State v. Gould , 322 Conn. 519 ( 2016 )

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STATE OF CONNECTICUT v. JEFFREY P. GOULD
(SC 19471)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.*
Argued May 3—officially released August 16, 2016
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, was Brian Preleski, state’s
attorney, for the appellee (state).
Pamela S. Nagy, assistant public defender, and Jas-
mine Gonzales Rose filed a brief as amicus curiae.
Opinion
McDONALD, J. The dispositive issue in this certified
appeal is whether a trial court’s purportedly improper
exclusion of a prospective juror for cause on the ground
that he was ‘‘not able to speak and understand the
English language’’ within the meaning of General Stat-
utes § 51-217 (a) (3) constitutes per se reversible error.
The defendant, Jeffrey P. Gould, appeals from the judg-
ment of the Appellate Court affirming the trial court’s
judgment of conviction, in light of its conclusion that
the trial court’s improper exclusion of a venireperson
on this basis was not prejudicial. The defendant con-
tends that, because the assessment of the English lan-
guage skills and accents of nonnative speakers may
reflect implicit or unconscious bias relating to ancestry
or national origin, the improper exclusion of a prospec-
tive juror on the basis of such factors should be deemed
commensurate with the improper exclusion of a pro-
spective juror on the basis of a suspect classification,
which is subject to automatic reversal. We conclude
that the Appellate Court properly determined that the
trial court’s excusal of the prospective juror for cause
under § 51-217 (a) (3) was subject to reversal only upon
a showing of prejudice.
The record reveals the following undisputed facts.
The defendant was brought to trial on a charge of sexual
assault in the first degree. During voir dire, an issue
arose regarding the English proficiency of venireperson
E,1 whose juror application revealed a Hispanic sur-
name and listed his ethnicity as Puerto Rican.2 After E
answered several preliminary questions, which
revealed, among other things, that he had attended col-
lege before being employed as a machinist, the follow-
ing colloquy ensued:
‘‘[The Prosecutor]: Have you or anyone close to you
ever been a victim of a crime?
‘‘[E]: Yes.
‘‘[The Prosecutor]: And are you comfortable telling
me a little bit about that?
‘‘[E]: Well, kind of—do you want to hear?
‘‘[The Prosecutor]: If you’re comfortable telling me,
yeah, sure.
‘‘[E]: Oh well, one time we are stopped by the police
and they confused me by another person, and they like
put something on me.
‘‘[The Prosecutor]: A guy came and pulled something
on you?
‘‘[E]: Yes, kind of like that.
‘‘[The Prosecutor]: Okay, and what did he pull on you?
‘‘[E]: I think it was—there was after him one person
and because he cannot get to that person, so he get
close to me and reached to my pocket without me
knowing because I was sitting down. So, when the
police came, that guy told me, hey this guy put some-
thing on you. That’s it.
‘‘[The Prosecutor]: Okay.
‘‘The Court: If I can just interrupt for a moment? [Sir],
English is not your first language is it?
‘‘[E]: No.
‘‘The Court: Do you have any difficulty understand-
ing English?
‘‘[E]: No.
‘‘The Court: No?
‘‘[E]: No, I understand very well.
‘‘The Court: Okay, and you understood everything I
said initially when I was talking to the audience out
there when you were in the gallery; did you
understand—
‘‘[E]: Most of it, yeah, most of it.
‘‘The Court: It’s the most of it part that I’m a little
worried about, which is why I asked and I apologize.
It’s important that you understand everything, because
I never know—we never know beforehand what’s going
to be the most important part of the trial. I mean it’s
all important, so it’s important that you understand
everything that’s said. Do you feel like you’ll be able
to understand everything that’s said in the courtroom?
‘‘[E]: I think so.
‘‘The Court: Okay, you don’t anticipate any problems
understanding what people are saying?
‘‘[E]: No, no, in fact I understand what’s your point.
I got a big accent.
‘‘The Court: Okay.
