State v. Gould

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STATE v. GOULD—CONCURRENCE
PRESCOTT, J., concurring in the result. Although I
share the majority’s recognition of the value and impor-
tance 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 con-
clusion 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 defen-
dant, Jeffrey Gould, was prejudiced by the court’s dis-
qualification 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 determina-
tion 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 pro-
spective juror, the majority itself draws factual infer-
ences 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 regard-
ing 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 prosecu-
tor’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 understand-
ing 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 under-
stand 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 ques-
tioning.
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 his-
tory, despite having fully disclosed those details during
the state’s voir dire examination.1 This apparent incon-
sistency, the state suggested, was possibly attributable
to the questionnaire not being written in Spanish.2
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, how-
ever, 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 sig-
nificant 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.
On appeal, the defendant claims that the court uti-
lized an excessively stringent standard in determining
that E.F. did not speak English well enough to serve
on the jury.3 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 state argues that the court properly granted the
prosecutor’s challenge for cause because E.F. demon-
strated, 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 discre-
tion 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 rea-
sonably have reached the conclusion it did. An appellate
court should guard against substituting its own interpre-
tation 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 dif-
ferently 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 can-
not 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 neces-
sary 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 disqual-
ified 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 . . . under-
stand all of the evidence presented, evaluate that evi-
dence in a rational manner, communicate effectively
with the other jurors during deliberations, and compre-
hend 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 participa-
tion 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 pro-
spective 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 errone-
ous. 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 omit-
ted]). ‘‘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 evi-
dence in the record to support the court’s finding that
E.F. was unable to speak English with the skill neces-
sary 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 compre-
hending 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 consis-
tently recognized that ‘‘a trial court is in the best posi-
tion 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. New-
some, 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). Accord-
ingly, I defer to the court’s direct observations of E.F.’s
speech during voir dire and conclude that those obser-
vations 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 specifi-
cally 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 prosecu-
tor 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 distinc-
tion 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 specifi-
cally 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 capa-
ble 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 addi-
tional 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 find-
ing 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 major-
ity fails to explain why the opinion of the defendant’s
counsel regarding E.F.’s English speaking ability is enti-
tled 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 tran-
script 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 impres-
sion, 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 deter-
minations.’’ 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 dis-
course 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, alterna-
tively, 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 meaning-
ful 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 inter-
preter 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 mat-
ter. 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 con-
clude, 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 inter-
preter.
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 inter-
preters 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 opportu-
nity 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.
1
E.F.’s juror questionnaire was not made part of the record on appeal.
2
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.
3
The defendant also claims that E.F.’s excusal from the jury panel consti-
tuted 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 men-
tioned 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).