STATE OF CONNECTICUT v. CHYWON WRIGHT
SC 19233
SC 19234
Supreme Court of Connecticut
April 19, 2016
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Argued February 10, 2015—officially released April 19, 2016
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Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, David A. Gulick, senior assistant state’s attorney, and Rocco A. Chiarenza, assistant state’s attorney, for the appellant in Docket No. SC 19233 and the appellee in Docket No. SC 19234 (state).
Annacarina Jacob, senior assistant public defender, for the appellee in Docket No. SC 19233 and the appellant in Docket No. SC 19234 (defendant).
Opinion
ZARELLA, J.
‘‘The victim was then moved to a second room. In this room, the defendant engaged in oral intercourse with the victim and vaginally penetrated the victim while wearing a black plastic convenience store bag on his penis. Also, in that room, several of the defendant’s fellow gang members engaged in oral, vaginal and anal intercourse with the victim. These events lasted for approximately one and one-half hours. Eventually, the victim left the apartment, wearing her clothes but leaving her shoes, cell phone and purse behind. Shortly thereafter, the victim went to Saint Mary’s Hospital in Waterbury, where she reported the sexual assault and the medical staff [examined her and utilized] a sexual assault evidence collection kit . . . .’’ (Footnote added.) State v. Wright, 144 Conn. App. 731, 733–34, 73 A.3d 828 (2013).
Subsequently, the defendant was charged with, and found guilty of, two counts of aggravated sexual assault in the first degree in violation of
The defendant appealed to the Appellate Court from the trial court’s judgment, claiming, first, that the trial court improperly had precluded him from introducing certain evidence of the victim’s prior sexual conduct, thereby violating his constitutional rights of confrontation and to present a defense. Id., 735–36. Second, the defendant claimed that his sentence on all three conspiracy counts, which were based on a single agreement with multiple criminal objectives, violated the double jeopardy clause of the federal constitution. Id., 745. The Appellate Court rejected the defendant’s first claim, concluding that ‘‘[t]he record demonstrates that although the [trial] court initially precluded the [defense] from presenting evidence as to the victim’s prior sexual conduct, it later allowed the [defense] to present such evidence to the jury.’’ Id., 744–45. The Appellate Court did agree, however, with the defendant’s double jeopardy claim. See id., 747. The Appellate Court further concluded that, under State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), the proper remedy for such violation was to remand the case to the trial court with direction to vacate the judgment as to two of the conspiracy counts, to render judgment on one of the conspiracy counts, and to resentence the defendant accordingly. State v. Wright, supra, 144 Conn. App. 748–49. The defendant and state each appealed from the Appellate Court’s judgment, and we granted certification in both appeals. The defendant claims that the Appellate Court incorrectly concluded that the trial court
I
We first address the defendant’s argument that the trial court violated his constitutional rights of confrontation and to present a defense through its application of
In response, the state argues that defense counsel was allowed to question the victim about the two aforementioned prostitution related topics and thus was not actually restricted from developing either of the defense theories of consent.4 In its supplemental brief, the state agrees with the defendant that DeJesus should be overruled insofar as this court held that the term ‘‘material,’’ in the context of
A
The record reveals the following additional facts and procedural history that are relevant to the resolution of this claim. On the first day of trial, the state commenced its case by calling the victim as a witness. The victim testified before the jury to the following facts: On November 1, 2008, she went into a second floor apartment on Taylor Street because Fuller owed her money and told her that it was inside. After she entered the apartment, someone immediately locked the door behind her. The defendant and his fellow gang members crowded around the victim, yelled curses at her, yanked at her clothes, and took turns openhandedly hitting her breasts, buttocks, and vagina. The victim was frightened and scared of being hurt, and complied with an order from Elizer Gibbs, who was the gang’s ringleader, to remove her clothes and to get on her knees. The defendant then made the victim perform oral sex on him. Five or six of the defendant’s fellow gang members similarly forced the victim to have oral sex with them.
The victim later went into a different room where Gibbs urinated on her face and body. The defendant then took a plastic bag from the floor, covered his penis with it, and vaginally penetrated the victim. The victim explained that this felt as though ‘‘there [were] a thousand knives in [her] vagina.’’ Other gang members thereafter took turns having compelled oral, vaginal, and anal intercourse with the victim. They also penetrated the victim with sex toys that they found in her purse. The gang members tried to convince a nearby woman, Yamile Rivera, to partake in penetrating the victim with the sex toys, but Rivera rebuffed their efforts and instead punched the victim in the face.
