State v. Benedict ( 2014 )

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STATE OF CONNECTICUT v. ADAM BENEDICT
(SC 19034)
Rogers, C. J., and Palmer, Zarella, McDonald and Vertefeuille, Js.
Argued January 15—officially released September 9, 2014
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were David S. Shepak, state’s attor-
ney, and David R. Shannon, senior assistant state’s
attorney, for the appellant (state).
Hugh D. Hughes, with whom, on the brief, were Wil-
liam F. Gallagher and William J. Ward, for the appel-
lee (defendant).
Opinion
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 Stat-
utes § 53a-73a (a) (6). The state claims that the Appel-
late 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 complainant1 on recross-examination about the con-
ditions 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 com-
plainant 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 condi-
tions, 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 sup-
port of the charge on which the defendant was con-
victed. ‘‘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 defen-
dant’s friend drove the defendant and the complainant
to the defendant’s residence, the friend departed. Upon
entering the defendant’s residence, the complainant fol-
lowed 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. There-
after, 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 boy-
friend 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 complain-
ant.’’ (Footnotes omitted.) State v. Benedict, 136 Conn.
App. 36, 38–40, 43 A.3d 772 (2012).
The record reveals the following additional undis-
puted facts and procedural history. At trial, the defen-
dant 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 com-
plainant 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 appro-
priate 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 com-
menced,2 she had been arrested and charged with pos-
session of narcotics in violation of General Statutes
§ 21a-279 (a), an unclassified felony for which she could
have received a possible seven year sentence and 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 complain-
ant 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 dis-
missed 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 complain-
ant’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 fel-
ony 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, where-
upon 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 fur-
ther 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. More-
over, she denied that the state had promised her any-
thing 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 disposition
of the criminal case against her had anything to do with
her testimony in the present case.
On recross-examination, defense counsel attempted
to ask the complainant the following question that gives
rise to the present appeal: ‘‘Are there any other condi-
tions of your probation?’’ When the prosecutor objected
on the ground of relevance, defense counsel responded
that the prosecutor had ‘‘opened the door’’ to this
inquiry by eliciting testimony from the complainant
about only certain conditions of her program, and then
attempting to minimize the impact of her pending
charge on her credibility. In considering the prosecu-
tor’s objection, the trial court stated, in the presence
of the jury: ‘‘[I]f 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.
. . . [I]t’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.’’ Defense counsel then asked
to rephrase the question, which the court allowed, and
thereafter he asked: ‘‘Are you required to do anything
else, without stating exactly what it is you’re required
to do?’’ The complainant answered ‘‘[y]es,’’ and defense
counsel ended his recross-examination.
The jury subsequently found the defendant guilty of
one count of sexual assault in the fourth degree against
the complainant and not guilty of the two other counts
of that offense and the trial court rendered judgment
in accordance with the verdict.
The defendant appealed to the Appellate Court, rais-
ing four claims, including that the trial court had
deprived him of his right to confrontation when it
restricted his recross-examination of the complainant
by sustaining the prosecutor’s objection to defense
counsel’s question regarding the conditions of her diver-
sionary program. State v. Benedict, supra, 136 Conn.
App. 38. The Appellate Court determined that the defen-
dant’s confrontation claim was dispositive of the
appeal. Id., 38 n.2. The Appellate Court concluded that
the prosecutor had suggested on redirect examination
that the state no longer could influence the final disposi-
tion of the complainant’s pending felony charge because
the two conditions of her diversionary program to
which she testified—meeting with her probation officer
and performing community service—did not include an
agreement to testify favorably for the state. Id., 48.
