State v. Erick L. , 168 Conn. App. 386 ( 2016 )

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STATE OF CONNECTICUT v. ERICK L.*
(AC 36948)
Gruendel, Alvord and Prescott, Js.**
Argued February 3—officially released September 20, 2016
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J. [motions to admit evidence];
Agati, J. [judgment].)
Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Elena Palermo, assistant state’s attorney,
for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Erick L., appeals from
the judgment of conviction, rendered after a jury trial,
of two counts of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (A), and
two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2).1 On appeal, the defen-
dant raises two claims: (1) the trial court violated his
rights under the sixth amendment to confront the wit-
nesses against him and to present a defense by holding
that the rape shield statute, General Statutes § 54-86f,
prohibited him from introducing evidence of the sexual
nature of the victim’s prior relationship with her boy-
friend; and (2) the court violated the defendant’s right
to trial by an impartial jury under the sixth amendment
when it seated a juror who believed that children were
less likely to lie than adults. We affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts after the conclusion of the evidence. The victim
was born in 1997; the defendant was born in 1984. In
2004, the victim’s mother met and began dating the
defendant. He eventually moved in with the victim’s
mother, and they lived together at various addresses
between then and 2010. Initially, the victim got along
well with the defendant, but, beginning in 2007, he
began touching the victim inappropriately. One day, in
the kitchen of the apartment where they were then
living, he grabbed the victim’s buttocks. The victim told
her mother about the incident, and her mother asked
the defendant if this was true. The defendant denied it,
and the victim’s mother did not pursue the matter fur-
ther. The defendant confronted the victim once she was
alone in her room and angrily demanded to know why
she was lying to her mother. Although the victim knew
that what the defendant had done was wrong, she felt
as if her mother did not believe her, and so she later
told her mother that maybe she had ‘‘take[n] it the
wrong way.’’
The family moved to a new apartment at the end
of 2008. A few months after the move, the defendant
resumed touching the victim inappropriately. The abuse
escalated, with the defendant touching the victim’s but-
tocks, breasts, and vagina. He forced the victim to touch
his penis, on one occasion ejaculating on her hand. He
told the victim that one day he was going to rape her.
At the time, the victim was eleven years old.
The victim began cutting her legs with her fingernails
and taking pills to cope with the abuse. She grew sullen
and would lash out at people. Although the victim had
a good relationship with her mother, she did not discuss
the abuse with her mother because her mother had not
believed her the first time, and she did not think her
mother would believe her the second time. Eventually,
in November, 2009, the victim—then twelve years old—
told her boyfriend that the defendant was touching her.
Her boyfriend told his mother, who did not do anything.
Her boyfriend also stopped asking the defendant for
rides home when he visited the victim, so that the victim
would not have to be alone with the defendant on the
ride back.
Finally, in January, 2010, the victim told her grand-
mother about the defendant touching her. She had
called her grandmother because she was angry at the
defendant for taking a space heater out of her room
during the winter while the apartment’s heating system
was broken. She testified that at the time she was frus-
trated and angry, and had been holding those emotions
inside for almost one year. During the phone call to her
grandmother, ‘‘[i]t just all came out,’’ and she told her
grandmother about how the defendant had been touch-
ing her. The grandmother drove over and picked the
victim up the next day, and the victim’s cousin had her
write down in a notebook what the defendant had done
to her. The grandmother then called the victim’s mother
over to talk about it with several other family members
and friends there for support. They called the police.
The defendant moved out that day. He was later
arrested and charged with one count of attempt to com-
mit sexual assault in the first degree, as well as multiple
counts of sexual assault in the fourth degree and risk
of injury to a child.
A jury found the defendant guilty of two counts of
sexual assault in the fourth degree and two counts of
risk of injury to a child. The jury found him not guilty
of one count of attempted sexual assault in the first
degree, one count of sexual assault in the fourth degree,
and one count of risk of injury to a child. The court
imposed a sentence of fifteen years incarceration, sus-
pended after ten years of mandatory minimum time,2
with ten years of probation. This appeal followed.
I
The defendant’s first claim is that the court violated
his rights under the sixth amendment to confront the
witnesses against him and to present a defense when,
pursuant to the rape shield statute, § 54-86f, it excluded
evidence of the sexual nature of the victim’s prior rela-
tionship with her boyfriend. We disagree.
A
Before trial, the state moved to exclude any evidence
of the victim’s prior sexual conduct, pursuant to § 54-
86f.3 The defendant, however, moved to admit evidence
that the victim was having sex with her boyfriend before
she brought sexual abuse allegations against the defen-
dant, on the ground that such evidence was admissible
under the fourth exception to § 54-86f because it was
‘‘otherwise so relevant and material to a critical issue in
the case that excluding it would violate the defendant’s
constitutional rights. . . .’’ General Statutes § 54-86f
(4).
When the court decided these two motions in limine
at a pretrial hearing, the court had before it only the
factual representations and arguments made by the par-
ties at that hearing. As for the defendant, defense coun-
sel represented the following to the court at that
hearing. Shortly before the victim’s sexual abuse allega-
tions, the defendant had found a series of letters that
the victim’s boyfriend had written to her. In the letters,
the victim’s boyfriend talked about losing his virginity
with the victim, her concern that she might be pregnant,
and their desire to be together forever. When the defen-
dant found the letters, he confronted the victim and
spoke with her mother. As a result, the victim was
grounded and forbidden from seeing her boyfriend
again, which ultimately led to their separation. Defense
counsel further represented that the victim’s relation-
ship with the defendant deteriorated after her ground-
ing, with the two arguing often, until one month later
when she called her grandmother and falsely accused
the defendant of sexual abuse so that the Department
of Children and Families would remove him from the
home. Defense counsel submitted the letters at issue
to the court after the hearing.
The defense argued that evidence of the sexual nature
of the victim’s relationship with her boyfriend was mate-
rial on two distinct grounds: (1) to rebut an inference
that the victim’s allegations must be true because a child
her age otherwise would lack the sexual knowledge
necessary to make up the allegations; and (2) to show
that the victim had a strong motive to falsely accuse
the defendant as retaliation against him for ending her
sexual relationship with her boyfriend.
As to the sexual knowledge ground, the defense
argued that, if the state submitted evidence conforming
to its allegations that the victim accused the defendant
of making her ‘‘hold his penis and go up and down on
his penis,’’ until the point of ‘‘ejaculation,’’ and of asking
her, ‘‘are you going to suck my penis,’’ then the jury
would naturally question where the victim learned how
sex works such that she would be able to make allega-
tions accurately describing sexual mechanics. The
defense argued that, because the victim was only twelve
years old when she first reported the defendant’s sexual
abuse, a jury would naturally presume that she had no
ordinary sources of sexual knowledge, and so the only
way she would know enough to describe sex was if she
had learned about it from the defendant’s sexual abuse.
