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State v. Halili

Court of Appeals of Connecticut

August 29, 2017

STATE OF CONNECTICUT
v.
SKENDER HALILI

          Argued April 12, 2017

          John R. Williams, for the appellant (defendant).

          Lisa 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.

         Procedural History

         Substitute 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 trial.

         Syllabus

         Convicted 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.

         Held:

         3. This 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.

          OPINION

          KELLER, J.

         The 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[1] 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.

         At 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.

         After 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.

         Shortly 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.

         At the 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 control.

         The 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 . . . .''

         The 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 scene.

         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.

         On the 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.

         The 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.[2] Additional facts will be set forth as necessary in the context of the defendant's claims.

         I

         First, 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.

         The 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: ‘‘Yes.''

         The following examination of the complainant by defense counsel then transpired:

‘‘Q. What have you taken?
‘‘A. I took a-last night I took a-something for anxiety.
‘‘Q. What type of medicine is that?
‘‘A. I . . . don't know the name of it.
‘‘Q. It's prescribed by your physician?
‘‘A. Yes.
‘‘Q. Is that physician a psychiatrist?''

         At this 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 . . . .''

         Defense 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 ...


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