State v. Sullivan

Opinion

PETERS, J.

This appeal concerns the preliminary showing that a defendant in a sexual assault case must make before he may cross-examine a constancy of accusation witness with respect to the victim’s alleged prior false complaint of sexual assault by another person. The state charged the defendant, John W. Sullivan, with sexual assault in the first degree pursuant to General Statutes § 53a-70 (a) (l)1. After a jury trial, he was found guilty and sentenced to ten years imprisonment, execution to be suspended after five years.

The defendant appealed from the judgment of the Appellate Court, which, in a per curiam opinion, had affirmed the trial court judgment against him.2 State v. Sullivan, 44 Conn. App. 902, 688 A.2d 368 (1996). In response to his petition for certification to appeal, we granted certification limited to the following issue: “Whether the Appellate Court correctly concluded that the trial court did not abuse its discretion in excluding evidence regarding a constancy of accusation witness?”3 State v. Sullivan, 240 Conn. 919, 692 A.2d 812 (1997). We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. In the summer of 1992, the defendant, then a Massachusetts state trooper, was married to the victim’s first cousin. The victim was working part-time as a bookkeeper and part-time as an exotic dancer. She had done some modeling, including posing for nude photographs. On July 1, 1992, the defendant contacted the victim and told her that, along with twenty-five other people on a “secret indictment list,” she would be charged with telephone solicitation, drug trafficking, racketeering, prostitution and illegal pornography. The defendant stated that the police had copies of some of the victim’s nude photographs, and that she was facing three to six years in prison. He told her that if she cooperated with him, he could have her name removed from the secret indictment list. The victim did not learn until September 15,1992, that the defendant’s representations were baseless. In the meantime, frightened by their apparent import, especially by the threat of criminal prosecution, she accompanied the defendant to various places, including a location in Connecticut, where he forced her to engage in sexual intercourse. When she discovered the true facts, she reported these events to the state police in both Connecticut and Massachusetts.

At his trial for having committed those sexual assaults, the defendant submitted a motion in limine requesting that the court allow him to cross-examine the victim and her father. The defendant sought the opportunity to cross-examine those two witnesses with respect to a statement that the father had made to the police. That statement represented that the victim had been sexually assaulted once before, in 1990, and that the Worcester, Massachusetts police had handled that investigation. Defense counsel informed the court that discussions with the Worcester police had revealed that they had no record of a complaint by the victim regarding this alleged prior incident. In support of his motion, the defendant submitted a copy of the father’s statement to the police in the current case, and a letter from the Worcester police confirming that they had no record of a previous sexual assault investigation concerning this victim.

The trial court denied the defendant’s motion. The court noted that this alleged prior sexual assault complaint had been mentioned only in a statement by the victim’s father, not in the victim’s own testimony. The court reasoned that cross-examination of the victim and her father regarding this collateral incident would be irrelevant and distracting. We agree with the Appellate Court; State v. Sullivan, supra, 44 Conn. App. 902; that the judgment of the trial court should be sustained.

In his appeal to this court, the defendant claims that, contrary to the conclusion of the Appellate Court, the trial court abused its discretion in disallowing this line of questioning. He asserts that the proffered evidence was relevant to show that the victim had lied to her father about an official investigation. According to the defendant, the fact that the victim’s father had testified on her behalf as a constancy of accusation witness gave the defendant the right of cross-examination about the prior investigation. The defendant further argues that this line of questioning would not have violated Connecticut’s rape shield law, General Statutes § 54-86f,4 because the relevant inquiry would have focused, not on the occurrence of a sexual assault in 1990, but on the victim’s alleged misrepresentation to her father about the existence of an official investigation. Finally, the defendant argues that, because the doctrine of constancy of accusation permits witnesses to present hearsay testimony to corroborate the victim’s story, the defendant should be allowed broad latitude to cross-examine such witnesses to determine whether the victim had lied in the past about matters of similar gravity.

The constancy of accusation doctrine is well established in Connecticut and recently has been reaffirmed by this court. See State v. Troupe, 237 Conn. 284, 297-98, 303-304, 677 A.2d 917 (1996); State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994); State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986). The doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be “natural” for her to confide in others.5 See, e.g., State v. De Wolf, 8 Conn. 93, 99 (1830). Until State v. Troupe, supra, 304, we permitted witnesses to testify about the details of a victim’s accounts of the alleged sexual assault on the theory that, if the victim’s story were true, “the evidence would show constancy in the charge even to the details, and the truth would the more clearly appear.” State v. Kinney, 44 Conn. 153, 156-57 (1876); State v. De Wolf, supra, 99. In State v. Troupe, supra, 284, however, we restricted the doctrine so that a constancy of accusation witness could testify only to the fact and the timing of the victim’s complaint. Even so limited, the evidence would be admissible solely for corroboration of the victim’s testimony, and not for substantive purposes. Id., 304.

