State v. Leniart ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. GEORGE
MICHAEL LENIART
(AC 36358)
Prescott, Devlin and Sheldon, Js.
Syllabus
The defendant, who was convicted of capital felony and murder following
the disappearance of the fifteen year old victim, appealed from the
judgment of conviction, claiming, inter alia, that certain evidentiary
rulings violated his constitutional rights to confrontation and to present
a defense. At trial, the state presented testimony from A, who was
serving a ten year sentence for an unrelated crime, that he and the
defendant had sexually assaulted the victim, and, that when he met the
defendant the following day, the defendant had confessed to killing the
victim. In order to impeach A’s credibility, the defendant sought to
admit a videotape depicting a police officer interviewing A prior to the
administration of a polygraph examination. The defendant claimed that
the videotape was relevant because it showed that A had been promised
favorable treatment in exchange for his cooperation. The trial court,
however, excluded the videotape on the ground that it constituted inad-
missible polygraph evidence under State v. Porter (241 Conn. 57). A
thereafter testified, inter alia, that he hoped to receive some consider-
ation from the state in exchange for his testimony. On the defendant’s
direct appeal, this court agreed with the defendant’s evidentiary claim
that the trial court had improperly excluded the videotape and found
that its exclusion was harmful and, accordingly, reversed the trial court’s
judgment and remanded the case for a new trial. Both the state and the
defendant, on the granting of certification, appealed to our Supreme
Court, which affirmed this court’s conclusion that the trial court improp-
erly excluded the videotape but concluded that any error was harmless
and, thus, reversed the judgment of this court and remanded the case
for a determination of whether the exclusion of the videotape violated
the defendant’s constitutional rights. Held that the trial court’s exclusion
of the videotape did not violate the defendant’s constitutional rights:
although evidence tending to impeach A’s trial testimony was central
and critical to the defense and the videotape provided support for the
defendant’s claim that A’s testimony was motivated by his own self-
interest, the defendant was able to present ample evidence from which
the jury could appropriately draw inferences relating to A’s motives in
testifying, his credibility and his bias, and the defendant was able to
impeach A’s testimony through other means, specifically through his
cross-examination of A; moreover, defense counsel devoted a consider-
able portion of his closing argument to A’s motives in testifying and his
lack of credibility, including highlighting inconsistencies in A’s testimony
and his statement to the police and A’s motives in testifying against
the defendant.
(One judge concurring separately)
Argued February 6—officially released June 30, 2020
Procedural History
Substitute information charging the defendant with
three counts of the crime of capital felony and one
count of the crime of murder, brought to the Superior
Court in the judicial district of New London and tried
to the jury before Jongbloed, J.; thereafter, the court
granted the state’s motion to preclude certain evidence;
verdict and judgment of guilty, from which the defen-
dant appealed; subsequently, this court, Sheldon and
Prescott, Js., with Flynn, J., concurring in part and
dissenting in part, reversed the judgment of the trial
court and remanded the case for a new trial, and the
state and the defendant, on the granting of certification,
filed separate appeals with our Supreme Court, which
reversed in part the judgment of this court and
remanded the case to this court with direction to con-
sider the defendant’s remaining claims on appeal.
Affirmed.
Lauren M. Weisfeld, chief of legal services, for the
appellant (defendant).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
DEVLIN, J. This case returns to this court on remand
from our Supreme Court following its reversal of our
judgment reversing the judgment of conviction of the
defendant, George Michael Leniart, of murder in viola-
tion of General Statutes § 53a-54a (a), and three counts
of capital felony in violation of General Statutes (Rev.
to 1995) § 53a-54b (5), (7) and (9), as amended by Public
Acts 1995, No. 95-16, § 4.1 The sole remaining claim
before us is whether the trial court’s improper exclusion
of certain evidence at trial violated the defendant’s
rights under the United States constitution. We con-
clude that the defendant’s constitutional rights were
not violated, and, accordingly, affirm the judgment of
conviction.
‘‘The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
claims before us. On May 29, 1996, the victim,2 who
was then fifteen years old, snuck out of her parents’
home to meet Patrick J. Allain, a teenage friend also
known as P.J., so that they could smoke marijuana,
drink alcohol, and have sex. The two teenagers were
picked up by the defendant, who at the time was thirty-
three years old. They then drove to a secluded, wooded
location near the Mohegan-Pequot Bridge in the defen-
dant’s truck.
‘‘While parked, the victim and Allain kissed, drank
beer, and smoked marijuana. At some point, the defen-
dant, who had told Allain that he was in a cult, called
Allain aside and told him that he wanted ‘to do’ the
victim and that he ‘wanted a body for the altar.’
‘‘Allain, who feared the defendant, returned to the
truck and informed the victim that he and the defendant
were going to rape her. Allain then removed her clothes
and had sex with her in the truck while the defendant
watched through the windshield. After Allain and the
victim finished having sex, the defendant climbed into
the truck and sexually assaulted the victim while Allain
held her breast. After the assault, the victim pretended
not to be upset so that the defendant would not harm
her further.