At one point, while the victim was with the gang members, she used her cell phone to call a friend, Catherine Jortner. The victim was allowed to make the call, while being monitored on speakerphone, after she told everyone that ‘‘another girl would come up and . . . join the fun . . . .’’ When no one appeared to be paying attention, the victim told Jortner, ‘‘I need help . . . .’’ One of the gang members noticed
Finally, the victim was able to dress and leave Taylor Street but was in such a hurry to do so that she left her shoes and other personal belongings behind. As the victim walked home, the defendant followed her, asking if she ‘‘like[d] what happened in there?’’ The victim, who was crying, replied, ‘‘no,’’ and the defendant proceeded to taunt her by telling male bystanders that she would ‘‘get [them] off’’ for $20. When she arrived home, the victim told three different friends that she had been raped and needed to go to the hospital. The victim went to Saint Mary’s Hospital later that night, where she was examined and the police were contacted. The victim’s direct examination concluded with her testimony that she never consented to having any form of sex with the defendant, or anyone else, while she was at Taylor Street.
During cross-examination of the victim,6 defense counsel attempted to ask her why Fuller owed her money. After the assistant state’s attorney (prosecutor) objected to that question on the ground that it was covered by a motion in limine, the trial court excused the jury from the courtroom. Defense counsel explained that, although he had not filed any response to the state’s motion in limine, he was raising consent as a defense and wished to question the victim about certain prior sexual conduct pursuant to
Later, during the state’s case-in-chief, the prosecutor sought to admit a redacted version of the defendant’s statement to the police into evidence. After excusing the jury from the courtroom, the trial court reviewed the redacted text. This portion of the text stated that, after Fuller and the victim arrived at Taylor Street, Fuller had pulled the defendant aside to say ‘‘that he told this girl that he was gonna give her some money because he was with her all day, and she was giving him and another boy head all day.’’ The trial court found that this text reflected the defendant’s knowledge that the victim was a prostitute and thus implicated the issue of consent. The trial court ruled that, if the prosecutor wanted to admit the defendant’s statement to the police into evidence, he needed to do so using a version that was not redacted.
Once the jury returned, a complete version of the defendant’s statement to the police was read into evidence. It included the following admissions: ‘‘[A]round Halloween, I was over on Taylor Street . . . chilling with my homies. . . . [We] are all ‘Bloods.’ . . . While we was there, another guy that is a Blood showed up, he is [Fuller], and he was with [the victim]. . . . Then [Fuller] grabbed me aside and said that he told this girl that he was gonna give her some money because he was with her all day, and she was giving him and another boy head all day. Giving head means getting oral sex. I heard [Fuller] tell this girl that the money he owes her is upstairs on the second floor but I knew he was lying to her because he told me that and I also know that the second floor is a vacant apartment. The girl kept asking him for the money, so we all went up to the second floor . . . . The whole time this was going on the girl thought she was gonna get her money, but [Fuller] was telling all of us that we was gonna fuck this girl. . . . I was the first one to get my dick sucked. [Gibbs] told the girl to suck me first. . . . Then [Gibbs] was telling us all to smack her ass, so we all took turns doing it. The reason we do what [Gibbs] says is because he is a General in the Bloods, which means he is in charge . . . . I know she didn’t like us smackin her ass because she told us it hurt and to stop. [Gibbs] told her to shut up and take it. . . .
‘‘After some time, I started to fuck this girl from behind. I didn’t have a rubber so I used a black plastic bag . . . . Then this girl said she wanted to call a friend . . . to come over. She said that her friend would want to do this too. While she was on her cell phone, [Gibbs] snatched the phone from her and threw it. . . . Then I grabbed the . . . girl and put
Subsequently, the prosecutor called Steven Garrett, one of the defendant’s fellow gang members who was present at 19 Taylor Street on November 1, 2008. In large part, Garrett’s testimony was consistent with the undisputed facts. In his brief, however, the defendant claims that ‘‘Garrett testified that [the victim] had not been forced to engage in sex’’ and ‘‘consented’’ to the sexual acts. This characterization of Garrett’s testimony is generous. Garrett testified that he personally did not force the victim to have oral sex and that she seemingly ‘‘accepted’’ having sexual relations with others ‘‘at first . . . .’’ Indeed, Garrett disclaimed any knowledge as to whether the defendant had forced the victim to engage in any sexual acts. Garrett also testified that the victim looked afraid after Gibbs urinated on her. While he was in the apartment, Garrett did not think that the victim was free to leave because Gibbs would not have let her. In fact, throughout the course of the sexual assault, Garrett left the apartment at least three times, and, upon returning each time, the apartment door was locked.
