April 12, 2017
R. Williams, for the appellant (defendant).
A. Riggione, senior assistant state's attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state's attorney, and Nadia C. Prinz, deputy assistant
state's attorney, for the appellee (state).
Lavine, Keller and Prescott, Js.
information charging the defendant with the crime of sexual
assault in the fourth degree, brought to the Superior Court
in the judicial district of Stamford-Norwalk, geographical
area number twenty, and tried to the jury before Hudock,
J.; verdict and judgment of guilty, from which the
defendant appealed to this court. Reversed; new
of the crime of sexual assault in the fourth degree, the
defendant appealed to this court. He claimed, inter alia,
that certain of the trial court's evidentiary rulings
violated his constitutional right to confront his accuser and
to present a defense.
court declined to consider the merits of the defendant's
claim that the trial court improperly admitted evidence of
the complainant's demeanor after she made an initial
complaint to the police, which was based on his claim, raised
for the first time on appeal, that the court improperly
failed to analyze the admissibility of the evidence under the
constancy of accusation doctrine, the defendant having failed
to raise that argument before the trial court at the time
that he objected to the admissibility of the evidence on the
ground of relevance.
defendant, Skender Halili, appeals from the judgment of
conviction, following a jury trial, of sexual assault in the
fourth degree in violation of General Statutes §
53a-73a. The defendant claims that the trial court (1)
violated his sixth amendment right to confront his accuser
when it prohibited him from cross-examining the
complainant with respect to her mental state or
psychiatric history, (2) violated his sixth amendment right
to present a defense and confront his accuser when it
prohibited him from presenting evidence purporting to show
that the complainant had solicited a bribe from the
defendant's wife, and (3) improperly admitted evidence of
the complainant's demeanor after she made an initial
complaint to the police. We agree with the defendant's
second claim. Accordingly, we reverse the judgment of the
trial court and remand the case to the court for a new trial.
trial, the state presented evidence in support of the
following alleged version of events. At times relevant, the
defendant and the female complainant were neighbors in a New
Canaan condominium complex. The defendant is an Albanian
national who has a green card and speaks with an Albanian
accent. On April 9, 2014, the complainant and her father were
standing near the complainant's automobile in the parking
lot of the complex while attempting to resolve a mechanical
issue. On prior occasions, the complainant observed the
defendant performing work on automobiles at the complex. The
defendant approached the complainant and her father, stated
that he was experienced in repairing automobiles, and offered
to repair the automobile, even if this meant that he had to
pay for the repairs himself.
the complainant's father left the scene, the defendant
accompanied the complainant as she took the automobile for a
test drive so that the defendant could hear the sounds that
the automobile made while it was being operated on the road.
During the test drive, the complainant conversed with the
defendant and ‘‘[f]or the most part''
understood what he was saying to her despite his accent.
Following the test drive, which was uneventful, the defendant
and the complainant agreed that, the following day, he would
bring his automobile ramps to the complainant's residence
so that he could further inspect her automobile.
before 10 a.m. on April 10, 2014, the defendant arrived at
the complainant's residence and utilized the ramps to
inspect her automobile. Thereafter, he entered the
complainant's residence and washed his hands in the
bathroom. The complainant took the defendant for another test
drive in the automobile.
