"The remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985). In support of his motion for a new trial in Myers I, the defendant argued that the juror, Gay, had been the victim of an assault thirteen months prior to his selection as a juror that would have affected his ability to render an impartial verdict, and that Gay had made no mention of the assault at any time during the process of jury selection or at any time thereafter.
Moreover, the defendant does not claim that the trial court acted improperly when it allowed Gay to sit as a juror based on the answers that Gay did provide on voir dire. Nonetheless, it is also true that this court has routinely reviewed claims of jury misconduct or jury bias brought by way of motions for a new trial. See, e.g., State v. Newsome, 238 Conn. 588, 622-29, 682 A.2d 972 (1996) (reviewing trial court's denial of motion for new trial based on alleged juror misconduct); see also State v. Brye, 236 Conn. 209, 211, 671 A.2d 1295 (1996); State v. Ross, 230 Conn. 183, 227-29, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995); State v. Asherman, 193 Conn. 695, 735-36, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985); State v. Almeda, 189 Conn. 303, 310, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985). In State v. Asherman, supra, 180 Conn. 144-45, this court stated that "errors which are claimed in relation to a motion for a new trial may be assigned on the appeal from the judgment rendered in the case in which the motion is made. . . .
In support of his claim that the trial court's Pinkerton instruction constituted plain error, the defendant first contends that reckless manslaughter predicated on Pin kerton liability is not a cognizable crime in Connecticut because, as a matter of law, a defendant cannot be held vicariously liable for the reckless, and therefore unintended, acts of a coconspirator. Although the defendant does not cite to any case law discussing the application of Pinkerton liability to crimes involving a coconspirator's reckless conduct, he relies primarily on State v. Beccia, 199 Conn. 1, 5, 505 A.2d 683 (1986), and State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985), to claim that, because one cannot conspire to commit a substantive crime requiring an unintended result, as it is logically impossible to agree to achieve a specific result unintentionally, it could not, as a matter of law, have been a reasonably foreseeable consequence of the conspiracy in the present case that Taylor would kill Sedor in a reckless and unintentional manner. Put differently, the defendant appears to contend that a reckless crime can never be reasonably foreseeable because it is logically impossible to intend an unintended result.
First, the state does not dispute that it would be improper to allow the jury to find the defendant guilty of burglary if it found that he had entered the apartment not intending to complete a crime therein, but rather intending just to attempt to commit a crime. In other words, the state does not contest that a theory of liability requiring a finding that the defendant intended an unintentional result from his conduct is not cognizable. See State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986) (conspiracy to commit arson in third degree not cognizable because arson requires reckless mental state); State v. Almeda, 189 Conn. 303, 307, 455 A.2d 1326 (1983) (attempted manslaughter not cognizable because not possible to have specific intent to commit unintentional killing), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985); see also State v. Crosswell, 223 Conn. 243, 263, 612 A.2d 1174 (1992) ("persons cannot attempt or conspire to commit an offense that requires an unintended result" [internal quotation marks omitted]). Second, the state does not challenge the defendant's assertion that the trial court did in fact provide such an improper instruction.
" (Citations omitted.) State v. Almeda, 189 Conn. 303, 308, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985).Accordingly, we conclude that conspiracy to commit manslaughter in the first degree with a firearm is not a cognizable crime because it "requires a logical impossibility, namely, that the actor . . . [agree and] intend that an unintended death result."
On the return of the case to this court we concluded that the trial court had not erred by vacating the murder conviction and ordering a new trial as to both the indictment and the information. State v. Almeda, 196 Conn. 507, 508-509, 493 A.2d 890 (1985) (Almeda 11). General Statutes 53a-55 (a)(1) provides: "MANSLAUGHTER IN THE FIRST DEGREE: CLASS B FELONY. (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person."
In support of his contention that the crime of attempted assault of a peace officer is not a cognizable crime in Connecticut, the defendant cites cases that support the proposition that it is a logical impossibility either to attempt or to conspire to achieve an unintentional or reckless result. See State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983) (attempt to commit manslaughter does not exist under Connecticut law because it is not possible to have specific intent to commit an unintentional killing), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985); State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986) (conspiracy to commit arson in third degree not cognizable because arson requires reckless mental state). The defendant's reliance on these cases, however, is inapposite because the underlying crimes in those cases either have dual intent requirements, the intent to engage in the proscribed conduct and the intent to cause a specific result, or, by their language, the harm resulting from the proscribed behavior must be unintentional.
A person cannot attempt to commit a crime which requires that an unintended result occur . . . because it is logically impossible for one to intend to bring about an unintended result." See State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985) (logically impossible to commit crime of attempted involuntary manslaughter because actor would have to intend that unintended death result). Attempted assault in the third degree pursuant to § 53a-61 (a)(3) is not a cognizable offense and is, therefore, not a lesser included offense of attempted assault in the first degree.