author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. WILLIAM BARRETT
    (13834)
    Foli, Spear and Hennessy, Js.
    Argued September 19
    officially released December 3, 1996

      James Streeto, special public defender, for the appellant (defendant).

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), and two counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) ruled that evidence of the nature of the victim’s relationship with her mother and the defendant was irrelevant and too remote in time, (2) barred the defendant from cross-examining the victim regarding her prior allegations of sexual assault, (3) ruled that the substance of the argument between the victim and her mother prior to the disclosure of the allegations was irrelevant, and (4) exhibited bias against defense counsel. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant lived with the victim, her mother, and the victim’s sister during the time of the assaults. The defendant was the victim’s stepfather. The first incident occurred in the fall of 1991 when the victim was fifteen years old. The defendant was home alone with the victim. He told the victim that he wanted to examine her knee, which she had recently injured. During the examination, the defendant placed his hands on her leg and inserted his finger into her vagina. The second assault occurred sometime later in the fall of 1991. On this occasion, the defendant again inserted his finger into the victim’s vagina. The victim told her boyfriend and her teacher about these incidents shortly after they occurred.

On January 5, 1992, the victim’s mother saw her crying while on the telephone with her boyfriend. Her mother asked the victim why she was crying. When her daughter did not respond, the mother took the telephone from her and asked the victim’s boyfriend. The boyfriend informed the victim’s mother of the sexual assaults and the mother notified the police.

At trial, the defendant denied that he had sexually assaulted the victim and claimed that the victim had fabricated the allegations. The jury returned a guilty verdict and this appeal followed.

I

The defendant’s first two claims are based on the trial court’s rulings concerning evidence contained in the victim’s psychiatric and medical records. The defendant claims that the court’s rulings were improper and deprived him of his constitutional rights to confrontation and due process. We disagree.

The following facts are necessary for the resolution of this issue. Prior to trial, the trial court released to the defendant some of the victim’s psychiatric and medical records, having found that they were probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. See State v. D’Ambrosio, 212 Conn. 50, 58, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990) (outlined special procedure for trial courts before releasing confidential records). At trial, the defendant attempted to cross-examine the victim regarding several incidents documented in the records. He argued in his offers of proof that the records showed that (1) the victim had a turbulent relationship with her mother and the defendant during the spring of 1990, the period before and after the victim’s suicide attempt on March 28, 1990, (2) the victim admitted that she tended to do “crazy things” when angry, and (3) the victim had made prior allegations of sexual assault against male family members. The trial court excluded the evidence contained in the psychiatric and medical records as irrelevant. Furthermore, the court concluded that the evidence regarding her relationship with her mother and the defendant and her suicide attempt was too remote in time and that the rape shield law, General Statutes § 54-86f, prevented the admissibility of the prior allegations of sexual assault.

On appeal, the defendant maintains, as he did at trial, that the proffered evidence was relevant to establish the victim’s bias, lack of credibility, and motive to accuse the defendant falsely. He further argues that the prior allegations of sexual assault are admissible because they fall under an exception to the rape shield law.

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection 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. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 305-306, 664 A.2d 743 (1995).

We find that the trial court did not abuse its discretion in ruling that the evidence of the nature of the relationship between the victim, her mother, and the defendant was irrelevant. The defendant wanted to cross-examine the victim concerning arguments between the victim, her mother and the defendant during the spring of 1990. These incidents were documented in the victim’s medical and psychiatric records during her treatment following her suicide attempt on March 28, 1990, more than fifteen months prior to the sexual assaults. Although the trial court allowed the defendant to cross-examine the victim regarding her relationship with the defendant, it limited the inquiry to the fall of 1991, when the assaults occurred. “It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” (Citation omitted.) State v. Moynahan, 164 Conn. 560, 589, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). The trial court did not abuse its discretion in ruling that incidents that occurred more than fifteen months prior to the assaults were irrelevant in determining whether animus toward her mother and stepfather was the impetus for the victim’s allegations.

We further find that the trial court properly concluded that the evidence of prior sexual assault allegations made by the victim against other male family members was irrelevant and barred by the rape shield law. The defendant argues that the allegations were admissible under either the second or fourth exceptions to the rape shield law. The defendant further contends that, at a minimum, he was entitled to an evidentiary hearing to determine its admissibility. In support of this contention, the defendant cites State v. Manini, 38 Conn. App. 100, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995).

