244 Conn. 640 | Conn. | 1998
Lead Opinion
Opinion
This appeal concerns the preliminary showing that a defendant in a sexual assault case must make before he may cross-examine a constancy of accusation witness with respect to the victim’s alleged prior false complaint of sexual assault by another person. The state charged the defendant, John W. Sullivan, with sexual assault in the first degree pursuant to General Statutes § 53a-70 (a) (l)
The defendant appealed from the judgment of the Appellate Court, which, in a per curiam opinion, had affirmed the trial court judgment against him.
The jury reasonably could have found the following facts. In the summer of 1992, the defendant, then a Massachusetts state trooper, was married to the victim’s first cousin. The victim was working part-time as a bookkeeper and part-time as an exotic dancer. She had done some modeling, including posing for nude photographs. On July 1, 1992, the defendant contacted the victim and told her that, along with twenty-five other people on a “secret indictment list,” she would be charged with telephone solicitation, drug trafficking, racketeering, prostitution and illegal pornography. The defendant stated that the police had copies of some of the victim’s nude photographs, and that she was facing three to six years in prison. He told her that if she cooperated with him, he could have her name removed
At his trial for having committed those sexual assaults, the defendant submitted a motion in limine requesting that the court allow him to cross-examine the victim and her father. The defendant sought the opportunity to cross-examine those two witnesses with respect to a statement that the father had made to the police. That statement represented that the victim had been sexually assaulted once before, in 1990, and that the Worcester, Massachusetts police had handled that investigation. Defense counsel informed the court that discussions with the Worcester police had revealed that they had no record of a complaint by the victim regarding this alleged prior incident. In support of his motion, the defendant submitted a copy of the father’s statement to the police in the current case, and a letter from the Worcester police confirming that they had no record of a previous sexual assault investigation concerning this victim.
The trial court denied the defendant’s motion. The court noted that this alleged prior sexual assault complaint had been mentioned only in a statement by the victim’s father, not in the victim’s own testimony. The court reasoned that cross-examination of the victim and her father regarding this collateral incident would be irrelevant and distracting. We agree with the Appellate Court; State v. Sullivan, supra, 44 Conn. App. 902; that the judgment of the trial court should be sustained.
The constancy of accusation doctrine is well established in Connecticut and recently has been reaffirmed by this court. See State v. Troupe, 237 Conn. 284, 297-98, 303-304, 677 A.2d 917 (1996); State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994); State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986). The doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be “natural” for her to confide in others.
Notwithstanding our decision in Troupe, we recognize that the constancy of accusation doctrine creates a tension between competing well recognized principles. It remains a powerful weapon in the state’s arsenal
At trial in this case, the defendant sought to cross-examine the victim and her father about claimed false statements by the victim to her father regarding a prior alleged sexual assault and its investigation. The defendant’s motion in limine stated that the subject of the proposed cross-examination was a “prior allegation of rape . . . which the father claims was under investigation by the Worcester [p]olice [department.”
As the defendant acknowledges, it is well established that “[t]he trial court has broad discretion in ruling on the admissibility of evidence. "State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988),
In a sexual assault case, the admissibility of evidence of the victim’s prior sexual conduct, including past allegations of sexual assault, is narrowly circumscribed by § 54-86f.
Insofar as the defendant sought to cross-examine the victim and her father regarding an alleged prior sexual assault and its investigation, the trial court was bound, in the exercise of its discretion, by our rape shield statute. Section 54-86f limits the admissibility of evidence of a victim’s prior allegations of sexual assault. See State v. Kulmac, 230 Conn. 43, 50-56, 644 A.2d 887 (1994); State v. Barrett, 43 Conn. App. 667, 671-73, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997); State v. Manini, 38 Conn. App. 100, 106-108, 659 A.2d 196 (1995), cert. denied, 234 Conn. 920, 661 A.2d 99 (1995). Under § 54-86f (4), such evidence is admissible if it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.”
