State v. Benedict

313 Conn. 494

98 A.3d 42

STATE of Connecticut

v.Adam BENEDICT.

No. 19034.

Supreme Court of Connecticut.

Argued Jan. 15, 2014.

Decided Sept. 9, 2014.

Harry Weller, senior assistant state's attorney, with whom, on the brief, were David S. Shepak, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellant (state).

Hugh D. Hughes, with whom, on the brief, were William F. Gallagher, New Haven, and William J. Ward, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, McDONALD and VERTEFEUILLE, Js.

McDONALD, J.

Following our grant of certification, the state appeals from the judgment of the Appellate Court reversing the trial court's judgment of conviction of the defendant, Adam Benedict, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(6). The state claims that the Appellate Court improperly concluded that the trial court violated the defendant's right to confrontation under the sixth and fourteenth amendments to the United States constitution by precluding him from questioning the complainant ¹ on recross-examination about the conditions of her participation in a pretrial diversionary program (diversionary program) on a felony charge pending against her in an unrelated case. The defendant sought to elicit such evidence to imply that the complainant had a motive to testify favorably for the state in the present case. We conclude that, in the absence of an offer of proof regarding the nature of those conditions, the defendant failed to establish a sufficient nexus between the testimony that he sought to elicit and the complainant's motive to testify favorably for the state to implicate his confrontation rights. Therefore, we reverse the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following facts that the jury reasonably could have found in support of the charge on which the defendant was convicted. “At all relevant times, the complainant was a seventeen year old senior at Litchfield High School, and the defendant was a substitute teacher and athletic coach at that school. The defendant first contacted the complainant outside of school in January or February, 2007. A week or two later, the defendant called the complainant while she was visiting a friend's residence and offered to pick her up. The complainant agreed. When the defendant and his friend arrived at the ... residence [where the complainant was visiting], the defendant appeared to be intoxicated. After the defendant's friend drove the defendant and the complainant to the defendant's residence, the friend departed. Upon entering the defendant's residence, the complainant followed him into his bedroom, where he kissed her, took off her shirt, kissed her chest and sucked on her breasts. Then the defendant, still clothed, rubbed his genital region against the complainant's leg and requested that she allow him to ejaculate on her breasts or face. Thereafter, the defendant exposed his penisand requested that the complainant perform fellatio on him. When the complainant refused, the defendant returned his penis to his pants and continued rubbing his genital region against her leg until he ejaculated. After changing his clothing, the defendant lay down on the bed with the complainant, kissed her, squeezed her breasts and fell asleep. The complainant remained at the defendant's residence until the following morning.

“After her graduation from high school, in June or July, 2007, the complainant, accompanied by her boyfriend and another female complainant, went to the state police barracks in Litchfield to file a complaint against the defendant. On the basis of that complaint, the defendant was later arrested and charged with three counts of sexual assault in the fourth degree in violation of § 53a–73a (a)(6). Two counts related to separate alleged incidents involving sexual contact between the defendant and the complainant, and one count related to a third alleged incident involving sexual contact between the defendant and the other female complainant.” (Footnotes omitted.) State v. Benedict, 136 Conn.App. 36, 38–40, 43 A.3d 772 (2012).

The record reveals the following additional undisputed facts and procedural history. At trial, the defendant sought to undermine the credibility of the complainant by suggesting that she had been prompted by her boyfriend to lie in her initial report to the police after her boyfriend and the defendant had exchanged hostile text messages and that she had a motive to lie in her trial testimony. With respect to the latter objective, defense counsel posed the following question to the complainant on cross-examination: “You have a felony pending in this court, do you not?” The prosecutor objected, and the court excused the jury. In the colloquy that followed, defense counsel argued that the complainant had a pending felony charge for possession of heroin, which carried a substantial sentence. He further argued that this situation created an interest that affected her credibility as a witness, because “she may be using [the current] proceeding as leverage to get some sort of deal in that proceeding [against her].” The prosecutor informed the court that the complainant had not been convicted of the felony, but rather was participating in a diversionary program pursuant to which the charge would be dismissed. The prosecutor further noted that the complainant's file had been sealed, and that her arrest had occurred subsequent to her complaint in the defendant's case. The prosecutor therefore argued that neither the nature of the felony nor the details of her diversionary program were appropriate lines of inquiry by the defendant. Upon inquiry by the court as to the intended scope of questioning, defense counsel indicated that, after prompting the complainant to admit that she had a pending felony charge, he simply would ask if the pendency of the charge affected her present testimony or otherwise made her want to testify favorably for the state.

After the prosecutor argued that the prejudicial effect of such proposed testimony outweighed any probative value it would yield, the trial court directed defense counsel to make an offer of proof. In that offer, he elicited testimony from the complainant that, between one and two years before the defendant's trial commenced, ² she had been arrested and charged with possession of narcotics in violation of General Statutes § 21a–279 (a), an unclassified felony for which she could have received a possible seven year sentenceand a $50,000 fine.³ She further testified that she had not informed the prosecutor in her criminal case that she was a witness in the defendant's case and that she did not believe that the prosecutor knew of this fact. The prosecutor then proceeded to elicit from the complainant that she had been arrested for the aforementioned charge after she had made her complaint against the defendant, that she had not been promised anything in exchange for her testimony in the defendant's case, and that, prior to her testimony in the defendant's case, she had been granted entrance into a diversionary program in which her pending felony charge was due to be dismissed within a couple of months. Thereafter, the court sustained the prosecutor's objection that the prejudicial effect of the proffered evidence was greater than its probative value. The jury was recalled to the courtroom, and the complainant finished testifying without an inquiry on this matter.

After the complainant was excused from the stand and the court went on to address other matters outside the presence of the jury, the prosecutor moved for the court to reconsider its ruling and reopen the complainant's testimony in light of State v. Wilson, 188 Conn. 715, 453 A.2d 765 (1982), a case that had come to his attention. The prosecutor asserted that this authority suggested that the defendant should be permitted to cross-examine the complainant about her pending felony charge in order to comport with the constitutional standards embodied in the confrontation clause. When the court inquired of the parties as to the parameters of such additional questioning if it were to be permitted, defense counsel twice responded that he wanted to ask the complainant “just one question,” namely, “do you have a felony pending in this court?” The prosecutor stated that he would like to question the complainant briefly on redirect examination on that limited subject. The court then granted the prosecutor's motion to reopen the complainant's testimony for the purpose of inquiring into her pending felony charge and told defense counsel: “I'm going to give you the ability to ask your questions as you see fit.”

After the jury was brought back into the courtroom, the court recalled the complainant to the stand, whereupon defense counsel prompted her to admit that she did indeed have a felony charge pending against her in the trial court. Following that admission, defense counsel stated: “I have nothing further.”

On redirect examination, the prosecutor probed further as to the timing of the complainant's arrest on that charge and the disposition of her case. The complainant testified that she had been arrested after she had made the complaint against the defendant and then stated: “[A]s long as I do everything I'm supposed to, [the case will] get dismissed.” When the prosecutor asked what the conditions of the diversionary program required of her, the complainant answered: “Go to probation and community service.” She then testified that she had not discussed the defendant's case with the prosecutor in her criminal case, nor had she discussed her criminal case with the prosecutor in the defendant's case. Moreover, she denied that the state had promised her anything in exchange for her testimony in the defendant's case. Lastly, the complainant answered “[n]o” when the prosecutor asked her if she believed that the...