‘‘[E]: That when I talk, I know sometimes they tell
me—
‘‘The Court: No, no, I understand—I just want to—
whenever anybody talks to me in an accent and it’s not
just Spanish, I often inquire whether they can under-
stand English well enough to be a juror. So you’re com-
fortable doing that and that’s fine.
‘‘[E]: Yes, yes.’’
After a further exchange with the prosecutor, E clari-
fied that he was charged with a drug crime in connection
with the incident in which a ‘‘guy put something on
[him],’’ explaining that ‘‘the police say that they see
me throwing something out of my body and they put
charges on me.’’ E acknowledged that he had failed
to disclose the charges related to that incident on his
juror questionnaire.
Defense counsel also questioned E about his ability
to understand English:
‘‘[Defense Counsel]: Okay. I know the judge touched
on this a little bit, but is English your first language
or not?
‘‘[E]: No, Spanish.
‘‘[Defense Counsel]: But you understand everything
I said?
‘‘[E]: Yes, of course.’’
After the voir dire of E concluded, the state chal-
lenged him for cause, claiming that ‘‘a good number
of [E’s] answers were not actually responsive to the
questions that were being asked.’’ In addition, the state
asserted that E had failed to provide a full accounting
of his criminal record on his juror questionnaire, sug-
gesting that he either did not understand the form or
intentionally had failed to disclose his criminal history,
the latter of which would independently warrant dis-
qualification. Defense counsel objected, citing, inter
alia, E’s college background and E’s assurances that he
understands English fully.
The trial court responded: ‘‘Here’s the problem I have
. . . . I don’t think [E] can communicate with the other
members of the jury. I had an extremely hard time
understanding his answers. And while he may under-
stand the language because he certainly said he did, I
have real concerns about in a jury room whether he’s
going to be able to fully participate with the other mem-
bers of the jury in their deliberations for a verdict
because he’s extremely difficult to understand. There
were times—numerous times where I did not under-
stand what [E] was saying, and I think it’s related to
English not being his first language. I mean I think
he’s—I’ve no reason to believe intellectually he’s not
capable, but I think the language barrier is a substan-
tial one.’’
Defense counsel argued that he had understood
everything E said, ‘‘other than . . . his mumbling,’’ to
which the trial judge responded, ‘‘[w]hich was often.
. . . That’s part of my point.’’ Thereafter, the court
ruled that it would excuse E for cause based on its
view that ‘‘he has a significant language barrier that
will prevent him from fully participating as a juror in
this case.’’
The defendant’s case proceeded to trial, and the jury
found him guilty as charged. The court rendered judg-
ment accordingly, from which the defendant appealed.
On appeal before the Appellate Court, the defendant
claimed that the trial court improperly excused E for
cause, and that the significant interests implicated
required automatic reversal of the judgment of convic-
tion. The Appellate Court, with one judge concurring,
affirmed the trial court’s judgment. State v. Gould, 155
Conn. App. 392, 393, 109 A.3d 968 (2015). Describing
the issue as one of first impression in Connecticut, the
Appellate Court initially determined that the statutory
mandate that ‘‘[a] person shall be disqualified to serve
as a juror if such person . . . is not able to speak and
understand the English language’’; General Statutes
§ 51-217 (a) (3); requires, at a minimum, that a prospec-
tive juror ‘‘have sufficient language skills to understand
the proceedings and resolve the factual issues pre-
sented at trial.’’ State v. Gould, supra, 400. The Appellate
Court underscored that, in making such an assessment,
‘‘trial courts must be cognizant of the need to avoid
prejudices, conscious and unconscious, that are associ-
ated with assessing the English language skills of nonna-
tive speakers.’’ Id., 403. Ultimately, the Appellate Court
concluded that the trial court had abused its discretion
in excusing E because the record did not support its
determination that E ‘‘would not be able to communi-
cate with other jurors.’’ Id., 403–404. The Appellate
Court determined that his excusal was unjustified. Id.,
406. Notwithstanding that determination, the Appellate
Court held that the defendant was not entitled to a
new trial because he had failed to demonstrate that he
suffered any actual prejudice as a result of E’s excusal.
Id., 409.