‘‘The defendant then drove the teenagers back to
Allain’s neighborhood. The defendant dropped off
Allain near his home, and the victim remained in the
truck. The victim never returned home that night and
was never seen again, despite a protracted nationwide
search by law enforcement. The search also did not
recover her body.
‘‘Allain subsequently implicated the defendant in the
victim’s death. As a result, in 2008, the state charged
the defendant with murder in violation of § 53a-54a,
capital felony in violation of § 53a-54b (5) for murder
in the course of a kidnapping, capital felony in violation
assault, and capital felony in violation of § 53a-54b (9)
for murder of a person under the age of sixteen. The
case was tried to a jury.
‘‘The state’s case against the defendant included the
testimony of four witnesses, who each testified that, at
different times, the defendant had admitted, directly or
indirectly, to killing the victim. Allain, the state’s key
witness, was serving a ten year sentence for an unre-
lated sexual assault at the time of trial. He testified that,
on the afternoon following the previously described
events, the defendant had asked to meet with him on
a path behind the Mohegan School in Montville. At that
meeting, the defendant admitted that ‘he had to do [the
victim]—to get rid of her.’ The defendant described to
Allain how, after dropping Allain off the night before,
he had pretended to run out of gas near the path.3 He
then ripped the license plates off his truck, dragged the
frantic victim into the woods, and choked her. Later
that evening, at a second meeting, the defendant further
confessed to Allain that he had killed the victim and
had ‘erased’ her by placing her remains in a lobster trap
and dropping them into the mud at the bottom of the
Thames River. The defendant was a lobster fisherman
at the time.’’ (Footnotes in original.) State v. Leniart,
333 Conn. 88, 93–95, 215 A.3d 1104 (2019).
‘‘Prior to trial, the state filed a motion in limine seek-
ing to exclude all testimony or evidence pertaining to
the polygraph examination of any witnesses. Defense
counsel opposed the motion, arguing that he intended
to offer, among other things, a ninety minute videotape
showing the standard pretest interview that the polygra-
pher, state police Trooper Tim Madden, had conducted
with Allain prior to performing Allain’s polygraph test
in 2004. Defense counsel stated that he would seek to
offer the videotape on the ground that it showed Mad-
den giving Allain numerous assurances that Allain
would receive favorable treatment if he cooperated with
the police, which, defense counsel argued, ‘raises ques-
tions . . . about whether this young man is coming
into this courtroom with the intention to do anything
other than save himself.’
‘‘The trial court ruled that the videotape was inadmis-
sible. The court’s oral ruling appeared to adopt the
state’s argument that a recording of a pretest interview
or, indeed, any reference to the fact that a polygraph
examination has been conducted, constitutes polygraph
evidence and is, therefore, per se inadmissible. The
court did, however, indicate that it would permit
defense counsel to cross-examine Allain regarding ‘any
promises or benefits that were made to him during the
course of that interview.’ ’’ Id., 124–25.
‘‘The jury returned a verdict of guilty on all counts.
The court merged the verdicts into a single conviction
of capital felony and sentenced the defendant to a term
of life imprisonment without the possibility of release.
On appeal to [this court], the defendant raised various
challenges to the trial court’s evidentiary rulings and
also claimed, relying in part on the common-law corpus
delicti rule, that the evidence was insufficient to sustain
his conviction. State v. Leniart, [166 Conn. App. 142,
146–49, 140 A.3d 1026 (2016)]. [This court] rejected the
defendant’s sufficiency claim but concluded that the
trial court incorrectly had excluded the polygraph pre-
test interview videotape, as well as expert testimony
relating to the credibility of jailhouse informants. [This
court] then concluded that those evidentiary rulings
substantially affected the verdict and, accordingly,
remanded the case for a new trial.
‘‘[Our Supreme Court] granted the state’s petition
for certification to appeal, limited to the questions of
whether [this court] correctly concluded that the trial
court had erroneously excluded the polygraph pretest
interview videotape and expert testimony regarding jail-
house informant testimony and that those rulings sub-
stantially affected the verdict. State v. Leniart, 323
Conn. 918, 150 A.3d 1149 (2016). [The Supreme Court]
also granted the defendant’s petition for certification
to appeal, limited to the question of whether [this court]
properly applied the corpus delicti rule in concluding
that there was sufficient evidence to sustain his convic-
tion of murder and capital felony. State v. Leniart, 323
Conn. 918, 918–19, 149 A.3d 499 (2016).’’ (Footnote
omitted.) State v. Leniart, supra, 333 Conn. 96.
Our Supreme Court affirmed this court’s rejection
of the defendant’s challenge to the sufficiency of the
evidence. Id., 93. The Supreme Court also affirmed this
court’s conclusion that the trial court improperly
excluded the polygraph pretest interview videotape. Id.The Supreme Court concluded, however, that ‘‘any error
in the exclusion of the video was harmless’’; id., 124;
and, thus, reversed the judgment of this court,4 and
remanded this case for determination of the final issue
of whether the exclusion of the videotape violated the
defendant’s constitutional rights. Id., 152 and n.35.
