State v. Rivera ( 2020 )

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STATE OF CONNECTICUT v. ELVIN G. RIVERA
(SC 20277)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.*
Syllabus
Convicted of breach of the peace in the second degree, criminal mischief
in the third degree, and threatening in the second degree in connection
with a confrontation involving C, a tow truck driver, the defendant
appealed to the Appellate Court, claiming, inter alia, that the trial court
had violated his rights to confrontation and to present a defense when
it precluded him from cross-examining C about the facts underlying
certain of C’s prior convictions. In response to C’s attempt to tow the
defendant’s vehicle from a fire lane at a condominium complex, the
defendant confronted C, demanding to know why his vehicle was being
towed. After the defendant opened the driver’s door of his vehicle, C
raised the vehicle off the ground to prevent the defendant from driving
it off of the back of the tow truck. The defendant then retrieved a pipe
from a nearby garage and used it to strike the tow truck. Thereafter,
C, fearing that the defendant was going to hit him with the pipe, retrieved
a can of Mace and sprayed it in the defendant’s face. The defendant
then took a knife out of his pocket, and C, fearing for his life, drove
away in the tow truck. At trial, the defendant raised the defenses of
self-defense and defense of property, arguing that C was attempting to
steal the defendant’s vehicle for his own financial benefit. The defendant
was permitted to and did ask C about previously having been convicted
of larceny. In response to the trial court’s decision to preclude the
defendant from cross-examining C about the specific facts underlying
C’s prior misdemeanor convictions of larceny and breach of the peace,
the defendant claimed that this evidence would have served to impeach
C by showing his character for untruthfulness and by establishing his
motive, intent and interest in attempting to steal the defendant’s vehicle
to finance his drug habit and in lying about having sprayed the defendant
with Mace in self-defense. The Appellate Court concluded that the trial
court did not abuse its discretion in limiting the defendant’s cross-
examination of C and rejected the defendant’s constitutional claims. On
the granting of certification, the defendant appealed to this court. Held:
1. The Appellate Court correctly determined that the trial court had not
abused its discretion when it precluded the defendant from cross-exam-
ining C regarding the facts underlying his prior larceny convictions in
order to show that C had stolen cell phones to support a drug habit:
C’s motivation for the prior theft of the cell phones was not probative
of his veracity, as the trial court reasonably could have concluded that
C’s motive for stealing them to finance a drug habit two to three years
prior to the incident in the present case was not relevant to his character
for truthfulness any more than the fact that he generally had a history
of theft, which was made known to the jury when the defendant asked
C whether he previously had been convicted of larceny, preclusion of
evidence of drug use to show character for untruthfulness was in line
with the general rule that propensity evidence is inadmissible, as addic-
tion alone could not reasonably be thought to amount to more than a
compelling propensity to use drugs, and the trial court reasonably could
have determined that any possible connection between C’s prior drug
habit and his character for untruthfulness was outweighed by the poten-
tial for prejudice, as there was no evidence that C was using drugs or
had a drug addiction at the time of the incident in question; moreover,
there was no merit to the defendant’s claim that the facts underlying
C’s larceny convictions were admissible to establish C’s motive, interest
and intent to falsely inculpate the defendant and to cover up his own
misconduct, the defendant having failed to establish that C had an
ongoing drug habit at the time of the incident at issue or that C’s conduct
underlying his prior larceny convictions was sufficiently similar to the
conduct at issue in the present case.
2. The Appellate Court correctly determined that the defendant had failed
to establish that the trial court violated his rights to confrontation and
to present a defense when it precluded him from cross-examining C
about the fact that C, by pleading guilty to the crime of breach of the
peace in connection with a prior incident involving an altercation with
another individual, had admitted that he was lying about using pepper
spray in self-defense during that incident: the trial court did not abuse
its discretion in determining that C’s prior statements to the police about
acting in self-defense in connection with that prior incident were not
inconsistent with his guilty plea to the charge of breach of the peace
and, thus, were not evidence of C’s having previously lied about acting
in self-defense, as C had maintained throughout the plea proceedings
on the breach of the peace charge that he had used pepper spray in
self-defense; moreover, contrary to the defendant’s claim that a guilty
plea is an admission of guilt, a myriad of reasons may explain why an
individual would plead guilty, and there is no open and visible connection
between a guilty plea and an individual’s state of mind at the time of
the crime for which the plea is entered.
Argued February 26—officially released June 10, 2020**
Procedural History
Substitute information charging the defendant with
the crimes of breach of the peace in the second degree,
criminal mischief in the third degree and threatening
in the second degree, brought to the Superior Court
in the judicial district of Hartford, geographical area
number twelve, where the court, Lobo, J., granted in
part the state’s motion to preclude certain evidence
and denied the defendant’s motion to disclose certain
evidence; thereafter, the case was tried to the jury;
verdict and judgment of guilty, from which the defen-
dant appealed to the Appellate Court, DiPentima, C.
J., and Keller and Moll, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Courtney M. Chaplin, former assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. In this certified appeal, the defendant,
Elvin G. Rivera, appeals from the judgment of convic-
tion, rendered after a jury trial, of breach of the peace
in the second degree in violation of General Statutes
§ 53a-181 (a) (1), criminal mischief in the third degree
in violation of General Statutes § 53a-117 (a) (1), and
threatening in the second degree in violation of General
Statutes § 53a-62 (a) (1). On appeal, he claims that the
Appellate Court incorrectly determined that the trial
court had not abused its discretion by precluding him
from cross-examining the state’s key witness, Stephen
Chase, about the facts underlying Chase’s prior misde-
meanor convictions of larceny in the sixth degree and
breach of the peace, thereby violating his constitutional
rights to confrontation and to present a defense under
the sixth amendment to the United States constitution.
