Opinion
MIHALAKOS, J.
The defendant, Robert Horrocks, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), kidnapping in the second degree in violation of General Statutes § 53a-94 and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1).
The dispositive issue is whether the defendant’s rights to confrontation and to present a defense, and his rights under General Statutes § 54-86Í,1 were impermissibly impaired when the court excluded evidence of the victim’s alleged consensual sexual relations with the detective investigating her claim of rape. We reverse the judgment of the trial court and remand the case for a new trial.2
[34] The following facts are relevant to this appeal. The state presented evidence that the victim was a fifty-two year old woman residing in New Haven. The victim entered her apartment on the afternoon of October 4, 1995. She noticed that her curtains in her bedroom were askew and, upon returning to the kitchen, was attacked by the defendant, who was wearing a mask and was carrying a club. The defendant struck her hard on the head and kept beating her “like an animal.”* *3 After the attack, the defendant sexually assaulted the victim and thereafter tied her to a kitchen chair. The defendant then took the victim’s car keys and drove her car away. The victim was able to untie herself, and telephoned a battered women’s shelter and then the police. At that time, she did not report to the police that she had been assaulted, but only that her car had been stolen. After the police arrived at her home to investigate her complaint, the victim whispered to Thomas Benedetto, an officer with the New Haven police department, that she had been raped.
The defendant testified that he had consensual sex with the victim. He further testified that he initially had permission to take the victim’s car but that she later rescinded it. Additional facts will be discussed when necessary.
The defendant claims that his rights to confrontation and to present a defense, and his rights under § 54-86f were impermissibly impaired when the court excluded evidence of the victim’s consensual sexual relations with the detective investigating her claim of rape. We agree.
The following facts are relevant to this claim. Shortly after the claimed incident, Vincent Raucci, a detective [35] with the New Haven police, interviewed the victim just before she was taken to a hospital for a physical examination. The victim had disclosed to the prosecutor that she had sex with Raucci a couple of weeks after the claimed sexual assault. This information was provided to the defense by the state when the state filed with the court a submission under seal seeking an in camera determination as to when the information had to be disclosed to the defendant or if it need not be disclosed pursuant to § 54-86f. In addition to the information provided by the state’s submission, the defense was told by the victim’s upstairs neighbor, Lisa Williams, that the victim had told her that she had “wild sex” with Raucci on the night of the alleged sexual assault. On April 22, 1997, an in camera proceeding was conducted in chambers.4
[36] During the trial, the defense wanted to cross-examine the victim concerning her relationship with Raucci and to ask her whether she had sex with him on the same [37] night of the alleged assault. The defense argued that the examination was necessary to impeach the victim’s credibility as to when she started having sex with Raucci, and also that such behavior could dispute a claim of sexual assault that allegedly occurred a few hours earlier. The defense also argued that the exception contained in § 54-86f (4) was applicable.5 The court rejected this argument and did not permit the defense to cross-examine the victim on that basis.
The state contends that the cross-examination of the victim concerning her relationship with Raucci was not relevant and that its exclusion did not violate the defendant’s right to confrontation and a fair trial. The state also contends that this claim is not preserved for review. We disagree.
[38] The defendant made an offer of proof to support the evidence to which the state objected. We conclude, therefore, that the defendant properly preserved the confrontation issue for appellate review. Equally unavailing are the state’s further claims that the defendant’s arguments were bereft of any assertion that his offer of proof went to bias.
“It is always relevant to the issue of bias that a witness may have a relationship to the prosecuting authorities in a criminal case. To preclude exploration of such a relationship unduly restricts the defendant’s right to cross-examination. . . . [T]he weight to be accorded such evidence was a matter for the jury.” State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992).
“The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992); see also Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985).
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Opinion
MIHALAKOS, J.
The defendant, Robert Horrocks, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), kidnapping in the second degree in violation of General Statutes § 53a-94 and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1).
The dispositive issue is whether the defendant’s rights to confrontation and to present a defense, and his rights under General Statutes § 54-86Í,1 were impermissibly impaired when the court excluded evidence of the victim’s alleged consensual sexual relations with the detective investigating her claim of rape. We reverse the judgment of the trial court and remand the case for a new trial.2
[34] The following facts are relevant to this appeal. The state presented evidence that the victim was a fifty-two year old woman residing in New Haven. The victim entered her apartment on the afternoon of October 4, 1995. She noticed that her curtains in her bedroom were askew and, upon returning to the kitchen, was attacked by the defendant, who was wearing a mask and was carrying a club. The defendant struck her hard on the head and kept beating her “like an animal.”* *3 After the attack, the defendant sexually assaulted the victim and thereafter tied her to a kitchen chair. The defendant then took the victim’s car keys and drove her car away. The victim was able to untie herself, and telephoned a battered women’s shelter and then the police. At that time, she did not report to the police that she had been assaulted, but only that her car had been stolen. After the police arrived at her home to investigate her complaint, the victim whispered to Thomas Benedetto, an officer with the New Haven police department, that she had been raped.
The defendant testified that he had consensual sex with the victim. He further testified that he initially had permission to take the victim’s car but that she later rescinded it. Additional facts will be discussed when necessary.
The defendant claims that his rights to confrontation and to present a defense, and his rights under § 54-86f were impermissibly impaired when the court excluded evidence of the victim’s consensual sexual relations with the detective investigating her claim of rape. We agree.
