STATE OF CONNECTICUT v. CHRISTOPHER SHAW
(SC 18207)
Supreme Court of Connecticut
Argued May 13, 2013—officially released June 10, 2014
Alice Osedach, assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Stacey Haupt Miranda, senior assistant state’s attorney, for the appellee (state).
******************************************************
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************
Opinion
ZARELLA, J. The defendant, Christopher Shaw, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation
I
The jury reasonably could have found the following facts. On January 28, 2006, the victim, A,4 age eleven, was living with her mother, B, her fifteen year old brother, K, her eight year old sister, and the defendant in B’s apartment in New Haven. Around 11 p.m. that evening, while A’s
After a minor altercation during which the defendant took B’s purse and said he would not give it back until she gave him the ID, M retrieved the coat and handed it to the defendant. He then apologized for the argument and proceeded to leave the apartment, unaware that the ID no longer was in his coat. Shortly thereafter, B also left the apartment to drive M back to her home. After she dropped M off, she called her three younger children and asked A if the defendant had returned. When A replied that the defendant had returned in search of his ID but, after failing to find it, ‘‘stormed back out’’ looking for B, B decided to stay out for a while before returning home.
At approximately 1:20 a.m., B returned to the apartment. She immediately noticed that the defendant’s boots were on the floor and his coat was on the sofa, where he normally slept. When she went to her bed-room, she found the door closed and difficult to open because two large garbage bags filled with clothing had been pushed up against the other side. After she managed to open the door, she observed two shadows, one of which appeared to be on top of the other, near the head of the bed. Upon turning on the light, the shadows ‘‘jumped,’’ and she saw the defendant sitting toward the foot of the bed and A sitting up in the middle. The defendant was wearing a shirt and appeared to have nothing on below his waist. A was wearing a nightgown, and her underwear was around her ankles. B immediately ran to the kitchen and called 911. When the police arrived shortly thereafter, she accused the defendant of raping A, and the police arrested him.
While the police detained the defendant in the living room, Officer Nancy Jordan questioned A in the kitchen. Jordan then accompanied A and B to the emergency department at Yale-New Haven Hospital (hospital), where A was examined by Mark Cicero, a physician specializing in pediatric emergency medicine. Emergency department personnel utilized a sexual assault evidence colleсtion kit in accordance with the state protocol prescribed for alleged sexual assaults. See
The defendant was charged with sexual assault in the first degree in violation of
II
The defendant first claims that the trial court improperly excluded evidence that was admissible under the rape shield statute in violation of his constitutional rights to confrontation, to present a defense, and to due process under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. He claims that his constitutional rights were violated because, in order to rebut the inference that he was the cause of vaginal injuries to A that were identified and reported by Cicero, he should have been allowed to show an alternative source of the injuries and a motivation for A and B to fabricate the
A
A testified that, sometime after B left the apartment on the evening of January 28, 2006, to take M back to her home, the defendant entered A’s bedroom, awakened her, and told her to go into the living room, where he directed her to remove her underwear. A then went with the defendant, while still clad in her nightgown, into B’s bedroom, where they engaged in sexual intercourse on the floor and on the bed for thirty to forty-five minutes. A further testified that the defendant was on top of her and had put his penis in her vagina.
Cicero, the emergency department physician who subsequently examined A at the hospital, testified that A gave him a similar but more detailed account of what had happened in the bedroom that night. He testified that A told him that the defendant had put his mouth on her vagina and then had put his penis in her mouth and her vagina. With respect to A’s physical condition, he testified that he observed no lesions or injuries on A’s external genitalia but noted the presence of six superficial tears on the internal structures that lead into and surround the vagina, known as the ‘‘fossa navicularis’’ or ‘‘vestibular fossa.’’ He opined thаt the injuries had been sustained within the past seventy-two hours and that it was ‘‘quite possible that they had been sustained within the last few hours’’ before Cicero’s examination of A. He also testified that he had detected no semen, substance or debris on A that could be attributed to the defendant and had observed no other bruises or injuries on A’s body. On cross-examination, he added that the vaginal tears were not likely to have been caused by consensual sexual intercourse and that A told him that she had not been exposed to any sexual activity within the past three days other than the alleged assault.