In his concurring opinion, Judge Prescott acknowl-
edged that he ‘‘share[d] the majority’s recognition of
the value and importance of promoting jury service by
all qualified citizens regardless of their race, gender,
color, creed or national origin,’’ but disagreed with its
conclusion that the trial court’s excusal of E was
improper. Id. Judge Prescott asserted that the ‘‘majority
virtually ignore[d] or, at most, pa[id] lip service to, the
long established, highly deferential standard of review
regarding a trial court’s determination regarding a
juror’s competence to serve.’’ Id. Judge Prescott con-
cluded that the trial court’s determination that E lacked
sufficient proficiency in English to satisfy the require-
ments of § 51-217 (a) (3) was a factual finding that,
based on the cold record, was not clearly erroneous.
Id., 416–17. Accordingly, Judge Prescott concluded that
the trial court did not abuse its discretion in granting
the state’s challenge of E for cause. Id., 423.
We granted the defendant’s petition for certification
to appeal, limited to the issue of whether the Appellate
Court properly concluded that the trial court’s disquali-
fication of E did not require reversal of the trial court’s
judgment. State v. Gould, 316 Conn. 912, 112 A.3d 174
(2015). The defendant contends that the improper excu-
sal of E on the basis of his accent as a nonnative English
speaker—which, according to the defendant, is ‘‘a per-
sonal, essentially immutable characteristic closely
related to ancestry or national origin’’—is tantamount
to the improper exclusion of a prospective juror on
the basis of race, which is prohibited under Batson v.
Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986), and its progeny. Accordingly, the defendant
contends that, like a Batson violation, the improper
excusal of a prospective juror for cause solely on the
basis of his accent requires automatic reversal rather
than the customary harmful error analysis applied to
nonconstitutional claims relating to jury selection. In
response, the state both contests the Batson analogy
drawn by the defendant and seeks affirmance on the
alternative ground set forth in Judge Prescott’s concur-
ring opinion.
Before turning to the merits, we make certain clarifi-
cations. First, at no point in the proceedings in this
case has the defendant contended that the trial court’s
action violated the dictates of any provision of either the
state constitution or the federal constitution. Rather, he
has contended that this court should consider certain
fundamental interests protected thereunder when
determining whether the improper excusal of a prospec-
tive juror for lack of sufficient English proficiency
requires automatic reversal. Second, we disagree that
the record demonstrates that the trial court excused E
solely because of his accent. We think it is fairer to say
that, at a minimum, the trial court determined that E had
a significant language barrier due to the combination of
his accent, a tendency to mumble, and the imprecise
nature of some of his responses. Indeed, before the
Appellate Court, the defendant characterized the record
as showing only that E ‘‘ ‘had more difficulty in speaking
than someone for whom English is a first language
. . . .’ ’’ State v. Gould, supra, 155 Conn. App. 399. With
those clarifications in mind, we conclude that, even if
we assume, without deciding, that the trial court abused
its discretion in excusing E, the defendant nevertheless
was not entitled to a new trial in the absence of proof
that this decision prejudiced his right to an impartial
jury.
‘‘[A]n impartial and fairly chosen jury is the corner-
stone of our criminal justice system.’’ (Emphasis added;
internal quotation marks omitted.) State v. Tucker, 226
Conn. 618, 630, 629 A.2d 1067 (1993). Thus, in making
a determination as to a prospective juror’s ability to
serve, there are two sets of interests to consider: ‘‘the
interests of the parties, namely, the defendant and the
state; and . . . the interests of the prospective jurors.’’
(Footnote omitted.) State v. Patterson, 230 Conn. 385,
392, 645 A.2d 535 (1994).
With respect to the defendant’s interests, ‘‘the right
to [a] jury trial guarantees to the criminally accused a
fair trial by a panel of impartial, ‘indifferent’ jurors.’’
Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L.
Ed. 2d 751 (1961); see U.S. Const., amend. VI;3 Conn.
Const., art. I, § 19.4 ‘‘Voir dire plays a critical function
in assuring the criminal defendant that his [s]ixth
[a]mendment right to an impartial jury will be honored.’’
