State v. Thomas

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STATE OF CONNECTICUT v. WILLIAM B. THOMAS
(AC 38193)
Alvord, Keller and Bishop, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, unlawful
restraint in the first degree and false statement in the second degree,
the defendant appealed to this court. He claimed, inter alia, that the
trial court violated his constitutional rights to confrontation and to
present a defense when it ruled that the rape shield statute (§ 54-86f
[a]) prohibited him from introducing certain evidence of the victim’s
prior sexual conduct with two other men, B, and the victim’s former
boyfriend, R, in the seventy-two hours preceding the alleged sexual
assault by the defendant. Held:
1. The defendant could not prevail on his unpreserved claim that evidence
of the victim’s prior sexual conduct with B and R was admissible to
impeach her credibility pursuant to certain exceptions to § 54-86f (a),
which permit the admission of prior sexual conduct evidence when such
evidence is offered by the defendant on the issue of the credibility of
the victim, provided that the victim testified on direct examination as
to his or her sexual conduct, and the evidence is otherwise so relevant
and material to a critical issue in the case that excluding it would violate
the defendant’s constitutional rights: the defendant acknowledged that
the victim never explicitly testified as to her sexual conduct with anyone
other than the defendant, and in light of the fact that the victim did not
testify, either explicitly or by reasonable inference, about her sexual
conduct with anyone other than the defendant, the proffered evidence
was not admissible for impeachment purposes under § 54-86f (a) (2),
and, therefore, the defendant failed to demonstrate, pursuant to State
v. Golding (213 Conn. 233), that the alleged constitutional violation
existed or that it deprived him of a fair trial; moreover, impeaching the
victim’s credibility with evidence of her prior sexual conduct, and with
an inconsistent statement she had made to a hospital nurse, was not
so relevant and material, pursuant to § 54-86f (a) (4), that its exclusion
violated the defendant’s constitutional rights, as the defendant had
impeached the victim with regard to a number of other inconsistent
statements she made such that impeachment with the inconsistent state-
ment to the nurse would have been largely duplicative and of marginal
value to further undermining the victim’s credibility.
2. The record was inadequate to review the defendant’s unpreserved claim
that evidence of the victim’s prior sexual conduct with B should have
been admitted, pursuant to § 54-86f (a) (1), to show an alternative source
for the scrapes and bruises on the victim’s body after the sexual assault
at issue, the record having been devoid of information probative of the
location and nature of the victim’s sexual encounter with B.
3. This court declined to review the defendant’s unpreserved claim that he
was improperly prohibited from inquiring and presenting evidence about
the victim’s relationship with B in order to show the victim’s motive
and bias to lie, which he claimed should have been admitted pursuant
to the exception in § 54-86f (a) (4); the defendant likely could have
inquired into whether the victim and B had a romantic relationship
without implicating the prohibition in § 54-86f (a) of prior sexual conduct
evidence, and because any sexual conduct between the victim and B
may have been relevant, but was not essential, to that inquiry, the claim
was not of constitutional magnitude for purposes of review pursuant
to Golding.
4. Contrary to the defendant’s claim, evidence of the victim’s prior sexual
conduct with B and R was not probative, pursuant to § 54-86f (a) (1),
of whether her vaginal injuries could have been caused by anyone other
than the defendant; there was no testimony about a purported makeshift
panty liner that the defendant sought to introduce into evidence and it,
thus, had no probative value, testimony from a hospital nurse that rough
consensual sexual relations could cause vaginal injury was unhelpful
to the defendant, who failed to proffer evidence that the victim had had
a rough sexual encounter with B or R, the defendant’s offer of proof
as to the victim’s alleged sexual intercourse with R was speculative and
inadequate, and evidence that the victim had sexual relations with B in
the hours preceding her intercourse with the defendant was not proba-
tive of whether someone other than the defendant caused her vaginal
injuries.
5. The defendant could not prevail on his claim that the trial court abused
its discretion by denying his motion for funds to pay for investigative
services for his defense; because the statutes governing public defender
services require the Public Defender Services Commission to authorize
such expenditures when the commission determines, as a threshold
matter, that such services are reasonably necessary to the defense, the
trial court did not have the discretion to grant the request, and even if
it did, the defendant failed to make a proper showing that the funds for
investigative services were reasonable and necessary to the defense.
6. The defendant’s claim that he was denied his right to a fair trial as a
result of the prosecutor’s allegedly improper remarks during closing
argument to the jury was unavailing; the prosecutor’s remarks that
defense counsel had conducted a ‘‘cutting’’ cross-examination of the
victim and ‘‘did a great job of testifying,’’ and certain other comments
of the prosecutor, were not improper, as they did not amount to an
attempt to demean or impugn the integrity of defense counsel, the
prosecutor did not appeal to the jurors’ emotions or to their sympathies
for the victim, and did not refer to facts or documents that were not in
evidence, and this court declined to review the defendant’s claim that
the prosecutor improperly vouched for the victim’s credibility, that claim
having been inadequately briefed.
Argued May 18—officially released October 17, 2017
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, unlawful
restraint in the first degree and false statement in the
second degree, brought to the Superior Court in the
judicial district of Litchfield, where the court, Ginoc-
chio, J., denied the defendant’s motions for costs
related to the defense and to admit certain evidence;
thereafter, the matter was tried to the jury; subse-
quently, the court denied the defendant’s motion to
open the evidence; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Philip M. Chabot, certified legal intern, with whom
was James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom were Dawn Gallo, senior assistant state’s attor-
ney, and, on the brief, David S. Shepack, state’s attor-
ney, and for the appellee (state).
Opinion
KELLER, J. The defendant, William B. Thomas,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1),
one count of unlawful restraint in the first degree in
violation of General Statutes § 53a-95 (a), and one count
of false statement in the second degree in violation
of General Statutes (Rev. to 2011) § 53a-157b (a). On
appeal, the defendant claims that (1) the trial court
violated his constitutional rights to confrontation and to
present a defense by excluding evidence of the victim’s1
prior sexual conduct under General Statutes § 54-86f,2
commonly known as the rape shield statute; (2) the
trial court violated his right to due process by denying
his pretrial motion for costs to pay for investigative
services necessary to his defense; and (3) the state’s
closing argument was improper and deprived him of
a fair trial.3 We disagree. Accordingly, we affirm the
judgment of the court.
The jury reasonably could have found the following
facts. The events in question took place on September
2, 2011, and into the early morning hours of September
3, 2011. The victim was nineteen years old at the time.
In the early evening of September 2, the victim drove
to a Burger King in Torrington. There she met with a
friend, Garrett Gomez. Leaving her car at the Burger
King, the victim and Gomez traveled in Gomez’ car to
his residence in Winsted. The victim then bought heroin
from Gomez and used two bags worth.
The victim and Gomez next met with another friend,
Mike Boyle, at a reservoir in Barkhamsted, where they
spent time fishing. The victim also used more heroin
there. The victim and Boyle then went to Boyle’s house,
where they ate dinner. At about this time, the victim
drank alcohol as well.
At about midnight, Boyle drove the victim to Snapper
Magee’s, a bar in Torrington. While there, she drank
more alcohol. The victim stayed at the bar until it closed.
By that time, Boyle had left. The victim therefore needed
a ride back to her car at the Burger King.
The defendant was also at Snapper Magee’s that
night, having walked there after his shift as a cook at
a nearby restaurant. At closing time, the defendant was
outside in front of the bar. The victim approached the
defendant and asked for a ride. The defendant told her
that he would help, and the pair walked to the bar’s
parking lot. The defendant did not have a car in the
parking lot.
Once at the lot, between two parked cars, the victim
performed oral sex on the defendant, and the defendant
digitally penetrated her vagina. It is undisputed that
these activities were consensual.
After the sexual encounter took place, the victim was
still in need of a ride. At the defendant’s direction, the
victim and the defendant proceeded to walk down a
nearby street. The victim asked the defendant how he
would give her a ride. The defendant told her that a
friend would do so.
The pair approached a white house where the defen-
dant indicated that the friend was located. The defen-
dant, however, with the victim still following, walked
past the house and through an opening in a nearby
chain-link fence. On the other side of the fence lay
railroad tracks. With the pair standing on the tracks,
the defendant began kissing the victim. He then began
pushing her head down toward his genitals. With the
victim resisting, the defendant forced her head onto his
penis. He then forced her down to the ground and,
while straddling her, removed her clothes. The defen-
dant penetrated her vagina, and then her anus, with
his penis.
The victim was then able to get away. She grabbed
some of her clothes and ran. At some point, she was
able to put her shorts on. She continued running, top-
less, until she reached an entryway to a bank, where
she sat, covering her chest with her knees. A bystander
called the police, and the victim was transported to
Charlotte Hungerford Hospital for treatment.
The defendant was charged with one count of sexual
assault in the first degree in violation of § 53a-70 (a)
(1), one count of unlawful restraint in the first degree
in violation of § 53a-95 (a), and one count of false state-
ment in the second degree in violation of § 53a-157b
(a).4 A three day trial commenced on October 16, 2013.
The defendant did not testify. His attorneys argued dur-
ing closing remarks that the intercourse on the railroad
tracks, the conduct underlying the sexual assault and
unlawful restraint charges, was consensual. On October
23, 2013, the jury returned a verdict of guilty on all
three counts. The court thereafter rendered judgment
imposing a total effective sentence of seven years
imprisonment, followed by eight years of special parole,
with lifetime registration as a sex offender. This appeal
followed. Additional facts will be provided in the con-
text of the defendant’s claims.
I
The defendant first claims that the court violated his
constitutional rights to confrontation and to present
a defense, as guaranteed by the sixth and fourteenth
amendments to the United States constitution, by
excluding evidence of the victim’s prior sexual conduct
under § 54-86f. We disagree.
The following additional facts are relevant to this
claim. Several weeks before trial, the defendant filed a
‘‘Motion for Evidentiary Hearing Pursuant to [§] 54-
victim ‘‘admitted to having sexual relations with her
then boyfriend in the hours prior to the alleged sexual
relations with the defendant.’’ Without further explana-
tion, the defendant asserted that ‘‘[t]his evidence is
clearly relevant to the defense of consent.’’ He therefore
requested an evidentiary hearing ‘‘regarding the admis-
sibility of [the victim’s] sexual conduct in the minutes
and hours prior to the time when the defendant is
accused of sexually assaulting her.’’
