State v. Jeffrey H. , 176 Conn. App. 666 ( 2017 )

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STATE OF CONNECTICUT v. JEFFREY H.*
(AC 38113)
Sheldon, Mullins and Harper, Js.
Syllabus
Convicted, following a jury trial, of three counts of the crime of sexual
assault in the first degree in connection with his alleged sexual abuse
of his daughter, N, the defendant appealed to this court. On the eve of
the defendant’s scheduled trial date, the state discovered that the statute
of limitations on the conduct supporting the charges in the original
information had expired, and the court granted the state’s request for
a continuance. During the continuance, the state requested that the state
police detective assigned to the case, F, conduct an additional interview
with N, and, in that interview, N made allegations against the defendant
of assaults that occurred in a time period that fell within the statute of
limitations. On appeal, the defendant claimed, inter alia, that the trial
court violated his constitutional right to present a defense by preventing
him from cross-examining F relating to whether N made the new allega-
tions against the defendant only upon learning that the statute of limita-
tions barred her original allegations, and by excluding testimony from
S, a physician, and a letter S had written, which included a notation
that N had a history of a previous sexual assault. Held:
1. The trial court did not abuse its discretion or violate the defendant’s
constitutional right to present a defense by excluding testimony concern-
ing the statute of limitations issue that the defendant sought to introduce
through the cross-examination of F; the defendant was permitted to
conduct a sufficient inquiry into his defense theory that N had fabricated
the new allegations, including eliciting testimony from F about the con-
tinuance of the originally scheduled trial and F’s involvement in the
case, and evidence that the state had asked F to obtain another statement
from N after the continuance had been granted, and the defendant failed
to cross-examine N regarding her motivations for detailing the abuse
alleged in her latest statement to F or if she changed her allegations
due to pressure from authority figures, and failed to ask F, who could
not testify regarding N’s motivations, whether he had pressured N to
make the new allegations because of a problem with the statute of limi-
tations.
2. The trial court did not abuse its discretion in excluding as irrelevant S’s
testimony and letter, which the defendant sought to admit to rebut
certain consciousness of guilt evidence presented by the state; the foun-
dation for S’s letter was wholly speculative, as S was unable to provide
any insight as to where or from whom he had obtained the information
in the letter about N’s history of sexual abuse, or to which of certain
separate instances of sexual assault involving N the notation referred,
and the defendant failed to demonstrate any open and visible connection
between S’s notation about N’s history of sexual abuse and the state’s
consciousness of guilt evidence.
3. The defendant could not prevail on his claim that the trial court abused
its discretion and deprived him of his right to due process by admitting
into evidence certain out of context interview statements that he made
following a polygraph examination he had taken and failed; that court
properly concluded that the defendant’s statements, which referred to
the fact that he felt sexually aroused by N and that he locked himself
in his bedroom because he was afraid N was going to kill him, qualified
as an exception to the rule against hearsay for an admission by a party
opponent under the applicable provision of the Code of Evidence (§ 8-
3 [1]), as they were relevant and material to show the defendant’s
consciousness of guilt and were not so prejudicial as to risk injustice
as a result of their admission, and the court excluded any statements
made in response to the fact that the defendant had failed the polygraph,
including any statement related to his change of response from his
earlier full denial of any inappropriate behavior.
Argued March 13—officially released September 26, 2017
Procedural History
Substitute information charging the defendant with
three counts of the crime of sexual assault in the first
degree, brought to the Superior Court in the judicial
district of Litchfield and tried to the jury before Marano,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Matthew D. Dyer, with whom, on the brief, was Kris-
ten Mostowy, for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were David S. Shepak, state’s
attorney, and Dawn Gallo, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Jeffrey H., appeals from
the judgment of conviction, rendered after a jury trial,
of three counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1). On appeal,
the defendant claims that the trial court (1) abused
its discretion by preventing him from pursuing certain
inquiries on cross-examination, thereby violating his
sixth amendment right to present a defense, and (2)
abused its discretion by admitting into evidence out-of-
context portions of his interview conducted following
a polygraph examination, in violation of his right to due
process. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The victim, N, is the defendant’s daughter. The
defendant repeatedly sexually assaulted N from the
time she was seven or eight years old until she was
eleven years old. Most of the assaults during this period
took place when N and the defendant went fishing
together. The assaults recommenced when N was
approximately twelve or thirteen years old and contin-
ued until she was approximately seventeen years old.