We disagree and, accordingly, affirm the judgment of
the Appellate Court.
The jury reasonably could have found the following
facts. In March, 2015, Chase was employed as a tow
truck driver.1 Pursuant to a contract executed by
Chase’s employer and Coachlight Condominiums, a
condominium complex at 40 Hillside Drive in East Hart-
ford, Chase was authorized to tow vehicles on the
Coachlight Condominiums property if they were parked
in a restricted area, such as in front of a dumpster or
in a fire lane.
On March 24, 2015, while patrolling the Coachlight
Condominiums property in the course of his employ-
ment, Chase noticed a silver colored vehicle parked in
front of a garage door in an area marked as a fire lane.
As Chase was strapping the driver’s side rear tire of
the vehicle to the boom of his tow truck, the defendant
exited the garage in front of which the vehicle was
parked and demanded to know why his car was being
towed. Chase informed the defendant that his car was
parked in a fire lane and that it would cost $93.59 for
the car to be released. The defendant was irate, and
he opened the driver’s side front door of his vehicle.
Believing that the defendant intended to drive his car
off the back of the tow truck, Chase entered the tow
truck and raised the defendant’s vehicle off the ground.
The defendant moved away from his vehicle, reentered
the garage, grabbed a white pipe composed of unknown
material, and walked toward Chase, who was then
standing by the driver’s side front door of the tow truck.
The defendant proceeded to hit the tow truck with the
pipe. In response, Chase reached into the tow truck to
retrieve a can of Mace he kept in the center console.
Fearing that the defendant was going to hit him with
the pipe, Chase sprayed the Mace in the defendant’s
face. The defendant then reached into his pocket and
pulled out a knife. Fearing for his life, Chase turned,
dove into the tow truck and drove around the corner
of the building. Once Chase believed he was safely away
from the defendant, he parked and called 911 to report
the incident. The police subsequently arrived, spoke
with Chase, and then arrested the defendant.
The defendant was charged with breach of the peace
in the second degree, criminal mischief in the third
degree and threatening in the second degree. At trial,
the state called Chase as its key witness. In response,
the defendant attempted to discredit Chase and raised
the defenses of defense of property and self-defense,
arguing that the defendant’s vehicle was not parked in
an official fire lane and that Chase had attempted to
steal the car for his own financial benefit. The jury
found the defendant guilty on all three counts. The trial
court sentenced the defendant to a total effective term
of two years of incarceration, execution suspended
after fifteen months, followed by two years of probation
with special conditions.
The defendant appealed to the Appellate Court,
claiming, among other things, that the trial court vio-
lated his constitutional rights to confrontation and to
present a defense by precluding him from cross-examin-
ing Chase regarding the specific facts underlying
Chase’s prior misdemeanor convictions of larceny in
the sixth degree and breach of the peace in the second
degree. State v. Rivera, 187 Conn. App. 813, 819, 204
A.3d 4 (2019). The Appellate Court determined that the
trial court had not abused its discretion by precluding
this testimony and rejected the defendant’s constitu-
tional claims. Id., 828.
We subsequently granted the defendant certification
to appeal, limited to the following issue: ‘‘Did the Appel-
late Court correctly conclude that the trial court prop-
erly precluded the defendant from cross-examining the
state’s key witness about the specific facts underlying
that witness’ prior misdemeanor convictions?’’ State v.
Rivera, 331 Conn. 911, 203 A.3d 1246 (2019). Additional
facts will be discussed as required.
Before this court, the defendant renews his claims
that the trial court violated his rights to confrontation
and to present a defense under the sixth amendment2 by
prohibiting him from cross-examining Chase regarding
the facts underlying Chase’s prior convictions of larceny
and breach of the peace. The defendant argues that this
evidence would have impeached Chase by showing his
character for untruthfulness and would have estab-
lished Chase’s motive, intent, and interest in the present
case—namely, that Chase had attempted to steal the
defendant’s car to finance his drug habit and lied about
macing the defendant in self-defense. The defendant
contends that because motive, intent, interest, and cred-
ibility are not collateral issues, the trial court’s preclu-
sion of this evidence denied him his rights to confronta-
tion and to present a defense.
In reviewing the defendant’s claim, we are guided by
well established legal principles. The sixth amendment
guarantees a defendant the rights to confrontation and
a meaningful opportunity to present a defense. See, e.g.,
State v. Hedge, 297 Conn. 621, 634, 1 A.3d 1051 (2010)
(right to present defense); State v. Colton, 227 Conn.
231, 248–49, 630 A.2d 577 (1993) (right to confronta-
tion). Under the sixth amendment, ‘‘[c]ross-examina-
tion 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.) State
v. Colton, supra, 249. Although ‘‘the extent of the proof
of details lies in the court’s discretion’’; (internal quota-
tion marks omitted) id.; ‘‘the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment . . . [and] may deprive the defen-
dant of his constitutional right to present a defense.’’
(Citation omitted; internal quotation marks omitted.)
State v. Davis, 298 Conn. 1, 9, 1 A.3d 76 (2010).
‘‘The confrontation clause does not, however, sus-
pend the rules of evidence to give the defendant the
right to engage in unrestricted cross-examination.’’
(Internal quotation marks omitted.) State v. Barnes, 232
Conn. 740, 746, 657 A.2d 611 (1995). As a result, we
analyze whether limitations on cross-examination vio-
lated a defendant’s rights to confrontation and to pres-
ent a defense only if the trial court improperly precluded
the testimony. See, e.g., State v. Davis, supra, 298 Conn.
