State v. Wright

320 Conn. 781

135 A.3d 1

STATE of Connecticut

v.Chywon WRIGHT.

No. 19233

No. 19234.

Supreme Court of Connecticut.

Argued Feb. 10, 2015.

Decided April 19, 2016.

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, David A. Gulick, senior assistant state's attorney, and Rocco A. Chiarenza, assistant state's attorney, for the appellant in Docket No. SC 19233 and the appellee in Docket No. SC 19234 (state).

Annacarina Jacob, senior assistant public defender, for the appellee in Docket No. SC 19233 and the appellant in Docket No. SC 19234 (defendant).

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

ZARELLA, J.

The defendant in these certified appeals, Chywon Wright, was convicted of various crimes stemming from his involvement in a sexual assault that occurred on November 1, 2008. On that date, “the victim¹ accompanied Bryan Fuller, a member of a street gang, to a vacant second floor apartment at 19 Taylor Street in [the city of] Waterbury. The victim went to the apartment expecting Fuller to pay her $250. Fuller's fellow gang members, including the defendant, were present at the apartment. Inside the apartment, several of the gang members, including the defendant, took turns openhandedly hitting the victim on her breasts, buttocks and vagina, and engaged in oral intercourse with the victim for approximately one-half hour.

“The victim was then moved to a second room. In this room, the defendant engaged in oral intercourse with the victim and vaginally penetrated the victim while wearing a black plastic convenience store bag on his penis. Also, in that room, several of the defendant's fellow gang members engaged in oral, vaginal and anal intercourse with the victim. These events lasted for approximately one and one-half hours. Eventually, the victim left the apartment, wearing her clothes but leaving her shoes, cell phone and purse behind. Shortly thereafter, the victim went to Saint Mary's Hospital in Waterbury, where she reported the sexual assault and the medical staff [examined her and utilized] a sexual assault evidence collection kit....” (Footnote added.) State v. Wright, 144 Conn.App. 731, 733–34, 73 A.3d 828 (2013).

Subsequently, the defendant was charged with, and found guilty of, two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a–70a (a)(4) and one count each of conspiracy to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–70a (a)(4) and 53a–48 (a), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a–92 (a)(2)(A) and 53a–48 (a), assault in the third degree in violation of General Statutes § 53a–61 (a)(1), and conspiracy to commit assault in the third degree in violation of §§ 53a–61 (a)(1) and 53a–48 (a).² The trial court, Cremins, J., rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty years of incarceration and ten years of special parole.

The defendant appealed to the Appellate Court from the trial court's judgment, claiming, first, that the trial court improperly had precluded him from introducing certain evidence of the victim's prior sexual conduct, thereby violating his constitutional rights of confrontation and to present a defense. Id., at 735–36, 73 A.3d 828. Second, the defendant claimed that his sentence on all three conspiracy counts, which were based on a single agreement with multiple criminal objectives, violated the double jeopardy clause of the federal constitution. Id., at 745, 73 A.3d 828. The Appellate Court rejected the defendant's first claim, concluding that “[t]he record demonstrates that although the [trial] court initially precluded the [defense] from presenting evidence as to the victim's prior sexual conduct, it later allowed the [defense] to present such evidence to the jury.” Id., at 744–45, 73 A.3d 828. The Appellate Court did agree, however, with the defendant's double jeopardy claim. See id., at 747, 73 A.3d 828. The Appellate Court further concluded that, under State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), the proper remedy for such violation was to remand the case to the trial court with direction to vacate the judgment as to two of the conspiracy counts, to render judgment on one of the conspiracy counts, and to resentence the defendant accordingly. State v. Wright, supra, 144 Conn.App. at 748–49, 73 A.3d 828. The defendant and state each appealed from the Appellate Court's judgment, and we granted certification in both appeals. The defendant claims that the Appellate Court incorrectly concluded that the trial court had appropriately limited, under General Statutes § 54–86f,³ his ability to present evidence of the victim's prior sexual conduct. In its appeal, the state argues that the Appellate Court incorrectly concluded that vacatur was the appropriate remedy for the double jeopardy violation stemming from the sentence for the defendant's conviction on the three conspiracy counts. After oral argument, we ordered supplemental briefing in the defendant's appeal. The parties were asked to brief (1) whether State v. DeJesus, 270 Conn. 826, 856 A.2d 345 (2004), should be overruled to the extent that it construed the term “material,” as used in § 54–86f (4), to refer to material in the constitutional sense rather than the evidentiary sense, (2) if the first question is answered in the affirmative, whether the trial court improperly excluded the challenged evidence, and, if so, whether such error is subject to harmless error analysis, and (3) if questions one and two are answered in the affirmative, whether the exclusion of the challenged evidence was harmless beyond a reasonable doubt. Additional facts and procedural history will be set forth as necessary.