Many of the assaults included threats of violence against
N, her mother, and her sister. On several occasions, the
defendant warned N that if she told anyone about the
assaults, he would kill her, her mother, and her sister.
On occasion, the defendant brandished a weapon,
including a double-barreled shotgun, while committing
an assault.
N did not report the defendant’s conduct until 2009.
At that time, the defendant and N’s mother had
divorced, and N was living with her mother and her
sister in Massachusetts. N kept a journal as part of a
course of psychiatric treatment that she received from
Stefanie Lindahl, a psychiatrist. N documented her
father’s conduct in the journal and shared it with Lin-
dahl. N reported the assaults to the police on July 31,
2009.
Detective William Flynn, a major crimes detective
with the Connecticut State Police and a member of the
child abuse investigative team, was assigned to investi-
gate N’s report. Throughout the investigation, Flynn
interviewed N and took written statements from her.
At the request of the state’s attorney, Flynn used his
police vehicle to drive N as she directed him to various
locations where the abuse had occurred. These trips
prompted N to remember additional incidents of sexual
assault perpetrated by the defendant.
The defendant was arrested on September 29, 2010.
The original information charged the defendant with
offenses that were alleged to have occurred between
March, 1997 and 2000. The state filed a substitute long
form information on March 5, 2015,1 charging the defen-
dant with three counts of sexual assault in the first
degree in violation of § 53a-70 (a) (1) for offenses
occurring in 2002, 2003, and 2004.
On March 31, 2015, the jury found the defendant guilty
of three counts of sexual assault in the first degree.
The court sentenced the defendant to a term of twelve
years of imprisonment and five years of special parole
on each count, to run consecutively, resulting in a total
effective sentence of thirty-six years of imprisonment
and fifteen years of special parole. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the trial court made
two erroneous evidentiary rulings in violation of his
right, under the sixth and fourteenth amendments to
the federal constitution, to present a defense. Specifi-
cally, the defendant asserts that the trial court improp-
erly prohibited him from cross-examining Flynn about
a statute of limitations issue that the state had discov-
ered on the eve of the original trial date. In addition,
the defendant argues that the trial court erroneously
barred testimony from Joseph C. Scirica, one of N’s
former treating physicians, regarding a notation in a
2006 letter in his file that N had a ‘‘remarkable history
of a molestation/sexual assault.’’ The state responds
that the trial court properly excluded both the evidence
relating to the statute of limitations and Scirica’s letter.
For the reasons that follow, we agree with the state.
The defendant’s claims implicate both his constitu-
tional right to present a complete defense, as well as
the proper constraints that the rules of evidence impose
on that right. Therefore, our analysis has two parts.
First, we must determine whether the trial court abused
its discretion in making certain evidentiary rulings
regarding the statute of limitations and Scirica’s letter.
Second, if we find that the trial court abused its discre-
tion, we must determine whether that caused a violation
of the defendant’s constitutional rights.
Because our analysis of each of the defendant’s
claims in this part of the opinion relies on the same
legal principals, we first set forth our standard of review
for each of those claims. ‘‘The sixth amendment to
the United States constitution require[s] that criminal
defendants be afforded a meaningful opportunity to
present a complete defense. . . . The defendant’s sixth
amendment right, however, does not require the trial
court to forgo completely restraints on the admissibility
of evidence. . . . Generally, [a defendant] must com-
ply with established rules of procedure and evidence
in exercising his right to present a defense. . . . A
defendant, therefore, may introduce only relevant evi-
dence, and, if the proffered evidence is not relevant,
its exclusion is proper and the defendant’s right is not
violated.’’ (Footnote omitted; internal quotation marks
omitted.) State v. Wright, 273 Conn. 418, 424, 870 A.2d
1039 (2005). ‘‘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.’’ (Internal quotation
marks omitted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d
76 (2010).
The defendant’s sixth amendment right to present a
defense is satisfied ‘‘when defense counsel is permitted
to expose to the jury the facts from which [the] jurors,
as the sole triers of fact and credibility, could appropri-
ately draw inferences relating to the reliability of the
witness.’’ (Internal quotation marks omitted.) State v.