The defense argued that evidence of an alternative
source of sexual knowledge—i.e., the victim’s sexual
relationship with her boyfriend—was necessary to
rebut that presumption.
As to the motive ground, the defense argued that, in
presenting the jury with the defense theory that the
victim accused the defendant of sexually abusing her
in retaliation for his grounding her and ending her rela-
tionship with her boyfriend, the sexual nature of that
relationship was relevant to the ‘‘emotional state of the
parties’’ and explained why the victim became ‘‘so angry
her emotions rose to the point’’ of falsely accusing the
defendant of sexual abuse.
The state opposed the defendant’s motion, arguing
that (1) a jury would not presume that someone the
victim’s age was sexually nave, especially given that
‘‘[c]hildren at an early age are taught . . . what’s a
good touch and what’s a bad touch,’’ so there was no
need to rebut such a presumption with evidence of an
alternative source of sexual knowledge, and (2) the
defendant could submit evidence that he punished the
victim and ended her relationship with her boyfriend
shortly before she made the allegations against him,
suggesting a possible motive, but whether the victim
was having sex with her boyfriend was immaterial. The
state did not dispute that the letters showed that the
victim and her boyfriend were sexually active.
The court granted the state’s motion to exclude the
evidence and denied the defendant’s motions to admit
it. The court ruled that the defendant could ‘‘say there
was an issue, it was a very substantial issue, you know,
that I’m going to allow, but not the specifics of what
it was. You can’t go there.’’ When the defendant asked
for further clarity the next day, the court replied: ‘‘Let
me see if I can make this absolutely clear. There is
to be no questioning, no inquiry based on my ruling
yesterday with respect to any relationship—specific
relationship between [the boyfriend] and the [victim].
I want that to be absolutely clearly understood, and—
is that clear?. Is there any—any question about that
area? Because if there is, I’d like to hear it now. . . .
‘‘You can’t go into any area where an inference of a
sexual relationship between [the boyfriend] and the
[victim] could be inferred by the jury. I’m cautioning
you, don’t go there. . . . If you want to say there were
letters . . . and the content of those letters caused an
argument, that’s fine, but nothing about what the con-
tent is. . . . I don’t know how much clearer I can
make this.’’
B
We begin with the standard of review. ‘‘This court
has consistently recognized that it will set aside an
evidentiary ruling only when there has been a clear
abuse of discretion. . . . The trial court has wide dis-
cretion in determining the relevancy of evidence 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. . . . State v. Santos, 318
Conn. 412, 423, 121 A.3d 697 (2015). Generally, a trial
court abuses its discretion when the court could have
chosen different alternatives but has decided the matter
so arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . State v.
O’Brien-Veader, 318 Conn. 514, 555, 122 A.3d 555
(2015). When this court reviews a decision of the trial
court for abuse of discretion, 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. . . . State
v. Cancel, 275 Conn. 1, 18, 878 A.2d 1103 (2005). Accord-
ingly, the abuse of discretion standard reflects the con-
text specific nature of evidentiary rulings, which are
made in the heat of battle by the trial judge, who is in
a unique position to [observe] the context in which
particular evidentiary issues arise and who is therefore
in the best position to weigh the potential benefits and
harms accompanying the admission of particular evi-
dence. . . . State v. Collins, 299 Conn. 567, 593 n.24,
10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,
181 L. Ed. 2d 193 (2011).’’ (Citations omitted; internal
quotation marks omitted.) State v. Wright, 320 Conn.
781, 831–32, 135 A.3d 1 (2016) (Espinosa, J., concur-
ring); see also id., 823 (reviewing for abuse of discretion
defendant’s sixth amendment claims that he was denied
right to confrontation and right to present defense);
State v. Cecil J., 291 Conn. 813, 819 n.7, 970 A.2d 710
(2009) (‘‘[w]e review the trial court’s decision to
[exclude] evidence, if premised on a correct view of
the law . . . for an abuse of discretion’’ [internal quota-
tion marks omitted]).
‘‘Prosecutions for sexual assault are governed by spe-
cial rules of evidence, including § 54-86f. That statute
was enacted specifically to bar or limit the use of prior
sexual conduct of an alleged victim of a sexual assault
because it is such highly prejudicial material. . . . In
enacting § 54-86f, the legislature intended to [protect]
the victim’s sexual privacy and [shield the victim] from
undue harassment, [encourage] reports of sexual
assault, and [enable] the victim to testify in court with
less fear of embarrassment. . . . Other policies pro-
moted by the law include avoiding prejudice to the
victim, jury confusion and waste of time on collateral
matters. . . .
‘‘Thus, to determine whether the [sexual conduct]
evidence [at issue] was properly excluded, we must
begin our analysis with the relevant language of the rape
shield statute.’’ (Citations omitted; internal quotation
marks omitted.) State v. Wright, supra, 320 Conn. 798.
The rape shield statute generally bars evidence of a
victim’s prior sexual conduct, subject to four excep-
tions, only the fourth of which is at issue here. Section
54-86f provides in relevant part: ‘‘In any prosecution
for sexual assault . . . no evidence of the sexual con-
duct of the victim may be admissible unless such evi-
dence is . . . (4) otherwise so relevant and material
to a critical issue in the case that excluding it would
violate the defendant’s constitutional rights . . . [and]
the probative value of the evidence outweighs its preju-
dicial effect on the victim . . . .’’
Our Supreme Court has interpreted this language to
require that a defendant show that the proffered evi-
dence is (1) material, (2) relevant, and (3) so relevant
and so material to a critical issue in the case that exclud-
ing it would violate the defendant’s constitutional
rights. See State v. Wright, supra, 320 Conn. 812–23.4
Here, the proffered evidence was a series of letters,
and presumably related cross-examination, that would
have revealed the sexual nature of the victim’s relation-
ship with her boyfriend. We address each of the three
requirements in turn.
1
First, we conclude that the proffered evidence was
material, but only on the theory that it spoke to the
victim’s motive, not on the theory that it rebutted a
presumption of sexual naivete. ‘‘[E]vidence is material
when it has an influence, effect, or bearing on a fact in
dispute at trial.’’ Id., 810. Materiality is often contrasted
with relevance. The classic distinction between materi-
ality and relevance is that (1) materiality pertains to
whether the evidence tends to prove a fact that bears on
an element of or defense to the action, and (2) relevance
pertains to whether the evidence actually tends to prove
that fact. See Conn. Code Evid. § 4-1, commentary; C.
Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014)
§§ 4.1 through 4.1.4, pp. 153–55. In a strict sense, then,
evidence is relevant to facts, and facts are material to
legal elements. See Conn. Code Evid. § 4-1, commen-
tary. In a more general sense, evidence is ‘‘material’’ if
it is offered to prove facts that are themselves material,
either directly or indirectly, to a legal element. See State
v. Wright, supra, 320 Conn. 810; C. Tait & E. Prescott,
supra, § 4.1.3, p. 154.
Here, the defendant offered two theories as to why
the evidence was material. First, he argued that the
sexual nature of the victim’s relationship with her boy-
friend would rebut an inference that the defendant must
have sexually abused the victim because a child her
age otherwise would lack the sexual knowledge neces-
sary to make such allegations, and, thus, was material
to whether the defendant sexually abused the victim.
Second, he argued that the sexual nature of the victim’s
relationship with her boyfriend gave her a stronger
motive to falsely accuse the defendant as payback for
his role in ending it, which was material to whether her
allegations of sexual abuse were true. We address each
theory in turn.
As to the sexual knowledge theory of materiality, the
defendant argues that the sexual nature of the victim’s
relationship with her boyfriend was material to whether
the defendant sexually abused the victim, insofar as it
rebutted an inference that he must have sexually abused
her because otherwise a child of the victim’s age pre-
sumably would lack the sexual knowledge necessary
to fabricate such allegations. This theory of materiality
is essentially defensive and responds to the presump-
tion that a child of the victim’s age would have no source
of sexual knowledge other than the abuse alleged. The
seminal case on this issue is State v. Rolon, 257 Conn.
156, 158–59, 167 n.19, 777 A.2d 604 (2001), in which a
trial court excluded evidence that a different relative
had sexually abused a six year old victim before the
victim disclosed that the defendant abused her, and our
Supreme Court held that this violated the defendant’s
constitutional rights. According to the court, the six
year old victim in Rolon exhibited sexualized ‘‘behavior
indicative of sexual abuse’’ and ‘‘highly age-inappropri-
ate sexual knowledge,’’ which a jury would ‘‘inevitably
conclude . . . [came] from [the] defendant having
committed such acts,’’ if the defendant were not given
the chance to rebut that presumption with evidence of
an alternative source of the victim’s sexual knowledge.
(Emphasis in original; internal quotation marks omit-
ted.) Id., 185.
Although, in Rolon, evidence of the six year old vic-
tim’s prior sexual abuse may have been necessary to
rebut the ‘‘jury’s natural presumption of [the] child vic-
tim’s sexual naivete’’; id., 184 n.29; we cannot conclude
that a similar rebuttal was required here. In the present
case, the victim was twelve years old when she first
came forward, and she was sixteen years old when she
testified before the jury at trial.5 The sexual knowledge
displayed in her allegations against the defendant was
not unusual and was consistent with what middle
schoolers and high schoolers are commonly taught
about sex.6 We, thus, cannot conclude that the jury
naturally would have presumed that the victim had no
source of sexual knowledge other than the defendant’s
abuse, such that evidence rebutting that presumption
with an alternative source of sexual knowledge was
material. Cf. State v. Talton, 197 Conn. 280, 285–86, 497
A.2d 35 (1985) (where state never contended that baby
born roughly nine months after sexual assault was
defendant’s child, evidence rebutting defendant’s pater-
nity was irrelevant). The court properly rejected the
defendant’s sexual knowledge theory of admissibility.7
As to the motive theory of materiality, the defendant
argues that the sexual nature of the victim’s relationship
with her boyfriend was material to the issue of whether
the defendant sexually abused the victim because it
established a stronger motive for the victim to falsely
accuse the defendant. According to the defendant, the
victim’s motive was her desire to get back at him for
ending her relationship with her boyfriend, so the close-
ness of that relationship would affect the strength of
her motive, and the strength of her motive would affect
the credibility of her allegations.
Because the victim was a fact witness to the acts of
sexual abuse alleged, her credibility was material to
whether the defendant in fact ‘‘subject[ed] [the victim]
to sexual contact’’ or ‘‘ha[d] contact with the intimate
parts [of the victim] . . . in a sexual and indecent man-
ner likely to impair the health or morals of such child,’’
which were required elements of the crimes charged.
See General Statutes §§ 53a-73a (a) (1) (A) and 53-21
(a) (2). Thus, to the extent that the defendant offered
evidence of the sexual nature of the victim’s relation-
ship with her boyfriend to prove that she had a strong
motive to falsely accuse the defendant as retaliation
for ending that relationship, the evidence was material
for purposes of the rape shield statute.8
2
We next conclude that the proffered evidence was
relevant. ‘‘Relevant evidence is evidence that has a logi-
cal tendency to aid the trier in the determination of an
issue. . . . One fact is relevant to another if in the
common course of events the existence of one, alone
or with other facts, renders the existence of the other
either more certain or more probable. . . . Evidence
is irrelevant or too remote if there is such a want of
open and visible connection between the evidentiary
and principal facts that, all things considered, the for-
mer is not worthy or safe to be admitted in the proof
of the latter.’’ (Internal quotation marks omitted.) State
v. Wright, supra, 320 Conn. 812. Similarly, the Code of
Evidence defines relevant evidence as ‘‘evidence having
any tendency to make the existence of any fact that is
material to the determination of the proceeding more
probable or less probable than it would be without the
evidence.’’ Conn. Code Evid. § 4-1. ‘‘[E]vidence need
not exclude all other possibilities [to be relevant]; it is
sufficient if it tends to support the conclusion [for which
it is offered], even to a slight degree. . . . [T]he fact
that evidence is susceptible of different explanations
or would support various inferences does not affect
its admissibility, although it obviously bears upon its
weight.’’ (Internal quotation marks omitted.) United
Technologies Corp. v. East Windsor, 262 Conn. 11, 29,
807 A.2d 955 (2002).
Here, the proffered evidence—i.e., the letters and the
victim’s testimony—is relevant if each factual link in
the chain connecting that evidence to the legal elements
of the crime tends to support the next factual link, even
to a slight degree. See id. Here, the defendant argues
that (1) the letters and the victim’s testimony would
establish that she and her boyfriend had sexual inter-
course; (2) which was relevant to whether the defendant
broke off a particularly close relationship between the
victim and her boyfriend; (3) which was relevant to
whether the victim had a strong motive to seek revenge
against the defendant; (4) which was relevant to the
victim’s credibility; (5) which was relevant to whether
the victim’s testimony that the defendant sexually
abused her was true. We conclude that each factual
link does tend to support the next, at least to a slight
degree. On the first link, the state does not dispute that
the letters showed that the victim and her boyfriend
were sexually active. On the second and third links, our
Supreme Court previously has held that, for purposes
of evidentiary relevance, ‘‘a sexual relationship differs
substantially from a nonsexual one in the level of emo-
tional intensity and potential animus resulting from its
termination.’’ State v. Cortes, 276 Conn. 241, 256, 885
A.2d 153 (2005). On the fourth and fifth links, the United
States Supreme Court has held that the ‘‘ulterior
motives of [a] witness . . . [are] always relevant as
discrediting the witness and affecting the weight of
[her] testimony.’’ (Internal quotation marks omitted.)
Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L.
Ed. 2d 347 (1974). Accordingly, the proffered evidence
is relevant for purposes of the rape shield statute.
3
Although evidence of the sexual nature of the victim’s
relationship with her boyfriend was both material and
relevant to prove the strength of the victim’s motive to
falsely accuse the defendant, we conclude that it was
not so material and so relevant that its exclusion vio-
lated the defendant’s constitutional rights.
‘‘It is fundamental that the defendant’s rights to con-
front the witnesses against him and to present a defense
are guaranteed by the sixth amendment to the United
States constitution. The sixth amendment provides in
relevant part: In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him; [and] to have compulsory pro-
cess for obtaining witnesses in his favor . . . . A defen-
dant’s right to present a defense is rooted in the
compulsory process and confrontation clauses of the
sixth amendment . . . . Furthermore, the sixth
amendment rights to confrontation and to compulsory
process are made applicable to state prosecutions
through the due process clause of the fourteenth
amendment. . . .
‘‘In plain terms, the defendant’s right to present a
defense is the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury so
that it may decide where the truth lies. . . . It guaran-
tees the right to offer the testimony of witnesses, and
to compel their attendance, if necessary . . . . There-
fore, exclusion of evidence offered by the defense may
result in the denial of the defendant’s right to present
a defense. . . .
‘‘The right of confrontation is the right of an accused
in a criminal prosecution to confront the witnesses
against him. . . . The primary interest secured by con-
frontation is the right to cross-examination . . . and
an important function of cross-examination is the expo-
sure of a witness’ motivation in testifying. . . . Cross-
examination to elicit facts tending to show motive,
interest, bias and prejudice is a matter of right and may
not be unduly restricted. . . .
‘‘Impeachment of a witness for motive, bias and inter-
est may also be accomplished by the introduction of
extrinsic evidence. . . . The same rule that applies to
the right to cross-examine applies with respect to
extrinsic evidence to show motive, bias and interest;
proof of the main facts is a matter of right, but the extent
of the proof of details lies in the court’s discretion. . . .
The right of confrontation is preserved if defense coun-
sel is permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the
reliability of the witness. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment. . . .
‘‘These sixth amendment rights, although substantial,
do not suspend the rules of evidence . . . . A court
is not required to admit all evidence presented by a
defendant; nor is a court required to allow a defendant
to engage in unrestricted cross-examination. . . .
Instead, [a] defendant is . . . bound by the rules of
evidence in presenting a defense . . . . Nevertheless,
exclusionary rules of evidence cannot be applied mech-
anistically to deprive a defendant of his rights . . . .
Thus, [i]f the proffered evidence is not relevant [or
constitutes inadmissible hearsay], the defendant’s
right[s] to confrontation [and to present a defense are]
not affected, and the evidence was properly excluded.
. . . The defendant’s right to confront witnesses
against him is not absolute, but must bow to other
legitimate interests in the criminal trial process. . . .
Such interests are implicit in a trial court’s accepted
right, indeed, duty, to exclude irrelevant evidence
. . . .
‘‘There are special considerations in sexual assault
prosecutions that trial courts must keep in mind when
ruling on the admissibility of evidence, such as shielding
an alleged victim from embarrassing or harassing ques-
tions regarding his or her prior sexual conduct. . . .
Although the state’s interests in limiting the admissibil-
ity of this type of evidence are substantial, they cannot
by themselves outweigh [a] defendant’s competing con-
stitutional interests. . . . As we previously have
observed, evidentiary rules cannot be applied mecha-
nistically to deprive a defendant of his constitutional
rights. . . .
‘‘We must remember that [t]he determination of
whether the state’s interests in excluding evidence must
yield to those interests of the defendant is determined
by the facts and circumstances of the particular case.
. . . In every criminal case, the defendant has an
important interest in being permitted to introduce evi-
dence relevant to his defense. Evidence is not rendered
inadmissible because it is not conclusive. All that is
required is that the evidence tend to support a relevant
fact even to a slight degree, [as] long as it is not prejudi-
cial or merely cumulative. . . . Whenever the rape
shield statute’s preclusion of prior sexual conduct is
invoked, a question of relevancy arises. If the evidence
is probative, the statute’s protection yields to constitu-
tional rights that assure a full and fair defense. . . . If
the defendant’s offer of proof is . . . more probative
to the defense than prejudicial to the victim, it must be
deemed admissible at trial. . . . When the trial court
excludes defense evidence that provides the defendant
with a basis for cross-examination of the state’s wit-
nesses, [despite what might be considered a sufficient
offer of proof] such exclusion may give rise to a claim
of denial of the right[s] to confrontation and to present
a defense.’’ (Citations omitted; internal quotation marks
omitted.) State v. Wright, supra, 320 Conn. 816–20.
‘‘In determining whether a defendant’s right of cross-
examination has been unduly restricted, we consider
the nature of the excluded inquiry, whether the field
of inquiry was adequately covered by other questions
that were allowed, and the overall quality of the cross-
examination viewed in relation to the issues actually
litigated at trial.’’ (Internal quotation marks omitted.)
State v. Mark R., 300 Conn. 590, 610, 17 A.3d 1 (2011).
At the outset, we note that the defendant relies heav-
ily on State v. Cortes, supra, 276 Conn. 256, for the
proposition that excluding evidence of the sexual
nature of a victim’s relationship with her boyfriend was
error where the closeness of that relationship spoke to
her motive to fabricate the allegations. The court in
Cortes held that such evidence was relevant, and so
excluding it was evidentiary error.9 Id., 253. The court
was silent on whether it rose to the level of constitu-
tional error. Id. Here, we agree with the defendant that
the sexual conduct evidence was relevant, largely on
the authority of Cortes, but that begs the question of
whether it was also so critical that its exclusion violated
the defendant’s constitutional rights.
