State v. Benedict ( 2015 )

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STATE OF CONNECTICUT v. ADAM BENEDICT
(AC 32484)
Sheldon, Mullins and Schaller, Js.
Argued March 10—officially released July 21, 2015
(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
William J. Ward, with whom, on the brief, was Wil-
liam F. Gallagher, for the appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and David R. Shannon, senior assistant state’s
attorney, for the appellee (state).
Opinion
SCHALLER, J. This case returns to this court follow-
ing a remand from our Supreme Court. The defendant,
Adam Benedict, was convicted of one count of sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a (a) (6).1 In State v. Benedict, 136 Conn.
App. 36, 50, 43 A.3d 772 (2012), rev’d, 313 Conn. 494,
98 A.3d 42 (2014), we reversed the judgment of convic-
tion and remanded the case for a new trial as a result
of our conclusion that the trial court had ‘‘deprived the
defendant of any meaningful opportunity to gain the
benefit of an inference adverse to the complainant’s
credibility based on the pendency of her criminal
charge.’’2 We further concluded that the state had failed
to establish that this error was harmless beyond a rea-
sonable doubt. Id., 51. Finally, we determined, in antici-
pation of the same issue again arising on retrial, that
the court had abused its discretion in admitting into
evidence the defendant’s login identification for a social
media website (login identification). Id., 54.
Our Supreme Court reversed our determination that
the defendant’s right to confrontation had been vio-
lated. State v. Benedict, 313 Conn. 494, 510, 98 A.3d 42
(2014). It remanded the case back to this court with
instruction to consider the defendant’s other claims on
appeal, including whether the defendant had estab-
lished harm as a result of the erroneous admission of
the login identification.3 Id., 515.
In this appeal, the defendant claims that (1) the trial
court violated his state and federal constitutional rights
to a fair trial by denying his challenge for cause to
a venireperson and his request for a continuance to
investigate and potentially to challenge the jury array,
and (2) he suffered harm as a result of the court’s
erroneous ruling regarding the login identification. We
are not persuaded by the defendant’s claims and, there-
fore, affirm the judgment of the trial court.
Our Supreme Court set forth the following facts in
its opinion. ‘‘At all relevant times, the complainant was
a seventeen year old senior at Litchfield High School,
and the defendant was a substitute teacher and athletic
coach at that school. The defendant first contacted the
complainant outside of school in January or February,
2007. A week or two later, the defendant called the
complainant while she was visiting a friend’s residence
and offered to pick her up. The complainant agreed.
When the defendant and his friend arrived at the . . .
residence [where the complainant was visiting], the
defendant appeared to be intoxicated. After the defen-
dant’s friend drove the defendant and the complainant
to the defendant’s residence, the friend departed. Upon
entering the defendant’s residence, the complainant fol-
lowed him into his bedroom, where he kissed her, took
off her shirt, kissed her chest and sucked on her breasts.
Then the defendant, still clothed, rubbed his genital
region against the complainant’s leg and requested that
she allow him to ejaculate on her breasts or face. There-
after, the defendant exposed his penis and requested
that the complainant perform fellatio on him. When the
complainant refused, the defendant returned his penis
to his pants and continued rubbing his genital region
against her leg until he ejaculated. After changing his
clothing, the defendant lay down on the bed with the
complainant, kissed her, squeezed her breasts and fell
asleep. The complainant remained at the defendant’s
residence until the following morning.
‘‘After her graduation from high school, in June or
July, 2007, the complainant, accompanied by her boy-
friend and another female complainant, went to the
state police barracks in Litchfield to file a complaint
against the defendant. On the basis of that complaint,
the defendant was later arrested and charged with three
counts of sexual assault in the fourth degree in violation
of § 53a–73a (a) (6).4 Two counts related to separate
alleged incidents involving sexual contact between the
defendant and the complainant, and one count related
to a third alleged incident involving sexual contact
between the defendant and the other female complain-
ant.’’ (Footnote added; internal quotation marks omit-
ted.) Id. 497–98. Following his conviction, the trial court
sentenced the defendant to one year incarceration, exe-
cution suspended after ninety days, and three years of
probation with special conditions. State v. Benedict,
supra, 136 Conn. App. 40. The defendant’s appeal
followed.
As instructed by our Supreme Court, we now con-
sider the defendant’s claim that his constitutional rights
to a fair trial were violated as a result of the trial court’s
denials of his challenge for cause to a venireperson and
his request for a continuance to challenge the jury array.