Daniel B., 164 Conn. App. 318, 341, 137 A.3d 837, cert.
granted on other grounds, 323 Conn. 910, 149 A.3d 495
(2016). ‘‘[R]estrictions on the scope of cross-examina-
tion are within the sound discretion of the trial judge
. . . but this discretion comes into play only after the
defendant has been permitted cross-examination suffi-
cient to satisfy the sixth amendment. . . . To establish
an abuse of discretion, [the defendant] must show that
restrictions imposed [on the] cross-examination were
clearly prejudicial.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 341–42.
‘‘Upon review of a trial court’s decision, we will set
aside an evidentiary ruling only when there has been
a clear abuse of discretion. . . . The trial court has
wide discretion in determining the relevancy of evi-
dence and the scope of cross-examination and [e]very
reasonable presumption should be made in favor of the
correctness of the court’s ruling in determining whether
there has been an abuse of discretion.’’ (Internal quota-
tion marks omitted.) State v. Santos, 318 Conn. 412,
423, 121 A.3d 697 (2015).
A
The following additional facts and procedural history
are relevant to the defendant’s statute of limitations
claim. The defendant’s trial originally was scheduled to
begin on January 13, 2014. On the eve of trial, however,
the state discovered that the statute of limitations had
expired on the conduct supporting the original charges.
The state sought a continuance, which the trial court
granted. During the continuance, the state’s attorney
requested that Flynn conduct an additional interview
with N. In this interview, N made additional allegations
against the defendant pertaining to more recent sexual
assaults that fell within the statute of limitations. These
new allegations formed the basis for the substitute long
form information that the state filed on March 5, 2015,
and under which the defendant was tried and con-
victed.
At trial, the defendant attempted to establish, through
cross-examination of Flynn, that the state’s discovery
of the statute of limitations issue prompted N’s new
allegations. The state objected on relevance grounds.
In an offer of proof outside the presence of the jury,
Flynn testified: ‘‘I knew there was an issue with the
statute of limitations, I—that’s about all I knew, there
was a—we didn’t have a large discussion on that.’’ The
trial court declined to allow any questioning regarding
Flynn’s ‘‘awareness of the statute of limitation[s] issue
or that the—that issue demolished the [s]tate’s case
or anything of that nature.’’ The trial court, however,
allowed the defendant to inquire regarding Flynn’s
knowledge of the January, 2014 trial date and continu-
ance, his involvement in trial preparations, and his role
in the taking of an additional statement from N at the
request of the state’s attorney in January, 2014.
On appeal, the defendant argues that the trial court
abused its discretion in excluding testimony regarding
the statute of limitations issue during cross-examina-
tion of Flynn, thereby violating the defendant’s sixth
amendment right to present a defense. The defendant
asserts that until the state discovered the statute of
limitations issue, N was ‘‘remarkably consistent on the
ages of the alleged sexual abuse’’ as being between the
ages of eight and eleven. Because the trial court did
not allow Flynn to testify about the statute of limitations
issue, the defendant argues that he was left unable to
explain his defense that N fabricated the newer allega-
tions. As previously noted, to the extent that the defen-
dant challenges an evidentiary ruling of the trial court,
we review the claim for abuse of discretion. We con-
clude that the trial court did not abuse its discretion
in excluding this evidence and also did not violate the
defendant’s sixth amendment right.
Our resolution of this claim is guided by State v.
Andrews, 102 Conn. App. 819, 927 A.2d 358, cert. denied,
284 Conn. 911, 931 A.2d 932 (2007). In Andrews, the
defendant argued, inter alia, that the trial court violated
his sixth amendment right to present a defense by
improperly limiting his cross-examination of certain
witnesses. Id., 824–25. The defendant was charged with
sexual assault in the first degree, sexual assault in the
second degree and risk of injury to a child. Id., 821. At
trial, the defendant was precluded from introducing
certain evidence regarding details of the defendant’s
sexual relationships with other members of the victim’s
family. Id., 825.
The court in Andrews held that the defendant’s sixth
amendment right to present a defense was not violated.
Id., 827. The court explained that the evidence pre-
sented made the jury aware of the defendant’s compli-
cated relationship with the victim’s family and that
members of the victim’s family may have had various
motives for corroborating the victim’s testimony. Id.
