Opinion
No. 35758.
02-17-2015
STATE of Connecticut v. Jeffrey GOULD.
Glenn W. Falk, Madison, assigned counsel, for the appellant (defendant). Tracy L. Denholtz, certified legal intern, with whom were Bruce R. Lockwood, senior assistant state's attorney, and, on the brief, Brian Preleski, state's attorney, for the appellee (state).
Glenn W. Falk, Madison, assigned counsel, for the appellant (defendant).
Tracy L. Denholtz, certified legal intern, with whom were Bruce R. Lockwood, senior assistant state's attorney, and, on the brief, Brian Preleski, state's attorney, for the appellee (state).
SHELDON, PRESCOTT and SCHALLER, Js.
Opinion
SHELDON, J.The principal issue in this appeal is whether the trial court properly disqualified a prospective juror, E.F., on the ground that he lacked sufficient proficiency in spoken English to serve as a juror. The defendant argues on appeal that the trial court, Alander, J., imposed a more stringent English proficiency standard than is required under General Statutes § 51–217(a)(3), improperly disqualifying E.F., a machinist, despite his ability to both speak and understand the English language. As a result of E.F.'s improper disqualification, the defendant claims that the fairness of his trial is called into doubt. We agree with the defendant that the trial court's excusal of E.F. from jury service on the basis of his purported inability to speak English lacks support in the record. The defendant has failed, however, to demonstrate that he suffered any actual prejudice as a result of E.F.'s excusal. Accordingly, we affirm the judgment of the trial court.The following facts and procedural history are relevant to this appeal. The defendant, Jeffrey Gould, was arrested and charged with one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1) in connection with an incident that occurred on the evening of May 11, 2011. The defendant entered a plea of not guilty and elected a jury trial.
We refer to the venireperson by his initials to protect his privacy. 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).
During the course of jury selection, E.F., who identified his ethnicity on his juror questionnaire as “Puerto Rican” and claimed to have attended college, was examined by the state and defense counsel for approximately twenty minutes. Because the defendant's claim centers on E.F.'s English language skills, we devote some attention to his voir dire examination:
“[The Prosecutor]: Good afternoon, [Mr. F.]. How are you?
“[E.F.]: Good.
“[The Prosecutor]: You work as a machinist?
“[E.F.]: Yes.
“[The Prosecutor]: And tell me a little bit about what you do as a machinist?
“[E.F.]: We making parts. The name of the company is.... It's all owned by employees completely. And then we make parts for the machine. The machine is a packing machine, and they go for all United States, and I think they may be going for international.
“[The Prosecutor]: And how long have you been there for?
“[E.F.]: Close to ten years—seven years in the union.
“[The Prosecutor]: And what do you like most about your job?
“[E.F.]: Being a machinist. I've been all around over there, you know, machines. They change me from one department to another when they need me.
“[The Prosecutor]: Okay, if you could have any job in the whole world, what do you think you'd want to do?
“[E.F.]: I stay with what I'm doing now, being a machinist, yeah.
“[The Prosecutor]: And if you—do you have any children?
“[E.F.]: Yes.
“[The Prosecutor]: How many kids do you have?
“[E.F.]: Two.
“[The Prosecutor]: How old?
“[E.F.]: Twenty-seven and eighteen.
“[The Prosecutor]: What do you think the most important values that you are passing on to them?
“[E.F.]: I think, be honest.
“[The Prosecutor]: Okay, and what do you like to do in your free time—any hobbies?
“[E.F.]: Yes, I was a surfer a long time ago. I cannot do it over here. I like animals, dogs, you know. I spend all my time with them.”
Following these preliminary questions, the state questioned E.F. on the subject of his own prior experiences with the criminal justice system:
“[The Prosecutor]: Have you or anyone close to you ever been a victim of a crime?
“[E.F.]: Yes.
“[The Prosecutor]: Are you comfortable telling me a little bit about that?
“[E.F.]: Well, kind of—do you want to hear?
“[The Prosecutor]: If you're comfortable telling me, yeah, sure.
“[E.F.]: 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.F.]: Yes, kind of like that.
“[The Prosecutor]: Okay, and what did he pull on you?
“[E.F.]: 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 something on you. That's it.”
During the course of the state's examination on the subject of E.F.'s prior criminal history, the trial judge interjected and questioned E.F. as follows:
“The Court: If I can just interrupt for a moment? Mr. [F.], English is not your first language, is it?
“[E.F.]: No.
“The Court: Do you have any difficulty understanding English?
“[E.F.]: No.
“The Court: No?
“[E.F.]: 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.F.]: 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.F.]: I think so.
“The Court: Okay, you don't anticipate any problems understanding what people are saying?
“[E.F.]: No, no, in fact I understand what's your point. I got a big accent.
“The Court: Okay.
“[E.F.]: 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 understand English well enough to be a juror. So, you're comfortable doing that and that's fine.
“[E.F.]: Yes, yes.”
A similar exchange took place during defense counsel's examination of E.F.:
“[Defense Counsel]: Okay. I know the judge touched on this a little bit, but is English your first language or not?
“[E.F.]: No, Spanish.
“[Defense Counsel]: But you understand everything I said?