We also address the defendant’s claim that the improper
admission of his login identification into evidence con-
stituted harmful error. We affirm the judgment of con-
viction.
I
The defendant first claims that the court improperly
violated his state and federal constitutional rights5 to
a fair trial by denying his challenge for cause to a venire-
person and his request for a continuance to challenge
the jury array. As to the former claim, the defendant
argues that the court should have excused J.J., a police
officer who had a connection with the law enforcement
agency that had investigated the defendant sufficient
to constitute a principal challenge, on the basis of which
the disqualification of J.J. was required.6 As to the latter
claim, the defendant contends that the court abused its
discretion by denying a continuance so that he could
have investigated whether a disproportionate number
of the members of the array had connections to law
enforcement agencies. We disagree with both claims.
As a preliminary matter, we set forth certain relevant
legal principles that guide the resolution of the defen-
dant’s two claims regarding the makeup of the jury.
‘‘Our jurisprudence on the issue of the right to an impar-
tial jury is well settled. Jury impartiality is a core
requirement of the right to trial by jury guaranteed by
the constitution of Connecticut, article first, § 8, and
by the sixth amendment to the United States constitu-
tion. . . . The modern jury is regarded as an institution
in our justice system that determines the case solely
on the basis of the evidence and arguments given [it]
in the adversary arena after proper instructions on the
law by the court. . . . [Article first, § 8, and the sixth
amendment require] that a criminal defendant be given
a fair trial before an . . . unprejudiced jury . . . .’’
(Footnotes omitted; internal quotation marks omitted.)
State v. Roman, 262 Conn. 718, 725–26, 817 A.2d 100
(2003); see also State v. Kamel, 115 Conn. App. 338,
343, 972 A.2d 780 (2009). Put another way, ‘‘[t]he right
to jury trial guarantees to the criminally accused a fair
trial by a panel of impartial, indifferent jurors.’’ (Internal
quotation mark omitted.) State v. Ziel, 197 Conn 60, 64,
495 A.2d 1050 (1985). Guided by these principles, we
turn to the defendant’s specific claims.
A
The defendant first claims that the court should have
excused J.J., a police officer who had a connection with
the law enforcement agency that had investigated the
defendant sufficient to constitute a principal challenge.
He further contends that because a principal challenge
existed, the disqualification of J.J. was presumed.7 The
state counters that the defendant failed to sustain his
burden of proving that a sufficiently close relationship
existed to support the principal challenge. We agree
with the state.
The following facts are necessary for our resolution
of this claim. Near the end of the first day of jury selec-
tion, and after the defendant had used his final preemp-
tory challenge,8 J.J. appeared for voir dire examination.
He testified that he was employed as a police officer
in Southbury and indicated that he could not think of
any reason that he could not be fair and impartial in
this criminal case. He informed the court that he had
been a police officer for almost four years and that
prior to that he had worked in sales.
The prosecutor then questioned J.J. and asked if
municipal police officers did ‘‘not like’’ state police
troopers and if he had a bias against state troopers. J.J.
responded: ‘‘No. I don’t think so. Also, in Southbury,
my boss . . . is a state trooper.’’9 J.J. then indicated
that in Southbury, there were twenty-six police officers
and one state trooper.
Defense counsel then questioned J.J., and the follow-
ing colloquy ensued:
‘‘Q. I wasn’t nervous until I saw that you were a police
officer. That doesn’t give me some reason to be nervous,
now? I mean, you understand we’re the defendant in
this case. My client’s been arrested by the state police
and you work, or your immediate boss works for the
state police. I guess the question is, do I have a reason
to be nervous? I mean, you work for the state police.
You said that. Is that correct?
‘‘A. I work under the state police. Yes.
‘‘Q. Right.
‘‘A. That’s correct.
‘‘Q. And it was a state police that arrested him.
‘‘A. Okay.
‘‘Q. So, I mean. Is he sitting at any disadvantage at
all with you because of that as we sit here?
‘‘A. I say, no. He’s not.
‘‘Q. Absolutely not?
‘‘A. No.
‘‘Q. All right.
‘‘A. I have no opinion about this whatsoever.
‘‘Q. Okay.
‘‘A. I have no opinion about anything I’ve heard so
far.’’
J.J. indicated that he would not give any state trooper
who testified any more credibility than the defendant.
Defense counsel then identified by name the state troop-
ers who would be testifying, and J.J. denied knowing
any of them.