In Manini, the defendant was charged with one count of sexual assault. At trial, the defendant moved for an evidentiary hearing to determine the admissibility of the victim’s prior sexual conduct. The defendant sought to introduce evidence of the victim’s prior claims of sexual assault under State v. Cassidy, 3 Conn. App. 374, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). State v. Manini, supra, 38 Conn. App. 115. In Cassidy, we determined that where a defendant wanted to admit evidence of prior claims of sexual assault, such claims, if false, would be admissible as to the victim’s credibility. State v. Cassidy, supra, 382. InManini’s offer of proof, he submitted that the victim’s medical records showed that the victim had made two prior claims of sexual assault. Although the defendant had no basis for stating that the claims were false, the medical records indicating that the victim had “delusions and hallucinations of a highly sexualized nature” supported such an inference. State v. Manini, supra, 115. The trial court denied the defendant’s motion for a healing on admissibility. We reversed the trial court, finding that the defendant’s offer of proof was adequate to support an inference of the falsity of the prior allegations. We therefore found that the evidence of prior claims was relevant and that the defendant was entitled to a hearing. Id., 115.

After reviewing the record, we agree with the trial court and find that the defendant was not entitled to an evidentiary hearing on the victim’s alleged prior allegations of sexual assault by male family members. We held in Manini that § 54-86f requires a defendant to make a preliminary showing that the evidence sought to be explored in the evidentiary hearing is relevant. “The showing must be sufficient to enable the trial court to make an informed ruling in connection with the exercise of its discretion on the issue.” Id., 114. In the present case, the defendant’s preliminary showing did not entitle him to a hearing because he failed to establish even the inference that the victim’s prior allegations of sexual assault were false. See State v. Kelly, 208 Conn. 365, 377, 545 A.2d 1048 (1988). The trial court properly considered all offers of proof by the defendant; it rejected the evidence of prior claims of sexual assault as irrelevant because the defendant failed to establish that they were false. See State v. Slater, 23 Conn. App. 221, 225, 579 A.2d 591 (1990).

Unlike the defendant’s offer of proof in Manini, the defendant’s offer of proof here contained virtually no support for the contention that the victim’s prior allegations were false. In Manini, the offer of proof at issue contained evidence of the victim’s history of delusions and hallucinations of a sexual nature. In this case, the offer of proof merely contained evidence of some inconsistencies in the victim’s accounts of the prior sexual assaults. While these inconsistencies may point to the victim’s flawed memory of the prior assaults, they do not supply evidence of falsity. The defendant failed to establish even an inference that the prior claims of sexual assault were false. Therefore, the trial court did not abuse its discretion in denying the defendant’s motion for an evidentiary hearing.

We next address the defendant’s claim that the trial court’s rulings deprived him of his right to confrontation under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The primary interest secured by the right to confrontation is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). This right “may include impeaching or discrediting [state witnesses] by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception.” State v. D'Ambrosio, supra, 212 Conn. 55-57.

“ ‘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-examination viewed in relation to the issues actually litigated at trial.’ ” State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992), quoting State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986). “This right is not absolute; Chambers v. Mississippi [410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)]; State v. Talton, [197 Conn. 280, 284, 497 A.2d 35 (1985)]; but may bow to other legitimate interests in the criminal trial process. Chambers v. Mississippi, supra, 295; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978). Such an interest is the trial court’s right, indeed, duty, to exclude irrelevant evidence.” (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 604, 669 A.2d 562 (1995), quoting State v. Franko, 199 Conn. 481, 488, 508 A.2d 22 (1986). “The confrontation clause does not. . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Pratt, supra, 604-605.

Our review of the record in this case leads us to conclude that the trial court did not violate the defendant’s right to confrontation by limiting the inquiry into the defendant’s relationship with the victim to the fall of 1991 or by ruling that the evidence of the victim’s prior claims of sexual assault was irrelevant and inadmissible. The defendant argues that the evidence of the relationship between the parties prior to the fall of 1991 was relevant and material to establish the victim’s bias, motive, and mental state. He further argues that the evidence of the prior allegations should have been admissible because it “fits within the defendant’s theory of defense.”