“[E.F.]: Yes, of course.”Subsequent to defense counsel's examination, the state challenged E.F. for cause. The state argued that several of E.F.'s answers were “not actually responsive to the questions that were being asked.” In addition, the state argued that E.F. did not provide full answers on the jury questionnaire with respect to his criminal record, suggesting that he either did not understand the questionnaire, which was printed in English, or that he had failed to fully disclose his criminal history. In the case of the latter, the state argued, he should be disqualified for “not fully noting the extent of what he had on the form.”
The court responded, “[h]ere's the problem I have.... I don't think he can communicate with the other members of the jury. I had an extremely hard time understanding his answers. And while he may understand 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 members 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 understand what he was saying, and I think it's related to English not being his first language.”
Defense counsel objected to the state's challenge, citing as a basis for the objection, inter alia, E.F.'s college background and his stated assurance when asked about his English language skills that he understood English fully. On that score, defense counsel opined that E.F. was in the best position to offer an informed opinion as to whether he was able to communicate in English. With respect to E.F.'s voir dire examination, defense counsel pointed out that E.F. had responded to every question posed to him and seemed “completely functional.” Defense counsel also stated for the record that he had understood everything that E.F. had said other than when he mumbled on occasion. The court replied, “[w]hich was often.... That's part of my point.” Defense counsel pressed further, stating, “[b]ut that doesn't mean if you said, pardon me, you wouldn't be able to hear what he said.” Thereafter, the court excused E.F. for cause on the basis of his “significant language barrier,” which the court suggested would “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 judgment accordingly, sentencing the defendant to a term of twelve years of incarceration with five years of special parole. The defendant appeals from that judgment.
The court did not rule on the state's still pending objection regarding E.F.'s alleged failure to provide certain answers on his juror questionnaire.
I
The defendant argues that the Connecticut statute on the qualification of jurors, § 51–217, does not set a high bar. He contrasts our law, which requires only that jurors be able to “speak and understand” English, with those of other jurisdictions, which impose additional reading and writing requirements to establish proficiency in English. The defendant argues that “overzealous enforcement” of § 51–217(a)(3) is not only legally incorrect, but it tends to create a substantial barrier to jury service in our increasingly diverse society. The defendant further contends that the record does not show that E.F. failed to satisfy the English proficiency requirement set forth in § 51–217(a)(3), but “only that he had more difficulty in speaking than someone for whom English is a first language,” which he claims to be an improper basis for disqualification. We agree.
Our appellate courts have not previously addressed the English proficiency requirement under § 51–217(a)(3), and therefore we begin our analysis by setting forth the elements of § 51–217(a)(3) and considering its application in the jury selection process. Section 51–217(a) sets forth the necessary qualifications of prospective jurors, providing, in relevant part, that “[a] person shall be disqualified to serve as a juror if such person ... (3) is not able to speak and understand the English language....” Jurors must, of course, have the ability to speak and understand English, for that is the language in which American jury trials are conducted. Accordingly, we agree with our sister courts that have considered this issue that “[j]urors must have a reasonable knowledge of the language ... to enable them to perform their duties....” State v. Ji, 251 Kan. 3, 9, 832 P.2d 1176 (1992). Persons who serve on juries must have sufficient language skills to understand the proceedings and resolve the factual issues presented at trial. United States v. Pineda, 743 F.3d 213, 218 (7th Cir.2014).
By contrast, many other jurisdictions require that individuals be able to read, write, and understand the English language with a degree of proficiency sufficient to fill out a jury questionnaire form to serve as a juror. See, e.g., Diaz v. State, 743 A.2d 1166, 1171 (Del.1999) (“all persons are qualified for jury service except those who ... are unable to read, speak, and understand the English language” [internal quotation marks omitted] ); State v. Ji, 251 Kan. 3, 8, 832 P.2d 1176 (1992) (jurors must be able to read and write English); State v. Comeaux, 252 La. 481, 486, 211 So.2d 620 (1968) (“[t]he requirement that a person be able to read and write the English language to be qualified for jury service is a reasonable and nondiscriminatory regulation”); see also United States v. Escobar-de Jesus, 187 F.3d 148, 166 (1st Cir.1999) (requirement “that jurors be able to speak the English language and be able to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form”), cert. denied, 528 U.S. 1176, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000).
Nevertheless, the test of juror eligibility should not be so exacting as to deny citizens their civil right to serve on a jury. Jurors must be able to communicate in English, but it is not necessary that they understand every word in the English language. See Myers v. State, 77 Tex.Crim. 239, 246, 177 S.W. 1167 (1915) (disqualification of naturalized German–American citizen not necessary on ground that juror admitted he might not understand all English words). “[I]f we were to hold as disqualified all citizens who do not understand the meaning of all words in the English language, the list of [persons] qualified to serve on the juries in this State would be quite limited.” Id.
In Connecticut, the voir dire process enables the parties to assess the qualifications of prospective jurors. General Statutes § 54–82f. “The purpose of the voir dire examination [of prospective jurors] is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge.” (Internal quotation marks omitted.) State v. Patterson, 230 Conn. 385, 391, 645 A.2d 535 (1994). For the purposes of determining whether prospective jurors are proficient in English, voir dire examination allows the parties, or in some cases, the court, to ask questions of them and evaluate their communication skills. See Diaz v. State, 743 A.2d 1166, 1170–72 (Del.1999) (expanded voir dire questioning necessary to determine English proficiency of bilingual juror).