Garrett further testified that, during the victim’s cigarette break, he talked to the victim about ‘‘pimping’’ her. Specifically, he said ‘‘she don’t need to be doing what she’s doing at that moment in time to get money when I know people, older guys, that get . . . Social Security [Income] checks . . . that would . . . give more for less.’’ The victim did not respond to Garrett. Later, Garrett took credit for pouring beer into the victim’s vagina and laughing about it.
The prosecutor also called Fuller as a witness, who gave inconsistent testimony regarding what the victim knew prior to and when arriving at Taylor Street. Fuller initially testified that he brought the victim to Taylor Street with assurances that she would be paid after she ‘‘[took] care of [his] boys . . . .’’ Fuller then refreshed his memory with a copy of his statement to the police, however, and repeatedly testified that the victim was unaware that she was being brought to Taylor Street to have sex.7 Near the
The defense commenced its case by recalling the victim as a witness. The victim testified that she had told Fuller that she would ‘‘do some stuff for 500 bucks.’’ As defense counsel attempted to explore this topic through questioning, the prosecutor objected, and the trial court excused the jury from the courtroom. The victim then explained that the $500 was supposed to be compensation for activities on Wolcott Street. She also reiterated that Fuller had told her that she could collect $250 at Taylor Street. The victim testified that she had no intention of having sexual relations with the men at Taylor Street and that she had received no payment for doing so. Interjecting, the trial court explained that it was not persuaded that the Wolcott Street and Taylor Street incidents were part of a single transaction, and ruled that asking the victim about her prior sexual conduct on Wolcott Street would not be allowed pursuant to
The jury returned, and defense counsel continued questioning the victim. She denied ever making an offer to Fuller to have sex with multiple people at Taylor Street for $250 or $500. When the victim was asked, more generically, if she had a conversation with Fuller during which ‘‘$500 came up as a fee for [her] services,’’ she responded, ‘‘[r]ight, for Wolcott Street.’’ Using a copy of the victim’s statement to the police, defense counsel attempted to refresh her recollection with respect to the details of this conversation about the $500 fee, but the trial court interrupted and again excused the jury. Defense counsel explained that, in the victim’s statement to the police, she had described telling Fuller
Defense counsel then called Fantasia Daniels as the final defense witness. Daniels testified that she saw the victim at Taylor Street on the night of the incident and, moreover, that the victim had said that she was there ‘‘for sex with the guys.’’ According to Daniels, the victim stated that ‘‘[s]he [had] to use her [sex] toys to get started’’ and seemed to like what had transpired because she was smiling during the cigarette break. Daniels testified that, at the end of the night, the victim asked Fuller where her $250 was. After Fuller replied ‘‘there’s no [$250],’’ the victim said she was going to report the matter to the police.10 After this questioning of Daniels, the defense rested its case.
B
Prosecutions for sexual assault are governed by special rules of evidence, including
Thus, to determine whether the prostitution related evidence was properly excluded, we must begin our analysis with the relevant language of the rape shield statute. Section 54-86f prohibits a defendant from presenting evidence of an alleged sexual assault victim’s prior sexual conduct, ‘‘unless such evidence is [among other things] . . . otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.’’