The defendant bears the burden of establishing the relevance of the proffered testimony. In order to get
In order to carry his threshold burden of establishing relevance, a defendant must make an “offer of proof as a prerequisite to obtaining an evidentiary hearing to determine the admissibility of evidence . . . ,”
In this case, the defendant failed to make an adequate preliminary showing to justify cross-examining the victim and her father about claimed allegations of an alleged prior sexual assault and its investigation.
For many of the same reasons, the trial court also acted within its discretion in disallowing cross-examination of the victim’s father to demonstrate that the
Even if the facts that were offered indicated that the victim had lied to her father about the existence of a prior sexual assault investigation, the trial court reasonably could have concluded that the victim’s prior false statement was of limited probative value in assessing her credibility in this case. Even if we were to assume, arguendo, that the rape shield statute did not bar the proffered evidence, the trial court acted within its discretion in excluding the evidence under the general evidentiary rules governing impeachment by prior misconduct. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.22.2, pp. 204-205. The trial court reasonably could have concluded that the claimed events were remote in time, had minimal bearing on the victim’s credibility and would have injected a collateral issue into the trial. See, e.g., State v. James, 211 Conn. 555, 571-72, 560 A.2d 426 (1989). Specifically, the factual circumstances of the prior alleged sexual assault, which may well have been a “date rape,” were far
“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995); see also State v. Kelley, supra, 229 Conn. 563. Accordingly, in light of the insufficiency of the defendant’s offer of proof to support his claim with respect to the relevancy of the proffered evidence, the trial court did not abuse its discretion in disallowing this line of questioning, and the Appellate Court properly affirmed the judgment of the trial court.
The judgment of the Appellate Court is affirmed.
In this opinion BORDEN and PALMER, Js., concurred.
General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
The sole issue presented to the Appellate Court was: “Whether the trial court abused its discretion in excluding evidence that the victim falsely claimed to have initiated other police investigations of rape?”
The question that we certified did not include any issue of constitutional law. The defendant’s petition for certification did not raise any issue of constitutional law. The petition stated the question to be “the interplay between the rape shield law and the constancy of accusation doctrine.” Although the petition alluded to the constitutional caveat contained in General Statutes § 54-86f (4), the petition characterized the issue as pertaining to “the relevancy of prior false statements.”
General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach
As we noted in Troupe, the assumption that it is “natural” for victims to report that they have been sexually assaulted has been largely discredited by modern research indicating that victims may not tell others about a sexual assault owing to feelings of shame or fear of public embarrassment. State v. Troupe, supra, 237 Conn. 295.
At no point in these proceedings has the defendant claimed that the provisions of our state constitution afford him rights greater than those arising under the federal constitution.
The defendant has not briefed a claim that the trial court’s ruling violated his constitutional rights under either the United States or the Connecticut constitution. He claims only that the trial court abused its discretion in excluding the proffered testimony. Accordingly, we analyze this claim as an evidentiary issue within the discretion of the trial court, albeit one controlled by a statutory exception incorporating constitutional standards. General Statutes § 54-86f (4).
Justice Berdon’s dissenting opinion points to law from other jurisdictions to argue that a victim’s prior false allegations of sexual assault may not be covered by our rape shield statute. It is at least doubtful that an allegation by a defendant that a victim’s prior claim was false would be sufficient to circumvent § 54-861'. Such a rule could eviscerate the prophylactic function of our rape shield statute. In any event, this controversial issue has not been raised by the defendant in this case, who argues only that the rape shield statute would not cover prior statements about whether the police had initiated a previous sexual assault investigation.
The defendant’s motion in limine provided: “Now comes the defendant in the above-entitled matter and moves that this Honorable Court allow defense counsel to cross-examin[e] the complaining victim and her father with respect to a prior allegation of rape . . . which the father claims was under investigation by the Worcester Police Department Discussions with members of the Worcester Sexual Assault unit disclosed that this was never [a] complain[t] made by [the victim] with respect to another rape. This evidence is relevant and material to the impeachment of [the victim] and [her father’s] credibility.”
