State v. Cassidy

BORDEN, Judge.

The defendant was tried by a jury on an information charging him with one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95, four counts of sexual assault in the first degree in violation of General Statutes § 53a-70, and one count of assault in the third degree in violation of General Statutes § 53a-61(a)(1). The trial court submitted to the jury only three counts of sexual assault in the first degree, along with the counts of first degree unlawful restraint and third degree assault. He was convicted of two counts of sexual assault in the first degree, and of the single counts of unlawful restraint in the first degree and assault in the third degree, but acquitted of one count of sexual assault in the first degree. The defendant appealed, claiming that the court erred in altering the information, in denying his motions for judgment of acquittal and for a new trial, and in partially denying his motion to offer evidence of prior sexual conduct of the victim. We find no error.

The information arose out of an incident occurring on February 20, 1983. The jury could reasonably have found the following facts: The victim had previously been acquainted with the defendant, with whom she had engaged in sexual relations one or two times prior to the evening in question. Early in the morning hours of February 20, 1983, the victim went to a bar with a friend, where she saw the defendant. She accompanied him and some of his friends to an after-hours bar. They stayed there briefly and then went to the defendant's house. The victim went upstairs to the defendant's bedroom, undressed and got into the bed. She was, at that point, willing to have sexual relations with him.

At this stage in the events, the victim's and the defendant's recollections diverge. The
victim recounted as follows: After she was in the bed, the defendant, who was undressed, yelled, “[l]ady you came here to get fucked and that's exactly what you are going to get. I'm going to fuck you until you can't stand up.” He then lunged at her and forced her to submit to vaginal intercourse. She attempted to leave the room but the defendant grabbed her, turned her around, punched her in the mouth and threw her on the bed on her stomach. After he tied her arms behind her, gagged her, and forced her head down into the bedding, the defendant forcibly performed anal intercourse on her. He then offered to untie and ungag her if she would do everything he said. She assented because she did not want to be hit anymore. After untying her wrists and taking the gag out of her mouth, the defendant again forcibly had vaginal intercourse with her and forced her to perform oral sex with him. Throughout the incident, the defendant called her obscene names and, in her estimation, acted “[l]ike a crazy person.” The defendant then told her that she had two seconds to put her clothes on and leave or he would kill her. She quickly put on some of her clothes; the defendant got her coat and, pushing her out the door, said he never wanted to see her again and threatened to kill her if she called the police. She left the house and, after unsuccessfully attempting to get neighbors' help, flagged down a car which happened to be driven by a police officer. He took her to the police station. She was later taken to a hospital and treated for injuries.


The defendant's account was as follows: After the victim got into the bed, the defendant, still clothed, got into the bed with her. She proceeded to undress him and had oral sex with him; he then performed oral sex with her. She laid on her back and they had vaginal intercourse. She then asked if she could tie him up. He said no but asked if she would like to be tied up. She consented, and he tied her hands loosely in front of her with her stockings. They had vaginal and anal intercourse while the complainant's hands were tied. Then, after resuming vaginal intercourse, the complainant's “whole attitude changed ... like she didn't consent to what we were doing.” She started getting hysterical, screaming about her husband who was killed in Vietnam. She said she “shouldn't be doing this,” and that she wanted to die and wanted to be with her husband. She untied her hands and started swinging at the defendant. He tried to get her off of him and slapped her. She fell onto the bed. The defendant got up, told the victim to put her clothes on and get out of his house, and went into the bathroom. When he returned to the bedroom, she was gone.

I

The defendant's principal claim on appeal arises from the exclusion of certain evidence by the trial court. Prior to trial, the defendant moved, pursuant to General Statutes § 54-86f, [Footnote 1] to offer evidence of the complainant's prior sexual conduct. The court permitted evidence of the prior sexual conduct between the defendant and the complainant but refused to admit evidence of a sexual encounter between the victim and another man, who testified in the absence of the jury as part of the defendant's offer of proof. This testimony was to the effect that she and he had gone to her home together about a year before the night in question. They had sexual relations, during which she began “going crazy” and screaming about her husband who was killed in Vietnam. The witness told her to forget about it and went to sleep. Nothing eventful happened for the rest of the night. The next morning she showed him pictures of her husband.


=====FOOTNOTE 1=====

General Statutes § 54-86f, as amended by Public Acts 1983, No. 83-113, provides as follows: “ADMISSIBILITY OF EVIDENCE OF PRIOR SEXUAL CONDUCT. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the prior 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 prior sexual conduct, or (3) evidence of prior 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.”

