State v. Mastropetre

• Decision Date: 01 August 1978
• Citation: 400 A.2d 276,175 Conn. 512
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael MASTROPETRE.

Page 276

400 A.2d 276

175 Conn. 512

STATE of Connecticut v. Michael MASTROPETRE.

Supreme Court of Connecticut.

Argued April 6, 1978.

Decided Aug. 1, 1978.

Jerrold H. Barnett, Public Defender, with whom, on the brief, was Ellen B. Lubell, Asst. Public Defender, for appellant (defendant).

William F. Gallagher, Sp. Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty. and John Kelly, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and RUBINOW, JJ.

LOISELLE, Justice.

By information dated December 31, 1974, as supplemented by a bill of particulars, the defendant was charged with rape in the first degree in violation of General Statutes § 53a-72. ¹ Specifically, the state alleged that the defendant engaged in sexual intercourse with the complainant by forcible compulsion at about 8 p. m. on December 27, 1974. He was convicted by a jury and, from the judgment rendered, he has appealed to this court.

The defendant claims that the court erred in three respects: (1) in ruling that the complainant, on cross-examination, need not respond to the question of whether she had had sexual relations with any man prior to the alleged rape; (2) in its charge on the element of forcible compulsion; and (3) in charging that the defendant's interest in the outcome of the case was a factor to be considered in determining the credibility to be given his testimony.

I

The defendant's first claim must be viewed within the trial context. On direct examination, in response to the question of whether the defendant had achieved an orgasm, the complainant answered, "I think so." On cross-examination, the defense counsel asked the complainant whether or not she was sure about this. The complainant answered that she was not, whereupon she was asked whether she had had sexual relations before that night. The complainant responded, "With him? No." To the further question, "With anyone else?" she stated, "That has nothing to do with this. Why should I answer that?" The court agreed that the complainant need not answer the question. Defense counsel objected, claiming, "Your Honor, I think there is a medical justification for that. A medical report that will be indicated and has a bearing on that. It also has a bearing on whether or not she knows what a climax is." The court reiterated its ruling and an exception was noted.

The defendant points first to the fact that the court's ruling was made in the absence of any objection by the state's attorney, likening the situation to that outlined in State v. Gionfriddo, 154 Conn. 90, 95, 221 A.2d 851 (1966). In the Gionfriddo case, however, the court emphasized that the "repeated interruptions and rebukes of counsel (by the judge) in the presence of the complainants then on the witness stand could only have the effect of repressing counsel's attack on the credibility of the witnesses." Id., 97, 221 A.2d 855. No such repeated intervention is apparent in this case. The judge's ruling followed an objection by the witness, and the court was acting well within its power to rule on the objection.

The defendant claims that the evidence of the complainant's prior sexual history was relevant on two grounds, the first relating to the issue of whether the complainant consented to intercourse with the defendant. The defendant reasons that although he denied having had any sexual contact with the complainant, since nonconsent is an essential element of the crime of rape the issue of consent was necessarily in the case. Noting that there is a split of authority as to whether such evidence is admissible on the question of consent, the defendant urges this court to adopt the view favoring its admissibility. ²

It should first be noted that the defendant, at trial, failed to interpose this ground for the admissibility of the testimony sought. Practice Book, 1963, § 226. Ordinarily a claim for the admissibility of evidence not made at trial provides no basis for review by this court. See, e. g., Cicero v. E. B. K., Inc., 166 Conn. 490, 497-98, 352 A.2d 309 (1974); Delfino v. Warners Motor Express, 142 Conn. 301, 308, 114 A.2d 205 (1955). In view, however, of the defendant's claim that the court's ruling excluding this testimony violated his right of confrontation as guaranteed by the sixth and fourteenth amendments of the United States constitution, the claim will be reviewed.