The court concluded that the trial court did not abuse
its discretion in precluding additional details of the
defendant’s sexual relationships, as they were not rele-
vant to the issue of whether the defendant had sexually
assaulted the victim. Id.
Applying the analysis in Andrews to the present case,
we conclude that the trial court did not abuse its discre-
tion in excluding testimony of the statute of limitations
issue. The defendant argued that he attempted to pre-
sent evidence that N changed her story upon learning
that the statute of limitations for the original charges
had expired. Because N ‘‘was remarkably consistent on
the ages of the alleged sexual abuse,’’ the defendant
argued that evidence that the statute of limitations
barred the original charges was necessary to show that
the only reason for the new allegations was to save the
state’s case.
Similar to Andrews, the defendant in this case was
able to conduct sufficient inquiry into his defense the-
ory. Specifically, the defendant elicited testimony from
Flynn about the continuance of the originally scheduled
trial and Flynn’s involvement in the case. In addition,
the defendant presented evidence that the state had
asked Flynn to obtain another statement from N after
the continuance of the original trial.
The defendant attempted to introduce evidence of
the statute of limitations issue through Flynn, not N.
The defendant never cross-examined N regarding her
motivations for detailing the abuse that occurred in
2002, 2003, and 2004, only after she learned that the
statute of limitations issue barred the original charges.
The defendant could have asked N if she was changing
her story due to pressure from authority figures such
as her mother or the state’s attorney, but did not do
so. Instead, the defendant attempted to address this
topic in his cross-examination of Flynn; however, Flynn
could not have testified about N’s motives and the
defendant failed to ask Flynn whether he pressured N
to make new allegations because of the problem with
the statute of limitations. He could not testify, without
speculating, about why N was detailing the later abuse
at that particular time. Therefore, we conclude that the
trial court did not abuse its discretion in refusing to
allow the defendant to cross-examine Flynn on the stat-
ute of limitations issue and that this was a reasonable
constraint on the defendant’s sixth amendment right to
present a defense. See State v. Andrews, supra, 102
Conn. App. 826–27.
B
The defendant next claims that the trial court abused
its discretion by excluding Scirica’s letter and testi-
mony. He argues that exclusion of this evidence pre-
vented him from rebutting the state’s consciousness of
guilt argument. The state argues that the trial court did
not abuse its discretion in excluding this evidence. We
agree with the state.
The following facts are relevant to the defendant’s
claim regarding the exclusion of Scirica’s letter. On
April 1, 2007, Lindahl received a letter from the defen-
dant stating, ‘‘I am not a sexual predator, nor am I an
abusive father.’’ The defendant sent this letter two years
prior to N’s initial allegations of sexual assault against
him. Prior to the time the defendant sent this letter, N’s
primary care physician had referred N to Scirica for
treatment in 2006. Following that referral, Scirica sent
a letter to N’s primary care physician with a notation
that N had a ‘‘remarkable history of a molestation/sex-
ual assault.’’
At trial, the defendant attempted to introduce Sciri-
ca’s letter into evidence and to have Scirica testify about
his recollection of this history of molestation or sexual
assault. The state objected, arguing that the letter con-
stituted inadmissible hearsay within hearsay. Scirica
testified in an offer of proof regarding the 2006 letter.
Scirica did not have any independent recollection of
the letter, nor could he say whether it was N, her mother,
or someone else who had provided him with N’s medical
history. Scirica noted that, as a mandated reporter, he
would have to report any fresh complaints of sexual
assault, but did not do so in this case. Scirica could not
state with any certainty the origin of the information
about N’s history of sexual assault.
Thereafter, the trial court excluded Scirica’s testi-
mony and letter because the hearsay quality and uncer-
tain source of the information rendered it unreliable
and irrelevant. In its ruling, the trial court noted that
‘‘[t]here is no way to tell through the letter or [Scirica’s]
testimony whether the phrase ‘[a] remarkable history
of a molestation/sexual assault’ refers to the alleged
conduct of the defendant or other allegations of sexual
misconduct that have been presented to the jury,
namely the alleged incidents in school and at Silver
Hill [Hospital].’’2
The defendant argues that the trial court’s refusal to
allow Scirica to testify about the notation in his letter
that N had a ‘‘remarkable history of a molestation/sex-
ual assault’’ prevented him from presenting his defense.
