State v. Kehayias

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STATE OF CONNECTICUT v. DEMETRIOS KEHAYIAS
(AC 35958)
DiPentima, C. J., and Gruendel and Beach, Js.*
Argued September 15, 2015—officially released January 12, 2016
(Appeal from Superior Court, judicial district of
Tolland, Mullarkey, J.)
Norman A. Pattis, with whom, on the brief, was
Brittany B. Paz, for the appellant (defendant).
Emily Graner Sexton, special deputy assistant state’s
attorney, with whom, on the brief, were Matthew C.
Gedansky, state’s attorney, and Charles W. Johnson,
assistant state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Demetrios Kehayias,
appeals from the judgments of conviction, rendered
after a bench trial, of one count each of disorderly
conduct in violation of General Statutes § 53a-182; risk
of injury to a child in violation of General Statutes § 53-
21; criminal violation of a protective order in violation
of General Statutes § 53a-223; and reckless endanger-
ment in the first degree in violation of General Statutes
§ 53a-63. The defendant contends on appeal that (1) the
evidence was insufficient to convict him of the last three
charges; and (2) the trial court improperly excluded
evidence probative of the complaining witness’ motive
to fabricate, thereby infringing the defendant’s sixth
amendment right to present a defense. We affirm the
judgments.
On February 26, 2011, the defendant was arrested
and charged with disorderly conduct in violation of
§ 53a-182. On July 21, 2011, he was arrested again and
was charged with risk of injury to a child in violation
of § 53-21; criminal violation of a protective order in
violation of § 53a-223; and reckless endangerment in
the second degree in violation of General Statutes § 53a-
64. Thereafter, the state filed two long form informa-
tions. The first information charged the defendant with
disorderly conduct in violation of § 53a-182 (a) (1); and
the second information charged him with risk of injury
to a child in violation of § 53a-21 (a) (1), criminal viola-
tion of a protective order in violation of § 53a-223 (a),
and reckless endangerment in the first degree in viola-
tion of § 53a-63 (a). The defendant pleaded not guilty
to all four counts, which then were consolidated for
trial. The defendant waived his right to a jury trial and
chose instead to be tried by the court. The defendant
was convicted on all four counts and sentenced to
twenty-five months imprisonment with ninety-five
months special parole. This appeal followed.
The record reveals the following facts. In early 2011,
the defendant was in a legal dispute with the victim,
K, over visitation and custody rights as to their one
year old son, L.1 At the time, K had full custody of L,
and the defendant was allowed two hours of supervised
visitation with him in the home of the defendant’s par-
ents on weekend days. K would deliver L to the defen-
dant at 2 o’clock in the afternoon and then return to
retrieve him at 4 o’clock.
On February 26, 2011, when K returned to pick up
L, she parked her car in the driveway of the home of
the defendant’s parents, walked up to the door, and
knocked. The defendant came to the door, carrying L.
Instead of handing L to K, which K described as their
typical practice, the defendant walked right past K’s
outstretched arms toward her car. K followed him to
the rear passenger side, where she kept a car seat for L.
K again extended her arms to take L, but the defendant
refused; he said that he wanted to put L in the car seat
because L was sleeping. K responded, ‘‘[J]ust give him
to me.’’ The defendant pushed L toward K and said,
‘‘Here, you f’ing c-u-n-t . . . .’’ The defendant started
walking away and calling K various names. K said to
him that he should not talk to her like that in front of
L. The defendant turned back around so that he faced
K again, swore, and displayed his middle finger. He also
put out his hand with his thumb up and his index finger
extended toward K, mimicking a handgun, and said,
‘‘[b]oom, one of these days . . . .’’ L remained in K’s
arms throughout this exchange.
As the defendant began walking away again, the
defendant’s mother came to the door. K yelled to her
that the defendant should not call K names in front of
L. K then secured L in his car seat. As she did so, the
defendant pulled out his cell phone and said into it,
‘‘South Windsor Police Department, please.’’ K heard
this, and as she was backing out of the driveway, the
defendant repeatedly mouthed the word ‘‘boom’’ at her
while making the gun hand gesture. K recorded much
of the incident on a small digital device. It was this
incident that gave rise to the disorderly conduct charge.
