State v. Wright ( 2016 )

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STATE v. WRIGHT—CONCURRENCE
ESPINOSA, J., concurring. I generally agree with and
join parts I and II of the majority opinion and I agree
with the majority that the judgment of the Appellate
Court, affirming in part the conviction of the defendant,
Chywon Wright, should be affirmed. I write separately,
however, because I am not persuaded by the majority’s
conclusion in part I C of its opinion that the trial court
abused its discretion by excluding evidence of the vic-
tim’s1 actions and statements to Bryan Fuller at a Wol-
cott Street residence in Waterbury (Wolcott Street)
prior to the sexual assault committed by the defendant
at a Taylor Street apartment in Waterbury (Taylor
Street). In my view, it was not an abuse of discretion
for the trial court to have excluded evidence that, under
the evidentiary sense of ‘‘material’’ as articulated in the
majority opinion, has no bearing on the defendant’s
theories of consent, or reasonable belief of consent, as
to the Taylor Street incident. Accordingly, I concur.
In revisiting our decision in State v. DeJesus, 270
Conn. 826, 845, 856 A.2d 345 (2004), the majority con-
cludes—and I fully agree—that this court improperly
construed the term ‘‘material’’ in General Statutes (Rev.
to 2015) § 54-86f (4), the rape shield statute, in its consti-
tutional, rather than evidentiary, sense. The majority
concludes, under our renewed understanding of the
rape shield statute, that ‘‘[t]he evidence that the defense
proffered, through the testimony of the victim, was both
relevant and material to a critical issue in this case,’’
and, therefore, that ‘‘the excluded evidence was admis-
sible under [General Statutes (Rev. to 2015)] § 54-86f
(4) and that the trial court abused its discretion by
excluding such evidence.’’ In my opinion, the majority’s
conclusion is not reconcilable with the applicable abuse
of discretion standard of review. Applying that stan-
dard, I conclude that the trial court did not abuse its
discretion in excluding the victim’s testimony about the
events at Wolcott Street as such events had no nexus
to the defendant’s subsequent acts at Taylor Street and,
therefore, were neither material nor relevant to his
defense.
This court has consistently recognized that it will
‘‘set aside an evidentiary ruling only when there has
been a clear abuse of discretion. . . . The trial court
has wide discretion in determining the relevancy of
evidence and the scope of cross-examination and
[e]very reasonable presumption should be made in
favor of the correctness of the court’s ruling in
determining whether there has been an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v. San-
tos, 318 Conn. 412, 423, 121 A.3d 697 (2015). Generally,
a trial court abuses its discretion when the court ‘‘could
have chosen different alternatives but has decided the
matter so arbitrarily as to vitiate logic, or has decided
it based on improper or irrelevant factors.’’ (Internal
quotation marks omitted.) State v. O’Brien-Veader, 318
Conn. 514, 555, 122 A.3d 555 (2015). When this court
reviews a decision of the trial court for abuse of discre-
tion, ‘‘the question is not whether any one of us, had
we been sitting as the trial judge, would have exercised
our discretion differently. . . . Rather, our inquiry is
limited to whether the trial court’s ruling was arbitrary
or unreasonable.’’ (Citation omitted; internal quotation
marks omitted.) State v. Cancel, 275 Conn. 1, 18, 878
A.2d 1103 (2005). Accordingly, ‘‘the abuse of discretion
standard reflects the context specific nature of eviden-
tiary rulings, which are made in the heat of battle by
the trial judge, who is in a unique position to [observe]
the context in which particular evidentiary issues arise
and who is therefore in the best position to weigh the
potential benefits and harms accompanying the admis-
sion of particular evidence.’’ (Internal quotation marks
omitted.) State v. Collins, 299 Conn. 567, 593 n.24, 10
A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181
L. Ed. 2d 193 (2011).
At trial, the defendant’s main theory of defense was
that the victim consented to his sexual contact at Taylor
Street as part of an overarching sex-for-hire transaction
encompassing both the Taylor Street incident and the
prior transaction at Wolcott Street where the victim
performed oral sex on Fuller and another individual in
exchange for $250. When defense counsel initially asked
the victim during cross-examination why it was that
Fuller owed her money, the state objected on the
ground that such a line of inquiry was irrelevant to the
events that transpired at Taylor Street. The defendant
countered that the testimony was relevant to his
defense that the victim consented via an extended sex-
for-hire transaction that spanned both locations. In
response, the trial court dismissed the jury from the
courtroom and held a hearing pursuant to the rape
shield statute in order to vet whether the testimony
was relevant and material to the theory of defense.
