SCHALLER, J.
This case returns to this court following 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 Statutes § 53a-73a (a)(6).
Our Supreme Court reversed our determination that the defendant's right to confrontation had been violated. 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 established harm as a result of the erroneous admission of the login identification.
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, therefore, 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 defendant's friend
"After her graduation from high school, in June or July, 2007, the complainant, accompanied by her boyfriend 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).
As instructed by our Supreme Court, we now consider 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 constituted harmful error. We affirm the judgment of conviction.
The defendant first claims that the court improperly violated his state and federal constitutional rights
As a preliminary matter, we set forth certain relevant legal principles that guide the resolution of the defendant's two claims regarding the makeup of the jury. "Our jurisprudence on the issue of the right to an impartial 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 constitution.... 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.
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.
The following facts are necessary for our resolution of this claim. Near the end of the first day of jury selection, and after the defendant had used his final preemptory challenge,
Defense counsel then questioned J.J., and the following 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 troopers 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 countered 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 department if [the jury] come[s] back with a not guilty verdict
The defendant raised only a common-law principal challenge to J.J. See, e.g., Morgan v. St. Francis Hospital & 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. Connecticut Co., 103 Conn. 537, 542, 131 A. 505 (1925) (common-law challenge for cause either principal challenge 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 disqualification is conclusively presumed." (Emphasis added; internal quotation marks omitted.) State v. Esposito, 223 Conn. 299, 309, 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, at 624, 583 A.2d 630 (principal challenge for cause is for absolute disqualification or bias); see also Johnson v. New Britain General Hospital, 203 Conn. 570, 581, 525 A.2d 1319 (1987).
This court has ruled that a principal challenge must be granted when there is an "inextricably close relationship" 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, attorney, 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. at 23 n. 4, 771 A.2d 939; State v. Esposito, supra, 223 Conn. at 309 n. 7, 613 A.2d 242. 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.
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,
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 determine his claim that a disproportionate number of persons 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 selection, the defense counsel stated that he wanted to challenge 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 clarified 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
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 opportunity 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 discretion 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 arbitrary.... 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 continuance; the likely length of the delay; the age and complexity 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 legitimacy 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 quotation 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 concern regarding the array in a prompt and timely manner. He did not, however, specify the length of the continuance 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 defendant sought indefinite delay of proceedings), cert. denied, 261 Conn. 930, 806 A.2d 1070
The defendant next claims that he was harmed by the court's erroneous admission into evidence of his login identification, smoothcriminal77. The state counters 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.
"After the defendant testified, defense counsel indicated that he did indeed intend to call character witnesses 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,
On remand, our Supreme Court instructed us to consider 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 evidentiary error was harmful. The Appellate Court's consideration 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 Appellate 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 ruling, 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. at 516, 98 A.3d 42.
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 substantially 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 public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error." (Internal quotation
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 testimony 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 substantially affect the verdict." (Internal quotation marks omitted.) 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 questioning
The use of the login identification "smoothcriminal77" was not an important part of the state's case. Accordingly, 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.
During cross-examination of the defendant, the following colloquy occurred:
"Q. And do you remember identifying it and say, `Yes, that is my Facebook 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."
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 "smoothcriminal77" 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.
