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State v. Moye

Supreme Court of Connecticut

February 27, 1990

STATE of Connecticut
Thelbert E. MOYE.

Argued Dec. 12, 1989.

Page 210

[214 Conn. 90] Donald D. Dakers, Public Defender, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Elpedio Vitale, Asst. State's Atty., for appellee (state).


CALLAHAN, Associate Justice.

The defendant, Thelbert E. Moye, was charged in a substitute information with sexual assault in the first degree and kidnapping in the first degree. He was convicted, by a jury, of sexual assault in the [214 Conn. 91] third degree in violation of General Statutes § 53a-72a [1] and of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A). [2] The trial court sentenced him to an effective term of imprisonment of twelve years, execution suspended after three years, and five years of probation. The defendant appealed, claiming that the trial court erred when it restricted the scope of the defendant's cross-examination of the victim. We find no error.

The victim testified to the following. While she was walking home on Grand Avenue in New Haven on the evening of January 13, 1988, she noticed that she was being followed by a man, whom she later identified as the defendant. The defendant grabbed her from behind and forced her to a secluded area. There she struggled to escape, but the defendant slapped her, threatened to beat her and ripped her clothing. The defendant also told the victim that he had a gun and that he would shoot her, if necessary. He then knocked her to the ground, pulled off her pants and had sexual intercourse with her.

Later, intent on leaving the area and fearful that the defendant might kill her, the victim coaxed him into accompanying her back to her apartment. On the way, [214 Conn. 92] she told the defendant that she wanted to

Page 211

stop at a local bar for a drink. When she entered the bar, she found a friend in whom she confided that the defendant had attempted to rape her. Her friend immediately reported the incident to police officers who happened to be parked outside. By the time the victim went outside and gave a description of her assailant to the police, however, the defendant had fled the immediate vicinity. The victim then rode about the neighborhood in the police car to search for her assailant. When she saw him and identified him to the officers, he was apprehended and arrested.

The victim also testified that when she gave her initial statements to the police, because she was too embarrassed, she never told them that the defendant actually had sexual intercourse with her. The day after the incident, however, she told a friend that she had indeed been raped. The victim never sought medical care nor was she physically injured by the defendant.

The following facts are pertinent to the defendant's claim on appeal. On August 10, 1988, the state served on the victim a subpoena requiring her to appear and testify at a pretrial hearing. When she failed to appear, the trial court granted the state's request to issue a capias. The victim was subsequently arrested, pursuant to the capias, detained and brought to court to testify at the pretrial hearing.

At trial, the defendant attempted to cross-examine the victim concerning her failure both to respond to the subpoena and to appear at the pretrial hearing. When the state objected to this line of questioning, defense counsel claimed that the victim's failure to appear in court, after a subpoena had been issued requiring her to do so, affected her credibility because it showed that she was afraid she might perjure herself. The trial court sustained the objection on the [214 Conn. 93] ground that the victim's failure to respond to a subpoena was not relevant to her credibility and therefore was not admissible evidence. [3]

On appeal, the defendant asserts that the trial court erred by prohibiting him from cross-examining the victim concerning: (1) her reluctance to respond to a subpoena and to testify; and (2) her arrest pursuant to a capias and her detention until she testified at the pretrial hearing. As to his first claim, the defendant argues that the trial court: (1) impermissibly restricted his constitutionally guaranteed right of confrontation; [4] and [214 Conn. 94] (2) abused its discretion

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when it ruled that the proffered evidence was irrelevant to the victim's credibility. We disagree.

The confrontation clause gives the accused the right "to be confronted with the witnesses against him." U.S. Const., amend. VI. " 'Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.' State v. Wilson,188 Conn. 715, 720, 453 A.2d 765 (1982)." State v. Oehman, 212 Conn. 325, 330, 562 A.2d 493 (1989); State v. Milum, 197 Conn. 602, 609, 500 A.2d 555 (1985); State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985). The confrontation right, however, is not absolute and is subject to reasonable limitation. State v. Vitale, supra, 197 Conn. at 401, 497 A.2d 956. " '[T]he Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." ' Kentucky v. Stincer, 482 U.S. 730, 739 [107 S.Ct. 2658, 2664, 96 L.Ed.2d 631] (1987), quoting [Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) ] (emphasis added); Delaware v. Van Arsdall, 475 U.S. 673, 679 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674] (1986); Ohio v. Roberts, 448 U.S. 56, 73 n. 12 [100 S.Ct. 2531, 2543 n. 12, 65 L.Ed.2d 597] (1980)." United States v. Owens, ...

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