The parties presented oral argument on the motion
prior to trial. During that hearing, the state acknowl-
edged that the victim had indicated (in what was later
identified as a written statement to the Torrington
police) that she had had sexual relations with ‘‘another
boyfriend’’ ‘‘prior to going out’’ on the evening in ques-
tion.5 The state also told the court that preliminary
results of tests conducted on the victim’s rape kit
showed the presence of two DNA profiles, one from
the defendant, the other from an unnamed depositor.
The state questioned the relevance of this evidence.
At the hearing, the defendant argued that the victim’s
prior sexual intercourse with the boyfriend ‘‘goes to
[the victim’s] credibility in terms of . . . this is a yes,
this is a no type of a thing in terms of the consent.’’
The defendant further argued that ‘‘[i]t goes to consent.
It goes to [the victim’s] pattern of practice in terms of
what she was doing out that night. . . . It also goes to
intoxication and possible alcohol use affecting her cred-
ibility.’’
The court denied the motion, concluding: ‘‘My inclina-
tion is, I’m not going to allow any testimony as to the
other DNA sample. It goes to her sexual contact with
a person that’s not involved in this case.’’
The defendant filed another motion for an evidentiary
hearing pursuant to § 54-86f two days before trial. In
it, the defendant repeated the assertion that the victim
had had sexual relations with the aforementioned boy-
friend in the hours before the alleged sexual assault.
The motion also added new information. It represented
that, ‘‘[u]pon information and belief, [the victim] may
also have engaged in sexual relations with another man
within twenty-four (24) hours of having engaged in sex-
ual relations with the aforementioned [boyfriend] and
the defendant.’’ (Emphasis added.) It then asserted that,
when the victim was being treated at the hospital, a
nurse, Cheryl Underwood, as part of the evaluation and
evidence collection process, asked her whether she had
had sexual relations with anyone other than the defen-
dant in the seventy-two hours preceding the alleged
sexual assault, and that she had answered no. The
motion then added that the victim ‘‘acknowledged in
her second written statement to the [Torrington police]
that she had engaged in intercourse with at least one
other person’’ on the evening of the incident at issue.
Accordingly, the defendant argued that the victim’s
prior sexual conduct with the other individuals was ‘‘so
relevant and material to the issue of credibility that
to deny the defendant the right to introduce evidence
regarding this issue would severely prejudice the defen-
dant and violate his right to a fair trial.’’ (Emphasis
omitted.)
The court heard oral argument on the motion on the
first day of trial before the presentation of evidence.
At that hearing, the defendant provided some additional
information. The defendant explained that the ‘‘boy-
friend’’ identified in the first motion (later identified as
Boyle) was not in fact ‘‘dating’’ the victim, although
the defendant still maintained that Boyle had sexual
relations with her shortly before the alleged sexual
assault. The ‘‘real’’ boyfriend, the defendant contended,
was the individual identified in the second motion as
having had sexual relations with the victim in the
twenty-four hours before she had sexual relations with
Boyle and the defendant. This individual was later iden-
tified by the state as an individual named Kevin Rob-
erge. The defendant argued that ‘‘the reason why [the
victim] didn’t disclose [that she was with Roberge] is
[because] the two of them had been arrested on a
domestic incident two months earlier. We believe that
there was a protective order in place with respect to
[Roberge]; and the fact that these two were together
earlier in the day, sexual conduct aside, we believe may
have been in violation of the protective order.’’ The
defendant also added that the victim’s prior sexual rela-
tions with Boyle and Roberge may help explain some
of the injuries—scrapes and bruises—observed on her
at the hospital and by the police after the alleged sexual
assault, though he did not explain how.
The court denied the motion, but expressly did not
preclude the defendant from questioning the victim
about the cause of her injuries so long as the questions
did not concern her sexual relations with anyone other
than the defendant.
On the first day of trial, the state elicited the following
testimony from the victim during its case-in-chief:
‘‘[The Prosecutor]: Did you feel pain as a result of
[the alleged sexual assault]?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Could you describe that for the
jury?
‘‘[The Victim]: Vaginally, I felt pain and—
‘‘[The Prosecutor]: Were you on birth control at
the time?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: And as a result of that birth con-
trol, did you not have any menstrual bleeding?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: So, that kept you from bleeding.
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Did you have any bloody dis-
charge as a result of this incident?
‘‘[The Victim]: Yes.
‘‘[The Prosecutor]: Vaginal discharge?
‘‘[The Victim]: Yes.’’
When the state’s direct examination of the victim
concluded, the defendant addressed the court, in the
absence of the jury, as follows: ‘‘[T]here was some ques-
tioning on direct examination regarding any bloody dis-
charge as part of the vaginal examination. And there
[were] questions posed regarding whether she was men-
struating, and because of medications that’s not
occurring.
‘‘Then there was a question regarding did the bloody
discharge come from this incident. If I’m not allowed
to question as to where else that bloody discharge may
have come from, the jury is now stuck with the impres-
sion that it had to come from here. There was a ques-
tion—there were questions posed on direct that open
the door as to the source of these injuries, her source
of things that were found as part of the sexual assault
examination that happened at the hospital. That bloody
discharge could have come from other places. And
going back to that question about whether there was
any intercourse within a seventy-two hour period, that
question is clearly—clearly asked for the purposes of
determining other potential sources of evidence or
injuries.
‘‘And, Your Honor, I respectfully submit if we are
foreclosed from this, I believe it directly affects my
client’s right to a fair trial. . . . I think the door has
been opened here, and I believe that that is an area
that we must be able to examine.’’
After further argument by the defendant and the state,
the court concluded: ‘‘You can ask [the victim] if she
had any injuries to her vaginal area on that date, but
I’m not going to allow you to get into prior sexual
conduct with anybody other than the defendant.’’ On
cross-examination, the defendant did not ask the victim
whether she had any injuries to her vaginal area prior
to the alleged sexual assault. The defendant later
explained to the court why he did not pursue that line
of inquiry: ‘‘I didn’t because if her answer was no, I was
stuck with that, I wasn’t going to be allowed to cross-
examine her about the fact that she did have intercourse
with other people and there were other sources.’’
On the second day of trial, the stated rested its case.
In his case-in-chief, the defendant first presented the
testimony of Underwood, the nurse who had treated
the victim at the hospital. At the defendant’s request,
the court also qualified Underwood to testify as an
expert in the field of sexual assault examinations. The
defendant asked Underwood whether, in her examina-
tion of the victim, Underwood ‘‘note[d] any bloody dis-
charge, vaginal discharge?’’ Underwood responded in
the affirmative. During Underwood’s testimony, the fol-
lowing exchange also occurred:
‘‘[Defense Counsel]: In your training and experience,
what are certain sources of such a discharge?
‘‘[Underwood]: For a possible sexual assault from
trauma.
‘‘[Defense Counsel]: Now, what do you mean by,
from trauma?
‘‘[Underwood]: Forced penetration, um, use of
objects.
‘‘[Defense Counsel]: Rough sex? . . .
‘‘[Underwood]: [Y]es, it could be as well.
‘‘[Defense Counsel]: So, consensual rough sex may
result in trauma, correct?
‘‘[Underwood]: It could.
‘‘[Defense Counsel]: Now, can a bloody discharge
also be caused by menstruation?
‘‘[Underwood]: Yes, it can.
‘‘[Defense Counsel]: Can trauma also be caused by
digital penetration?
‘‘[Underwood]: Yes.’’
After Underwood’s testimony, the defendant did not
make another offer of proof seeking admission of evi-
dence of the victim’s prior sexual conduct.
The defendant later presented the direct testimony
of Boyle. Boyle testified that he knew the victim from
high school, and that, prior to the evening in question,
he had not seen her in ‘‘[p]robably over a year.’’ He
denied that he was dating her at the time of the incident.
Jury deliberations began on October 18, 2013. On
October 23, 2013, with those deliberations ongoing, the
defendant filed a motion with the court to open the
evidentiary portion of the case. The court heard oral
argument on the motion that day. In his argument, the
defendant referred to a photograph taken by the Torrin-
gton police in connection with the investigation into
the alleged sexual assault. The defendant asserted that
the photograph depicted ‘‘a piece of paper with some
stains on it’’ ‘‘folded in the shape of a makeshift panty
liner.’’ The defendant reasoned that, if that purported
makeshift panty liner was used by the victim and then
discarded at the railroad tracks, ‘‘that would tend to
implicate that [the victim] is not credible regarding the
source of the vaginal bleeding and would also bear
directly on . . . the innocence of the defendant as to
the crimes charged.’’ The defendant stated that he
would recall a Torrington police officer who testified
in the case, as well as the victim, for questioning about
the evidence. In response to questioning by the court,
the defendant acknowledged that he had had the photo-
graph ‘‘[a]t least thirty days before the trial, perhaps
far earlier than that.’’ The court denied the motion, but
ordered that ‘‘[the] evidence be preserved, that it be
brought into the courthouse, and it be put into an enve-
lope and sealed for appellate purposes.’’ Later on the
same day, the jury returned its verdict.
Before proceeding to our analysis, we observe the
following background on and legal principles related
to this state’s rape shield statute. Prior to the advent
of rape shield laws in the 1970s, ‘‘[e]vidence of [a rape
complainant’s] previous sexual conduct was deemed
relevant at common law on the issue of whether the
. . . complainant had consented to sexual relations on
the occasion in question—a complete defense, if estab-
lished, to a charge of forcible rape.’’ (Footnotes omit-
ted.) H. Galvin, ‘‘Shielding Rape Victims in the State
and Federal Courts: A Proposal for the Second Decade,’’
70 Minn. L. Rev. 763, 766 (1986). Indeed, Wigmore wrote
that ‘‘[t]he non-consent of the complainant is [in rape
cases] a material element; and the character of the
woman as to chastity is of considerable probative value
in judging of the likelihood of that consent.’’ 1A J. Wigm-
ore, Evidence (Tillers Rev. 1983) § 62, pp. 1260–61.
Our legislature, by enacting § 54-86f, abrogated that
common-law rule. It ‘‘has determined that, except in
specific instances, and taking the defendant’s constitu-
tional rights into account, evidence of prior sexual con-
duct is to be excluded for policy purposes. Some of
these policies include protecting the victim’s sexual
privacy and shielding her from undue [harassment],
encouraging reports of sexual assault, and enabling the
victim to testify in court with less fear of embar-
rassment. . . . Other policies promoted by the law
include avoiding prejudice to the victim, jury confusion
and waste of time on collateral matters.’’ (Citation omit-
ted.) State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d
386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).
Section 54-86f provides in relevant part: ‘‘(a) . . .