In assessing the evidentiary issue raised by the exclu-
sion of the videotape and its subsequent determination
that the exclusion was harmless, the Supreme Court
set forth the following relevant description and analysis
of its content, and of Allain’s testimony at trial. ‘‘Mad-
den’s pretest interview of Allain lasted for approxi-
mately ninety minutes. For the first thirteen minutes
or so, Madden and Allain discussed Allain’s reasons for
submitting to the polygraph. Specifically, a question
arose as to whether Allain was taking the test volunta-
rily, because he believed that assisting the state was
the right thing to do or, rather, because he was facing
a potential five year sentence for having violated his
probation through a failed drug test and had been led
to believe that the state might not pursue a conviction
if he cooperated in this matter. Allain initially indicated
that he had consented to the polygraph primarily to
avoid the conviction for violating his probation. Madden
promptly explained, in no uncertain terms, that he could
not perform the polygraph on those terms. Thus, before
proceeding, Madden obtained from Allain a statement
that he was participating freely.
‘‘The remainder of the pretest interview consisted of
Madden’s asking Allain a series of background ques-
tions, reviewing the statements that Allain had given to
the police and Allain’s accounts of the events sur-
rounding the victim’s disappearance, and explaining the
questions that Allain would be asked during the poly-
graph. During that time, Madden repeatedly emphasized
how ‘unbelievably important’ it was for Allain to give
completely truthful answers during the examination.
‘‘Moreover, Madden consistently equated truthful-
ness with successfully passing the test, doing ‘the right
thing,’ and being a reliable witness. He emphasized in
this respect that the state would consider Allain to be
a useful witness, and Allain would qualify for potentially
favorable treatment, only if the polygraph results dem-
onstrated that Allain was being completely truthful and
forthcoming. Madden referred several times during the
interview to the investigation of the 1997 gang rape and
murder of Maryann Measles. He informed Allain that
suspected participants in that crime who truthfully con-
fessed their roles and then passed polygraph examina-
tions were let off with ‘a slap on the wrist,’ whereas
suspected participants who failed polygraph tests were
aggressively prosecuted.
‘‘At several points during the interview, Madden made
comments indicating that the police were interested in
obtaining Allain’s cooperation. In particular, Madden
explained that the police were interested in having
Allain on their ‘team’ rather than on the defendant’s
team, and in procuring Allain’s assistance in ‘getting’
the defendant, whom Madden described as the ‘bigger
fish.’ In each instance, however, he made clear that
Allain could provide such assistance only by giving com-
pletely truthful testimony and passing the polygraph
test. Madden indicated, for example, that, if Allain failed
the polygraph, then he would be on the ‘other team,’
aligned with the defendant, rather than ‘on our team.’
In other words, Madden made clear that only truthful
statements would help Allain.
‘‘Throughout the interview, Madden made comments
that gave the impression that he believed that Allain
had not been completely forthcoming in his prior state-
ments to the police and that Allain still had something
to ‘get off [his] chest.’ In a few instances, Madden specu-
lated that Allain felt intimidated or frightened by the
defendant. In most instances, however, Madden
appeared to believe that what Allain was withholding
was the extent of his own involvement in the crime.
Madden even suggested that this might be a cause of
Allain’s diagnosed clinical depression and speculated
that Allain, by telling the complete truth, might find
some relief. . . .
‘‘After the trial court ruled the videotape inadmissi-
ble, the state called Allain to testify. The prosecutor
began his direct examination by eliciting that Allain
was then serving a ten year sentence for felony sexual
assault involving a different victim, and that Allain was
hoping for ‘leniency’ in connection with that sentence
in exchange for his cooperation with the state and testi-
mony against the defendant in the present matter. Allain
acknowledged that ‘it would be nice’ to receive some
consideration in exchange for his testimony.
‘‘On cross-examination, defense counsel effectively
developed all of the basic facts and themes that the
defendant sought to establish through use of the pretest
interview videotape. Defense counsel was able to dem-
onstrate that Allain was generally unreliable as a wit-
ness. For example, defense counsel repeatedly returned
to the theme that Allain had two powerful incentives
to cooperate with the state in convicting the defendant,
namely, to divert attention from himself as a suspect
in the victim’s murder and to obtain a reduction of the
sentence that he was then serving for sexual assault.
With respect to the former, Allain admitted to having
raped the victim on the night she disappeared and to
having concealed that information from the police until
after the statute of limitations for rape had expired. He
also understood, however, that the statute of limitations
for a felony murder never runs.