On July 21, 2011, K was driving her mother, M, and
L to pick up K’s nephew from a summer program in
Manchester. It was a sunny, clear day. The trio rode in
M’s car, the windows of which were not tinted, so as
to permit an observer to see through them and identify
the passengers. K merged onto Interstate 84 and was
driving in the far right lane.
Suddenly, a Jeep came ‘‘out of nowhere in front of’’
K and ‘‘slam[med] on his brake.’’ K tried to apply her
brakes to avoid colliding with the Jeep but realized that
she did not have enough time to come to a full stop.
Accordingly, she swerved off of the road onto the shoul-
der to avoid impact. K observed that the car was a
Jeep Wrangler with the ability to become a convertible,
which the defendant possessed at the time of the inci-
dent. K and M saw immediately that the defendant was
the driver. The defendant was wearing a baseball cap
and sunglasses, as was his habit. The defendant
extended his middle finger at K and M and then sped
off. After stopping at the roadside, K immediately got
out to tend to L, who had vomited on himself during
the incident and was crying.
Shortly after the July 21, 2011 incident occurred, K
made a criminal complaint at the state police troop C
barracks. After she did so, the state trooper with whom
she spoke, Trooper Jamie Sanders, called the defendant
to ask him to come in for questioning. He did so that
same day, accompanied by his lawyer. He arrived in a
Jeep Wrangler, and he was wearing a Boston Red Sox
baseball cap. The defendant admitted to Trooper Sand-
ers that he had been on Interstate 84, going in the same
direction as K, earlier in the day. The defendant also
admitted that he had pulled in front of a vehicle and
braked, but claimed that he did not know who it was.
As a result of this incident, the defendant was charged
with risk of injury to a child, criminal violation of a
protective order and reckless endangerment in the
first degree.
I
The defendant first claims that there was insufficient
evidence to convict him of any of the three counts
alleged in connection with the July 21, 2011 highway
incident2 because (1) K’s and M’s ability to identify
the driver of the Jeep was impaired by his hat and
sunglasses, by the high stress level that the incident
induced, and by K’s motive to testify falsely, and (2)
no evidence adduced by the state indicated that the
defendant knew K’s and L’s whereabouts such that he
could have acted with the general intent required to
violate the protective order. We are not persuaded.
‘‘The standard of review employed in a sufficiency
of the evidence claim is well settled. [W]e apply a two
part test. First, we construe the evidence in the light
most favorable to sustaining the verdict. Second, we
determine whether upon the facts so construed and the
inferences reasonably drawn therefrom the [fact finder]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the [fact finder’s] verdict. . . .
‘‘While the [fact finder] must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the [fact finder] to
conclude that a basic fact or an inferred fact is true,
the [fact finder] is permitted to consider the fact proven
and may consider it in combination with other proven
facts in determining whether the cumulative effect of
all the evidence proves the defendant guilty of all the
elements of the crime charged beyond a reasonable
doubt. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [fact finder’s] verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Michael H., 291 Conn. 754, 759,
970 A.2d 113 (2009). ‘‘[T]he inquiry into whether the
record evidence would support a finding of guilt beyond
a reasonable doubt does not require a court to ask itself
whether it believes that the evidence . . . established
guilt beyond a reasonable doubt. . . . Instead, the rele-
vant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) State v. Morgan, 274 Conn. 790,
801, 877 A.2d 739 (2005).
The fact that the state’s case against a defendant
turns upon the credibility of witnesses does not make
it insufficient to support a conviction. See State v. Oso-
ria, 86 Conn. App. 507, 514, 861 A.2d 1207 (2004) (‘‘[t]he
defendant’s challenge to the sufficiency of the evidence
is primarily a challenge to the credibility of [a certain
witness’] testimony, which provided a sufficient eviden-
tiary basis for the conviction’’), cert. denied, 273 Conn.
