State v. Benedict

136 Conn.App. 36

43 A.3d 772

STATE of Connecticut

v.Adam BENEDICT.

No. 32484.

Appellate Court of Connecticut.

Argued Jan. 3, 2012.

Decided June 5, 2012.

William F. Gallagher, New Haven, with whom, on the brief, was William J. Ward, for the appellant (defendant).

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 appellee (state).

ROBINSON, SHELDON and SCHALLER, Js.

SHELDON, J.

The defendant, Adam Benedict, appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(6). ¹ On appeal, the defendant claims that the trial court erred in sustaining the prosecutor's objection to defense counsel's questioning of the complainant concerning the special conditions of her pretrial diversionary program on a pending felony charge, in violation of his constitutional right to confront the witnesses against him under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.² We agree and, accordingly, reverse the judgment of the trial court.

The jury was presented with evidence tending to establish the following facts 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 complainant's friend's residence, 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 penis and 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,³ 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).⁴ 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. After a jury trial, the defendant was convicted, on the basis of the previously described evidence, of one count of sexual assault in the fourth degree against the complainant in violation of § 53a–73a (a)(6). He later was sentenced on that charge to a term of one year incarceration, execution suspended after ninety days, and three years of probation with special conditions. ⁵ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly restricted his cross-examination of the complainant by sustaining the prosecutor's objection to defense counsel's questioning of her regarding the conditions of her pretrial diversionary program ⁶ on a pending charge of possession of narcotics in violation of General Statutes § 21a–279. The defendant claims that the court thereby violated his right to confront a crucial witness against him in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We agree that the court violated his rights under the United States constitution. ⁷

During his cross-examination of the complainant, defense counsel asked her, “You have a felony pending in this court, do you not?” The prosecutor objected to this question. The court and the parties' counsel then engaged in an extensive colloquy outside the presence of the jury, in which defense counsel cited legal authority establishing the constitutional basis for his right to question the complainant regarding her pending felony charge. ⁸ Under such authority, defense counsel argued that questioning the complainant about her pending charge was essential to the defendant's right to present a defense because such evidence had the undeniable potential to undermine her credibility by demonstrating her motive or interest to testify favorably for the state.⁹The court eventuallyrejected this argument after an extended colloquy with counsel on the ground that the prejudicial effect of the proffered evidence was greater than its probative value.¹⁰

Once the complainant finished testifying, the jury was excused so that the court and counsel could discuss the state's motion in limine regarding another witness. After that discussion was over, the prosecutor redirected the court's attention to case law establishing that the use of cross-examination to elicit facts tending to show a witness' motive, interest, bias or prejudice is a matter of right and, thus, that the court, to comply with constitutional standards under the confrontation clause, must not unduly restrict it. In light of such authority, the prosecutor urged the court to reopen the complainant's testimony so that she could be cross-examined by the defense concerning her pending felony charge. When the court inquired of counsel as to the “desired parameters” of such additional questioning if it were permitted, defense counsel responded that he only wanted to ask the complainant one question: “Do you have a pending felony [charge] in this court?” The prosecutor, for his part, stated that he would like to question the complainant briefly on redirect examination on the “limited subject” of her pending felony charge. The court then granted the state's motion to reopen the complainant's testimony regarding her pending felony charge, and the complainant was recalled 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.

In his ensuing redirect examination of the complainant, the prosecutor questioned her at length both about the timing of her pending charge in relation to those pending against the defendant and about the processing of her pending charge to date, including her admission into the pretrial diversionary program, upon the successful completion of which her charge would be dismissed. As to the conditions of that program, about which the prosecutor expressly asked her, the complainant stated only that she was required to report to a probation officer and to perform community service. She specifically denied that the state had promised her anything in exchange for her testimony against the defendant in this case.

On his recross-examination of the complainant, defense counsel sought to correct the impression left by the prosecutor's redirect examination—that the complainant's charge would be dismissed only if she attended all visits with her probation officer and performed all assigned hours of community service—by asking her: “Are there any other conditions to your probation?” When the prosecutor objected to this question on relevancy grounds, defense counsel responded that the prosecutor had “opened the door” to this inquiry by asking the complainant on redirect examination about only certain conditions of her probation, in an apparent effort to minimize the impact of her pending charge on the jury's assessment of her credibility. ¹¹ The court sustained the prosecutor's objection after engaging defense counsel in the following colloquy in the presence of the jury:

“The Court: It goes to whether or not she has an interest in testifying as to the outcome of any case. What her conditions are, it just leads her to an ultimate conclusion, but if a condition of her probation was to testify favorably for the state, I would allow it, but if it's not going to involve that, I'm not going to allow it.

“[Defense Counsel]: Your Honor, if I could just address very briefly?

“The Court: Yes.

“[Defense Counsel]: I didn't ask the question, he did. He said, what are you supposed to do, probation and community service, and then attempts to minimize it. I'd like to know what other conditions are posted. He opened the door, I didn't.

“The Court: Only if it relates—

“[Defense Counsel]: I would have never asked the question had he not opened the door.

“The Court: You can open the door, but it's still not going to be admitted, because it's not relevant to the issue as to whether or not she was promised anything for her testimony today, so I'm not going to allow it.”

The court thus clearly and categorically informed the jury that any other conditions of the complainant's pretrial diversionary program would not be relevant to her interest in testifying for the state, or thus to her credibility as a witness, unless they involved a promise by the state to reward her for her testimony.

In the wake of this ruling, defense counsel...