State v. Annulli

309 Conn. 482

71 A.3d 530

STATE of Connecticut

v.Richard ANNULLI.

No. 18856.

Supreme Court of Connecticut.

Argued April 15, 2013.

Decided Aug. 6, 2013.

Mark G. Ouellette, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom were Cynthia S. Serafini, senior assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, and John A. East III, former senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

McDONALD, J.

The defendant, Richard Annulli, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(B), one count of attempt to commit sexual assault in the fourth degree in violation of General Statutes §§ 53a–49 and 53a–73a (a)(1)(B) and three counts of risk of injury to a child in violation of General Statutes § 53–21(a). The sole issue in this certified appeal is whether the Appellate Court properly affirmed the trial court's ruling precluding the defendant from cross-examining the complainant, A,¹ about whether she had lied to the police regarding an unrelated matter on the ground that the proffered evidence would have injected collateral issues into the trial. State v. Annulli, 302 Conn. 936, 28 A.3d 990 (2011). The defendant contends that precluding this line of inquiry violated both his right to examine a witness' character for untruthfulness under § 6–6(b)(1) of the Connecticut Code of Evidence² and his rights to confrontation and to present a defense under the sixth amendment to the United States constitution.³ We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth a complete statement of the facts that the jury reasonably could have found relating to the charges at issue; see State v. Annulli, 130 Conn.App. 571, 573–75, 23 A.3d 808 (2011); which need not be repeated in full for purposes of the present appeal. In brief, the jury reasonably could have found that four incidents occurred between A and the defendant, who was A's neighbor and the father of a friend of A's brother, during a two year period of time beginning in 2006, when A was approximately thirteen years old.⁴ In those incidents, the defendant attempted to make A touch his penis, touched A's vagina over her clothing and placed his hands between her legs. There was no direct corroborative evidence of any of the incidents other than the first, in which A's friend, K, saw A being pulled by her arm into the defendant's car through the front passenger window and helped to extricate A from the defendant's grasp. A immediately thereafterreported to K, who only had been able to see the upper part of the defendant's body in the brief tussle, that the defendant had exposed himself to her as he sat in his car. A did not report the defendant's conduct regarding this or any other incident to anyone else, in response to the defendant's admonition, until the day after the fourth and final incident, at which time she disclosed all of the events to her mother, who in turn reported the incidents to the police.

The record reveals the following additional undisputed facts and procedural history. At trial, the defendant'stheory was that A had lied about these incidents having occurred, but he proffered no motive for A to have lied. Rather, the defendant, through cross-examination, attempted to paint A as having a proclivity for untruthfulness. The trial court permitted the defendant to ask A whether she had told lies to her parents or others, over the state's objection, ruling that credibility is always a factor. A admitted to lying to friends on occasions when she thought it necessary to avoid getting into fights with them. She denied, however, ever having lied to her parents or to her friends when she engaged in online communications with them. When defense counsel continued to pursue the line of questioning as to whether A ever had lied when she was on the Internet, the state objected and requested a discussion outside the presence of the jury. The court excused the jury and heard arguments from both parties.

After defense counsel claimed to have evidence that A had been untruthful in the context of an online communication, the state explained that this evidence related to an Internet exchange between A and a classmate, which A claimed contained a threat by her classmate to harm her. Although both young women had been summoned to the police station in connection with this matter, the state represented that there was a discrepancy in the two accounts as to what actually had been communicated in the exchange. In response to the court's inquiry, both parties agreed that this incident did not relate directly to the facts of the present case and therefore went to A's general credibility. When the court expressed concern that evidence of conflicting accounts of the same incident was different than evidence of a false statement, defense counsel claimed that he would present evidence through witnesses that would show A “intentionally altered e-mail documents and [had] lied [to the police] in an attempt to have another person arrested for threatening her.”

Following a recess, the state suggested to the trial court that defense counsel make an offer of proof. Defense counsel argued that an altered version of the e-mail had been brought to the police station, that the police had investigated whether there had been a valid threat and that this investigation had revealed that A “did, in fact, alter the e-mail and it was determined that it was a lie.” In response, the court expressed concern that the matter sounded collateral. The court noted that the defendant's claim raised two questions—whether A had lied to the police, and if so, what she had lied about, suggesting that perhaps it would need to see the two versions of the e-mails to ascertain the answers to those questions. When defense counsel acknowledged that he did not have the e-mails to produce, the court further questioned what proof the defendant had that there had been a determination that A had made a false complaint. The state interjected to explain that it had a copy of the e-mails in its possession. The state also informed the court that the police had taken no action regarding this incident after interviewing the young women, other than to direct them to cease all communications with each other. The court then determined that the evidence did not appear to be able to establish definitely that A had lied, citing the fact that the police had taken no action on the matter. The court further deemed the matter collateral. In response to defense counsel's claim that he had witnesses who could verify that A had lied about her classmate's threat, the court expressed concerns about such evidence producing hearsay within hearsay and leading to a mini-trial about the electronic communication—a matter that was “too far afield.” Although the court ruled that defense counsel could not pursue this general line of inquiry, it indicated that he could pursue other lines of questioning concerning A's credibility. In response to defense counsel's question of whether he would be permitted to ask A directly about this matter without being able to impeach her with extrinsic evidence, the court initially indicated that that question would not be allowed but later stated that it would “take each question as it comes.”

After the jury was returned to the courtroom, defense counsel resumed cross-examination of A, asking if she had been involved in an incident with a classmate involving the exchange of e-mail messages. The state objected, and the court again excused the jury to allow defense counsel to make an offer of proof through examination of A to determine whether he should be permitted to pursue this line of inquiry. In response to defense counsel's questions, A admitted to having been involved in an incident with a classmate concerning an exchange of e-mails. Defense counsel then repeatedly asked A whether she had changed or altered the e-mail exchange that she had provided to the police regarding the incident. In response, A stated that she had copied and pasted the e-mail into a Word document and provided this information to the police. In further responses, A stated that the police were aware that the information she had provided to them had been copied and pasted from the original, and that she had not been arrested for changing the e-mail or filing a false statement with the police. After a litany of questions to which A denied any wrongdoing, the following exchange occurred:

“[Defense Counsel]: When you ... were at the police station, the bottom line and end result was that it was determined that the e-mail you claimed you received you had changed, correct?

“[A]: Yes.

“[Defense Counsel]: So you lied to the police because you told them you had been threatened and it really wasn't true, correct?

“[A]: Yes.

“[Defense Counsel]: I have nothing further.” (Emphasis added.)

On redirect examination, the state inquired as to what A had meant about having copied and pasted the e-mail. A responded that she had “highlighted [the e-mail] from MySpace and ... copied it and went to Word Pad and pasted it.” Upon further examination, A admitted that she had deleted some of the information contained in the original e-mail, but maintained that she had not altered it in such a manner so as to create a threat from her classmate that did not appear in the original. At the conclusion of the state's redirect examination, the following exchange occurred:

“[The Prosecutor]: And so as you sit here today, did you lie to the police about the threat that you got from [your classmate]?

“[A]: No.

“[The Prosecutor]: Was it a lie [that this classmate] had threatened you?

“[A]: No.”

Upon the...