10–11. Thus, we must ‘‘first review the trial court’s evi-
dentiary rulings. Our standard of review for evidentiary
claims is well settled. To the extent [that] a trial court’s
admission of evidence is based on an interpretation of
the [Connecticut] Code of Evidence, our standard of
review is plenary. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Citation omitted; internal quotation marks
omitted.) Id.I
The defendant first claims that the Appellate Court
incorrectly determined that he did not establish that
the trial court violated his rights to confrontation and
to present a defense by precluding him from cross-
examining Chase about the specific facts underlying
Chase’s three prior larceny convictions—specifically,
the fact that Chase stole cell phones to finance a drug
habit. The defendant argues that, because a larceny
conviction is probative of veracity, these underlying
facts would have impeached Chase’s credibility and,
thus, were admissible under §§ 4-4 and 6-6 of the Con-
necticut Code of Evidence. He also argues that these
underlying facts would have established Chase’s
motive, intent, and interest—namely, that Chase had
similarly attempted to steal the defendant’s car to
finance his drug habit and had testified against the
defendant to cover up his own illegal actions—and,
thus, were admissible under §§ 4-5 (c) and 6-5 of the
Connecticut Code of Evidence. We conclude that the
trial court did not abuse its discretion by limiting cross-
examination of Chase in this manner and that the defen-
dant has failed to establish a constitutional violation.
The following additional facts and procedural history
are relevant to this claim. Prior to the start of evidence,
the state moved to preclude defense counsel from
inquiring into Chase’s past criminal convictions and
any other prior misconduct. The defendant objected,
arguing that the facts underlying Chase’s prior misde-
meanor convictions of larceny were admissible under
§ 6-6 for impeachment purposes to show a lack of verac-
ity and under § 4-5 (c) for the limited purposes of show-
ing motive, intent, and interest. Specifically, the defen-
dant sought to inquire into the underlying facts of three
larceny convictions that were based on four incidents
in 2013. According to the defendant, on four prior occa-
sions between 2012 and 2013, Chase had stolen cell
phones from different stores. Police reports regarding
the thefts, which the defendant attached to his memo-
randum of law in opposition to the state’s motion, noted
that Chase had admitted that he stole the cell phones
to finance a drug habit. The defendant raised the same
arguments regarding veracity, motive, intent, and inter-
est that he now raises before this court. Additionally,
he argued that Chase’s drug use was admissible for
credibility and impeachment purposes to test his per-
ception and ability to recall events. Defense counsel
clarified at argument before the start of trial that he did
not seek to ask Chase about the convictions themselves,
only the underlying facts supporting those convictions.
The trial court ruled that because larceny was rele-
vant to veracity, defense counsel could impeach Chase’s
credibility by inquiring about his prior larceny convic-
tions,3 but the court found that the underlying facts of
those convictions were irrelevant as to Chase’s veracity
or motive. Therefore, the court precluded counsel from
inquiring into the specific facts underlying those convic-
tions. The trial court found that Chase’s prior drug habit
from 2013 was too remote in time to be relevant to a
motive to steal the defendant’s car, given that there was
no evidence that Chase had a continuing substance
abuse problem or was under the influence of drugs
at the time of the incident at issue. The trial court
determined that whether Chase stole cell phones to
finance a drug habit in 2013, without evidence even of
drug usage in 2015—let alone drug dependency—was
‘‘a collateral issue . . . not probative as to what’s
before the court today and would only serve to confuse
the jury.’’
On cross-examination, defense counsel asked Chase
if he previously had been convicted of larceny, to which
Chase responded in the affirmative. Additionally,
defense counsel asked Chase whether, on the day of
the incident at issue or during the seven days before
the incident, he had been under the influence of any
illegal drugs, to which Chase responded in the negative.
During closing argument to the jury, defense counsel
argued that the defendant had acted in self-defense and
in defense of his property because Chase, ‘‘a vigilante
road predatory tow truck operator,’’ was illegally tow-
ing the defendant’s car to steal it and was motivated
by personal financial gain. Defense counsel argued that,
when the defendant caught Chase stealing the car,
Chase sprayed Mace at the defendant and damaged his
own truck to cover up his actions. Defense counsel
urged the jury to disregard Chase’s testimony,
impeaching his credibility by arguing that Chase had a
motive to lie—to cover up his actions so he would not
be charged with larceny and assault. Further attacking
Chase’s credibility, defense counsel argued that Chase
had a tendency to lie, given his three prior larceny con-
victions.
The trial court subsequently instructed the jury on
the defenses of self-defense and defense of property
but limited the applicability of these defenses to the
charges of breach of the peace in the second degree
and threatening in the second degree. It did not instruct
the jury on these defenses regarding the charge of crimi-
nal mischief in the third degree. The trial court also
instructed the jury that it could consider Chase’s larceny
convictions in evaluating his credibility.
A
The defendant argues that the Appellate Court incor-
rectly determined that the trial court had not abused
its discretion by precluding cross-examination about
the facts underlying Chase’s prior larceny convictions
because this testimony was admissible under §§ 4-4 and
6-6 of the Connecticut Code of Evidence as evidence
of Chase’s character for untruthfulness. We disagree.
Sections 4-4 and 6-6 of the Connecticut Code of Evi-
dence govern whether witnesses may be asked about
specific conduct to impeach their character for truthful-
ness. These rules ‘‘[prevent] the use of a general trait
of character or propensity to prove that a person acted
that way on a specific occasion’’; C. Tait & E. Prescott,
Connecticut Evidence (5th Ed. 2014) § 4.12.2, p. 166;
but make an exception for evidence of a witness’ char-
acter for untruthfulness. ‘‘Subdivision (3) [of § 4-4 (a)]
authorizes the court to admit evidence of a witness’
character for untruthfulness or truthfulness to attack
or support that witness’ credibility. . . . Section 6-6
addresses the admissibility of such evidence and the
appropriate methods of proof.’’ (Citation omitted.)