Defense counsel then challenged J.J. for cause. He
argued as follows: ‘‘He works for the very department
that investigated this crime. He works for the state
police department. He said he works under the state
police. The state police are the ones who investigated
it. They are the ones who arrested [the defendant]. And
regardless of the fact that he can put it aside, he works
for them. So, essentially, he works for the very people
who are going to be testifying.’’ The prosecutor coun-
tered that J.J. was employed by the town of Southbury
and not the state police. Defense counsel stressed that
his challenge was not because J.J. was a police officer,
but was because he was a police officer who worked
under the state police. The prosecutor noted that the
state trooper who worked in Southbury was not in
the same troop as the state troopers involved in the
investigation of this case. The court, noting that J.J.
did not know any of the state troopers involved, even
remotely, denied the defendant’s challenge for cause.
The next day, defense counsel iterated his objection
to J.J. Specifically, he argued that it was ‘‘far-fetched’’
to think that a police officer of less than four years
would feel free to acquit the defendant and that ‘‘[t]he
razzing [J.J.] would get when he returns to that depart-
ment if [the jury] come[s] back with a not guilty verdict
would jeopardize his continued employment . . . .’’
Defense counsel also speculated that J.J. might, at some
point, encounter one of the state troopers involved in
this case. After hearing further argument from the par-
ties, the court denied the defendant’s renewed chal-
lenge to remove J.J. for cause.
The defendant raised only a common-law principal
challenge to J.J. See, e.g., Morgan v. St. Francis Hospi-
tal & Medical Center, 216 Conn. 621, 623, 583 A.2d
630 (1990) (disqualification of juror may be based on
General Statutes or common law); McCarten v. Con-
necticut Co., 103 Conn. 537, 542, 131 A. 505 (1925)
(common-law challenge for cause either principal chal-
lenge or challenge to favor). ‘‘A principal challenge may
arise when the connection between the prospective
juror and either party is of so close a nature that, when
the facts concerning the relationship or interest are
proven or when the prospective juror has formed or
expressed an opinion on the question at issue, the dis-
qualification is conclusively presumed.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Esposito, 223 Conn. 299, 330, 613 A.2d 242 (1992); State
v. Rigual, 256 Conn. 1, 22–23 n.4, 771 A.2d 939 (2001);
Morgan v. St. Francis Hospital & Medical Center,
supra, 624 (principal challenge for cause is for absolute
disqualification or bias); see also Johnson v. New Brit-
ain General Hospital, 203 Conn. 570, 581, 525 A.2d
1319 (1987).10
This court has ruled that a principal challenge must
be granted when there is an ‘‘inextricably close relation-
ship’’ between that potential juror and a party. State v.
Jones, 51 Conn. App. 126, 132, 721 A.2d 903 (1998), cert.
denied, 247 Conn. 958, 723 A.2d 814 (1999). Such a
relationship exists when, for example, ‘‘the juror is
related to either of the parties, has been an arbitrator
on either side, has an interest in the case . . . where
he has been bribed, or has been a juror in the same
cause, or is the party’s master, servant, steward, attor-
ney, landlord, or tenant’’; where such a relationship
is established, the ‘‘juror must be excused.’’ (Internal
quotation marks omitted.) State v. Griffin, 251 Conn.
671, 693, 741 A.2d 913 (1999); State v. Rigual, supra,
256 Conn. 23 n.4; State v. Esposito, supra, 223 Conn. 309
n.7. The defendant claims that his principal challenge
should have been granted due to the inextricably close
relationship between the challenged venireperson and
the state police.
Finally, we set forth our standard of review. As a
general matter, ‘‘[t]he trial court is vested with wide
discretion in determining the competency of jurors to
serve, and that judgment will not be disturbed absent
a showing of an abuse of discretion. . . . In exercising
this discretion the trial court must zealously protect
the rights of the accused.’’ (Citation omitted; internal
quotation marks omitted.) State v. Esposito, supra, 223
Conn. 310; see also Morgan v. St. Francis Hospital &
Medical Center, supra, 216 Conn. 625. It is the defen-
dant’s burden, however, to raise his claim from ‘‘the
realm of speculation to the realm of fact.’’ (Internal
quotation marks omitted.) Morgan v. St. Francis Hospi-
tal & Medical Center, supra, 626; Johnson v. New Brit-
ain General Hospital, supra, 203 Conn. 582. In the
present case, however, the dispositive question is
whether the court improperly failed to find that a mas-
ter-servant relationship existed between J.J. and the
state police. That determination presents a factual ques-
tion. See State v. Esposito, supra, 309 (principal chal-
lenge arises when relationship between prospective
juror and party is proven). We review the court’s finding
that a master-servant relationship did not exist under
the clearly erroneous standard. See State v. Santiago,
252 Conn. 635, 640, 748 A.2d 293, (2000) (factual findings
reviewed under clearly erroneous standard).