[N]o evidence of the sexual conduct of the victim may
be admissible unless such evidence is (1) offered by
the defendant on the issue of whether the defendant
was, with respect to the victim, the source of semen,
disease, pregnancy or injury, or (2) offered by the defen-
dant on the issue of credibility of the victim, provided
the victim has testified on direct examination as to his
or her sexual conduct, or (3) any evidence of sexual
conduct with the defendant offered by the defendant
on the issue of consent by the victim, when consent is
raised as a defense by the defendant, or (4) otherwise
so relevant and material to a critical issue in the case
that excluding it would violate the defendant’s constitu-
tional rights. . . .’’ Further, ‘‘[s]uch evidence shall be
admissible only after an in camera hearing on a motion
to offer such evidence containing an offer of proof. If
the proceeding is a trial with a jury, such hearing shall
be held in the absence of the jury. If, after a hearing,
the court finds that the evidence meets the requirements
of this section and that the probative value of the evi-
dence outweighs its prejudicial effect on the victim, the
court may grant the motion. . . .’’ General Statutes
§ 54-86f (a).
Our Supreme Court has set forth two requirements
that must be met before a trial court may admit evidence
of a victim’s sexual conduct. First, the defendant must
show that the evidence is ‘‘relevant.’’ See, e.g., State
v. Shaw, 312 Conn. 85, 104–106, 90 A.3d 936 (2014).
Generally, ‘‘ ‘[r]elevant evidence’ means evidence hav-
ing 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. Facts are ‘‘material’’
when they are ‘‘directly in issue or . . . probative of
matters in issue.’’ C. Tait & E. Prescott, Connecticut
Evidence (5th Ed. 2014) § 4.1.3, p. 154.
With respect to evidence potentially falling under the
rape shield statute, our Supreme Court has concluded
that evidence offered ‘‘merely to demonstrate the
unchaste character of the victim’’ is generally not rele-
vant. (Internal quotation marks omitted.) State v. Shaw,
supra, 312 Conn. 104. Rather, the evidence must be
‘‘relevant to establish some portion of the theory of
defense or rebut some portion of the state’s case . . . .’’
(Internal quotation marks omitted.) Id., 105.
In order to establish the relevance of prior sexual
conduct evidence, the defendant must make an offer
of proof to the court. Id., 105–106. ‘‘Offers of proof are
allegations by the attorney . . . in which he represents
to the court that he could prove them if granted an
evidentiary hearing.’’ (Internal quotation marks omit-
ted.) Id., 105 n.13. In the context of the rape shield
statute, ‘‘[a] clear statement of the defendant’s theory
of relevance is all important in determining whether
the evidence is offered for a permissible purpose.’’ State
v. Sullivan, 244 Conn. 640, 647, 712 A.2d 919 (1998).
If the court determines that the proffered evidence
is relevant, it then proceeds to the next step of the
process by conducting an evidentiary hearing out of
the presence of the jury. State v. Shaw, supra, 312 Conn.
105–106 and 106 n.13; see also General Statutes § 54-
86f (a). If, after the evidentiary hearing, ‘‘the court finds
that the evidence meets the requirements of [§ 54-86f
(a)] and that the probative value of the evidence out-
weighs its prejudicial effect on the victim, the court
may grant the motion.’’ State v. Shaw, supra, 104.
When a trial court improperly excludes evidence in
a criminal matter, the defendant’s constitutional rights
may be implicated. ‘‘It is fundamental that the defen-
dant’s rights to confront the witnesses against him and
to present a defense are guaranteed by the sixth amend-
ment to the United States constitution. . . . 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. . . . 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 confrontation is the right to cross-
examination . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Wright, 320 Conn. 781,
816–17, 135 A.3d 1 (2016).
Nevertheless, ‘‘[i]t is well established that a trial court
has broad discretion in ruling on evidentiary matters,
including matters related to relevancy. . . . Accord-
ingly, the trial court’s ruling is entitled to every reason-
able presumption in its favor . . . and we will disturb
the ruling only if the defendant can demonstrate a clear
abuse of the court’s discretion.’’ (Internal quotation
marks omitted.) State v. Shaw, supra, 312 Conn. 101–
102. Further, ‘‘[w]e have emphasized in numerous deci-
sions . . . that the confrontation clause does not give
the defendant the right to engage in unrestricted cross-
examination. . . . A defendant may elicit only relevant
evidence through cross-examination. . . . 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.’’ (Internal quotation marks
omitted.) State v. Crespo, 303 Conn. 589, 610–11, 35
A.3d 243 (2012).
We now turn to our analysis of the defendant’s claim.
As previously mentioned, he claims that the court vio-
lated his constitutional rights to confrontation and to
present a defense by excluding evidence of the victim’s
prior sexual conduct under the rape shield statute. In
support of this claim, the defendant advances several
theories of admissibility. To the extent that his claim
of error under a particular theory of admissibility was
not preserved, the defendant seeks review under State
v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under
Golding, ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions,
the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim
by focusing on whichever condition is most relevant in
the particular circumstances.’’ (Emphasis in original;
footnote omitted.) Id., 239–40; see In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015) (modifying Gold-
ing’s third prong). We analyze each of the defendant’s
theories of admissibility in the following subparts.
A
We first address the defendant’s argument that evi-
dence of the victim’s prior sexual conduct with Boyle
and, purportedly, also with Roberge, was admissible to
impeach her credibility under the second and fourth
exceptions to the rape shield statute. Those exceptions
permit the admission of prior sexual conduct evidence
when such evidence is ‘‘offered by the defendant on
the issue of credibility of the victim, provided the victim
has testified on direct examination as to his or her
sexual conduct’’; General Statutes § 54-86f (a) (2); and
‘‘otherwise so relevant and material to a critical issue in
the case that excluding it would violate the defendant’s
constitutional rights. . . .’’ General Statutes § 54-86f
(a) (4).
We first discuss the defendant’s § 54-86f (a) (2) argu-
ment. We emphasize that, in order to have evidence
admitted under this exception to the rape shield statute,
the victim must first have ‘‘testified on direct examina-
tion as to his or her sexual conduct . . . .’’ General
Statutes § 54-86f (a) (2); see also State v. Njoku, 163
Conn. App. 134, 154, 133 A.3d 906, cert. denied, 321
Conn. 912, 136 A.3d 644 (2016). The defendant acknowl-
edges that the victim never explicitly testified as to her
sexual conduct with anyone other than the defendant,
but nevertheless contends that she indirectly testified
about it because ‘‘she did state, with certainty, that the
source of [her] bloody discharge was caused by the
defendant,’’ and ‘‘this statement can be interpreted to
mean that she only had [sexual relations] with one
person that day . . . .’’
As an initial matter, we observe that the defendant
did not distinctly raise this argument, either as an evi-
dentiary or a constitutional matter, before the trial
court. Although, following the victim’s direct testimony
in which she indicated that the defendant caused her
vaginal injuries, the defendant sought to have evidence
of her prior sexual conduct admitted in order to attempt
to show an alternative source for those injuries, the
defendant did not argue that the victim’s testimony
concerning the injuries amounted to an assertion that
she had sexual relations with only one person during
the twenty-four hours preceding the incident. ‘‘Ordi-
narily, we will not consider a theory of relevance that
was not raised before the trial court. . . . The defen-
dant, however, does not bring a purely evidentiary
claim, but claims that the exclusion of the evidence
deprived him of his right to confrontation and his right
to present a defense.’’ (Citation omitted.) State v.
Adorno, 121 Conn. App. 534, 548 n.4, 996 A.2d 746,
cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010). The
defendant must therefore satisfy the requirements of
State v. Golding, supra, 213 Conn. 239–40, in order to
prevail on this argument. See State v. Adorno, supra,
548 n.4 (proceeding to Golding analysis on unpreserved
evidentiary claim).
We conclude that the claim fails to satisfy Golding’s
third prong—that is, that ‘‘the alleged constitutional
violation . . . exists and . . . deprived the defendant
of a fair trial . . . .’’ State v. Golding, supra, 213 Conn.
240. We do not dispute that, in certain cases, even if a
sexual assault victim’s direct testimony does not explic-
itly refer to ‘‘sexual conduct,’’ inferences that can be
drawn from such testimony could open the door to the
admission of prior sexual conduct evidence under § 54-
86f (a) (2). Cf. State v. Shaw, supra, 312 Conn. 107
(‘‘[§] 54-86f encompasses inferential as well as direct
evidence of sexual conduct’’ [internal quotation marks
omitted]). But that is not the case here. The victim’s
testimony that the alleged sexual assault caused her
vaginal trauma is not remotely akin to stating that she,
in the defendant’s words, ‘‘only had [sexual relations]
with one person that day . . . .’’ In light of the fact
that the victim did not testify, either explicitly or by
reasonable inference, about her sexual conduct with
anyone other than the defendant, the proffered evi-
dence was not admissible for impeachment purposes
under § 54-86f (a) (2). Accordingly, we are not per-
suaded on the basis of this argument that the alleged
constitutional violation exists or that it deprived the
defendant of a fair trial.
We next discuss the defendant’s argument that evi-
dence of the victim’s prior sexual conduct was admissi-
ble under the fourth exception to the rape shield statute
because impeaching the victim’s credibility on that sub-
ject was ‘‘so relevant and material to a critical issue in
the case that excluding it would violate the defendant’s
constitutional rights. . . .’’ General Statutes § 54-86f (a)
(4). More specifically, the defendant argues that, in light
of the fact that the victim had sexual relations with
Boyle and, possibly, Roberge, in the seventy-two hours
preceding the incident, he should have been permitted
to impeach the victim’s credibility by presenting both
evidence that she had sexual relations with those indi-
viduals as well as her statement to Underwood in which
she denied having sexual relations with anyone other
than the defendant in the three days preceding the
alleged sexual assault.6 The defendant contends that
this is particularly true because ‘‘statements to medical
providers are extremely reliable,’’ and anything bearing
on the victim’s credibility in this ‘‘he said, she said’’
case would necessarily be significant.
As previously mentioned, in his second pretrial
motion for an evidentiary hearing pursuant to § 54-86f,
the defendant made a similar argument based in part
on the fourth exception to the rape shield statute and
the sixth amendment to the United States constitution.
The court denied that motion. On appeal, however, the
defendant relies in part on events in the trial that
occurred after the court’s denial (and which, therefore,
the court was necessarily unaware of when it made
its ruling) to support his argument that the proffered
evidence was admissible under § 54-86f (a) (4) to
impeach the victim’s credibility. We therefore consider
the present constitutional claim to be unpreserved
because it is based on a theory of admissibility that
was not raised at trial. Accordingly, we review it under
State v. Golding, supra, 213 Conn. 233; see also State
v. Adorno, supra, 121 Conn. App. 548 n.4.