‘‘Allain also acknowledged that he had found and
concealed the victim’s shoe the day after she disap-
peared, and that this could make him an accessory to
her murder. He also admitted to telling the police that
he had previously indicated to the defendant that he
was willing to kill the victim, and that he later told his
father that he was involved in the victim’s murder and
that he needed help moving her body. . . . Allain
admitted that he was concerned because, if the police
believed that he had anything to do with the victim’s
death, he still could be charged with capital felony, and
he believed that he would face a likely death sentence
if convicted. At the same time, Allain, without expressly
mentioning the pretest interview, testified that Madden
had repeatedly told him that even someone who had
been involved in rape and murder ‘could walk away
. . . with a slap on the hand’ if they cooperated with
the police. . . . Accordingly, the jury was aware that
Allain was a potential suspect in the victim’s murder,
that he had implicated himself in the murder, and that
he understood that he could be charged with the crime
if the defendant were exonerated.
‘‘The jury also heard testimony suggesting that there
was an implicit agreement between Allain and the state
that he would receive leniency on his sexual assault
sentence if he fully cooperated with the state in this
matter and if his cooperation proved sufficiently help-
ful. Allain twice acknowledged that, at the time he was
sentenced on that conviction, the state’s attorney had
indicated that the state would not oppose a motion for
sentence modification at a later date if Allain met cer-
tain unstated requirements. Allain testified that he
understood that to mean that he might be allowed to
serve less time if he ‘played ball’ and cooperated in the
defendant’s case.
‘‘At several points, Allain expressed hope that the
state would believe that he had provided substantial
assistance in the case against the defendant and that,
if his cooperation was sufficiently valuable, he would
be released from prison early. Indeed, Allain com-
plained that he had been ‘blackmailed’ by the state and
that an especially long sentence had been imposed for
the sexual assault conviction specifically to ensure that
he assisted the state in the defendant’s case.
‘‘Accordingly, the jury learned through cross-exami-
nation that Allain felt pressured to cooperate and that
he hoped that the state would deem his help sufficiently
valuable that he would obtain a sentence modification.’’
(Citation omitted; emphasis in original; footnotes omit-
ted.) Id., 128–32. The Supreme Court thus concluded
that ‘‘all of the basic facts and themes that the defendant
sought to show to the jury through the pretest interview
videotape were effectively elicited during Allain’s cross-
examination . . . .’’ Id., 132. The defendant disagrees
and contends that his constitutional rights to confronta-
tion and to present a defense were violated by the
exclusion of the videotape. We are not persuaded.
‘‘It is fundamental that the defendant’s rights to con-
front the witnesses against him and to present a defense
are guaranteed by the sixth amendment to the United
States constitution. The sixth amendment provides in
relevant part: In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him; [and] to have compulsory pro-
cess for obtaining witnesses in his favor . . . . A
defendant’s right to present a defense is rooted in the
compulsory process and confrontation clauses of the
sixth amendment . . . . Furthermore, the sixth
amendment rights to confrontation and to compulsory
process are made applicable to state prosecutions
through the due process clause of the fourteenth
amendment. . . .
‘‘In plain terms, the defendant’s right to present a
defense is the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury so
that it may decide where the truth lies. . . . It guaran-
tees the right to offer the testimony of witnesses, and
to compel their attendance, if necessary . . . . There-
fore, exclusion of evidence offered by the defense may
result in the denial of the defendant’s right to present
a defense. . . .
‘‘The right of confrontation is the right of an accused
in a criminal prosecution to confront the witnesses
against him. . . . The primary interest secured by con-
frontation is the right to cross-examination . . . and
an important function of cross-examination is the expo-
sure 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. . . .
‘‘Impeachment of a witness for motive, bias and inter-
est may also be accomplished by the introduction of
extrinsic evidence. . . . The same rule that applies to
the right to cross-examine applies with respect to
extrinsic evidence to show motive, bias and interest;
proof of the main facts is a matter of right, but the extent
of the proof of details lies in the court’s discretion. . . .
The right of confrontation is preserved if defense coun-
sel is permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the
reliability of the witness. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment. . . .
‘‘These sixth amendment rights, although substantial,
do not suspend the rules of evidence . . . . A court
is not required to admit all evidence presented by a
defendant; nor is a court required to allow a defendant
to engage in unrestricted cross-examination. . . .
Instead, [a] defendant is . . . bound by the rules of
evidence in presenting a defense. . . . Nevertheless,
exclusionary rules of evidence cannot be applied mech-
anistically to deprive a defendant of his rights . . . .
Thus, [i]f the proffered evidence is not relevant [or
constitutes inadmissible hearsay], the defendant’s
right[s] to confrontation [and to present a defense are]
not affected, and the evidence was properly excluded.’’
(Citations omitted; internal quotation marks omitted.)
State v. Wright, 320 Conn. 781, 816–19, 135 A.3d 1 (2016).
‘‘[W]hether a trial court’s [exclusion of evidence
offered by a criminal defendant] deprives [him] of his
[constitutional] right to present a defense is a question
that must be resolved on a case by case basis. . . .
The primary consideration in determining whether a
trial court’s ruling violated a defendant’s right to present
a defense is the centrality of the excluded evidence to
the claim or claims raised by the defendant at trial.’’