The defendant argues that J.J. had ‘‘some professional
tie or relationship’’ with the state police, the law
enforcement agency that had investigated the criminal
conduct in this case. He acknowledged in his appellate
brief that the nature and extent of this connection was
‘‘not entirely clear.’’ Nevertheless, he maintains that
the connection between J.J. and the state police was
sufficient to warrant J.J.’s removal for cause from the
jury. We disagree.
The defendant bore the burden of establishing that
the connection between J.J. and the state police rose to
the level of a master-servant relationship, and therefore
that J.J. should have been excused for cause. We agree
with the state that the defendant failed to meet that
burden. During voir dire, J.J. admitted that his ‘‘boss’’
was a state police sergeant. He later stated that he
worked under the state police. J.J. indicated that he
did not know any of the state troopers who would be
testifying on behalf of the state. He further represented
that he would not afford the testimony of members of
law enforcement agencies any greater credence than
other witnesses. Defense counsel did not challenge the
prosecutor’s argument that J.J. was employed by the
town of Southbury, not the state police, and that the
state police sergeant was not from Troop L,11 where
the state trooper witnesses in this case were assigned.
We also note that defense counsel failed to ask J.J.
questions regarding the scope, nature, or level of super-
vision he received from the state police sergeant in
Southbury, or any details regarding their relationship.
In short, we cannot say that the court committed clear
error by not finding a master-servant relationship, given
the sparse details regarding the nature of the relation-
ship between the state police and the officers of the
Southbury Police Department.12 We conclude, there-
fore, that the court did not abuse its discretion in deny-
ing the defendant’s principal challenge with respect
to J.J.
B
The defendant next claims that the court improperly
denied his request for a continuance to investigate and
potentially to challenge the jury array. Specifically, he
argues that the court should have granted his request
for a continuance in order to properly hear and deter-
mine his claim that a disproportionate number of per-
sons with connections to law enforcement were
members of the venire panel. The state counters that
after considering the applicable factors, the court acted
within its broad discretion in denying the defendant’s
request. We agree with the state.
The following additional facts are necessary for our
discussion. At the start of the second day of jury selec-
tion, the defense counsel stated that he wanted to chal-
lenge the array of potential jurors. Specifically, he
argued that there was an irregularity in the composition
of the venire jury panel in that too many members
were either law enforcement personnel or related to
members of law enforcement agencies. He argued that,
on each day, six out of thirty people in the array were
law enforcement personnel or related to members of
law enforcement agencies. Defense counsel later clari-
fied that he was requesting a continuance to challenge
the jury array.
The prosecutor objected, arguing that there was no
basis to challenge the array. The court inquired how
defense counsel would proceed if a continuance was
granted. Defense counsel explained: ‘‘I see six police
officers on today’s [list of prospective jurors]. I saw
six, either related or police officers, yesterday. And I’m
not challenging it based on the fact that there’s an
inordinate [number of] police officers. I’m challenging
it based on the fact that there may be some irregularity
in the process that—put us with an inordinate [number
of] police officers.’’ He later iterated that an ‘‘irregular-
ity’’ in the process resulted in an unusually large number
of law enforcement personnel or persons related to
members of law enforcement agencies in the array.
The court stated that nothing proffered by defense
counsel demonstrated any defect in the process of
selecting the array, but that it would provide an opportu-
nity for him to make a record as to how the members
of the array had been summoned. Defense counsel
acknowledged that he was ‘‘not sure’’ of the process,
and that was why he had requested a continuance. The
court then declined to grant a continuance and denied
the motion to challenge the array.
We now set forth our standard of review and the
relevant legal principles. ‘‘The determination of whether
to grant a request for a continuance is within the discre-
tion of the trial court, and will not be disturbed on
appeal absent an abuse of discretion. . . . A reviewing
court is bound by the principle that [e]very reasonable
presumption in favor of the proper exercise of the trial
court’s discretion will be made. . . . To prove an abuse
of discretion, an appellant must show that the trial
court’s denial of a request for a continuance was arbi-
trary. . . . There are no mechanical tests for deciding
when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the
circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the
request is denied. . . . In the event that the trial court
acted unreasonably in denying a continuance, the
reviewing court must also engage in harmless error
analysis. . . .