Defense counsel stated to the trial court that he had submitted: “[A] motion in limine with respect to my cross-examining both the alleged victim in this particular case and also her father with respect to prior rape allegations in a statement that was given to the Connecticut State Police by [the victim’s father], ... He alleges that [the victim] had been raped in the past by a young man who was working for Rob Roy’s, which is a hair salon in Worcester, and that that particular matter was brought to the attention of the Worcester Police Department and that particular incident was under investigation by the Worcester Police. We have had contact with the Worcester Police. I believe it was Lieutenant [William P.] O’Connor who heads the sexual assault unit in Worcester and there was no investigation. There was no report of a rape in this particular case by [the victim], Your Honor. And
To the extent that the defendant’s offer of proof was intended to give the defendant greater latitude to cross-examine the victim herself, that claim does not involve the constancy of accusation doctrine. The victim’s father
For example, a trial court might act within its discretion to exclude evidence of even a demonstrably false prior allegation of sexual assault if the circumstances of the victim’s earlier accusation were so different from the case at bar that the prejudicial effect of the prior incident would outweigh its probative value. See, e.g., United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir. 1988) (circumstances of two cases were so dissimilar that even if victim had lied about first case, probative value of that fact was slight); Hughes v. Raines, 641 F.2d 790, 793 (9th Cir. 1981) (aside from fact that proffer was insufficient to demonstrate falsity, prior sexual assault allegation had involved date rape and current case was stranger rape). Because the defendant’s proffer in this case was too weak to establish even relevance, as discussed later in this opinion, we are not required to engage in this balancing here.
General Statutes § 54-86f provides in relevant part: “Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court, may order such hearing held in camera .... If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. . . .”
The defendant argued in his brief to this court that the trial court abused its discretion in failing to order an evidentiary hearing to determine whether the evidence was admissible. As discussed subsequently, however, defense counsel did not request such a hearing at trial. In this court, the defendant also claimed that the trial court should have ordered an evidentiary hearing sua sponte, even in the absence of a request by defense counsel. The defendant, however, cited no cases to support his claim that the trial court had an affirmative duty to order an evidentiary hearing sua sponte. As discussed previously in footnote 3 of this opinion, the certified question presents only an evidentiary question, not a constitutional claim. In such circumstances, “we are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997); see also State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991).
Contrary to the assertion of Justice Berdon in his dissenting opinion, we are not holding that the defendant was required to move for an evidentiary hearing in order to bolster this presentation. Moreover, the defendant’s election not to move for such a hearing did not deprive the trial court of its ability to order such a hearing sua sponte. Had the trial court found the defendant’s offer of proof persuasive, it would have been within its discretion in ordering such a hearing.
We reject, however, the defendant’s claim, in passing, that the court was obligated, sua sponte, to hold such a hearing. We have held that a trial court may abuse its discretion if it fails to inquire into charges of juror misconduct. State v. Brown, 235 Conn. 502, 521, 668 A.2d 1288 (1995). Similarly, the trial court is obligated to inquire whether the defendant is making a knowing and voluntary waiver of certain fundamental constitutional trial rights. See State v. Frye, 224 Conn. 253, 262, 617 A.2d 1382 (1992) (right to represent oneself); State v. Williams, 205 Conn. 456, 461, 534 A.2d 230 (1987) (right to trial by jury); State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987) (right to conflict-free representation). A trial court’s duty of independent inquiry, however, arises in situations implicating the fundamental fairness of the proceedings and the defendant’s core constitutional trial rights.
Finally, we disagree with the suggestion in Justice McDonald’s dissenting opinion that § 54-86f, which was not cited to the trial court, requires such a sua sponte hearing in this case. We never have held so. The issue now before us does not raise any question about the manner in which the hearing should have been conducted, if the defendant had made a proper request for one.
In this court, the defendant claimed that he had sought to pursue this line of questioning in order to demonstrate that the victim had lied about the existence of a serious felony investigation, without necessarily revealing that the alleged investigation had involved a sexual assault charge. The defendant’s written and oral submissions to the trial court, however, do not present this alternative. Thus, we do not consider whether the trial court would have abused its discretion in disallowing this line of questioning.
Dissenting Opinion
dissenting. This is one of those cases in which the defendant, who may very well be innocent, will lose his liberty because of this court’s failure to recognize his fundamental constitutional right to cross-examine witnesses and its adherence to the anachronistic rule on constancy of accusation evidence.