Conn. Code Evid. § 4-4, commentary. Specifically, § 6-
6 (b) (1) permits the questioning of a witness about
instances of the witness’ conduct if the conduct is pro-
bative of the witness’ veracity. Conn. Code Evid. § 6-6
(b) (1) (‘‘[a] witness may be asked, in good faith, about
specific instances of conduct of the witness, if probative
of the witness’ character for untruthfulness’’).
‘‘[T]he right to cross-examine a witness pertaining to
specific acts of misconduct is limited in three distinct
ways. . . . First, cross-examination may only extend
to specific acts of misconduct other than a felony con-
viction if those acts bear a special significance upon
the issue of veracity. . . . Second, [w]hether to permit
cross-examination as to particular acts of misconduct
. . . lies largely within the discretion of the trial court.
. . . Third, extrinsic evidence of such acts is inadmissi-
ble.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Valentine, 255 Conn. 61, 71, 762 A.2d
1278 (2000).
As to the first and second limitations, ‘‘[w]hether
particular acts of misconduct are relevant to lack of
veracity depends on whether they have a logical ten-
dency to indicate a lack of veracity. . . . [U]nless par-
ticular acts of misconduct are indicative of a lack of
veracity, it is error to permit cross-examination con-
cerning them, however much they may be indicative of
bad moral character. . . . It does not follow, however,
that if the acts inquired about are indicative of a lack of
veracity, the court must permit the cross-examination.’’
(Citations omitted; footnote omitted) Vogel v. Sylvester,
148 Conn. 666, 675–76, 174 A.2d 122 (1961). ‘‘In consider-
ing whether the court abused its discretion in this
regard, the question is not whether any one of us, had
we been sitting as the trial judge, would have exercised
our discretion differently. . . . Rather, our inquiry is
limited to whether the trial court’s ruling was arbitrary
or unreasonable.’’ (Internal quotation marks omitted.)
State v. Annulli, 309 Conn. 482, 495, 71 A.3d 530 (2013).
‘‘We have consistently recognized that crimes involv-
ing larcenous intent imply a general disposition toward
dishonesty or a tendency to make false statements.’’
(Internal quotation marks omitted.) State v. Askew, 245
Conn. 351, 363–64, 716 A.2d 36 (1998); see State v.
Martin, 201 Conn. 74, 87, 513 A.2d 116 (1986); State v.
Lindsay, 143 Conn. App. 160, 173, 66 A.3d 944, cert.
denied, 310 Conn. 910, 76 A.3d 626 (2013). This does
not mean, however, that the trial court was required to
permit the defendant to ask Chase about the underlying
facts of his larceny convictions without limitation. It
is the larceny itself that is indicative of veracity. The
defendant was permitted to, and did, question Chase
about having been convicted of larceny. As a result, the
defendant was able to present evidence to the jury that
Chase previously had been involved in stealing. Cf. State
v. Martin, supra, 87–89 (trial court abused its discretion
by not allowing defense counsel to inquire whether
victim ever had been involved in stealing).
The trial court prevented the defendant from inquir-
ing into the facts underlying those prior larceny convic-
tions, including Chase’s motivation for the prior thefts,
because Chase’s motivation on those prior occasions
was not probative of his veracity. The trial court could
have reasonably concluded that Chase’s alleged motive
for stealing cell phones to finance a drug addiction two
to three years prior to the incident in the present case
was not relevant to his character for truthfulness any
more than the fact that he generally had a history of
theft.
In response, and relying principally on an Illinois
appellate court decision, the defendant argues that
Chase’s history of drug abuse is probative of veracity
because ‘‘ ‘habitual users of narcotics become habitual
liars.’ ’’ People v. Accardo, 195 Ill. App. 3d 180, 194, 551
N.E.2d 1349, appeal denied, 133 Ill. 2d 560, 561 N.E.2d
695 (1990). Although drug addiction or drug use may
be probative of a witness’ credibility for other reasons,
such as a witness’ ability to accurately perceive and to
remember events, this court has rejected the proposi-
tion that drug addiction is probative of veracity. See
State v. Dobson, 221 Conn. 128, 138, 602 A.2d 977 (1992)
(‘‘narcotics convictions are crimes which do not reflect
directly on the credibility of one who has been con-
victed of them’’ (internal quotation marks omitted));
see also State v. Lambert, 58 Conn. App. 349, 357, 754
A.2d 182 (evidence of drug dealing is not relevant to
veracity), cert. denied, 254 Conn. 915, 759 A.2d 507(2000); State v. Jaynes, 35 Conn. App. 541, 553–55, 645
A.2d 1060 (evidence that witness had drug addiction
did not require trial court to give instruction that drug
addiction could be considered in determining witness’
credibility), cert. denied, 231 Conn. 928, 648 A.2d 880(1994); State v. Irving, 27 Conn. App. 279, 288 n.5, 606
A.2d 17 (‘‘narcotics offenses are not relevant to prove
truthfulness or veracity’’), cert. denied, 222 Conn. 907,
608 A.2d 694 (1992).
Preclusion of evidence of drug use to show character
for untruthfulness is in line with our general rule that
propensity evidence is inadmissible; see, e.g., State v.
Stenner, 281 Conn. 742, 752, 917 A.2d 28, cert. denied,
552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007);
because ‘‘addiction alone cannot reasonably be thought
to amount to more than a compelling propensity to use
narcotics . . . .’’ Robinson v. California, 370 U.S. 660,
678–79, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (Harlan, J.,
concurring). Accordingly, a defendant’s constitutional
rights to confrontation and to present a defense are not
violated when the trial court precludes a defendant
from impeaching a witness’ character for truthfulness
through evidence of drug use. See State v. Dobson,
supra, 221 Conn. 137–38.
