May 18, 2017
M. Chabot, certified legal intern, with whom was James B.
Streeto, senior assistant public defender, for the appellant
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.
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
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
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.
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
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'sprior sexual conduct under General
Statutes § 54-86f, 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. We disagree. Accordingly, we affirm the
judgment of the court.
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.
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.
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.
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.
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
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.
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.
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.
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 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.
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
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
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. 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.
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.''
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.''
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.)
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
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.
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 Victim]: Vaginally, I felt pain and-
‘‘[The Prosecutor]: Were you on birth control at
‘‘[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
‘‘[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.''
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