In State v. DeJesus, supra, 270 Conn. 841–42, we addressed the meaning of ‘‘material’’ in the context of
The defendant and the state both argue that DeJesus should be overruled insofar
The interpretation of the term ‘‘material’’ is a question of statutory construction. When construing a statute, we strive to determine the legislative intent, and, in doing so, we begin with the text of the statute. See, e.g., State v. Smith, 317 Conn. 338, 347, 118 A.3d 49 (2015); see also
The relevant text of
Around the time
That is not, however, the only plausible definition. The law has given ‘‘material’’ another meaning as well, as we noted in DeJesus. See State v. DeJesus, supra, 270 Conn. 841–42. In DeJesus, we adopted the United States Supreme Court’s constitutional standard for materiality in determining the meaning of material in
It is important to understand the state of the law when the rape shield statute was enacted. See, e.g., State v. Fernando A., 294 Conn. 1, 19, 981 A.2d 427 (2009) (‘‘the legislature is presumed . . . to know the state of existing relevant law when it enacts a statute’’ [internal quotation marks omitted]). In 1978, this court decided State v. Mastropetre, 175 Conn. 512, 400 A.2d 276 (1978), in which the defendant, Michael Mastropetre, argued that the trial court improperly ruled that a sexual assault victim did not have to answer defense counsel’s question regarding whether she had had sexual relations with men other than Mastropetre prior to the assault. Id., 514. On direct examination, the victim was asked if Mastropetre had achieved an orgasm during the assault, to which she replied: ‘‘ ‘I think so.’ ’’ Id. Then, during cross-examination, defense counsel asked the victim whether she was certain that Mastropetre had an orgasm. Id. The victim responded that she was not sure. Id. Defense counsel then asked the victim if, prior to the assault, she had had sexual relations, to which she responded ‘‘ ‘With him? No.’ ’’ Id. She was then asked, ‘‘ ‘[w]ith anyone else?’ ’’ Id. She replied: ‘‘ ‘That has nothing to do with this. Why should I answer that?’ ’’ Id. The trial judge agreed that the victim did not have to answer the question. Id.
On appeal, Mastropetre argued that the victim’s prior sexual conduct was relevant to the issues of consent and the victim’s credibility. Id., 515, 518. We first concluded that the evidence was not admissible as to the issue of consent because Mastropetre denied engaging in sexual conduct with the victim, and, therefore, consent was not truly at issue. Id., 516. Moreover, we acknowledged that the victim’s prior sexual conduct with people other than Mastropetre was irrelevant to consent because ‘‘[t]he fact that a [victim] may have consented to sexual relations with others before does not, without more, tend to establish that consent was given on the occasion in question.’’ Id., 517.
We next considered whether such evidence was relevant in weighing the victim’s credibility. See id., 518–20. We began by dividing that question into two issues: ‘‘(1) whether the question [posed by defense counsel] was admissible to impeach the [victim], and (2) whether it was admissible to clarify the source of semen found in the [victim] on the night of the alleged crime . . . .’’ Id., 518. On the issue of impeachment, we concluded that, as a general rule, a victim’s sexual conduct does not ‘‘reflect
As to Mastropetre’s second credibility argument, namely, clarification regarding the source of the semen, we approved of his reasoning: ‘‘[Mastropetre’s] reasoning is correct: that is, had [defense counsel] asked whether the [victim] had had sexual relations with someone other than [Mastropetre] at any time within the two or three days prior to the assault, the question would have been [proper] on the issue of whether [Mastropetre] was responsible for the semen, raising doubts as to the [victim’s] credibility.’’ Id., 519. Defense counsel’s question was not limited to the period immediately preceding the assault, however, and we thus determined that the exclusion of the question was proper. See id., 519–20. Furthermore, we noted that evidence regarding the semen was not admitted until after defense counsel’s question was asked. Id., 520. We also stated that it is ‘‘elementary’’ that the question would be improper under this theory until after evidence of the semen was presented. Id.
Finally, Mastropetre asserted that barring defense counsel’s question regarding the victim’s prior sexual conduct violated his confrontation rights. Id. In resolving this claim, we recognized that due process requires that a criminal defendant be afforded a fair opportunity to present a defense and to confront the witnesses against him, and that excluding evidence offered by a defendant, even when such exclusion is in accord with evidentiary rules, infringes on these rights to some extent. See id., 520–21. We further noted, however, that, in cases in which courts had found that the exclusion of a defendant’s proffered evidence violated his due process and confrontation rights, ‘‘the excluded evidence was clearly relevant and material to a critical issue in the case.’’ Id., 521. Because we had determined that the evidence of the victim’s prior sexual conduct was not relevant to any issue in Mastropetre’s case, we concluded that the exclusion of defense counsel’s question regarding such conduct did not violate Mastropetre’s confrontation rights. Id.