Notwithstanding our decision in Troupe, we recognize that the constancy of accusation doctrine creates a tension between competing well recognized principles. It remains a powerful weapon in the state’s arsenal to secure justice for victims of sexual assaults. It also, however, constitutes a potential threat to the accused’s right of confrontation under the sixth amendment to the constitution of the United States and under article first, § 8, of the constitution of Connecticut.6 7To resolve this tension, the defendant must be allowed an adequate opportunity to cross-examine constancy of accusation witnesses. Such cross-examination properly includes questioning the witness not only about the victim’s report of the present charge, but also about the victim’s prior false statements, to that witness, that tend to undermine the credibility of the victim’s present complaint.

At trial in this case, the defendant sought to cross-examine the victim and her father about claimed false statements by the victim to her father regarding a prior alleged sexual assault and its investigation. The defendant’s motion in limine stated that the subject of the proposed cross-examination was a “prior allegation of rape . . . which the father claims was under investigation by the Worcester [p]olice [department.”

As the defendant acknowledges, it is well established that “[t]he trial court has broad discretion in ruling on the admissibility of evidence. "State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

In a sexual assault case, the admissibility of evidence of the victim’s prior sexual conduct, including past allegations of sexual assault, is narrowly circumscribed by § 54-86f.8 A clear statement of the defendant’s theory of relevance is all important in determining whether the evidence is offered for a permissible purpose. As the defendant conceded at oral argument before this court, his offer of proof was not a model of clarity. The defendant’s written motion in limine9 and supplementary oral representations to the trial court10 could be interpreted to present at least two possible theories of relevance. Considered together, they indicate that the proposed subject of cross-examination might have been: (1) claimed false allegations by the victim of a prior sexual assault; or (2) claimed false statements by the victim to her father regarding a previous investigation of a prior alleged sexual assault.11 In this court, the defendant also argued that he sought to pursue this line of questioning in order to demonstrate that the victim had lied to a constancy of accusation witness about the existence of a serious felony investigation, without revealing that the investigation had involved a sexual assault charge. We conclude that the trial court acted within its discretion in disallowing this line of questioning on any of these theories of relevance.

Insofar as the defendant sought to cross-examine the victim and her father regarding an alleged prior sexual assault and its investigation, the trial court was bound, in the exercise of its discretion, by our rape shield statute. Section 54-86f limits the admissibility of evidence of a victim’s prior allegations of sexual assault. See State v. Kulmac, 230 Conn. 43, 50-56, 644 A.2d 887 (1994); State v. Barrett, 43 Conn. App. 667, 671-73, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997); State v. Manini, 38 Conn. App. 100, 106-108, 659 A.2d 196 (1995), cert. denied, 234 Conn. 920, 661 A.2d 99 (1995). Under § 54-86f (4), such evidence is admissible if it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.”

The defendant bears the burden of establishing the relevance of the proffered testimony. In order to get such evidence before the jury, he must make a showing that, in fact, the prior complaint was: (1) made by the victim; and (2) false. State v. Kelley, supra, 229 Conn. 563; State v. Kelly, 208 Conn. 365, 377, 545 A.2d 1048 (1988); State v. Stevenson, 43 Conn. App. 680, 694-95, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997); State v. Barrett, supra, 43 Conn. App. 674; State v. Manini, supra, 38 Conn. App. 114-15. Even if the defendant succeeds in establishing the relevance of the prior false allegation of sexual assault, however, the trial court still may exclude the evidence if its probative value is outweighed by such factors as time, confusion or prejudice.12 State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); see State v. Kindrick, 30 Conn. App. 56, 59-60, 619 A.2d 1 (1993) (evidence admissible under § 54-86f [4] only if its probative value outweighs its prejudicial effect).

In order to carry his threshold burden of establishing relevance, a defendant must make an “offer of proof as a prerequisite to obtaining an evidentiary hearing to determine the admissibility of evidence . . . ,”13 State v. Manini, supra, 38 Conn. App. 114. The preliminary showing must be sufficient to demonstrate that “the evidence sought to be explored in the evidentiary hearing is relevant . . . [and] to enable the trial court to make an informed ruling in connection with the exercise of its discretion on the issue.” Id.