We thus turn to an examination of our sixth amend-
ment jurisprudence. On the one hand, convictions have
been reversed where a defendant was entirely pre-
vented from putting the defense theory of the case
before the jury, either (1) because the defense was
barred from asking about it, or (2) because the defense
was allowed to ask but was barred from introducing
any evidence to support it. Two cases from the United
States Supreme Court are illustrative.
In Olden v. Kentucky, 488 U.S. 227, 229–30, 109 S.
Ct. 480, 102 L. Ed. 2d 513 (1988), the defendant’s theory
of the case was that the victim’s lover caught her exiting
the defendant’s car after a night at a bar, and that the
victim claimed he had kidnapped and raped her to cover
up her infidelity. The trial court entirely precluded the
defendant from asking about the victim’s relationship
with her lover, and a jury found the defendant guilty.
Id., 230. On appeal, the United States Supreme Court
reversed the judgment of conviction, holding that the
trial court had violated the defendant’s sixth amend-
ment rights by excluding all evidence that the victim
and her lover were in a relationship, effectively remov-
ing the defendant’s theory of the case from the jury’s
consideration.10 Id., 233.
In Davis v. Alaska, supra, 415 U.S. 310–11, the defen-
dant was charged with stealing a safe from a bar, and
the only witness who identified the defendant was the
teenage boy in whose yard the safe was found. At the
time, the teenage boy was on probation for a prior
burglary. The defense theory of the case was that the
boy falsely accused the defendant either to deflect sus-
picion away from himself, or to appease the police,
given his precarious status as a probationer. At trial,
the defendant was allowed to ask the boy if he was
afraid the police might suspect him of stealing the safe,
but was forbidden from introducing evidence that the
boy was on probation after being adjudicated a juvenile
delinquent for the prior burglary. Id., 311–13. ‘‘On the
basis of the limited cross-examination that was permit-
ted, the jury might well have thought that defense coun-
sel was engaged in a speculative and baseless line of
attack on the credibility of an apparently blameless
witness,’’ and, indeed, the jury found the defendant
guilty. Id., 318. On appeal, the United States Supreme
Court reversed the judgment of conviction, holding that
the trial court violated the defendant’s sixth amendment
rights by excluding all evidentiary support for the defen-
dant’s theory of the case.11 Id.
On the other hand, convictions have been affirmed
where the defense theory of the case either (1) was
sufficiently before the jury, or (2) was so far-fetched
that excluding it did not infringe the defendant’s consti-
tutional rights. Two cases from our Supreme Court
are illustrative.
In State v. Crespo, 303 Conn. 589, 591, 600 n.13, 35
A.3d 243 (2012), the defendant was charged with vio-
lently raping his girlfriend, who testified that she had
wished to remain a virgin until marriage. The defen-
dant’s theory of the case was that the victim had con-
sented; he thus sought to undermine the victim’s
credibility by showing that she was deceptive, and had
a motive to lie in that she was having sex with and
became engaged to another man while she was dating
the defendant. Id., 596, 601. At trial, the court permitted
the defense to ask the victim about her financial support
from and engagement to the other man, but forbade
the defense from asking if they had a sexual relation-
ship. Id., 601. On appeal, our Supreme Court affirmed
the judgment of conviction, holding that evidence of
the sexual nature of the victim’s relationship with the
other man may well have been relevant to undermine
the victim’s credibility and to rebut her claim of virgin-
ity, but that it was not so relevant that its exclusion
violated the defendant’s constitutional rights.12 Id.,
611–12.
In State v. Kulmac, 230 Conn. 43, 49–50, 644 A.2d
887 (1994), the defendant, who was an uncle figure
to the two child victims, was charged with repeatedly
sexually abusing them over the course of several years.
The defense theory of the case was that the victims
either (1) confused the defendant with various other
men who had sexually abused them, or (2) falsely impli-
cated the defendant to protect their actual assailants
from prosecution. Id., 51, 55–56. The trial court
excluded evidence of the victims’ prior sexual abuse
by the other men and the defendant was convicted. Id.,
45, 51–52. On appeal, our Supreme Court affirmed the
judgment of conviction, deferring to the trial court’s
finding that the two victims did not appear confused
as to the identity of their assailant and holding that the
record did not bear out the defendant’s motive argu-
ment because the two victims had already reported
their other assailants to the police, resulting in their
conviction. Id., 55–56.
Here, although the defendant’s motive argument was
not so beyond the pale that its wholesale exclusion
would have been appropriate, the defendant was not
prevented entirely from developing his theory of the
case before the jury—to wit, that the victim falsely
accused him in retaliation for his taking away her privi-
leges, including her friendship with the boy she was
dating. The court’s ruling allowed the defendant to pre-
sent evidence of every aspect of that punishment and
its effect, including what privileges the victim lost, how
much time she spent with her boyfriend before she was
grounded, her reaction to being grounded, her reaction
to being told she could no longer see her boyfriend,
and her reaction to their breakup.13 He was precluded
from introducing further evidence only to the extent
that it revealed that the victim and her boyfriend were
sexually active. On this record, we cannot conclude
that the exclusion of the sexual conduct evidence vio-
lated the defendant’s sixth amendment rights. See State
v. Mark R., supra, 300 Conn. 611 (‘‘[c]onsistent with
these principles, we have rejected confrontation chal-
lenges in child abuse cases where the trial court permit-
ted at least some inquiry into the witness’ possible
motives for untruthfulness’’). The court did not abuse
its discretion by excluding such evidence under § 54-
86f (4).
II
The defendant’s second claim is that the court vio-
lated his right to trial by an impartial jury under the
sixth amendment to the United States constitution14
when it seated juror D.W., who ultimately became the
jury foreperson.15 The defendant argues that D.W. could
not be fair and impartial for three reasons: (1) D.W.
believed that children were less likely to lie than adults;
(2) he had personal experience believing a child abuse
victim; and (3) he publicly opined on the central issue
of the case during voir dire. By contrast, the state argues
that the court did not abuse its discretion in seating
D.W. because D.W. said that he would follow the court’s
instructions and that he would put his past experience
aside when considering the evidence against the
defendant.
The following additional facts and procedural history
are relevant to this claim. After six regular jurors and
three alternates had been selected, but before trial
began, the court informed the parties that they had lost
two jurors. One of the alternate jurors was excused
with a doctor’s note due to back issues, and one of the
regular jurors was unable to attend because his child
had caught pneumonia. Accordingly, the court decided
to select one additional alternate before trial began and
then to select, from the three alternates, the replace-
ment sixth regular juror.
