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State v. Thomas

Court of Appeals of Connecticut

October 17, 2017

STATE OF CONNECTICUT
v.
WILLIAM B. THOMAS

          Argued May 18, 2017

          Philip M. Chabot, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom were Dawn Gallo, senior assistant state's attorney, and, on the brief, David S. Shepack, state's attorney, and for the appellee (state).

          Alvord, Keller and Bishop, Js.

         Syllabus

         Convicted of the crimes of sexual assault in the first degree, unlawful restraint in the first degree and false statement in the second degree, the defendant appealed to this court. He claimed, inter alia, that the trial court violated his constitutional rights to confrontation and to present a defense when it ruled that the rape shield statute (§ 54-86f [a]) prohibited him from introducing certain evidence of the victim's prior sexual conduct with two other men, B, and the victim's former boyfriend, R, in the seventy-two hours preceding the alleged sexual assault by the defendant.

         Held:

1. The defendant could not prevail on his unpreserved claim that evidence of the victim's prior sexual conduct with B and R was admissible to impeach her credibility pursuant to certain exceptions to § 54-86f (a), which permit the admission of prior sexual conduct evidence when such evidence is offered by the defendant on the issue of the credibility of the victim, provided that the victim testified on direct examination as to his or her sexual conduct, and the evidence is otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights: the defendant acknowledged that the victim never explicitly testified as to her sexual conduct with anyone other than the defendant, and in light of the fact that the victim did not testify, either explicitly or by reasonable inference, about her sexual conduct with anyone other than the defendant, the proffered evidence was not admissible for impeachment purposes under § 54-86f (a) (2), and, therefore, the defendant failed to demonstrate, pursuant to State v. Golding (213 Conn. 233), that the alleged constitutional violation existed or that it deprived him of a fair trial; moreover, impeaching the victim's credibility with evidence of her prior sexual conduct, and with an inconsistent statement she had made to a hospital nurse, was not so relevant and material, pursuant to § 54-86f (a) (4), that its exclusion violated the defendant's constitutional rights, as the defendant had impeached the victim with regard to a number of other inconsistent statements she made such that impeachment with the inconsistent statement to the nurse would have been largely duplicative and of marginal value to further undermining the victim's credibility.
2. The record was inadequate to review the defendant's unpreserved claim that evidence of the victim's prior sexual conduct with B should have been admitted, pursuant to § 54-86f (a) (1), to show an alternative source for the scrapes and bruises on the victim's body after the sexual assault at issue, the record having been devoid of information probative of the location and nature of the victim's sexual encounter with B.
3. This court declined to review the defendant's unpreserved claim that he was improperly prohibited from inquiring and presenting evidence about the victim's relationship with B in order to show the victim's motive and bias to lie, which he claimed should have been admitted pursuant to the exception in § 54-86f (a) (4); the defendant likely could have inquired into whether the victim and B had a romantic relationship without implicating the prohibition in § 54-86f (a) of prior sexual conduct evidence, and because any sexual conduct between the victim and B may have been relevant, but was not essential, to that inquiry, the claim was not of constitutional magnitude for purposes of review pursuant to Golding.
4. Contrary to the defendant's claim, evidence of the victim's prior sexual conduct with B and R was not probative, pursuant to § 54-86f (a) (1), of whether her vaginal injuries could have been caused by anyone other than the defendant; there was no testimony about a purported makeshift panty liner that the defendant sought to introduce into evidence and it, thus, had no probative value, testimony from a hospital nurse that rough consensual sexual relations could cause vaginal injury was unhelpful to the defendant, who failed to proffer evidence that the victim had had a rough sexual encounter with B or R, the defendant's offer of proof as to the victim's alleged sexual intercourse with R was speculative and inadequate, and evidence that the victim had sexual relations with B in the hours preceding her intercourse with the defendant was not probative of whether someone other than the defendant caused her vaginal injuries.
5. The defendant could not prevail on his claim that the trial court abused its discretion by denying his motion for funds to pay for investigative services for his defense; because the statutes governing public defender services require the Public Defender Services Commission to authorize such expenditures when the commission determines, as a threshold matter, that such services are reasonably necessary to the defense, the trial court did not have the discretion to grant the request, and even if it did, the defendant failed to make a proper showing that the funds for investigative services were reasonable and necessary to the defense.
6. The defendant's claim that he was denied his right to a fair trial as a result of the prosecutor's allegedly improper remarks during closing argument to the jury was unavailing; the prosecutor's remarks that defense counsel had conducted a ‘‘cutting'' cross-examination of the victim and ‘‘did a great job of testifying, '' and certain other comments of the prosecutor, were not improper, as they did not amount to an attempt to demean or impugn the integrity of defense counsel, the prosecutor did not appeal to the jurors' emotions or to their sympathies for the victim, and did not refer to facts or documents that were not in evidence, and this court declined to review the defendant's claim that the prosecutor improperly vouched for the victim's credibility, that claim having been inadequately briefed.