At the hearing, the trial court stated that the defen-
dant’s argument would support the conclusion that the
prior transaction at Wolcott Street was relevant ‘‘if . . .
Fuller were the defendant in this case,’’ but it did not
see the connection between the victim’s transactions
with other individuals and the defendant’s theory that
the victim consented to a sexual transaction with him
specifically. Defense counsel responded that his theory
was that the defendant was a ‘‘third-party beneficiary’’
of the sexual transaction between Fuller and the victim.
Significantly, however, counsel offered no evidence in
support of that assertion. Throughout the hearing, the
state maintained that the testimony regarding the vic-
tim’s sexual contact with Fuller at Wolcott Street was
irrelevant to the issue of whether the victim consented
to the defendant’s conduct at Taylor Street. Ultimately,
the trial court concluded that it would allow ‘‘[n]o ques-
tions about what happened prior’’ to the incident at
Taylor Street until the defendant was able to proffer
evidence ‘‘appropriate to establish the issue of con-
sent . . . .’’
During the presentation of his case, the defendant
recalled the victim as a witness and again attempted
to question her as to her interactions with Fuller at
Wolcott Street. After having the jury dismissed from
the courtroom, the trial court informed defense counsel
that it still would not allow questions about events
that transpired at Wolcott Street. In response, defense
counsel repeated his theory that the Wolcott Street and
Taylor Street incidents were ‘‘one [and] the same.’’ The
trial judge reaffirmed his previous restriction on ques-
tions concerning Wolcott Street: ‘‘I’m trying to give you
as much leeway here as I can, considering both the rape
shield statute and your client’s constitutional rights.
But what’s important in my view and relevant is what
happened at 19 Taylor Street, and I don’t consider it,
in my view, as one transaction. . . . The questions
related to Taylor Street, I’m going to listen to, but not
related to Wolcott Street. That, I don’t consider to be
a continuation of the same transaction.’’ (Emphasis
added.) Accordingly, again having determined that the
inquiry into Wolcott Street was not relevant to the
defendant’s theory of consent, the trial court continued
to prevent questioning on that point. During this second
colloquy outside the presence of the jury, the defendant
did not offer any additional evidence that would have
explained how the events that took place at Wolcott
Street between the victim and Fuller were relevant and
material to his theory that she consented to the events
at Taylor Street.
When viewed in the context of the other evidence
presented at trial, the trial court’s application of the rape
shield statute to prevent the defendant from questioning
the victim about the events at Wolcott Street was clearly
well within the trial court’s discretion. Indeed, there is
no evidentiary support for the defendant’s contention
that the victim’s sexual activity with Fuller at Wolcott
Street implied the victim’s consent to the defendant’s
sexual contact with her at Taylor Street. The defen-
dant’s theory that Fuller negotiated a sexual transaction
at Wolcott Street for the benefit of the defendant and
the other individuals at Taylor Street was repeatedly
disavowed at the rape shield hearing by both the vic-
tim’s testimony and the defendant’s statement to the
police that the victim was unaware that the defendant
and others at Taylor Street planned to sexually assault
her. There is simply no link between the two incidents
other than the fact that the victim was a prostitute and
that Fuller was present at both locations. In my view,
the trial court properly concluded, therefore, that any
testimony relating to the victim’s actions with Fuller at
Wolcott Street was irrelevant and immaterial to the
charges brought against the defendant for his actions
at Taylor Street.