In summary, the following can be gleaned from our decision in Mastropetre. In a trial on sexual assault charges, the victim’s prior sexual conduct is generally not relevant to the issues and is therefore inadmissible. Evidence of such conduct is admissible, however, in some circumstances. Those circumstances include: (1) when there is evidence of semen in the victim and the victim is questioned about his or her sexual conduct with individuals other than the defendant in the days prior to the assault to prove the source of that semen; (2) the victim testifies regarding his or her prior sexual conduct or chastity, and the defendant tests such assertions on cross-examination; (3) consent is an issue at trial, and the defendant offers evidence of prior sexual conduct between the victim and the defendant; and (4) when excluding the evidence would violate the defendant’s right to confront witnesses and to present a defense.13 Also evident from Mastropetre is that we were concerned with excluding evidence that was material, in the evidentiary sense, to a matter at issue.
We presume, as we must, that the legislature was aware of Mastropetre when it enacted
Our construction of the term ‘‘material’’ also is supported by a close look at the legislative history of
On the House floor, Representative Onorato noted that P.A. 82-120 dealt with the admissibility of evidence concerning a sexual assault victim’s prior sexual conduct and outlined three instances in which such
Consideration of these statements leads us to conclude that it is difficult to imagine that the term ‘‘material’’ meant anything other than material in the evidentiary sense. Neither Senator Owens nor Representative Onorato described a situation in which courts would consider whether the exclusion of prior sexual conduct evidence would change the outcome of the trial or undermine confidence in the verdict. In fact, Senator Owens gave an example that is particularly instructive in the present case. He explained that evidence suggesting that a sexual assault victim was a prostitute would be admissible under the exception codified in subdivision (4) because the exclusion of such evidence would violate the defendant’s constitutional rights to due process and confrontation.14 See 25 S. Proc., supra, p. 3249.
In DeJesus, we decided ‘‘that
Moreover, the construction of
In sum, in light of the statute’s text and legislative history, along with the unworkable result that the court in DeJesus reached, we conclude that DeJesus improperly construed
C
We now turn to the facts of the present case. Because the state contends that defense counsel was not prevented from questioning the victim with respect to the defendant’s theories of consent, we must make a threshold determination as to whether the trial court used the rape shield statute to limit the questioning of the victim in the presence of the jury about the following sexual conduct: (1) the victim’s offer to Fuller to have sex with multiple men, for multiple hours, for $500; and (2) the victim’s act of engaging in consensual oral sex with Fuller and his friend at Wolcott Street for the promise of $250. Our review of the record reveals that, following the initial rape shield hearing, the court was steadfast in its ruling that defense counsel could not question the victim in the presence of the jury about her sexual conduct that took place prior to the Taylor Street incident. At multiple points during the victim’s testimony before the jury, defense counsel posed questions regarding the two prostitution related topics. At each of these points, the trial court ultimately sustained the prosecutor’s objections to the questions or excused the jury from the courtroom. The closest defense counsel came to being able to explore the first prostitution related topic with the victim in the presence of the jury was when the victim testified that she told Fuller that she would ‘‘do some stuff for 500 bucks’’ and that she had a conversation with Fuller in which $500 came up as a fee ‘‘for [her] services . . . .’’ This vague testimony does not, however, reflect specifically whether the victim expressed a willingness, shortly before the Taylor Street incident, to have sexual relations with multiple partners for multiple hours. Moreover, defense counsel was unable to question the victim in the presence of the jury about the second prostitution related topic, namely, her act of engaging in consensual oral sex with Fuller and his friend at Wolcott Street for the promise of $250. Accordingly, we agree with the defendant that defense counsel was prevented, by virtue of the trial court’s application of the rape shield statute, from pursuing his desired lines of inquiry before the jury with respect to the victim’s prior sexual conduct.