The constitution does not require that a defendant be permitted to present every piece of evidence he wants. Chambers v. Mississippi, supra, 410 U.S. 302; see also State v. Christiano, 228 Conn. 456, 474, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). Here, the defendant was allowed to present evidence of the turbulent nature of the victim’s relationship with the defendant through his own testimony, along with the testimony of the victim’s mother and the defendant’s brother. Also, the defendant presented evidence of the victim’s mental state through his expert witness, Jeremy August, a psychiatrist. August, who had access to the victim’s psychiatric and medical records, testified about the victim’s attempted suicide, her subsequent hospitalization, and his conclusion that the victim has a cognitive deficit that prevents her from accurately or truthfully relating events that occurred. It is clear, therefore, that the trial court did not improperly restrict the defendant’s field of inquiry regarding bias, motive, credibility and mental state. Furthermore, we have already decided that the trial court properly ruled that the evidence proffered by the defendant was irrelevant. Thus, we conclude that the trial court adequately protected the defendant’s right to confrontation. State v. Pratt, supra, 235 Conn. 604-605.

II

In the defendant’s third claim on appeal, he argues that the trial court abused its discretion by excluding evidence of the substance of an alleged argument between the victim and her mother immediately prior to the disclosure of the allegations on January 5, 1992.

We first consider the state’s argument that the defendant failed to raise this claim at trial with sufficient clarity to alert the trial court to the claim now raised on appeal. “The court [on appeal] shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .” Practice Book § 4061. We must examine the record to discern whether the defendant raised the issue in question at trial. State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359 (1995).

At trial, the defendant attempted to question the victim about the substance of an argument with her mother on January 5, 1992, the day that her mother found out that the victim had been sexually assaulted. The defendant argued that the substance of the argument was relevant because it caused the victim to cry to her boyfriend on the telephone and ultimately led to the disclosure of the allegations. Furthermore, the defendant asserted that the substance of the argument was material to the defendant’s theory that the victim had fabricated and disclosed the allegations on that date in retaliation for “allegations [that] had been made against [the victim] about other misconduct she was engaging in.” On the basis of this offer of proof, the trial court ruled that such evidence was irrelevant.

We find that the defendant properly raised the issue at trial; we also find, however, that the trial court did not abuse its discretion in ruling the evidence irrelevant. The substance of the argument on January 5, 1992, is irrelevant to establish that it instigated the victim to fabricate the allegations. The victim had already confided in her teacher and her boyfriend shortly after the assaults occurred in the fall of 1991. Moreover, there is no evidence that the victim’s crying on the telephone was related to the argument with her mother. We therefore conclude that the trial court reasonably exercised its discretion in excluding the inquiry.

Ill

The defendant’s final claim involves the trial court’s denial of his motions for mistrial. The defendant contends that certain judicial misconduct and bias denied him his constitutional right to a fair trial. In support of his motions, the defendant cited two incidents of judi-ciai misconduct and bias: (1) a comment made by the trial court during a colloquy regarding an evidentiary issue where the court stated to the defense counsel to take up this issue on appeal; and (2) the trial court’s finding the defendant in contempt.

Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). “The appearance as well as the actuality of impartiality on the part of the trier” may constitute proof of bias sufficient to warrant disqualification, resulting in a mistrial. Id., 170. The general rule in this state is that a mistrial should be granted only when it is apparent to the court that the misconduct has so prejudiced a party that he can no longer receive a fair trial. See State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Boone, 15 Conn. App. 34, 48, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). Applying this rule, we find that the trial court did not improperly deny the defendant’s motions for mistrial.

We note that all the incidents the defendant cites in his motions for mistrial, including the unpreserved claims, occurred outside the presence of the jury. Although the defendant claims that the alleged bias “colored the entire proceeding,” he fails to demonstrate how he was prejudiced or denied a fair trial. We, therefore, must conclude that the trial court adequately protected the defendant’s right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (4) such other person is less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare . . . .”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant also states as an issue that the trial court improperly failed to release certain “psychiatric and other records” to the defendant. More specifically, the defendant requests this court to review the following sealed records: (1) the victim’s school records, (2) the victim’s May, 1991 admission record from her health care provider, and (3) part of the victim’s file with the department of children and families (DCF). The sealed school records and the May, 1991 health care provider record were not part of the appellate file. We have reviewed the sealed portion of the DCF file and we conclude that the record was properly sealed.

       General Statutes § 54-86f provides in pertinent part: “In any prosecution for sexual assault ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (2) 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 ... or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera .... If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. . . .”

       See footnote 4.

       We note that the defendant in the present case did not frame his request for an evidentiary hearing employing the words “move” or “motion.” The record is clear, however, that he was seeking permission to offer the type of evidence covered by § 54-86Í. See State v. Manini, supra, 38 Conn. App. 107-108.