In this case, the defendant failed to make an adequate preliminary showing to justify cross-examining the victim and her father about claimed allegations of an alleged prior sexual assault and its investigation.14 To satisfy his burden of showing relevance, the defendant submitted to the trial court a motion in limine requesting permission to cross-examine the victim and her father in the presence of the jury. The defendant’s offer of proof was, on its face, deficient in various respects. First, the defendant’s offer of proof did not allege facts that would support a finding either that the prior allegation of sexual assault had been made by the victim or that the prior accusation was false. The offer of proof contained no statement that the victim was the source of her father’s belief that she had been sexually assaulted in 1990. Furthermore, as a factual basis for the claim of falsity, the offer of proof represented only that the Worcester police had found no record of such a complaint. Without a further statement by a member of the Worcester police, the offer of proof provided the trial court no basis for determining whether the absence of such a record indicated that the victim had made no such complaint. Furthermore, even if we assume, arguendo, that no investigation had occurred, the trial court reasonably could reject the inference that the victim had not been sexually assaulted at an earlier time. Thus, the defendant’s assertions in his offer of proof were too speculative to require a determination that the victim had made prior false statements to her father regarding a previous sexual assault.

For many of the same reasons, the trial court also acted within its discretion in disallowing cross-examination of the victim’s father to demonstrate that the victim had made false statements to a constancy of accusation witness about the existence of a prior sexual assault investigation.15 Again, the defendant’s offer of proof did not allege facts that, if proven, would have demonstrated relevance. As stated previously, the offer of proof did not contain facts indicating that the victim was the source of her father’s belief that there had been such an investigation. Furthermore, the offer of proof stated merely that the Worcester police had no record of such an investigation at the time of trial, not that the victim never had made such a complaint.

Even if the facts that were offered indicated that the victim had lied to her father about the existence of a prior sexual assault investigation, the trial court reasonably could have concluded that the victim’s prior false statement was of limited probative value in assessing her credibility in this case. Even if we were to assume, arguendo, that the rape shield statute did not bar the proffered evidence, the trial court acted within its discretion in excluding the evidence under the general evidentiary rules governing impeachment by prior misconduct. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.22.2, pp. 204-205. The trial court reasonably could have concluded that the claimed events were remote in time, had minimal bearing on the victim’s credibility and would have injected a collateral issue into the trial. See, e.g., State v. James, 211 Conn. 555, 571-72, 560 A.2d 426 (1989). Specifically, the factual circumstances of the prior alleged sexual assault, which may well have been a “date rape,” were far removed from the facts of this case. A victim’s inaccurate statement to her father about whether she had reported a “date rape” to the police is not necessarily probative of whether that same victim would lie under oath about a sexual assault by a police officer. See, e.g., United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir. 1988); Hughes v. Raines, 641 F.2d 790, 793 (9th Cir. 1981); see also D. Johnson, “Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus?,” 7 Yale J.L. & Feminism 243 (1995).

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995); see also State v. Kelley, supra, 229 Conn. 563. Accordingly, in light of the insufficiency of the defendant’s offer of proof to support his claim with respect to the relevancy of the proffered evidence, the trial court did not abuse its discretion in disallowing this line of questioning, and the Appellate Court properly affirmed the judgment of the trial court.

The judgment of the Appellate Court is affirmed.

In this opinion BORDEN and PALMER, Js., concurred.

1 General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

2 The sole issue presented to the Appellate Court was: “Whether the trial court abused its discretion in excluding evidence that the victim falsely claimed to have initiated other police investigations of rape?”

3 The question that we certified did not include any issue of constitutional law. The defendant’s petition for certification did not raise any issue of constitutional law. The petition stated the question to be “the interplay between the rape shield law and the constancy of accusation doctrine.” Although the petition alluded to the constitutional caveat contained in General Statutes § 54-86f (4), the petition characterized the issue as pertaining to “the relevancy of prior false statements.”

4 General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

5 As we noted in Troupe, the assumption that it is “natural” for victims to report that they have been sexually assaulted has been largely discredited by modern research indicating that victims may not tell others about a sexual assault owing to feelings of shame or fear of public embarrassment. State v. Troupe, supra, 237 Conn. 295.

6 At no point in these proceedings has the defendant claimed that the provisions of our state constitution afford him rights greater than those arising under the federal constitution.

7 The defendant has not briefed a claim that the trial court’s ruling violated his constitutional rights under either the United States or the Connecticut constitution. He claims only that the trial court abused its discretion in excluding the proffered testimony. Accordingly, we analyze this claim as an evidentiary issue within the discretion of the trial court, albeit one controlled by a statutory exception incorporating constitutional standards. General Statutes § 54-86f (4).

8 Justice Berdon’s dissenting opinion points to law from other jurisdictions to argue that a victim’s prior false allegations of sexual assault may not be covered by our rape shield statute. It is at least doubtful that an allegation by a defendant that a victim’s prior claim was false would be sufficient to circumvent § 54-861'. Such a rule could eviscerate the prophylactic function of our rape shield statute. In any event, this controversial issue has not been raised by the defendant in this case, who argues only that the rape shield statute would not cover prior statements about whether the police had initiated a previous sexual assault investigation.