General Statutes § 54–82f provides in relevant part: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action....”
In making a determination as to a prospective juror's competence to serve, there are two sets of interests to consider. First, “the interests of the parties, namely, the defendant and the state; and [second] the interests of the prospective jurors.” (Footnote omitted.) State v. Patterson, supra, 230 Conn. at 392, 645 A.2d 535. On the one hand, every person seated as a juror must be legally qualified and well suited to serve based upon his demonstrated willingness and ability to give careful consideration to all of the evidence and to decide the issues presented with complete impartiality. On the other hand, the jury selection process must also honor the right of all qualified citizens to be considered for possible jury service, regardless of their sex, race, color, creed or national origin. “The jury system postulates a conscious duty of participation in the machinery of justice.... One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.” Balzac v. Porto Rico, 258 U.S. 298, 310, 42 S.Ct. 343, 66 L.Ed. 627 (1922) ; see also Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970) ( “[w]hether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise”).
Thus, the trial judge, charged with ruling on challenges for cause, “has significant responsibilities during the voir dire process of a criminal trial.” State v. Patterson, supra, 230 Conn. at 398, 645 A.2d 535. The manner in which the trial court carries out its responsibilities and exercises its discretion depends on the task and the information before it, as elicited by the parties, or if appropriate, by the court. See, e.g., State v. Faust, 237 Conn. 454, 462–63, 678 A.2d 910 (1996) (trial judge's ability to question prospective jurors facilitates its task of excluding from jury any person about whom it entertains doubts regarding impartiality); see also Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (trial judge has duty to conduct hearing to determine if purposeful discrimination has been established); State v. Patterson, supra, at 399, 645 A.2d 535 (trial judge has responsibility of determining proper scope of questioning of venirepersons). To determine whether there is good cause to disqualify a juror on account of his inability to speak and understand English, trial courts must be cognizant of the need to avoid prejudices, conscious and unconscious, that are associated with assessing the English language skills of nonnative speakers. Accordingly, a prospective juror for whom English is a second language should not be disqualified from jury service based upon his imperfect ability to speak English; rather, there must be sufficient information before the court to support a determination that the prospective juror is functionally incapable of carrying out his responsibilities as a juror, which includes being able to follow the court's instructions and the proceedings, and to communicate with fellow jurors during deliberations in a common effort to reach a verdict.
Determining the comprehensibility of nonnative speakers is a “[determination that is] subjective and highly vulnerable to the sways of prejudice.” B. Nguyen, “Accent Discrimination and the Test of Spoken English: A Call for an Objective Assessment of the Comprehensibility of Nonnative Speakers,” 81 Cal. Rev. 1325, 1325 (1993).
In light of the foregoing principles, it is clear that although the trial court is vested with wide discretion as to the manner in which it supervises jury selection and rules on the issues that arise during that process; State v. Esposito, 223 Conn. 299, 310, 613 A.2d 242 (1992) ; it must exercise that discretion in such a manner as to ensure that the disqualification of any juror—and the resulting denial of that person's right to be considered for possible jury service, one of the great rights and responsibilities of all Americans—is not without good cause.
In the present case, the court, in stating its basis for E.F.'s disqualification, did not dispute his ability to understand English, but indicated that it was of the opinion that E.F. would not be able to communicate with other jurors. On the basis of our careful review of the record, we cannot conclude that that determination was supported by the information elicited during the voir dire process. The voir dire transcript demonstrates that E.F. conversed in English at length and answered more than 100 questions posed to him over a period of twenty minutes. Additionally, the follow-up questions that were asked of E.F. by the state and defense counsel were equally responsive to E.F.'s statements, which appears to show that he spoke clearly enough to be understood by both counsel. Finally, although not dispositive, it is telling that the court monitor understood E.F. well enough to produce a full transcript of everything he said on voir dire, with no omissions or ellipses for inaudible or incomprehensible utterances. This result, together with E.F.'s prompt and appropriate responses to the clarifying questions that were asked, make it clear that E.F. spoke English well enough to make himself understood during jury deliberations.We also find it significant that E.F. confirmed for the court and defense counsel that he did not have problems communicating in English. As defense counsel noted in his objection to the state's challenge for cause, the prospective juror is surely in the best position to provide information and offer an opinion with respect to his own communication skills. E.F.'s assurances with respect to his proficiency in English were fully consistent with the information he provided to the court and the parties. In addition, E.F. was able to provide written responses in English on his jury questionnaire.
As noted previously in the discussion of the facts of this case, the court stated: “[W]hile he may understand 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 members of the jury in their deliberations for a verdict because he's extremely difficult to understand.”
During such questioning, E.F. made appropriate responses to questions posed by the state concerning his “impressions” and the “bottom line,” and he also expressed himself in the vernacular, for example, stating at one point that some police officers do their job “by the book....”
The state argues that the voir dire transcript is not a good measure of E.F.'s language skills, contending that it does not reveal the degree of difficulty that the court reporter may have confronted in preparing the transcript. It is clear, however, that in each instance that this court has reviewed claims relating to one's ability to comprehend trial proceedings, albeit in other contexts, we have relied exclusively on the transcript. See State v. Joseph, 150 Conn.App. 867, 872, 93 A.3d 1174 (trial transcript revealed defendant had “a conversational command of the English language” and an understanding of trial proceedings), cert. denied, 314 Conn. 927, 101 A.3d 272 (2014) ; Rodriguez v. Commissioner of Correction, 57 Conn.App. 550, 554, 749 A.2d 657 (2000) (trial court transcript reflected that petitioner had command of English sufficient to enable him to understand testimony against him and to assist his counsel in preparing to cross-examine witnesses).