910, 870 A.2d 1082 (2005). Responding to the defen-
dant’s allegation that a key state’s witness was not credi-
ble in part because he testified against the defendant
under a plea bargain, the court in Osoria demurred:
‘‘Questions of whether to believe or to disbelieve a
competent witness are beyond our review. As a
reviewing court, we may not retry the case or pass on
the credibility of witnesses. . . . Our review of factual
determinations is limited to whether those findings are
clearly erroneous. . . . We must defer to the trier of
fact’s assessment of the credibility of the witnesses that
is made on the basis of its firsthand observation of their
conduct, demeanor and attitude. . . . The arguments
raised by the defendant on appeal with regard to [the
witness’] credibility are arguments that the defendant
properly raised at trial before the jury; they were fodder
for the [fact finder’s] consideration in determining what
weight to afford [the witness’] credibility, but are not
the proper subject of an appeal.’’ (Citation omitted;
internal quotation marks omitted.) Id., 514–15. Further-
more, ‘‘because the [fact finder] has the opportunity
to observe the conduct, demeanor and attitude of the
witnesses and to gauge their credibility, [i]t is axiomatic
that evidentiary inconsistencies are for the [fact finder]
to resolve, and it is within the province of the [fact
finder] to believe all or only part of a witness’ testi-
mony.’’ (Internal quotation marks omitted.) State v.
Morgan, supra, 274 Conn. 800.
The evidentiary strand common to the defendant’s
conviction of each of the three charges arising from
the highway incident of July 21, 2011, was the identity
of the driver of the Jeep. The thrust of the defendant’s
insufficiency claim is that this strand was lacking and
that its absence rendered the state’s case against him
threadbare.3 ‘‘It is black letter law that in any criminal
prosecution, the state bears the burden of proving
beyond a reasonable doubt the defendant’s identity as
one of the perpetrators of the crime charged.’’ (Internal
quotation marks omitted.) State v. Fleming, 111 Conn.
App. 337, 343, 958 A.2d 1271 (2008), cert. denied, 290
Conn. 903, 962 A.2d 794 (2009).
Identity may be proven through the testimony of eye-
witnesses even if that is the only evidence of it. See,
e.g., id., 344; State v. Morgan, supra, 274 Conn. 802;
State v. Rivera, 74 Conn. App. 129, 138, 810 A.2d 824(2002); State v. Smith, 57 Conn. App. 290, 298–99, 748
A.2d 883, cert. denied, 253 Conn. 916, 754 A.2d 164(2000). Moreover, ‘‘[t]he trier of fact determines with
finality the credibility of witnesses and the weight to be
accorded their testimony. . . . Any part of a witness’
testimony may be believed or disbelieved by the trier
of fact. . . . This court does not retry the case or evalu-
ate the credibility of the witnesses.’’ (Citations omitted;
internal quotation marks omitted.) State v. Gainer, 51
Conn. App. 563, 575–76, 724 A.2d 521 (1999).
In this case, the evidence was sufficient to prove
that the defendant was the person who committed the
crimes of July 21, 2011. The court heard the testimony of
K and M that they recognized the defendant immediately
after he drove in front of them and braked. Indeed, the
testimony of K, M, and the defendant made clear that
K and M had known the defendant well for several
years because K and the defendant had been involved
romantically. K testified that the Jeep was ‘‘[l]ess than
a car length’’ away from her when both cars stopped.
She further testified that she saw the defendant’s face
in profile and recognized him immediately, notwith-
standing his hat and sunglasses; in fact, she testified
that the defendant invariably wore such hats. M made
corresponding observations. The court also had in evi-
dence the testimony of Trooper Sanders, who noted
that when the defendant arrived at the state police
barracks shortly after the highway incident, he was
wearing a Boston Red Sox baseball cap that matched
K’s description. Trooper Sanders also testified that the
defendant had admitted to him that he had cut off and
braked in front of a car on the highway, although he
claimed not to have known whose car it was.
The court made clear that its findings and the
resulting finding of guilt rested on the credibility of the
principal witnesses. Specifically, the court found K ‘‘to
be very credible, while admittedly she has a strong
interest in the custody of her son.’’ By contrast, the
court ‘‘did not find [the defendant] credible either in
his demeanor, [or] in his facts . . . .’’ ‘‘We must defer
to the trier of fact’s assessment of the credibility of the
witnesses that is made on the basis of its firsthand
observation of their conduct, demeanor and attitude.’’