Therefore, it reasoned that defense counsel’s inquiry
into the other conditions of her diversionary program
was essential to understanding the role that the state
might still have had in influencing the dismissal of her
felony charge upon satisfying those conditions and thus
the potential impact of the pending charge on her credi-
bility. Id., 48–49. The court reasoned that, if the com-
plainant’s satisfaction of the diversionary program’s
conditions could be established by purely objective
measures, then the prosecutor’s potential to undermine
her chances for dismissal would have been minimal at
most. Id., 49. Alternatively, if the additional conditions
required a subjective appraisal of her efforts, then the
prosecutor’s role in influencing the court’s determina-
tion as to her success in the diversionary program would
have remained substantial, giving the state the continu-
ing power to affect her fate in her criminal case. Id.
Therefore, the Appellate Court concluded that the trial
court had ‘‘denied fair and reasonable inquiry into an
important subject already broached by the prosecutor,
and thus categorically discounted, before the jury, the
potential impact of the complainant’s pending charge
on her interest in testifying favorably for the state.’’ Id.,
50. Acknowledging that the trial court eventually had
permitted the defendant to ask whether the complain-
ant had other undisclosed conditions of her probation,
the Appellate Court concluded that such an admission
‘‘was rendered worthless by the [trial] court’s anticipa-
tory declaration [in the jury’s presence] that any such
conditions would be irrelevant to her credibility if they
did not involve an express agreement by her to testify
in favor of the state.’’ Id. The Appellate Court further
concluded that the state had failed to meet its burden
of showing that the error was harmless beyond a reason-
able doubt. Id., 51.
Although its resolution of this claim required reversal
of the defendant’s conviction, the Appellate Court also
considered one of the remaining issues raised in the
defendant’s appeal that it deemed likely to arise on
remand.4 The court agreed with the defendant that the
trial court improperly permitted the state to question
the defendant and his character witnesses about his
social media website login identification, ‘‘smoothcrimi-
nal1977,’’ in violation of the prohibition on the use of
bad character evidence under § 4-4 of the Connecticut
Code of Evidence. Id., 54, 56–57; see also id., 54 n.14
(noting discrepancies regarding login identification and
website). Accordingly, the Appellate Court reversed the
trial court’s judgment and remanded the case for a new
trial. Id., 57.
Thereafter, we granted the state’s petition for certifi-
cation to appeal limited to the following issues: (1)
‘‘Did the Appellate Court properly determine that the
defendant’s right to confrontation was violated at
trial?’’; and (2) ‘‘If so, did the Appellate Court properly
determine that the defendant was harmed?’’ State v.
Benedict, 307 Conn. 911, 53 A.3d 998 (2012). We answer
the first question in the negative and therefore reverse
the judgment of the Appellate Court.
I
The state contends that the Appellate Court improp-
erly reviewed the defendant’s constitutional claim and
that, in any event, the defendant did not present a cogni-
zable confrontation clause claim under the facts of the
case. We disagree with the state that the defendant’s
constitutional claim was not adequately preserved for
appellate review, but agree with the state that the defen-
dant has not asserted a meritorious constitutional claim
on this record.
A
As a preliminary matter, we address the state’s con-
tention that the Appellate Court improperly reviewed
the defendant’s confrontation claim, over the state’s
objection. The state contends that the issue was not
preserved for appellate review because the defendant
articulated an evidentiary, not constitutional, basis for
questioning the complainant about the additional condi-
tions of the diversionary program. The state further
contends that the defendant is not entitled to Golding5
review of his unpreserved constitutional claim because
he provided no offer of proof as to the additional condi-
tions of the complainant’s diversionary program, thus
failing to provide an adequate record for review as
required under the first prong of Golding. Although we
conclude that some of the state’s concerns impact the
defendant’s ability to prevail on the merits of his claim,
we conclude that the defendant adequately preserved
his confrontation claim.
It is axiomatic that issues not properly raised before
the trial court ordinarily will not be considered on
appeal. Practice Book § 60-5. As this court repeatedly
has observed, ‘‘the essence of the preservation require-
ment is that fair notice be given to the trial court of
the party’s view of the governing law . . . .’’ (Emphasis
omitted.) State v. Ross, 269 Conn. 213, 335–36, 849 A.2d
648 (2004). ‘‘A secondary purpose of the preservation
requirement is to prevent the possibility that an appellee
would be lured into a course of conduct at the trial
which it might have altered if it had any inkling that
the [appellant] would . . . claim that such a course of
conduct involved rulings which were erroneous and
prejudicial to him.’’ (Internal quotation marks omitted.)
