STATE v. DIAZ, 94 Conn. App. 582 (2006)

No. (AC 25308).Appellate Court of Connecticut

DiPentima, Gruendel and McDonald, Js.

Syllabus
Convicted of the crimes of burglary in the first degree, criminal mischief in the third degree and larceny in the sixth degree, the defendant appealed to this court. Held:

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1. This court declined to review the defendant’s claim that the trial court violated his sixth amendment right to present a defense by allowing a witness to invoke his fifth amendment privilege against self-incrimination through representation of counsel, rather than requiring him personally to invoke the fifth amendment privilege at the hearing, the defendant having failed to preserve the claim by objecting to the procedure followed at trial and having failed to seek review of his unpreserved claim under the doctrine set forth in State v. Golding (213 Conn. 233) or under the plain error doctrine.

2. The defendant could not prevail on his claim that the trial court abused its discretion in removing the only Hispanic juror in the case after the juror informed the court that she had potential conflicts; the defendant, who did not allege that the remaining jury was unable to judge his guilt impartially, failed to posit any reason that the court abused its discretion other than the fact that the dismissed juror was the only Hispanic juror and the defendant is Hispanic, and the record provided ample evidence showing that court had cause to excuse the juror because of the juror’s potential conflicts.

3. The defendant’s claim that the trial court improperly denied his challenge, under the rule of Batson v. Kentucky (476 U.S. 79), to the state’s use of a peremptory challenge to dismiss a Hispanic venireperson was unavailing, certain comments of defense counsel made to the trial court having been insufficient to constitute a valid Batson challenge.

4. The defendant’s claims that the trial court improperly charged the jury on burglary in the first degree and that he was deprived of a fair trial as a result of prosecutorial misconduct were not reviewable, the defendant having failed to brief them adequately.

Argued November 30, 2005.

Officially released March 28, 2006.

Procedural History
Substitute information charging the defendant with the crimes of burglary in the first degree, robbery in the first degree, assault in the first degree, criminal mischief in the third degree and larceny in the sixth degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Owens, J.; thereafter, the court granted in part the defendant’s motion for a judgment of acquittal; verdict of guilty of burglary in the first degree, criminal mischief in the third degree and larceny in the sixth degree; subsequently, the court denied the defendant’s motion for a judgment of acquittal and for a new trial, and rendered

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judgment in accordance with the verdict, from which the defendant appealed to this court. Affirmed.

Robert M. Berke, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).

Opinion
DiPENTIMA, J.

The defendant, Jose Diaz, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1), and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b (a). The defendant claims that the trial court improperly (1) precluded a defense witness from testifying at trial, (2) removed a juror during the trial, (3) denied hi Batson[1] challenge and (4) instructed the jury on burglary in the first degree.[2] In addition, the defendant claims that prosecutorial misconduct deprived him of the right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 30, 2003, the defendant appeared four separate times at the back porch of 681 Myrtle Avenue, Bridgeport, the home of Raul Cruz, in order to retrieve a television that had been stolen from his thirteen year old daughter. Cruz, who was in a wheelchair due to an accident that he had had years before, Randolph Armstrong and Brenda Cook, who were in Cruz’s home to assist him, were present on each occasion.

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The defendant had been told that the stolen television was located at Cruz’ home, and he twice went to the back porch with his daughter and later with two other men. On the fourth and final time, the defendant returned to the back porch with his brother, Conrad Diaz, his eldest son and another man. During that encounter, an argument ensued, escalating to fisticuffs, and the four men entered the home, overturning Cruz in his wheelchair. Amidst the melee, household items were broken, a pocketbook and cellular telephone were taken from the floor, and Conrad Diaz drew a knife and stabbed Armstrong. The defendant was stopped later that day by the police and was found to be in possession of Cook’s identification card.