In order to appreciate the prejudice to the defendant by not allowing him an opportunity to cross-examine
The only evidence to support the conviction of the defendant for the sexual assault of K was the testimony of K and that of nine constancy of accusation witnesses,
The defendant filed a motion for permission to cross-examine K and her father concerning a prior false statement about a sexual assault investigation by the Worcester police department, which allegation was contained in the father’s statement to the Connecticut state police. This motion obviously was filed pursuant to the rape shield statute, General Statutes § 54-86f.
In argument before the court on the motion, trial counsel for the defendant stated: “And the other matter, Your Honor, is a motion in limine with respect to my cross-examining both [K] and also her father with respect to prior rape allegations in a statement that was given to the Connecticut state police by [K’s constancy of accusation witness], that is [K’s] father. He alleges that [K] had been raped in the past by a young man who was working for Rob Roy’s, which is a hair salon in Worcester, and that that particular matter was brought to the attention of the Worcester police department and that particular incident was under investigation by the Worcester police. We have had contact with
The trial court denied the defendant’s motion, not on the basis that the defendant failed to make an adequate offer of proof or that he failed to satisfy the rape shield statute, but because it was not relevant.
I
As a preliminary matter, I address whether the rape shield statute is applicable, as the majority claims, to the alleged false statement made by K and/or her father about the investigation of the prior alleged sexual assault. The majority asserts that evidence of a claimant’s prior false statement concerning a nonexistent investigation of an alleged sexual assault falls under the rape shield statute because it involves the sexual conduct of the claimant. I disagree for several reasons. First, the term conduct, by definition, refers to “a mode or standard of personal behavior especially] as based on moral principles . . . [or] behavior in a particular situation or relation or on a specified occasion . . . .” Webster’s Third New International Dictionary. In the
Second, questioning K and her father about K’s and/ or her father’s prior false statement concerning the noninvestigation of an alleged sexual assault does not contravene the purposes of the rape shield statute. Section 54-86f was enacted by our legislature to promote the following purposes: “protecting the victim’s sexual privacy and shielding her from undue harassment . . . and enabling the victim to testify in court with less fear of embarrassment.” State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). Clearly, K’s sexual privacy would not be violated, nor would she be subject to undue harassment if she had to answer questions about a false statement she allegedly made to her father. See H. Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade,” 70 Minn. L. Rev. 763, 862 (1986) (“proof of prior false allegations of rape will almost never require the introduction of sexual conduct evidence”); 23 C. Wright & K. Graham, Federal Practice and Procedure (1980) § 5384, pp. 546-47, and n. 63 (prior false accusations of rape “ought to be excluded from the definition of ‘sexual behavior’ ” in rule 412 of Federal Rules of Evidence [rape shield]).
Third, other jurisdictions hold that the victim’s false allegations of sexual assault, not just the victim’s prior false statements about assault investigations, do not fall within their rape shield statutes. See, e.g., United States v. Stamper, 766 F. Sup. 1396 (W.D.N.C. 1991), aff'd without published opinion sub nom. In re One Female Juvenile Victim, 959 F.2d 231 (4th Cir. 1992); Covington v. State, 703 P.2d 436 (Alaska App.), aff'd in
Because K’s prior alleged false statement concerning the noninvestigation by the Worcester police department of an alleged sexual assault does not fit within the phrase “sexual conduct,” § 54-86f is not relevant to the inquiry before us. In other words, the trial court was not bound in the exercise of its discretion by § 54-86f, but, rather, by our evidentiary rules regarding impeachment of a witness by specific acts of misconduct.
II
Even if the rape shield statute applied to the inquiry sought by the defendant, I would come to the same conclusion that a new trial is required. The majority incorrectly refuses to review the defendant’s claim with respect to his right to cross-examine K and her father within the contours of the defendant’s right of confrontation pursuant to the sixth amendment to the United States constitution because it claims the constitutional issue was not briefed.
