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State v. Wright

Supreme Court of Connecticut

April 19, 2016

STATE OF CONNECTICUT
v.
CHYWON WRIGHT

         Argued February 10, 2015.

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          Substitute information charging the defendant with two counts of the crime of aggravated sexual assault in the first degree and one count each of the crimes of conspiracy to commit aggravated sexual assault in the first degree, kidnapping in the first degree, conspiracy to commit kidnapping in the first degree, assault in the third degree, and conspiracy to commit assault in the third degree, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Cremins, J.; verdict and judgment of guilty of two counts of aggravated sexual assault in the first degree and one count each of conspiracy to commit aggravated sexual assault in the first degree, conspiracy to commit kidnapping in the first degree, assault in the third degree, and conspiracy to commit assault in the third degree, from which the defendant appealed to the Appellate Court, Beach, Bear and Sheldon, Js., which reversed in part the trial court's judgment and remanded the case to that court with direction to vacate the judgment with respect to two of the conspiracy counts and to resentence the defendant accordingly, and the state and the defendant, on the granting of certification, filed separate appeals with this court.

          SYLLABUS

         Pursuant to the rape shield statute (§ 54-86f [4]), although, in a prosecution for sexual assault, evidence of a victim's sexual conduct is generally inadmissible, such evidence is admissible when 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 was convicted of the crimes of aggravated sexual assault in the first degree, conspiracy to commit aggravated sexual assault in the first degree, conspiracy to commit kidnapping in the first degree, assault in the third degree, and conspiracy to commit assault in the third degree in connection with an incident in which the victim, over the course of hours, was allegedly assaulted and compelled to have sex with multiple persons. The victim had agreed to have sex with F, one of the defendant's fellow gang members, and another person for money. The victim went to an apartment where she consensually engaged in sexual activities with F and the other person. After those activities concluded at the first apartment, F stated that he did not have the money that he owed the victim but that it was at another nearby apartment. The victim accompanied F to the second apartment for the purpose of retrieving the money that she was owed. After the victim entered the second apartment, someone immediately locked the door behind her, after which the victim was repeatedly assaulted and forced to engage in sexual activities with several persons, including the defendant. The defendant appealed to the Appellate Court, claiming that the trial court improperly had precluded the defense from introducing certain evidence at trial regarding the victim's prior sexual conduct, thereby violating the defendant's constitutional rights of confrontation and to present a defense. The defendant also claimed that his sentence on all three conspiracy counts violated the double jeopardy clause of the United States constitution insofar as those counts were based on a single agreement with multiple criminal objectives. The Appellate Court rejected the defendant's evidentiary claim, concluding that, although the trial court first precluded the defense from introducing such evidence, it later allowed it to present that evidence to the jury. The Appellate Court agreed, however, with the defendant's double jeopardy claim and concluded that the proper remedy for such a violation was to remand the case to the trial court with direction to vacate the judgment as to two of the three conspiracy counts, to render judgment of conviction on one of the conspiracy counts, and to resentence the defendant. The Appellate Court affirmed the defendant's conviction of the crimes of aggravated sexual assault in the first degree and assault in the third degree. On the granting of certification, the defendant and the state filed separate appeals with this court. Held :

         1. This court concluded, in light of the text and legislative history of § 54-86f, that it incorrectly had construed, in State v. DeJesus (270 Conn. 826, 856 A.2d 345), the term " material" in § 54-86f (4) in the constitutional rather than the evidentiary sense, and it overruled DeJesus insofar as that case held that evidence is material for purposes of § 54-86f (4) only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been presented at trial, and insofar as that case held that a court's exclusion of evidence properly admissible under § 54-86f (4) requires reversal with no additional evaluation of harm; contrary to this court's holding in DeJesus, the legislature intended that the term " material" in § 54-86f (4) be construed to describe evidence that has an influence, effect, or bearing on a fact in dispute at trial.