As with the previous argument, we are not persuaded
that ‘‘the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial . . . .’’
State v. Golding, supra, 213 Conn. 240. ‘‘In determining
whether the cross-examination of [the victim] was
unduly restricted it is the entire cross-examination
which we must examine. . . . [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-examina-
tion viewed in relation to the issues actually litigated
at trial.’’ (Citation omitted; internal quotation marks
omitted.) State v. Crespo, supra, 303 Conn. 612. At trial,
the defendant impeached the victim with regard to a
number of other inconsistent statements that she had
made to the police and hospital staff in connection with
the incident.7 In light of this, impeaching the victim by
introducing evidence of the inconsistent statement to
Underwood would have been largely duplicative, and
therefore of marginal value to further undermining her
credibility. We also fail to see how impeaching the vic-
tim with regard to her statement to Underwood would
be significant apart from its tendency to contradict the
victim—it was, of course, the defendant’s conduct that
was at issue in the case. Accordingly, we are not per-
suaded that the alleged constitutional violation exists
or that it deprived the defendant of a fair trial. See State
v. Golding, supra, 240.
B
We next address the defendant’s argument that evi-
dence of the victim’s prior sexual conduct should have
been admitted under § 54-86f (a) (1) in order to show
an alternative source for the scrapes and bruises that
were observed on the victim’s body after the alleged
sexual assault. Specifically, the defendant argues:
‘‘Because defense counsel was prohibited from inquir-
ing about the previous encounter with Boyle, it is
unknown if [the victim] had [sexual relations] with
Boyle at the [reservoir] where they were fishing . . .
or at his home. If [the victim] had [sexual relations]
with [Boyle] at the [reservoir], the scrapes and minor
injuries on [her] body could also have easily come from
such an encounter.’’ (Citation omitted.) We decline to
review the merits of this argument.
The following facts are relevant to this issue. As
alluded to previously, the victim testified that she went
to the Barkhamsted reservoir with Boyle and Gomez
after going to Gomez’ house. She testified that they
spent time fishing there and that she used heroin there
as well. The victim also testified that, after leaving the
reservoir, but before going to Snapper Magee’s, she
went to Boyle’s house and ate dinner there. During oral
argument before the court on his first pretrial motion
for an evidentiary hearing pursuant to § 54-86f, the
defendant asserted, and the state acknowledged, that
in a written statement to the police (not admitted into
evidence), the victim disclosed that she and a ‘‘boy-
friend’’ (later identified as Boyle) had sexual relations
on the day of the alleged sexual assault. At trial, the
state entered into evidence photographs taken just after
the alleged sexual assault showing scrapes and bruises
on different parts of the victim’s body.
The defendant did not distinctly raise the present
argument, either as an evidentiary or a constitutional
matter, at trial. Although, at one point, he baldly
asserted that the victim’s prior sexual conduct with
Boyle and, purportedly, Roberge, may help explain
some of the bruises and scrapes shown in the photo-
graphs, he never suggested that a sexual encounter
involving the victim took place at the reservoir. The
defendant must therefore satisfy the requirements of
State v. Golding, supra, 213 Conn. 239–40, in order to
prevail on this argument.
Of course, had it actually been established that the
victim and Boyle had sexual relations at the reservoir,
that evidence might have been probative of the prove-
nance of the victim’s nonvaginal injuries. As it happens,
though, the record discloses only two things relating
to this issue: (1) that the victim and Boyle had sexual
intercourse, and (2) that at some point on the day they
had sexual intercourse, they visited the reservoir.
We conclude that the record is not adequate to review
this particular argument. See id., 239. It is well recog-
nized that ‘‘[w]hen the constitutional claim is one that
is especially fact dependent . . . the failure to preserve
the claim before the trial court often results in an inade-
quate factual record for review, thus leading to the
claim’s failure on the merits.’’ State v. Elson, 311 Conn.
726, 750–51, 91 A.3d 862 (2014). The record is devoid
of any information probative of the location and nature
of the sexual encounter with Boyle—as far as the record
discloses, it appears equally likely that the sexual
encounter occurred at Boyle’s house (where the two
had dinner) or at some other location, rather than at
the reservoir. Accordingly, this argument fails under
the first prong of State v. Golding, supra, 213 Conn.
239; we therefore decline to reach its merits.
C
We next address the defendant’s argument that he
was improperly ‘‘prohibited from inquiring about [the
victim’s] relationship with Boyle, both emotion[al] and
physical, to show motive and a bias to lie about the
sexual assault.’’ The defendant argues that this evidence
should have been admitted under the fourth exception
to the rape shield statute. See General Statutes § 54-
86f (a) (‘‘no evidence of the sexual conduct of the victim
may be admissible unless such evidence is . . . (4)
otherwise so relevant and material to a critical issue in
the case that excluding it would violate the defendant’s
constitutional rights’’). We decline to review the merits
of this argument.
The defendant did not raise this particular argument
at trial in either its evidentiary or constitutional form.
In fact, one of the defendant’s theories at trial was
that Boyle was not the victim’s boyfriend—rather, the
defendant insisted that Roberge was. Although the
defendant suggested to the court that the victim’s
motive for ‘‘lying’’ to the police about Roberge (how
exactly the victim ‘‘lied’’ in this context is unclear) was
somehow relevant to the case, he never argued that the
victim’s relationship with Boyle provided a motive to
fabricate the alleged sexual assault by the defendant.8
The defendant must therefore satisfy the requirements
of State v. Golding, supra, 213 Conn. 239–40, in order
to prevail on this argument.
On appeal, the defendant argues that the court
improperly ‘‘disallowed the introduction of [the vic-
tim’s] relationship with Boyle, both physical and emo-
tional, to [support] the defendant’s theory that this
accusation was fabricated to hide the consensual
encounter with the defendant from Boyle, her then boy-
friend.’’ We observe, however, that the defendant was
not necessarily prohibited from inquiring into whether
the victim and Boyle were ‘‘boyfriend and girlfriend’’
or had some other romantic relationship. Section 54-
86f (a) pertains, after all, only to the ‘‘sexual conduct
of the victim . . . .’’ (Emphasis added.) What the defen-
dant appears to be arguing, essentially, is that the victim
liked Boyle romantically, Boyle somehow became
aware of her consensual intercourse with the defen-
dant, and then, in an attempt to salvage her romantic
relationship with Boyle, the victim fabricated the sexual
assault charge against the defendant.9 The defendant
suggests that the victim’s having sexual relations with
Boyle earlier in the day would be a critical piece of
evidence in supporting, or would at least tend to sup-
port, this argument. We conclude that this claim is not
‘‘of constitutional magnitude alleging the violation of a
fundamental right . . . .’’ State v. Golding, supra, 213
Conn. 239–40. As stated previously, the defendant could
likely have inquired into whether the victim and Boyle
had a romantic relationship without implicating the
rape shield statute’s general prohibition on ‘‘sexual con-
duct’’ evidence. General Statutes § 54-86f (a). Any sex-
ual conduct between the victim and Boyle may have
been relevant, but it was certainly not essential, to this
inquiry. ‘‘[O]nce identified, unpreserved evidentiary
claims masquerading as constitutional claims will be
summarily dismissed.’’ State v. Golding, supra, 241.
Accordingly, we decline to review the merits of this
argument.
D
Finally, we address the defendant’s argument that
the court should have admitted evidence of the victim’s
prior sexual conduct with Boyle and, purportedly, also
with Roberge, in order to show an alternative cause of
the victim’s vaginal injuries. The defendant contends
that that evidence was admissible under the first excep-
tion to the rape shield statute. Under that exception,
‘‘no evidence of the sexual conduct of the victim may
be admissible unless such evidence is (1) offered by
the defendant on the issue of whether the defendant
was, with respect to the victim, the source of semen,
disease, pregnancy or injury . . . .’’ General Statutes
§ 54-86f (a) (1). In the alternative, the defendant argues
that such evidence was admissible because the state
‘‘opened the door to it.’’
The following facts are relevant to this argument.
As previously mentioned, the victim testified on direct
examination during the state’s case-in-chief that she
had vaginal pain and bloody vaginal discharge as a result
of the alleged sexual assault by the defendant. Before
cross-examining the victim, the defendant, in the
absence of the jury, requested that he be permitted to
ask her about her prior sexual conduct on the ground
that it was probative of the cause of her vaginal injuries.
The court denied that request. On appeal, the defen-
dant’s argument relies not only on those facts known
to the court at the time that it considered and denied the
defendant’s request, but also on evidence introduced
subsequently. Thus, the particular theory of admissibil-
ity that the defendant advances on appeal is different
from that considered by the court at trial and, therefore,
is unpreserved. Accordingly, we review it under State
v. Golding, supra, 213 Conn. 239–40; see also State v.
Adorno, supra, 121 Conn. App. 548 n.4.
Because we find that the evidence as proffered by
the defendant was not relevant to the issue of whether
someone else caused the victim’s vaginal injuries, the
defendant has failed to demonstrate that the alleged
constitutional violation exists or that it deprived him
of a fair trial. See State v. Golding, supra, 213 Conn. 240.
As previously set forth, ‘‘ ‘[r]elevant evidence’ means
evidence 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. ‘‘Although the standard for relevancy is quite low, it
is often applied with some rigor.’’ C. Tait & E. Prescott,
supra, § 4.1.4, p. 155. ‘‘Evidence is irrelevant or too
remote if there is such a want of open and visible con-
nection between the evidentiary and principal facts
that, all things considered, the former is not worthy or
safe to be admitted in the proof of the latter.’’ (Internal
quotation marks omitted.) State v. Bell, 113 Conn. App.
25, 44–45, 964 A.2d 568, cert. denied, 291 Conn. 914,
969 A.2d 175 (2009). ‘‘The determination of relevance
must be made according to reason and judicial experi-
ence.’’ (Internal quotation marks omitted.) State v.
Shehadeh, 52 Conn. App. 46, 51, 725 A.2d 394 (1999).
To recap, the defendant represented at trial that there
was evidence of the following: (1) that the victim and
Boyle had sexual intercourse in the hours leading up
to the alleged sexual assault; and (2) that the victim
and Roberge ‘‘may’’ have had sexual relations in the
twenty-four hours before the incident. We also know
that the defendant attempted to open the evidence in
order to introduce a purported makeshift ‘‘panty liner’’
with ‘‘stains’’ on it (the proposed inference being that
it was the victim’s, and that it showed that she had
bloody vaginal discharge before the sexual intercourse
with the defendant on the railroad tracks). We also
know from the victim’s testimony that the defendant
digitally penetrated her vagina (with her consent) in
the bar’s parking lot, and that penile-vaginal and penile-
anal intercourse occurred between them on the railroad
tracks. Finally, the defendant also introduced expert
testimony from Underwood in which she stated that
‘‘rough’’ consensual sexual relations can cause vagi-
nal trauma.