General Statutes § 53a-72 defines rape in the first degree as "sexual intercourse with a female: (1) By forcible compulsion." "Forcible compulsion" is defined to mean "physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person . . . ." General Statutes § 53a-65(8). The statute does not delineate "nonconsent" as a distinct element. Rather, if "forcible compulsion" as defined by the statute is proven beyond a reasonable doubt, then a lack of consent is implicit. See General Statutes § 53a-66.

In the present case, the state offered evidence of "forcible compulsion." The defendant denied that he had had sexual relations with the complainant at all. Thus, consent was not truly an issue in the case. Under such circumstances, the vast majority of courts exclude evidence of a complainant's prior sexual history on the issue of consent. See, e. g., Caldwell v. State, 276 Md. 612, 349 A.2d 623 (1976); Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956); State v. Sims, 30 Utah 2d 357, 517 P.2d 1315 (1974); see also Berger, "Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom," 77 Colum.L.Rev. 1, 57 n.338 (1977); Rudstein, "Rape Shield Laws: Some Constitutional Problems," 18 Wm. & Mary L.Rev. 1, 6-7 (1976).

Even in the absence of an "alibi" defense, the question proffered by the defendant was, in our opinion, irrelevant to the issue of consent. As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. " 'One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.' " State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36, 37 (1972). The fact that a complaining witness may have consented to sexual relations with others before does not, without more, tend to establish that consent was given on the occasion in question. See Ordover, "Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity," 63 Cornell L.Rev. 90, 93-96 (1977). Further, evidence which is inconsequential tending to distract attention from the real issue should be excluded; State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969); State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 (1964); as should evidence which would be of greater prejudicial effect than probative value. See State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199 (1973), cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219. Under this reasoning, testimony focusing on the complainant's prior sexual relationship was, on the issue of consent, properly excluded. ³

The defendant argues, however, that even if the question was not admissible as tending to establish consent, it was admissible on the issue of the complainant's credibility. Again, the defendant did not explicitly raise this ground of admissibility at the trial. The defendant made some vague mention of a "medical report" which he now seeks to tie into a claim of credibility. For the reasons mentioned above, we will address the claim, which contains, in fact, two issues: (1) whether the question was admissible to impeach the witness, and (2) whether it was admissible to clarify the source of semen found in the complainant on the night of the alleged crime, as revealed in a medical report later admitted into evidence.

In State v. Rivers, 82 Conn. 454, 458, 74 A. 757, 759 (1909), this court determined that "courts may properly in (rape) cases permit the accused to inquire on cross-examination as to particular acts of immorality and unchastity of the complainant either before or after the date of the alleged assault, which tend to show that such witness is unreliable and unworthy of credit." As applied to the particular facts of the case, the general principle set forth takes on a narrow aspect. In the Rivers case, the complaining witness had, in effect, testified on direct examination that she had been chaste prior to the time of the assault. Id., 458, 74 A. 757. Under such circumstances, the defendant was clearly entitled to challenge the assertion on cross-examination. The general rule, however, is that evidence of prior sexual relations cannot be introduced to impeach a complaining witness' credibility. See, e. g., People v. Burrows, 27 Cal.App. 428, 150 P. 382 (1915); 65 Am.Jur.2d, Rape, § 86. See also comment, "The Rape Victim: A Victim of Society and the Law," 11 Willamette L.J. 36, 42 (1974). The manifest logic of this approach appears in State v. Shields, 45 Conn. 256, 260, 263 (1877), in which this court approved the court's charge that "(a) witness may be of low, depraved and lewd habits and still be competent and credible." Or, in more contemporary language, a witness' sexual conduct does not, of itself, reflect upon his or her credibility. ⁴

The defendant, however, argues that the question was permissible in light of the later submission into evidence of a medical report revealing that semen was found in the complainant on the night in question and of medical testimony revealing that someone other than the defendant could have been the donor. The defendant's reasoning is correct: that is, had the defendant asked whether the complainant had had sexual relations with someone other than the defendant at any time within the two or three days prior to the assault, the question...