Accordingly, I begin my analysis of the trial court’s denial of the defendant’s motion with a review of established federal constitutional principles relative to the right to cross-examine adverse witnesses. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L.
Notwithstanding the constitutional standards embodied in the confrontation clause, the majority holds for the first time, that, pursuant to § 54-86f, a defendant in a sexual assault case is not entitled automatically to an evidentiary hearing outside the presence of the jury to examine the claimant concerning an alleged prior false statement in order to determine whether such cross-examination offends the statute. Instead, according to the majority, the defendant’s entitlement to a hearing is dependent on his ability to make an adequate showing
The majority’s holding on this issue of first impression for this court is based entirely on the Appellate Court’s decision in State v. Manini, 38 Conn. App. 100, 113-14, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995), in which the Appellate Court, on the basis of “the language of § 54-86f and on the reasoning of the sibling state decisions” adopted the same rule with respect to defense motions to cross-examine complainants in sexual assault cases. The Appellate Court decision is incorrect because that court misinterpreted the clear language of § 54-86f, and it relied on clearly distinguishable decisions of the Idaho Court of Appeals; State v. Gabrielson, 109 Idaho 507, 708 P.2d 912 (App. 1985); State v. Palin, 106 Idaho 70, 675 P.2d 49 (App. 1983); and the New Mexico Court of Appeals. State v. Herrera, 92 N.M. 7, 582 P.2d 384 (App. 1978). Pursuant to § 54-86f, evidence that is so “relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights . . . shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. ... If, after hearing, the court finds that the evidence meets the requirements of [§ 54-86f] and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion.” (Emphasis added.) In my view, once the defendant has established the relevance of his proposed inquiry through one of the three recognized methods in this state, § 54-86f requires that the trial court hold an evidentiary hearing outside the presence of the jury, “either before trial or during trial, to determine if the probative value of the evidence is outweighed by its prejudicial effect on the victim.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 2.2.4, p. 17. The trial court has discretion only to
The decisions of the Idaho Court of Appeals and the New Mexico Court of Appeals that the Appellate Court relied on in Manini, are distinguishable on important procedural grounds. First, Idaho and New Mexico allow
Even if the majority is correct that some showing is required under the rape shield statute before the defendant is granted an evidentiary hearing outside the presence of the jury in order to demonstrate that he should be allowed to cross-examine the witness before the jury, that showing has been made in this case. The defendant’s offer of proof set forth the statement of K’s father to the Connecticut state police in which the father had alleged that the Worcester police had investigated a prior sexual assault complaint. The offer of proof also included a letter from Lieutenant O’Connor, a member of the sexual assault unit of the Worcester police department, in which O’Connor represented that no sexual assault complaint was filed with the Worcester police department. From these basic facts, the trial court should have inferred that either K’s father, K, or both were lying concerning the nonexistent police investigation. The defendant could not prove to the trial court that K had lied before he cross-examined K and her father, or at the least, had been given the opportunity to conduct a preliminary examination of them outside the presence of the jury, because he had no other way to obtain pretrial information about the false statement. See State v. Chance, 236 Conn. 31, 61, 671 A.2d 323 (1996) (holding that state’s attorney, who “had no occasion, prior to the defendant’s trial testimony, to question
I conclude that because the defendant’s offer of proof was sufficient to establish the relevance of his proffered cross-examination, the trial court violated his confrontation right under the sixth amendment to the United States constitution. Although the majority attempts to shield its decision from the scrutiny of the constitution, the sixth amendment constitutional right to cross-examination — as I have previously pointed out — is not only implicit in our certified question, but also, it goes to the essence of the issue. In Davis v. Alaska, supra, 415 U.S. 320, the United States Supreme Court recognized that the defendant’s right to examine a witness’ motive to fabricate is a critical part of the defendant’s right to present evidence on his own behalf, and it outweighs the state’s interest “in protecting the confidentiality of a juvenile offender’s record . . . .” The court stated that such an interest “cannot require [the] yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. ” Id. In Olden v. Kentucky, 488 U.S. 227, 232-33, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988), the United States Supreme Court reversed the Kentucky Court of Appeals’ affirmance of the trial court’s refusal to allow the defendant to impeach the sexual assault victim by introducing evidence of the victim’s motive to fabricate her claims, which evidence would have also implicated her interracial living arrangement. The court explained in Olden
Accordingly, I would, at the least, remand this case to the trial court to allow for an evidentiary hearing. If the trial court finds that there was sufficient evidence to support the proffered cross-examination, and finds that, subject to and within the context of the requirements of the sixth amendment of the United States constitution, “the probative value of the evidence outweighs its prejudicial effect on the victim”; General Statutes § 54-86f; it should grant the defendant a new trial.