         2. Contrary to the Appellate Court's conclusion, the trial court, by virtue of its application of § 54-86f, limited the defense from questioning the victim in the presence of the jury about certain of the victim's prior sexual conduct, including the victim's alleged offer to F to have sex with multiple men, for multiple hours, in return for money, and the victim's act of engaging in consensual sex with F and the other person at the first apartment for money; moreover, because that evidence was relevant and material to critical issues in the case, namely, the victim's actual consent and the defendant's reasonable belief regarding the victim's consent, because the exclusion of such evidence violated the defendant's constitutional right to present a defense insofar as defense counsel was precluded from presenting the theory that that the victim's sexual conduct at both the first and second apartments was part of a single, continuous, sex-for-hire transaction, and because the exclusion of the evidence violated the defendant's right of confrontation insofar as defense counsel was precluded from exploring whether the victim had a motive to fabricate her allegations of sexual assault because she never was paid for the consensual encounter with F and the other person, the trial court abused its discretion in excluding this evidence under § 54-86f (4); however, the trial court's error was harmless beyond a reasonable doubt, as the defense had available to it other means of directly testing the victim's credibility, testimony from multiple witnesses refuted the existence of an agreement on the part of the victim to engage in prostitution at the second apartment, the victim's testimony was largely uncontradicted and supported by the testimony of the defendant's confederates, the defendant's statement to the police indicated that his sexual contact with the victim was not consensual, and the defense was not entirely precluded from exploring whether the victim had consented to an act of prostitution.

         3. The Appellate Court correctly concluded that, pursuant to this court's decision in State v. Polanco (308 Conn. 242, 61 A.3d 1084), the defendant's conviction on three counts of conspiracy arising from a single agreement with multiple criminal objectives constituted a violation of the double jeopardy clause of the federal constitution and that the appropriate remedy for such a violation was to remand the case to the trial court with direction to vacate the defendant's conviction on two of the three counts of conspiracy, to render judgment of conviction on one of the conspiracy counts, and to resentence the defendant on that one conspiracy count.

          State v. DeJesus (270 Conn. 826, 856 A.2d 345), to the extent that it held that evidence is material for purposes of § 54-86f (4) only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been presented at trial, and to the extent that it held that a court's exclusion of evidence properly admissible under § 54-86f (4) requires reversal with no additional evaluation of harm, overruled.

         Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, David A. Gulick, senior assistant state's attorney, and Rocco A. Chiarenza, assistant state's attorney, for the appellant in Docket No. SC 19233 and the appellee in Docket No. SC 19234 (state).

         Annacarina Jacob, senior assistant public defender, for the appellee in Docket No. SC 19233 and the appellant in Docket No. SC 19234 (defendant).

         Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js. ZARELLA, J. In this opinion ROGERS, C. J., and PALMER, McDONALD, ROBINSON and VERTEFEUILLE, Js., concurred. ESPINOSA, J., concurring.

         OPINION BY: ZARELLA

          OPINION

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         [320 Conn. 784] ZARELLA, J.

         The defendant in these certified appeals, Chywon Wright, was convicted of various crimes stemming from his involvement in a sexual assault that occurred on November 1, 2008. On that date, " the victim[1] accompanied Bryan Fuller, a member of a street gang, to a vacant second floor apartment at 19 Taylor Street in [the city of] Waterbury. The victim went to the apartment expecting Fuller to pay her $250. Fuller's fellow gang members, including the defendant, were present at the

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apartment. Inside the apartment, several of the gang members, including the defendant, took turns openhandedly hitting the victim on her breasts, buttocks and vagina, and engaged in oral intercourse with the victim for approximately one-half hour.

          [320 Conn. 785] " The victim was then moved to a second room. In this room, the defendant engaged in oral intercourse with the victim and vaginally penetrated the victim while wearing a black plastic convenience store bag on his penis. Also, in that room, several of the defendant's fellow gang members engaged in oral, vaginal and anal intercourse with the victim. These events lasted for approximately one and one-half hours. Eventually, the victim left the apartment, wearing her clothes but leaving her shoes, cell phone and purse behind. Shortly thereafter, the victim went to Saint Mary's Hospital in Waterbury, where she reported the sexual assault and the medical staff [examined her and utilized] a sexual assault evidence collection kit . . . ." (Footnote added.) State v. Wright, 144 Conn.App. 731, 733-34, 73 A.3d 828 (2013).