=====Footnote End=====

The trial court excluded this testimony in the absence of an offer of proof by the defendant that the victim made a prior false complaint of sexual assault. The defendant argues that the evidence should have been admitted to show a pattern of conduct by the victim, and because it was highly relevant, probative and essential to the defense. He claims that applying the statute in this case violated his constitutional rights of confrontation and to present witnesses in his own behalf. We disagree.

Statutes such as General Statutes § 54-86f, commonly known as rape shield statutes, have been 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. . . . Our legislature has determined that, except in specific instances, and taking the defendant's constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim's sexual privacy and shielding her from undue harrassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. The state's interests are substantial, but cannot by themselves outweigh the defendant's competing constitutional interests. . . .

Under General Statutes § 54-86f, which has not been previously interpreted, evidence of the victim's prior sexual conduct is inadmissible unless the trial court determines from an offer of proof at a hearing that it fits into one of the statute's exceptions. The defendant's argument focuses on exception (4) of § 54-86f, which permits evidence of prior sexual conduct if it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights.”

This statute directs the court to examine the defendant's constitutional rights, implicating both his sixth amendment right to confront witnesses and his fourteenth amendment due process right to call witnesses on his own behalf. . . . The record does not make clear that the defendant sought to introduce this evidence for the purpose of cross-examining the victim, but it was implicitly suggested that, if it were allowed, the defendant would have used it in cross-examination of her. This suggestion, combined with the broad mandate of the statute to analyze the defendant's constitutional rights, causes us to consider the defendant's claim that his confrontational right was violated, although that claim was not distinctly raised at trial.

The court, in this case, was correct in noting that, unless the proffered testimony was to show that the victim previously made a false claim of sexual assault following the claimed similar, consensual sexual conduct, the evidence should be excluded. The relevant conduct was that between the defendant and the victim. Unless she had raised a false claim before, her conduct with another man had no bearing on her conduct with this defendant or on the credibility of her testimony in this case.

The defendant claims he had a right to present this evidence because it established a pattern of conduct by the victim, and it supported his defense of consent by showing another instance where the victim became irascible during a consensual sexual encounter.

“As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. ‘ “ ‘One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.’ ” ' . . . The fact that about one year before the alleged assault occurred, the victim began a sexual episode with another man, became upset and changed her mind because of her feelings about her dead husband, does not tend to establish that, on this night, the victim became hysterical about her husband, screamed that she wanted to die and be with her dead husband, and struck the defendant. Particularly since there was also evidence of more recent nights which the defendant and the victim had spent together with no similar behavior by her, the defendant's version would not have been made more probable by this evidence.

One cannot logically infer that the victim acted in the manner described by the defendant simply because of a somewhat similar incident one year beforehand. . . The evidence, therefore, was legally irrelevant and was properly excluded without denying the defendant his constitutional rights.

Moreover, one similar instance is not sufficient to prove a pattern of conduct. . . Even in states which expressly permit evidence of prior sexual conduct to establish a pattern of conduct, evidence of one sexual encounter is not enough to do so. . . Commentators who advocate allowing evidence of patterns of similar behavior to establish a defense also suggest that “[a] single past act is not probative of present acts; only related patterns of behavior should be admissible.” . . . No other instances of similar conduct were offered; the instances of prior sexual conduct between the defendant and the victim showed no pattern of the same type of behavior. The evidence was properly excluded, therefore, as insufficient to provide a basis for the inference that the victim acted as claimed by the defendant.

In holding that this single past instance of the victim's sexual conduct was properly excluded, we do not suggest that such evidence is never relevant or admissible. To be admissible, however, such evidence must fulfill the requirements of the statute within the context of the facts and circumstances of the case in which it arises. . . The evidence sought to be introduced in this case did not meet those requirements. [Footnote 4]


=====FOOTNOTE 4=====

Before admitting evidence of prior sexual conduct, which otherwise meets the requirements of one of the statutory exceptions, General Statutes § 54-86f also requires balancing the probative value of the evidence with its prejudicial potential. We find this balancing test inapplicable to evidence fulfilling the requirements of subsection (4) because, if the defendant's constitutional rights would be violated by the exclusion of the evidence, no amount of prejudice to the victim could require its exclusion.

=====Footnote End=====

There is no error.