The defendant asserts that this evidence would have
given context to the defendant’s April 1, 2007 letter to
Lindahl, which stated: ‘‘I am not a sexual predator, nor
am I an abusive father.’’ The state used the defendant’s
letter as evidence of his consciousness of guilt, and the
defendant sought to introduce Scirica’s letter as a way
to rebut the state’s argument. The state argues that the
trial court properly excluded the evidence. The state
asserts that the admission of Scirica’s testimony and
letter would have forced the jury to speculate as to
which instance of abuse the notation specifically
referred.
The defendant challenges the trial court’s evidentiary
ruling regarding Scirica’s testimony and letter. As pre-
viously discussed, ‘‘we will set aside an evidentiary rul-
ing only when there has been a clear abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Santos, supra, 318 Conn. 423.
The court’s analysis in State v. Davis, supra, 298
Conn. 1, informs our resolution of this claim. In Davis,
the victim of a shooting testified that he hesitated to
cooperate with the police because he did not want
to jeopardize the close relationship he had with his
girlfriend. Id., 20. During his cross-examination of the
victim, the defendant sought to undermine the victim’s
credibility with evidence that the victim had assaulted
his girlfriend. Id., 20–21. The defendant intended to use
this evidence to show that the victim did not have a
close relationship with his girlfriend, and therefore lied
about why he hesitated to cooperate with the police. Id.,
21. The trial court precluded evidence that the victim
assaulted his girlfriend, finding that it was irrelevant.
Id., 21.
In Davis, our Supreme Court held that it was not
an abuse of the trial court’s discretion to exclude the
evidence because the foundation for the evidence was
‘‘wholly speculative.’’ Id., 24. The defendant in Davis
provided no other evidence that the victim lied about
his reason for not cooperating with the police. See id.
Additionally, the defendant presented no evidence
about when the victim assaulted his girlfriend. Id., 24.
Our Supreme Court reasoned that, if the assault
occurred after the shooting, it would not have had any
bearing on the victim’s decision not to cooperate with
the police on the day of the shooting. Id. The Supreme
Court determined that ‘‘defense counsel failed to dem-
onstrate any open and visible connection between the
alleged fight with [the victim’s girlfriend] and the vic-
tim’s decision not to tell [the] police the identities of
his assailants on [the day of the shooting].’’ Id.
In the present case, the defendant attempted to intro-
duce Scirica’s testimony and letter to explain the timing
of the defendant’s April 1, 2007 letter to Lindahl. The
defendant sought to use this evidence from Scirica to
counteract the state’s use of his letter to Lindahl to
prove consciousness of guilt on the assumption that
the defendant’s April 1, 2007 letter to Lindahl appeared
to be spontaneous and not in response to some allega-
tion against him. The defendant argued that the admis-
sion of Scirica’s letter would show that, contrary to
the state’s assertions, allegations of sexual assault had
occurred prior to the defendant’s April 1, 2007 letter,
and that the defendant’s letter was a reaction to the
allegations contained in Scirica’s letter.
As we have already discussed, there was no evidence
in the record as to where or from whom Scirica had
obtained the information of N’s ‘‘remarkable history of
a molestation/sexual assault.’’ Furthermore, there is no
evidence in the record indicating which instances of
sexual assault the notation refers to—the incident at
school, the incident at Silver Hill Hospital, or the con-
duct alleged against the defendant. Because Scirica
could not testify as to the origin of the information or
to which allegations of abuse the notation referred, this
testimony would have caused the jury to stray too far
into the realm of speculation.
Similar to Davis, the foundation for this evidence is
‘‘wholly speculative,’’ as Scirica could not provide any
insight about the source of the notation in his letter or
to what the notation was referring. See State v. Davis,
supra, 298 Conn. 24. If the notation in Scirica’s letter
was not in reference to conduct N alleged against the
defendant, it would have no impact on the defendant’s
decision to write the April 1, 2007 letter to Lindahl. See
id. We agree with the trial court that Scirica’s letter
also could have been referring to the instances of abuse
that N suffered at school or as a patient at Silver Hill
Hospital. Therefore, the defendant ‘‘failed to demon-
strate any open and visible connection between’’ Sciri-
ca’s notation about N’s ‘‘history of a molestation/sexual
assault’’ and the defendant’s April 1, 2007 letter to Lin-
dahl. See id. Accordingly, the trial court did not abuse
its discretion in excluding Scirica’s testimony or letter
as irrelevant, and the proper application of this eviden-
tiary rule to the defendant’s case was a permissible
restraint on his right to present a defense.