The defendant was charged in October, 2003, with burglary in the first degree in violation of § 53a-101 (a) (2), robbery in the first degree in violation of § 53a-134 (a) (1), assault in the first degree in violation of § 53a-59 (a) (1), assault in the third degree in violation of § 53a-61 (a) (2), criminal mischief in the third degree in violation of § 53a-117 (a) (1), and larceny in the sixth degree in violation of §§ 53a-119 and 53a-125b (a). A jury trial was held from February 5 to 9, 2004. After the state completed its case-in-chief, the defendant moved for a judgment of acquittal; the court granted the motion as to assault in the third degree and denied the motion as to all other counts. On February 6, 2004, the state filed a substitute information charging the defendant with the remaining five counts. The jury found the defendant guilty on the counts of burglary in the first degree, criminal mischief in the third degree and larceny in the sixth degree, and not guilty on the remaining counts. The defendant filed a motion for a judgment of acquittal and a new trial, which was denied. The court sentenced the defendant to a total of eight years incarceration.[3] This appeal followed.

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I
The defendant first claims that the court violated his right to present a defense under the sixth amendment to the United States constitution by allowing a witness, his brother Conrad Diaz, to invoke his fifth amendment privilege against self-incrimination through representation of counsel, rather than requiring him to take the witness stand and personally invoke the fifth amendment privilege at a hearing. Because it was not preserved, we decline to review the defendant’s claim.

The defendant made no objection to the procedure followed at trial.[4] Further, he has not advanced a theory by which this claim should be reviewed. “It is well

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established that generally this court will not review claims that were not properly preserved in the trial court. . . . Where a defendant fails to seek review of an unpreserved claim under either [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)] or the plain error doctrine [as set forth in Practice Book § 60-5], this court will not examine such a claim.” (Citation omitted; internal quotation marks omitted.) State v. Abraham, 64 Conn. App. 384, 404 n. 18, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001). Accordingly, we decline to review the defendant’s claim.

II
The defendant next claims that the court improperly dismissed a juror during the trial. The defendant argues that the court’s removal of the only Hispanic juror on the case constituted an abuse of discretion. We disagree.

On February 6, 2004, as the panel of jurors was assembling, a court clerk handed a note to the court that had been given to him by one of the jurors. The court read counsel the note, [5]
which stated that it had been brought to the juror’s attention that the defendant’s sister worked in the same bank branch as the juror and that the juror’s grandmother was very ill, neither of which she believed would impede her ability to serve as a juror. The note had been written to “bring it to [the court’s] attention just in case it gets in the way of the

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trial.” The court proceeded to discuss with counsel their thoughts on the issue and decided to call the juror in to ask her opinion. After answering the questions of the court and both parties, during which she affirmed that “[s]o far, [she] didn’t feel any different,” the juror was asked to leave with the marshal to allow the court and counsel to confer.

Defense counsel argued that the juror should remain because she was the only Hispanic juror[6] and because he believed that she was being honest in her confidence that she would remain impartial despite the situation at work. The state responded that the juror’s ethnicity should make no difference with regard to her impartiality and that she had two potential conflicts: her work situation and her sick grandmother. After hearing the arguments, the court decided to dismiss the juror, and defense counsel objected.

We first set out our unequivocal standard of review of a trial court’s decision to remove a juror. “[T]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.” (Internal quotation marks omitted.)State v. Bowens, 62 Conn. App. 148, 154, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). “A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of cause. . . . On appeal, the defendant bears the burden of showing that the rulings of the trial court resulted in a jury that could not judge his guilt impartially.” (Citations omitted; internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 363-64, 748 A.2d 891 (2000).

General Statutes § 54-82h (c) provides in relevant part that “[i]f, at any time, any juror shall, for any reason, become unable to further perform the duty of a juror,

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the court may excuse such juror. . . .” The defendant fails to posit any reason that the court abused its discretion other than the fact that the dismissed juror was the only Hispanic juror and the defendant is Hispanic.[7] In addition, the defendant does not allege that the remaining jury was unable to judge his guilt impartially. Although the court did not state explicitly its reasons, the record provides ample evidence that because of the juror’s potential work conflict, coupled with the acute illness of her grandmother, the court had cause to excuse her. Accordingly, the defendant’s claim fails.