In our view, the preceding evidence is not probative
of whether the victim’s vaginal injuries could have been
caused by anyone other than the defendant. We note
first that, for purposes of appellate review, the pur-
ported makeshift panty liner has no probative value.
As previously mentioned, the defendant sought to intro-
duce this item after the evidentiary portion of the trial.
No testimony was heard concerning it, nor, to our
knowledge, was any testing performed on it. We there-
fore do not know whether (1) the item actually was
used as a panty liner; (2) if it was, whether the substance
on it was blood; and (3) if it both was used as a panty
liner and was determined to have blood on it, whether
it was the victim’s blood. ‘‘[I]t is well established that
this court does not make findings of fact.’’ Clougherty
v. Clougherty, 162 Conn. App. 857, 865–66 n.3, 133 A.3d
886, cert. denied, 320 Conn. 932, 136 A.3d 642 (2016).
Accordingly, the alleged makeshift panty liner plays no
role in our analysis.
Second, the fact that Underwood testified that
‘‘rough’’ consensual sexual relations can cause vaginal
injury is unhelpful to the defendant because he prof-
fered no evidence that the victim and Boyle or the victim
and Roberge in fact had a ‘‘rough’’ sexual encounter.
The defendant appears to suggest on appeal that heroin
use is somehow associated with an increased likelihood
of having a ‘‘rough’’ sexual encounter, but he provided
no evidence in support of that proposition at trial. Thus,
he does not draw our attention to any such evidence
in the present appeal.
Third, the defendant’s offer of proof with respect to
the victim’s sexual conduct with Roberge (if any) was
inadequate. ‘‘[A]n offer of proof should contain specific
evidence rather than vague assertions and sheer specu-
lation. . . . The offer of proof may be made in the
absence of the jury by the testimony of a witness or
by a good faith representation by counsel of what the
witness would say if questioned.’’ (Citations omitted;
internal quotation marks omitted.) State v. Shaw, supra,
312 Conn. 106 n.13. The defendant’s offer of proof with
respect to the victim’s possible sexual intercourse with
Roberge was merely speculative. At trial, the defendant
stated that the victim ‘‘may’’ have had sexual inter-
course with Roberge in the twenty-four hours preceding
the alleged sexual assault. The defendant did not specify
which witness would testify as to the possible sexual
intercourse between them, nor did the defendant pro-
vide the expected substance of that testimony. Absent
any such information, the defendant’s proposed inquiry
appears to have been nothing more than a fishing expe-
dition. See State v. Martinez, 106 Conn. App. 517, 544,
942 A.2d 1043 (2008) (Bishop, J., dissenting) (The defen-
dant’s offer of proof that was made in order to pierce the
rape shield statute was inadequate because he ‘‘never
offered any specific evidence, but rather made refer-
ence to two arrest warrant applications containing dou-
ble and triple hearsay statements without providing the
court any basis on which these arrest warrant applica-
tions could be made admissible, and he made a vague
reference to the possibility of calling some unnamed
witnesses with no indication of what any of them would
state under oath. . . . [I]t appears from the record that
counsel simply wanted to use some of the allegations
set forth in the arrest warrant applications as fodder
for cross-examination of the victim.’’), rev’d, 295 Conn.
758, 991 A.2d 1086 (2010). Accordingly, the court was
not bound to assume, as part of the defendant’s offer
of proof, that the victim and Roberge actually had
engaged in sexual intercourse.
We are thus left with the fact that the victim had
sexual relations with Boyle, which, as previously noted,
the state did not dispute. In our view, the fact that the
victim had intercourse with another individual in the
hours preceding the two instances of intercourse with
the defendant is not, without more, probative of
whether someone other than the defendant caused the
victim’s vaginal injuries. See generally State v. Green,
55 Conn. App. 706, 712, 740 A.2d 450 (1999) (‘‘[T]he
defendant presented no evidence whatsoever to sup-
port his contention that [vaginal scratches sustained
by the victim] could have been caused by consensual
intercourse. . . . [T]he defendant’s assertion, without
an offer of medical proof that consensual intercourse
could cause vaginal scratches . . . is speculative, not
probative. . . . The court properly excluded the evi-
dence as irrelevant.’’), cert. denied, 252 Conn. 920, 744
A.2d 438, cert. denied, 529 U.S. 1136, 120 S. Ct. 2019,
146 L. Ed. 2d 966 (2000); see also State v. Siering, 35
Conn. App. 173, 177–78, 644 A.2d 958 (‘‘[The defendant]
proffered no evidence establishing that, despite her tes-
timony to the contrary, the victim had been injured
prior to her encounter with him. Furthermore, he prof-
fered no evidence as to how consensual sexual contact
would have caused injuries of the type suffered by the
victim; nor did he show how his proffered evidence
would tend to demonstrate that he was not the source
of the victim’s injuries.’’), cert. denied, 231 Conn. 914,
648 A.2d 158 (1994). In the present case, the defendant
did not proffer any evidence that the sexual intercourse
that the victim and Boyle engaged in was of a type
likely to cause vaginal injury. The defendant could have
questioned Underwood about the likelihood that con-
sensual ‘‘nonrough’’ sexual relations would cause
bloody vaginal discharge and then incorporated the
answer, if favorable to the defendant, into another offer
of proof seeking admission of the prior sexual conduct
evidence, but the defendant did not do so. See generally
State v. Franko, 199 Conn. 481, 487, 508 A.2d 22 (1986)
(‘‘[The trial court] permitted the defendant to conduct
a lengthy cross-examination of the treating physician
in an attempt to establish the necessary causative link
between the victim’s prior sexual status and the injuries
she received. Nevertheless, despite these multiple
opportunities, the defendant totally failed to establish
such a link.’’). Thus, because ‘‘the preclusion of irrele-
vant evidence does not infringe on a defendant’s right
to confrontation or his right to present a defense’’; State
v. Adorno, supra, 121 Conn. App. 548 n.4; we are not
persuaded that the alleged constitutional violation
exists or that it deprived the defendant of a fair trial.10
See State v. Golding, supra, 213 Conn. 240.
As a final matter, we address the defendant’s argu-
ment that State v. Shaw, supra, 312 Conn. 85, is determi-
native of the present case. In Shaw, the defendant was
convicted of, inter alia, sexual assault for having vaginal
intercourse with his partner’s eleven year old daughter.
Id., 89. Immediately after the sexual assault, the daugh-
ter was evaluated at a hospital. Id., 90. At the defendant’s
trial, the physician who examined the daughter testified
that, at the time of her admittance, the daughter had
vaginal tears that had been sustained within the previ-
ous seventy-two hours. Id., 92. The defendant sought
to introduce evidence that, three days before the alleged
sexual assault, the daughter had had sexual intercourse
with her fifteen year old brother. Id. The defendant
argued that such evidence was relevant and admissible
under, inter alia, § 54-86f (a) (1) in order to show that
he was not the source of the vaginal injuries. Id., 92–93.
The trial court excluded the evidence. Id., 99. On appeal,
our Supreme Court concluded that the proffered evi-
dence was relevant and admissible under, inter alia,
§ 54-86f (a) (1) in order to show an alternative source
for the daughter’s vaginal injuries. Id., 106–109. Shaw,
however, is distinguishable from the present case
because common sense dictates that there is a greater
likelihood that vaginal penetration of an eleven year
old child would lead to the vaginal injury that occurred
in that case. Without more information, we cannot say
the same when the case involves an adult woman.
Accordingly, Shaw is not on point.
For all of the foregoing reasons, we must reject the
defendant’s claim.
II
The defendant’s second claim is that the court vio-
lated his right to due process by denying his pretrial
motion for costs to pay for investigative services neces-
sary to his defense. We disagree.
The following additional facts are relevant to this
claim. On September 19, 2013, several weeks before
trial, the defendant filed a ‘‘Motion for Costs Related
to Defense.’’ In it, the defendant represented that he
was indigent. He stated that he had been incarcerated
for more than one year, had been without employment
or income for more than fourteen months, and ‘‘had no
real assets’’ on the date of his incarceration.
The motion further stated that the defendant ‘‘seeks
to hire an investigator to assist in the trial preparation.
The defendant will need to subpoena witnesses to trial
and will therefore require the services of a state marshal
or process server. Finally, the defendant expects to
incur costs for the trial or hearing transcripts, which
will be needed for ongoing trial preparation throughout
the trial.’’ The defendant asserted that ‘‘[t]he aforemen-
tioned costs/services are essential for the undersigned
to adequately prepare for trial.’’
In his motion, the defendant relied principally on Ake
v. Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 84 L. Ed.
2d 53 (1985), in which the United States Supreme Court
held that ‘‘when a defendant demonstrates to the trial
judge that his sanity at the time of the offense is to be a
significant factor at trial, the [s]tate must, at a minimum,
assure the defendant access to a competent psychiatrist
who will conduct an appropriate examination and assist
in evaluation, preparation, and presentation of the
defense.’’ In the present case, the defendant’s motion
was accompanied by an affidavit of indigency. In it, the
defendant listed assets of zero and liabilities of $10,270.
On appeal, the defendant represents that $10,000 of
those liabilities represents money loaned by the defen-
dant’s mother to pay for his trial counsel’s retainer.
The court heard argument on the motion that same
day. At the hearing, defense counsel clarified that the
request was for investigative fees related to ‘‘witnesses
in the bar that evening.’’ Counsel stated that ‘‘[t]here
[were] a number of people in the bar [on the evening
of the alleged sexual assault], probably five, six, bar-
tender, et cetera, give or take . . . .’’ Counsel stated
that ‘‘what we’re looking for is some assistance in cov-
ering these costs, as [the defendant] is indigent, with
respect to an investigator for use and preparation for
trial, service of subpoenas, et cetera.’’ In response to
questioning by the court, defense counsel stated that
the attorneys representing the defendant in this matter
were acting as private counsel, and that the defendant’s
mother paid them a retainer fourteen months earlier.