II
The defendant’s second claim on appeal is that the
trial court’s admission of portions of an interview con-
ducted with the defendant following a polygraph exami-
nation was an abuse of discretion and violated his right
to due process. Specifically, the defendant argues that
the admitted portions of his interview do not constitute
positive assertions of fact and, therefore, are not admis-
sible under the statement by a party opponent exception
to the hearsay rule. The defendant also argues that the
only way for the jury to have received the proper con-
text of the admitted statements would have been to
admit information regarding the polygraph examination
itself, which is not admissible in Connecticut trial
courts. See State v. Porter, 241 Conn. 57, 94, 698 A.2d 739
(1997). The defendant asserts that without the ability
to present this necessary evidence, the trial court’s
admission of the interview statements deprived him of
his right to due process. We disagree.
The following additional facts are relevant to this
claim. The defendant agreed to submit to a polygraph
examination on September 20, 2010. A three and one-
half hour interview of the defendant followed the exam.
The state’s attorney’s office prepared a transcript of
the interview. The state, through a motion in limine,
sought to admit portions of the interview at trial through
the testimony of Flynn. Specifically, the state sought
to introduce statements related to the following three
areas: (1) that the defendant felt sexually aroused by
N as she was developing; (2) that the defendant locked
his bedroom door at night because he was worried that
N was going to kill him; and (3) that the defendant
changed his response ‘‘from his earlier full denial of
any inappropriate behavior.’’
The trial court ruled that no statements would be
admitted that were made in response to the fact that
the defendant had failed the polygraph. Accordingly,
the trial court excluded the state’s third area of inquiry
regarding the defendant’s change in response to the
allegations. The trial court reasoned that the third area
of inquiry was inadmissible because the likely ‘‘defense
argument is that his response changed because there
was an intervening polygraph . . . .’’
The court allowed Flynn to testify regarding the other
two areas of inquiry. In regard to the defendant feeling
aroused by N, Flynn testified that ‘‘[the defendant] had
stated words to the effect that while she was developing,
uh, he began to feel things of—of becoming aroused
looking at [N], but said ‘that’s my daughter, uh, it’s got
to stop there, it’s my daughter’ or words to that effect.’’
Flynn further testified concerning the defendant’s state-
ments that he feared for his safety: ‘‘He had said words
to the effect that he was locking his bedroom door at
night, because he was afraid [N] was [going to] kill
him.’’ The trial court allowed these statements into evi-
dence as admissions by a party opponent.
In his brief, the defendant argues that even though
the trial court would not admit any statement that was
in response to the failed polygraph examination, ‘‘all
of the defendant’s statements were intertwined with the
failed polygraph results; therefore, all of his statements
would have been in response to the failed polygraph
examination.’’ The state responds that the admitted
statements were material and relevant to show the
defendant’s consciousness of guilt. The defendant
claims that the trial court improperly admitted the inter-
view statements because (1) the statements were not
positive assertions of fact and, therefore, did not fall
under a hearsay exception, and (2) admission of the
out-of-context statements violated the defendant’s right
to due process. We disagree.
We begin by setting forth the standard of review for
determining whether the trial court properly interpreted
§ 8-3 of the Connecticut Code of Evidence, which sets
forth certain hearsay exceptions. ‘‘To the extent a trial
court’s [ruling regarding] admission of evidence is
based on an interpretation of the [Connecticut] Code of
Evidence, our standard of review is plenary.’’ (Internal
quotation marks omitted.) State v. Miller, 121 Conn.