beginning of the test drive, the defendant offered the
complainant a piece of chewing gum. When the complainant
accepted, the defendant attempted to insert the gum into her
mouth while she was operating the automobile. The complainant
told him not to do so. The complainant testified that the
defendant's ‘‘weirdness'' continued
to escalate during the remainder of the test drive. The
defendant asked the complainant if she had a boyfriend, and
she replied that she did. The complainant mentioned to the
defendant that he was married, to which he replied,
‘‘that doesn't matter.'' While the
complainant was driving on the Merritt Parkway, the defendant
referred to the opera, ‘‘Madame Butterfly,
'' unbuckled his safety belt, and opened the
passenger door of the automobile while it was in motion. The
defendant's sudden and unusual conduct frightened the
complainant, and she was anxious to keep the automobile under
defendant's actions became sexual in nature when he
placed the open palm of his left hand on the
complainant's right thigh while she continued to operate
the automobile. The complainant asked the defendant
repeatedly to remove his hand from her thigh. When he failed
to comply, the complainant pushed his hand away. This
initiated a physical struggle between the complainant and the
defendant. He quickly moved his hand between her legs and,
with his extended fingers, began to exert pressure on the
complainant's vagina over her clothing in what the
complainant believed to be an effort to
‘‘stimulate'' her. While the complainant
continued to drive, she tried to prevent the defendant from
touching her. At one point in time, the complainant used her
elbow to strike the defendant's body and, in so doing,
caused the automobile to shift out of gear. Meanwhile, the
defendant was snickering and making moaning sounds. At
another point in time, the defendant lifted himself off of
the passenger seat in what the complainant believed to be an
effort to crawl on top of her. The defendant also tried to
lift the complainant's shirt; he exposed and touched her
bare skin. Toward the end of the approximately twenty minute
ordeal, the complainant told the defendant that he was
‘‘going to get in a lot of trouble . . .
complainant became aware that her automobile was running low
on gasoline, but she drove to the New Canaan police station.
She parked in front of the station, turned off the ignition,
took her keys with her, and went inside to seek assistance.
Meanwhile, the defendant exited the automobile and left the
complainant met with Officer Thomas Patten of the New Canaan
Police Department, who interviewed her briefly. He asked her
to complete a statement and to return it to him the following
morning. The complainant complied with this request. Later
that day, Patten visited with the complainant at her
residence. At the condominium complex, Patten also spoke with
the defendant. During this initial encounter with the police,
the defendant denied having had any interaction with the com-
plainant that day.
following day, April 11, 2014, during a voluntary interview
of the defendant at the New Canaan police station, Patten
informed the defendant that the police had surveillance
footage of the police department on April 10, 2014. In
response, the defendant admitted that he was with the
complainant on April 10, 2014, that he had provided
assistance to her with her automobile, and that he had gone
for a drive with her. Although, in their prior interactions
with the defendant, the police officers who were
investigating the incident had not raised the subject of
inappropriate touching in the automobile, the defendant
volunteered that nothing had happened in the automobile. He
stated: ‘‘I did not touch.'' During the
interview, the defendant stated to Sergeant Peter Condos of
the New Canaan Police Department that, the previous day, he
lied about his not having been with the complainant because
he was scared. Additionally, the defendant stated that the
complainant had not made any advances of a sexual nature
toward him. The defendant acknowledged to the police that,
although he felt ‘‘ashamed, '' he did not
know why the complainant ended the test drive at the police
department on April 10, 2014.
jury found the defendant guilty of sexual assault in the
fourth degree. The court sentenced the defendant to a term of
incarceration of one year, execution suspended after thirty
days, followed by two years of probation. Additional facts
will be set forth as necessary in the context of the
the defendant claims that the court violated his sixth
amendment right to confront his accuser when it prohibited
him from cross-examining the complainant with respect to her
mental state or psychiatric history. We disagree.
following additional facts are relevant to the present claim.
During the state's direct examination of the complainant,
she related her account of the events at issue. At the
conclusion of her direct examination, the prosecutor asked
the complainant about her emotional state while testifying.
The complainant replied that she felt
‘‘[e]xtremely uncomfortable . . . [b]ecause this
is not a place I want to be.'' During the
defendant's cross-examination of the complainant, defense
counsel asked the complainant, ‘‘have you taken
any kind of medications prior to coming here to court
today?'' After the court overruled the state's
objection to the inquiry, the complainant answered:
following examination of the complainant by defense counsel
‘‘Q. What have you taken?
‘‘A. I took a-last night I took a-something for
‘‘Q. What type of medicine is that?
‘‘A. I . . . don't know the name of it.
‘‘Q. It's prescribed by your physician?
‘‘Q. Is that physician a psychiatrist?''
point in the inquiry, the state objected on the ground of
relevance. The court excused the jury and asked defense
counsel to provide a good faith basis for his inquiry, and
whether he was ‘‘on a fishing expedition . . .
counsel explained: ‘‘I am basing [the inquiry] on
the demeanor of the witness throughout her direct
examination, which, in my experience, is beyond odd and not
characteristic of any kind of behavior ...