The other evidence presented at trial—which was
before the trial court when it made its determination
to exclude testimony related to Wolcott Street—plainly
demonstrates that the victim’s actions at Wolcott Street
have no relevant and material link to the defendant’s
defense of consent. First, the victim’s testimony both
at trial and at the hearing establishes that the events
at Taylor Street were not a continuation of the transac-
tion at Wolcott Street. Indeed, there is no evidence that
the victim went to Taylor Street for the purpose of
offering sexual services to the defendant or his fellow
gang members in exchange for money, rather than for
the benign reason of collecting payment from Fuller
for her previous services. At the Wolcott Street resi-
dence, the victim and Fuller negotiated for her services.
In the course of doing so, the victim offered to have
sex with Fuller and three other men for $500. The victim
testified, however, that Fuller never accepted that offer.
Instead, the victim performed oral sex on Fuller and a
companion for the agreed sum of $250. The victim then
accompanied Fuller to Taylor Street because ‘‘Fuller
owed [her] money’’ for her services at Wolcott Street.
On cross-examination at the hearing, defense counsel
asked the victim: ‘‘[W]hile you were on your way over
there, [Fuller] said that there was going to be three or
four other guys there . . . . At Taylor Street? . . . So
you understood that to have sex with those three or
four other guys. Correct?’’ The victim denied any such
understanding between her and Fuller, testifying that
she expected the individuals at Taylor Street to ‘‘holler’’
and ‘‘catcall’’ at her, and ‘‘[t]hat’s what [she] took it as,
not sex.’’ (Emphasis added.) Fuller told the victim that
the money was located on the second floor of the Taylor
Street residence, where, instead, she was ultimately
sexually assaulted by the defendant and his fellow gang
members. On further questioning by the defense, the
victim specifically stated that she was not going to
Taylor Street to have sex with additional men for more
money. The victim repeated numerous times in
response to questions from defense counsel and the
prosecutor that she did not go to Taylor Street in order
to have sex pursuant to an earlier agreement with Ful-
ler.2 When the victim entered the second floor of the
Taylor Street residence, someone locked the door and
she was forced to comply with the demands of the
defendant and other individuals for sexual acts because,
as she testified: ‘‘I was scared that if I didn’t, that I was
going to get hurt and not be able to get out of there.’’
The victim testified that the defendant himself ‘‘took
his hand and put it only the back of my head and forced
my mouth [o]nto his penis.’’
Second, Fuller’s own testimony confirms the victim’s
assertion that she did not intend to have sexual relations
with anyone at Taylor Street pursuant to a deal made
with Fuller at Wolcott Street. In his testimony, Fuller
reiterated multiple times that at Taylor Street, ‘‘[he]
was just supposed to pay [the victim]. There was no
arrangement for anything,’’ and the victim believed only
that she would be collecting $250 at Taylor Street. Fuller
further testified: ‘‘That was my whole intention for her
to go there and have sex with them. I basically set the
whole thing up without her knowing . . . . [S]he was
standing by me and she didn’t know what was going
on at the time. She didn’t know nothing. All she knew
that she was supposed to get paid and that was it.’’
(Emphasis added.) Thus, while the victim remained
unaware of Fuller’s designs en route to Taylor Street,
Fuller telephoned his friends ‘‘Yajo’’ and ‘‘T Money’’ and
informed them that he was bringing the victim to Taylor
Street to have sex with them. Notably, Fuller did not
call ahead to the defendant to inform him of his plans
concerning the victim. Following the assault, Fuller con-
fronted the victim as she was leaving and told her that
‘‘it wasn’t supposed to go down like that,’’ and acknowl-
edged that the victim ‘‘felt violated.’’ Fuller’s testimony
therefore comports with the victim’s testimony that the
Taylor Street incident was distinct and separate from
the events at Wolcott Street and was not linked by
an overarching sexual transaction that spanned both
locations. The evidence reveals only that the victim was
deceived by Fuller into believing that the sole purpose
of going to Taylor Street was to obtain payment for
the transaction at Wolcott Street. The fact that Fuller
deceived the victim in this manner did not render the
transaction between Fuller and the victim relevant to
the issue of whether she consented to sexual acts with
the defendant at Taylor Street.