(Internal quotation marks omitted.) State v. Andrews,
313 Conn. 266, 276, 96 A.3d 1199 (2014). Moreover, ‘‘[a]
defendant may not successfully prevail on a claim of a
violation of his right to present a defense if he has failed
to take steps to exercise the right or if he adequately
has been permitted to present the defense by different
means.’’ State v. Santana, 313 Conn. 461, 470, 97 A.3d
963 (2014).
‘‘If . . . we conclude that the trial court improperly
excluded certain evidence, we will proceed to analyze
[w]hether [the] limitations on impeachment, including
cross-examination, [were] so severe as to violate [the
defendant’s rights under] the confrontation clause of
the sixth amendment . . . . In evaluating the severity
of the limitations, if any, improperly imposed on the
defendant’s right to confront, and thus impeach, a wit-
ness, [w]e consider the nature of the excluded inquiry,
whether the field of inquiry was adequately covered
by other questions that were allowed, and the overall
quality of the cross-examination viewed in relation to
the issues actually litigated at trial. . . . We consider
de novo whether a constitutional violation occurred.’’
(Citations omitted; internal quotation marks omitted.)
State v. Halili, 175 Conn. App. 838, 852–53, 168 A.3d
565, cert. denied, 327 Conn. 961, 172 A.3d 1261 (2017).
In this case, the defendant sought to introduce the
videotape of the pretest interview into evidence at trial
on the ground that it showed Madden giving Allain
numerous assurances that Allain would receive favor-
able treatment if he cooperated with the police, which,
defense counsel argued, ‘‘raises questions . . . about
whether this young man is coming into this courtroom
with the intention to do anything other than save him-
self.’’ On appeal, he claims that his right to confrontation
was violated when the trial court excluded the video-
tape from evidence because, through the videotape, he
‘‘sought to elicit the psychological context of [Allain’s]
polygraph, and especially the pretest where . . . Mad-
den can be seen frightening and inducing him to cooper-
ate, to show motive and bias.’’ The defendant claims
that the videotape demonstrated Allain’s ‘‘vulnerable
status . . . as well as [his] possible concern that he
might be a suspect in the investigation.’’ (Emphasis
omitted; internal quotation marks omitted.) He argues
that by excluding the videotape, ‘‘[t]he court prohibited
relevant inquiry reasonably aimed at eliciting facts from
which the jury might decide to disbelieve [Allain].’’ As
to his claim that the exclusion of the videotape violated
his right to present a defense, he claims that he was
prevented from presenting his theory at trial that Allain
was ‘‘the culprit’’ and that the exclusion of the videotape
‘‘violated his right to show that [Allain] was motivated
by a desire to avoid being charged.’’ The defendant also
contends, more generally, that he was denied the right
to ‘‘show whatever interest or motive [Allain] had.’’ The
defendant further argues that the cross-examination of
Allain was no substitute for the videotape because the
videotape showed ‘‘Madden’s use of fear and promises’’
in questioning Allain, and that Madden ‘‘manipulated
[Allain] by discouraging him from getting a lawyer, and
by representing that the [polygraph] test would be
‘medicinal.’ ’’
In assessing the defendant’s claim that his sixth
amendment rights to confrontation and to present a
defense have been violated, we first assess the centrality
of the excluded evidence, the videotape, to the case, or,
more specifically, to the defendant’s claim that Allain’s
testimony was not credible because it was motivated
by Allain’s desire not to be implicated in the murder of
the victim in this case and to serve a lesser sentence
on the unrelated sexual assault for which he was incar-
cerated at the time of trial. It cannot reasonably be
disputed that Allain’s testimony was central to the
state’s case, and the jury’s ability to assess and the
defendant’s ability to impeach the credibility of that
testimony were critical. The more focused question,
however, is whether the excluded videotape was central
and critical to the defendant’s case because it high-
lighted Allain’s motives to testify as he did at trial. Again,
we do not believe that it reasonably can be disputed
that evidence tending to impeach Allain’s trial testimony
was central and critical to the defense, and the video-
tape certainly provided support for the defendant’s
claim that Allain’s testimony was motivated by his own
self-interest.
Our constitutional inquiry, however, does not end
here. We must next determine whether the defendant
was able to present his theory of the case, or to present
evidence to prove Allain’s motives in testifying and to
impeach his testimony, through other means, specifi-
cally through the cross-examination of Allain. ‘‘Both
this court and our Supreme Court have stated that,
when a defendant is afforded wide latitude in cross-
examining a state’s witness as to credibility, claims of
sixth amendment violations for restrictions on cross-
examination are indicia of the defendant [putting] a
constitutional tag on a nonconstitutional claim.’’5 (Inter-
nal quotation marks omitted.) State v. Bermudez, 195
Conn. App. 780, 807, A.3d , cert. granted, 335
Conn. 908, A.3d (2020); see id., 808 (defendant
given ample opportunity to impeach credibility of wit-
nesses); see also State v. Jordan, 329 Conn. 272, 287–88
n.14, 186 A.3d 1 (2018) (claim of improper exclusion
of evidence of victim’s convictions not constitutional
in nature when jury heard testimony that, if credited,
would support theory of self-defense); State v. Leconte,
320 Conn. 500, 511, 131 A.3d 1132 (2016) (no constitu-
tional violation where defendant was given ample
opportunity to ‘‘expose to the jury the facts from which
[the] jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the
reliability of the witness’’); State v. Romanko, 313 Conn.