(Internal quotation marks omitted.) State v. Osoria,
supra, 86 Conn. App. 515.
Construing the evidence in the light most favorable
to the court’s finding of guilt; see State v. Morgan, supra,274 Conn. 801; the evidence was sufficient to prove that
K and the defendant had known each other for a long
period of time, that the defendant purposefully maneu-
vered his vehicle in front of hers at highway speeds
and braked, causing her car to come to an abrupt stop
and to swerve off of the main roadway, and that both
K and M properly identified the defendant as the perpe-
trator of these acts, and, therefore, that the defendant
was the person who committed the crimes charged.
The defendant’s attempts to discredit K’s and M’s
testimony are unavailing at this juncture. Using the
Wade factors for measuring the reliability of eyewitness
identifications; see United States v. Wade, 388 U.S. 218,
228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); the defen-
dant argues that K did not have an adequate opportunity
to observe the driver of the Jeep because he was wear-
ing a hat and sunglasses; and also that she was under
a high level of stress, which impaired her ability to
make an accurate identification.4 See id. The defendant
also argues that K’s motive and bias against him led
her to misidentify him as the driver.
‘‘The arguments raised by the defendant on appeal
with regard to [the witness’] credibility are arguments
that the defendant properly raised at trial before the
[fact finder]; they were fodder for the [fact finder]’s
consideration in determining what weight to afford [the
witness’] credibility, but are not the proper subject of
an appeal.’’ (Citations omitted; internal quotation marks
omitted.) State v. Osoria, supra, 86 Conn. App. 515. All
of the defendant’s arguments challenge K’s credibility
by suggesting that she either mistook or fabricated her
identification of the defendant. As Osoria and similar
cases suggest, these arguments fall short because we
cannot review, let alone overturn, the court’s credibil-
ity judgments.5
II
The defendant next claims that the court improperly
curtailed his impeachment of K for motive to fabricate
and bias against him by (1) preventing him from cross-
examining her about family court proceedings concern-
ing his visitation rights as to L; and (2) excluding from
evidence a videotape showing part of a visit with and
custody exchange of L in the defendant’s home, each
in violation of the sixth amendment right to present a
defense. We disagree.
A
We turn first to the defendant’s claim that the court
violated his sixth amendment right to present a defense
by refusing to allow him to ask a question on cross-
examination about what transpired on a certain date
in family court. We reject the defendant’s claim.
Before delving into the law that guides our analysis,
we set forth our standard of review.6 ‘‘The court’s discre-
tion [to exclude evidence], however, comes into play
only after the defendant has been permitted cross-
examination sufficient to satisfy the sixth amendment
[to the United States constitution]. . . . The sixth
amendment . . . guarantees the right of an accused in
a criminal prosecution to confront the witnesses against
him. . . . The primary interest secured by confronta-
tion is the right to cross-examination . . . . As an
appropriate and potentially vital function of cross-
examination, exposure of a witness’ motive, interest,
bias or prejudice may not be unduly restricted. . . .
Compliance with the constitutionally guaranteed right
to cross-examination requires that the defendant be
allowed to present the jury with facts from which it
could appropriately draw inferences relating to the wit-
ness’ reliability. . . . [P]reclusion 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 sixth amendment. . . . In
determining whether such a violation occurred, [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.’’ (Citations omitted; internal
quotation marks omitted.) State v. Hedge, 93 Conn. App.
693, 697–98, 890 A.2d 612, cert. denied, 277 Conn. 930,
896 A.2d 102 (2006).
‘‘The . . . question, therefore, is whether the defen-
dant’s cross-examination of the victim satisfied the con-
stitutional standards required by the sixth amendment.
. . . 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 appropriately draw inferences relating
to the reliability of the witness. . . . [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-exami-
nation viewed in relation to the issues actually litigated
at trial. . . . Put another way, our threshold inquiry is
whether this constitutional standard has been met. . . .