Finally, and perhaps most tellingly, the defendant’s
own postarrest statement to the police—that was fully
admitted into evidence—demonstrates that the events
at Taylor Street were not an outgrowth of the consen-
sual, sex-for-hire transaction that previously occurred
at Wolcott Street between Fuller and the victim. The
defendant stated that when Fuller and the victim arrived
at Taylor Street he heard Fuller ‘‘tell [the victim] that
the money he owes her is upstairs on the second floor
but I knew he was lying to her because he told me that
[he was lying to her] and I also know that the second
floor is a vacant apartment. The [victim] kept asking
him for the money so we all went up to the second
floor . . . . The whole time this was going on the [vic-
tim] thought she was gonna get her money but [Fuller]
was telling all of us that we was gonna fuck this girl.’’
(Emphasis added.)
The defendant’s further statements reveal that his
actions were not part of a consensual interaction: ‘‘I
know [the victim] didn’t like us smackin her ass because
she told us it hurt and to stop. . . . I grabbed [the
victim] and put her head on my dick so she would suck
it. . . . I could tell at this point that the [victim] wasn’t
liking this and she started to look scared. . . . The
[victim] then said that she was scared and afraid that
we was gonna kill her. We was telling her that we ain’t
gonna kill her but we wanna fuck her. . . . [W]e wasn’t
letting her leave until we were done with her.’’ Notably,
when recounting how the victim was forced to perform
oral sex, the defendant specifically stated that he ‘‘didn’t
see [Fuller] get his dick sucked [at Taylor Street],’’
despite his own contention that Fuller was the link
between the Taylor Street and Wolcott Street incidents.
The defendant’s own account further reinforces the
conclusions drawn from both the victim’s and Fuller’s
testimony that the Taylor Street incident was not a
consensual outgrowth of the sex-for-hire transaction
consummated by Fuller and the victim at Wolcott
Street. Perhaps if the defendant had testified at trial
he may have added additional detail that would have
supported a defense of consent or reasonable belief
thereof. The defendant, however, decided not to testify,
due likely in part to his knowledge that he would possi-
bly have been impeached and discredited on cross-
examination by the content of his written statement,
which clearly contradicts any potential evidence of
consent.
Overall, the defendant’s statement and the testimony
of Fuller and the victim all convey a similar sequence
of events: the victim performed oral sex on Fuller in
exchange for money at Wolcott Street; Fuller brought
the victim to Taylor Street under the pretext of collect-
ing her payment; and Fuller, the defendant, and the
other gang members actually intended, without any pre-
vious indication to the victim, to sexually assault her
at Taylor Street. In my examination of the evidence,
there is absolutely no link between the consensual
transaction consummated by the victim and Fuller at
Wolcott Street and the issue of whether the victim con-
sented to the defendant’s actions at Taylor Street. In
my view, the trial court did not abuse its discretion
in likewise determining that there was no connection
between the two incidents that would render the Wol-
cott Street evidence material to the defendant’s consent
defense. Indeed, the defendant’s theory of consent
essentially boils down to the argument that because
the victim had sexual relations with Fuller in exchange
for money at Wolcott Street, she also consented to the
defendant’s acts at Taylor Street.
I am unconvinced, as the trial court apparently was
as well, that consent granted to one individual at a
particular location implies consent to a completely dif-
ferent person at a geographically distinct location with
no clear connection to the events at the first location.
The only fact that could possibly support such a theory
is the victim’s prostitution3 at Wolcott Street, which the
trial court excluded as irrelevant to the issue of consent
at Taylor Street. The majority opinion contends that
the victim’s prior prostitution with Fuller was not the
only evidence supporting the defense theory and that
the alleged multiperson, sex-for-hire transaction was
also relevant. The majority, however, points to no place
in the record where the testimony of Fuller or the victim
definitively evinces that such a transaction was bar-
gained for, agreed upon, or acted out. In fact, the only
place in the record where such a theory is mentioned
is in defense counsel’s questions on cross-examination
and statements to the court during the rape shield hear-
ing, not in the testimony of any of the witnesses. And
the statements of counsel are, of course, not evidence.