IV
The defendant also argues in this case that if relevant evidence that would impact on the credibility of an
At the time of the defendant’s trial in 1995, before this court issued its ruling in State v. Troupe, 237 Conn. 284, 299-300, 677 A.2d 917 (1996), Connecticut was “one of only five states
Although I concurred in Troupe that trimming the constancy rule by prohibiting witnesses from testifying about the details of the alleged assault would reduce the prejudice, I suggested that we continue to allow it only in certain limited circumstances.
At least under the circumstances of this case, where the defendant was unable to challenge the credibility of K, but the state was allowed to introduce nine other witnesses who attested to the credibility of K based solely on K’s out-of-court statements, and where there was no other evidence to support K’s claim of her tardy complaint of sexual assault, the defendant is entitled to a new trial. In other words, in this case, the trial court allowed the testimony of the state’s only witness to the sexual assault to be bolstered by nine witnesses who in effect testified before the juiy that K was telling the truth. It was plain error for the trial court to allow any constancy of accusation testimony to be introduced when the defendant was not permitted to cross-examine
Even though the majority will not grant the defendant a new trial as a result of the trial court’s restriction of the defendant’s cross-examination of K and her father, it should reverse the defendant’s conviction on the ground that it was plain error under the circumstances of this case to allow nine constancy of accusation witnesses to bolster the credibility of K.
Accordingly, I dissent.
In this case, the jury heard testimony from the following nine constancy of accusation witnesses: K’s mother, her father, her boyfriend, her narcotics anonymous sponsor, the recreation director at the nudist resort, and four police officers.
The trial in this case was held prior to our decision in State v. Troupe, 237 Conn. 284, 304-305,677 A.2d 917 (1996), wherein we held, prospectively, that constancy of accusation witnesses would not be allowed to testify as to the details of the alleged sexual assault.
General Statutes § 54-861'provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by 1he defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under
The majority asserts that applying impeachment evidence rules to this case would “eviscerate the prophylactic function” of § 54-86f. I disagree because — as I have previously pointed out — cross-examination of a com
The majority argues that the trial court acted within its discretion in excluding the cross-examination of K under general evidentiary rules governing impeachment by prior misconduct because the prior incident in Worcester “may well have been a ‘date rape’ ” and, as such, was “far removed from the facts of this case.” I find this reasoning without foundation and illogical. First, there is no evidence in the record that would indicate that the prior incident was a “date rape.” Second, I fail to understand the majority’s distinction between a “date rape” and other sexual assaults. Whether a sexual assault occurs on a date or otherwise, it is still a sexual assault. Third, any false allegation necessarily reflects on the complainant’s credibility.
See footnote 7 of the majority opinion.
The defendant claims in his brief to this court, that “there are two standards for relevance [of the cross-examination] — a narrow one which applies until the minimum Constitutional standards for cross-examination have been satisfied and a more broad one which applies thereafter.” The defendant then cited to Justice Berdon’s dissent in State v. Beliveau, 237 Conn. 576, 604-605, 678 A.2d 924 (1996), which included the following discussion of the trial court’s discretion: “This discretion that [this court] attributes to the trial court stands the sixth amendment to the United States constitution on its head. Indeed, we have held that the trial court’s discretion arises . . . only after the defendant has been permitted cross-examination . . . sufficient to satisfy the sixth amendment. . . . Furthermore, until such time as the defendant’s constitutional right to confrontation has been satisfied, the trial court has a narrow and clearly defined scope of discretion to determine the relevancy of evidence. [T]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony. McCormick, Evidence (2d Ed.) § 29; see Brown v. United States, 409 A.2d 1093, 1099 (D.C. App. 1979) (rape case). State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983). Under these circumstances, any plausible basis put forth for such cross-examination satisfies the relevance requirement. See State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995).” (Citations omitted; internal quotation marks omitted.)