E.F. acknowledged both that English was not his first language and that he speaks with a “big accent.”
In his voir dire examination, E.F. indicated that he had been employed in Connecticut for approximately ten years.
The state argues that there was a sufficient basis for the court's determination that E.F. was unable to communicate to the degree necessary to perform properly as a juror. In support of its argument, the state scours the record for examples of E.F.'s language deficiencies, citing, for example, his failure to understand the meaning of the term “prosecutor.” Awareness of legal titles, however, is not a prerequisite for jury service. We find equally unconvincing the state's references to excerpted portions of E.F.'s voir dire testimony that, when read in context, do not support the court's finding of a language barrier. Again, as discussed previously, if the prospective juror is able to converse in English, and he is able to respond to questions that are asked, his failure to use every word in its appropriate context is not a sufficient basis for disqualification. See Myers v. State, supra, 77 Tex.Crim. 239, 177 S.W. 1167; cf. Rodriguez v. Commissioner of Correction, 57 Conn.App. 550, 554, 749 A.2d 657 (2000) (language proficiency of petitioner determined on basis of evidence overall).
The state also directs our attention to E.F.'s personal history as further bases for his disqualification, and cites his answers addressing his attitude toward the police, his negative feelings toward defense attorneys, and the victimization of his sister in a prior unrelated assault. Although these issues surely call into question E.F.'s ability to serve impartially—an objection that was not made—the state's detailed inventory of E.F.'s personal history, as provided by him, only further undermines its argument that he was unable to communicate in English.
In the present case, the court predicated E.F.'s disqualification solely on its own difficulty hearing and understanding E.F., and suggested that this difficulty was “related to English not being [E.F.'s] first language.” In light of the statutory requirement, which provides only that the prospective juror be able to speak and understand English, we conclude that the court's stated inability to hear some of E.F.'s answers, on account of his mumbling or his accent, did not support the court's exercise of discretion in disqualifying E.F. because he was functionally incapable of serving as a juror under § 51–217(a)(3). Moreover, in the particular case of a prospective juror, like E.F., who speaks with an accent, if his answers are not immediately understandable, he can simply be asked to explain or clarify his answer, as routinely happens in daily discourse between people of different social, cultural and linguistic backgrounds in our heterogeneous society. “With the large influx of persons of Hispanic origin [and persons of other diverse backgrounds], it can now be expected that many jury venires ... will contain persons who do not use textbook English grammar.” Cook v. State, 542 So.2d 964, 970 (Fla.1989).
In sum, the record does not establish a sufficient basis to disqualify E.F. on the ground that he was unable to “speak and understand the English language....” General Statutes § 51–217(a)(3). The court's inability to hear or understand some of E.F.'s answers was not a disqualifying reason to excuse him under § 51–217(a)(3). Therefore, to excuse E.F. from jury service on that basis constituted an abuse of the court's discretion.II
It remains, however, to be determined if the court's unjustified excusal of E.F. from the defendant's jury constituted a harmful error. To obtain a new trial on the basis of the trial court's erroneous excusal of a potential juror for cause, a defendant must prove that the court's action deprived him of a fair trial before an impartial jury. State v. Connelly, 46 Conn.App. 486, 500, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S.Ct. 245, 142 L.Ed.2d 201 (1998). On the basis of the record before us, we do not find that the defendant has satisfied that burden.
The defendant argues broadly that the trial court's overly strict enforcement of Connecticut's English language proficiency requirement will inevitably result in the wholesale exclusion from jury service of members of ethnic minorities for whom English is a second language. Such systematic exclusions, he claims, will predictably produce juries that are unfair because they fail to represent the entire community. In support of his argument, the defendant directs our attention to Thiel v. Southern Pacific Co., 328 U.S. 217, 221, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), in which the United States Supreme Court reversed a civil judgment on the basis that daily wage earners had been intentionally excluded from the jury lists. The defendant analogizes his case to Thiel, arguing that by enforcing the English language proficiency requirement in such a manner as to cause such exclusions, the court undermines the perception of fairness among members of the excluded groups that is necessary for the proper functioning of our criminal justice system. Urging this court to consider those negative impacts on the administration of justice as the most significant harms resulting from the trial court's method of enforcing the English language proficiency requirement with respect to E.F., the defendant seeks a new trial without offering any proof of the particular impact of E.F.'s excusal on the fairness and impartiality of his own jury.