         Procedural History

         Substitute information charging the defendant with the crimes of sexual assault in the first degree, unlawful restraint in the first degree and false statement in the second degree, brought to the Superior Court in the judicial district of Litchfield, where the court, Ginocchio, J., denied the defendant's motions for costs related to the defense and to admit certain evidence; thereafter, the matter was tried to the jury; subsequently, the court denied the defendant's motion to open the evidence; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

          OPINION

          KELLER, J.

         The defendant, William B. Thomas, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and one count of false statement in the second degree in violation of General Statutes (Rev. to 2011) § 53a-157b (a). On appeal, the defendant claims that (1) the trial court violated his constitutional rights to confrontation and to present a defense by excluding evidence of the victim's[1]prior sexual conduct under General Statutes § 54-86f, [2]commonly known as the rape shield statute; (2) the trial court violated his right to due process by denying his pretrial motion for costs to pay for investigative services necessary to his defense; and (3) the state's closing argument was improper and deprived him of a fair trial.[3] We disagree. Accordingly, we affirm the judgment of the court.

         The jury reasonably could have found the following facts. The events in question took place on September 2, 2011, and into the early morning hours of September 3, 2011. The victim was nineteen years old at the time. In the early evening of September 2, the victim drove to a Burger King in Torrington. There she met with a friend, Garrett Gomez. Leaving her car at the Burger King, the victim and Gomez traveled in Gomez' car to his residence in Winsted. The victim then bought heroin from Gomez and used two bags worth.

         The victim and Gomez next met with another friend, Mike Boyle, at a reservoir in Barkhamsted, where they spent time fishing. The victim also used more heroin there. The victim and Boyle then went to Boyle's house, where they ate dinner. At about this time, the victim drank alcohol as well.

         At about midnight, Boyle drove the victim to Snapper Magee's, a bar in Torrington. While there, she drank more alcohol. The victim stayed at the bar until it closed. By that time, Boyle had left. The victim therefore needed a ride back to her car at the Burger King.

         The defendant was also at Snapper Magee's that night, having walked there after his shift as a cook at a nearby restaurant. At closing time, the defendant was outside in front of the bar. The victim approached the defendant and asked for a ride. The defendant told her that he would help, and the pair walked to the bar's parking lot. The defendant did not have a car in the parking lot.

         Once at the lot, between two parked cars, the victim performed oral sex on the defendant, and the defendant digitally penetrated her vagina. It is undisputed that these activities were consensual.

         After the sexual encounter took place, the victim was still in need of a ride. At the defendant's direction, the victim and the defendant proceeded to walk down a nearby street. The victim asked the defendant how he would give her a ride. The defendant told her that a friend would do so.

         The pair approached a white house where the defendant indicated that the friend was located. The defendant, however, with the victim still following, walked past the house and through an opening in a nearby chain-link fence. On the other side of the fence lay railroad tracks. With the pair standing on the tracks, the defendant began kissing the victim. He then began pushing her head down toward his genitals. With the victim resisting, the defendant forced her head onto his penis. He then forced her down to the ground and, while straddling her, removed her clothes. The defendant penetrated her vagina, and then her anus, with his penis.

         The victim was then able to get away. She grabbed some of her clothes and ran. At some point, she was able to put her shorts on. She continued running, topless, until she reached an entryway to a bank, where she sat, covering her chest with her knees. A bystander called the police, and the victim was transported to Charlotte Hungerford Hospital for treatment.

         The defendant was charged with one count of sexual assault in the first degree in violation of § 53a-70 (a) (1), one count of unlawful restraint in the first degree in violation of § 53a-95 (a), and one count of false statement in the second degree in violation of § 53a-157b (a).[4] A three day trial commenced on October 16, 2013. The defendant did not testify. His attorneys argued during closing remarks that the intercourse on the railroad tracks, the conduct underlying the sexual assault and unlawful restraint charges, was consensual. On October 23, 2013, the jury returned a verdict of guilty on all three counts. The court thereafter rendered judgment imposing a total effective sentence of seven years imprisonment, followed by eight years of special parole, with lifetime registration as a sex offender. This appeal followed. Additional facts will be provided in the context of the defendant's claims.

         I

         The defendant first claims that the court violated his constitutional rights to confrontation and to present a defense, as guaranteed by the sixth and fourteenth amendments to the United States constitution, by excluding evidence of the victim's prior sexual conduct under § 54-86f. We disagree.