‘‘Among the factors that may enter into the court’s
exercise of discretion in considering a request for a
continuance are the timeliness of the request for contin-
uance; the likely length of the delay; the age and com-
plexity of the case; the granting of other continuances in
the past; the impact of delay on the litigants, witnesses,
opposing counsel and the court; the perceived legiti-
macy of the reasons proffered in support of the request;
the defendant’s personal responsibility for the timing
of the request; [and] the likelihood that the denial would
substantially impair the defendant’s ability to defend
himself . . . .
‘‘Lastly, we emphasize that an appellate court should
limit its assessment of the reasonableness of the trial
court’s exercise of its discretion to a consideration of
those factors, on the record, that were presented to the
trial court, or of which that court was aware, at the
time of its ruling on the motion for a continuance.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Davis, 135 Conn. App.
385, 393–94, 42 A.3d 446, cert. denied, 305 Conn. 916,
46 A.3d 171 (2012); see also State v. Spells, 76 Conn.
App. 67, 75, 818 A.2d 808 (2003).
We acknowledge that defense counsel raised his con-
cern regarding the array in a prompt and timely manner.
He did not, however, specify the length of the continu-
ance that he was requesting. See generally State v.
Wright, 70 Conn. App. 807, 821, 800 A.2d 1218 (appellate
courts concluded no abuse of discretion where defen-
dant sought indefinite delay of proceedings), cert.
denied, 261 Conn. 930, 806 A.2d 1070 (2002). More
importantly, for three of the six potential jurors13 upon
whom defense counsel based his suggestion that the
array may have been improperly selected, there was
nothing to suggest any type of systematic selection of
law enforcement personnel, or individuals related
thereto, for the defendant’s panel. See State v. Coney,
266 Conn. 787, 802, 835 A.2d 977 (2003) (‘‘[w]e have
declined . . . to find prejudice in instances in which
a defendant can do no more than offer mere conjecture
or rank speculation as to the harm flowing from a denial
of a continuance’’). For these reasons, we conclude that
the court did not abuse its discretion in denying the
defendant’s request for a continuance.
II
The defendant next claims that he was harmed by
the court’s erroneous admission into evidence of his
login identification, smoothcriminal77. The state count-
ers that the defendant failed to sustain his burden of
establishing harm. We agree with the state.
The following additional facts, as stated in our prior
opinion, are necessary for the resolution of this claim.
‘‘During cross-examination of the defendant, defense
counsel objected to the state’s questioning of him
regarding his MySpace login identification on the
ground that it was irrelevant. The prosecutor
responded: As far as what his login ID was, smooth
criminal, if I didn’t think he was going to call a bunch
of character witnesses, his pastor and things like that,
then, arguably, I don’t know that I would offer it. But
if there’s going to be a bunch of character witnesses
to say what a good person he is, I think it becomes
relevant. In ruling on the objection, the court stated:
I’m going to sustain your objection in most part. You
can put the title of the—if it’s an identification . . .
feature of a Facebook, I’ll allow it in for that purpose.
. . . I am sustaining your objection 90 percent of what
the content of the song is, but it’s an identifying feature
on Facebook or Twitter, or whatever, I’ll allow it in just
for that purpose. Okay . . . ? Defense counsel
responded, [s]o it’s limited to the title of the song.14
The court inquired, [o]kay? to which defense counsel
answered, [t]hank you.
‘‘After the defendant testified, defense counsel indi-
cated that he did indeed intend to call character wit-
nesses to testify. The state objected to the admission
of character witnesses on the ground, among others,
that the admission of general character evidence was
improper. The court determined, pursuant to § 4-4 of
the Connecticut Code of Evidence, that the defendant’s
character witnesses could testify, but only as to the
defendant’s character trait of not having sexual contact
with students. During his cross-examination of three
of the defendant’s character witnesses, the prosecutor
referred to the defendant’s login identification and
inquired about whether the witnesses knew if the defen-
dant was the type of person who would have such an
identification. These references constitute the basis of
the defendant’s claim.’’ (Footnote omitted; internal quo-
tation marks omitted.) State v. Benedict, supra, 136
Conn. App. 54–55.