‘‘Next, [i]f we conclude that the court improperly
restricted the defendant’s opportunity to impeach a wit-
ness for motive, interest, bias or prejudice, we then
proceed with a harmless error analysis. . . . Whether
such error is harmless in a particular case depends
upon a number of factors, such as the importance of
the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s
case.’’ (Citations omitted; internal quotation marks
omitted.) State v. Fernando R., 103 Conn. App. 808,
819–20, 930 A.2d 78, cert. denied, 284 Conn. 936, 937
A.2d 695 (2007).
Finally, we note that ‘‘[a]lthough only relevant evi-
dence may be elicited through cross-examination . . .
[e]vidence tending to show motive, bias or interest of
an important witness is never collateral or irrelevant.
[Indeed, it] may be . . . the very key to an intelligent
appraisal of the testimony of the [witness]. . . .
Accordingly, cross-examination to elicit facts tending
to show that a witness’ testimony was motivated by
bias may not be unduly restricted.’’ (Citations omitted;
internal quotation marks omitted.) State v. Christian,
267 Conn. 710, 748, 841 A.2d 1158 (2004).
The following additional facts are relevant to the
disposition of these claims. On cross-examination, K
testified that L had been given her last name rather
than the defendant’s, that she had not originally claimed
the defendant to be L’s father, that she had ‘‘never
asked [for] or wanted’’ child support payments from
the defendant, that she deliberately did not tell the
defendant that L had been born, that she had not
intended that he ever find out about L’s birth, that she
did not want the defendant around her or her son
because the defendant had threatened them, that she
suggested to him that she would not name him as the
father and ask for child support in exchange for his
leaving her and L alone, that she had filed for a civil
restraining order against the defendant, that she told
the family court that she did not want the defendant
to have any visitation time with L, that she wanted the
defendant not to have any contact with her or L, and
that her new husband wanted to adopt L.
After this testimony, defense counsel asked K the
question that precipitated the defendant’s sixth amend-
ment claim:
‘‘[Defense Counsel]: Okay. All right. And now what
happened, if you remember, on March 14, 2011, when
you went back into family court; what happened to [the
defendant] and his visitation with [L]?
‘‘[The Prosecutor]: Objection. Relevance.
‘‘[Defense Counsel]: I’m claiming it.
‘‘[The Prosecutor]: Why are we worried about what
happened on March 14? Nothing [is] alleged to have
happened that day. Doesn’t go to an element of the
crime.
‘‘[Defense Counsel]: I’m claiming it, Your Honor.
Because, as the defendant will testify, certain things
did happen as a direct consequence.
‘‘[The Prosecutor]: Is he claiming that this witness
had control over what happened at the court date on
March 14?
‘‘[Defense Counsel]: Yes.
‘‘The Court: Sustained.
‘‘[Defense Counsel]: Sustained . . . . His visitation
with [L] was essentially terminated; wasn’t it as a result
of this arrest?
‘‘[The Prosecutor]: Objection. Same ground. Same
question in a different form.
‘‘[Defense Counsel]: Motive, Your Honor.
‘‘[The Prosecutor]: This witness didn’t control what
happened.
‘‘The Court: Not the question. You can ask her about
her motive. You can’t ask her about [the family court
judge’s] philosophy.
‘‘[Defense Counsel]: No, I didn’t, Your Honor. I didn’t
ask her to—
‘‘The Court: Sure, you did.
‘‘[Defense Counsel]: When he went to court on—
‘‘The Court: What went into [the family court judge’s]
mind to make whatever decision he made.
‘‘[Defense Counsel]: No.
‘‘The Court: No?
‘‘[Defense Counsel]: I didn’t ask to explain [the family
court judge’s]—
‘‘The Court: Well, she can’t terminate the visitation.
Only one of us can terminate the visitation.
‘‘[Defense Counsel]: Yes, Your Honor.’’
As an initial matter, we note that the confusion in
this colloquy obscured the fact that the question did
seek relevant evidence. ‘‘ ‘Relevant evidence’ means evi-
dence having any tendency to make the existence of
any fact that is material to the determination of the
proceeding more probable or less probable than it
would be without the evidence.’’ Conn. Code Evid. § 4-
1. As our Supreme Court observed, ‘‘[e]vidence tending
to show motive, bias or interest of an important witness
is never collateral or irrelevant.’’ (Internal quotation
marks omitted.) State v. Christian, supra, 267 Conn.
