State of Connecticut v. Richard Roszkowski (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION REGARDING THE SELECTION OF ALTERNATE JURORS

The defendant Richard Roszkowski has previously been convicted of two counts of capital felony, and the state is seeking the death penalty in this retrial of the penalty phase.   The parties are now in the midst of jury selection.   The court previously advised the parties that it would impanel a jury of twelve, along with six alternate jurors, to hear the evidence in this new penalty phase proceeding.   By motion dated October 29, 2013, the defendant has moved for an order requiring that regular jurors who may be excused by the court be replaced by alternate jurors in the same order in which those alternate jurors are chosen by the parties, rather than by lot.   According to the defendant, this procedure will assist counsel in exercising peremptory challenges in a manner that is most consistent with protecting his rights.   On November 5, 2013, the state filed a memorandum objecting to the defendant's requested order, arguing that the court is required to replace any excused regular jurors with alternates chosen by lot.   The court heard oral argument on this motion on November 5, 2013.   Because the parties are still in the middle of the voir dire process, with a total of ten jurors selected to date,¹ the court is issuing this decision as promptly as possible to provide further guidance to counsel.

The statute governing the selection of alternates, General Statutes § 54–82h(c), provides in relevant part:  “If, at any time, any juror shall, for any reason, become unable to further perform the duty of a juror, the court may excuse such juror and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial or deliberation shall then proceed with appropriate instructions from the court as though such juror had been a member of the regular panel from the time when the trial or deliberation began ․”

In support of his position that the trial court has the discretion to replace a regular juror with an alternate in the sequential order that such alternates are chosen by the parties, rather than by lot, the defendant primarily relies on State v. Samuels, 273 Conn. 541, 571–72, 871 A.2d 1005 (2005), and State v. Alston, 272 Conn. 432, 456, 862 A.2d 817 (2005).   In both Samuels and Alston, our Supreme Court ultimately concluded that even if § 54–82h(c) requires the trial court to replace excused regular jurors with alternates selected by lot, the failure to follow the statute is not plain error.²  Moreover, in both of the cases cited by the defense, the substitution of a juror using the method that the defendant is now advocating occurred before the start of evidence and before either jury was sworn, and did not necessitate the statutorily mandated “appropriate instructions from the court” quoted above.   In Samuels, the defendant did not voice an objection to the method of selection employed by the trial court.  State v. Samuels, supra, 572.   In Alston, the defendant actually requested that the trial court “not draw ․ a main juror by lot.”  State v. Alston, supra, 455.   The court in Alston reiterated that “the process for selecting and dismissing alternate jurors, including § 54–82h(c), does not implicate constitutional rights.”  Id., 456.

The state, in support of its contention that the court has no discretion to replace a dismissed regular juror other than by lot, primarily relies on State v. Esposito, 223 Conn. 299, 305 n.5, 613 A.2d 242 (1992).   In Esposito, the court referred to the method of replacing jurors with alternates selected by lot as “arguably statutorily required.”  Id., 306.   The court stated:  “we note that in the statute ‘may’ is used in conjunction with the trial court's decision whether to empanel an alternate juror in the first place and not in conjunction with the method to be used in selecting the replacement juror once the court has decided to do so:  ‘[T]he court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel ․’ (Emphasis added.)  General Statutes § 54–82h(c).”  Id., 305 n.5.

After a review of the relevant law, the court finds that at least once the jury is sworn, it is statutorily obligated to replace any regular juror that may be excused with an alternate juror chosen by lot.   Although the court agrees with the defendant that the Supreme Court's analysis of § 54–82h(c) cited in Esposito above may properly considered dicta, “[a]t least it is a considered dictum, and not comment merely obiter.   It has the capacity, though it be less than a decision, to tilt the balanced mind toward submission and agreement.”  Hawks v. Hamill, 288 U.S. 52, 59, 53 S.Ct. 240, 77 L.Ed. 610 (1933) (Cardozo, J.).   This court agrees with the Supreme Court that the legislature's use of the word “may” in the context of the wording of § 54–82h(c) merely denotes that it is within the trial court's discretion to replace a regular juror with an alternate juror in the first instance.   However, once necessity dictates that an alternate juror must be seated during the trial, it is this court's view that the applicable statute, § 54–82h(c), is controlling, and does not leave the trial court with any discretion as to the method of such selection.   The alternative procedure that the defendant is now seeking is best accomplished by a change in the relevant statute, rather than by an appeal to this court's discretion.   This conclusion is reinforced by the Supreme Court's admonition in Samuels:  “We nonetheless emphasize that, if a juror is excused for any reason, the trial court is required to follow the procedures set forth in § 54–82h(c) to replace the excused juror with an alternate juror.”  State v. Samuels, supra, 273 Conn. 573, n.20.

Accordingly, the defendant's motion is denied.

IT IS SO ORDERED,

Blawie, J.

FOOTNOTES

FN1. One additional juror was also selected, but that juror has already been excused by the court..  FN1. One additional juror was also selected, but that juror has already been excused by the court.

FN2. The plain error doctrine is “invoke[d] in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy ․ The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings ․ A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.”  (Citation omitted;  emphasis removed;  internal quotation marks omitted.)  State v. LaBrec, 270 Conn. 548, 559, 854 A.2d 1 (2004)..  FN2. The plain error doctrine is “invoke[d] in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy ․ The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings ․ A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.”  (Citation omitted;  emphasis removed;  internal quotation marks omitted.)  State v. LaBrec, 270 Conn. 548, 559, 854 A.2d 1 (2004).

Blawie, John F., J.