“ ‘Upon written request of the defendant the prosecuting attorney shall furnish to the defendant a written list of the names and addresses of all persons having knowledge of relevant facts who may be called by the state as witnesses at the trial, together with any record of prior felony convictions of any such person which is within the knowledge of the prosecuting attorney. The prosecuting attorney shall also furnish upon written request the statements made by the prosecution witnesses or prospective prosecution witnesses to the prosecuting attorney or his agents or to any official involved in the investigatory process of the case unless a protective order is issued as provided in Rule 16 (k).’ ” State v. Gabrielson, supra, 109 Idaho 514, quoting Idaho Criminal Rule 16 (b) (6).
“ ‘Upon motion of the defendant showing that he has substantial need in the preparation of his case for additional material or information not otherwise covered by this Rule 16 (b), and that he is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order the additional material or information to be made available to him. The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive.’ ” State v. Gabrielson, supra, 109 Idaho 514, quoting Idaho Criminal Rule 16 (b) (8).
Furthermore, the Appellate Court in Manini placed too much emphasis on language from State v. Gabrielson, supra, 109 Idaho 510, stating that “[the rape shield statute] was not intended to allow defense counsel to conduct a fishing expedition into the prior sexual conduct of the victim,
The Appellate Court in Manini also relied on language from State v. Herrera, supra, 92 N.M. 16, for support, stating that it is up to the defendant to “make a preliminary showing which indicates the relevancy.” (Internal quotation marks omitted.) State v. Manini, supra, 38 Conn. App. 113. This statement, however, must be read in the context of the facts of that case— that is, the defendant wanted to inquire about the minor victim’s sexual conduct to show she consented to the act which supported his conviction for statutory rape. Pursuant to the statutory rape statute, however, consent was not a defense. Therefore, the defendant in Herrera had failed to establish any relevancy for his proposed inquiry.
The majority fails to appreciate the limits on discovery in criminal cases in Connecticut Pursuant to Practice Book § 791, now Practice Book (1998 Rev.) § 40-44, and General Statutes § 54-86 (a), the moving party may depose a witness only if he can demonstrate the unavailability of the witness for trial or for a hearing. See State v. Zaporta, 237 Conn. 58, 65-66 n.7, 676 A.2d 814 (1996); A. Spinella, Connecticut Criminal Procedure (1985) pp. 538-39 (“ [notwithstanding the evident advantages of a procedure which allows for the discovery of evidence through pre-trial examination of prospective witnesses, the deposition in Connecticut criminal procedure is limited to the preservation rather than the discovery of evidence"). Indeed, “[t]he benefits arising from the availability of a procedure which provides for the oral examination of parties or witnesses before trial are several. In addition to the advantages associated with other discovery devices — such as the prevention of delays, avoidance of surprise at trial, elimination of issues, and facilitation of the trial of the case through better preparation— the deposition can preserve testimony in the event a witness becomes
“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). In the present case,
The defendant argued in his brief that “[i]f there is reliable evidence about [K’s] credibility and especially about her relationship to [constancy] of accusation witnesses, and that evidence is inadmissible at trial, should not the [constancy] of accusation testimony also be inadmissible? Here, as in other cases, the defendant can be caught between the [constancy] of accusation doctrine and the Rape Shield Law in such a way that the jury is given the misleading impression that the witness is credible because only the [constancy] of accusation evidence favorable to her is admissible. The jury is never told that she has lied in the past about matters of similar gravity. ”
Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5, provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
See Territory v. Schilling, 17 Haw. 249 (1906), overruled in part on other grounds, Territory v. Nishi, 24 Haw. 677 (1919), and Territory v. Silva, 27 Haw. 270 (1923); Commonwealth v. Licata, 412 Mass. 654, 591 N.E.2d 672 (1992); State v. Blohm, 281 N.W.2d 651 (Minn. 1979); Johnson v. State, 17 Ohio 593 (1848).