On remand, our Supreme Court instructed us to con-
sider whether the defendant had been harmed as a
result of the admission of the login identification into
evidence. ‘‘The Appellate Court never considered the
issue of whether the defendant proved that the eviden-
tiary error was harmful. The Appellate Court’s consider-
ation of this question was unnecessary in light of its
resolution of the defendant’s confrontation claim,
which independently required reversal of the judgment
and a remand for a new trial. In the absence of the
necessary predicate for a new trial on the basis of the
evidentiary error—a determination of harm—the Appel-
late Court will be required to consider this issue as part
of its consideration of the defendant’s remaining claims
upon remand. See Klein v. Norwalk Hospital, 299 Conn.
241, 254, 9 A.3d 364 (2010) ([B]efore a party is entitled
to a new trial because of an erroneous evidentiary rul-
ing, he or she has the burden of demonstrating that the
error was harmful. . . . In other words, an evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Benedict, supra, 313
Conn. 516.15
We now set forth the relevant law and our standard
of review. ‘‘When an improper evidentiary ruling is not
constitutional in nature, the defendant bears the burden
of demonstrating that the error was harmful. . . . [A]
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not sub-
stantially affect the verdict. . . . Put another way,
[w]here evidentiary error is claimed, the defendant
bears the burden of proving the harmfulness of the
error before a new trial will be granted. (Citations
omitted; emphasis altered; internal quotation marks
omitted.) State v. Gonzalez, 106 Conn. App. 238, 248–49,
941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343
(2008); see also State v. Giovanni P., 155 Conn. App.
322, 329, 110 A.3d 442, cert. denied, 316 Conn. 909, 111
A.3d 883 (2015).
We recently have explained the rationale behind the
harmless error doctrine. ‘‘[T]he appellate harmless
error doctrine is rooted in [the] fundamental purpose
of our criminal justice system—to convict the guilty
and acquit the innocent. The harmless error doctrine
recognizes the principle that the central purpose of a
criminal trial is to decide the factual question of the
defendant’s guilt or innocence . . . and promotes pub-
lic respect for the criminal process by focusing on the
underlying fairness of the trial rather than on the virtu-
ally inevitable presence of immaterial error.’’ (Internal
quotation marks omitted.) State v. Maner, 147 Conn.
App. 761, 772, 83 A.3d 1182, cert. denied, 311 Conn. 935,
88 A.3d 550 (2014).
Our Supreme Court has explained that ‘‘[w]hether
[an improper evidentiary ruling that is not constitutional
in nature] is harmless in a particular case depends upon
a number of factors, such as the importance of the
witness’ testimony in the prosecution’s case, whether
the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testi-
mony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case. . . .
Most importantly, we must examine the impact of the
[improperly admitted] evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Osimanti, 299 Conn. 1, 18–19, 6 A.3d
790 (2010).
The references to the defendant’s login identification
did not play a significant role in this case. See State v.
Michael A., 99 Conn. App. 251, 271, 913 A.2d 1081 (2007).
Aside from the short questioning16 of the defendant
during cross-examination, the prosecutor asked three
of the defendant’s witnesses one or two questions with
respect to this topic.17 The prosecutor did not make any
reference to the login identification during his closing
argument to the jury. Moreover, the defendant has not
sustained his burden to demonstrate that the login iden-
tification evidence impacted the jury. See State v.
Franko, 142 Conn. App. 451, 469, 64 A.3d 807, cert.
denied, 310 Conn 901, 75 A.3d 30 (2013); see also State
v. LeBlanc, 148 Conn. App. 503, 509–10, 84 A.3d 1242,
1245, cert. denied, 311 Conn. 945, 90 A.3d 975 (2014).
The use of the login identification ‘‘smoothcriminal77’’
was not an important part of the state’s case. Accord-
ingly, we conclude that the defendant failed to show
that the verdict was substantially swayed as a result of
the improper evidentiary ruling.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was acquitted of two additional counts of sexual assault
in the fourth degree in violation of § 53a-76a (a) (6). State v. Benedict, 136
Conn. App. 36, 38 n.1, 43 A.3d 772 (2012), rev’d, 313 Conn. 494, 98 A.3d 42
(2014). We also note that this appeal stems from the defendant’s second
trial on these charges. Id., 40 n.5. The defendant’s first trial ended in a
mistrial as the result of a deadlocked jury. Id.