State v. Favoccia, 119 Conn. App. 1, 14–15, 986 A.2d
1081 (2010), aff’d, 306 Conn. 770, 51 A.3d 1002 (2012).
‘‘Assigning error to a court’s . . . rulings on the basis
of objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Devalda, 306
Conn. 494, 517, 50 A.3d 882 (2012).
In the present case, the defendant initially argued
before the trial court that he should be permitted to
examine the complainant regarding the charge pending
against her under ‘‘well settled’’ law that ‘‘the fact that
a witness is a defendant in a criminal case creates an
interest . . . which affects [her] credibility.’’ In sup-
port of this proposition, the defendant cited several
cases which, although not expressly identified by the
defendant as such, analyze this concern under the
rubric of the defendant’s rights under the confrontation
clause.6 When the prosecutor subsequently asked the
court to reconsider its ruling in light of another case,
he expressly made this connection by noting the right
of a defendant to cross-examine a witness to elicit facts
tending to show motive, interest, bias or prejudice in
order ‘‘[t]o comport with the constitutional standards
embodied in the confrontation clause . . . .’’ State v.
Wilson, supra, 188 Conn. 720. Therefore, it cannot rea-
sonably be argued that either the trial court or the
prosecutor failed to grasp the potential constitutional
significance of the line of questioning that the defendant
sought to pursue.
In light of the fact that the defendant’s constitutional
claim centers on the limitation imposed on him during
recross-examination, however, the state points to the
defendant’s subsequent argument that he had the right
to inquire into the details of the complainant’s diversion-
ary program because the prosecutor had ‘‘opened the
door’’ as proof of the evidentiary nature of his objection.
Although such a ground, in isolation, would be con-
strued as evidentiary and thus inadequate to preserve
a constitutional objection; see State v. Stenner, 281
Conn. 742, 755, 917 A.2d 28, cert. denied, 552 U.S. 883,
128 S. Ct. 290, 169 L. Ed. 2d 139 (2007); State v. Paulino,
223 Conn. 461, 467, 613 A.2d 720 (1992); the defendant
sought to question the complainant on the same subject
matter—the complainant’s incentive to testify favorably
for the state due to her pending felony charge—for
which a constitutional basis previously had been estab-
lished. Therefore, the defendant did not need to renew
his constitutional objection to preserve it. See State v.
Favoccia, supra, 119 Conn. App. 16 (holding defendant
preserved claim despite failure to expressly predicate
subsequent objections on credibility basis earlier
advanced because he had previously alerted court to
precise question of law pertaining thereto); State v.
Guckian, 27 Conn. App. 225, 239 n.7, 605 A.2d 874 (1992)
(holding state preserved claim despite failure to object
to specific testimony because ‘‘record clearly shows
that the state repeatedly alerted the trial court to the
issue it now presses on appeal’’), aff’d, 226 Conn. 191,
627 A.2d 407 (1993); Sokolowski v. Medi Mart, Inc., 24
Conn. App. 276, 279–80, 587 A.2d 1056 (1991) (holding
defendant preserved claim despite failure to object to
specific testimony in light of ‘‘trial court’s previously
expressed sentiment about the issue’’). Moreover, to
the extent that the trial court sustained the state’s objec-
tion on the ground of relevance, it would be of no avail
for the defendant to renew his argument that this line
of questioning was of constitutional significance. See
State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276
(1978) (‘‘The defendant’s right to confront witnesses
against him is not absolute, but must bow to other
legitimate interests in the criminal trial process. Cham-
bers v. Mississippi, [410 U.S. 284, 295, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973)]. Such interests are implicit in
a trial court’s accepted right, indeed, duty, to exclude
irrelevant evidence; see State v. Reed, 174 Conn. 287,
299–300, 386 A.2d 243 [1978]; or evidence which, if
admitted, would have a greater prejudicial than proba-
tive effect. See, e.g., State v. Moynahan, 164 Conn. 560,
597, 325 A.2d 199 [1973].’’ [Internal quotation marks
omitted.]). Accordingly, the defendant has not sub-
jected either the trial court or the state to ambush by
raising on appeal the issue of whether his right to con-
frontation was violated on recross-examination.