The following facts are relevant to this claim. Shortly after the claimed incident, Vincent Raucci, a detective [35] with the New Haven police, interviewed the victim just before she was taken to a hospital for a physical examination. The victim had disclosed to the prosecutor that she had sex with Raucci a couple of weeks after the claimed sexual assault. This information was provided to the defense by the state when the state filed with the court a submission under seal seeking an in camera determination as to when the information had to be disclosed to the defendant or if it need not be disclosed pursuant to § 54-86f. In addition to the information provided by the state’s submission, the defense was told by the victim’s upstairs neighbor, Lisa Williams, that the victim had told her that she had “wild sex” with Raucci on the night of the alleged sexual assault. On April 22, 1997, an in camera proceeding was conducted in chambers.4
[36] During the trial, the defense wanted to cross-examine the victim concerning her relationship with Raucci and to ask her whether she had sex with him on the same [37] night of the alleged assault. The defense argued that the examination was necessary to impeach the victim’s credibility as to when she started having sex with Raucci, and also that such behavior could dispute a claim of sexual assault that allegedly occurred a few hours earlier. The defense also argued that the exception contained in § 54-86f (4) was applicable.5 The court rejected this argument and did not permit the defense to cross-examine the victim on that basis.
The state contends that the cross-examination of the victim concerning her relationship with Raucci was not relevant and that its exclusion did not violate the defendant’s right to confrontation and a fair trial. The state also contends that this claim is not preserved for review. We disagree.
[38] The defendant made an offer of proof to support the evidence to which the state objected. We conclude, therefore, that the defendant properly preserved the confrontation issue for appellate review. Equally unavailing are the state’s further claims that the defendant’s arguments were bereft of any assertion that his offer of proof went to bias.
“It is always relevant to the issue of bias that a witness may have a relationship to the prosecuting authorities in a criminal case. To preclude exploration of such a relationship unduly restricts the defendant’s right to cross-examination. . . . [T]he weight to be accorded such evidence was a matter for the jury.” State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992).
“The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992); see also Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985).
“In determining whether a defendant’s right of cross-examination has been unduly restricted, we 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-[39] examination viewed in relation to the issues actually litigated at trial.” State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986). Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the court, “[t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” Id.; see also State v. Oehman, 212 Conn. 325, 330-31, 562 A.2d 493 (1989); State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989).
Our review of the record convinces us that the preclusion of any cross-examination of the victim concerning her relationship with Raucci improperly prohibited inquiry into a legitimate area of relevant concern.
We must next determine whether the court’s limitation of the defendant’s cross-examination of the victim was harmless beyond a reasonable doubt. There are several factors that the court considers in the determination of such an inquiry. The most important factor is an examination of the impact such evidence would have on the trier of fact and the result of the trial. See State v. Ortiz, 198 Conn. 220, 225, 502 A.2d 400 (1985). In this case, the nature of the excluded inquiry was central to whether the victim had consented to sexual relations and whether she had been sexually assaulted. These issues were at the core of the defendant’s defense and, if believed by the trier of fact, could have affected the result of the trial. The testimony, therefore, should not have been excluded from consideration by the trier of fact. “The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the [witness].” Id., 224. Under this standard and on the basis of our review of the entire record, we conclude that limiting the cross-examination of the victim was not harmless beyond a reasonable doubt.
[40] We next consider the defendant’s claim that his rights under § 54-86f were violated because, although the statute specifically bars inquiry into a victim’s sexual conduct, he should have been able to present such evidence to prove his defense of consent.
Presumptively, § 54-86f excludes evidence of the sexual conduct of a victim for sound policy reasons. When a defense of consent, however, is made, the court must balance the prejudicial effect of evidence of the victim’s sexual conduct against the right of the defendant to defend himself. Here, the defendant wanted to cross-examine the victim to prove his defense of consent. The proffered evidence of sexual activity should be admissible if it is introduced to support the defendant’s claim of consent.
“[Our Supreme Court] has previously enumerated situations in which the potential prejudicial effect of relevant evidence would counsel its exclusion. Evidence should be excluded as unduly prejudicial: (1) where it may unnecessarily arouse the jury’s emotions, hostility or sympathy; (2) where it may create distracting side issues; (3) where the evidence and counterproof will consume an inordinate amount of time; and (4) where one party is unfairly surprised and unprepared to meet it. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The proffered testimony does not pose any of these dangers.” State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991).
Similarly, the proffered testimony in this case did not pose any of the dangers listed. It was, in fact, relevant to the substantive issue of consent raised by the defendant and would not have impugned the victim’s character by introducing lurid details. Finally, the court could have given a charge to the jury to the effect that the evidence adduced from the victim’s testimony was not to be considered as an indication of immoral conduct [41] on her part, but rather for the sole purpose of determining her credibility by considering alleged inconsistent behavior following a traumatic sexual assault.
Because the exclusion of the testimony was likely to have affected the juiy’s verdict, we agree that the defendant’s rights to confrontation and to present a defense, and his rights pursuant to § 54-86f, were impermissibly impaired when the court excluded evidence of the victim’s consensual sexual relations with the detective investigating her claim of rape. We, therefore, reverse the judgment.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.