III
The defendant next claims that the court improperly denied hi Batson challenge. Specifically, the defendant claims that he challenged the state’s dismissal of a Hispanic venireperson, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and requested an articulation, but the prosecutor never was required to assert a race neutral, nondiscriminatory explanation for his use of a peremptory challenge, as mandated by law. We disagree.

During voir dire proceedings, one Hispanic juror was excused by the court and another was excused through the prosecutor’s peremptory challenge. Directly after the peremptory challenge, and before the third and final potential Hispanic juror from the jury pool entered the courtroom for jury selection, defense counsel took note of the previous two dismissals:

“[Defense Counsel]: Would Your Honor indicate to the state and for the record that we would like . . .

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we’d like someone who is Hispanic on this jury, and there haven’t been that many. One, I think, was excused by the court. This one is excused by the state.

“The Court: The one that [was] excused didn’t want . . . that was obvious.

“[Defense Counsel]: I understand. I’m not making any reflection on the court. I just noticed that the next one is also Hispanic. So, I would mention it to the state in terms of Batson claim, if necessary to articulate, we would like someone. . . .

“The Court: I don’t blame you.

“[Defense Counsel]: There hasn’t been that many in the pool.

* * *
“The Court: [The prosecutor in this case], I know he takes — I’ve had [the prosecutor] before, so he’s never been shy about that kind of — taking people on that basis, no.

“[Defense Counsel]: No reflection on [the prosecutor], Your Honor, but I thought I should make the point to you.”

The third and final Hispanic juror was accepted by both parties, [8] and the defendant now claims that this exchange with the court constituted a valid Batson challenge on which the court did not act.

“In 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

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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 Equal Protection Clause [of the fourteenth amendment to the United States constitution] forbids [a party] to challenge potential jurors solely on account of their race. . . .” (Internal quotation marks omitted.) State v. Latour, 276 Conn. 399, 408, 886 A.2d 404 (2005). “Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venire-person’s removal. . . . The [party asserting th Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting th Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson
claim] carries the ultimate 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.)State v. Peeler, 267 Conn. 611, 621, 841 A.2d 181 (2004).

The fundamental question in this appeal is whether defense counsel properly raised an objection asserting a Batson
challenge during jury selection. It is clear from the colloquy with the court that defense counsel was concerned about the paucity of Hispanic jurors in the jury pool. It is equally evident that had the state peremptorily challenged the third and final Hispanic juror, defense counsel likely would have raise a Batson challenge. Defense counsel’s comments that he might raise a Batson challenge in the future were insufficient to

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constitute a valid Batson challenge. The defendant’s claim therefore fails.

IV
The defendant further claims that the court improperly charged the jury on burglary in the first degree. The defendant filed no written request to charge and failed to object to the court’s instructions. He now requests review under State v Golding, supra, 213 Conn. 239-40. Due to the inadequacy of the defendant’s brief, however, we are unable to discern the crux of his claim. The defendant lists the claimed deficiencies of the charge without explanation or legal analysis. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Ward v Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004). Therefore, we decline to review the defendant’s claim.

V
Last, the defendant claims that prosecutorial misconduct deprived him of a fair trial. Specifically, the defendant claims that, during closing argument to the jury, the prosecutor improperly (1) expressed his personal opinion, (2) appealed to the passions and emotions of the jury, and (3) misstated fact and law. We decline to review the defendant’s claim.

Despite having listed various statements made by the prosecutor during closing argument in his brief, the defendant fails to conduct any analysis of these statements. Instead, the defendant cites broad language from seminal cases for the proposition that the prosecutor’s statements were improper. At no point in the defendant’s argument does he compare the prosecutor’s

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statements to those in the cases he cites, nor does he give more than a blanket assertion of their impropriety. “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S. Ct. 1814, 108 L. Ed. 2d 944
(1990); see Ward v. Greene, supra, 267 Conn. 546. Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.