There are two basic reasons why the defendant's broad claim of prejudice must be rejected. First, it ignores the established test for prejudice, as announced in State v. Connelly, supra, 46 Conn.App. 486, 700 A.2d 694, which focuses solely on the impact of the challenged exclusion on the fairness and impartiality of the defendant's own jury. Second, it presupposes without evidence that the court took the same flawed approach to enforcing the English language proficiency requirement it used with respect to E.F. when reviewing the qualifications of all other members of the defendant's jury panel. In the present case, however, unlike Thiel, there is no evidence of a systematic exclusion of a particular class of juror. Had the court used the same approach to assess the English language proficiency of other prospective jurors for whom English was a second language, then its cumulative rulings, if they broadly excluded such persons from jury service, could be evaluated for their resulting impact on the makeup and representative quality of the defendant's jury. No claim to that effect has been made here, however, nor is any such claim supported by the record before us. Therefore, the court's isolated ruling as to E.F. has not been shown to have caused or risked causing the sort of systemic prejudice of which the defendant here complains, any more than it has been shown to have compromised the defendant's right to a fair trial before an impartial jury.For the foregoing reasons, although we find that the trial court abused its discretion by excusing E.F., we conclude that the defendant's conviction must be affirmed on the ground that the defendant has failed to prove that the challenged excusal deprived him of a fair trial before an impartial jury.
By contrast, in Thiel, both the clerk of the court and the jury commissioner testified that they intentionally excluded from the jury lists all daily wage earners. In addition, it was shown that any prospective juror called into court who worked as a day laborer was excused from service on the basis of hardship. It was this “blanket exclusion of all daily wage earners” that was determined to have “undermine[d] and weaken [ed] the institution of jury trial.” Thiel v. Southern Pacific Co., supra, 328 U.S. at 224, 66 S.Ct. 984.
The judgment is affirmed.
In this opinion SCHALLER, J., concurred.
PRESCOTT, J., concurring in the result.
Although I share 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, I respectfully disagree with the majority's conclusion that the trial court abused its wide discretion by excusing E.F. from serving on the jury on the ground that he could not speak English with the proficiency necessary to competently serve as a juror. Accordingly, I would affirm the judgment of the trial court and find it unnecessary to reach the issue of whether the defendant, Jeffrey Gould, was prejudiced by the court's disqualification of E.F.
My disagreement with the majority primarily stems from two basic principles, both of which I believe are contravened by the analysis employed by the majority. First, the majority virtually ignores or, at most, pays lip service to, the long established, highly deferential standard of review regarding a trial court's determination regarding a juror's competence to serve. Second, a trial court's determination that a prospective juror is unable to speak and understand English well enough to satisfy the requirements of General Statutes § 51–217(a)(3) constitutes a finding of fact that rests on the court's personal observations of the juror's conduct and speech during his or her voir dire examination, a finding we cannot disturb unless it is clearly erroneous. Without the opportunity personally to see and listen to the prospective juror, the majority itself draws factual inferences and assumptions that are not justified by the cold record or any findings of fact made by the trial court. Instead, it has substituted its judgment that the juror speaks English well enough to communicate effectively with other jurors during the deliberation process for the judgment of the trial court, which was in the most advantageous seat to make this determination.
In light of my disagreement with the majority regarding the evidentiary record, I find it necessary, at the outset, to set forth the following procedural history and facts. The court assembled a venire panel for jury selection. E.F., a Hispanic male and member of the panel, underwent voir dire examination by counsel for both the state and the defendant. During the prosecutor's examination, the following colloquy occurred between the court and E.F.:
“The Court: If I can just interrupt for a moment? Mr. [F.], English is not your first language, is it?
“[E.F.]: No.
“The Court: Do you have any difficulty understanding English?
“[E.F.]: No.
“The Court: No?
“[E.F.]: 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.F.]: 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.F.]: I think so.
“The Court: Okay, you don't anticipate any problems understanding what people are saying?
“[E.F.]: No, no, in fact I understand what's your point. I got a big accent.
“The Court: Okay.
“[E.F.]: 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 understand English well enough to be a juror. So, you're comfortable doing that and that's fine.
“[E.F.]: Yes, yes.”
The court then permitted the state to resume its questioning.
Following the parties' respective examinations, the state challenged E.F. for cause, arguing that he could not speak and understand English well enough to serve as a juror. Specifically, the state argued that a number of E.F.'s answers were not responsive to the questions posed to him. The state also asserted that E.F. had omitted pertinent details from the section of his juror questionnaire seeking disclosure of any criminal history, despite having fully disclosed those details during the state's voir dire examination. This apparent inconsistency, the state suggested, was possibly attributable to the questionnaire not being written in Spanish. The defendant objected to the state's challenge for cause, arguing that E.F. had answered every question posed to him, as well as affirmed that he understood everything occurring in the courtroom. The court, however, disagreed. It stated: “I had an extremely hard time understanding his answers.... I have real concerns about in a jury room whether he's going to be able to fully participate with the other members 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 understand what he 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 substantial one.... I think he has a significant language barrier that will prevent him from fully participating as a juror in this case.” (Emphasis added.) When defense counsel responded that he found E.F. to be unintelligible only when he “mumbled,” the court remarked that part of its point was that E.F. mumbled often. Accordingly, the court granted the state's challenge for cause.
E.F.'s juror questionnaire was not made part of the record on appeal.
The state further contended that to the extent that E.F.'s omissions on his juror questionnaire were not attributable to his lack of proficiency in English, he was still subject to disqualification for failing to fully complete the questionnaire.
On appeal, the defendant claims that the court utilized an excessively stringent standard in determining that E.F. did not speak English well enough to serve on the jury. He asserts that E.F. was comprehensible both to defense counsel and the court monitor, the latter of whom was able to prepare an accurate transcript of E.F.'s voir dire examination. The defendant additionally argues that the trial court could have managed any language barrier impairing E.F.'s service as a juror by providing him with an interpreter, asking him to “speak up,” or advising other jurors to “listen carefully to each other....”