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the complainant or others
through whom the complainant’s identify may be ascertained. See General
Statutes § 54-86e.
3
We note that our Supreme Court did not address the propriety of our
determination that the admission of the login identification was erroneous.
State v. Benedict, supra, 313 Conn. 515–16.
4
General Statutes § 53a-73a provides in relevant part: ‘‘(a) A person is
guilty of sexual assault in the fourth degree when . . . (6) such person is
a school employee and subjects another person to sexual contact who is a
student enrolled in a school in which the actor works or a school under
the jurisdiction of the local or regional board of education which employs
the actor . . . .’’
5
We note that the defendant has abandoned any separate claim under
our state constitution by failing to include a separate state constitutional
analysis in his appellate brief. ‘‘Because the defendant has not set forth a
separate state constitutional analysis pursuant to State v. Geisler, 222 Conn.
672, 684–86, 610 A.2d 1225 (1992), we deem that claim abandoned and
analyze the defendant’s right to an impartial jury under the requirements
of the United States constitution. See State v. Simpson, 286 Conn. 634, 651
n.17, 945 A.2d 449 (2008).’’ State v. Stuart, 113 Conn. App. 541, 547 n.2, 967
A.2d 532, cert. denied, 293 Conn. 922, 980 A.2d 914 (2009); see also State
v. Johnson, 288 Conn. 236, 244 n.14, 951 A.2d 1257 (2008).
6
To protect the privacy interest of the members of the jury, we refer to
them by their first and last initials. State v. Gonzalez, 315 Conn. 564, 569
n.3, 109 A.3d 453 (2015).
7
We note that ‘‘[t]he mere fact of membership on a police force is not
presumptively a disqualification for service on a jury in a criminal trial.’’
(Internal quotation marks omitted.) State v. Clark, 164 Conn. 224, 227, 319
A.2d 398 (1973).
8
See State v. Vitale, 190 Conn. 219, 224–25, 460 A.2d 961 (1983) (where
defendant has failed to exhaust right of peremptory challenge, it is no ground
for granting new trial that challenge for cause was overruled); State v. Hoyt,
47 Conn. 518, 529 (1880) (defendant not aggrieved where impaneling of jury
was completed without exhausting right of peremptory challenge).
9
During J.J.’s response, the prosecutor stated: ‘‘Oh. That’s right. You’re
[supervisor is] a state resident trooper.’’
10
The Ohio Supreme Court has provided the historical context of the
common-law principal challenge. ‘‘At common law, jurors could be chal-
lenged propter affectum because some circumstance, such as kinship with
a party, render[ed] the potential juror incompetent to serve in the particular
case. Black’s Law Dictionary (8th Ed. 2004) . . . . Challenges propter
affectum took two forms: principal challenges and challenges to the favor.
2 Blackstone, Commentaries on the Laws of England, *363. A principal
challenge is one where the cause assigned carries with it prima facie evident
marks of suspicion either of malice or favor . . . which, if true, cannot be
overruled, for jurors must be omni exceptione majors (above all challenge).
. . . Thus, where a party establishes the existence of facts supporting a
principal challenge, this finding result[s] in automatic disqualification, and
no rehabilitation of the potential juror can occur. Black’s Law Dictionary
[supra]. Blackstone sets forth several basic principal challenges in his Com-
mentaries, including instances where a juror is of kin to either party within
the ninth degree, where a potential juror has an interest in the cause, or
where the potential juror is the party’s master, servant, counsellor, steward,
or attorney, or of the same society or corporation with him.’’ (Citation
omitted; internal quotation marks omitted.) Hall v. Banc One Mgt. Corp.,
114 Ohio St. 3d 484, 487–88, 873 N.E.2d 290 (2007).
11
According to the state’s Department of Emergency Services and Public
Protection website, Troop L of the state police patrols the following towns:
Kent, Washington, Warren, Litchfield, Morris, Bethlehem, Woodbury, Har-
winton, Thomaston, Plymouth, Canton, Burlington, and Bristol. See State
of Connecticut, Department of Emergency Service and Public Protection,
‘‘Connecticut State Police Facilities,’’ (last modified August 16, 2012),
available at http://www.ct.gov/despp/lib/despp/dsp/csp troops 2012
20120816.pdf (last visited July 8, 2015).