748. Although defense counsel, perhaps mistakenly, ini-
tially agreed that he was asserting that K had control
over happenings in family court, defense counsel
shortly afterward made clear that his question was
directed to K’s motive to manufacture the defendant’s
prosecution to wrest his parental rights from him.
Defense counsel’s question about what happened on a
family court date shortly after the first of the two events
for which the defendant was being prosecuted could
have revealed a nexus between the criminal and family
cases. This nexus could in turn have suggested, albeit
circumstantially, that it was K’s design to fabricate or
exaggerate recent events to obtain a favorable result
in the family court proceedings.
The question then becomes whether the court prop-
erly excluded the testimony, notwithstanding its rele-
vance as evidence of bias. The threshold inquiry is
whether the court’s restriction on the defendant’s cross-
examination of K regarding her motive in the case vio-
lated the defendant’s sixth amendment right of confron-
tation. See State v. Fernando R., supra, 103 Conn. App.
819–20. ‘‘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 appropriately draw inferences
relating to the reliability of the witness. . . . [W]e con-
sider the nature of the excluded inquiry, whether the
field of inquiry was adequately covered by other ques-
tions that were allowed, and the overall quality of the
cross-examination viewed in relation to the issues actu-
ally litigated at trial.’’ (Internal quotation marks omit-
ted.) Id., 819.
In so inquiring, reviewing courts have declined to
hold that a defendant’s confrontation right was violated
by limits on cross-examination when the defendant was
allowed to ask other questions about the same motive,
bias, or interest. In State v. Lubesky, 195 Conn. 475,
481–82, 488 A.2d 1239 (1985), our Supreme Court
acknowledged that although it was ‘‘proper’’; id., 482;
for the defendant to have asked a crucial state’s witness
regarding his hope for leniency in pending prosecutions
in exchange for his testimony, the exclusion of a single
question on the subject after the witness had already
admitted that there were charges pending against him
and that he hoped for leniency in exchange for his
testimony did not violate the defendant’s right of con-
frontation. Id., 482–83. Similarly, in State v. Wilson, 188
Conn. 715, 721, 453 A.2d 765 (1982), the court concluded
that although an excluded question asking how many
felony charges were pending against the witness code-
fendant should have been allowed, the defendant’s right
of confrontation was not violated because he was
allowed to ask questions probing not only the witness’
own involvement in the crime, but also the fact that he
was then incarcerated, was a codefendant, had other
criminal cases pending, and stood to receive leniency
in the pending case because he was testifying against
the defendant. Id. In State v. Hackett, 182 Conn. 511,
519–20, 438 A.2d 726 (1980), our Supreme Court con-
cluded that the trial court had not erred in excluding
a single question asking an accomplice who had agreed
to testify for the state whether his attorney had begun
plea negotiations with the state before the date of his
plea agreement, which was in evidence. Id. The court
noted that the defendant had not only put the witness’
plea bargain into evidence, but also had cross-examined
him extensively on his hope for leniency or immunity in
the disposition of his own case. Id. The court concluded:
‘‘Looking at the record as a whole, we cannot find error
in the failure to allow the disputed question to be asked.
One adverse ruling in more than 200 pages of extensive
cross-examination is not an undue restriction of legiti-
mate inquiry into bias, interest, motive, or expectation
of leniency.’’ Id., 520.
State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985),
demarcates the constitutional boundary between per-
missible and impermissible limits on cross-examination
for bias, motive, or interest. In Milum, our Supreme
Court found error where the trial court refused to allow
the defendant to ask the victim at all about either the
victim’s pending civil suit arising from the same events
against the defendant, or about the victim’s demand
for $25,000 in exchange for her recommendation of a
suspended sentence for the defendant. Id., 607–608. The
court did not characterize the trial court’s ruling as a
mere, permissible limit on cross-examination, but
rather as an impermissible ‘‘denial’’ of it because a
potential source of bias remained wholly hidden from
the jury. See id., 614.