Because the state and the defendant already had exer-
cised all eight of their peremptory challenges, the court
gave them each one extra peremptory challenge for this
final round of jury selection. The defendant exercised
his peremptory challenge on the first prospective juror
interviewed. The second prospective juror interviewed
was D.W. During voir dire, D.W. said that he was a
welder from Naugatuck who lived with his fiance´e and
their two year old daughter. He had the following
exchange with the prosecutor:
‘‘Q. There may be some testimony from a child or a
teenager in this case. Do you have any feelings about
the credibility of children or teen—teenagers?
‘‘A. Versus the age of who’s testifying?
‘‘Q. Yeah.
‘‘A. No.
‘‘Q. Okay. Do you think teen—do you think children
generally tell the—excuse me. Do you think children
generally tell the truth?
‘‘A. Most of the time, yes.
‘‘Q. Okay. How about teenagers?
‘‘A. Here and there, yes.
‘‘Q. Here and there, yes?
‘‘A. Well, it depends because some kids don’t tell the
truth, some kids do.
‘‘Q. Do you think teenagers tend to not tell the truth?
‘‘A. A little more than the others, yeah, because
they’re older and they know things right from wrong
versus a child.
‘‘Q. Okay. So, if a teenager were to testify in this case
and an adult were to—just hypothetically—and an adult
were to testify in this case, do you think you would
tend to believe the adult over the teenager?
‘‘A. No.
‘‘Q. Say hypothetical, teenager says X, adult says Y,
totally different. Who would you tend to believe?
‘‘A. The teenager.
‘‘Q. Why?
‘‘A. Because teenagers are younger and they don’t
know everything. They—they don’t know certain things
as opposed to an adult.
‘‘Q. Okay.
‘‘A. They’re more to tell the truth sometimes than an
adult does.
‘‘Q. If the court were to instruct you that in assessing
the credibility of any witness—child, teenager, adult—
you—age can’t play a factor in the sense of, if—that
age isn’t a determining factor in assessing credibility,
would you follow that—
‘‘A. No.
‘‘Q. —instruction?
‘‘A. What do you mean?
‘‘Q. In—for example, if the court were to say, just
be—age shouldn’t be a factor in your assessment of the
testimony of a person, whether it be a child or an adult,
would you follow that instruction?
‘‘A. Yes.
‘‘Q. Okay. And the reason I’m—I’m asking is, there
may be testimony from adults, there may be testimony
from teenagers, there may be testimony from younger
children. So, how would you assess a witness’ credibil-
ity? If a witness testified, how would you—how would
you figure out if that person was telling the truth?
‘‘A. Their body language.
‘‘Q. Anything else?
‘‘A. No.
‘‘Q. Okay. So, if the court said age can’t play a factor,
you’ll take that out of the equation?
‘‘A. Yes.’’
Later, defense counsel and D.W. had the following
exchange:
‘‘Q. Some people feel that no child would ever make
these accusations unless they were true. How do you
feel about that? Do you agree with that?
‘‘A. I agree with that.
‘‘Q. Okay. Tell us a little bit about that.
‘‘A. Well, 2005, a neighbor on my—in my neighbor-
hood, my girlfriend at the time, her children—her
daughter played with one of the neighbor’s kids.
‘‘Q. Um hmm.
‘‘A. And her daughter came to me and said that this
person was doing things that were out of the ordinary,
and I brought it to the mother’s attention and then it
was waved away by the police department and not
caring because there was no proof, but then a month
later there was a problem with another person, and
now that person’s not there anymore because they did
something wrong. But when I spoke about it, and I
believe the child because most of the time children
don’t make things up.
‘‘Q. Okay. So, at this time, right there, [the defendant],
His Honor indicated that at this time he is presumed
innocent. Do you think that given your past experience
you would have difficulty—
‘‘A. No, because everybody gets a fair chance.
‘‘Q. And so at this time you have no problem pre-
suming—
‘‘A. No.
‘‘Q. —him innocent?
‘‘A. No.
‘‘Q. However, you do feel that children would never
lie about an—
‘‘A. I didn’t say children would never lie.
‘‘Q. Oh, I’m sorry. I apologize. Could you—
‘‘A. I didn’t say they wouldn’t lie. I just said that they
usually tell the truth because they—some don’t—some
don’t know right from wrong.
‘‘Q. Do you think it makes a difference whether it’s
a younger child or a teenager, close to being a teenager?
Does it make a difference?
‘‘A. Somewhat of a difference, but not really because
they’re children still and they haven’t reached to the
mature level to understand right from wrong.
‘‘Q. What would you consider a teenager?
‘‘A. I would consider a teenager fifteen and up.
‘‘Q. And so anybody below that age?
‘‘A. Is still a child.
‘‘Q. Is still a child. And you think that for the most part
they would never accuse anybody unless it was true?
‘‘A. Unless it was true.
‘‘Q. Do you think that it would be difficult in this
case not to lean for the prosecution?
‘‘A. No. It would be equal because you have to hear
both sides to understand what’s going on.
‘‘Q. And it wouldn’t be difficult for you to put aside
your belief that children most likely will not—
‘‘A. Children lie, but also children don’t lie, so you
have to put to the side that there’s a right and a wrong,
and that child’s going to either tell the truth or it’s going
to lie and then, once again, it’s a person’s body language.
‘‘Q. Yeah. So, if you were chosen as a juror and you
had a person—you had a child on the one hand, some-
body under fifteen, and somebody who is an adult and
they have contradictory stories, would you tend to
believe the child over the adult?
‘‘A. Maybe, maybe not. It depends. I don’t know. I’m
not put in that position—that predicament yet so I
don’t know.
‘‘Q. So, you would—you would want to listen to what
they have to say?
‘‘A. I would want to understand what’s going on
before I make that decision, yeah.’’
Finally, the court asked D.W. several questions on
the same topic:
‘‘[Q.] Okay. Probably the most important rule is that
the jury evaluates all the witnesses, and it’s required
without exception to treat all those witnesses equally.
It doesn’t matter their gender, it doesn’t matter their
age, it doesn’t matter what their title is, it doesn’t matter
if they’re police officers, it doesn’t matter if they’re—
it doesn’t matter. You’ve got to treat every single witness
by the same standard. So, the question is: Can you
follow that rule?
‘‘[A.] Yes, sir.
‘‘[Q.] Okay. Now, we talked about—answered that.
Just let me check my notes here. Give me a second.
So, again, let me just give you an analogy, just—just
to—I don’t want to belabor this, but it’s a real important
point. The process here, you have to think of as a blank
canvas. You’re an artist, so the canvas is blank. The—
the attorneys paint the picture—
‘‘[A.] Um hmm.
