tried ... [T]he Sixth Amendment guarantees the opportunity for a representative jury venire, not a representative venire itself." (Citations omitted; internal quotation marks omitted.) State v. Ellis, 232 Conn. 691, 698-99, 657 A.2d 1099 (1995). Further, " the federal constitution demands only that the system used by the state to select jurors produce an array which reflects a cross section of the county and from which a cognizable group or class of citizens has not been systematically excluded." State v. Townsend, 167 Conn. 539, 546, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). State v. Faust, 237 Conn. 454, 467, 678 A.2d 910 (1996) (the judicial district rather than the county is the relevant community for purposes of selecting voir dire panels).
" In order for a defendant to successfully challenge the composition of his jury array, the defendant must prove that: (1) the group claimed to be excluded is distinctive in the community, (2) the representation of the group in the jury pool is not fair and reasonable in relation to the number of members of the group in the community, and (3) the under representation is the result of systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364 [99 S.Ct. 664, 668, 58 L.Ed. .2d 579] (1979)." State v. Ellis, 232 Conn. 691, 700 (1995).
Assuming that the group claimed to be excluded here, that is, African-American males, is distinctive in the community, the second prong of Duren v. Missouri requires the defendant to show that the representation of the group in the jury pool is not fair and reasonable in relation to the number of members of the group in the community. The defendant argues that the state's failure to maintain any records concerning the racial make-up of the panels makes it impossible for him to show whether the representation is fair and reasonable. He argues that the state has prevented him from being able to establish the degree of representation of the group in the jury pool by giving jurors the ability to " opt-out" of reporting racial and ethnic information. In State v. Gibbs, 254 Conn. 578, 758 A.2d 327 (2000), our Supreme Court found that the trial court properly utilized the substantial impact test in determining that the array consisted of a fair cross section of the community and that any underrepresentation did not amount to a constitutional violation. Id. at 589-94. In Gibbs, statistical analysis was employed to make the determination that there was a slight underrepresentation of Hispanics. The Supreme Court stated:
In Gibbs, the court stated:
Applying the substantial impact test, the trial court found that Hispanic persons comprised approximately 6.57 percent of the adult population of the Hartford-New Britain judicial district, but constituted only 4.21 percent of those deemed eligible for jury service. Therefore, under the substantial impact test, approximately three Hispanic persons would have to be added to every jury array of 100 persons in order to eliminate any underrepresentation. We agree with the trial court's conclusion that this does not represent a substantial underrepresentation, and that the defendant has failed, therefore, to satisfy the second prong of the Duren test. 254 Conn. at 591-92.
Here the defendant has presented no evidence of any statistical analysis to support his claim and no evidence from which the court could conclude any degree of underrepresentation. He points to census data showing that Black people represent 6.5% of the population of New London County and 11.1% of the State of Connecticut. (Def. Ex. A and B.) He observed that three jurors in the pool were females who appeared to be African-American or who represented themselves as such on the questionnaire. He concedes that he offered no other data as to the racial make-up of the panel or the percentage of the group in the pool claiming that the information was simply not available. The witnesses testified credibly that no information was maintained as to the racial or ethnic make-up of jurors reporting for jury duty in this judicial district. Although there is a section on the confidential juror questionnaire where jurors may enter that information voluntarily, they are not required to do so. The defendant argues that the action of the state in failing to record or require such information effectively precludes him from satisfying his burden. The defendant, however, provides no authority in support of his contention that the state is required to maintain information on how jurors identify themselves racially and the court declines to find such a requirement. The defendant has therefore failed in his proof having offered insufficient evidence of the racial make-up of the jury pool or any statistical support for the claim that the group is underrepresented in the jury pool.
Even if, however, the court were to find that the group was underrepresented or that the actions of the state in failing to maintain records concerning the racial composition of jury pools precluded the defendant from meeting his burden in this regard, his claim nevertheless fails because he specifically concedes that he has not shown systematic exclusion of any group in the jury selection process. Inasmuch as the defendant has failed to establish this third prong of the proof required under Duren v. Missouri, his challenge to the array on this ground fails.
The defendant's claim that failure to take action with regard to delinquent jurors leads to underrepresentation of a distinctive group, also fails since there is no evidence before the court as to the racial make up of delinquent jurors or any evidence that the representation of jurors from a distinctive group would be affected by enforcement action.
B. Equal Protection Claim
The defendant has also raised an equal protection claim regarding the jury selection procedure. " 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. State v. Castonguay, [194 Conn. 416, 421, 481 A.2d 56 (1984) ], citing Castaneda v. Partida, [430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) ]." State v. Gibbs, 254 Conn. at 594. This claim fails, however, because the third prong of Castaneda requires proof of discriminatory intent. State v. Castonguay, supra, at 421. The defendant has conceded that he has not shown discriminatory intent. Here, as in Gibbs, the defendant has produced no evidence that Connecticut's jury selection system is capable of " deliberately and systematically" denying African-American males the opportunity to be selected for jury service by excluding them from jury arrays. Gibbs, 254 Conn. at 596. As the U.S. Supreme Court stated in Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977), 97 S.Ct. 555:
Our decision last Term in Washington v. Davis, 426 U.S. 229 (1976), made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. " Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Id. at 242. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Id. at 264-65
Thus, the failure to show discriminatory intent requires denial of the defendant's equal protection claim.
For the reasons set forth above, the court concludes that the defendant has failed to state a prima facie case for a violation of the sixth amendment under Duren v. Missouri, supra, 439 U.S. at 357, or for a violation of equal protection under Castaneda v. Partida, supra, 430 U.S. at 482. The objection is therefore overruled and the motion to strike the jury is DENIED.
It is So Ordered
We conclude that the slight underrepresentation alleged by the defendant simply fails to rise to the level of a constitutional violation. In State v. Castonguay, supra, 194 Conn. at 431, we noted that " our jury system of necessity deals with living individuals rather than fractional percentage persons. Changes in the demographic composition of juries and jury panels can therefore only be made by the addition or deletion of one or more individuals ... [C]ourts have been mindful of this latter fact in concluding that only gross or marked disparities or substantial departures from a fair cross section of the community require judicial intervention." (Internal quotation marks omitted.) Bearing that principle in mind, we cannot say that the facts of this case constitute so " gross" a disparity as to warrant action on our part. 254 Conn. at 593-94.