State v. Gould

STATE OF CONNECTICUT v. JEFFREY GOULD

AC 35758

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued September 19, 2014

February 17, 2015

Sheldon, Prescott and Schaller, Js.

(Appeal from Superior Court, judicial district of New Britain, Alander, J.)

Glenn W. Falk, 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).

Opinion

SHELDON, J. The principal issue in this appeal is whether the trial court properly disqualified a prospective juror, E.F.,¹ 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.

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."²

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.

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 thatjurors 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 "overzea-lous 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...