         Subsequently, the defendant was charged with, and found guilty of, two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (4) and one count each of conspiracy to commit aggravated sexual assault in the first degree in violation of General Statutes § § 53a-70a (a) (4) and 53a-48 (a), conspiracy to commit kidnapping in the first degree in violation of General Statutes § § 53a-92 (a) (2) (A) and 53a-48 (a), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and conspiracy to commit assault in the third degree in violation of § § 53a-61 (a) (1) and 53a-48 (a).[2] The trial court, Cremins, J., rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty years of incarceration and ten years of special parole.

         The defendant appealed to the Appellate Court from the trial court's judgment, claiming, first, that the trial [320 Conn. 786] court improperly had precluded him from introducing certain evidence of the victim's prior sexual conduct, thereby violating his constitutional rights of confrontation and to present a defense. Id., 735-36. Second, the defendant claimed that his sentence on all three conspiracy counts, which were based on a single agreement with multiple criminal objectives, violated the double jeopardy clause of the federal constitution. Id., 745. The Appellate Court rejected the defendant's first claim, concluding that " [t]he record demonstrates that although the [trial] court initially precluded the [defense] from presenting evidence as to the victim's prior sexual conduct, it later allowed the [defense] to present such evidence to the jury." Id., 744-45. The Appellate Court did agree, however, with the defendant's double jeopardy claim. See id., 747. The Appellate Court further concluded that, under State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), the proper remedy for such violation was to remand the case to the trial court with direction to vacate the judgment as to two of the conspiracy counts, to render judgment on one of the conspiracy counts, and to resentence the defendant accordingly. State v. Wright, supra, 144 Conn.App. 748-49. The defendant and state each appealed from the Appellate Court's judgment, and we granted certification in both appeals. The defendant claims that the Appellate Court incorrectly concluded that the trial court

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had appropriately limited, under General Statutes § 54-86f,[3] his ability to present evidence of the victim's prior sexual conduct. In its appeal, the state argues that the Appellate Court incorrectly concluded that vacatur was the appropriate remedy for the double jeopardy [320 Conn. 787] violation stemming from the sentence for the defendant's conviction on the three conspiracy counts. After oral argument, we ordered supplemental briefing in the defendant's appeal. The parties were asked to brief (1) whether State v. DeJesus, 270 Conn. 826, 856 A.2d 345 (2004), should be overruled to the extent that it construed the term " material," as used in § 54-86f (4), to refer to material in the constitutional sense rather than the evidentiary sense, (2) if the first question is answered in the affirmative, whether the trial court improperly excluded the challenged evidence, and, if so, whether such error is subject to harmless error analysis, and (3) if questions one and two are answered in the affirmative, whether the exclusion of the challenged evidence was harmless beyond a reasonable doubt. Additional facts and procedural history will be set forth as necessary.