The defendant filed a motion two days before the start of the trial requesting the court’s permission to present evidence that A had engaged in sexual intercourse with K three days before the alleged assault. The defendant explained that he wanted to introduce the evidence for use in his case-in-chief or to rebut evidence presented by the state concerning the vaginal tears identified by Cicero during his examination of A. The defendant offered the evidence under three exceptions to inadmissibility set forth in the rape shield statute. He offered the evidence under
The following day, the court held a hearing on the defendant’s offer of proof. Defense counsel first discussed her reasons for seeking admission of the evidence. The state then objected on relevancy grounds. The state relied on the five part
Following a recess, defense counsel changed her mind, and the defendant took the stand. The defendant testified in support of his offer of proof that, ‘‘[t]hree days before [he] was arrested,’’ he observed a sexual encounter between A and K. He elaborated that, around 3 p.m. on January 25, 2006, before B returned home from work, he came out of the bathroom and noticed A and K in an adjacent room in ‘‘an awkward position’’ and engaged in ‘‘[i]nappropriate touching.’’ As soon as A saw the defendant, she jumped out from in front of K. The defendant then set his cell phone to record mode, laid it down on a nearby table, and went to take a shower. The defendant later listened to the recording and heard what ‘‘sounded like intercourse, moaning, sex . . . .’’ After the defendant told A what he had done and let her listen to the recording, she admitted that she and K were ‘‘having sex’’ while the defendant was in the shower. The defendant also let B hear the recording after she came home from work and told her what he had seen. B then had a private conversation with A, during which A denied having sex with K. Following her conversation with A, B went with the defen-dant to a department store and purchased a video surveillance camera.
The court asked if there was any further evidence the parties wanted to offer, and the state referred to certain information it had received from a testing laboratory during the court recess. According to the state, a laboratory technician had reported that certain recordings on the defendant’s cell phone did not ‘‘match’’ what the defendant was claiming had been recorded while he was in the shower, but the technician was unable to testify in court at that time. Defense counsel objected to the evidence on the ground that she ‘‘[had] been asking for [the] cеll phone information for [the past] nine months’’ and had never received it. Defense counsel also contended that the reported information would not be useful unless accompanied by information regarding the date of the recordings identified by the laboratory and whether the recordings had been made over the alleged recording of A and K. The trial
In her final argument on the offer of proof, defense counsel reiterated that the prior sexual conduct evidence was essential to the defendant’s right of confrontation and was admissible under the rape shield statute to explain (1) an alternative source of the vaginal tears that were purportedly caused within three days of Cicero’s examination of A, and (2) the motivation of A and B to fabricate the alleged assault so that the defendant would be arrested and removed from the household and no longer privy to what was happening within the family. Defense counsel further stated that she would seek testimony from A and B, and that, if they denied the defendant’s claims, their testimony would be subject to impeachment by the defendant’s testimony. The state repeated its earlier argument that thе defense had failed to prove under Rolon that the prior acts clearly had occurred and that they closely resembled the acts alleged in the present case, especially given A’s claim that the defendant had engaged in both oral penetration and vaginal intercourse.
In an oral ruling on the motion the next day, the trial court initially noted that prior sexual conduct evidence must be relevant in order to be admissible. It then stated that the defendant’s offer of proof did not support a continuing evidentiary hearing or admission of the proposed evidence because the defense had not made the required preliminary showing that the evidence sought to be explored in a further hearing was relevant.6 The court concluded that the evidence was not relevant to a material issue in the case or necessary to the defense because the prior sexual conduct between A and K had not been clearly defined or shown to closely resemble the defendant’s alleged conduct under the principles articulated in Rolon and State v. Kulmac, 230 Conn. 43, 61–63, 644 A.2d 887 (1994). The court also concluded that the probative value of the evidence did not outweigh its prejudicial effect because it involved sex between siblings, and that a discussion of such conduct would not be allowed at trial. The cоurt stated: ‘‘There is no reference to sibling sex among these children unless you say, Judge, I have to ask it, I will excuse the jury, and [I will] hear your offer at the time.’’ The court then denied the motion.