App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902,
3 A.3d 72 (2010). A trial court’s ruling on the applicabil-
ity of the hearsay rule or its exceptions is a legal deter-
mination requiring plenary review. Id. ‘‘We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Internal quotation marks omitted.) Id. ‘‘To
establish an abuse of discretion, [the defendant] must
show that the restrictions imposed . . . were clearly
prejudicial. . . . If, after reviewing the trial court’s evi-
dentiary rulings, we conclude that the trial court prop-
erly excluded the proffered evidence, then the
defendant’s constitutional claims necessarily fail. . . .
If, however, we conclude that the trial court improperly
[admitted] certain evidence, we will proceed to analyze
[w]hether [the limitations the court imposed] . . .
[were] so severe as to violate [the defendant’s rights]
. . . . Our standard of review for this constitutional
inquiry is de novo.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Santos, supra, 318
Conn. 423.
A
We first address the defendant’s hearsay argument.
Because the defendant challenges the trial court’s inter-
pretation of § 8-3 of the Connecticut Code of Evidence,
our review is plenary. Under § 8-3 (1) of the Connecticut
Code of Evidence, the hearsay rule does not exclude
‘‘[a] statement [that is] being offered against a party
and is (A) the party’s own statement . . . .’’ ‘‘It is an
elementary rule of evidence that an admission of a party
may be entered into evidence as an exception to the
hearsay rule. . . . In the criminal context, an admis-
sion is the avowal or acknowledgment of a fact or of
circumstances from which guilt may be inferred, and
only tending to prove the offenses charged, but not
amounting to a confession of guilt . . . .’’ (Internal quo-
tation marks omitted.) State v. Paul B., 143 Conn. App.
691, 711–12, 70 A.3d 1123 (2013), aff’d, 315 Conn. 19,
105 A.3d 130 (2014). ‘‘An admission of a party opponent
need only traverse the low hurdles of relevancy and
materiality to survive an objection to its admission into
evidence. . . . Such an admission is admissible even
if it is conclusory or not based on personal knowledge.
. . . The admission need not even be wholly reliable
or trustworthy.’’ (Citations omitted.) State v. Markev-
eys, 56 Conn. App. 716, 720, 745 A.2d 212, cert. denied,
252 Conn. 952, 749 A.2d 1203 (2000).
We conclude that the trial court correctly interpreted
§ 8-3 (1) of the Connecticut Code of Evidence in
determining that the interview statements qualify as
admissions by a party opponent. During the interview,
the defendant stated that ‘‘the only thing is . . . when
[N] was developing . . . you feel like something like
she’s sexually aroused me at one point . . . .’’ The
defendant also stated: ‘‘I was locking myself in the bed-
room because I thought she was going to kill me.’’
Those were oral assertions that were relevant and
material to the case. See State v. Paul B., supra, 143
Conn. App. 712 (court held that defendant’s statement,
‘‘well if the boys said I did that, then maybe I did . . .
I just don’t remember,’’ was admissible admission by
party opponent in response to sexual assault allega-
tions). Additionally, the defendant’s statements had a
‘‘tendency to make the existence of the fact that the
defendant engaged in the alleged conduct more proba-
ble than it would be without [their] admission.’’ Id. It
is true that these statements do not amount to a direct
confession of guilt; however, guilt can be inferred from
the statements. Accordingly, the trial court properly
interpreted § 8-3 (1) of the Connecticut Code of Evi-
dence in finding that the statements fall under the state-
ment by a party opponent exception to the hearsay rule.
B
We now turn to the defendant’s claim that admitting
the interview statements made subsequent to the poly-
graph examination out of context violated the defen-
dant’s right to due process. We review this claim for
an abuse of discretion.
‘‘Due process is not to be regarded as a giant constitu-
tional vacuum cleaner which sucks up any claims of
error which may occur to a party upon microscopic
examination of the trial record. . . . Indeed, it would
trivialize the constitution to transmute a nonconstitu-
tional claim into a constitutional claim simply because
the label placed on it by a party . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Kelly,
256 Conn. 23, 49, 770 A.2d 908 (2001). ‘‘Rules for the
admission and exclusion of evidence should be found
offensive to notions of fundamental fairness embodied
in the United States Constitution only when, (1) without
a rational basis they disadvantage the defendant more
severely than they do the [s]tate, or (2) [they] arbitrarily
exclude reliable defensive evidence without achieving
a superior social benefit.’’ (Internal quotation marks
omitted.) State v. Porter, supra, 241 Conn. 134.