‘‘[Q.] —with the witnesses, with the exhibits, so that’s
the only thing you can consider. Anything from outside
is not relevant.
‘‘[A.] It doesn’t exist.
‘‘[Q.] It’s just—right. It doesn’t exist. That’s a good
way to put it. It’s just what’s presented to you here by
treating all the witnesses by the same standard. So, can
you—can you do that?
‘‘[A.] Yes, sir.’’
When the juror left the room, the state said that it
found D.W. acceptable. Defense counsel challenged him
for cause, arguing that D.W. had said that he had per-
sonal experience believing a child abuse victim and that
he thought children more credible. The court denied
the challenge for cause, noting that D.W. ultimately said
that he would have to evaluate children’s credibility
on an individual basis.16 The court seated D.W. as an
alternate, the clerk randomly chose D.W. from the three
alternates to be a regular juror, and D.W. was elected
to be the jury foreperson at the end of trial.
We begin with the standard of review. ‘‘The constitu-
tional standard of fairness requires that a defendant
have a panel of impartial, indifferent jurors. . . . We
agree with the defendant that the enactment of article
first, § 19, of the Connecticut constitution, as amended,
reflects the abiding belief of our citizenry that an impar-
tial and fairly chosen jury is the cornerstone of our
criminal justice system. . . . We have held that if a
potential juror has such a fixed and settled opinion in
a case that he cannot judge impartially the guilt of
the defendant, he should not be selected to sit on the
panel. . . .
‘‘The trial court is vested with wide discretion in
determining the competency of jurors to serve, and that
judgment will not be disturbed absent a showing of an
abuse of discretion. . . . On appeal, the defendant
bears the burden of showing that the rulings of the trial
court resulted in a jury that could not judge his guilt
impartially.’’ (Citations omitted; internal quotation
marks omitted.) State v. Tucker, 226 Conn. 618, 630–31,
629 A.2d 1067 (1993). Accordingly, we review the defen-
dant’s claim for an abuse of discretion. Id., 630.
On this record, we cannot conclude that the court
abused its discretion in denying the defendant’s chal-
lenge for cause to juror D.W. The defendant argues that
D.W. could not be fair and impartial for three reasons:
(1) D.W. believed that children were less likely to lie
than adults; (2) he had personal experience believing
a child abuse victim; and (3) he publicly opined on the
central issue of the case during voir dire.
As to the first reason, which is D.W.’s tendency to
believe children, although D.W. did say that children
generally tell the truth, he also noted that ‘‘some kids
don’t tell the truth, some kids do,’’ and that if a teenager
and an adult both testified in a case, he would not
necessarily believe the teenager over the adult. Rather,
D.W. said that he would evaluate the witnesses’ credibil-
ity individually, on the basis of their demeanor. He
reiterated that position when defense counsel ques-
tioned him on it. When the court instructed D.W. that
‘‘it doesn’t matter their age . . . [y]ou’ve got to treat
every single witness by the same standard,’’ and asked
D.W. if he would follow that rule, he replied that he
would.17
As to the second reason, which is D.W.’s prior experi-
ence, although D.W. did say that, eight years ago, his
former girlfriend’s daughter told him that a neighbor
was ‘‘doing things that were out of the ordinary’’ and
that the neighbor was ‘‘not there anymore because they
did something wrong.’’ D.W. was also adamant that
‘‘everybody gets a fair chance’’ and that he would ‘‘have
to hear both sides to understand what’s going on’’ in
the defendant’s case. When the court explained that
D.W. could consider only the testimony and exhibits at
trial, not any outside experiences, D.W. said that he
understood and would treat his prior experience as
though ‘‘[i]t doesn’t exist.’’ When the court asked D.W.
if he could limit his deliberations to the evidence pre-
sented at trial, D.W. replied that he would.
As to the third reason, for the reasons previously
discussed, we disagree that D.W. expressed ‘‘a fixed
and settled opinion’’; State v. Tucker, supra, 226 Conn.
630; on the central issue of the case, i.e., the victim’s
credibility versus that of the defendant. To the contrary,
D.W. repeatedly said that he would have to hear the
evidence and evaluate witnesses on an individual basis.
In sum, after some initial confusion, D.W. told both
attorneys and the court that he would not believe child
witnesses merely on the basis of their age; that he would
put aside his prior experiences; and that he would need
to judge each witness individually. We conclude that
the court reasonably could have determined that D.W.
would be impartial, and so the court did not abuse
its discretion when it denied the defendant’s challenge
for cause.
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 abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The jury found the defendant not guilty of three other charges: (1) a
third charge of sexual assault in the fourth degree; (2) a third charge of
risk of injury to a child; and (3) a charge of attempt to commit sexual assault
in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-
70 (a) (2).
2
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts . . . of a child under the age
of sixteen years or subjects a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child . . . shall be guilty of
. . . a class B felony . . . and [if] the victim of the offense is under thirteen
years of age, such person shall be sentenced to a term of imprisonment of
which five years of the sentence imposed may not be suspended or reduced
by the court.’’
We note that although § 53-21 has been amended several times since the
events at issue here, those amendments are not relevant to this appeal. For
convenience, we refer to the current revision of § 53-21 as codified in the
2016 supplement to the General Statutes.
Here, the court imposed consecutive five year mandatory minimum sen-
tences on the conviction of two counts of risk of injury to a child. See State
v. Polanco, 301 Conn. 716, 723, 22 A.3d 1238 (2011) (‘‘[t]he determination
whether to impose concurrent or consecutive sentences is a matter within
the sound discretion of the trial court’’ [internal quotation marks omitted]).
3
General Statutes § 54-86f provides in relevant part: ‘‘In any prosecution
for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a,
inclusive, no evidence of the sexual conduct of the victim may be admissible
unless such evidence [meets one of four exceptions] . . . .’’
4
Our Supreme Court has held that the requirement that the probative
value of the evidence must outweigh its prejudice to the victim is superfluous
when a defendant proceeds under subdivision (4) because a victim’s rights
under a state statute can never outweigh a defendant’s rights under the
federal constitution. See State v. Wright, supra, 320 Conn. 823 n.20 (‘‘evi-
dence cannot be excluded as more prejudicial to the victim than probative
when that exclusion has already been determined to violate the defendant’s
constitutional rights’’ [internal quotation marks omitted]); see also U.S.
Const., art. VI, cl. 2 (‘‘[t]his Constitution . . . shall be the supreme Law of
the Land . . . any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding’’).