Because the court in the present case merely limited,
and did not preclude, inquiry into a specific motive
that already had been robustly developed on cross-
examination, the defendant’s right of confrontation was
not violated. As in Lubesky, Wilson, and Hackett, the
defendant extensively cross-examined the witness
about her specific interest in the outcome of the crimi-
nal case—namely, to use that case for the purpose of
excising the defendant from her child’s life. Defense
counsel successfully got her to admit on the witness
stand that she had given her son her own last name,
that she had not only declined to name the defendant
as her son’s father but had made no attempt to inform
him—and indeed had never intended that he learn—of
the child’s birth, that she had never demanded child
support payments from the defendant and had even
offered that she would promise never to do so in
exchange for his promise to leave her and her son alone,
that she wanted the defendant never to have any contact
with her or her son and had filed for a civil restraining
order to that end, and even that her new husband
wanted to adopt her son. Unlike in Milum, K’s interest
in the outcome was not completely concealed from the
fact finder by a total bar on cross-examination on the
subject. Indeed, the court specifically acknowledged in
its findings that it had considered the issue, noting that
‘‘quite frankly, [it] found [K] to be very credible, while
admittedly she has a strong interest in the custody of
her son.’’
The defendant cites State v. Baltas, 311 Conn. 786,
91 A.3d 384 (2014), in support of his argument that the
court’s limit on cross-examination of K violated his right
of confrontation. But Baltas reinforces, rather than dis-
rupts, the pattern described previously. In Baltas, the
court excluded cross-examination of a complaining wit-
ness on the subject of her rocky relationship with her
stepfather, one of the victims of the crimes at issue in
Baltas. See id., 794–95. The court also excluded external
evidence, which would have been introduced through
another witness, of the fact that the complaining wit-
ness’ father had recently received a large sum of money
that the complaining witness and the defendant mutu-
ally wanted to acquire. Id., 796. No other such evidence
was apparently allowed. Our Supreme Court therefore
determined that as in Milum and unlike in Lubesky,
Wilson, and Hackett, the trial court completely pre-
cluded an inquiry into motive rather than merely confin-
ing it to constitutionally allowable dimensions. Id., 804.
This case, however, is one of confinement and not of
preclusion. As we discussed previously, the defendant
was allowed to cross-examine K at length about her
substantial interest in the outcome of the case. The
confrontation clause does not require more; the court’s
ruling did not violate the defendant’s right of confron-
tation.
B
We turn next to the defendant’s claim that the court
violated his sixth amendment right to present a defense
by excluding from evidence a certain video recording,
which, in the defendant’s estimation, would have
impeached K’s testimony. We reject this claim.
The following additional facts and procedural history
are relevant. Testifying about the routine that she and
the defendant followed at the end of visits between L
and the defendant, K said that ‘‘typically,’’ she would
drive into the defendant’s driveway, get out of her car,
walk up to the door, and knock, at which point the
defendant would come to the door carrying L and hand
him to K. K then contrasted this routine with the events
of February 26, 2011.
Responding to K’s account of a typical custody
exchange, the defendant proposed to offer into evi-
dence a videotape that was taken about two weeks
before February 26, 2011, and that showed part of a
visit between L, K, and the defendant in the defendant’s
home. The defendant argued that the videotape
impeached K’s testimony because it showed them
together in the house with L and because it showed
the defendant carrying L out to the car. The defendant
argued that these depictions were inconsistent with K’s
account of prior custody exchanges. The prosecutor
objected on the grounds that K had not been confronted
with the video while on the witness stand and that
the video was irrelevant. The trial court sustained the
objection, finding the video irrelevant because it did
not impeach K’s testimony that the baby was ‘‘typically’’
passed from the defendant to K at the door at the end
of visits. In so ruling, the court pointed out that K had
said ‘‘typically’’ rather than ‘‘universally,’’ presumably
meaning that the video was not necessarily inconsistent
with her testimony.
The law regarding impeachment by extrinsic evi-
dence largely mirrors that of impeachment by cross-
examination, which we discussed previously.
‘‘Impeachment of a witness for motive, bias and interest
may also be accomplished by the introduction of extrin-
sic evidence. . . . The same rule that applies to the
right to cross-examine applies with respect to extrinsic
evidence to show motive, bias and interest . . . .’’