‘‘Relevant evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice
or surprise . . . .’’ Conn. Code Evid. § 4-3. Although all
adverse evidence is damaging to a defendant’s case, ‘‘it
is inadmissible only if it creates undue prejudice so that
it threatens injustice were it to be admitted.’’ (Internal
quotation marks omitted.) State v. Warren, 100 Conn.
App. 407, 419, 919 A.2d 465 (2007). ‘‘Unfair prejudice
occurs where the facts offered may unduly arouse the
[jurors’] emotions, hostility, or sympathy . . . .’’ (Inter-
nal quotation marks omitted.) State v. Bellamy, 149
Conn. App. 665, 677, 89 A.3d 927 (2014), aff’d, 323 Conn.
400, 143 A.3d 655 (2016). The prejudicial effect of poly-
graph evidence greatly exceeds its probative value. See
State v. Porter, supra, 241 Conn. 93. Therefore, poly-
graph evidence is ‘‘per se inadmissible in all trial court
proceedings in which the rules of evidence apply, and
for all trial purposes, in Connecticut courts.’’ (Footnotes
omitted.) Id., 94.
Generally, evidence of consciousness of guilt must
‘‘have relevance, and the fact that ambiguities or expla-
nations may exist which tend to rebut an inference of
guilt does not render [such] evidence . . . inadmissi-
ble but simply constitutes a factor for the jury’s consid-
eration.’’ (Internal quotation marks omitted.) State v.
Coccomo, 302 Conn. 664, 670, 31 A.3d 1012 (2011). In
other words, evidence of consciousness of guilt must
‘‘tend to support a relevant fact even to a slight degree,
so long as not prejudicial or merely cumulative.’’ Id.,
669. ‘‘[I]t is the province of the jury to sort through any
ambiguity in the evidence in order to determine whether
[such evidence] warrants the inference that [the defen-
dant] possessed a guilty conscience.’’ (Internal quota-
tion marks omitted.) Id., 672.
After reviewing the record, we conclude that the trial
court did not abuse its discretion in admitting the inter-
view statements. The statements admitted were cer-
tainly relevant, as they had ‘‘a logical tendency to aid
the trier in the determination of an issue.’’ (Internal
quotation marks omitted.) State v. Cerreta, 260 Conn.
251, 261, 796 A.2d 1196 (2002). Although the statements
were adverse to the defendant, they were not so prejudi-
cial as to risk injustice as a result of their admission
into evidence.
Moreover, the trial court took care not to admit any
statement by the defendant that could be explained by
reference to the failed polygraph. For example, the trial
court excluded any statements relating to the defen-
dant’s change of response. Specifically, the trial court
excluded any statements showing that the defendant
did not completely deny the allegations after failing
the polygraph, as the fact that the defendant failed the
polygraph examination could be used to explain such
statements.
Rather the trial court admitted only the statements
that the defendant felt aroused by N and that the defen-
dant feared N was going to kill him as evidence of his
consciousness of guilt. The statements admitted were
relevant to show the defendant’s consciousness of guilt,
and supported that inference at least to ‘‘ ‘a slight
degree.’ ’’ See State v. Coccomo, supra, 302 Conn. 669.
Therefore, the trial court did not abuse its discretion
in admitting the interview statements for the purpose
of showing the defendant’s consciousness of guilt.
Because we conclude that the trial court did not abuse
its discretion in admitting the interview statements, we
conclude that the defendant was not deprived of his
right to due process.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
In the original information, filed on September 29, 2010, the state charged
the defendant with offenses alleged to have occurred between March, 1997
and 2000. At the time trial was scheduled in January, 2014, the state discov-
ered that the statute of limitations period for those offenses had expired,
notwithstanding an amendment to the statute extending the limitations
period for sexual assault. See General Statutes § 54-193a; see also State v.
Brundage, 138 Conn. App. 22, 29, 50 A.3d 396 (2012) (holding that amend-
ment to statute extending limitations period for sexual assault did not apply
retroactively and only applied to offenses occurring after May 22, 2002).
2
N testified at trial that, in addition to the sexual assaults perpetrated by
the defendant, she suffered sexual assaults committed by others at a school
in Sharon and while receiving treatment as a patient at Silver Hill Hospital
in New Canaan.