12
The United States Supreme Court’s decision in Crawford v. United
States, 212 U.S. 183, 29 S. Ct. 260, 53 L. Ed. 465 (1909), provides an example
of when a party has met his or her burden of proving the existence of a
master-servant relationship. In that case the defendant was charged with
conspiracy to defraud the United States by presenting false bills to the post
office. Id., 185. One of the jurors, a pharmacist, operated a drug store that
sold postal stamps and therefore, technically, was a clerk of the city postal
service. Id., 192. Although the juror received only $300 in annual compensa-
tion for providing this service, ‘‘it is one of the things in connection with
the drug business that can hardly be avoided; that a drug store, to keep up
its prestige, must sell postage stamps, and might as well get paid for it as
to do it for nothing.’’ Id., 192–93. The trial court had denied the defendant’s
principal challenge to this juror. Id. 193. The United States Supreme Court
determined that the common-law rules regarding principal challenges
remained in effect despite the existence of statutes regarding the compe-
tence of juror in the District of Columbia. Id., 194–96. ‘‘The position of the
juror in this case is a good instance of the wisdom of the rule. His position
was that of an employ[ee] who received a salary from the United States,
and his employment was valuable to him, not so much for the salary as for
the prospect such employment held out for an increase in his business from
the people who might at first come to his store for the purchase of stamps,
etc. It need not be assumed that any cessation of that employment would
actually follow a verdict against the Government. It is enough that it might
possibly be the case; and the juror ought not to be permitted to occupy a
position of that nature to the possible injury of a defendant on trial, even
though he should swear he would not be influenced by his relations to one
of the parties to the suit in giving a verdict. It was error to overrule the
defendant’s challenge to the juror.’’ Id., 196–97; see also State v. Ballard,
718 So. 2d 521, 526 (La. App. 1998) (‘‘[i]n other words, it was the master-
servant (i.e., the employer-employee) relationship between the potential
juror and the prosecution’s complaining witness (the sheriff of Caddo Parish,
the same parish in which defendant was being tried) that established the
presence of bias’’), aff’d, 747 So. 2d 1077 (La. 1999).
13
On the first day of jury selection, V.D., the wife of a police officer was
excused for cause, as was her husband J.D., a police sergeant. R.S., whose
mother had been the head clerk at Troop L for twenty-three years, was the
subject of a defense peremptory challenge. R.B., the former spouse of a
state trooper, was accepted as a member of the jury. G.C., who was also
the subject of a defense peremptory challenge, was an air marshal and the
son of a police officer.
14
Outside of the presence of the jury, the prosecutor explained to the
court that the login identification referred to a song that is ‘‘about the break-
in—the residential break-in of an apartment where a female is assaulted
and left bleeding.’’
During cross-examination of the defendant, the following colloquy
occurred:
‘‘Q. And do you remember identifying it and say, ‘Yes, that is my Face-
book page?’
‘‘A. Yes I do.
‘‘Q. And do you remember that your login at that time was smoothcriminal-
77@facebook—@myspace.com, something to that effect?
‘‘A. Yes. It was in reference to an Alien Ant Farms song. It had nothing
to do with anything. [Seventy-seven] was the year I was born.’’
15
We note that the defendant’s appellate brief does not contain an exten-
sive analysis of whether he was harmed by the admission into evidence of
the login identification. Nevertheless, our Supreme Court instructed us to
consider the issue of harm on remand. Furthermore, at oral argument before
this court, both the defendant and the state addressed the question of
harm. Under these facts and circumstances, we will consider whether the
defendant was harmed as a result of the court’s evidentiary ruling on the
login identification.
16
We also note the thrust of the prosecutor’s questioning of the defendant
was to challenge his credibility regarding his testimony from the first trial
as to the last time that he had logged into that social media account.
17
During the cross-examination of Gary Matcheson, the prosecutor asked:
‘‘And the Adam Benedict you know, is he the kind of person who would
have, as a login or identifier for his MySpace page ‘smoothcriminal77’?’’
Matcheson replied twice that he had ‘‘no idea.’’
During the cross-examination of Parker Ryan Strong, the prosecutor
inquired if defense counsel had asked him how he would respond if asked
whether the defendant’s social media page would be ‘‘smooth criminal.’’
Strong replied in the negative.
Finally, during the cross-examination of J. Brent Hawkins, the prosecutor
asked if the defendant was the type of person who would have ‘‘smoothcrimi-
nal77’’ as a login for his MySpace page. Hawkins stated that he did not know
anything about MySpace. Defense counsel objected, and the prosecutor
withdrew the question. As a result, the court sustained the objection.