In light of our conclusion that the defendant pre-
served his constitutional claim, we need not consider
the state’s alternative argument regarding whether the
defendant has provided us with an inadequate record
for purposes of review of an unpreserved claim under
Golding. Nonetheless, the concerns that the state has
articulated bear on whether the defendant established
a sufficient nexus between the testimony he sought to
elicit and the complainant’s motive to testify favorably
for the state to implicate his confrontation rights. We
therefore turn next to that issue.
B
The state contends that, in the absence of an offer of
proof from which the trial court could have determined
whether the additional conditions of the complainant’s
diversionary program were relevant to her motive to
testify favorably for the state, the Appellate Court
improperly determined that the defendant had pre-
sented an adequate basis to weigh the constitutional
significance of those conditions against any privilege
the complainant had in her sealed record. The state
further argues that, on the record presented, the defen-
dant has not presented a cognizable confrontation
clause claim because: (1) he was not deprived of an
opportunity to probe into the potential toward bias that
the pending charge and diversionary program may have
had on the complainant; (2) he was permitted to fully
explore other reasons for the complainant’s bias and
motive to fabricate; and (3) limits on recross-examina-
tion do not violate the confrontation clause if the oppor-
tunity to explore bias and motive is afforded on cross-
examination. The defendant responds that the Appel-
late Court correctly determined that no offer of proof
was required because the mere pendency of a criminal
charge against a witness has the potential to influence
her to testify in favor of the state, and the statutory
scheme that governs the complainant’s diversionary
program enumerates conditions reflecting their rele-
vance to such potential influence. The defendant also
contends that, although he was given the opportunity
to cross-examine the complainant, that opportunity was
not a meaningful one as required by the sixth amend-
ment because the trial court allowed the prosecutor to
negate the effect of his cross-examination on redirect
examination but did not permit him on recross-exami-
nation to correct the incomplete and misleading impres-
sion created by the testimony elicited by the state. He
further contends that, because the testimony elicited
by the state on redirect examination was new material,
he had a constitutional right to inquire further into the
conditions of the complainant’s diversionary program.
We conclude that the Appellate Court improperly
determined that the defendant had demonstrated that
the additional conditions of the complainant’s diver-
sionary program were sufficiently relevant to implicate
his right to confrontation. In light of this evidentiary
gap, we conclude that the defendant has not established
the basis for a valid confrontation claim.
‘‘[T]he sixth amendment to the [United States] consti-
tution guarantees the right of an accused in a criminal
prosecution to confront the witnesses against him. . . .
The primary interest secured by confrontation is the
right to cross-examination . . . and an important func-
tion of cross-examination is the exposure of a witness’
motivation in testifying. . . . Cross-examination to
elicit facts tending to show motive, interest, bias and
prejudice is a matter of right and may not be unduly
restricted.’’ (Internal quotation marks omitted.) State
v. Moore, 293 Conn. 781, 791, 981 A.2d 1030 (2009), cert.
denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306
(2010). ‘‘[I]t is well settled law that [t]he fact that the
witness is a defendant in a criminal prosecution . . .
creates an interest which affects his [or her] credibility.’’