Rosales-Lopez v. United States, 451 U.S. 182, 188, 101
S. Ct. 1629, 68 L. Ed. 2d 22 (1981).
In addition, ‘‘jurors have a separate and independent
interest in participating in the trial process . . . .’’ State
v. Patterson, supra, 230 Conn. 393; see Powers v. Ohio,
499 U.S. 400, 406, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991)
(‘‘[t]he opportunity for ordinary citizens to participate in
the administration of justice has long been recognized
as one of the principal justifications for retaining the
jury system’’). Although ‘‘[a]n individual juror does not
have a right to sit on any particular petit jury’’; Powers
v. Ohio, supra, 409; ‘‘[a]ll persons, when granted the
opportunity to serve on a jury, have the right not to
be excluded summarily because of discriminatory and
stereotypical presumptions that reflect and reinforce
patterns of historical discrimination.’’ J.E.B. v. Ala-
bama, 511 U.S. 127, 141–42, 114 S. Ct. 1419, 128 L. Ed.
2d 89 (1994); see U.S. Const., amend. XIV, § 1 (equal
protection); Conn. Const., art. I, § 20 (same).
Turning to the issue before us, although the defen-
dant’s argument implicitly concedes that the improper
exclusion of a juror for cause based on factors wholly
unrelated to a suspect classification does not require
automatic reversal, our appellate courts have not
squarely addressed this issue. Nonetheless, our case
law in a closely related context supports the general
rule that a defendant is not entitled to a new trial in
the absence of a showing of prejudice.5 See State v.
Ross, 269 Conn. 213, 238, 849 A.2d 648 (2004) (declining
to ‘‘consider the merits of the trial court’s rulings [deny-
ing] the defendant’s for cause challenges because any
error necessarily was harmless’’); State v. Esposito, 223
Conn. 299, 312, 613 A.2d 242 (1992) (considering
‘‘impact the court’s ruling had on the defendant at trial,’’
after concluding that trial court should have granted
defendant’s challenge for cause); State v. Pelletier, 209
Conn. 564, 572–73, 552 A.2d 805 (1989) (assuming that
trial court improperly denied defendant’s challenge for
cause, error was not prejudicial). Other jurisdictions,
federal and state, universally require a showing of preju-
dice before setting aside a verdict on the basis of an
improper exclusion of a prospective juror for cause.6
To demonstrate such prejudice, the defendant must
show ‘‘that the rulings of the trial court resulted in a
jury that could not judge his guilt impartially.’’ State v.
Tucker, supra, 226 Conn. 631; accord State v. Marra,
195 Conn. 421, 432, 489 A.2d 350 (1985). In determining
whether the jury was impartial, the inquiry necessarily
‘‘must focus not on [the prospective juror who was
excused], but on the jurors who ultimately sat.’’
(Emphasis added.) Ross v. Oklahoma, 487 U.S. 81, 86,
108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); see State v.
Tucker, supra, 631 (‘‘[w]e focus on those jurors who
actually decided the defendant’s fate rather than on
those venirepersons who were excused for cause or
peremptorily’’). Accordingly, the general rule is that an
improper grant or denial of a for cause challenge is not
prejudicial unless the defendant shows that the ruling
resulted in an ‘‘identifiable, objectionable juror actually
serv[ing] on the jury that decided the case . . . .’’ State
v. Ross, supra, 269 Conn. 232; accord Carrano v. Yale-
New Haven Hospital, 279 Conn. 622, 639 n.20, 904 A.2d
149 (2006); but see State v. Hill, 196 Conn. 667, 672–73,
495 A.2d 669 (1985) (trial court’s improper refusal to
permit defense counsel to ask venirepersons about pre-
disposition to attach greater or less credence to police
officer testimony deprived defendant of right to impar-
tial jury by precluding him from intelligently challenging
such venirepersons for cause or peremptorily); State v.
Higgs, 143 Conn. 138, 143–44, 120 A.2d 152 (1956) (same
conclusion regarding trial court’s improper refusal to
permit defense counsel to ask venirepersons about
racial prejudice).