Following a recess, the jury entered the courtroom and began hearing evidence. B was the third witness to testify. On cross-examination, defense counsel elicited testimony that (1) she and the defendant previously had considered each other ‘‘boyfriend and girlfriend’’ but had broken up several months prior to January 28, 2006, (2) she would sometimes leave K alone with the other children, (3) the
In the midst of this testimony, defense counsel requested thе court’s permission to ask B certain additional questions relating to the facts alleged in the defendant’s motion to admit the prior sexual conduct evidence. Outside the presence of the jury, defense counsel explained that she wanted to ask B about the defendant’s concern regarding the behavior of her children, whether B also was concerned about the behavior of her children, without getting into the reasons why, and whether B was so concerned about her children that she bought a video surveillance camera to monitor their behavior. Counsel argued that the answers to these questions would be relevant to B’s motive, bias and interest in testifying against the defendant, apparently referring to the defendant’s claim that A had sexual intercourse with K. The state objected on the ground that the proposed testimony was not admissible under the court’s prior ruling, and, in any event, it was not relevant to B’s testimony as to what she had observed in the apartment at the time of the alleged assault. The court agreed with the state and denied counsel’s request, explaining that the suggested line of questioning had no bearing on, or relevance to, the issues in the case.
When the court reconvened three days later, the defendant filed a written motion for reconsideration of the trial court’s ruling barring admissiоn of the prior sexual conduct evidence.7 The motion also contained a request for permission to present the testimony of the defendant, A, B and K in support of the defendant’s claim of third party culpability for A’s injuries. The defendant explained, as defense counsel had done in connection with the previous motion, that the theory of the defense was that A and B had contrived the accusation against the defendant to cover up his discovery that A was having sexual intercourse with K. The defendant thus sought to (1) question B about what the defendant had told her regarding the incident involving A and K, as well as her subsequent actions in arranging for the surveillance of her children, (2) question K about the source of A’s injuries, the fact that K was alone with A during the three days before the alleged assault, and what he may have heard and seen on the date of the alleged assault, and (3) question A about having sexual intercourse with K, being alone with K during the three days before the incident, her awareness that the defendant had made accusations that she had sexual intercourse with K, and about whether the
In its oral ruling on the motion for reconsideration, the court stated, with respect to K, that it was not barring the defense from calling anybody from testifying but that the testimony must be relevant and material to the issues in the case. The court asked defense counsel to explain the relevance of K’s proposed testimony because it had not yet heard anything that would support counsel’s position that the testimony was admissible. Defense counsel reiterated that K’s testimony was intended to show that K had a sexual relationship with A three days before the alleged assault and that this was both the source of A’s injuries and the motivation for A and B to cover up that relationship by making accusations against the defendant. The state characterized the proposed line of questioning as self-serving, and the court, after stating that it had heard the same argument before, denied the defendant’s request to reconsider its prior ruling because ‘‘there’s nothing coming into this court regarding any incestual relationships with this person and her brother, none.’’ The court added that, if the defense wanted to bring K in ‘‘to make an offer of proof to preserve it for the appellate record,’’ that would be up to counsel. The court repeated that thе proposed testimony had no relevance or bearing on the issues in the case and that the only relevant evidence was evidence relating to what had happened in B’s bedroom in the early morning hours of January 29. The court characterized the evidence offered by the defense as ‘‘speculation and . . . hearsay and not admissible . . . .’’9
B
We begin our analysis with the standard of review. ‘‘It is well established that a trial court has broad discretion in ruling on evidentiary matters, including matters related to relevancy. . . . Accordingly, the trial court’s ruling is entitled to every reasonable presumption in its favor . . . and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court’s discretion.’’ (Citations omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260, 796 A.2d 1176 (2002). If we conclude, however, that the evidentiary ruling was improper and that the evidentiary impropriety ‘‘is of constitutional [proportion], the state bears the burden of proving that the error was harmless beyond a reasonable doubt.’’ (Internal quotation marks omitted.) State v. Osimanti, 299 Conn. 1, 16, 6 A.3d 790 (2010).