Having determined that defense counsel was indeed precluded from questioning the victim in the presence of the jury about certain sexual conduct, we must proceed to consider whether such testimony was so relevant and material to a critical issue in this case—namely, actual consent or a reasonable belief of consent—that precluding the testimony amounted to a violation of the defendant’s constitutional
‘‘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 first underscore that the defense did not offer this sexual conduct evidence to establish the victim’s ‘‘general unchaste character . . . .’’ (Internal quotation marks omitted.) Id., 105; see also id., 104 (‘‘the defendant bears the burden of showing that the proffered evidence . . . [is] relevant to the case, rather than . . . relevant merely to demonstrate the unchaste character of the victim’’ [internal quotation marks omitted]). Moreover, the defense did not argue that the victim’s unchaste character was relevant to the jury’s determination of her credibility. See Demers v. State, supra, 209 Conn. 156–57 (‘‘[i]t is . . . generally held that a witness’ reputation for being unchaste or a prostitute, or her prior acts of sexual misconduct are not, in and of themselves, relevant to her credibility or veracity as a witness’’). Instead, as defense counsel explained during the initial rape shield hearing, he was seeking to show that the victim negotiated and willingly consummated a multipartner, multihour, sex-for-hire transaction that began at Wolcott Street and ended after the ensuing intercourse with the defendant at Taylor Street. Later, outside of the presence of the jury, defense counsel also attempted to support this theory of actual consent by establishing that the victim had a motive to fabricate her allegations of sexual assault and other crimes because she had not been paid for the transaction at the end of the night.
The defense’s theory of actual consent harmonized with the proffered evidence. Defense counsel did not attempt to elicit testimony of the victim’s prior conduct as a prostitute that was unrelated to the charges against the defendant. Instead, the defense wanted the jury to hear that the victim, shortly before arriving at Taylor Street, (1) offered to engage in sexual relations with Fuller and three other men for four hours in exchange for $500, and (2) engaged in consensual sexual relations with Fuller and his friend for the promise of $250. The proffered evidence had a strong temporal connection with the sexual assault and showed that the victim’s offer to engage in a multipartner, multihour, sex-for-hire transaction was made to Bryan Fuller, the individual who accompanied her to Taylor Street. There can be
at Wolcott Street, with an expectation that more sexual relations and complete payment would follow at Taylor Street.16 Moreover, the excluded testimony also was relevant to the defendant‘s claim that the victim had fabricated her allegations. Without the testimony that the victim had offered to engage in sexual relations with multiple men, there was no evidence that would explain to the jury why she may have fabricated the sexual assault allegations as a result of not receiving the promised $250. See State v. DeJesus, supra, 270 Conn. 840 (‘‘[e]vidence suggesting a motive for a false allegation was relevant to the jury’s assessment of the victim’s credibility’’).
Next, we address the materiality of the evidence. Material evidence is evidence that has an influence, effect, or bearing on a fact in dispute at trial. See part I B of this opinion. As we just noted, the proffered evidence was relevant to the question of whether the sexual conduct on Taylor Street was a continuing, sex-for-hire transaction. In turn, whether the sexual relations on Wolcott and Taylor Streets were part of a continuous transaction influences or bears on the critical issue in the case, namely, whether the victim consented to the sexual conduct with the defendant at Taylor Street or, alternatively, whether the defendant could reasonably have so believed that she had done so. Thus, because the evidence has a bearing on the critical issue of consent, it is material.
Our conclusion that the excluded testimonial evidence was relevant and material does not end our analysis as to whether it should have been admitted pursuant to
In plain terms, the defendant’s right to present a defense is ‘‘the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.’’ (Internal quotation marks omitted.) Id., 624. It guarantees ‘‘the right to offer the testimony of witnesses, and to compel their attendance, if necessary . . . .’’ (Internal quotation marks omitted.) Id. Therefore, exclusion of evidence offered by the defense may result in the denial of the defendant’s right to present a defense. See, e.g., State v. Crespo, 303 Conn. 589, 604, 35 A.3d 243 (2012); State v. Christiano, supra, 228 Conn. 474
The right of confrontation is ‘‘the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . .
‘‘Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest; proof of the main facts is a matter of right, but the extent of the proof of details lies in the court’s discretion. . . . The right of confrontation is preserved if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .
‘‘Although it is within the trial court’s discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements [of the confrontation clause] of the
These
There are special considerations in sexual assault prosecutions that trial courts must keep in mind when ruling on the admissibility of evidence, such as shielding an alleged victim from embarrassing or harassing questions regarding his or her prior sexual conduct. See, e.g., State v. Christiano, supra, 228 Conn. 469–70. ‘‘Although the state’s interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh [a] defendant’s competing constitutional interests.’’ Id., 470. As we previously have observed, evidentiary rules cannot be applied mechanistically to deprive a defendant of his constitutional rights. E.g., State v. Hedge, supra, 297 Conn. 634.
