State v. Gould ( 2016 )

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STATE v. GOULD—CONCURRENCE
ESPINOSA, J., concurring. I agree with the majority
that the trial court’s exclusion of the prospective juror,
E, on the basis that he was ‘‘not able to speak and
understand the English language’’ within the meaning of
General Statutes § 51-217 (a) (3)1 is subject to harmless
error review. By not addressing the substantive issue
of the propriety of the trial court’s ruling, however,
the majority leaves undisturbed the Appellate Court’s
conclusion, predicated upon an incorrect standard of
review, that the trial court’s ruling was improper. Specif-
ically, the Appellate Court reviewed the trial court’s
factual finding—that E was unable to speak and under-
stand English sufficiently to satisfy the requirements
of § 51-217 (a) (3)—to determine whether there was
sufficient evidence in the record to support it. State v.
Gould, 155 Conn. App. 392, 393, 109 A.3d 968 (2015).
Applying the proper standard of review, by contrast, I
conclude that the trial court’s finding was not clearly
erroneous, and that the court’s exclusion of E on the
basis of that subordinate factual finding did not consti-
tute an abuse of discretion. Accordingly, I concur.
The Appellate Court provided no authority to support
its view that the applicable standard of review of a
trial court’s finding pursuant to § 51-217 (a) (3) that a
prospective juror lacked sufficient proficiency in the
English language is whether that finding has sufficient
‘‘support in the record.’’ State v. Gould, supra, 155 Conn.
App. 393. Nor did the court provide any explanation as
to why it believed that a sufficiency of the evidence
standard of review was appropriate.
I agree with Judge Prescott, who observed in his
concurring opinion at the Appellate Court that ‘‘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 observa-
tions of the juror’s conduct and speech during his or
her voir dire examination, a finding we cannot disturb
unless it is clearly erroneous.’’ Id., 409. A trial court’s
determination regarding a prospective juror’s profi-
ciency in the English language requires the court to
consider any information offered, including the state-
ments of the prospective juror, but most importantly
requires the court to rely on its own observations, simi-
lar to the process by which a fact finder assesses the
credibility of a witness. The present case illustrates this
point. The trial court had the opportunity to hear the
manner in which E spoke, observe his facial expres-
sions and verbal responses to the statements of others,
and note the time it took E to speak and to respond to
others’ statements—all factors that properly entered
into the court’s factual finding as to E’s proficiency in
the English language. These are precisely the types of
observations that are quintessential to the function of
the trial court as fact finder. Given the importance of
the trial court’s reliance on its own observations in
making the determination, the court’s finding must be
affirmed unless it is clearly erroneous.
The stringent, applicable standard of review is con-
trolling in this appeal. ‘‘A finding of fact is clearly errone-
ous when there is no evidence in the record to support
it . . . or when 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.)
State v. Henderson, 307 Conn. 533, 540, 55 A.3d 291(2012). There was evidence in the record to support
the court’s finding that E’s English proficiency did not
meet the standards of § 51-217 (a) (3). For instance,
the court noted that E stated that he understood only
‘‘ ‘most’ ’’ of what the court had stated when addressing
the prospective jurors, and that the court had found it
‘‘ ‘extremely hard’ ’’ to understand E’s speech. (Empha-
sis omitted.) State v. Gould, supra, 155 Conn. App. 410,
412. Additionally, in support of its challenge of E for
cause, the state pointed to E’s questionnaire, in which
he had failed to disclose certain details of his criminal
history, despite having disclosed those details during
voir dire. The state also contended that E’s answers to
questions during voir dire were often not responsive to
the questions that had been asked. The transcript of
the voir dire examination of E provides support for
that contention, which the trial court was entitled to
consider in arriving at its ruling. The following
exchange, which prompted the trial court to first
express concerns regarding E’s proficiency in the
English language, provides but one example:
‘‘[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.’’
Subsequently during voir dire, it became clear that
E had been charged with a drug offense in connection
with the events to which he referred during this collo-
quy. In the above excerpt, however, E cites to this
incident in response to the prosecutor’s question as to
whether he had ever been a victim of a crime. It is
indisputable that the ability to understand the meaning
of the word ‘‘victim’’ is important within the context
of a criminal prosecution. The trial court, therefore,
reasonably could have inferred, on the basis of E’s fail-
ure to provide a responsive answer to the prosecutor’s
question, that there were questions regarding E’s profi-
ciency in the English language.
Of course, the trial court did not have only this single
piece of information before it—there were other
instances during voir dire when E’s answers were not
responsive. Additionally, as I have stated, the trial court
was entitled to rely on its own observations, as well as
the discrepancy between E’s juror questionnaire
responses and his answers during voir dire. That is, the
court properly was required to consider the totality of
the information before it in arriving at its finding that
E had not satisfied the requirements of § 51-217 (a) (3).
Accordingly, it simply cannot be said that there was no
evidence in the record to support the trial court’s find-
ing, and the court was therefore acting within its broad
discretion in granting the state’s motion to exclude E
for cause.
I respectfully concur.
1
General Statutes § 51-217 (a) (3) provides: ‘‘All jurors shall be electors,
or citizens of the United States who are residents of this state having a
permanent place of abode in this state and appear on the list compiled by
the Jury Administrator under subsection (b) of section 51-222a, who have
reached the age of eighteen. A person shall be disqualified to serve as a
juror if such person . . . is not able to speak and understand the English
language . . . .’’