I

We first address the defendant's argument that the trial court violated his constitutional rights of confrontation and to present a defense through its application of § 54–86f. The defendant contends that the trial court's application of § 54–86f, the rape shield statute, improperly precluded defense counsel from questioning the victim in the presence of the jury about certain sexual conduct that closely preceded the Taylor Street incident, namely, (1) the victim's offer to Fuller to have sex with multiple men, for multiple hours, for $500, and (2) the victim's act of engaging in consensual oral sex with Fuller and his friend at a different residence on Wolcott Street in Waterbury for the promise of $250. The defendant argues that these lines of inquiry would have supported his defense theory that the Wolcott Street conduct was part of a larger, consensual, sex-for-hire transaction that extended to Taylor Street, and that the victim had fabricated allegations of sexual assault and other crimes after she was not paid for the transaction. His alternative defense theory was that he reasonably believed that the victim had consented to having sexual relations with him at Taylor Street. Citing State v. DeJesus, supra, 270 Conn. 826, 856 A.2d 345, and Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), the defendant maintains that evidence of a victim's prostitution may be relevant and material in a sexual assault case if consent is raised as a defense. Thus, the defendant argues that defense counsel should have received greater latitude in his examination of the victim under the exception to the rape shield statute providing that evidence of the sexual conduct of a victim may be admissible if it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights.” General Statutes § 54–86f (4). In his supplemental brief, the defendant further claims that this court incorrectly concluded in DeJesus that evidence must be material in the constitutional sense to be admissible under § 54–86f (4) and, therefore, should be overruled. Moreover, the defendant avers that the excluded evidence was both relevant and material in an evidentiary sense and that its exclusion violated his constitutional rights of confrontation and to present a defense. Finally, the defendant claims that the state cannot demonstrate that such error was harmless beyond a reasonable doubt.

In response, the state argues that defense counsel was allowed to question the victim about the two aforementioned prostitution related topics and thus was not actually restricted from developing either of the defense theories of consent.⁴ In its supplemental brief, the state agrees with the defendant that DeJesus should be overruled insofar as this court held that the term “material,” in the context of § 54–86f (4), means material in the constitutional sense. Nevertheless, the state maintains that the trial court allowed defense counsel to question the victim and others regarding the $250 payment and the offer to engage in sexual activities for $500, and, thus, the court reasonably exercised its discretion and upheld the defendant's constitutional rights. The state also claims that, even if the trial court improperly excluded the evidence, such error was harmless beyond a reasonable doubt.

A

The record reveals the following additional facts and procedural history that are relevant to the resolution of this claim. On the first day of trial, the state commenced its case by calling the victim as a witness. The victim testified before the jury to the following facts: On November 1, 2008, she went into a second floor apartment on Taylor Street because Fuller owed her money and told her that it was inside. After she entered the apartment, someone immediately locked the door behind her. The defendant and his fellow gang members crowded around the victim, yelled curses at her, yanked at her clothes, and took turns openhandedly hitting her breasts, buttocks, and vagina. The victim was frightened and scared of being...