       The defendant did establish the requisite inference of falsity regarding a prior allegation of sexual assault made against an unrelated male. In the offer of proof on this prior allegation, the defendant represented that this male had received accelerated rehabilitation with regard to the victim’s sexual assault claim against him and steadfastly denied the allegation. The trial court found that the offer of proof entitled the defendant to an evidentiary hearing and allowed him to question the victim about this claim. The evidence, however, was not admissible because at the hearing the defendant failed to prove the falsity of the allegation.

       We do not address the issue of whether the evidence of prior allegations of sexual assault falls under any exceptions to the rape shield law because we affirm t he trial court’s ruling that the evidence failed to meet the threshold requirement of relevancy.

       We decline to review separately the defendant’s claim that the trial court’s rulings deprived him of his due process rights because we find this claim to be subsumed by the analysis of his right to confrontation claim.

       On appeal, the defendant cites several other incidents in which he alleges the trial judge displayed misconduct and bias. He failed, however, to present the incidents in his motions for mistrial. “ ‘It, is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial’ ” Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993), quoting Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990). Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved in the trial court, Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). Plain error exists only in “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Small v. Stop & Shop Cos., 42 Conn. App. 660, 663, 680 A.2d 344 (1996). We find that the defendant’s claim of judicial bias does not amount to plain error, therefore, we cannot review the claim as to those incidents not included in the defendant’s motions for mistrial.

       The comment was elicited by the following exchange:
      “[Defense Counsel]: I’ll offer these as prior inconsistent statements. It’s not what she said on her statement, that’s not what she related to the police.
      “The Court: But what does the substance of the argument have to do with any issue?
      “[Defense Counsel]: There were allegations made, they arose on a certain date, some of which were the fact that allegations had been made against her about other misconduct she was engaging in.
      “The Court,: And that is totally irrelevant.
      “[Defense Counsel]: I don’t believe it is, Your Honor.
      “The Court: [Defense counsel], you can take that up on appeal.
      “[Defense Counsel]: I don’t believe there is going to be an appeal in this case, Your Honor.
      “The Court,: There may not be, and then you won’t have to take it up, but that is clearly not relevant.”

       We will not review the defendant’s claim that the contempt findings failed to conform to the rules of practice because the defendant did not raise this issue at trial. See Practice Book § 4061. Furthermore, the defendant has not requested that we review his claims under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Therefore, we deny review. See State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD STEVENSON
    (14656)
    Dupont, C. J., and Landau and Daly, Js.

      Argued September 27
    officially released December 3, 1996

      Glenn W. Falk, special public defender, with whom, on the brief, was Donald Dakers, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   DUPONT, C. J.

The defendant appeals from judgments of conviction rendered after a jury trial. The convictions stemmed from charges arising out of two cases involving different incidents and different victims, which had been consolidated for trial. The defendant was charged in the first case with attempted sexual assault in the first degree, kidnapping in the second degree and threatening, and in the second case with sexual assault in the first degree and kidnapping in the second degree. The jury found the defendant guilty of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49 (a), and guilty of one count of threatening in violation of General Statutes § 53a-62 in the first case. The jury also found the defendant guilty of one count of sexual assault in the first degree in the second case in violation of § 53a-70 (a). The defendant was found not guilty of kidnapping in the second degree in both cases.

Originally, the defendant was charged with crimes arising out of four incidents of sexual assault, all of which concerned different victims. The crimes relating to each incident were the subject of separate files, each given a different case number. The defendant moved for separate trials of each of the four cases and the state moved to consolidate them. At the consolidation hearing, the trial court ruled that all four cases should not be consolidated because the jury would have difficulty distinguishing them, but he left the decision to the state as to whether two of the cases, designated as “K.R.” and “J.C.,” would be consolidated. The court determined that, even if the state did not consolidate the two cases, evidence of each would be cross admissible at each trial.

The state chose to prosecute the two cases together. The two cases share certain similarities. The victim K testified that she has worked as a prostitute to support her drug habit, but that she was not working on the night of the incident. The victim testified that at approximately 3 a.m. on September 13, 1992, she was walking alone in the Fair Haven section of New Haven, on her way to a twenty-four hour store on Grand Avenue. A car slowed down near her more than once. The driver nodded his head to her to see if she was working and she indicated that she was not. The victim described the car as a cream colored, older model Chevrolet or Plymouth. After the car had passed her a second time, the driver opened the passenger door and asked if she was working. When she said that she was not working, the driver got out of the car, grabbed her and pulled her into the car.