9 The defendant’s motion in limine provided: “Now comes the defendant in the above-entitled matter and moves that this Honorable Court allow defense counsel to cross-examin[e] the complaining victim and her father with respect to a prior allegation of rape . . . which the father claims was under investigation by the Worcester Police Department Discussions with members of the Worcester Sexual Assault unit disclosed that this was never [a] complain[t] made by [the victim] with respect to another rape. This evidence is relevant and material to the impeachment of [the victim] and [her father’s] credibility.”

10 Defense counsel stated to the trial court that he had submitted: “[A] motion in limine with respect to my cross-examining both the alleged victim in this particular case and also her father with respect to prior rape allegations in a statement that was given to the Connecticut State Police by [the victim’s father], ... He alleges that [the victim] had been raped in the past by a young man who was working for Rob Roy’s, which is a hair salon in Worcester, and that that particular matter was brought to the attention of the Worcester Police Department and that particular incident was under investigation by the Worcester Police. We have had contact with the Worcester Police. I believe it was Lieutenant [William P.] O’Connor who heads the sexual assault unit in Worcester and there was no investigation. There was no report of a rape in this particular case by [the victim], Your Honor. And we would seek to cross-examine on that matter because it goes to the credibility of both [the victim] and also [her father].”

11 To the extent that the defendant’s offer of proof was intended to give the defendant greater latitude to cross-examine the victim herself, that claim does not involve the constancy of accusation doctrine. The victim’s father is the only person whose cross-examination is at issue with respect to impeachment of a constancy of accusation witness.

12 For example, a trial court might act within its discretion to exclude evidence of even a demonstrably false prior allegation of sexual assault if the circumstances of the victim’s earlier accusation were so different from the case at bar that the prejudicial effect of the prior incident would outweigh its probative value. See, e.g., United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir. 1988) (circumstances of two cases were so dissimilar that even if victim had lied about first case, probative value of that fact was slight); Hughes v. Raines, 641 F.2d 790, 793 (9th Cir. 1981) (aside from fact that proffer was insufficient to demonstrate falsity, prior sexual assault allegation had involved date rape and current case was stranger rape). Because the defendant’s proffer in this case was too weak to establish even relevance, as discussed later in this opinion, we are not required to engage in this balancing here.

13 General Statutes § 54-86f provides in relevant part: “Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court, may order such hearing held in camera .... If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. . . .”

14 The defendant argued in his brief to this court that the trial court abused its discretion in failing to order an evidentiary hearing to determine whether the evidence was admissible. As discussed subsequently, however, defense counsel did not request such a hearing at trial. In this court, the defendant also claimed that the trial court should have ordered an evidentiary hearing sua sponte, even in the absence of a request by defense counsel. The defendant, however, cited no cases to support his claim that the trial court had an affirmative duty to order an evidentiary hearing sua sponte. As discussed previously in footnote 3 of this opinion, the certified question presents only an evidentiary question, not a constitutional claim. In such circumstances, “we are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997); see also State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991).

Contrary to the assertion of Justice Berdon in his dissenting opinion, we are not holding that the defendant was required to move for an evidentiary hearing in order to bolster this presentation. Moreover, the defendant’s election not to move for such a hearing did not deprive the trial court of its ability to order such a hearing sua sponte. Had the trial court found the defendant’s offer of proof persuasive, it would have been within its discretion in ordering such a hearing.

We reject, however, the defendant’s claim, in passing, that the court was obligated, sua sponte, to hold such a hearing. We have held that a trial court may abuse its discretion if it fails to inquire into charges of juror misconduct. State v. Brown, 235 Conn. 502, 521, 668 A.2d 1288 (1995). Similarly, the trial court is obligated to inquire whether the defendant is making a knowing and voluntary waiver of certain fundamental constitutional trial rights. See State v. Frye, 224 Conn. 253, 262, 617 A.2d 1382 (1992) (right to represent oneself); State v. Williams, 205 Conn. 456, 461, 534 A.2d 230 (1987) (right to trial by jury); State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987) (right to conflict-free representation). A trial court’s duty of independent inquiry, however, arises in situations implicating the fundamental fairness of the proceedings and the defendant’s core constitutional trial rights. We never have held that a trial court has an independent obligation to order, sua sponte, a hearing on an evidentiary matter, in the absence of both a request for a hearing and an adequate offer of proof.

Finally, we disagree with the suggestion in Justice McDonald’s dissenting opinion that § 54-86f, which was not cited to the trial court, requires such a sua sponte hearing in this case. We never have held so. The issue now before us does not raise any question about the manner in which the hearing should have been conducted, if the defendant had made a proper request for one.

15 In this court, the defendant claimed that he had sought to pursue this line of questioning in order to demonstrate that the victim had lied about the existence of a serious felony investigation, without necessarily revealing that the alleged investigation had involved a sexual assault charge. The defendant’s written and oral submissions to the trial court, however, do not present this alternative. Thus, we do not consider whether the trial court would have abused its discretion in disallowing this line of questioning.