         I

         We first address the defendant's argument that the trial court violated his constitutional rights of confrontation and to present a defense through its application of § 54-86f. The defendant contends that the trial court's application of § 54-86f, the rape shield statute, improperly precluded defense counsel from questioning the victim in the presence of the jury about certain sexual conduct that closely preceded the Taylor Street incident, namely, (1) the victim's offer to Fuller to have sex with multiple men, for multiple hours, for $500, and (2) the victim's act of engaging in consensual oral sex with Fuller and his friend at a different residence on Wolcott Street in Waterbury for the promise of $250. The defendant argues that these lines of inquiry would have supported his defense theory that the Wolcott Street conduct was part of a larger, consensual, sex-for-hire transaction that extended to Taylor Street, and that the victim had fabricated allegations of sexual assault and other crimes after she was not paid for the [320 Conn. 788] transaction. His alternative defense theory was that he reasonably believed that the victim had consented to having sexual relations with him at Taylor Street. Citing State v. DeJesus, supra, 270 Conn. 826, and Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), the defendant maintains that evidence of a victim's prostitution may be relevant and material in a sexual assault case if consent is raised as a defense. Thus, the defendant argues that defense counsel should have received greater latitude in his examination of the victim under the exception to the rape shield statute providing that evidence of the sexual conduct of a victim may be 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." General Statutes § 54-86f (4). In his supplemental brief, the defendant further claims that this court incorrectly concluded in DeJesus that evidence must be material in the constitutional sense to be admissible under § 54-86f (4) and, therefore, should be overruled. Moreover, the defendant avers that the excluded evidence was both relevant

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and material in an evidentiary sense and that its exclusion violated his constitutional rights of confrontation and to present a defense. Finally, the defendant claims that the state cannot demonstrate that such error was harmless beyond a reasonable doubt.

         In response, the state argues that defense counsel was allowed to question the victim about the two aforementioned prostitution related topics and thus was not actually restricted from developing either of the defense theories of consent.[4] In its supplemental brief, the state agrees with the defendant that DeJesus should be overruled [320 Conn. 789] insofar as this court held that the term " material," in the context of § 54-86f (4), means material in the constitutional sense. Nevertheless, the state maintains that the trial court allowed defense counsel to question the victim and others regarding the $250 payment and the offer to engage in sexual activities for $500, and, thus, the court reasonably exercised its discretion and upheld the defendant's constitutional rights. The state also claims that, even if the trial court improperly excluded the evidence, such error was harmless beyond a reasonable doubt.

         A

         The record reveals the following additional facts and procedural history that are relevant to the resolution of this claim. On the first day of trial, the state commenced its case by calling the victim as a witness. The victim testified before the jury to the following facts: On November 1, 2008, she went into a second floor apartment on Taylor Street because Fuller owed her money and told her that it was inside. After she entered the apartment, someone immediately locked the door behind her. The defendant and his fellow gang members crowded around the victim, yelled curses at her, yanked at her clothes, and took turns openhandedly hitting her breasts, buttocks, and vagina. The victim was frightened and scared of being hurt, and complied with an order from Elizer Gibbs, who was the gang's ringleader, to remove her clothes and to get on her knees. The defendant then made the victim perform oral sex on him. Five or six of the defendant's fellow gang members similarly forced the victim to have oral sex with them.

         The victim later went into a different room where Gibbs urinated on her face and body. The defendant then took a plastic bag from the floor, covered his penis with it, and vaginally penetrated the victim. The victim explained that this felt as though " there [were] a thousand [320 Conn. 790] knives in [her] vagina." Other gang members thereafter took turns having compelled oral, vaginal, and anal sex with the victim. They also penetrated the victim with sex toys that they found in her purse. The gang members tried to convince a nearby woman, Yamile Rivera, to partake in penetrating the victim with the sex toys, but Rivera rebuffed their efforts and instead punched the victim in the face.

         At one point, while the victim was with the gang members, she used her cell phone to call a friend, Catherine Jortner. The victim was allowed to make the call, while being monitored on speakerphone, after she told everyone that " another girl would come up and . . . join the fun . . . ." When no one appeared to be paying attention, the victim told Jortner, " I need help . . . ." One of the gang members noticed

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this cry for help, however, and " took the cell phone and said into it, 'your friend's about to get fucked up,' and then threw the phone against the wall." [5] Eventually, after being forced to engage in additional sexual activities, the victim was allowed to take a cigarette break on a second floor porch. On the porch, someone commented that they could be the victim's " pimp . . . ." Gibbs interrupted the victim's cigarette break by telling her, " get back in the house, we're not done with you yet." Members of the gang resumed forcing the victim to have various forms of sex but complained that her vagina was dry. Someone then inserted a forty ounce beer bottle into the victim's vagina and poured beer inside of her. The victim later saw Fuller in a bathroom and remarked that what had happened " was really messed up," to [320 Conn. 791] which Fuller responded that " it wasn't supposed to go down like that." She explained that she understood that to mean " that his friends got out of control and that they weren't supposed to do that."