5
See State v. Oliver, 158 Ariz. 22, 31, 760 P.2d 1071 (1988) (‘‘[g]iven the
age of the [twelve and thirteen year old] victims and the rather unexplicit
nature of their testimony, we find it unlikely that a jury would infer that
the victims could only describe the molestation because [the defendant]
had, in fact, molested them’’); but see People v. Ruiz, 71 A.D. 2d 569,
570, 418 N.Y.S.2d 402 (1979) (seemingly accepting argument that evidence
of twelve year old victim’s prior sexual conduct was admissible to show
alternative source of sexual knowledge).
6
We note that the evidence presented at trial, although obviously not
available to the court when it ruled on the motions in limine, bore out the
court’s conclusion that evidence of the victim’s sexual relationship with her
boyfriend as an alternative source of the victim’s sexual knowledge was
immaterial. At trial, the state never argued that the victim displayed a degree
of sexual knowledge that was unusual for her age, or that the defendant
was its only possible source. Indeed, the state’s expert witness testified,
albeit for a different purpose, that children begin to acquire sexual knowl-
edge naturally from a young age, and are taught about sex in school beginning
around fourth or fifth grade. Here, the victim first accused the defendant
of sexually abusing her when she was twelve years old in seventh grade,
and she was sixteen years old at trial.
7
Evidence must meet all three of the rape shield statute’s requirements
to be admissible. State v. Wright, supra, 320 Conn. 815. Thus, our conclusion
that the victim’s sexual knowledge was not material dispenses with the need
to analyze whether the defendant’s sexual knowledge theory of admissibility
would satisfy the remaining two requirements.
8
See, e.g., Davis v. Alaska, 415 U.S. 308, 316–17, 94 S. Ct. 1105, 39 L. Ed.
2d 347 (1974) (Witness credibility may be challenged ‘‘by means of cross-
examination directed toward revealing possible biases, prejudices, or ulte-
rior motives of the witness as they may relate directly to issues or personali-
ties in the case at hand. The partiality of a witness is subject to exploration
at trial, and is always relevant as discrediting the witness and affecting the
weight of his testimony. . . . We have recognized that the exposure of a
witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.’’ [Citation omitted;
internal quotation marks omitted.]).
9
In holding that the sexual conduct evidence was admissible, the court
in Cortes noted that the rape shield statute did not bar its admission because
the defendant was not charged with a sex crime. State v. Cortes, supra, 276
Conn. 256.
10
See also State v. Shaw, 312 Conn. 85, 114–15, 90 A.3d 936 (2014) (‘‘if
the jurors heard and believed the defendant’s testimony regarding [the victim
having sex with her brother], they also might have believed that [the victim
and her mother] were motivated to fabricate the alleged assault for the
purpose of removing the defendant from the household and covering up
[the siblings’] allegedly inappropriate behavior’’); State v. Adorno, 121 Conn.
App. 534, 541, 996 A.2d 746 (error to preclude entirely evidence of victim’s
sexual relationship with boyfriend where ‘‘theory of defense [was] that the
victim feared that her urinary tract infection was the result of sexual activity
and that she falsely accused the defendant so that her sexual relationship
with her boyfriend would not be discovered’’), cert. denied, 297 Conn. 929,
998 A.2d 1196 (2010); State v. Horrocks, 57 Conn. App. 32, 39, 747 A.2d 25
(‘‘the preclusion of any cross-examination of the victim concerning her
relationship with [the state’s investigating detective] improperly prohibited
inquiry into a legitimate area of relevant concern’’), cert. denied, 253 Conn.
908, 753 A.2d 941 (2000).
11
See also State v. Wright, supra, 320 Conn. 821 (trial court violated
defendant’s sixth amendment rights where ‘‘the excluded testimony was the
only evidence the defense presented to support its theory of the case’’);
State v. Colton, 227 Conn. 231, 241–46, 630 A.2d 577 (1993) (trial court
violated defendant’s sixth amendment rights when, although it allowed him
to ask state’s primary witness if she was prostituting herself for drugs and
needed reward money from defendant’s conviction to fund her habit, it
forbade defendant from introducing evidence to that effect when witness
flatly denied it).
12
We note that the holding in Crespo is complicated by the defendant’s
failure to state precisely his theory of relevance at trial in that case. See
State v. Crespo, supra, 303 Conn. 614. For a cleaner holding, albeit outside
the context of the rape shield statute, see State v. Mark R., supra, 300 Conn.
607–608, 611–13, 615, in which the trial court excluded some but allowed
into evidence other aspects of the defense theory of the case—that the child
victim falsely accused her father of sexually abusing her either (1) to redirect
her mother’s attention to her after her mother began devoting her time to
the victim’s newly adopted siblings; or (2) at her mother’s urging so that
she could divorce the victim’s father—and our Supreme Court affirmed the
defendant’s conviction on the ground that, even assuming the excluded
evidence was relevant, it was not so relevant that its exclusion violated his
constitutional rights.
13
We note that, at trial, the defendant in fact elicited such testimony.
14
The sixth amendment to the United States constitution provides in
relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
to a . . . trial, by an impartial jury . . . .’’ That right is made applicable to
the states through the due process clause of the fourteenth amendment
to the United States constitution, which also independently requires jury
impartiality. Morgan v. Illinois, 504 U.S. 719, 726, 112 S. Ct. 2222, 119 L.
Ed. 2d 492 (1992); Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017,
47 L. Ed. 2d 258 (1976).
15
The defendant also argues in his brief that the seating of D.W. violated
article first, § 8, of the Connecticut constitution. He has provided no indepen-
dent analysis of the state constitution, as required under State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992), and so we limit our review to
the federal constitution. See State v. Dixon, 318 Conn. 495, 497–98 n.2, 122
A.3d 542 (2015).
16
Because the defendant had no remaining peremptory challenges when
the court denied his challenge of D.W. for cause, this issue is preserved for
appellate review. See State v. Kelly, 256 Conn. 23, 32 n.8, 770 A.2d 908 (2001)
(defendant must exhaust peremptory challenges before claiming error in
trial court’s denial of challenge for cause).
17
We further note that, contrary to the suggestion of the trial court, a
juror may properly consider a witness’ age as one factor affecting credibility.
See, e.g., State v. Ceballos, 266 Conn. 364, 422, 832 A.2d 14 (2003) (‘‘court
instructed the jury . . . that it was solely responsible for assessing the
credibility of [the child witness], and that it could consider her age’’); State
v. Aponte, 249 Conn. 735, 751, 738 A.2d 117 (1999) (child witness’ age relevant
to credibility); State v. Angell, 237 Conn. 321, 331 n.11, 677 A.2d 912 (1996)
(‘‘reference to a witness’ age or maturity level in [the court’s] general instruc-
tion on credibility . . . may be appropriate in certain circumstances’’).