140, 151–52, 96 A.3d 518 (2014) (no constitutional viola-
tion where defendant was permitted to present his the-
ory of case ‘‘by means other than the proposed demon-
stration’’); State v. Mark R., 300 Conn. 590, 612, 17 A.3d
1 (2011) (‘‘over the course of a cross-examination of
the victim that filled more than thirty transcript pages,
the trial court did permit defense counsel to inquire
into numerous elements of the defendant’s fabrication
theory’’); State v. Osimanti, 299 Conn. 1, 10–13, 6 A.3d
790 (2010) (no violation of right to confrontation where
defendant was permitted to present alternative evi-
dence by way of cross-examination in support of his
claim of self-defense and was able to refer to and
emphasize that evidence in closing argument to jury);
State v. William C., 267 Conn. 686, 707–708, 841 A.2d
1144 (2004) (improper exclusion of records of Depart-
ment of Children and Families indicating problems with
victim’s veracity in sexual assault case was, although
harmful evidentiary error, not of constitutional magni-
tude, because defendant had opportunity to elicit issues
concerning victim’s veracity through extensive cross-
examination); State v. Sandoval, 263 Conn. 524, 549, 821
A.2d 247 (2003) (‘‘defense counsel aggressively cross-
examined the victim in an attempt to convey to the jury
that any participation by the defendant in the attempted
abortion was consensual and that the victim falsely had
accused the defendant of seeking to abort the preg-
nancy against her will’’); State v. Kelly, 256 Conn. 23,
76, 770 A.2d 908 (2001) (no violation of constitutional
right to present defense where subject matter of pre-
cluded testimony was presented through other wit-
nesses); State v. Shabazz, 246 Conn. 746, 758 n.7, 719
A.2d 440 (1998) (no deprivation of constitutional right
to present defense when ‘‘defendant was adequately
permitted to present his claim of self-defense by way
of his own testimony, by cross-examining the state’s
witnesses, and by the opportunity to present any other
relevant and admissible evidence bearing on that ques-
tion’’), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143
L. Ed. 2d 111 (1999); State v. Barletta, 238 Conn. 313,
322–23, 680 A.2d 1284 (1996) (improper restriction on
expert’s testimony about likely effects of cocaine inges-
tion on eyewitness was not of constitutional magnitude
because defendant permitted to cross-examine that eye-
witness about her cocaine use, criminal record includ-
ing narcotics convictions, and inducement from state
to testify); State v. Jones, 205 Conn. 723, 730–32, 535
A.2d 808 (1988) (improper restriction on testimony of
defendant’s sister concerning reasons for defendant’s
flight, namely, his fear of victim’s family, was not of
constitutional magnitude because defendant had
explained flight in his own testimony); State v. Vitale,
197 Conn. 396, 403, 497 A.2d 956 (1985) (wide latitude
of cross-examination by defendant suggestive that
claimed evidentiary errors were nonconstitutional in
nature); State v. Porfil, 191 Conn. App. 494, 523–24,
215 A.3d 161 (2019) (no constitutional violation where
defendant was able to adequately present his defenses
of misidentification and lack of possession by other
means and had additional, alternative avenues available
to him to further bolster his defenses), cert. granted on
other grounds, 333 Conn. 923, 218 A.3d 67 (2019); State
v. Durdek, 184 Conn. App. 492, 511 n.10, 195 A.3d 388(noting that ‘‘multiple avenues of impeachment’’
afforded to defendant in cross-examining ‘‘important
state witness’’ supported conclusion that claimed errors
were evidentiary, not constitutional, and defendant
therefore had burden of establishing harm), cert.
denied, 330 Conn. 934, 194 A.3d 1197 (2018); State v.
Papineau, 182 Conn. App. 756, 780–82, 190 A.3d 913(no violation where defendant was permitted to present
evidence by means other than narrow inquiry that was
excluded by trial court), cert. denied, 330 Conn. 916,
193 A.3d 1212 (2018); State v. Manousos, 179 Conn.
App. 310, 333, 178 A.3d 1087 (no constitutional violation
where defendant was able to present his defense in full
through other, unlimited testimony), cert. denied, 328
Conn. 919, 181 A.3d 93 (2018); State v. Thomas, 110
Conn. App. 708, 718, 955 A.2d 1222 (‘‘[b]ecause the
theory in question provided at most merely one more
motivation to attack, its exclusion did not foreclose an
entire defense theory and, therefore, did not rise to the
level of a constitutional violation’’), cert. denied, 289
Conn. 952, 961 A.2d 418 (2008).