The defendant also claims that E.F.'s excusal from the jury panel constituted discrimination against E.F. in the exercise or enjoyment of his civil or political rights because of his race, ancestry, and national origin, in violation of article first, § 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments. Although I acknowledge that “jurors have a separate and independent interest in participating in the trial process, and that the defendant has third party standing to assert that interest”; State v. Patterson, 230 Conn. 385, 393, 645 A.2d 535 (1994) ; the defendant has devoted, in his main brief, only a single paragraph devoid of citation to any legal authority or analysis to his constitutional claim. “It is well settled that [w]e are not required to review claims that are inadequately briefed.... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.... [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.... [A]ssignments of error [that] are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Clelford v. Bristol, 150 Conn.App. 229, 233, 90 A.3d 998 (2014). Accordingly, I deem this claim abandoned, and do not review it.
Additionally, it is prudent to note, so as to avoid any confusion about the nature of the defendant's claims, that the defendant has not claimed that the prosecutor improperly challenged E.F. on the basis of his race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
--------
The state argues that the court properly granted the prosecutor's challenge for cause because E.F. demonstrated, through various confusing and contradictory answers, that he could not speak and understand English with the proficiency required to serve as a juror. It further contends that the court was not required to provide any of the accommodations claimed by the defendant. Finally, the state argues that even if E.F. was improperly excused from the jury panel, the court's error was harmless because the defendant has failed to demonstrate that he suffered any actual prejudice. I agree with the state that the court's factual findings regarding E.F.'s ability to speak and understand English were not clearly erroneous and that the court did not abuse its wide discretion by granting the prosecutor's challenge for cause. I additionally conclude that the court was not required to provide the accommodations to E.F. claimed by the defendant.
I begin by setting forth the highly deferential standard of review, which the majority mentions only briefly in its opinion. “The trial court is vested with wide discretion in determining the competency of jurors to serve.” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 772–73, 970 A.2d 108 (2009). “[A] ruling of the trial judge in the course of a voir dire examination is held to be reversible error only [if] the judge has clearly abused his discretion or harmful prejudice appears to have resulted.” (Emphasis added; internal quotation marks omitted.) State v. Ziel, 197 Conn. 60, 65, 495 A.2d 1050 (1985). “A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of cause.” (Internal quotation marks omitted.) State v. Diaz, 94 Conn.App. 582, 588, 893 A.2d 495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006).
“The [appellate] court's function is not to determine if the trial court could have reached a conclusion other than the one reached but whether the court could reasonably have reached the conclusion it did. An appellate court should guard against substituting its own interpretation of the evidence on the cold record for that of the trial court on the live record. A finding cannot be rejected just because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the factfinder.... In deciding whether the trial court could reasonably conclude as it did, we must follow the unquestioned rule that great weight is due the action of the trial court and every reasonable presumption should be allowed in favor of the correctness of its action.... The wide latitude we accord to trial court decisions is especially applicable in cases ... where the meaning of spoken words cannot easily be gleaned from transcript pages. We were not present at the hearings and therefore cannot appreciate the true flavor of those proceedings. We will defer to the trial court's broad discretion in such matters.” (Citations omitted; emphasis added; internal quotation marks omitted.) Hill v. Hill, 35 Conn.App. 160, 166–67, 644 A.2d 951, cert. denied, 231 Conn. 914, 648 A.2d 153, cert. denied, 513 U.S. 1059, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994).
“In Connecticut, the disqualification of a juror may be based upon the General Statutes or upon the rules of the common law.” (Internal quotation marks omitted.) Morgan v. St. Francis Hospital & Medical Center, 216 Conn. 621, 623, 583 A.2d 630 (1990). Section 51–217(a)(3) provides that “[a] person shall be disqualified to serve as a juror if such person ... is not able to speak and understand the English language....”
Neither our Supreme Court nor this court has yet had occasion to address the precise level of English proficiency that a prospective juror must demonstrate to satisfy the requirements of § 51–217(a)(3). I agree with our sister states, however, that all jurors must have mastered the English language to the degree necessary to perform the essential duties of their position. See State v. Ji, 251 Kan. 3, 9, 832 P.2d 1176 (1992) (“[j]urors must have a reasonable knowledge of the language in which the proceedings are conducted to enable them to perform their duties”). This does not mean, of course, that jurors must understand every word used during trial, or speak with perfect diction and grammar. See Myers v. State, 77 Tex.Crim. 239, 246, 177 S.W. 1167 (1915) (“if we were to hold as disqualified all citizens who do not understand the meaning of all words in the English language, the list of [persons] qualified to serve on the juries in this State would be quite limited”); see also Perkins v. Komarnyckyj, 172 Ariz. 115, 120, 834 P.2d 1260 (1992) (“[j]urors are often unfamiliar with correct legal terminology and may even be guilty of improper grammar or usage”). But their ability to speak and understand English must rise to a level that allows them to, “[a]t a minimum ... understand all of the evidence presented, evaluate that evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court.” People v. Guzman, 76 N.Y.2d 1, 5, 555 N.E.2d 259, 556 N.Y.S.2d 7 (1990) ; see United States v. Pineda, 743 F.3d 213, 217 (7th Cir.2014) ( “English language proficiency is essential for a juror to comprehend the issues presented at trial, assess the evidence, and come to an independent judgment”). “Insufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly would render a juror unable to perform his duty....” (Internal quotation marks omitted.) People v. Szymanski, 109 Cal.App.4th 1126, 1131, 135 Cal.Rptr.2d 691 (2003).