         Finally, the victim was able to dress and leave Taylor Street but was in such a hurry to do so that she left her shoes and other personal belongings behind. As the victim walked home, the defendant followed her, asking if she " like[d] what happened in there?" The victim, who was crying, replied, " no," and the defendant proceeded to taunt her by telling male bystanders that she would " get [them] off" for $20. When she arrived home, the victim told three different friends that she had been raped and needed to go to the hospital. The victim went to Saint Mary's Hospital later that night, where she was examined and the police were contacted. The victim's direct examination concluded with her testimony that she never consented to having any form of sex with the defendant, or anyone else, while she was at Taylor Street.

         During cross-examination of the victim,[6] defense counsel attempted to ask her why Fuller owed her money. After the assistant state's attorney (prosecutor) objected to that question on the ground that it was covered by a motion in limine, the trial court excused [320 Conn. 792] the jury from the courtroom. Defense counsel explained that, although he had not filed any response to the state's motion in limine, he was raising consent as a defense and wished to question the victim about certain prior sexual conduct pursuant to § 54-86f (4). Under the circumstances, the trial court determined that it was necessary to hold a rape shield hearing before the jury returned.

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          During the hearing, the victim testified that, prior to going to Taylor Street, she had a conversation with Fuller in which she had offered to have sex with him and three other people for four hours in exchange for $500. The victim further testified that, ultimately, she engaged in sexual activities with Fuller and another person at Wolcott Street for the promise of $250. Fuller did not have any money when those sexual activities concluded, however, and took the victim to Taylor Street. On the way, Fuller explained that there would be three or four other people at Taylor Street, but the victim did not believe that there was a plan for her to have sex with them. After hearing this testimony and arguments from the state and the defense, the trial court determined that there was an insufficient offer of proof to establish the victim's consent to engage in sexual relations with the defendant or the defendant's reasonable belief that such consent had occurred. Consequently, the trial court ruled that questions about the victim's prior sexual conduct at Wolcott Street would be precluded until the defense presented an adequate offer of proof as to consent.

         Later, during the state's case-in-chief, the prosecutor sought to admit a redacted version of the defendant's statement to the police into evidence. After excusing the jury from the courtroom, the trial court reviewed the redacted text. This portion of the text stated that, after Fuller and the victim arrived at Taylor Street, Fuller had pulled the defendant aside to say " that he [320 Conn. 793] told this girl that he was gonna give her some money because he was with her all day, and she was giving him and another boy head all day." The trial court found that this text reflected the defendant's knowledge that the victim was a prostitute and thus implicated the issue of consent. The trial court ruled that, if the prosecutor wanted to admit the defendant's statement to the police into evidence, he needed to do so using a version that was not redacted.

         Once the jury returned, a complete version of the defendant's statement to the police was read into evidence. It included the following admissions: " [A]round Halloween, I was over on Taylor Street . . . chilling with my homies. . . . [We] are all 'Bloods.' . . . While we was there, another guy that is a Blood showed up, he is [Fuller], and he was with [the victim]. . . . Then [Fuller] grabbed me aside and said that he told this girl that he was gonna give her some money because he was with her all day, and she was giving him and another boy head all day. Giving head means getting oral sex. I heard [Fuller] tell this girl that the money he owes her is upstairs on the second floor but I knew he was lying to her because he told me that and I also know that the second floor is a vacant apartment. The girl kept asking him for the money, so we all went up to the second floor . . . . The whole time this was going on the girl thought she was gonna get her money, but [Fuller] was telling all of us that we was gonna fuck this girl. . . . I was the first one to get my dick sucked. [Gibbs] told the girl to suck me first. . . . Then [Gibbs] was telling us all to smack her ass, so we all took turns doing it. The reason we do what [Gibbs] says is because he is a General in the Bloods, which means he is in charge . . . . I know she didn't like us smackin her ass because she told us it hurt and to stop. [Gibbs] told her to shut up and take it. . . .