Prejudice is assessed with reference to the jurors who
convicted the defendant because ‘‘[t]he constitutional
standard of fairness requires [only] that a defendant
have a panel of impartial, indifferent jurors.’’ (Internal
quotation marks omitted.) State v. Tucker, supra, 226
Conn. 630; see Hayes v. Missouri, 120 U.S. 68, 71, 7 S.
Ct. 350, 30 L. Ed. 578 (1887) (‘‘The accused cannot
complain if he is still tried by an impartial jury. He can
demand nothing more.’’). ‘‘The right to challenge is the
right to reject, not to select a juror’’ of the defendant’s
preference. (Internal quotation marks omitted.) State
v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983). ‘‘A
defendant has no constitutional or other right to the
service of a particular juror. . . . [T]he exclusion of a
single juror, even if improper, does not suggest any
lack of impartiality on the part of those jurors in fact
serving.’’ (Citation omitted.) United States v. Joseph,
892 F.2d 118, 124 (D.C. Cir. 1989).
Batson is a limited exception to this rule. It requires
automatic reversal of a conviction when the prosecu-
tion engages in purposeful discrimination by using a
peremptory challenge to unlawfully exclude members
of the defendant’s race from the petit jury. See Batson
v. Kentucky, supra, 476 U.S. 100. Exclusion of a person
from the jury venire on account of race ‘‘violates a
defendant’s right to equal protection’’ when he is the
same race of the excluded venireperson, ‘‘unconstitu-
tionally discriminate[s] against the excluded juror,’’ and
‘‘undermine[s] public confidence in the fairness of our
system of justice.’’ Id., 86–87. Because the exercise of
peremptory challenges is ‘‘subject to the commands of
the [e]qual [p]rotection [c]lause’’; id., 89; the underlying
rationale of Batson has been extended to other group
classifications that trigger heightened scrutiny under a
traditional equal protection analysis, including ancestry
or national origin. See State v. Rigual, 256 Conn. 1, 10,
771 A.2d 939 (2001); see also Hernandez v. New York,
500 U.S. 352, 355, 361, 372, 111 S. Ct. 1859, 114 L. Ed.
2d 395 (1991) (acknowledging that use of peremptory
challenges to exclude Latinos from jury solely on basis
of their ethnic origin would violate equal protection
clause, but concluding that state’s proffered reasons
for excusals were race-neutral). A defendant has stand-
ing to vindicate the equal protection rights of prospec-
tive jurors excluded from jury service, regardless of
whether the defendant and the excluded venireperson
share the same suspect classification. See Powers v.
Ohio, supra, 499 U.S. 415–16; State v. Rigual, supra,
10–11 n.10.
We are not persuaded that the improper removal
of a prospective juror for lack of sufficient English
proficiency is akin to a Batson violation. Our court, and
every other court to consider the issue, has held that
discrimination on the basis of English proficiency for
purposes of jury service passes constitutional muster.
See State v. Gibbs, 254 Conn. 578, 597–600, 758 A.2d
327 (2000) (concluding that English proficiency require-
ment in § 51-217 [a] [3] did not violate equal protection
clause of either federal or state constitution); see also
id., 597–98 (collecting cases from other jurisdictions
reaching similar conclusion). ‘‘It has long been accepted
that the [federal] [c[onstitution does not forbid the
[s]tates to prescribe relevant qualifications for their
jurors.’’ (Internal quotation marks omitted.) Id., 597.