Significantly, a trial court's determination that a prospective juror is unable to speak and understand English well enough to satisfy the requirements of § 51–217(a)(3) constitutes a finding of fact that rests on the court's personal observations of the juror's conduct and speech during his or her voir dire examination. We will not disturb that finding unless it is clearly erroneous. See State v. Krijger, 313 Conn. 434, 446, 97 A.3d 946 (2014) ( “[o]rdinarily, a jury or trial court's findings of fact are not to be overturned on appeal unless they are clearly erroneous” [internal quotation marks omitted] ). “A finding of fact is clearly erroneous [if] there is no evidence in the record to support it ... or [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id.
Accordingly, to prevail in his claim on appeal, the defendant must either establish that there was no evidence in the record to support the court's finding that E.F. was unable to speak English with the skill necessary to satisfy the requirements of § 51–217, or leave us with the definite and firm conviction that a mistake has been made. Having reviewed the transcripts of E.F.'s voir dire examination, I agree with the state that, contrary to the defendant's claim and the majority's conclusion, there was evidence in the record to support the court's finding. Furthermore, I cannot conclude with a definite and firm conviction that a mistake has been made.
The court's determination that E.F. lacked sufficient English language skills to meet the requirements of § 51–217(a)(3) is first supported by its difficulty comprehending him during voir dire. The court expressed this to the parties no less than three times following their examinations, stating specifically that it had an “extremely hard time understanding [E.F.'s] answers,” that E.F. was “extremely difficult to understand,” and that there were “numerous times ... where [the court] did not understand what [E.F.] was saying....” Defense counsel, too, conceded that E.F.'s “mumbling” made him difficult to comprehend at times, prompting the court to note that he mumbled “often,” which was “part of [the court's] point.”
Both our Supreme Court and this court have consistently recognized that “a trial court is in the best position to observe the demeanor of the parties, witnesses, jurors and others who appear before it.” Hurley v. Heart Physicians, P.C., 298 Conn. 371, 396, 3 A.3d 892 (2010) ; see State v. Anderson, 255 Conn. 425, 437, 773 A.2d 287 (2001) (“[t]he trial court ... was in the best position to assess the credibility of the jurors”); State v. Newsome, 238 Conn. 588, 631, 682 A.2d 972 (1996) (“the trial court ... is in the best position to assess the testimony of those on the jury panel” [internal quotation marks omitted] ); State v. Villanueva, 44 Conn.App. 457, 463, 689 A.2d 1141 (“[t]he trial court was in the best position to observe the demeanor of the jurors”), cert. denied, 240 Conn. 930, 693 A.2d 302 (1997). Accordingly, I defer to the court's direct observations of E.F.'s speech during voir dire and conclude that those observations provide strong factual support for its finding that E.F. could not speak English with the proficiency necessary to fully participate as a juror throughout the defendant's case. At the very least, I cannot conclude, as the majority appears to implicitly decide, that there is “no evidence” to support the court's factual conclusion regarding E.F.'s English proficiency.
In addition to the court's personal observations of E.F., I agree with the state that E.F.'s responses to various questions during voir dire, although not specifically referred to by the trial court as a basis for its ruling granting the state's challenge for cause, provide further support for its finding. E.F.'s answers were, at times, inconsistent and suggested that he had difficulty either understanding the questions posed to him or formulating appropriate responses to them. For instance, when he was asked by the state if the prosecutor in his previous criminal case had treated him fairly, E.F. responded, “[t]he one that was my lawyer, yes,” thus suggesting that he either did not understand the state's question or could not make the critical distinction between his own lawyer and the prosecutor. When defense counsel asked E.F. if he could give the state a fair trial, E.F. responded by saying, “[n]o,” but then explained his answer as if he had actually answered affirmatively. Finally, when asked if he would hold his personal feelings toward his previous attorney against defense counsel, E.F. had difficulty providing a clear yes or no response, instead stating: “Yeah, so as I do—I cannot be fair with you.” I conclude that these exchanges, although comprising only a small portion of E.F.'s total voir dire examination, were evidence to support the trial court's finding that E.F. could not speak English with the skill needed to carry out his duties as a juror.
Last, I note that E.F. himself tacitly conceded that he had difficulty comprehending all of the court's instructions. As previously discussed, the court specifically asked E.F. during the prosecutor's examination if he understood everything said during the court's initial remarks. E.F.'s answer, “[m]ost of it, yeah, most of it,” was, as the court recognized, a valid cause for concern. Although focusing on E.F.'s inability to speak English well enough to serve as a juror, the court also expressed significant concern about E.F.'s ability to understand English. Thus, even though it did not explicitly base its decision to excuse him on that ground, it is apparent from my review of the record that this concern factored into the court's decision to exercise its wide discretion in excusing the prospective juror for cause. Both the defendant and the state are entitled to a jury fully capable of comprehending the court's legal instructions. E.F.'s seemingly equivocal response to the court's inquiry called into question his ability to understand those instructions and, consequently, provided an additional basis for the court to conclude that a substantial language barrier impaired his ability to communicate with other jurors and, consequently, fully participate in jury deliberations.