Under the majority’s approach, however, the fact that
the defendant presented a theory of consent in his ques-
tioning and arguments, but without any evidentiary
basis in the trial testimony, is sufficient to render the
victim’s prior prostitution at Wolcott Street relevant
and material. Such self-fulfilling materiality, whereby
evidence becomes material to the central theory of
defense simply because defense counsel declares it so,
erodes the discretion of the trial court under the rape
shield statute to consider the materiality and relevancy
of proffered evidence and determine the admissibility
of such evidence.
Under my review of the record, the trial court prop-
erly rejected the theory that a woman’s act of prostitu-
tion with one individual, without more, is necessarily
relevant to the issue of whether she has consented to
have sex with a different individual. When stating its
opposition to the defense theory at the rape shield hear-
ing, the state summed up its counterpoint before the
trial court in clear, unmistakable language: ‘‘Prostitutes
[can] be raped, Your Honor.’’ Had it been Fuller pre-
senting this defense and not the defendant, the theory
of consent via an extended sex-for-hire transaction
would be much more plausible given Fuller’s clear con-
nection with both locations. The defendant, however,
presented no evidence of such a connection to the trial
court. Our decisions in this context recognize that
‘‘[e]vidence is irrelevant or too remote if there is such
a want of open and visible connection between the
evidentiary and principal facts that, all things consid-
ered, the former is not worthy . . . to be admitted in
the proof of the latter.’’ (Internal quotation marks omit-
ted.) State v. Crespo, 303 Conn. 589, 603, 35 A.3d 243
(2012). The testimony concerning events at Wolcott
Street is exactly that: entirely unconnected from the
issue of consent at Taylor Street and therefore immate-
rial and irrelevant to the central theory of the defense.
Accordingly, I would conclude that the trial court
properly exercised its discretion in excluding the Wol-
cott Street testimony because such testimony was not
material and relevant to the defense and its exclusion
inflicted no harm on the defendant’s constitutional
rights. I therefore respectfully concur in the judgment.
1
See footnote 1 of the majority opinion.
2
‘‘[Defense Counsel]: Did you get any money for Wolcott Street?
‘‘[The Victim]: No.
‘‘[Defense Counsel]: So when you went to Taylor Street, your purpose
was to sexually service a number of other guys to get the $250?
‘‘[The Victim]: No.
‘‘[Defense Counsel]: It wasn’t?
‘‘[The Victim]: No.
***
‘‘[Defense Counsel]: Okay. And so prior to that, you knew you were going
to Taylor Street for the purposes of having sex. Correct?
‘‘[The Victim]: No.
***
‘‘[Defense Counsel]: Did you have a conversation with . . . Fuller where
the figure $500 came up as a fee for your services?
‘‘[The Victim]: Right. For Wolcott Street.
***
‘‘[Defense Counsel]: You had no expectations of having sex with anybody
in that [Taylor Street] apartment?
‘‘[The Victim]: No.
‘‘[Defense Counsel]: Isn’t it true that you went there, agreed to have sex
for money, and there wasn’t any force involved? Isn’t that true?
‘‘[The Victim]: No.
***
‘‘[The Prosecutor]: When you went to 19 Taylor Street, did you intend to
have sex with anyone?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: When you went into that second floor apartment, did
you intend to have sex with anyone?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: Did you consent to have sex with anyone?
‘‘[The Victim]: No.’’
3
It is difficult to imagine a defendant raising a defense similar to that in
the present case in a case where the victim is not a prostitute. For example,
it would severely strain credulity for a defendant to argue that because a
victim had consensual sex with a romantic partner at one location, the
victim’s consent to the initial sexual encounter could be ‘‘transferred’’ to a
group of unrelated individuals at a second location.