(Internal quotation marks omitted.) State v. Ortiz, 198
Conn. 220, 224, 502 A.2d 400 (1985). ‘‘The constitutional
standard is met when defense counsel is permitted to
expose to the jury the facts from which [the] jurors, as
the sole triers of fact and credibility, could appropri-
ately draw inferences relating to the reliability of the
witness.’’ (Internal quotation marks omitted.) State v.
Erickson, 297 Conn. 164, 189, 997 A.2d 480 (2010).
‘‘However, [t]he [c]onfrontation [c]lause guarantees
only an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.’’ (Internal
quotation marks omitted.) State v. Moore, supra, 293
Conn. 791. ‘‘We have emphasized in numerous decisions
. . . that the confrontation clause does not give the
defendant the right to engage in unrestricted cross-
examination. . . . [For example, a] defendant may
elicit only relevant evidence through cross-examina-
tion.’’ (Citations omitted.) State v. Valentine, 255 Conn.
61, 71, 762 A.2d 1278 (2000). ‘‘The court determines
whether the evidence sought on cross-examination is
relevant by determining whether that evidence renders
the existence of [other facts] either certain or more
probable. . . . The trial court has wide discretion to
determine the relevancy of evidence and the scope of
cross examination. Every reasonable presumption
should be made in favor of the correctness of the [trial]
court’s ruling . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Barnes, 232 Conn. 740,
746–47, 657 A.2d 611 (1995).
‘‘The proffering party bears the burden of establishing
the relevance of the offered testimony. Unless a proper
foundation is established, the evidence is irrelevant.
. . . Relevance may be established in one of three ways.
First, the proffering party can make an offer of proof.
. . . Second, the record can itself be adequate to estab-
lish the relevance of the proffered testimony. . . .
Third, the proffering party can establish a proper foun-
dation for the testimony by stating a good faith belief
that there is an adequate factual basis for his or her
inquiry.’’ (Citations omitted; internal quotation marks
omitted.) State v. Beliveau, 237 Conn. 576, 586, 678
A.2d 924 (1996).
We agree with the Appellate Court that, in light of
the complainant’s testimony indicating that she did not
have an agreement with the state in exchange for her
testimony, the ultimate measure of her potential bias
was whether she believed that, by providing favorable
testimony, she could garner favor with the state and
gain its assistance with the ultimate disposition of her
pending criminal charge. To provide the requisite suffi-
cient nexus between the conditions of her program
and her credibility; see id., 589–90; therefore, it was
incumbent upon the defendant to demonstrate that the
complainant believed or had reason to believe that the
office of the state’s attorney directly or indirectly could
influence whether she was deemed to have satisfied
the unidentified conditions.
In the present case, the defendant elicited from the
complainant that she had a pending felony charge, and
the prosecutor elicited the fact that this charge would
be dismissed upon her satisfaction of the conditions of
her diversionary program. Those facts, however, did
not establish an independent basis in the record or
the basis of a good faith belief to conclude that the
unspecified conditions of the diversionary program pro-
vided a means by which the office of the state’s attorney
actually could, or the complainant would have believed
that it could, influence the disposition of that charge.
Upon the prosecutor’s objection as to the relevancy of
a question pertaining to the other conditions of her
diversionary program, the defendant made no offer of
proof as to what evidence he expected to elicit from
the complainant; rather, he simply asked to rephrase
his question to elicit that she did in fact have to satisfy
other unidentified conditions. The defendant also made
no argument before the trial court that any particular
condition would have been statutorily required, as he
appears to suggest in his brief to this court. Further-
more, an examination of the statutory scheme that the
parties agree likely governed the complainant’s diver-
sionary program reveals no such mandate. See General
Statutes §§ 17a-691 through 17a-701 (providing for treat-
ment and suspension of prosecution for certain persons
who were drug or alcohol dependent at time of commis-
sion of crime). General Statutes § 17a-696 (c) provides
that ‘‘[t]he court or the Court Support Services Division
may require’’; (emphasis added); inter alia, that a per-
son comply with any of the conditions specified in Gen-
eral Statutes § 53a-30 (a) and (b). Section 53a-30 (a) in
turn sets forth seventeen possible conditions, the last
of which is to ‘‘satisfy any other conditions reasonably
related to the [person’s] rehabilitation.’’ General Stat-
utes § 53a-30 (a) (17). The defendant has failed to point
to a single condition that, on its face, supports his theory
that the office of the state’s attorney could derail the
dismissal that the complainant was anticipating.7 Thus,
the defendant ‘‘never removed from the realm of coun-
sel’s speculation . . . by the introduction of competent
evidence or an offer of proof’’; (internal quotation marks
omitted) State v. Gould, 241 Conn. 1, 18, 695 A.2d 1022
(1997); the existence of a belief by the complainant or
actual conditions that would have been probative of
the complainant’s possible motive to testify favorably
for the state.