          [320 Conn. 794] " After some time, I started to fuck this girl from behind. I didn't have a rubber so I used a black plastic bag . . . . Then this girl said she wanted to call a friend . . . to come over. She said that her friend would want to do this too. While she was on her cell phone, [Gibbs] snatched the phone from her and threw it. . . . Then I grabbed the . . . girl and put her

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head on my dick so she would suck it. . . . Then the other guys took turns telling this girl that she better suck their dicks . . . . We kept telling her that she likes it. I could tell at this point that this girl wasn't liking this and she started to look scared. . . . Then [Gibbs] found some [sex toys] in this girl's pocketbook and took them out and started to use them on the girl. . . . Then the girl was on her knees and [Gibbs] told her to open her mouth and, when she opened her mouth, [Gibbs] pissed in her mouth and all over her. . . . [Gibbs] was telling [Rivera] to smack the girl but [Rivera] just punched her in the face. We were all trying to get [Rivera] to mess around with this girl . . . . The . . . girl then said that she was scared and afraid that we was gonna kill her. We was telling her that we ain't gonna kill her but we wanna fuck her. I told her to shut up and put my dick in her mouth, so she did. . . . [W]e wasn't letting her leave until we were done with her. . . . [Later on, someone] put a [forty ounce] bottle of beer in the girl's [vagina]. . . . Then the girl left and walked down the street. A few minutes after she left Taylor Street, I left too. . . . [A]s I walked by her, I asked her if she liked what happened, and she was like, 'no.' I could see she was crying real hard. I didn't say nothing else and just kept walking and I went home."

         Subsequently, the prosecutor called Steven Garrett, one of the defendant's fellow gang members who was present at 19 Taylor Street on November 1, 2008. In large part, Garrett's testimony was consistent with the undisputed facts. In his brief, however, the defendant [320 Conn. 795] claims that " Garrett testified that [the victim] had not been forced to engage in sex" and " consented" to the sexual acts. This characterization of Garrett's testimony is generous. Garrett testified that he personally did not force the victim to have oral sex and that she seemingly " accepted" having sexual relations with others " at first . . . ." Indeed, Garrett disclaimed any knowledge as to whether the defendant had forced the victim to engage in any sexual acts. Garrett also testified that the victim looked afraid after Gibbs urinated on her. While he was in the apartment, Garrett did not think that the victim was free to leave because Gibbs would not have let her. In fact, throughout the course of the sexual assault, Garrett left the apartment at least three times, and, upon returning each time, the apartment door was locked.

         Garrett further testified that, during the victim's cigarette break, he talked to the victim about " pimping" her. Specifically, he said " she don't need to be doing what she's doing at that moment in time to get money when I know people, older guys, that get . . . Social Security [Income] checks . . . that would . . . give more for less." The victim did not respond to Garrett. Later, Garrett took credit for pouring beer into the victim's vagina and laughing about it.

         The prosecutor also called Fuller as a witness, who gave inconsistent testimony regarding what the victim knew prior to and when arriving at Taylor Street. Fuller initially testified that he brought the victim to Taylor Street with assurances that she would be paid after she " [took] care of [his] boys . . . ." Fuller then refreshed his memory with a copy of his statement to the police, however, and repeatedly testified that the victim was unaware that she was being brought to Taylor Street to have sex.[7] Near the