In this case, we agree with the state that the defendant
was able to elicit testimony regarding Allain’s motives
in testifying and to adequately impeach that testimony
through cross-examination and, thus, was not pre-
vented from presenting his defense to the jury. By way
of the unbounded and rigorous cross-examination of
Allain, the transcript of which spans approximately 140
pages, defense counsel effectively challenged Allain’s
credibility. During cross-examination, defense counsel
focused on Allain’s motivations in testifying—to avoid
implication in the murder of the victim and to obtain
a lesser sentence on the sexual assault charge for which
he was then incarcerated. Allain openly acknowledged
that he had strong incentives to testify in this case. He
admitted, after several years of denying, that he had
raped the victim in this case on the night in question,
but he knew that the statute of limitations on that charge
had expired and, thus, that he could not be charged
with that rape. He understood, however, that he could
still be charged with murder because there was no
statute of limitations on that charge. Although Allain
denied defense counsel’s suggestion that he was moti-
vated to inculpate the defendant in the hope of exculpat-
ing himself, stating that his testimony was truthful, he
admitted that, despite speaking to members of the
major crime squad approximately twenty-five times, he
had never been entirely truthful with the police through-
out the course of the investigation. Allain testified at
trial to several facts that he admittedly had never told
any of the law enforcement officers with whom he had
spoken over the course of the ten year investigation.6
Allain even admitted during cross-examination that he
was ‘‘making up things about what [he] thought was in
[the defendant’s] mind’’ pertaining to the victim, and
that he had told the defendant that he would kill the
victim himself.
During direct examination by the state, Allain
acknowledged that he was then serving a ten year sen-
tence for a felony sexual assault charge and that he
was hoping for leniency in exchange for his testimony
against the defendant in this case. Allain testified that
he thought that the sentence that he received on that
sexual assault charge was excessive, and that it was
designed to compel him to testify in this case. On the
basis of his perception of the sentence in that case as
excessive, Allain testified that he felt as though he had
been ‘‘blackmailed’’ to testify in this case so that he
might receive a downward sentence modification later.
As noted, Allain admitted that he hoped ‘‘that the state
believes that [he] provided substantial assistance in [its]
case against [the defendant] . . . .’’ He expressed his
hope that the state believed that his ‘‘cooperation in
this case was valuable enough’’ to obtain a sentence
modification on his sexual assault charge.
In sum, the court allowed defense counsel to inquire
repeatedly into Allain’s motivations to testify—his
desire to avoid his own implication in the murder of
the victim in this case and his quest for a lesser sentence
on the sexual assault charge for which he was incarcer-
ated at the time of trial. Not only did the court not
restrict defense counsel’s inquiry, but that inquiry was
effective and impactful. The jury was not only provided
with an adequate opportunity to judge the credibility
and bias of Allain, but a fair reading of the cross-exami-
nation leads to an inexorable conclusion that Allain’s
testimony was motivated by his own interests and his
overall credibility had been damaged.
Moreover, defense counsel devoted a considerable
portion of his closing argument to Allain’s motives in
testifying for the state and his lack of credibility.
Defense counsel told the jury that it was ‘‘entitled to
consider a witness’ interest in the outcome of this case
when rendering [its] verdict,’’ and posited: ‘‘Who more
than . . . Allain has an interest in—besides [the defen-
dant]—in the [outcome] of this case?’’ Defense counsel
underscored the incredibility of Allain’s testimony by
tracking each of Allain’s statements to the police, all
the way to his testimony at trial, and highlighting incon-
sistencies between his testimony on direct examination
and cross examination.7 As with cross-examination,
defense counsel effectively demonstrated to the jury
the flaws in Allain’s testimony in support of counsel’s
claim that Allain was not a credible witness. Defense
counsel told the jury: ‘‘Allain has never told the same
story twice’’ and that Allain was ‘‘a practiced liar’’ and
‘‘a stranger to the truth.’’ Finally, defense counsel
emphasized Allain’s motives in testifying against the
defendant when he argued to the jury that ‘‘the State
of Connecticut has charged the wrong man; that the
State of Connecticut cut a deal with the man who knew
where the body is and is still afraid to tell it because
they may kill him; that . . . Allain has everything to
gain by the conviction of [the defendant] . . . .’’
Because the defendant was permitted to present
ample evidence from which the jury could appropriately
draw inferences relating to Allain’s motives and credi-
bility, his rights to confrontation and to present a
defense were preserved. Accordingly, the defendant’s
arguments that his constitutional rights were violated
because the exclusion of the videotape ‘‘prohibited rele-
vant inquiry reasonably aimed at eliciting facts from
which the jury might decide to disbelieve [Allain]’’ and
that he was prevented from demonstrating Allain’s
motives and biases are unavailing.
The judgment is affirmed.
In this opinion, Sheldon, J., concurred.
1
For the sake of simplicity, we note that all references in this opinion to
§ 53a-54b are to General Statutes (Rev. to 1995) § 53a-54b, as amended by
Public Acts 1995, No. 95-16, § 4.