Contrary to the view of the Appellate Court and the
defendant, State v. Santiago, 224 Conn. 325, 330–31 n.6,
332, 618 A.2d 32 (1992), does not support the proposi-
tion that no offer of proof was needed to establish the
relevance of the testimony sought in the present case.
As this court previously explained in State v. Barnes,
supra, 232 Conn. 748, when we rejected the same propo-
sition, ‘‘[i]n light of our review of the record in Santiago,
we concluded that the defendant’s line of inquiry was
clearly supported by the evidence and relevant to the
witness’ bias, despite the fact that the defendant had
made no offer of proof. . . . Thus, in Santiago, the
record independently was adequate to establish the rel-
evance of [the] evidence sought to be elicited.’’ (Citation
omitted.) Indeed, in Barnes, the court cited case law
that previously established this proposition; id., 748–49;
and rejected the propriety of allowing a defendant to
attempt ‘‘to use cross-examination as a tool to investi-
gate purely speculative sources of witness bias, rather
than as a tool to discredit testimony on the basis of [an
offer of proof, the record itself, or] a preexisting good
faith belief that bias existed.’’ Id., 749.
We note that the necessity of proof of relevancy had
additional significance in the present case in light of
the fact that the state indicated that the complainant’s
record had been sealed. Although it is clear that the
defendant’s constitutional right to confront the com-
plainant trumps the state’s interest in protecting the
confidentiality of sealed records;8 see Davis v. Alaska,
415 U.S. 308, 320, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974);
the relevancy of the proffered evidence must be estab-
lished before such confidentiality can be breached.
Accordingly, ‘‘[t]he record in the present case does not
reveal how [the witness] would have answered the ques-
tion or what details [she] would have provided in
answering the question. It is therefore impossible to
determine whether those details were so important to
the defendant’s case that their preclusion . . .
impaired his constitutional rights.’’ (Internal quotation
marks omitted.) State v. Colon, 272 Conn. 106, 214, 864
A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct.
102, 163 L. Ed. 2d 116 (2005).9
II
In light of our conclusion that the Appellate Court
improperly determined that the trial court violated the
defendant’s right to confrontation, the defendant is enti-
tled to consideration of the other claims that he had
raised on appeal that the Appellate Court did not
address; see footnote 4 of this opinion; as well as consid-
eration of the evidentiary claim that the Appellate Court
only addressed on the merits. The defendant contends,
however, that, because the state did not challenge the
Appellate Court’s determination that the trial court
improperly admitted bad character evidence regarding
the defendant’s social media login name, it has ‘‘waived
[the] issue [of whether this impropriety deprived the
defendant of a fair trial] and cannot challenge the Appel-
late Court’s determination that [the defendant] is enti-
tled to a new trial on this issue.’’ We disagree.
The Appellate Court never considered the issue of
whether the defendant proved that the evidentiary error
was harmful. The Appellate Court’s consideration of
this question was unnecessary in light of its resolution
of the defendant’s confrontation claim, which indepen-
dently required reversal of the judgment and a remand
for a new trial. In the absence of the necessary predicate
for a new trial on the basis of the evidentiary error—
a determination of harm—the Appellate Court will be
required to consider this issue as part of its consider-
ation of the defendant’s remaining claims upon remand.