Even assuming the English proficiency requirement
excludes a cognizable group of nonnative English
speakers from jury service, we have recognized that
‘‘the state’s interest in ensuring that jurors are capable
of understanding the judicial proceedings is compelling,
and the English proficiency requirement is narrowly
tailored to serve that interest.’’ Id., 599. Thus, whereas
race could never be a legitimate basis on which to
exclude a prospective juror; Batson v. Kentucky, supra,
476 U.S. 87 (‘‘[a] person’s race simply ‘is unrelated to
his fitness as a juror’ ’’); English proficiency plainly is.7
Batson is distinguishable from the present case in
two other respects. First, the Batson framework has
been limited to peremptory challenges. See United
States v. Elliot, 89 F.3d 1360, 1364–65 (8th Cir. 1996)
(‘‘Batson applies only to peremptory strikes. We know
of no case that has extrapolated the Batson framework
to for-cause strikes.’’), cert. denied, 519 U.S. 1118, 117
S. Ct. 963, 136 L. Ed. 2d 849 (1997); United States v.
Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (‘‘no
authority suggests Batson extends to the area of chal-
lenges for cause’’), cert. denied, 517 U.S. 1126, 116 S.
Ct. 1365, 134 L. Ed. 2d 531 (1996), cert. denied, 519 U.S.
967, 117 S. Ct. 393, 136 L. Ed. 2d 309 (1996). Second,
Batson is concerned with purposeful discrimination in
excluding members of a suspect class in jury selection.
There is no claim in the present case that nonnative
English speaking venirepersons were intentionally and
systematically excluded from the venire; see, e.g., Thiel
v. Southern Pacific Co., 328 U.S. 217, 221–22, 225, 66
S. Ct. 984, 90 L. Ed. 1181 (1946) (reversing civil judgment
because undisputed evidence demonstrated systematic
exclusion of daily wage earners from jury lists); or that
the prosecution levied ‘‘a ‘pattern’ of strikes’’ against
such persons giving rise to an inference of purposeful
discrimination. Batson v. Kentucky, supra, 476 U.S. 97.
Even under the Appellate Court’s view of the facts giv-
ing rise to the purported erroneous excusal of E, the
trial court’s action can only be characterized as a mis-
taken, good faith application of the English proficiency
requirement. See United States v. Abbey, Docket No.
97-1284, 1998 WL 321204, *6 (10th Cir. June 5, 1998)
(rejecting argument that ‘‘a trial court’s abuse of discre-
tion in striking a potential juror for cause’’ on basis of
juror’s purported inability to speak English, ‘‘in and of
itself, is sufficient to establish a prima facie violation
of either the [f]ifth or the [s]ixth [a]mendment’’).
Although the defendant raises the specter of implied
or unconscious bias, that concern finds no support in
Batson and its progeny.
Indeed, every jurisdiction to consider this issue has
concluded that the improper exclusion of a prospective
juror for lack of sufficient English proficiency is subject
to reversal only if prejudice resulted from the error.
See id.; State v. Crouch, 107 N.W. 173, 174 (Iowa 1906);
see also United States v. Pineda, 743 F.3d 213, 217–19
(7th Cir. 2014) (even assuming trial court abused its
discretion in removing seated juror for cause based on
lack of sufficient English proficiency after commence-
ment of trial but before deliberations, error was harm-
less); State v. Berrios, 788 N.W.2d 135, 140–41 (Minn.
App. 2010) (same).
The defendant’s argument that the improper exclu-
sion of a prospective juror on this basis should be
reversible error even without a showing of prejudice
to avoid undermining public confidence in the fairness
and integrity of our judicial system, is effectively an
argument for structural error. See Arizona v. Fulmi-
nante, 499 U.S. 279, 309–10, 111 S. Ct. 1246, 113 L. Ed.
2d 302 (1991). We have observed, however, that ‘‘there
is a ‘very limited class of cases’ involving error that is
‘structural,’ that is to say, error that transcends the
criminal process. Johnson v. United States, 520 U.S.
461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) . . . .’’
State v. Lopez, 271 Conn. 724, 733, 859 A.2d 898 (2004).
Structural errors have not been recognized outside the
realm of constitutional violations except in extraordi-
nary circumstances. See, e.g., Nguyen v. United States,
539 U.S. 69, 79–83, 123 S. Ct. 2130, 156 L. Ed. 2d 64 (2003)
(structural error when appeals panel was improperly
constituted in violation of statutory requirement and
thus did not have authority to decide appeal). Accord-
ingly, we decline to extend the limited class of cases
involving structural defects to the circumstances impli-
cated here.