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conclusion of his testimony, [320 Conn. 796] Fuller clarified that there was no preexisting arrangement for the victim to have sex with the gang members at Taylor Street for money; rather, the victim was merely expecting to retrieve a $250 payment there. Without the victim's knowledge, however, Fuller had called ahead to two gang members at Taylor Street and told them that he was bringing the victim over to have sex.[8] In his own words, Fuller's " whole intention [was] for [the victim] to go there and [to] have sex with them," and he " set the whole thing up without her know[ledge] [of that intention] . . . ." Fuller testified that, following the victim's arrival at Taylor Street, she was forced to give the defendant oral sex at Gibbs' urging.[9] According to Fuller, Gibbs was swearing and angrily saying things like " give them head, have sex with us or you're not going nowhere." Fuller verified that the victim was urinated on, penetrated with a plastic bag, and penetrated with a forty ounce beer bottle. Fuller also testified that, during the victim's subsequent cigarette break, the gang members told the victim that she could leave, but Fuller " could tell by [her] facial expression and by her voice . . . she was a little scared [that], if she left, something would happen to her." Eventually, Fuller encountered the victim in the bathroom immediately before she departed and told her that " it wasn't supposed to go down like that."

         The defense commenced its case by recalling the victim as a witness. The victim testified that she had told Fuller that she would " do some stuff for 500 bucks." [320 Conn. 797] As defense counsel attempted to explore this topic through questioning, the prosecutor objected, and the trial court excused the jury from the courtroom. The victim then explained that the $500 was supposed to be compensation for activities on Wolcott Street. She also reiterated that Fuller had told her that she could collect $250 at Taylor Street. The victim testified that she had no intention of having sexual relations with the men at Taylor Street and that she had received no payment for doing so. Interjecting, the trial court explained that it was not persuaded that the Wolcott Street and Taylor Street incidents were part of a single transaction, and ruled that asking the victim about her prior sexual conduct on Wolcott Street would not be allowed pursuant to § 54-86f.

         The jury returned, and defense counsel continued questioning the victim. She denied ever making an offer to Fuller to have sex with multiple people at Taylor Street for $250 or $500. When the victim was asked, more generically, if she had a conversation with Fuller during which " $500 came up as a fee for [her] services," she responded, " [r]ight, for Wolcott Street." Using a copy of the victim's statement to the police, defense counsel attempted to refresh her recollection with respect to the details of this conversation about the $500 fee, but the trial court interrupted and again excused the jury. Defense counsel explained that, in the victim's statement to the police, she had described telling Fuller

Page 14

" he could do whatever he wanted for four hours [for $500]." The trial court cautioned that, " [t]o the extent that the $500 related to discussions at Wolcott Street, I am not allowing that."

         Defense counsel then called Fantasia Daniels as the final defense witness. Daniels testified that she saw the victim at Taylor Street on the night of the incident and, moreover, that the victim had said that she was there " for sex with the guys." According to Daniels, the victim [320 Conn. 798] stated that " [s]he [had] to use her [sex] toys to get started" and seemed to like what had transpired because she was smiling during the cigarette break. Daniels testified that, at the end of the night, the victim asked Fuller where her $250 was. After Fuller replied " there's no [$250]," the victim said she was going to report the matter to the police.[10] After this questioning of Daniels, the defense rested its case.

         B

          Prosecutions for sexual assault are governed by special 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." (Internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 176, 777 A.2d 604 (2001). 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 promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters." (Citation omitted; internal quotation marks omitted.) State v. Christiano, 228 Conn. 456, 469-70, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S.Ct. 83, 130 L.Ed.2d 36 (1994).

         Thus, to determine whether the prostitution related evidence was properly excluded, we must begin our analysis with the relevant language of the rape shield statute. Section 54-86f prohibits a defendant from presenting [320 Conn. 799] evidence of an alleged sexual assault victim's prior sexual conduct, " unless such evidence is [among other things] . . . 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).

         In State v. DeJesus, supra, 270 Conn. 841-42, we addressed the meaning of " material" in the context of § 54-86f (4). In that case, we concluded that subdivision (4) of § 54-86f referred to the constitutional standard for materiality, and, relying on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), held that evidence was material only " if, considering the case without the excluded evidence, there is a probability sufficient to undermine ...


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