“In summary, I would limit the rule as follows: (1) constancy evidence would be admissible only if the defendant, either through cross-examination or through direct testimony, asserts that the victim was not in fact sexually assaulted; (2) the complaint must be made within a reasonable time after the alleged assault, or any delay must be reasonably explained; (3) the victim’s complaint must be voluntarily made; (4) constancy testimony must be confined, on direct, to the fact that the victim complained, and should not contain details of the complaint, including the identity of the alleged assailant; and (5) the trial judge has discretion to exclude cumulative constancy evidence. Only then would the rule have been trimmed in a manner that does not exceed its purpose, while minimizing the prejudicial impact on the defendant.” State v. Troupe, supra, 237 Conn. 320-21 (Berdon, J., concurring).
The majority’s justification for the continuation of the constancy of accusation hearsay exception in Connecticut puzzles me. The majority concedes that the “doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be ‘natural’ for her to confide in others.” The majority now seems to justify this exception on the basis that “[i]t remains a powerful weapon in the state’s arsenal to secure justice for victims of sexual assaults.” But the majority forgets that we need to do justice for all, the accused as well as the accuser. “Sending the innocent to jail, or depriving the guilty of due process, is not a price our Constitution allows us to pay for the legitimate and worthy ambition to protect those already victimized from additional suffering.” Stephens v. Miller, 13 F.3d 998, 1010 (7th Cir. 1994) (Cummings, J., dissenting). If witnesses are going to be allowed to testify about a hearsay complaint of an alleged victim that she was sexually assaulted by the defendant — and in this case there was not one such witness, but nine — then, constitutionally, a defendant should be able to cross-examine the alleged victim about a prior false statement concerning an alleged sexual assault.
The majority fails to appreciate that the only person that can be effectively cross-examined is the alleged victim; it is impossible to cross-examine a constancy of accusation witness with respect to the truth of what the victim told that witness.
Dissenting Opinion
dissenting. Here the defendant sought to establish that the complainant had made a false complaint of sexual assault in 1990. He presented a statement from her father representing that she had been sexually assaulted in Worcester, Massachusetts, and that the Worcester police “had handled that investigation,” and a letter from the Worcester police indicating that they had no record of such a complaint. He therefore moved, unsuccessfully, to cross-examine the complainant and her father concerning that incident.
It may be true that the trial court might have ruled that the resulting evidence was inadmissible before the jury. What was foreclosed, however, was the defendant’s only opportunity to establish from the complainant’s father that the complainant was the source of his information, and from the complainant whether she did in fact make a false complaint of sexual assault in 1990.
The majority observes that the defendant should have made a motion for an evidentiary hearing to be held outside the jury’s presence. Although the defendant’s motion in limine requesting cross-examination was not couched in terms of General Statutes § 54-86f, the rape shield statute, that statute explicitly required that such an inquiry be made outside the presence of the jury.
With respect to harmfulness of the ruling, I join Justice Berdon’s dissent as to the wholesale and detailed “constancy of accusation” evidence. This evidence included the complainant’s detailed statement to her father, as well as to the Massachusetts state police and the Connecticut state police, upon which statement the Connecticut police acted. This evidence, offered supposedly only to corroborate her complaint and not as substantive evidence, became substantive. If there was any question about this, the state’s attorney made it clear in his final argument. He suggested that the constancy of accusation witnesses believed the complainant. In arguing that the complainant was not crafty, he stated: “You would think — you know- — she’s hoodwinked the Connecticut state police, the Massachusetts state police — you saw them all march in here yesterday. Friends, relatives — she’s not that crafty, ladies and gentlemen.”
I respectfully dissent.
General Statutes § 54-86f provides in relevant part: “Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. . . (Emphasis added.) The defendant did not cite the rape shield law. The trial judge, however, referred to it when the defendant presented his motion. After the motion was presented, the triril court asked defense counsel, who was admitted to the Massachusetts bar, if he was familiar with Connecticut’s rape shield law.