Finally, to the extent that the authorities cited by
the defendant and the amicus suggest that a translator
should be provided to prevent the underrepresentation
of minorities on juries due to the English proficiency
requirement, their contention is one that is more appro-
priately addressed to the legislature rather than this
court. See, e.g., General Statutes § 51-217 (a) (1) (excep-
ting deafness and hearing impairment from disqualifica-
tion on basis of exhibiting quality that will impair
capacity to serve as juror); but see State v. Gibbs, supra,
254 Conn. 599 (recognizing that ‘‘[t]he enormous addi-
tional expense that the state would incur were it
required to provide interpreters for jurors, and the
impact on the functioning of the jury, particularly during
deliberation . . . represents a compelling state
interest’’).
Despite our resolution of the issue in the present
case, we agree with the Appellate Court that our trial
courts must be vigilant in ‘‘avoid[ing] prejudices, con-
scious and unconscious, that are associated with
assessing the English language skills of nonnative
speakers.’’ State v. Gould, supra, 155 Conn. App. 403;
see also id., 409 (Prescott, J., concurring). Our Judicial
Branch has been proactive in addressing the issue of
limited English proficiency by establishing the Commit-
tee on Limited English Proficiency and charging it with
‘‘eliminating barriers to facilities, processes and infor-
mation that are faced by individuals with limited English
proficiency.’’ State of Connecticut, Judicial Branch,
Language Access Plan (Rev. July 2015), p. 3, available
at http://www.jud.ct.gov/LEP/LanguageAccessPlan.pdf
(last visited August 2, 2016). As a result, limited English
proficiency ‘‘training has . . . been provided to all
[j]udges . . . [and] has also been incorporated into the
new judge orientation provided to all newly appointed
judges.’’8 Id., p.4. Indeed, our opinion should not be
read to preclude the possibility that English language
proficiency or an accent indicative of being a nonnative
speaker could serve as a proxy or pretext for unlawful
discrimination on the basis of ancestry, national origin,
or race in another context, particularly where the exclu-
sion is made ‘‘without regard to the particular circum-
stances of the trial or the individual responses of the
jurors . . . .’’ Hernandez v. New York, supra, 500 U.S.
372; see id., 371 (‘‘[i]t may well be, for certain ethnic
groups and in some communities, that proficiency in a
particular language, like skin color, should be treated
as a surrogate for race under an equal protection analy-
sis’’). Moreover, should a systemic pattern of improper
exclusions on the basis of lack of English proficiency
arise that demonstrates an implied bias against nonna-
tive speakers, this court may exercise its inherent super-
visory authority. In the present case, the defendant
makes no such claim nor is there any evidence of such
a pattern before this court.
Having concluded that the improper removal of E
did not entitle the defendant to a new trial in the absence
of a showing of prejudice, the dispositive question is
whether the defendant has met his burden of showing
that he was deprived of an impartial jury. The defendant
has conceded that he made no claim of prejudice or
an unfair trial in the trial court and cannot do so now.
Indeed, the defendant has provided no record from
which such a conclusion could be drawn. Accordingly,
the Appellate Court properly concluded that the defen-
dant is not entitled to a new trial.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, ROBINSON and VERTEFEUILLE, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, McDon-
ald, Espinosa, Robinson and Vertefeuille. Although Chief Justice Rogers
was not present when the case was argued before the court, she has read
the briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
1
To protect the privacy of the venireperson discussed in this opinion, we
refer to him only by his first initial. See State v. Hodge, 248 Conn. 207, 229
n.25, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d
319 (1999).
2
The defendant has not made E’s juror questionnaire part of the appellate
record. Nonetheless, we accept for purposes of this appeal the defendant’s
representations as to certain statements therein, which the state has not
contested. We also note that we provide only a selected portion of the
approximately 100 questions and answers from the voir dire of E, as our
analysis assumes, without deciding, that E improperly was excused for
cause.