‘‘We must remember that [t]he determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case. . . . In every criminal case, the defendant has an important interest in being permitted to introduce evidence relevant to his defense. Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative. . . . Whenever the rape shield statute’s preclusion of prior sexual conduct is invoked, a question of relevancy arises. If the evidence is probative, the statute’s protection yields to constitutional rights that assure a full and fair defense. . . . If the defendant’s offer of proof is . . . more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial. . . . When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state’s witnesses, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim of denial of the right[s] to confrontation and to present a defense.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 176–77.
In the present case, the defendant advanced a single, continuous transaction theory of the case: (1) the victim offered to engage in sexual relations with Fuller and three other men in exchange for $500; (2) shortly before arriving at Taylor Street, the victim engaged in oral sex with Fuller and one other man at Wolcott Street; and (3) Fuller and the victim came to Taylor Street to continue the bargained for transaction. The evidence that the defense proffered was, as we previously noted, relevant and material to a single,
We further conclude that the trial court’s restriction of defense counsel’s cross-examination of the victim limited his ability to explore her possible motive for fabricating her claims of sexual assault, in violation of the defendant’s right of confrontation. See, e.g., State v. Baltas, supra, 311 Conn. 798 (‘‘[c]ross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted’’ [internal quotation marks omitted]). Testimony that the victim had not been paid for sexual conduct, particularly if such admission came from the victim herself, would have allowed the jury to weigh the victim’s credibility and to consider her possible motive for fabricating her allegations. We recognized the defendant’s right to explore this possible motive in DeJesus. See State v. DeJesus, supra, 270 Conn. 840. In that case, counsel for the defendant, Luis DeJesus, Jr., who was charged with sexual assault, wanted to question the victim about ‘‘whether she had engaged in prostitution, whether she had told an investigating officer that she had engaged in prostitution, and whether [DeJesus] was aware that she had engaged in prostitution.’’ Id., 831. Defense counsel sought to offer the testimony to establish that the sex with DeJesus was consensual and to show the victim’s motive for fabricating the sexual assault claim. Id., 833–34. The defense claimed that the victim had fabricated the charges because, when she demanded $50 after the sexual relations had concluded, DeJesus gave her only $30 and refused to pay her the balance. See id., 832–34. The trial court excluded the evidence, and we concluded that such exclusion was improper. Id., 834–35. We reasoned that, ‘‘without evidence of the victim’s prior history of prostitution, the jury heard no evidence to explain why she would have had a reason to fabricate a sexual assault allegation against [DeJesus].’’ Id., 840. Similarly, in the present case, without the victim’s testimony that she was owed $250 for engaging in sexual conduct with Fuller, a confederate of the defendant’s, and another person, the jury was
The evidence that the defense proffered, through the testimony of the victim, was both relevant and material to a critical issue in this case, namely, consent. Moreover, the exclusion of that evidence deprived the defendant of his constitutional rights of confrontation and to present a defense. Thus, we conclude the excluded evidence was admissible under
After a complete and thorough review of the record, we conclude that the trial court’s error was harmless beyond a reasonable doubt. We first observe that the defense had available to it other means of directly testing the victim’s credibility. Indeed, defense counsel questioned the victim in the presence of the jury more than one-half dozen times about whether she had intended to collect money in exchange for having sexual relations at Taylor Street. Every time, the victim responded to the various permutations of that question with the answer ‘‘no.’’
Second, Fuller’s testimony, although equivocal at first, also refutes the existence of an agreement on the part of the victim to engage in prostitution at Taylor Street. In fact, he testified that the $250 he owed the victim was not for sex on Taylor Street. In addition, Fuller admitted that it was his intention that the victim have sex with his fellow gang members at Taylor Street but that the victim was not aware of that intention. Instead, she accompanied him to Taylor Street under the false pretense that it was there that she would receive the money he owed her.