The victim testified that the driver of the car held her head down toward the seat as he drove. Eventually the car stopped. The victim later learned that the place where they had stopped was Mill River Street in New Haven. The victim pleaded with the driver to let her go and told him that she had AIDS. The driver only laughed at her and called her various profanities. The driver proceeded to force the victim onto her back, pulled up her shirt, and pulled her pants down. The driver held the victim’s hands over her head with one hand and pulled at her clothes with the other. The victim tried to hold her legs together in an effort to stop the driver from penetrating her. The driver grabbed K’s throat and threatened her with anal intercourse. K testified that, at that point she stopped struggling with her assailant in the hope that he would loosen his grip on her. He did loosen his grip on her hands and she was able to open the car door. Once she had opened the door, K screamed “fire” and was able to get out of the car. The driver chased her around the car and grabbed her but she escaped. K ran up the street and went inside the gate of a house where she hid until she saw the assailant get back in the car and drive away.

K was able to describe her assailant and his car. She remembered seeing a fishing pole in the backseat. She described the driver of the car as a black man of about thirty years of age with a large build. She described him as having a fat stomach and messy hair with a big Afro. K also described his white T-shirt.

Five days after the attempted assault, K encountered the assailant again as she was walking home at approximately 1 a.m. She heard someone call out to her, and recognized the voice as that of her attacker. When she looked, she saw that the car was the same one she had been in before. K told the driver to leave her alone. He swore at her and pointed a long black gun at her. K hid behind, a tree until he drove away. She recorded the license plate number and gave it to the police.

K identified the defendant as the person who had attempted to assault her sexually and as the person who threatened her, both from a photographic array and in court.

The victim in the second case, J, testified that her assault occurred early on July 30, 1992. She attended a party in Fair Haven and, after trying unsuccessfully to get a ride home, she began walking. The victim was walking beneath an underpass on Humphrey Street when a two door beige Duster slowed up near her. The car passed her and made a U-turn, and subsequently blocked her so that she could not get by. J testified that the driver got out of the car, hit her over the head, and dragged her on her knees into the car by her shirt. He told her that he planned to rape her. He drove to Mill River Road where he stopped the car. He forced J into the backseat and ordered her to take off her clothes. When she refused, he threatened to kill her. Throughout the entire assault, J pleaded with him to let her go. During the assault, which lasted for two and one-half hours, the assailant insulted J with profanities. He forced her to have vaginal and oral intercourse, and threatened her with anal intercourse. When J screamed because of his threats, the assailant turned her onto her stomach and threatened her, showing her a paper bag that he said contained a gun. He told her that if she did not stop screaming, he would kill her. J saw something black and shiny protruding from the bag, but she did not actually see if it was a gun. At this point some motorcycles approached, startling the assailant, who then jumped out of the car. J ran away from the car.

J also testified that she saw a fishing pole in the back of the car. She described her assailant as a black man, age thirty to thirty-five. She described him as fat with a goatee and a blue tattoo on his arm. She also remarked that he had puffy eyes and bumps on his skin. She described his clothing as a T-shirt, sweatpants, and white Fila sneakers. J identified the defendant as the person who had attacked her, both from a photographic array and in court.

The defendant claims that the trial court improperly (1) consolidated the two cases, (2) admitted into evidence a replica of a gun, (3) refused to permit the defendant to question J about previous sexual assault claims, (4) refused to give a Secondino instruction, and (5) denied the defendant’s motion for a mistrial following the prosecutor’s closing argument.

I

CONSOLIDATION

The test for whether cases should be consolidated for trial is multifaceted. The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996); see also State v. Jennings, 216 Conn. 647, 583 A.2d 915 (1990); State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987); State v. King, 187 Conn. 292, 445 A.2d 901 (1982); State v. Silver, 139 Conn. 234, 93 A.2d 154 (1952).