Moreover, exercising its discretion, the trial court
reasonably could have determined that any possible
connection between Chase’s prior drug habit and his
character for untruthfulness was outweighed by the
potential prejudice in a case in which the defendant
presented no evidence that Chase was using narcotics
or had a drug addiction during the relevant time period.
See State v. James, 211 Conn. 555, 571–72, 560 A.2d
426 (1989) (‘‘[e]ven if the evidence did involve
untruthfulness, the court was well within its discretion
in excluding it because of its remoteness in time, its
minimal bearing on credibility, and its tendency to inject
a collateral issue into the trial’’); see also part I B of
this opinion.
Accordingly, we reject the defendant’s argument that
the Appellate Court incorrectly determined that the trial
court had not abused its discretion by precluding him
from inquiring into the underlying facts of Chase’s prior
larceny convictions to impeach Chase’s character for
untruthfulness.
B
The defendant next argues that the facts underlying
Chase’s larceny convictions were relevant to Chase’s
intent to steal the defendant’s vehicle to finance his drug
habit because Chase previously had stolen to finance
his drug habit and, thus, was motivated to falsely incul-
pate the defendant to cover up his own misconduct.
On this basis, the defendant argues that this testimony
was admissible under §§ 4-5 (c) and 6-5 of the Connecti-
cut Code of Evidence to establish motive, interest, and
intent. We disagree.
Evidence of prior misconduct is not admissible
‘‘merely to show an evil disposition of an [individual],
and especially the predisposition to commit the crime
[at issue].’’ (Internal quotation marks omitted.) State v.
Stenner, supra, 281 Conn. 752. Under §§ 4-5 (c) and 6-
5 of the Connecticut Code of Evidence although, this
evidence may be admissible if it is relevant to an individ-
ual’s motive, intent, or interest in testifying. See Conn.
Code Evid. § 4-5 (c) (‘‘[e]vidence of other crimes,
wrongs or acts of a person is admissible . . . to prove
intent . . . [or] motive’’); Conn. Code Evid. § 6-5
(‘‘[t]he credibility of a witness may be impeached by
evidence showing bias for, prejudice against, or interest
in any person or matter that might cause the witness
to testify falsely’’). ‘‘We have developed a two part test
to determine the admissibility of such evidence. First,
the evidence must be relevant and material to at least
one of the circumstances encompassed by the excep-
tions. Second, the probative value of such evidence
must outweigh [its] prejudicial effect.’’ (Internal quota-
tion marks omitted.) State v. Stenner, supra, 752.
For prior misconduct to be relevant to a witness’
intent, it must permit the reasonable inference that,
‘‘under similar circumstances, the [witness] engaged in
intentional conduct similar to a form of the intentional
conduct [at issue].’’ State v. Nunes, 260 Conn. 649, 688,
800 A.2d 1160 (2002). Nevertheless, relevant prior mis-
conduct evidence may be precluded if its admission
would cause undue delay in the trial or would unduly
distract or confuse the jury. See State v. Hill, 307 Conn.
689, 698, 59 A.3d 196 (2013).4
Case law establishes that evidence of an individual’s
prior drug use may be relevant to intent, motive, and
interest. See State v. Feliciano, 256 Conn. 429, 452–53,
778 A.2d 812 (2001) (evidence of defendant’s having
drug habit and stealing to finance drug habit one month
before robbery and murder at issue was relevant to
show defendant had motive and intent to commit rob-
bery that led to victim’s murder); State v. Colton, supra,
227 Conn. 250–51 (trial court abused its discretion by
precluding evidence of witness’ drug habit at time she
first came forward to provide police information—four-
teen months after victim’s murder and once reward
money was offered—to contradict witness’ testimony
that she was not using drugs at time of trial and to
establish both that she lied and was motivated to falsely
accuse defendant to finance her drug habit); State v.
Schonagel, 189 Conn. 752, 768, 459 A.2d 106 (1983) (on
retrial, evidence of defendant’s drug habit at time of
arson could be admissible to establish that he was moti-
vated to commit arson to finance his drug habit,
although state must establish first that he could not
afford drug habit), vacated on other grounds, 465 U.S.
1002, 104 S. Ct. 990, 79 L. Ed. 2d 224 (1984). The present
case is distinguishable from those cases, however,
because the defendant failed to establish a proper foun-
dation—namely, some evidence from which the jury
reasonably could have concluded that Chase had an
ongoing drug habit at the time of the incident at issue
and that Chase’s prior misconduct was sufficiently simi-
lar to the conduct at issue. ‘‘The proffering party bears
the burden of establishing the relevance of the offered
testimony. Unless such a proper foundation is estab-
lished, the evidence . . . is irrelevant.’’ (Internal quota-
tion marks omitted.) State v. Barnes, supra, 232 Conn.
747.5 Without an offer of proof that a witness had a
drug habit at the time of the incident at issue, inquiry
into whether the witness had a drug habit and whether
this habit motivated the witness’ actions or testimony
constitutes an improper fishing expedition. Id., 749–50.
The state conceded in its brief to this court that, if
there had been any evidence that Chase had an ongoing
drug habit at the time of the incident at issue, evidence
of that habit may have been relevant to motive, intent,
and interest. The defendant offered no such evidence.
Rather, he merely argued that, because Chase had a
drug habit approximately two years prior to the inci-
dent, he likely still had a drug habit and that this drug
habit likely motivated him to attempt to steal the defen-
dant’s car because it motivated him to steal cell phones
two years prior. To list these speculative leaps is to
explain why the trial court reasonably could have pre-
vented this line of inquiry.