The court ruled as follows: ‘‘Your client filed a speedy
trial motion. Conceivably, this trial could have started
today. So, if I have to make a finding that these wit-
nesses are absolutely necessary for your defense—the
fact that he’s filed a speedy trial motion and the fact
that this trial could have started today with witnesses
being presented almost negates the necessity of this
investigation. So, I’m going to make a finding that there
really hasn’t—I’m not convinced he’s indigent, he’s
hired private counsel through his family, there are
resources there, and I’m not convinced that these wit-
nesses are an absolute necessity. So, based on the Ake
[v. Oklahoma, supra, 470 U.S. 68] decision, I have to
make those two findings. I’m not in a position to make
those today. I’m denying your request for any funds to
be supplied to defense counsel on behalf of their client.’’
The defendant argues that this court should review
the trial court’s ruling for an abuse of discretion and
that because the court abused its discretion by denying
the preceding motion, it violated his right to due pro-
cess. See State v. Clemons, 168 Conn. 395, 404, 363 A.2d
33 (‘‘[w]e cannot find . . . that the defendant’s request
[for an expert witness funded by the state] was reason-
able and necessary under the circumstances and thus
we cannot find that the court abused its discretion in
denying the motion’’), cert. denied, 423 U.S. 855, 96 S.
Ct. 104, 46 L. Ed. 2d 80 (1975). We are not persuaded.
Analysis of the defendant’s claim is governed by our
Supreme Court’s recent decision in State v. Wang, 312
Conn. 222, 92 A.3d 220 (2014). In Wang, our Supreme
Court, addressing four reserved questions of law from
the trial court; see General Statutes § 52-235; concluded
in part that ‘‘due process, as guaranteed under the four-
teenth amendment to the United States constitution,
requires the state to provide an indigent self-repre-
sented criminal defendant with expert or investigative
assistance when he makes a threshold showing that
such assistance is reasonably necessary for the prepara-
tion and presentation of his defense.’’ State v. Wang,
supra, 245. It further concluded that ‘‘the statutes gov-
erning public defender services require the [Public
Defender Services Commission (commission)] to
authorize public expenditures, to be paid from the com-
mission’s budget, for expert or investigative services
for indigent self-represented defendants when the com-
mission determines, as a threshold matter, that such
services are reasonably necessary to the defense.’’ Id.,
264–65. The court also determined that ‘‘the trial court
does not retain discretion to authorize’’ such expendi-
tures. Id., 264.
The defendant has failed to demonstrate that the
court abused its discretion by denying his request for
funds because, pursuant to Wang, the court lacked the
discretion to grant the request. See id.
Moreover, even if we were to review the court’s ruling
for an abuse of discretion; see State v. Clemons, supra,
168 Conn. 401–404 (our Supreme Court assumed, with-
out deciding, that the trial court was the appropriate
entity to grant or deny such requests); the record before
us does not support the defendant’s claim. The defen-
dant failed to make a proper showing that the funds
for investigative services were ‘‘reasonable and neces-
sary’’ to the defense. Id., 404; see also State v. Wang,
supra, 312 Conn. 245 (defendant must make ‘‘threshold
showing that such assistance is reasonably necessary
for the preparation and presentation of his defense’’).
As the court in the present case observed, the fact that
the defendant filed a speedy trial motion, pursuant to
which trial could have already begun by the time the
defendant filed the motion for costs, militates against
a finding that such funds were necessary to the defense.
The primary rationale advanced by the defendant—that
the defense needed to interview individuals who were
present in the bar on the night of the alleged sexual
assault—is not in and of itself a sufficient rationale.
Additionally, we observe that, before this court, the
defendant merely speculates, but has failed to demon-
strate, that the funds sought likely would have yielded
evidence favorable to the defense or that the court’s
ruling left him financially unable to employ a constitu-
tionally sufficient defense. Such speculation is insuffi-
cient to demonstrate the existence of reversible error.
For all of the foregoing reasons, this claim fails.
III
The defendant’s final claim is that the state’s closing
argument was improper and deprived him of a fair trial.
We disagree.
‘‘Our jurisprudence concerning prosecutorial impro-
priety during closing argument is well established. [I]n
analyzing claims of prosecutorial [impropriety], we
engage in a two step analytical process. The two steps
are separate and distinct: (1) whether [impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question.’’ (Internal quotation marks omit-
ted.) State v. Carrasquillo, 290 Conn. 209, 222, 962 A.2d
772 (2009). ‘‘[W]hen a defendant raises on appeal a
claim that improper remarks by the prosecutor deprived
the defendant of his constitutional right to a fair trial,
the burden is on the defendant to show . . . that the
remarks were improper . . . .’’ (Internal quotation
marks omitted.) State v. Maguire, 310 Conn. 535, 552,
78 A.3d 828 (2013).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however] [c]ounsel must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment and fair comment cannot be determined precisely
by rule and line, and something must be allowed for
the zeal of counsel in the heat of argument. . . . Thus,
as the state’s advocate, a prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based [on] the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical devices is simply
fair argument.
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence [on] jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks [for]
no conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment [on], or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider. . . .
‘‘[I]t is axiomatic that a prosecutor may not advance
an argument that is intended solely to appeal to the
jurors’ emotions and to evoke sympathy for the victim
or outrage at the defendant. . . . An appeal to emo-
tions, passions, or prejudices improperly diverts the
jury’s attention away from the facts and makes it more
difficult for it to decide the case on the evidence in the
record. . . . When the prosecutor appeals to emotions,
he invites the jury to decide the case, not according to
a rational appraisal of the evidence, but on the basis
of powerful and irrelevant factors [that] are likely to
skew that appraisal. . . . An improper appeal to the
jurors’ emotions can take the form of a personal attack
on the defendant’s character . . . or a plea for sympa-
thy for the victim or her family.’’ (Citations omitted;
internal quotation marks omitted.) Id., 553–55.
The defendant identifies numerous allegedly
improper remarks made by the state, which he groups
into four categories of impropriety. We discuss each
such category, and the remarks that the defendant
assigns to each, in the following subparts.
A
The defendant first argues that the state’s closing
argument contained several improper remarks that
‘‘attacked defense counsel and the defense tactics
. . . .’’ We disagree.
‘‘[T]he prosecutor is expected to refrain from
impugning, directly or through implication, the integrity
or institutional role of defense counsel. . . . There is
a distinction [however] between argument that dispar-
ages the integrity or role of defense counsel and argu-
ment that disparages a theory of defense. . . .
Moreover, not every use of rhetorical language is
improper. . . . There is ample room, in the heat of
argument, for the prosecutor to challenge vigorously
the arguments made by defense counsel.’’ (Internal quo-
tation marks omitted.) State v. James, 141 Conn. App.
124, 149, 60 A.3d 1011, cert. denied, 308 Conn. 932, 64
A.3d 331 (2013).
The following facts are relevant. During closing argu-
ment, the prosecutor made the following remarks: ‘‘And
bear in mind the cutting cross-examination that [the
victim] went through. Defense counsel asked her a
series of questions . . . she stood firm and stated that
her recitation of the facts with respect to the sexual
assault were accurate.’’ The prosecutor also remarked:
‘‘Detective [James] Crean [of the Torrington police] got
up on the [witness] stand, and he took his own fair
share of cutting questions on cross.’’ The defendant
objects to the prosecutor’s use of the term ‘‘cutting’’ to
refer to defense counsel’s cross-examination.
Further, during her rebuttal argument, the prosecutor
made the following remarks (those to which the defen-
dant objects are emphasized): ‘‘[Defense counsel] did
a great job of testifying. Pay close attention to the
court’s instructions that the arguments of counsel and
any facts that they argue aren’t evidence. It’s your recol-
lection of the facts. . . . So, there’s just two examples
[referring to alleged instances of defense counsel inac-
curately recounting trial testimony during closing argu-
ment] of why you should really be careful about the
smoke and mirrors you just saw, okay. And that’s what
it was. Counsel said, don’t lose your common sense.
Please, don’t lose your common sense. When’s the last
time you had consensual sex and ran down the road
naked, crying, calling the police. You didn’t want to get
in trouble? Why don’t—why would you give a statement
to the police? Come on. That’s what begs some sense
of—some different sense of reality to come into play.
. . . What’s consistent is that [the victim’s] hands were
filthy with abrasions from holding herself while [the
defendant was] on top of her. She has a scratch on her
breast. She’s got another mark somewhere along the
side of her chest, as indicated by the nurse. And her
knees are bruised as she’s kicking, the only thing she
can move while he’s on top of her. Come on. [Defense
counsel] never asked her. There’s no testimony about
why there’s no marks on her belly. That’s his spin on
it. There are equally consistent reasons that can be
equally consistent reasonable inferences that can be
drawn from the evidence you actually have in front of
you. Offensive? What’s offensive, what’s offensive is
that conduct we’re actually dealing with here. It’s not
offensive that a nineteen year old girl went to a bar and
tried to get drunk and gets drinks. . . . But do you
know a nineteen year old girl, who, despite having done
that, runs down the road naked, crying, curled up in a
ball, saying, ‘I was just raped. Call my mom.’ You know?’’
The defendant contends that the preceding state-
ments demeaned, impugned the credibility of, and
imputed an intent to deceive to defense counsel.
According to the defendant, ‘‘[c]ollectively, these
phrases invoked the highly offensive and completely
improper myth of a sleazy defense attorney obtaining
an acquittal by dishonest and manipulative tactics.’’ As
such, the defendant asserts, the remarks constituted
prosecutorial impropriety and deprived him of due pro-
cess. As an initial matter, we observe that the defendant
did not object to any of the preceding remarks at trial.
‘‘It is well established law, however, that a defendant
who fails to preserve claims of prosecutorial [impropri-
ety] need not seek to prevail under the specific require-
ments of State v. Golding, [supra, 213 Conn. 239–40],
and, similarly, it is unnecessary for a reviewing court
to apply the four-pronged Golding test. . . . Our
Supreme Court has explained that the defendant’s fail-
ure to object at trial to . . . the [occurrence] that he
now raises as [an instance] of prosecutorial impropri-
ety, though relevant to our inquiry, is not fatal to review
of his [claim]. . . . This does not mean, however, that
the absence of an objection at trial does not play a
significant role in the determination of whether the
challenged statements were, in fact, improper. . . . To
the contrary, we continue to adhere to the well estab-
lished maxim that defense counsel’s failure to object
to the prosecutor’s argument when it was made sug-
gests that defense counsel did not believe that it was
[improper] in light of the record of the case at the time.’’