Before discussing these factors, and the leading cases in which the factors are discussed, we first note that joinder of cases is favored; State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988); and that a trial court is authorized by statute and rule to order a defendant to be tried in one trial on charges arising from separate cases. General Statutes § 54-57; Practice Book § 829. The court may also order separate trials if it appears that a defendant is prejudiced by joinder. Practice Book § 828. The decision of whether to sever cases is within the discretion of the trial court; State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. King, supra, 187 Conn. 299; and will be overturned only if its discretion has been manifestly abused. State v. Herring, supra, 210 Conn. 94. It is the defendant’s burden to show that joinder was improper, and to do so he must show substantial prejudice. State v. Boscarino, supra, 204 Conn. 714; State v. Rodgers, 198 Conn. 53, 65, 502 A.2d 360 (1985); State v. Bell, supra, 410; State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). “The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Internal quotation marks omitted.) State v. Herring, supra, 94-95.

This case passes muster when the appropriate factors are applied, and we conclude that the consolidation allowed by the trial court was proper. We dispose of two of the factors relatively easily. The first Chance factor is met because the factual scenarios here are distinct, easily distinguished and discrete. The transcript reveals that the evidence was presented in an orderly fashion. Where the state’s orderly presentation of evidence was not confusing and enabled the jurors to consider the evidence relevant to each offense separately and distinctly, we will not conclude that the trial court has manifestly abused its discretion in denying the defendant’s motion for severance. State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987); State v. Cain, 25 Conn. App. 503, 515, 596 A.2d 449 (1991), aff'd, 223 Conn. 731, 613 A.2d 804 (1992).

When incidents are easily distinguished, but contain factual similarities, there is some danger that a jury, under certain circumstances, might use evidence of one to find guilt in the other. Here, the evidence as to each incident would in all likelihood have been admissible in a separate trial of the charges arising out of the other incident. The defendant, therefore, would be in no better position had the charges as to each been tried separately in terms of the jury’s ability to use the evidence as to one set of charges in the determination of guilt in the other.

Another factor of Chance considers the length and the complexity of the trial. The trial in this case was not unnecessarily long or complex. In Boscarino, where the joinder of charges relating to four factually similar incidents was concluded to be improper, the trial lasted ten weeks. Here the trial lasted six days and involved only two incidents. Therefore, we conclude that the length of trial and degree of complexity met the second prong of Chance.

We turn now to the last factor of Chance, concerning the brutality or shocking nature of the crimes. The defendant argues that because of the brutal nature of the crimes, he could not possibly receive a fair trial if they were joined. Admittedly, the incidents in both cases are brutal. The question, however, is how to apply the test of Chance and its predecessors when both of two counts allege brutal or shocking conduct by the accused, as opposed to a situation where one of the crimes is brutal or shocking, and the other is not. Our answer revolves around an analysis of the pertinent statutes and case decisions.

Although crimes that are not of the same character may be consolidated for trial; State v. King, supra, 187 Conn. 299; the legislature, in § 54-57, has specifically condoned the joinder of offenses of the “same character.” Here, the two incidents involve offenses of the same character. There is, thus, statutory authority for consolidation.

We next review existing case law for a resolution of the question. In State v. Silver, supra, 139 Conn. 234, five cases involving two minor victims were properly consolidated where the sexual behavior of the defendant could be considered shocking in all of the cases. In approving the consolidation allowed by the trial court, the Silver court noted that it would be rare to have a situation where the evidence as to one crime shows such brutality that a fair consideration of the other crime or crimes in the same case would be difl'icult. Id., 240-41. In Boscarino, consolidation was improper when four factually similar offenses were tried together in a lengthy and complex trial. The “violent” (brutal) nature of the crimes was noted; State v. Boscarino, supra, 204 Conn. 723; but the court emphasized that the state conceded that the defendant’s participation in the offenses would not have been admissible as substantive evidence had the cases been tried separately. Thus, the prejudice in Boscarino arising from the brutality of the crimes occurred because the evidence as to the crimes would not have been cross admissible had the defendant had separate trials.

In State v. Herring, supra, 210 Conn. 78, consolidation was found to be proper when there were two separate informations involving two separate murders occurring on two different dates. The court discussed the prejudicial effect on a defendant when both crimes are brutal but not “so brutal” as to require separate trials. The court notes that any murder involves violent and upsetting circumstances but not all murders are “so ‘brutal and shocking’ that a jury, with proper instructions to treat each killing separately, would necessarily be prejudiced by a joint trial.” Id., 97. The court states, by way of contrast, that in Boscarino, two of the assaults contained facts that showed a greater degree of violent or shocking behavior than the other assaults, thereby causing consolidation to be improper.