The majority opinion conclusion that the court's finding regarding E.F.'s English proficiency “lacks support in the record” is in part based on its view that both defense counsel and the court monitor, the latter of whom created a lengthy transcript of the proceedings, were able to hear and understand E.F. There are several fundamental flaws with this reasoning. First, the majority fails to explain why the opinion of the defendant's counsel regarding E.F.'s English speaking ability is entitled to more evidentiary weight over the court's specific factual finding (as well as the prosecutor's contrary opinion) that he was “extremely difficult to understand” “numerous times....” Moreover, counsel for the defendant conceded that E.F. was at times difficult to understand.
Second, the court monitor did not testify or otherwise make any statements during the voir dire proceedings with regard to E.F.'s comprehensibility, and the transcript of the proceedings itself, as the state notes, gives no indication of the court monitor's difficulty or lack of difficulty in preparing it. Although the transcript does not contain ellipses for inaudible or incomprehensible utterances by E.F., we have no way of knowing how many times the court monitor had to replay portions of the recording to ascertain what E.F. had said or ultimately how successful he or she was in transcribing accurately all of E.F.'s statements. The transcript also does not tell us, as the majority suggests it does, how promptly E.F. responded to questions.
Moreover, even if the transcript, upon first impression, failed to highlight any obvious impairments in E.F.'s speech or English comprehension, that fact would not, by itself, operate to negate the trial court's express findings to the contrary. We are mindful that “firsthand observations ordinarily are a more reliable way to make the factual determinations required of the trial judge during criminal voir dire.... A transcript or tape cassette will not fully capture all of the nuances, such as facial expressions or bodily movements, that might appropriately be relevant in making those determinations.” State v. Patterson, 230 Conn. 385, 399, 645 A.2d 535 (1994). Thus, I disagree with the defendant that, taken together or alone, defense counsel's opinion that he found E.F. to be comprehensible or the court monitor's transcript of the proceedings is a sufficient basis from which to conclude that the court's finding is clearly erroneous.
The majority also concludes, as the defendant has argued, that E.F. should not have been excused because he could have simply been asked to “speak up,” or clarify his answers, “as routinely happens in daily discourse between people of different social, cultural and linguistic backgrounds in our heterogeneous society.” I do not agree. E.F.'s difficulties with English consisted of more than a simple failure to speak loudly or clearly enough to be heard. As previously discussed, the answers he provided indicated that he did not fully comprehend the questions posed to him, or, alternatively, could not articulate sufficiently clear responses to them. Although it follows that instructing E.F. to speak more loudly or clearly may have made him easier to hear, it does not follow that it would have improved his ability to communicate sufficiently to be a meaningful participant in jury deliberations. Given the court's conclusion, based on personal observation, that E.F. was “extremely difficult to understand” “numerous times,” it was certainly reasonable to conclude that during jury deliberations, when the court is not present, the communication issues could not be rectified by other jurors simply asking him to speak up or clarify himself. Indeed, it is equally plausible that other jurors might become frustrated with the communication issues with E.F., thereby resulting in a less than robust deliberative process in which all jurors take into account the expressed views of the others.I also find the defendant's assertion that the court “considered no accommodations” such as an interpreter for E.F. or an instruction to other jurors to “listen carefully to each other” to be without support in the record. Although the court did not make any statements during the voir dire proceeding indicating what steps, if any, it considered taking to mitigate its concerns about E.F.'s English skills, I cannot infer from its silence that it did not give thoughtful consideration to the matter. The defendant's silence, on the other hand, I find significant. I question how the defendant can fairly fault the court for not providing accommodations to E.F. that not even the defendant considered of sufficient benefit or importance to request. In any event, I conclude, for reasons I now discuss, that the court was not required to provide the defendant's proposed accommodations.
The defendant cites no authority for the proposition that a trial court must provide a non-English speaking juror with an interpreter. Section 51–217 imposes no such obligation, and, indeed, the statutory prescription that jurors speak and understand English would be rendered superfluous if every prospective juror who failed to satisfy the statute was provided with an interpreter.
Moreover, requiring trial courts to provide every non-English speaking juror with an interpreter would impose a substantial financial burden on the state and disrupt jury deliberations. In fact, our Supreme Court has recognized that avoiding these complications is one of the legitimate state interests underlying the English language proficiency requirement set forth in § 51–217(a)(3). See State v. Gibbs, 254 Conn. 578, 599, 758 A.2d 327 (2000) ( “[t]he enormous additional 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, certainly represents a compelling state interest”).
In sum, a searching review of the record reveals that the court's finding that E.F. was unable to speak English well enough to satisfy the requirements of § 51–217(a)(3) has factual support, including the court's opportunity to directly observe and listen to E.F. Accordingly, that finding was not clearly erroneous, and the court did not abuse its wide discretion in granting the state's challenge for cause. Thus, I would affirm the judgment of the trial court and find it unnecessary to reach the question of lack of prejudice, upon which the majority has affirmed the judgment.
I therefore respectfully concur in the result.