Third, during the assault, the victim called a friend, namely, Jortner. Both the victim and Jortner testified that, during the call, the victim stated that she needed help, after which the phone was taken and a male voice exclaimed, ‘‘ ‘your friend’s about to get fucked up . . . .’ ’’ Jortner also testified that the victim sounded scared during the call and that, after the call, she attempted to repeatedly reach the victim, but her calls went directly to voice mail. The occurrence of this call also was corroborated by the defendant’s statement to the police, which was admitted into evidence.
Fourth, the victim’s testimony was not the sine qua non of the state’s case, nor was this case a credibility contest between the victim and the defendant. Indeed, the victim’s testimony was largely uncontradicted and, in fact, supported by the testimony of the defendant’s confederates, Garrett and Fuller, and the defendant’s own statement to the police. Moreover, the defendant, through his statement, and Garrett and Fuller, in their testimony, all acknowledged that the victim appeared to be scared. For example, the defendant admitted to the police that he could tell ‘‘that this girl wasn’t liking this and she started to look scared’’ and that the victim said ‘‘she was scared and afraid that we was gonna kill her.’’
Fifth, Garrett testified that, when the victim and the other men first entered the second floor apartment at 19 Taylor Street, he remained outside with a few
Sixth, and perhaps most damaging, the defendant, in his statement to the police, stated that he ‘‘grabbed [the victim] and put her head on [his] dick so she would suck it.’’ He also said, ‘‘[t]he [victim] kept asking [Fuller] for the money, so we
Lastly, and importantly,
II
DOUBLE JEOPARDY CLAIM
We next address the state’s claim that the Appellate Court improperly concluded that, pursuant to State v. Polanco, supra, 308 Conn. 242, vacatur is the appropriate remedy for the double jeopardy violation caused by the defendant’s conviction of the three counts of conspiracy arising from a single agreement with multiple criminal objectives. As an initial matter, the state acknowledges that, under Connecticut law; see, e.g., State v. Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000); it is a double jeopardy violation to impose cumulative punishments for conspiracy offenses if they arise from a single agreement with multiple criminal objectives.22 Furthermore, the state recognizes that, pursuant to the United States Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), a cumulative conviction can be a form of punishment in and of itself because it may lead a defendant to suffer adverse collateral consequences. With these concessions in mind, the state narrowly focuses its argument on the type of remedy that exists for the defendant’s conviction on the three conspiracy counts. Specifically, the state argues that ‘‘[t]his court should limit the reach of Polanco and . . . hold that, when a defendant receives multiple punishments for cumulative conspiracy convictions arising from a single agreement, merger, rather than vacatur, is the proper remedy . . . .’’ We disagree and conclude that the Appellate Court properly determined that vacatur was the appropriate remedy for the defendant’s conviction on the three conspiracy counts.
In Polanco, we readopted vacatur as the remedy for a cumulative conviction that violates double jeopardy protections. State v. Polanco, supra, 308 Conn. 248–49, 255. Although the holding in Polanco was limited to cases involving greater and lesser included offenses, in light of the issue presented, this court remarked in dictum that it was ‘‘aware of no reason why our holding, of logical necessity, would not apply with equal force to other scenarios in which cumulative convictions violate the double jeopardy clause . . . .’’ Id., 249 n.3. Since Polanco, we have ‘‘continue[d] to end our use of the merger approach’’ and have required that vacatur be utilized in other scenarios in which a defendant has been subject to cumulative convictions in violation of the double jeopardy clause. State v. Miranda, 317 Conn. 741, 753, 120 A.3d 490 (2015); see also id., 743, 757 (vacating conviction as to felony murder and murder counts, which violated protection against double jeopardy, because they were cumulative of capital felony count).
As we already have explained at some length, extending the vacatur approach ‘‘promote[s] inter-jurisdictional and intra-jurisdictional harmony, and better safeguard[s] against unconstitutional multiple punishments.’’ Id., 753. Moreover, we continue to see ‘‘no substantive obstacle to resurrecting a cumulative conviction that was once vacated on double jeopardy grounds—provided that the reasons for overturning [a] controlling conviction would not also undermine the vacated conviction.’’ Id. Accordingly, we conclude that the Appellate Court correctly determined that the trial court was required to vacate the defendant’s conviction on two of the three conspiracy counts, to render judgment of conviction on one of the conspiracy counts, and to resentence him on that one conspiracy count.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDONALD, ROBINSON and VERTEFEUILLE, Js., concurred.