State v. Jennings, supra, 216 Conn. 647, cites both Boscarino and Herring to reiterate that when both crimes can be characterized as violent, the test becomes whether the facts of one are “so brutal or shocking” as to amount to prejudice if tried together. The crimes that were allowed to be consolidated for trial in Jennings were assault and kidnapping in one incident and criminal attempt to commit assault and criminal trespass in the other incident. The Jennings court distinguishes its conclusion that consolidation was proper from the conclusion in Boscarino, noting that one of the crimes in Boscarino involved sexual derangement. The two cases consolidated for trial in Jennings concerned one assault in which the defendant allegedly cut his victim’s neck with a box cutter, and then punched, kicked and “threw her about a par-king lot,” and another assault in which he cut the victim’s finger and arm with a knife. Id., 651.

State v. Chance, supra, 236 Conn. 31, does not reach the issue of the interplay, for consolidation purposes, between two crimes, each of which is brutal or shocking, because the court does not characterize either crime as such and, in fact, says that they are not. In Chance, the crimes consolidated for trial were arson and assault, and each crime involved a separate incident and different victims.

We conclude that when all of the cases sought to be consolidated are brutal or shocking, they may be joined properly, if consolidation does not cause a high risk of one case being tainted by the unusually shocking (e.g., sexual derangement) or brutal nature of the other, or others, especially if the evidence as to each would have been cross admissible had the cases been tried separately.

Sexual assaults in the first degree can be characterized as brutal. Some, however, evince a greater degree of brutality or shocking behavior than others. The question then becomes whether one of the sexual assault crimes with which we are here concerned is so brutal and shocking when compared with the other, that a jury, even with proper instructions, could not treat them separately. We conclude that the crimes here were such that there was not a high risk that the behavior involved in one would interfere with the jury’s consideration of the other.

The defendant argues that the curative instruction given by the court was not sufficient to overcome any prejudice to him. Although jurors are presumed to have followed the instructions of the trial court; see, e.g., State v. Noye, 199 Conn. 389, 396, 507 A.2d 1001 (1986); it is sometimes the case that “a curative instruction is not inevitably sufficient . . . .” State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980).

Here, the trial court gave the jury ample instruction that it was to keep the crimes charged in the two infor-mations separate. At the beginning of the trial, the court read the charges to the jury and specified that they related to different victims. At the end of the trial, the court also gave the jury very specific directions to keep the charges separate.

Even if the defendant had two separate trials, the jury in each trial, in all likelihood, would have heard evidence involving the other. The defendant’s argument that the jury would either confuse the issues or not consider the cases separately as a result of the consolidation cannot prevail. We conclude that the consolidation of the cases in one trial did not substantially prejudice the defendant. The cases were distinct, the issues not complex, the trial not lengthy, and the brutality of the cases, vis-a-vis each other, not of such a nature that a jury could not treat each separately. State v. Jennings, supra, 216 Conn. 648; State v. Herring, supra, 210 Conn. 78.

II

EVIDENTIARY CLAIM

The defendant’s second claim is that a replica of a gun that was found in the defendant’s car should not have been introduced into evidence because the victims could not identify it as the gun that had been used in the crimes. We conclude that the introduction of this evidence may have been improper because there was no testimony to indicate that it was a replica of a gun used in the commission of the crimes. We also conclude that the introduction, if improper, was harmless.

The gun was identical in make and model to one found in the defendant’s car and was introduced into evidence as a replica of that gun. It is clear from the transcripts that the jury could not have thought that it was the actual gun used. In order to be relevant, however, the state must connect the weapon to the crimes. State v. Onofrio, 179 Conn. 23, 31, 425 A.2d 560 (1979); State v. Coleman, 35 Conn. App. 279, 287, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994). The defendant claims that the gun was not relevant because the victims were not able to identify it as the type used in the commission of the crimes. The defendant is correct. Furthermore, one of the victims did not actually see a gun.

The defendant’s evidentiary claim is not constitutional. “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Citation omitted; internal quotation marks omitted.) State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990), quoting State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). Here, the state made clear that the gun was a replica of the gun found in the defendant’s car. The state’s assertion that such a gun was found in the defendant’s car served as only one of many factors from which the jury could conclude beyond a reasonable doubt that he was the perpetrator of the crimes. Both victims, independently, positively identified the defendant from photographic arrays and in the courtroom. In addition to the gun replica, other evidence was presented at trial, including a description of the defendant’s car and correlating photographs of it, the description of the defendant’s physical characteristics and clothing, and the description and photograph of a fishing pole found in the defendant’s car. Overall, we conclude that the defendant has not demonstrated that the introduction of the gun more probably than not affected the outcome of the case.