3
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed . . . .’’ This guarantee has
been made applicable to the states through the due process clause of the
fourteenth amendment. See Duncan v. Louisiana, 391 U.S. 145, 148–49, 88
S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
4
Article first, § 19, of the constitution of Connecticut, as amended by
article four of the amendments, provides in relevant part: ‘‘The right of trial
by jury shall remain inviolate . . . . In all civil and criminal actions tried
by a jury, the parties shall have the right to challenge jurors peremptorily,
the number of such challenges to be established by law. The right to question
each juror individually by counsel shall be inviolate.’’
5
We note that, although some of our cases have stated the standard in
the disjunctive, i.e., clear abuse of discretion or harmful prejudice, this court
nonetheless consistently has required the defendant to show prejudice to
obtain a new trial. See, e.g., State v. Ross, 269 Conn. 213, 232–33, 241, 849
A.2d 648 (2004); State v. Anthony, 172 Conn. 172, 175, 177, 374 A.2d 156
(1976); State v. Smith, 10 Conn. App. 624, 635–36, 638, 525 A.2d 116, cert.
denied, 204 Conn. 809, 528 A.2d 1156 (1987); see also State v. Crafts, 226
Conn. 237, 259, 627 A.2d 877 (1993) (‘‘[o]n appeal . . . we may reverse the
trial court’s denial of a request to excuse a juror for cause only upon a
showing of abuse of discretion resulting in prejudice to one of the parties’’).
6
See Northern Pacific Railroad Co. v. Herbert, 116 U.S. 642, 646, 6 S. Ct.
590, 29 L. Ed. 755 (1886); Hooks v. Workman, 689 F.3d 1148, 1176 (10th Cir.
2012); United States v. Lindsey, 634 F.3d 541, 553–54 (9th Cir.), cert. denied,
563 U.S. 1000, 131 S. Ct. 2475, 179 L. Ed. 2d 1232 (2011); United States v.
Perez, 387 F.3d 201, 207–208 (2d Cir. 2004); United States v. Brooks, 175
F.3d 605, 606 (8th Cir. 1999), cert. denied, 528 U.S. 1119, 120 S. Ct. 941, 145
L. Ed. 2d 818 (2000); United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222
(5th Cir.), cert. denied, 511 U.S. 1129, 114 S. Ct. 2138, 128 L. Ed. 2d 867
(1994); United States v. Joseph, 892 F.2d 118, 124 (D.C. Cir. 1989); Dailey
v. State, 828 So. 2d 340, 343–44 (Ala. 2001); State v. Sanders, 92 Ohio St.
3d 245, 249, 750 N.E.2d 90 (2001), cert. denied, 535 U.S. 1036, 122 S. Ct.
1795, 152 L. Ed. 2d 653 (2002); State v. Calloway, 157 Vt. 217, 220–21, 596
A.2d 368 (1991); see also Jones v. State, 982 S.W.2d 386, 392 (Tex. Crim.
App. 1998) (en banc) (collecting cases), cert. denied, 528 U.S. 985, 120 S.
Ct. 444, 145 L. Ed. 2d 362 (1999); State v. Mendoza, 227 Wis. 2d 838, 863
n.15, 596 N.W.2d 736 (1999) (collecting cases).
7
Even the commentators cited by the defendant, who assert that a relation-
ship between foreign language or accent and national origin should be
recognized for purposes of federal employment discrimination, acknowledge
that employers would be able to overcome the presumption of discrimination
if the English proficiency requirement for a particular job was related to a
legitimate business purpose. As we have previously explained, legitimate
reasons exist for such a requirement for jury service. See State v. Gibbs,
supra, 254 Conn. 598–99.
8
We consider the trial judge’s comment that ‘‘whenever anybody talks to
[him] in an accent and . . . not just [in] Spanish, [he] often inquire[s]
whether they can understand English well enough to be a juror,’’ to be an
inartful one. The judge may simply have been intending to convey to E that
he was not being singled out. The judicial authorities of this state assuredly
do not condone the disparate treatment of persons who are nonnative
English speakers. We note, moreover, that accents of persons for whom
English is their first language can present their own difficulties in comprehen-
sion, such as regional accents within the United States or English speakers
from foreign countries (e.g., Scottish brogue).