State v. Latour12/13/2005
udice to a defendant. See State v. Booth, 250 Conn. 611, 649, 737 A.2d 404 (1999) [cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed. 2d 471 (2000)]. A harmless error analysis presupposes a trial at which a defendant is represented by counsel, and evidence and argument are presented in the courtroom before an impartial judge and jury. Rose v. Clark, supra, 578. When a structural error analysis is undertaken and such an error exists, the proceeding is vitiated. See Arizona v. Fulminante, [499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed. 2d 302 (1991)]; State v. Cruz, 41 Conn. App. 809, 811, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996); State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994). State v. Anderson, 55 Conn. App. 60, 72-74, 738 A.2d 1116 (1999), rev'd, 255 Conn. 425, 773 A.2d 287 (2001); see State v. Anderson, supra, 255 Conn. 448 (concluding no structural defect existed under circumstances of particular case)." (Internal quotation marks omitted.) State v. D'Antonio, 274 Conn. 658, 722-24, 877 A.2d 696 (2005) (Katz, J., dissenting).
We assume without deciding that the trial court, having found the defendant's gender neutral explanation for his peremptory challenge to be credible, improperly required juror K.N. to be seated. As the discussion that follows demonstrates, we need not make such a determination because, even if the defendant could prevail as to that first step in our analysis, he cannot prevail under the second step. Accordingly, we turn to the second step, namely, whether that impropriety is a per se reversible, structural error or whether it is subject to a harmless error analysis and, if the latter, whether, because the juror remained an alternate, the error was harmless. The defendant contends that, " ecause the issue is one of jury selection--that the defendant was required to try his case to a jury which included an individual who properly should have been the subject of his constitutionally protected exercise of a peremptory challenge--the error is structural in nature . . . ." He relies on Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998), wherein the Second Circuit Court of Appeals concluded: "Because the effects of racial discrimination during voir dire may persist through the whole course of the trial proceedings, Powers [v. Ohio, 499 U.S. 400, 412, 111 S.Ct. 1364, 113 L.Ed. 2d 411 (1991)], we hold that a Batson/Powers claim is a structural error that is not subject to harmless error review. See Ford v. Norris, 67 F.3d 162, 171 (8th Cir. 1995) (holding that a constitutional violation involving the selection of jurors in a racially discriminatory manner is a structural defect . . . which cannot be subjected to a harmless error analysis); Rosa v. Peters, 36 F.3d 625, 634 n.17 (7th Cir. 1994) (holding that harmless error analysis is inappropriate in a Powers case); Ramseur v. Beyer, 983 F.2d 1215, 1225 n.6 (3d Cir. 1992) ( n banc) ( armless error analysis is inappropriate in cases involving discrimination in the jury selection process.), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993)." (Internal quotation marks omitted.)
The defendant's reliance on Tankleff, however, is misplaced. In that case, the record before the Second Circuit suggested a prima facie Batson violation in that the trial court had refused to allow the defendant to object to the state's attempts to strike the only three African-American venirepersons because the defendant was not of the same race as the challenged jurors. Tankleff v. Senkowski, supra, 135 F.3d 249. Thus, the alleged trial court impropriety resulted in the exclusion of jurors based on race. As the Second
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