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STATE OF CONNECTICUT v. JONATHAN MILLER

(AC 37130)

Lavine, Sheldon and Mullins, Js.

Argued January 11—officially released March 15, 2016

(Appeal from Superior Court, judicial district of

Hartford, geographical area number fourteen, Suarez,

J.)

Robert E. Byron, assigned counsel, for the appellant (defendant).

Matthew R. Kalthoff, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy,

state’s attorney, and David M.Carlucci, assistant state’s

attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, Jonathan Miller,

appeals from the judgment of conviction,rendered after

a jury trial, of assault in the third degree in violation

of General Statutes § 53a-61 (a) (1), and two counts of

breach of the peace in the second degree in violation

of General Statutes § 53a-181 (a)(1) and (2).1 On appeal,

the defendant claims that the court violated his right

to a fair trial by denying his challenge for cause as to

an allegedly biased venireperson, thereby necessitating

his use of a peremptory challenge to excuse that venireperson. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to the defendant’s claim on appeal. On August 31,

2012, the defendant appeared in family court in Hartford

to defend himself against allegations that he had failed

to pay child support to Angela Cox, the mother of his

son. Upon leaving the courthouse after the hearing, the

defendant was involved in an altercation with the father

of Cox’ daughter. As a result of that incident, the defendant was charged with one count of assault in the third

degree, three counts of breach of the peace in the second degree and one count of criminal mischief in the

third degree.

Jury selection in this case began on May 7, 2014. The

parties selected the six regular jurors on that day. On

the next day, the parties commenced voir dire to select

the requisite two alternate jurors. Upon questioning

venireperson R.D.,2

it was disclosed that his mother

recently had been the victim of a burglary. R.D. indicated that he did not have a problem with his interaction

with police officers regarding that crime, and, when

asked whether he would tend to find the testimony of

police officers more or less credible than that of other

witnesses, he responded, ‘‘I would say possibly more

credible. I don’t know. I don’t know if I would be biased

or not.’’ He acknowledged that he would have to wait

to hear what the officers had to say and that his judgment of their testimony would depend on the circumstances. When defense counsel later asked R.D.

whether he would ‘‘give more consideration to the

police officer’s [testimony] because he’s an officer,’’

R.D. replied, ‘‘It’s possible that I would.’’ Defense counsel then asked R.D. if he would have a problem finding

the defendant not guilty if the state failed to prove its

case but the defendant did not testify or present any

evidence of his own. R.D. responded, ‘‘Well, that he

would not say anything would not be a factor. Possibly

if there was no other positive evidence, that—that may

be a factor.’’3

Following counsel’s voir dire of R.D., the court asked

R.D.: ‘‘[I]f one of the instructions that the judge provided

to you was that you’re to treat all witnesses the same

whether they be a police officer or a doctor or a lay
person or an attorney, you would test their credibility

in the same manner. Would you not?’’ R.D. responded

that he would and that he would judge all witnesses in

the same manner.

The state accepted R.D. as a juror, but the defendant

asked that he be excused for cause on the grounds that

he had indicated that he might give more credit to a

police officer’s testimony than to that of a lay witness

and that he might be concerned if the defendant did

not testify or present any evidence. The court denied

the defendant’s challenge for cause, explaining, ‘‘In the

totality of all of [the] answers to the questions that were

presented, [it] does appear that [R.D.] would follow the

instructions of the court as to the law and specifically

did answer regarding credibility of witnesses . . . .

[A]ll in all, I think by the totality of all of the questions

and the answers he would be fair and impartial . . . .’’

The defendant thus exercised a peremptory challenge

to excuse R.D. from serving on the jury.

On appeal, the defendant claims that the court erred

in denying his challenge for cause as to R.D., for it

thereby required him to exercise a peremptory challenge to excuse R.D., and thus deprived him of his right

to an impartial jury and a fair trial. In response, the

state argues that, because the defendant exercised a

peremptory challenge to excuse R.D. from the jury, and

his peremptory challenges were not exhausted, ‘‘the

composition of the jury and the fairness of the trial were

unaffected by the trial court’s [denial of his challenge for

cause].’’ We agree with the state.

‘‘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 . . . . Put another way, [t]he right

to jury trial guarantees to the criminally accused a fair

trial by a panel of impartial, indifferent jurors.’’ (Citations omitted; internal quotation mark omitted.) State

v. Benedict, 158 Conn. App. 599, 605, 119 A.3d 1245,

cert. granted on other grounds, 319 Conn. 924, 125 A.3d

200 (2015).

‘‘The determination as to a potential juror’s impartiality, in which demeanor plays an important part, is particularly within the province of the trial judge and the

trial judge has broad discretion in deciding whether

to excuse a juror for cause. . . . In challenging the

competency of this juror to sit on the panel, the [defendants] had the burden of raising [their] claim of actual

bias from the realm of speculation to the realm of fact.
. . . In proving actual juror bias, the party challenging

for cause must also show that the juror’s state of mind is

fixed and settled and not a mere impression.’’ (Citation

omitted; internal quotation marks omitted.) Thorsen v.

Durkin Development, LLC, 129 Conn. App. 68, 72, 20

A.3d 707 (2011).

In this case, we need not determine whetherthe court

properly exercised its discretion in denying the defendant’s challenge for cause because the defendant exercised a peremptory challenge to excuse R.D. from

serving on the jury and he did not exhaust his peremptory challenges.4

‘‘Where a [party] has failed to exhaust

his right of peremptory challenge, it is no ground for

granting him a new trial that a challenge for cause was

overruled.’’ (Internal quotation marks omitted.) State

v. Vitale, 190 Conn. 219, 224–25, 460 A.2d 961 (1983);

see also State v. Ross, 269 Conn. 213, 231–32, 849 A.2d

648 (2004); State v. Kelly, 256 Conn. 23, 32 n.8, 770 A.2d

908 (2001); State v. Esposito, 223 Conn. 299, 313, 613

A.2d 242 (1992); State v. Smith, 49Conn. 376, 379 (1881);

State v. Hoyt, 47 Conn. 518, 529 (1880); State v. Omar,

136 Conn. App. 87, 91–92, 43 A.3d 766, cert. denied, 305

Conn. 923, 47 A.3d 883 (2012). Because the defendant

did not exhaust his peremptory challenges, his claim

that he was deprived of his right to a fair trial must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant was found not guilty of criminal mischief in the third

degree in violation of General Statutes § 53a-117 (a) (1) (A), and breach of

the peace in the second degree in violation of § 53a-181 (a) (5).

2 We refer to the venireperson by his initials to protect his privacy. See

State v. Hodge, 248 Conn. 207, 229 n.25, 726 A.2d 531, cert. denied, 528 U.S.

969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).

3 Our recitation of the previously quoted excerpts of R.D.’s voir dire is

limited to those inquiries that gave rise to the defendant’s request that he

be excused for cause.

4 The defendant argues that ‘‘[t]he presence on the jury of a biased juror

constitutes a structural defect which obviates considerations of exhaustion

of peremptory challenges.’’ This argument ignores the premise that when

the defendant is able to exercise a peremptory challenge to excuse a biased

venireperson from serving on the jury, the allegedly structural defect that

may arise from allowing a biased juror to serve on a jury does not come

to fruition.