State v. Ritrovato

• Citation: 905 A.2d 1079,280 Conn. 36
• Decision Date: 26 September 2006
• Docket Number: No. 17323.,17323.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Leo F. RITROVATO.

Page 1079

905 A.2d 1079

280 Conn. 36

STATE of Connecticut v. Leo F. RITROVATO.

No. 17323.

Supreme Court of Connecticut.

Argued March 13, 2006.

Decided September 26, 2006.

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G. Douglas Nash, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and David Smith, assistant state's attorney, for the appellee (state).

SULLIVAN, C.J., and BORDEN, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

ZARELLA, J.

The defendant, Leo F. Ritrovato, appeals, following our grant of certification,¹ from the judgment of the Appellate Court affirming the defendant's conviction of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1),² sale of a hallucinogenic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278(b),³ sale of a controlled substance to a person younger than eighteen years of age in violation of General Statutes § 21a-278a⁴ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(1) and (2).⁵ The defendant's conviction stemmed from allegations that he had engaged in sexual intercourse with T,⁶ a fifteen year old girl, after she ingested a hallucinogenic substance given to her by the defendant several hours earlier.

The defendant challenges the Appellate Court's conclusion that: (1) the trial court did not violate his sixth amendment rights to confrontation and to present a defense by excluding impeachment evidence regarding T's prior sexual conduct; and (2) testimony elicited by the prosecutor that T was a credible witness and the prosecutor's reference to that testimony in closing argument did not deprive him of his federal due process rights to a fair trial. We conclude that the trial court improperly excluded the impeachment evidence and that the improper ruling constituted harmful evidentiary error because it precluded the defendant from challenging T's credibility on the charges of sexual assault in the second degree in violation of § 53a-71(a)(1) and risk of injury to a child in violation of § 53-21(2) (sexual assault charges). We also conclude, however, that exclusion of the impeachment evidence and the improper conduct of the prosecutor did not violate the defendant's due process rights to a fair trial on the charges of sale of a hallucinogenic substance by a person who is not drug-dependent in violation of § 21a-278(b), sale of a controlled substance to a person younger than eighteen years of age in violation of § 21a-278a and risk of injury to a child in violation of § 53-21(1) (drug related charges). Accordingly, we reverse the judgment of the Appellate Court and remand the case for a new trial on the sexual assault charges and affirm the judgment of the Appellate Court on the drug related charges.

The following facts and procedural history are set forth in the opinion of the Appellate Court. "In July, 2000, T moved from New Mexico to Connecticut to live with her cousin, M. Approximately two weeks later, T began baby-sitting for the defendant's three daughters at the defendant's home. On the morning of August 2, 2000, the defendant arrived at M's home to pick up T and to bring her to his home to baby-sit. At trial, T testified that the defendant told her that he was going to get some `acid.' T then asked if she could have some, stating that she had `never done acid before.' According to T, after she and the defendant arrived at the defendant's house, he told her that he had twelve `hits' of `acid' on a strip of thin paper. T also testified that the defendant asked her if she had ever had sex before because `acid made him horny, and it made sex more better, more intensified.' The defendant then `cut up the acid' by slicing the paper into twelve strips and offered T one `hit.' T asked the defendant to put it on her tongue because she `didn't know what [she] was doing.' T ingested one piece of the paper that the defendant placed on her tongue. Approximately thirty minutes to one hour later, T began to see `unusual things' such as a cat singing to her and a rug waving to her. T testified that the effects of the substance she ingested lasted for several hours. In addition, T testified that the defendant told her that the paper he placed in her mouth was LSD<sup>7</sup> and that he uses the terms `acid' and LSD interchangeably. She also stated that the defendant told her that he would give her the LSD as payment for the hours she watched his children.

"Later in the evening of August 2, 2000, the defendant and his wife, Janine Ritrovato, went to a movie, leaving T to watch the children. The couple returned approximately four hours later and watched a movie with T. About halfway through the movie, Janine Ritrovato went to bed, leaving the defendant and T to finish watching the movie. The defendant then asked T to go for a walk. While walking, the defendant pulled T close to him. T objected to that and walked ahead of the defendant. The defendant then grabbed T from behind and led her to a secluded spot where they engaged in vaginal intercourse. Following the incident, T and the defendant returned to the defendant's home. There, she wrote on her calendar, `[M]y day! 1st Leo.' T testified that this meant that it was her first time having sexual intercourse.