See Klein v. Norwalk Hospital, 299 Conn. 241, 254, 9
A.3d 364 (2010) (‘‘[B]efore a party is entitled to a new
trial because of an erroneous evidentiary ruling, he or
she has the burden of demonstrating that the error was
harmful. . . . In other words, an evidentiary ruling will
result in a new trial only if the ruling was both wrong
and harmful.’’ [Citation omitted; emphasis added; inter-
nal quotation marks omitted.]).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
consider the defendant’s remaining claims on appeal in
accordance with this opinion.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the complainant or others
through whom the complainant’s identity may be ascertained. See General
Statutes § 54-86e.
2
This appeal arises from the defendant’s second trial on these charges.
His first trial ended in a mistrial. The complainant was arrested prior to the
defendant’s first trial.
3
The complainant also stated that she had been charged with four counts
relating to the possession of drug paraphernalia, a misdemeanor offense.
4
The Appellate Court did not reach the defendant’s claims that the trial
court violated his state and federal constitutional rights to a fair trial by an
impartial jury when it denied: (1) his challenge for cause with respect to a
venireperson; and (2) his request for a continuance to permit him to raise
a challenge to the jury array. State v. Benedict, supra, 136 Conn. App. 38 n.2.
5
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989) (setting
forth four-pronged test to prevail on unpreserved constitutional claim).
6
The defendant cited to State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985),
State v. Lubesky, 195 Conn. 475, 488 A.2d 1239 (1985), State v. Shipman,
195 Conn. 160, 486 A.2d 1130 (1985), and State v. George, 194 Conn. 361,
481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed.
2d 968 (1985).
7
The defendant contends in his brief to this court that the impact of the
conditions on the complainant’s credibility is not speculative because, under
the provision addressing termination of a suspended prosecution due to a
violation of conditions; General Statutes § 17a-698 (a); ‘‘a governmental
entity could still derail the dismissal which [the complainant] was anticipat-
ing . . . .’’ There remains a fundamental problem with this contention. The
defendant still would have to establish some basis to believe that, due to
the nature of the conditions of the complainant’s diversionary program, not
only could this unidentified governmental actor influence the determination
as to whether the complainant had satisfied the conditions of her diversion-
ary program, but also that, at the very least, the complainant believed that
this actor was subject to the influence or oversight of the office of the
state’s attorney. For the same reasons previously set forth, it would be pure
speculation under this record to reach such a conclusion.
We also note that there is nothing in the statutory scheme that expressly
provides an opportunity for the office of the state’s attorney to influence
whether a diversionary program participant has satisfied any condition
imposed. Under the statutory scheme, the trial court makes the determina-
tion to suspend prosecution of an individual and order his or her participation
in a diversionary program. See General Statutes § 17a-696 (b). Upon such
an order, the Court Support Services Division (support services), a division
of the Judicial Branch, assumes custody over persons participating in such
programs; see General Statutes § 17a-692 (a); the trial court or support
services orders the participants to comply with certain conditions; see Gen-
eral Statutes § 17a-696 (c); and the trial court determines whether to modify
or terminate the suspension of prosecution of a participant upon notification
by support services of a violation of a condition of the diversionary program.
See General Statutes § 17a-698 (a) and (b).
8
The basis upon which the complainant’s record was sealed is not revealed
by the record.
9
In light of our conclusion, we do not reach the parties’ remaining claims
addressing whether the trial court provided the defendant with a meaningful
opportunity to confront the complainant on recross-examination because
of the complainant’s testimony on redirect examination. As a result of the
defendant’s failure to meet his burden of establishing the relevancy of his
inquiry into the conditions of the complainant’s diversionary program, he
failed to prove that the complainant’s testimony on redirect examination
implicated his confrontation rights.