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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 William 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 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).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 conviction 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 reasonable doubt. Id., 51. Finally, we determined, in anticipation 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 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.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, 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 drove the defendant and the complainant

to the defendant’s residence, the friend departed. Upon

entering the defendant’s residence, the complainant followed 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. Thereafter, 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 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).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 complainant.’’ (Footnote added; internal quotation marks omitted.)Id. 497–98. Following his conviction, the trial court

sentenced the defendant to one year incarceration, execution 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 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.

I

The defendant first claims that the court improperly

violated his state and federal constitutional rights5

to

a fairtrial by denying his challenge for cause to a venireperson 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 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.

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 selection, and after the defendant had used his final preemptory 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 counselthen 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

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 parties, the court denied the defendant’s renewed challenge 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 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, 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 Britain 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 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. 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 defendant’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 Hospital & Medical Center, supra, 626; Johnson v. New Britain General Hospital, supra, 203 Conn. 582. In the

present case, however, the dispositive question is

whether the court improperly failed to find that a master-servant relationship existed between J.J. and the

state police. That determination presents a factual question. See State v. Esposito, supra, 309 (principal challenge 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)(factualfindings

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 supervision 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, therefore, that the court did not abuse its discretion in denying 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 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 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 ‘‘irregularity’’ 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, butthat 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 (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

orrank 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 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.14

The court inquired, [o]kay? to which defense counsel

answered, [t]hank you.

‘‘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, 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 whetherthe witnesses knew if the defendant was the type of person who would have such an

identification. These references constitute the basis of

the defendant’s claim.’’(Footnote omitted; internal quotation marks omitted.) State v. Benedict, supra, 136

Conn. App. 54–55.
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—theAppellate 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. 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 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 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 thatis 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 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 identification 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. 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.

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 exhaustright 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 challenged 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 Commentaries, 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, Harwinton, 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 compensation 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 competence 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 masterservant (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 breakin—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 Facebook page?’

‘‘A. Yes I do.

‘‘Q. And do you rememberthat your login at that time was smoothcriminal77@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 extensive 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 ‘‘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.