‘‘Whether such error is harmless in a particular case depends [on] 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 mаterial 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 evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a ten-dency to influence the judgment of the jury, it cannot be considered harmless.’’ (Internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 426, 64 A.3d 91 (2013).
With respect to the governing legal principles, ‘‘[i]t is well established that a defendant has the right to confront witnesses against him as guaranteed by the confrontation clauses of both our federal and state constitutions. . . . [T]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the [s]tate’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process. . . .
‘‘We are mindful, however, that the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . For example, the trial court has a right, indeed, [a] duty, to exclude irrelevant evidence. . . . The rules excluding evidence from criminal trials, however, may not be arbitrary or disproportionate to the purposes they are designed to serve. . . .
‘‘We [likewise] recognize that, in cases involving sexual crimes, [t]he rape shield statute . . . was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . [T]he state . . . [relies on] the legislative intent behind the rape shield statute in [seeking to exclude] the prior sexual abuse evidence in order to [protect] the victim’s sexual privacy . . . [shield] her from undue harassment . . . and [enable her] to testify in court with less fear of embarrassment. . . . [Nonetheless], [a]lthough the state’s interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh the defendant’s competing constitutional interests.’’ (Citations omitted; internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 174–76.
‘‘In order to determine whether evidence of prior sexual abuse properly was excluded in the context of [a] sexual assault case, therefore, we refer to the strictures of Connecticut’s rape shield statute. . . . [Section] 54-86f prohibits the admission of a victim’s prior sexual conduct . . . unless such evidence is . . . offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of . . . injury, or . . . offered by the defendant оn the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct . . . or . . . otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.’’ (Internal quotation marks omitted.) Id., 178.
The rape shield statute ‘‘provides for a two step process before evidence
‘‘In the first step of this two part process, the defendant bears the burden of showing that the proffered evidence overcomes the presumption, inherent in
‘‘If the trial court determines that the evidence is relevant and admissible under one of the exceptions enumerated in
‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . In considering whether evidence [is] sufficiently relevant to fall under one of the exceptions enumerated in
We emphasize that, ‘‘[i]n order to carry [the] threshold burden of establishing relevance, a defendant must make an offer of proof13 as a prerequisite to
C
Mindful of these principles, we first conclude that the trial court improperly excluded the proffered evidence of prior sexual conduct on relevancy grounds. The defendant’s initial motion to introduce the evidence and his motion for reconsideration both made clear that he was not offering the evidence to suggest that A, who was eleven years old at the time of the alleged assault, had an unchaste reputation or character. Rather, the motions explicitly stated, and the defendant’s allegations unmistakably demonstrated, that the evidence of prior sexual conduct was offered to show a possible alternative source of A’s injuries under the exception set forth in
Moreover, ‘‘[
Evidence should be excluded as unduly prejudicial when (1) it may unnecessarily arouse the jurors’ emotions, hostilities or sympathies, (2) it may create distracting side issues, (3) it will consume an undue amount of time, or (4) one party is unfairly surprised and unprepared to meet it. E.g., State v. Rinaldi, supra, 220 Conn. 356.
We first note that, when evidence is proffered under one of the exceptions in the rape shield statute to support an alternative theory concerning the source of the victim’s injuries, it will almost always be deemed more probative than prejudicial because it implicates the defendant’s constitutional right of confrontation. Thus, although incestual relationships may inspire a negative emotional response, the fact that A and K are siblings does not outweigh the probative value of evidence that they had engaged in sexual intercourse three days before the alleged assault because such evidence supported the defendant’s claim that the sexual encounter between A and K could have been an alternative source of A’s injuries and a motivation for A and B to accuse the defendant of sexual assault. Moreover, the potentially prejudicial effect of the evidence was lessened by the fact that its significance had nothing to do with the sibling relationship but, rather, with the fact that A’s injuries may have resulted from sexual intercourse with someone other than the defendant three days before the alleged assault. Any prejudicial effect of the evidence also was limited because it was not overly graphic. Accordingly, we conclude that the probative value of the proffered evidence outweighed its prejudicial effect and that the trial court abused its discretion in precluding its admission.