Clearly, Chase’s drug addiction at the time he commit-
ted the 2012 and 2013 larcenies would be relevant to
his motive and intent to steal the cell phones during
that period of time. This evidence, however, without
more, is not relevant to his motive and intent to commit
a larceny approximately two years later, under signifi-
cantly different circumstances. Although the passage
of two years may not be long enough to deem the
larceny convictions themselves too remote, for general
credibility purposes, this passage of time, without evi-
dence that Chase continued to have a drug habit in 2015
that motivated him to steal, substantially diminished
the relevancy of the underlying facts relating to those
convictions.6 Additionally, although both sets of facts
involve theft, there are no other similarities between the
conduct in the present case and the conduct underlying
Chase’s previous larceny convictions. See State v.
Nunes, supra, 260 Conn. 688 (requiring ‘‘similar circum-
stances’’ for prior misconduct to be relevant to intent).
This lack of similarity, as well as the lack of evidence
that Chase had an ongoing drug habit at the time of
the incident at issue, supports the trial court’s conclu-
sion that this evidence had minimal, if any, probative
value on the issues of motive, intent, and interest, all
of which were contingent on Chase’s having had a drug
habit at the time of the incident at issue.
In response, the defendant argues that the facts of
the present case are nearly identical to the facts in
Colton, in which the state’s main witness came forward
fourteen months after the unsolved murder of the victim
to identify the defendant as having been with the victim
at the scene of the crime and to implicate him in the
murder only after the state had offered reward money
in the case. State v. Colton, supra, 227 Conn. 234, 239.
The defendant’s theory of defense in Colton was that
the reward money motivated the witness, who was a
prostitute and a drug addict, to falsely identify the
defendant and to testify against him because she had
an ongoing drug habit she needed money to finance.
Id., 240. The witness testified at trial that, at the time
of the murder, she in fact had a drug habit and was a
prostitute but that, at the time she decided to give her
statement to the police, she no longer used drugs or
worked as a prostitute, and, thus, her prior drug habit
did not motivate her to falsely testify. Id., 241. To prove
both that the witness lied and that she was motivated
by her desire for money to buy drugs, the defendant
proffered the testimony of two acquaintances of the
witness, who had seen her use drugs and work as a
prostitute both at about the time she came forward
with the information inculpating the defendant and at
about the time of her trial testimony. Id., 243–44. The
trial court precluded the defendant from offering this
evidence. Id. We determined that the trial court in Col-
ton abused its discretion because the testimony regard-
ing the witness’ drug use and prostitution in the years
after the murder, coupled with the testimony about her
drug use and prostitution before and at the time of the
murder, strongly indicated that the witness not only
had an ongoing drug problem at the relevant time but
also had a motive to falsely accuse the defendant to
finance her habit. Id., 250–52.
The facts of the present case are distinguishable from
the facts in Colton. Although the defendant in the pres-
ent case proffered evidence that Chase had a prior drug
habit, and although Chase denied at trial that he had
a drug habit at the time of the incident at issue, the
similarities between the two cases end there. The defen-
dant offered no evidence that Chase had an ongoing
drug habit at the time of the incident at issue. The
defendant appears to argue that, because he offered
the police reports regarding the larcenies in support of
his proffer that Chase had a drug addiction two years
prior to the incident at issue, it was the state’s burden to
establish how and when Chase overcame that addiction,
and that, in the absence of such evidence, the defendant
had satisfied his burden of laying a sufficient founda-
tion. Additionally, to the extent any additional evidence
was required to satisfy this burden, the defendant
argues that, because the trial court precluded him from
accessing Chase’s medical and substance abuse
records, a decision that the Appellate Court upheld
on appeal, he was prevented from offering any such
evidence. As Colton makes clear, however, medical
records are not the only means of establishing that an
individual has a drug habit, and it is the proffering party
that bears the burden of establishing a sufficient foun-
dation.7
In the absence of this evidence, evidence of Chase’s
prior drug use had little or no relevance as to whether
Chase had a drug habit at the time of the incident at
issue and, thus, had minimal relevance to Chase’s
motive, intent, and interest. Accordingly, we conclude
that the trial court did not abuse its discretion by pre-
cluding inquiry into the underlying facts of Chase’s prior
larceny convictions, and, thus, the defendant failed to
establish a constitutional violation.
II
The defendant next claims that the Appellate Court
incorrectly determined that he did not establish that
the trial court had violated his rights to confrontation
and to present a defense by precluding him from cross-
examining Chase about the specific facts underlying
Chase’s prior breach of the peace conviction—specifi-
cally, the fact that, by pleading guilty to the breach of
the peace charge, he admitted that he had lied about
using pepper spray in self-defense—because they were
relevant to veracity, intent, motive, and a common
scheme or pattern. We disagree.
The following additional facts are necessary to our
review of this claim. Prior to the start of evidence,
defense counsel proffered a police report that showed
that, in 2012, Chase, while in his motor vehicle, had
gotten into an altercation with another driver. Chase
told the police that the other driver had tried to run
him off the road, then exited his vehicle, approached
Chase’s vehicle, and attempted to open Chase’s car
door. Chase told the police that he responded by spray-
ing pepper spray at the other driver in self-defense. The
other driver provided the police with a different version
of events, stating that Chase had been swerving and
‘‘[b]rake [c]hecking’’ him and that, when both cars
stopped, he exited his vehicle and approached Chase
to ask what was wrong when Chase sprayed pepper
spray at him. Unable to determine fault due to the incon-
sistencies in the two versions of events, the police offi-
cer issued Chase and the other driver misdemeanor
summons tickets for breach of the peace. Subsequently,
Chase, who represented himself, pleaded guilty to the
breach of the peace charge and received a relatively
minor fine but maintained that he had been acting in
self-defense when he sprayed the pepper spray.