"Not long after that incident, T was forced to move out of M's leased home, as the landlord had expressed concerns about T's occupancy. The defendant and his wife let T stay with them until the problem was resolved. T testified that on August 13, 2000, the defendant again forced her to have vaginal intercourse with him. The following day, T informed her mother and M that she wanted to return to New Mexico. When asked why, T told her mother that she had been `touched in a way that [she] didn't like.' Later, on August 18, 2000, T told M about both incidents. After hearing T's story, M took her to the police station where T gave a statement. Eventually, T also went to Planned Parenthood of Connecticut, Inc., for a physical examination. There she spoke to counselor Janet St. Jean about the incidents.

"After the defendant was arrested and taken into custody at his home on October 6, 2000, he provided Officer Mark Pilcher of the Norwich police department with a written statement in which he stated that he had obtained LSD and given it to T on different occasions.⁸ According to the defendant's statement, which was admitted into evidence during trial, T asked him to get LSD, and he received M's permission to give it to her.⁹ The defendant's statement also contained a denial of any sexual contact with T.

"Trial began on February 26, 2002. On March 13, 2002, the jury found the defendant guilty of sexual assault in the second degree, two counts of risk of injury to a child, sale of a hallucinogenic substance by a person who is not drug-dependent and sale of a controlled substance to a person younger than eighteen years of age. All of those offenses stemmed from the events of August 2, 2000.¹⁰ The defendant was sentenced to a term of twenty-two years imprisonment, execution suspended after seventeen years, and ten years of probation." State v. Ritrovato, 85 Conn.App. 575, 579-82, 858 A.2d 296 (2004).

The defendant appealed to the Appellate Court from the judgment of conviction claiming, inter alia, that: (1) the trial court improperly had excluded evidence impeaching T's credibility in violation of the defendant's constitutional rights to confrontation and to present a defense; and (2) the prosecutor improperly had elicited testimony that T was a credible witness and had referred to that testimony in closing argument, thus depriving the defendant of his due process right to a fair trial. Id., at 578-79, 858 A.2d 296. The Appellate Court rejected the defendant's claims and concluded that the trial court properly had excluded the proffered evidence on the ground that it was lacking in credibility and relevance. Id., at 601-603, 858 A.2d 296. The Appellate Court also concluded that, although the prosecutor improperly had questioned an expert witness regarding T's credibility; id., at 595, 858 A.2d 296; the trial as a whole was not fundamentally unfair and there was no indication that the jury had been unduly swayed by the improper testimony.¹¹ Id., at 597-98, 858 A.2d 296. The Appellate Court affirmed the judgment of conviction and this certified appeal followed.

I

We begin with the defendant's claim that the Appellate Court improperly affirmed the trial court's ruling to exclude evidence of T's prior sexual conduct following her testimony on direct examination that she was a virgin at the time of the first sexual assault. The defendant argues that the trial court abused its discretion under the rape shield statute, General Statutes § 54-86f(2),¹² and violated his sixth amendment rights to confrontation and to present a defense by improperly precluding him from introducing the proffered evidence. The defendant specifically contends that the trial court's finding that the evidence was not credible and thus lacked relevance is legally insupportable in light of the fact that the jury, rather than the court, makes determinations of credibility. He further contends that the evidence was admissible under § 54-86f(2), because T testified on direct examination regarding her prior sexual conduct and thereby opened the door to impeachment of that testimony. He also challenges the trial court's conclusion, which was not addressed by the Appellate Court, that the prejudicial effect of the evidence outweighed its probative value. The defendant thus contends that the Appellate Court's improper affirmance of the trial court's ruling, which prevented him from impeaching T, the state's sole witness to the alleged criminal conduct, warrants reversal of his conviction on all counts and a new...