         The following additional facts are relevant to this claim. Several weeks before trial, the defendant filed a ‘‘Motion for Evidentiary Hearing Pursuant to [§] 54-86f.'' In that motion, the defendant represented that the victim ‘‘admitted to having sexual relations with her then boyfriend in the hours prior to the alleged sexual relations with the defendant.'' Without further explanation, the defendant asserted that ‘‘[t]his evidence is clearly relevant to the defense of consent.'' He therefore requested an evidentiary hearing ‘‘regarding the admissibility of [the victim's] sexual conduct in the minutes and hours prior to the time when the defendant is accused of sexually assaulting her.''

         The parties presented oral argument on the motion prior to trial. During that hearing, the state acknowledged that the victim had indicated (in what was later identified as a written statement to the Torrington police) that she had had sexual relations with ‘‘another boyfriend'' ‘‘prior to going out'' on the evening in ques-tion.[5] The state also told the court that preliminary results of tests conducted on the victim's rape kit showed the presence of two DNA profiles, one from the defendant, the other from an unnamed depositor. The state questioned the relevance of this evidence.

         At the hearing, the defendant argued that the victim's prior sexual intercourse with the boyfriend ‘‘goes to [the victim's] credibility in terms of . . . this is a yes, this is a no type of a thing in terms of the consent.'' The defendant further argued that ‘‘[i]t goes to consent. It goes to [the victim's] pattern of practice in terms of what she was doing out that night. . . . It also goes to intoxication and possible alcohol use affecting her credibility.''

         The court denied the motion, concluding: ‘‘My inclination is, I'm not going to allow any testimony as to the other DNA sample. It goes to her sexual contact with a person that's not involved in this case.''

         The defendant filed another motion for an evidentiary hearing pursuant to § 54-86f two days before trial. In it, the defendant repeated the assertion that the victim had had sexual relations with the aforementioned boyfriend in the hours before the alleged sexual assault. The motion also added new information. It represented that, ‘‘[u]pon information and belief, [the victim] may also have engaged in sexual relations with another man within twenty-four (24) hours of having engaged in sexual relations with the aforementioned [boyfriend] and the defendant.'' (Emphasis added.) It then asserted that, when the victim was being treated at the hospital, a nurse, Cheryl Underwood, as part of the evaluation and evidence collection process, asked her whether she had had sexual relations with anyone other than the defendant in the seventy-two hours preceding the alleged sexual assault, and that she had answered no. The motion then added that the victim ‘‘acknowledged in her second written statement to the [Torrington police] that she had engaged in intercourse with at least one other person'' on the evening of the incident at issue. Accordingly, the defendant argued that the victim's prior sexual conduct with the other individuals was ‘‘so relevant and material to the issue of credibility that to deny the defendant the right to introduce evidence regarding this issue would severely prejudice the defendant and violate his right to a fair trial.'' (Emphasis omitted.)

         The court heard oral argument on the motion on the first day of trial before the presentation of evidence. At that hearing, the defendant provided some additional information. The defendant explained that the ‘‘boyfriend'' identified in the first motion (later identified as Boyle) was not in fact ‘‘dating'' the victim, although the defendant still maintained that Boyle had sexual relations with her shortly before the alleged sexual assault. The ‘‘real'' boyfriend, the defendant contended, was the individual identified in the second motion as having had sexual relations with the victim in the twenty-four hours before she had sexual relations with Boyle and the defendant. This individual was later identified by the state as an individual named Kevin Roberge. The defendant argued that ‘‘the reason why [the victim] didn't disclose [that she was with Roberge] is [because] the two of them had been arrested on a domestic incident two months earlier. We believe that there was a protective order in place with respect to [Roberge]; and the fact that these two were together earlier in the day, sexual conduct aside, we believe may have been in violation of the protective order.'' The defendant also added that the victim's prior sexual relations with Boyle and Roberge may help explain some of the injuries-scrapes and bruises-observed on her at the hospital and by the police after the alleged sexual assault, though he did not explain how.

         The court denied the motion, but expressly did not preclude the defendant from questioning the victim about the cause of her injuries so long as the questions did not concern her sexual relations with anyone other than the defendant.

         On the first day of trial, the state elicited the following testimony from the victim during its case-in-chief:

‘‘[The Prosecutor]: Did you feel pain as a result of [the alleged sexual assault]?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Could you describe that for the jury?
‘‘[The Victim]: Vaginally, I felt pain and-
‘‘[The Prosecutor]: Were you on birth control at the time?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: And as a result of that birth control, did you not have any menstrual bleeding?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: So, that kept you from bleeding.
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Did you have any bloody discharge as a result of this incident?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Vaginal discharge?
‘‘[The Victim]: Yes.''

         When the state's direct examination of the victim concluded, the defendant addressed the court, in the absence of the jury, as follows: ‘‘[T]here was some questioning on direct examination regarding any bloody discharge as part of the vaginal examination. And there [were] questions posed ...


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