(Internal quotation marks omitted.) State v. Fernandez,
169 Conn. App. 855, 867–68, 153 A.3d 53 (2016).
With respect to the prosecutor’s use of the term ‘‘cut-
ting’’ to refer to defense counsel’s cross-examination
of the victim and the police officer, we do not find those
remarks to be improper. The prosecutor was permitted
to comment on a witness’ response to cross-examina-
tion, and the quality of that cross-examination, in order
to argue that the witness’ testimony was credible. See
State v. Ciullo, 314 Conn. 28, 47–48, 100 A.3d 779 (2014)
(prosecutor’s description, during closing argument, of
defense counsel’s cross-examination as ‘‘lengthy and
laborious,’’ which prosecutor argued merely highlighted
that testimony at issue was consistent throughout diffi-
cult cross-examination, not improper [internal quota-
tion marks omitted]). ‘‘The occasional use of rhetorical
devices is simply fair argument.’’ (Internal quotation
marks omitted.) State v. Maguire, supra, 310 Conn.
553. Moreover, the prosecutor’s language was ‘‘neither
colorful nor malicious . . . .’’ State v. Ciullo, supra, 48.
The phrase, ‘‘[defense counsel] did a great job of
testifying,’’ was similarly not improper. As her subse-
quent comments indicate, the prosecutor was making
the point that defense counsel’s recollection of the facts
was not evidence—indisputably a correct statement of
the law. See State v. Grayton, 163 Conn. 104, 113–14,
302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542,
34 L. Ed. 2d 495 (1972). The prosecutor then argued
that defense counsel’s recollection of certain testimony
was, in the present case, inaccurate. The defendant
asserts that the phrase at issue implied that defense
counsel ‘‘had not based his argument on fact or reason,
but had intended to mislead the jury by means of an
artfully deceptive argument.’’ (Internal quotation marks
omitted.) We disagree. The prosecutor was permitted to
contest defense counsel’s recollection of trial testimony
because such testimony ‘‘[bore] on the issue before the
jury, namely, the guilt or innocence of the defendant.’’
State v. Young, 76 Conn. App. 392, 404, 819 A.2d 884,
cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003); see
also State v. Swain, 101 Conn. App. 253, 275, 921 A.2d
712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).
The remark did not stray into improper territory by
implying that defense counsel’s intent was to deceive
the jury. Moreover, to the extent that the defendant
contends that the remark was impermissibly sarcastic,
we observe that ‘‘some use of sarcastic and informal
language, when intended to forcefully criticize a
defense theory on the permissible bases of the evidence
and the common sense of the jury, is not necessarily
improper.’’ State v. James, supra, 141 Conn. App. 150.
The comment does not appear to us to have been an
improper use of sarcasm for the purpose of impugning
the role of defense counsel.
The prosecutor’s remark, ‘‘Come on. That’s what begs
some sense of—some different sense of reality to come
into play,’’ was also not improper. The comment
appears to have been made in response to the following
statement made by defense counsel during closing argu-
ment: ‘‘What’s [the victim’s] motive? Well, can’t figure
it out. She’s given us a couple reasons. I lied to protect
my friends. I didn’t want to get in trouble with the
police. I didn’t want them to get in trouble. I didn’t want
the bar to get in trouble. I’m glad she’s so concerned
about all these people. She had no problem, you may
conclude, being untruthful about more than just those
things that I’ve identified. You can conclude, it’s reason-
able to infer, that she may have been untruthful for
other reasons.’’ To the extent that defense counsel was
arguing in that statement that the victim fabricated the
sexual assault so that she and her friends would not
‘‘get in trouble,’’ therefore, the prosecutor countered
by questioning whether it was plausible (i.e., in accord
with ‘‘reality’’) that one would attempt to avoid such
trouble by initiating contact with the police. In making
the comment at issue, the prosecutor was not attacking
the credibility of defense counsel, but rather ‘‘focus[ing]
the jury on weaknesses in the defendant’s theory of
defense . . . .’’ State v. Maguire, supra, 310 Conn. 558.
The prosecutor’s remark, ‘‘That’s [defense counsel’s]
spin on it,’’ did not constitute impropriety. As previously
set forth, the prosecutor made this remark in response
to defense counsel’s argument that, if the alleged sexual
assault occurred in the manner described by the victim,
with the defendant sexually assaulting the victim while
she was on her stomach on the railroad tracks, then
she would have had visible injuries to her stomach,
which she did not. In State v. Swain, supra, 101 Conn.
App. 273–76, this court addressed the question of
whether the prosecutor use of the term ‘‘spin’’ to refer
to defense counsel’s argument was improper. This court
concluded that ‘‘whether we view the word ‘spin’ in
isolation or in the context in which it was uttered, we
do not conclude that it either directly or by implication
denigrated the integrity or the role of defense counsel.
. . . We may presume that the jury was well aware that
the defendant’s attorney had summarized the evidence
with a particular viewpoint or bias, namely, one in favor
of his client. Pointing this out to the jury does not rise
to the level of suggesting that a typical defense tactic has
been employed; it merely states the obvious.’’ (Internal
quotation marks omitted.) Id., 275. For those same rea-
sons, we conclude that the prosecutor’s use of the word
‘‘spin’’ in the present case was not improper.
Also not improper was the prosecutor’s comment,
‘‘Offensive? What’s offensive . . . is that conduct we’re
actually dealing with here.’’ According to the defendant,
this remark implied that ‘‘defense counsel’s arguments
[were] offensive.’’ (Emphasis added.) We disagree with
this interpretation of the prosecutor’s remark. During
closing argument, defense counsel made the following
comments with respect to the testimony of Crean, the
Torrington police officer who investigated the case:
‘‘[H]is answers as to why he overlooked that false state-
ment . . . are ridiculous, they are offensive . . . .’’
Defense counsel also stated in reference to the victim:
‘‘This is the person that the state wants us to believe
to support their case to argue that it’s been proven
beyond a reasonable doubt and to convict [the defen-
dant]. That’s offensive.’’ We believe that the prosecutor,
in responding with her remarks, was referring to the
defendant’s conduct (i.e., the sexual assault) as ‘‘offen-
sive,’’ not to any tactics employed by defense counsel.
Accordingly, the prosecutor’s remark was not improper
in the manner claimed by the defendant.
Finally, the defendant argues that the prosecutor’s
use of the phrase, ‘‘smoke and mirrors,’’ to describe
defense counsel’s closing argument was improper. The
state, acknowledging State v. Maguire, supra, 310 Conn.
557 (‘‘smoke and mirrors’’ improper), and State v. Orel-
lana, 89 Conn. App. 71, 103, 872 A.2d 506 (same), cert.
denied, 274 Conn. 910, 876 A.2d 1202 (2005), concedes
that the phrase likewise was improper in the present
case. We therefore assume the same. The state, how-
ever, contends that the impropriety did not deprive the
defendant of his due process right to a fair trial. We
agree. ‘‘[O]ur determination of whether any improper
conduct by the state’s attorney violated the defendant’s
fair trial rights is predicated on the factors set forth in
State v. Williams, [204 Conn. 523, 540, 529 A.2d 653
(1987)], with due consideration of whether that [impro-
priety] was objected to at trial. . . . These factors
include the extent to which the [impropriety] was
invited by defense conduct or argument, the severity
of the [impropriety], the frequency of the [impropriety],
the centrality of the [impropriety] to the critical issues in
the case, the strength of the curative measures adopted,
and the strength of the state’s case.’’ (Citation omitted;
internal quotation marks omitted.) State v. Carras-
quillo, supra, 290 Conn. 222. ‘‘In determining whether
the defendant was denied a fair trial [by virtue of prose-
cutorial impropriety] we must view the prosecutor’s
comments in the context of the entire trial. . . . The
question of whether the defendant has been prejudiced
by prosecutorial [impropriety], therefore, depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties. . . . [T]he state bears the burden
of demonstrating beyond a reasonable doubt that there
is no reasonable likelihood that the jury’s verdict would
have been different absent the improprieties at issue.’’
(Citations omitted; internal quotation marks omitted.)
State v. Angel T., 292 Conn. 262, 287–88, 973 A.2d 1207
(2009). We are not persuaded that the lone improper
remark deprived the defendant of his right to a fair trial.
Although the remark was not invited, it was isolated
and not severe. See State v. Orellana, supra, 109
(‘‘[‘smoke and mirrors’] neither strongly critical nor
severely condemnatory of the defendant’s attorney’’).
We also note that defense counsel did not object at trial
to the prosecutor’s use of the phrase, and ‘‘[d]efense
counsel’s objection or lack thereof allows an inference
that counsel did not think the remarks were severe.’’
(Internal quotation marks omitted.) Id. Further, the
remark was not central to critical issues in the case—
the trial was, of course, about the defendant’s conduct
with the victim, not ‘‘the integrity or institutional role
of defense counsel’’; (internal quotation marks omitted)
id., 101; which we do not believe was substantially
impugned by the comment. Defense counsel did not
object to the remark, and the court did not deliver a
remedial instruction concerning the remark. Neverthe-
less, any harm that the impropriety caused was miti-
gated by the court’s statement to the jury, during
instructions, that both defense counsel and the state
‘‘have represented their clients professionally, zealously
and always within the bounds of propriety.’’ Finally,
the state’s case was not weak. Although it largely came
down to the jury’s assessment of the victim’s credibility,
several aspects of the victim’s testimony concerning
the incident on the railroad tracks were corroborated
by other sources of evidence.11 Accordingly, we do not
believe that ‘‘there is a reasonable likelihood that the
jury’s verdict would have been different absent the
[impropriety].’’ (Internal quotation marks omitted.)
State v. Angel T., supra, 287. We must, therefore, reject
this argument.
B
The defendant next argues that the state made an
improper ‘‘golden rule’’ argument during closing
remarks. We disagree.
The following facts are relevant. During her rebuttal
argument, the prosecutor made the following remarks
(the ones to which the defendant objects are empha-
sized): ‘‘Counsel said, don’t lose your common sense.
Please, don’t lose your common sense. When’s the last
time you had consensual sex and ran down the road
naked, crying, calling the police. . . . Offensive?
What’s offensive, what’s offensive is that conduct we’re
actually dealing with here. It’s not offensive that a nine-
teen year old girl went to a bar and tried to get drunk
and gets drinks. It happens every single day of the week.
I’m sure—I’m sure each one of you knows somebody
who might have gone into a bar under age, at some
point. You might even know a kid who didn’t want to
get in trouble. But do you know a nineteen year old
girl, who, despite having done that, runs down the
road naked, crying, curled up in a ball, saying, ‘I was
just raped. Call my mom.’ You know? I mean, and then
she gives a statement to the police.’’