2
In accordance with our policy of protecting the interests of the victims
of sexual abuse, we decline to identify the victim or others through whom
the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
‘‘Although Allain’s testimony was unclear on this point, the jury reason-
ably could have concluded that the path on which Allain and the defendant
spoke is the same path to which the defendant confessed having taken the
victim.’’ State v. Leniart, 333 Conn. 88, 95 n.3, 215 A.3d 1104 (2019).
4
The Supreme Court also held that this court incorrectly concluded that
the trial court had abused its discretion in precluding expert testimony
regarding jailhouse informant testimony. See State v. Leniart, supra, 333
Conn. 93.
5
By contrast, a constitutional violation arises when a defendant is wholly
prohibited from inquiring into an area pertaining to his or her defense at
trial, particularly when a witness’ credibility, motives or bias are at issue.
See, e.g., State v. Peeler, 271 Conn. 338, 383–85, 857 A.2d 808 (2004) (trial
court’s failure to admit mental health records of state’s witness precluded
relevant line of inquiry into witness’ ability to perceive events and was
therefore of constitutional magnitude), cert. denied, 546 U.S. 845, 126 S. Ct.
94, 163 L. Ed. 2d 110 (2005); see also State v. Slimskey, 257 Conn. 842, 859,
779 A.2d 723 (2001) (‘‘[h]aving determined that the evidence in issue was
especially probative and having concluded that there was no other available
means of inquiry into the victim’s propensity to lie, we necessarily have
concluded that the confrontation clause requires the disclosure’’).
6
For example, Allain testified for the first time in court that the defendant
told him that he was in a satanic cult, that he spoke to the defendant for
about three minutes about the defendant’s desire to kill the victim and that
the defendant was giggling about it. He testified that, after he and the
defendant raped the victim, he and the victim discussed the need to get ‘‘a
good night’s rest’’ in order ‘‘to prepare for school the next day’’ and that
the victim casually told them that she had ‘‘always wanted to have sex with
two guys.’’
7
Defense counsel argued to the jury: ‘‘There are more peaks and valleys
in [Allain’s] testimony than there is in the Rocky Mountains. . . . When
[Allain] first went to the police in October of 1997, he told them all about
being with that young woman that night. But he denied having any sexual
contact with her, he denied having any real misconduct at all. He made it
all sound out to be just like a night of partying. I may have misspoke—he
may have said he had sex with her; that I may have gotten wrong. But he
didn’t make out any crimes.
‘‘Then he spoke to the police on a second occasion. We’ve got these
here—not all of these are exhibits—but I spent a lot of time cross-examining
[Allain] and I want to tell you why. I listened very carefully and I’d ask you
to do this as you deliberate.
‘‘Go through what they said, each of them. Make the list. . . . What did
they say on direct and what did they say on cross.
‘‘In October of 1997, [Allain’s] with [the defendant]. They’re with this
young man; not much happens. We get then to another statement—and
again, I don’t mean to harp on this stuff and I’m not asking you to let [the
defendant] go because the police can’t keep track of dates—but maybe it
was in November of 2001, maybe it’s 2007; I don’t really know. The date
says one thing, the testimony’s another.
‘‘In 2004, [Allain] gives another statement. In this statement, he talks about
some—a little bit more. This time [the defendant] has killed her now or
[the defendant] says he was going to kill her. She jumps out of the van. But
you know, [Allain] has some voluntary consensual sexual activity with her.
‘‘In 2007, it’s now this whole business about we’re going to rape you. On
the stand when I questioned him, he finally came around to rape but he
pussyfooted around about that, too. I’d suggest to you that [Allain’s] pussy-
footing around because [Allain] knows where that body is and if [Allain]
tells anybody, they’ll seek to kill him. It’s that simple.
‘‘Nobody is going to pity poor [Allain] if he acknowledges his role in the
rape and the murder of [the victim] and tells this jury—you, them, anybody
in this room—something he’s never told anybody but he wanted his father’s
help with. I need to move that body, it’s up there near the Mohegan reserva-
tion—not near any water. It’s up there near the Mohegan reservation.
‘‘[The defendant] didn’t dump it in the river. He didn’t dump it in the
Sound. He didn’t chop her up. He didn’t put her in the mud. He didn’t put
her in a well. It’s up there near the reservation and dad help me and his
father didn’t and his dad ratted him out as it were and then [Allain] had to
dance and he’s dancing still.’’
Defense counsel further argued: ‘‘Then we get really not much more in
the case. You know, [Allain’s] out there, he’s given a statement in [1997].
He gave one in maybe [2004], maybe [2007]. No warrant, no arrest. He’s
claiming the body’s up there near the casino. He testifies in the trial then
about a well. . . .
‘‘If you need to hear from [Allain] again, listen to the entire testimony
and what you will find out is that story he told on the stand, it doesn’t agree
with the story he told in 1997, it doesn’t agree with the story he told in
2004, it doesn’t agree with the story he told in 2007.
‘‘Some of the things he told you in this room, you heard for the very first
time—well, of course you did, but I mean, law enforcement heard for the
very first time. [Allain] is a stranger to the truth and that desperate men do
desperate things.’’