To the extent the trial court concluded that the facts did not support a continuing evidentiary hearing or admission of the evidence because the prior sexual conduct had not been clearly defined or shown to closely resemble the alleged assault, we disagree. In reaching that conclusion, the trial court relied on Rolon, in which the defendant claimed that ‘‘he was denied his constitutional rights to confrontation, to present a defense and to a fair trial when the trial court prohibited him from presenting evidence of [the victim’s] prior sexual abuse where the factual similarities between the present and previous instances could have: (1) demonstrated an alternative source for [the victim’s] sexual knowledge; and (2) resultеd in [the victim’s] confusion over the identity of the perpetrator.’’ State v. Rolon, supra, 257 Conn. 160. To resolve that claim, we adopted the five part test first articulated by the Wisconsin Supreme Court in State v. Pulizzano, 155 Wis. 2d 633, 656, 456 N.W.2d 325 (1990), for determining whether a defendant has established ‘‘a constitutional right to present otherwise excluded evidence of a child [sexual abuse victim’s] prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge . . . .’’ State v. Rolon, supra, 183. Under that test, ‘‘[a] defendant must make an offer of proof to the trial court showing: ‘‘(1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a
We conclude that the trial court improperly relied on the test set forth in Rolon to preclude admission of the proffered evidence. Unlike in the present case, it was undisputed in Rolon that the victim had been subjected to prior sexual abuse by someone other than the defendant; see State v. Rolon, supra, 257 Conn. 161 and n.10; and, therefore, the defendant had no need to prove that the prior sexual abuse occurred. In Rolon, the abuse began when the viсtim was eight months old and continued until she was five years old; see id., 161–63; and the issue before the court was whether the victim, because of her very young age, could have confused the defendant with the perpetrator of the prior abuse because of similarities in the type of abuse and in the characteristics of the former perpetrator and the defendant, both of whom were older men and grandfather figures. See id., 159–60, 166–67.
In contrast, the defendant in the present case does not claim that A was confused as to the identity of the perpetrator because of prior sexual abuse similar to the sexual abuse at issue, but, rather, that she was not telling the truth about what had happened in the early morning hours of January 29. Thus, insofar as the trial court excluded the proffered evidence by relying on the first two prongs of the Rolon test, which require that ‘‘the prior acts clearly occurred’’ and that ‘‘the acts closely resembled those of the present case’’; (internal quotation marks omitted) id., 184; its reliance was mis-placed because the defendant’s theory that A had sexual intercourse with K three days before the alleged assault does not fall within the exception in the rape shield statute described in Rolon, which is applicable to evidence admitted for the limited purpose of proving an alternative source of sexual knowledge.16 See State v. Brisco, 84 Conn. App. 120, 138–39, 852 A.2d 746 (rejecting application of Rolon test because source of sexual knowledge not at issue), cert. denied, 271 Conn. 944, 861 A.2d 1178 (2004).
We first note that Cicero did not testify before the trial court rendered its decision on the defendant’s motion, and, therefore, the court did not consider his testimony in reaching its conclusion as to whether the jury should have been allowed to hear the defendant’s proposed defense. Even if Cicero had already testified, however, the defendant made allegations in support of his defense other than those concerning the inappropriate touching and the cell phone recording. These allegations included that A admitted, after he allowed her to hear the cell phone recording, that she and K were ‘‘having sex’’ while the defendant was in the shower, that the defendant informed B about this incident, and that B purchased a video surveillance camera after the defendant had informed her. As previously noted, the rape shield statute ‘‘encompasses inferential as well as direct evidence of sexual conduct.’’ State v. Rinaldi, supra, 220 Conn. 354. Consequently, the defendant was not required to allege more detailed facts or rebut possible contrary evidence or testimony in order to satisfy his burden of showing that the proffered evidence was relevant and admissible.17
We therefore conclude that the trial court abused its discretion by improperly precluding the defendant from introducing the prior sexual conduct evidence in violation of his federal and state constitutional rights to confrontation. We further conclude that, if the evidence had been admitted, the outcome of the trial could
In this opinion ROGERS, C. J., and NORCOTT, PALMER, EVELEIGH and McDONALD, Js., concurred.