(Internal quotation marks omitted.) State v. Ferguson,
260 Conn. 339, 350–51, 796 A.2d 1118 (2002).
‘‘The trial court has wide discretion to determine the
relevancy of evidence and the scope of cross-examina-
tion. Every 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.’’ State v. Barnes, 232 Conn. 740, 746–47, 657 A.2d
611 (1995). Furthermore, ‘‘[t]o establish an abuse of
discretion, [the defendant] must show that the restric-
tions imposed upon [the] cross-examination were
clearly prejudicial.’’ (Internal quotation marks omitted.)
State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985).
‘‘The proffering party bears the burden of establishing
the relevance of the offered testimony. Unless such a
proper foundation is established, the evidence . . . is
irrelevant.’’ (Internal quotation marks omitted.) State
v. Barnes, supra, 747. ‘‘When the trial court excludes
defense evidence that provides the defendant with a
basis for cross-examination of the state’s witnesses,
however, such exclusion may give rise to a claim of
denial of the right to confrontation and to present a
defense.’’ State v. Casanova, 255 Conn. 581, 592, 767
A.2d 1189 (2001).
The defendant’s claim that the court’s ruling to
exclude his proffered evidence violated his right of con-
frontation presupposes that the evidence was relevant
to impeach K for motive, bias, or interest. But even if
we assume, without deciding, that the evidence was
relevant for this purpose, the defendant’s right of con-
frontation was not violated for substantially the same
reasons recited previously regarding the court’s exclu-
sion of a single question on cross-examination.7 The
court made an isolated ‘‘adverse ruling’’ that excluded
a single piece of evidence whose relevance to impeach
was dubious at best, and whose exclusion did not vio-
late the defendant’s right of confrontation. The defen-
dant questioned K at grueling length and in excruciating
detail about her interest in the outcome of the case—
the custody of her child. K made no attempt whatsoever
to conceal this interest; rather, she readily and plainly
admitted it at every turn. It certainly was not wholly
excluded from the fact finder’s consideration: as noted
previously, the court in its findings explicitly acknowl-
edged K’s bias. The defendant was given ample opportu-
nity to exhibit K’s bias, and he took full advantage of
that opportunity. His sixth amendment right of confron-
tation accordingly was not violated.
The judgments are affirmed.
In this opinion the other judges concurred.
* This appeal originally was heard before a panel of this court consisting
of Judge Gruendel, Judge Beach and Justice Borden. Thereafter, Chief Judge
DiPentima replaced Justice Borden. Chief Judge DiPentima has read the
record and briefs, and listened to the recording of oral argument, prior to
participating in this decision.
1
In accordance with our policy of protecting the privacy interests of the
victims of the crimes of risk of injury to a child and criminal violation of
a protective order, we decline to identify the victims or others through
whom the victims’ identities may be ascertained.
2
The defendant does not specifically challenge the sufficiency of the
evidence to support his conviction of disorderly conduct; thus, we do not
consider it here.
3
The defendant also argues that the evidence was insufficient to prove
beyond a reasonable doubt that he acted with the general intent required
to violate the protective order, but his argument, although framed in terms
of general intent, amounts to a circumstantial case that the defendant was
not present—in other words, identity.
4
The defendant did not and does not argue that the identifications were
constitutionally or statutorily inadmissible; see United States v. Wade, supra,388 U.S. 228; State v. Outing, 298 Conn. 34, 47–48, 3 A.3d 1 (2010), cert.
denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011); General
Statutes § 54-1p.
5
The defendant suggested at oral argument before this court that certain
language in Lapointe v. Commissioner of Correction, 316 Conn. 225, 268,
112 A.3d 1 (2015), might have modified the role of reviewing courts with
respect to credibility determinations by lower courts in some circumstances.
The defendant admitted, however, that the issue had not been briefed for
argument, and we will not address it here.
6
We discuss only the standard of review for claims of constitutional error
because the defendant has not raised or briefed the issue of whether the
court committed nonconstitutional, evidentiary error by excluding the cross-
examination questions.
7
We refer here to our previous, analogous discussion of what constitutes
undue restriction of the right of cross-examination. See State v. Hackett,
supra, 182 Conn. 520.