We observe the following legal principles relative to
this argument. ‘‘A golden rule argument is one that urges
jurors to put themselves in a particular party’s place
. . . or into a particular party’s shoes. . . . Such argu-
ments are improper because they encourage the jury
to depart from neutrality and to decide the case on the
basis of personal interest and bias rather than on the
evidence. . . . They have also been equated to a
request for sympathy. . . . We noted that golden rule
claims arise in the criminal context when the prosecutor
ask[s] the jury to put itself in the place of the victim,
the victim’s family, or a potential victim of the defen-
dant. . . . The danger of these types of arguments lies
in their [tendency] to pressure the jury to decide the
issue of guilt or innocence on considerations apart from
the evidence of the defendant’s culpability.’’ (Citations
omitted; internal quotation marks omitted.) State v. Ste-
phen J. R., 309 Conn. 586, 605–606, 72 A.3d 379 (2013).
The defendant argues that the aforementioned
remarks improperly sought to arouse the sympathy of
the jurors ‘‘by asking them to think about a ‘kid’ or ‘girl’
who they know and how they would act if that kid had
been raped.’’ At trial, after the conclusion of closing
arguments, the defendant made essentially the same
argument, which the court rejected. We disagree with
the defendant. In our view, the prosecutor, in making
the remarks at issue, ‘‘was not appealing to the jurors’
emotions or to their sympathies for the victim . . .
[but, rather] was asking the jurors to draw inferences
from the evidence that had been presented at trial
regarding the actions of [the victim], based on the
jurors’ judgment of how a reasonable person would act
under the specified circumstances.’’ State v. Bell, 283
Conn. 748, 773, 931 A.2d 198 (2007). The prosecutor was
merely arguing to the jurors that the victim’s behavior—
running naked from the scene of the incident—was
at odds with how a ‘‘reasonable person’’ would act
following consensual sexual relations. Accordingly, the
remarks were not improper.
C
Third, the defendant argues that the prosecutor, dur-
ing closing argument, improperly read and referred to
documents not in evidence and misrepresented certain
facts. We disagree.
The following additional facts are relevant. During
her rebuttal argument, the prosecutor made the follow-
ing remarks: ‘‘Cheryl Underwood corroborated every-
thing she said to you during the trial we’ve already—
the incident that we’re talking about, the forced sexual
assault. Patient walked to some railroad tracks with an
unknown male, was forced to her knees and told to
perform oral sex on male. She refused. Forced to ground
on knees, then on her back. Was then turned and forced
onto her stomach. Male then forced vaginal intercourse
with penile penetration. Male attempted anal penetra-
tion. Patient then was able to get up and ran with her
shirt off down the street.’’ The defendant then objected,
to which the court responded: ‘‘Can’t use the document.
Use your notes.’’ Although the record is not entirely
clear on what ‘‘the document’’ was, the defendant
asserts, and the state assumes, that it was a report that
Underwood completed in connection with her treat-
ment of the victim that was not admitted into evidence.
We therefore assume the same.
‘‘A prosecutor may invite the jury to draw reasonable
inferences from the evidence; however, he or she may
not invite sheer speculation unconnected to evidence.
. . . Moreover, when a prosecutor suggests a fact not
in evidence, there is a risk that the jury may conclude
that he or she has independent knowledge of facts that
could not be presented to the jury.’’ (Internal quotation
marks omitted.) State v. Carrasquillo, supra, 290
Conn. 222.
In the present case, the prosecutor did not refer to
a fact not in evidence. While the prosecutor used
Underwood’s report as, apparently, an aid for recalling
portions of her testimony during closing argument, the
testimony that the prosecutor recounted was, almost
verbatim, the same testimony that the prosecutor elic-
ited from Underwood during the evidentiary portion of
the trial. Moreover, the prosecutor did not suggest in
closing that there was a report completed by
Underwood that would corroborate Underwood’s testi-
mony. The defendant has not provided any authority
in support of the proposition that merely looking at a
document not in evidence during closing argument is
improper, and we are aware of none. This argument,
therefore, fails.
The defendant also contends that the prosecutor mis-
represented certain facts. The relevant portion of the
prosecutor’s closing argument is as follows: ‘‘And bear
in mind the cutting cross-examination that [the victim]
went through. Defense counsel asked her a series of
questions, and she admitted each time . . . I didn’t talk
about the consensual sex behind Snapper Magee’s, but
she stood firm and stated that her recitation of the facts
with respect to the sexual assault [was] accurate. And
defense counsel only pointed out one inconsistency,
which she did not remember saying, which was to the
[emergency room] doctor, that it had occurred on the
street—on a street. Now, she didn’t recall saying that.
It had nothing to do with the actual incident itself. And
I submit, it’s up to interpretation. But Cheryl
Underwood, in my cross of her, documented that [the
victim] told her exactly what she told you here in the
courtroom with respect to that forcible, nonconsensual
encounter.’’ Later in closing argument, the prosecutor
remarked: ‘‘And, again, the only inconsistency pointed
out by defense in cross was her statement to the [emer-
gency room] doctor that it happened on the street.’’
The defendant specifically objects to the prosecutor’s
‘‘one inconsistency’’ remarks. The defendant argues
that the prosecutor’s ‘‘assertion that there was only one
[inconsistency between the victim’s original reporting
of the incident and her testimony at trial] . . . could
not be refuted by the defendant because the others
were barred by the trial court’s ruling on rape shield.
This was improper.’’ We note that the defendant did
not raise this argument before the trial court. See State
v. Fernandez, supra, 169 Conn. App. 867–68 (unpre-
served claims of prosecutorial impropriety are review-
able, but ‘‘we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time’’ [internal
quotation marks omitted]).
We disagree with the defendant’s interpretation of
the prosecutor’s ‘‘one inconsistency’’ remarks. When
read in context, the remarks pertained specifically to
any inconsistencies between the victim’s original
reporting of the incident and her testimony at trial con-
cerning the intercourse on the railroad tracks. The
victim’s inconsistent statements that were barred by the
rape shield statute concerned events occurring prior
to the sexual assault, and therefore would not fall within
this category. Accordingly, the prosecutor’s remarks
were not improper in the manner claimed by the
defendant.
D
Finally, the defendant argues that the prosecutor
improperly vouched for the victim’s credibility during
closing argument. We decline to review the merits of
this argument.
According to the defendant, the prosecutor improp-
erly vouched for the victim in the following statement
during closing remarks: ‘‘If [the victim] wanted to keep
her boyfriend from finding out about consensual [sexual
relations] with another man, that was not the way to
do it. And I submit that you can take away from that,
that she is being credible, that there was not a motive
for her to fabricate this subsequent sexual assault that
was forced.’’ We conclude that this argument is inade-
quately briefed. The defendant does not cite any legal
authority with respect to this argument, nor does he
provide any analysis aside from his conclusory state-
ment that the remark constituted improper vouching.
We therefore decline to reach the merits of this argu-
ment. See Connecticut Coalition Against Millstone v.
Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d
345 (2008).
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy 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.
2
We note that although § 54-86f has been amended since the events at
issue here, that amendment is not relevant to this appeal. For convenience,
we refer to the current revision of § 54-86f.
3
At oral argument, the defendant withdrew his fourth claim, identified in
his brief as, ‘‘The Trial Court Erred in Failing to Conduct an In Camera
Review of Relevant Material for Cross-Examination.’’
4
The charge of false statement in the second degree in violation of § 53a-
157b (a) was based on representations that the defendant made in two
statements to the Torrington police concerning the incident. Specifically,
the state presented evidence that the defendant told the police that, after
the sexual intercourse on the railroad tracks, the victim put on her bra,
pants, and shirt. Evidence was presented at trial that the victim was running
topless after the encounter on the railroad tracks, and the state also pre-
sented photographs showing the victim’s bra lying on the tracks and her
shirt lying on a street near the tracks.
5
Later in the trial, the prosecutor specified that the victim ‘‘had apparently
been seeing [this boyfriend] for a couple weeks, and she admits that they
had had sexual intercourse, and in fact that [the boyfriend] had ejaculated.’’
6
How precisely the defendant would have presented that evidence to
comply with our rules of evidence concerning impeachment of witnesses;
see Conn. Code. Evid. § 6-10; is unclear.
7
During cross-examination, the victim admitted that she had, in statements
to the police and hospital staff, fabricated several events preceding the
sexual assault in part so that she, Gomez, Boyle, and the bar would not be
implicated in any of her activities involving heroin or underage drinking.
She testified on cross-examination that she had told both the police and
hospital staff that a man she met at Burger King had given her alcohol, and
that that man had sexually assaulted her. (As previously mentioned, the
state presented evidence to support a finding that the victim had actually
met the defendant at the bar, and there was no indication that he had given
her alcohol.) The victim also admitted on cross-examination that she had
lied to hospital staff by denying drug use, and that she had neglected to tell
the police about the consensual sexual encounter between her and the
defendant in the bar’s parking lot. The defendant cross-examined the victim
with regard to several other inconsistencies as well. After reviewing the
record, we are, therefore, persuaded that the defendant was able to thor-
oughly cross-examine the victim and impeach her credibility.
8
For the first time, in his reply brief, the defendant appears to argue that
evidence concerning the victim’s relationship with Roberge should have
been admitted (presumably under the fourth exception to the rape shield
statute) to show a motive for the victim to fabricate the sexual assault. ‘‘It
is a well established principle that arguments cannot be raised for the first
time in a reply brief.’’ (Internal quotation marks omitted.) State v. Garvin,
242 Conn. 296, 312, 699 A.2d 921 (1997). Accordingly, we decline to review
the merits of this argument.
9
This argument poses its own problems for the defendant because,
according to the victim’s testimony, Boyle left Snapper Magee’s before the
victim’s first interaction with the defendant.
10
For the same reasons, we reject the defendant’s argument that the
proffered evidence should have been allowed in because the state ‘‘opened
the door to’’ it. Additionally, to the extent that the defendant argues that
the proffered evidence should have been admitted under § 54-86f (a) (4) in
order to show an alternative source for the victim’s vaginal injuries, the
foregoing analysis in the body of this opinion disposes of this argument
as well.
11
For instance, the state presented the testimony of two bystanders who
stated that they saw the victim naked or partially naked in downtown
Torrington in the early morning hours of September 3, 2011. One of those
witnesses testified that the victim told him that she had been raped. Items
of clothing belonging to the victim were found at or near the railroad
tracks. See footnote 4 of this opinion. The state also presented photographic
evidence of scrapes and bruises on the victim’s body. Underwood testified
about the description of the sexual assault that the victim had given at
the hospital; that description was largely consistent with the victim’s trial
testimony. The state also elicited the testimony of Cynthia Jock, who lived
with the defendant and who saw him the morning after the incident. In
response to the state’s question of whether ‘‘[the defendant] was more
nervous than [she] had ever seen him before,’’ Jock answered yes.