Defense counsel in the present case argued that he
intended to use these underlying facts to impeach Chase
because Chase’s guilty plea was the equivalent of an
admission that he had no valid defense of self-defense
and, thus, had lied about using pepper spray in self-
defense.8 Evidence of this lie, defense counsel argued,
was admissible under § 4-5 (c) of the Connecticut Code
of Evidence because it was relevant to establish that
Chase had a common scheme or pattern of falsely
accusing other people of being the initial aggressor and
falsely raising the defense of self-defense to cover his
tracks when he engaged in misconduct. Further,
defense counsel argued, also pursuant to § 4-5 (c), that
this conduct was admissible to show Chase’s motive
and intent because it showed that Chase had a habit
of claiming self-defense to escape prosecution for his
misconduct and, thus, he was not acting in self-defense
in the present case.
The trial court declined to permit inquiry into Chase’s
breach of the peace conviction and the underlying facts
of that conviction. The trial court determined that the
nature of a conviction of breach of the peace was not
indicative of veracity and did not impeach Chase’s credi-
bility by showing that he lied about having acted in self-
defense. Specifically, the court was unwilling to find
that Chase’s guilty plea was the equivalent of an admis-
sion that he lied about having acted in self-defense,
especially in light of Chase’s having maintained at the
plea proceedings that he had in fact acted in self-
defense. Because the trial court found that his guilty
plea was not inconsistent with his statements regarding
self-defense, it also found that this evidence was not
relevant to intent, motive, absence of malice, knowl-
edge, or a common scheme or plan. Additionally, the
trial court determined that this evidence would inject
collateral issues into the trial and lacked probative value
due to its remoteness in time.
Despite the court’s ruling, when the state asked Chase
on direct examination if he previously had been con-
victed of any crimes, he admitted that he had been
convicted of both larceny and breach of the peace. On
cross-examination, defense counsel similarly inquired
into Chase’s prior convictions, and again Chase admit-
ted to the breach of the peace conviction. During closing
argument, defense counsel urged the jury to reject
Chase’s testimony as dishonest and motivated by his
own desire to cover up his attempted theft of the defen-
dant’s car and his assault of the defendant, relying in
part on Chase’s prior breach of the peace conviction
to show that he previously had ‘‘engaged in fighting
behavior.’’
For the facts underlying Chase’s prior breach of the
peace conviction to be relevant to veracity, intent,
motive, or common scheme, the defendant would have
to be correct that Chase’s guilty plea to the breach of
the peace charge was inconsistent with his statements
to the police that he sprayed another person with pep-
per spray in self-defense, showing that he lied about
acting in self-defense. Whether two statements are actu-
ally inconsistent is a determination that ‘‘lies within the
discretionary authority of the trial court.’’ State v. Avis,
209 Conn. 290, 302, 551 A.2d 26 (1988), cert. denied,
489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).
We conclude that the trial court did not abuse its
discretion in determining that Chase’s prior statements
to the police about acting in self-defense were not incon-
sistent with his guilty plea to the charge of breach of the
peace and, thus, were not evidence of Chase’s having
previously lied about acting in self-defense. The trial
court found, and the defendant does not challenge, that
Chase maintained that he had been acting in self-
defense throughout the plea proceedings. Rather, the
defendant argues that a plea of guilty is an admission
of guilt and, thus, is a concession by Chase that he had
no viable self-defense claim and had lied about acting
in self-defense, regardless of his having maintained that
he acted in self-defense. This court has recognized,
however, that a myriad of reasons may explain why an
individual would plead guilty, and, thus, there is ‘‘simply
no open and visible connection’’ between a guilty plea
and the individual’s state of mind at the time of the
crime. State v. Tony M., 332 Conn. 810, 834, 213 A.3d
1128 (2019). On the basis of the limited record before
this court regarding the plea proceedings for Chase’s
breach of the peace conviction, we cannot say that the
trial court abused its discretion in finding that Chase’s
guilty plea was not an admission that he did not have a
valid defense of self-defense and, thus, did not establish
that he previously had lied about acting in self-defense.
Because this evidence was not relevant to whether
Chase previously lied about acting in self-defense, the
facts underlying Chase’s breach of the peace conviction
were not relevant to veracity, motive, intent, or a com-
mon scheme or pattern. Thus, the trial court did not
abuse its discretion by precluding this evidence, and,
therefore, the defendant has failed to establish a consti-
tutional violation.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** June 10, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
There was some confusion at trial about the identity of Chase’s employer.
Chase testified on direct examination that he was employed by A & M
Towing & Recovery, Inc. (A & M Towing), and an entity he identified as
Central Groups. He clarified on cross-examination that he had been hired
by A & M Towing but that, at the time of the incident at issue, A & M Towing
had been purchased by Central Groups. Subsequently, the defendant offered
the testimony of John L. Freitas, the vice president and director of A & M
Towing, who testified that, at the time of the incident at issue, Central
Automotive Transport had not purchased A & M Towing but had entered
into a management agreement with A & M Towing. Freitas indicated that,
although A & M Towing had no record of employing Chase, Central Automo-
tive Transport might have employed him, but Freitas did not have access
to those records.
2
Although the defendant asserts in his brief to this court that the trial
court’s ruling also violated his rights under article first, § 8, of the Connecti-
cut constitution, ‘‘[b]ecause the defendant has not provided an independent
analysis of his state constitutional claim under State v. Geisler, 222 Conn.
672, 684–86, 610 A.2d 1225 (1992), we consider that claim abandoned and
unreviewable.’’ State v. Arias, 322 Conn. 170, 185 n.4, 140 A.3d 200 (2016).
3
The trial court also admitted Chase’s prior misdemeanor convictions of
larceny under § 6-7 of the Connecticut Code of Evidence. The defendant
suggests that this basis was improper. We have no occasion to review this
issue because it was to the benefit of the defendant, who relied on these
convictions to impeach Chase during cross-examination and to attack his
credibility during closing argument.
4
The defendant relies on Hedge to argue that, because the prior miscon-
duct evidence tends to negate his guilt by supporting his defenses of self-
defense and defense of property, this evidence is not only admissible under
§ 4-5 (c), but also that the Code of Evidence has ‘‘extremely limited applicabil-
ity’’ to the extent that it limits admissibility of this type of evidence. State
v. Hedge, supra, 297 Conn. 653. Hedge is distinguishable, however, because,
in that case, we held that prior misconduct may be admissible under what
is now § 4-5 (c) to establish third-party culpability. Given the strict require-
ments for establishing third-party culpability, we determined that the policies
underlying §§ 4-4 (a) and 4-5 (a) of the Connecticut Code of Evidence have
‘‘extremely limited applicability’’ under those circumstances, as unduly
restricting the defendant’s ability to establish his claim would be unfair. Id.,
650–53 (holding that prejudice does not weigh in balancing test because
third party against whom evidence is offered to exculpate defendant is not
party to case and, thus, prior misconduct of third party is admissible unless
outweighed by ‘‘ ‘undue waste of time and confusion of the issues’ ’’). The
defendant in the present case, however, was not offering this evidence to
establish third-party culpability for his own breach of the peace—that he
was innocent and Chase the actual perpetrator—but to support his defenses
of self-defense and defense of property by establishing Chase’s intent,
motive, and interest—that Chase intended to steal the defendant’s car to
finance a drug habit, motivating him to lie about acting in self-defense,
giving him an interest in the outcome of this case. We therefore do not find
the language in Hedge applicable in the present case.
Moreover, although Hedge recognized that prior misconduct may be
admissible under what is now § 4-5 (c) if it is relevant to the defendant’s
theory of defense, for the facts underlying Chase’s larceny conviction to be
relevant to the defense theory in the present case, those facts would have
to be relevant to Chase’s intent and motive—namely, that he intended to
steal the defendant’s vehicle and, thus, was motivated to falsely assert self-
defense and to falsely inculpate the defendant. Because we conclude that
the trial court did not abuse its discretion in determining that this evidence
was not relevant to intent and motive, it likewise was not relevant to the
defendant’s theory of defense.
5
‘‘This may be accomplished in one of three ways. First, the defendant
can make an offer of proof. . . . Second, the record independently can be
adequate to establish the relevance of the proffered testimony. . . . Finally,
the defendant can establish a proper foundation for the testimony by stating
a ‘good faith belief’ that there is an adequate factual basis for his inquiry.
. . . A cross-examiner may inquire into the motivation of a witness if he
or she has a good faith belief that a factual predicate for the question exists.’’
(Citations omitted.) State v. Barnes, supra, 232 Conn. 747.
6
In determining that the trial court did not abuse its discretion by preclud-
ing this testimony, the Appellate Court’s analysis relied on the trial court’s
finding that there was no evidence that Chase was under the influence of
drugs at the time of the incident at issue. State v. Rivera, supra, 187 Conn.
App. 825. The issue, however, is not whether the facts underlying Chase’s
prior larceny convictions were relevant to his drug use on a particular day,
including the day of the incident but, rather, whether this evidence was
relevant to whether Chase had an ongoing drug habit during the time period
at issue that might have motivated him to steal. An individual could have
an ongoing drug habit but not be under the influence of drugs on a particular
day, especially if that individual was in need of money to support his
drug habit.
In the present case, the trial court found that there was no evidence of
Chase either being under the influence of narcotics or having a substance
abuse habit at the time of the incident at issue. It is the latter, not the
former, that supports the trial court’s determination that the facts underlying
Chase’s larceny convictions two years before the incident were too remote
in time to be relevant to his motive, intent, or interest. Contrary to the
Appellate Court’s reasoning that this prior misconduct evidence was too
remote because it occurred approximately two years prior to the incident
at issue and because there was no evidence that Chase was under the
influence of drugs at the time of the incident at issue, if there had been
evidence that Chase had a continuing drug habit at the time of the incident
at issue, regardless of whether he was under the influence of drugs during
the incident at issue, the facts underlying his prior larceny convictions would
have had increased relevancy to his intent, motive, and interest. It is the
lack of this evidence that renders the prior misconduct too remote, thereby
diminishing its relevancy. Without some evidence that Chase had a continu-
ing drug habit, the trial court reasonably determined that evidence of drug
addiction two years prior to the incident at issue was too remote in time
to be relevant to whether Chase was motivated to steal the defendant’s
vehicle to finance a drug habit that may no longer have existed.
7
Additionally, the defendant offered no evidence that Chase needed to
steal to finance a drug habit. For example, although there was testimony
at trial that there was some confusion over which company Chase worked
for at the time of the incident; see footnote 1 of this opinion; the defendant
offered no evidence that Chase was unemployed at this time.
8
From the trial transcript of argument on this issue, it appears the defen-
dant proffered a transcript from the plea proceedings regarding Chase’s
breach of the peace conviction. Both the state and the trial court reviewed
the transcript, and the trial court relied on it in making its determination.
The defendant did not have the transcript marked for identification or
admitted as a court exhibit, however, and, thus, the transcript is not part
of the record before us. Accordingly, our review of what occurred at Chase’s
plea proceeding is limited to the findings of fact made by the trial court,
which are limited to the fact that Chase pleaded guilty to the breach of
the peace charge but also maintained that he was acting in self-defense.
Specifically, the court found: ‘‘Prior to entering his plea, he was still reiterat-
ing, in that case back in—or that incident back in 2012, that the other
individual ran him off the road, approached his car, and, as he approached
the car, he tried to spray it. So, as far as making the jump from, because
he entered his plea to a breach of [the] peace, he wasn’t still claiming
that he was doing this in self-defense. [The] [c]ourt’s not willing to make
that jump.’’