Ill

CONFRONTATION CLAIM

The defendant’s third claim is that he was not permitted to question J outside of the presence of the jury about two rapes that were mentioned in her hospital record but otherwise went unreported. He claims that his right of confrontation has been violated. These claims were made at a hearing outside the presence of the jury pursuant to § 54-86f, the rape shield statute.

Courts have recognized that prior false claims of sexual assault may be relevant to a complainant’s credibility. See State v. Slater, 23 Conn. App. 221, 225, 579 A.2d 591 (1990). These claims must, however, be proven false. Id. “Without evidence of the falsity of the prior accusation . . . the defendant cannot show the relevance of the proposed cross-examination.” State v. Kel-

ley, 229 Conn. 557, 563, 643 A.2d 854 (1994). In this case, the defense attorney had no information that J’s prior sexual assault claims were false. The defendant claims that although he had no evidence that the prior claims were false, he was prejudiced by not being permitted to question the victim about them because she has a history of delusional behavior. There was, however, no evidence that, if the victim had delusions, they were of a sexual nature. See State v. Manini, 38 Conn. App. 100, 115, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995). On the contrary, it is clear from the record that the victim’s medical records show that her history of mental health problems stems from the loss of a child and has nothing to do with sexual delusions. The questioning proposed by the defendant is improper in the absence of proof of any false accusations made by the victim. State v. Cassidy, 3 Conn. App. 374, 382, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

The right of a defendant to cross-examine is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). “The court has wide discretion to determine the scope of cross-examination.” State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992). Claims of undue restrictions on cross-examination ordinarily involve a two-prong analysis: (1) whether constitutional standards have been met; and (2) if so, whether the trial court abused its discretion. State v. Cox, 7 Conn. App. 377, 384, 509 A.2d 36 (1986). An examination of the record in this case reveals that the cross-examination of J satisfied the requirements of the sixth amendment. Defense counsel was permitted to develop facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability and the bias of the witness, thus satisfying the constitutional standard. See State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The trial court did not abuse its discretion in excluding the proposed questioning.

IV

SECONDINO CLAIM

The defendant’s fourth claim is that the court failed to give a Secondino instruction regarding K’s brother, who did not testify at trial. We do not agree that such an instruction was necessary. According to Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), the witness must be one that is available and that the party would ordinarily produce. Although K testified that when she returned home she told her brother about what had happened to her, it is unlikely that the state would have called him to testify since he was an incarcerated felon at the time of trial.

In addition, the brother’s testimony would have been cumulative. A prospective witness whose testimony would be comparatively unimportant, cumulative, or inferior to what has already been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge. State v. Owen, 40 Conn. App. 132, 139, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996); State v. Battle, 39 Conn. App. 742, 745, 667 A.2d 1288 (1995), cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996).

V

MISTRIAL CLAIM

The defendant’s fifth and final claim is that the trial court improperly denied his motion for a mistrial after the prosecutor’s rebuttal closing argument. The defendant claims that the prosecutor’s remarks improperly appealed to the jury to protect society from future criminal acts by the defendant.

“ ‘[B]y reason of his office, [the prosecutor] usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.’ ” State v. Couture, 194 Conn. 530, 564-65, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

A prosecutor must refrain from trying to arouse prejudice in the jurors; State v. Falcone, 191 Conn. 12, 22, 463 A.2d 58 (1983); or from diverting their attention from their duty to base their conclusions on the evidence actually presented at trial. State v. Couture, supra, 194 Conn. 562. This does not mean, however, that a prosecutor cannot present a strong and cogent argument. State v. Floyd, 10 Conn. App. 361, 368, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987).

The prosecutor’s commentary in the rebuttal argument was not so damaging to the defendant as to require a mistrial. He did not ask the jury to find the defendant guilty, regardless of the state’s evidence, in order to prevent him from committing future crimes.

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.” State v. Floyd, supra, 10 Conn. App. 364; see also State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987); State v. Couture, supra, 194 Conn. 530. “The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984). Here, the defendant has not borne his burden of proof. We conclude that the prosecutor’s remarks in rebuttal did not deprive the defendant of a fair trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in pertinent part: “Sexual assault in the first degree: Class B felony: One year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
      General Statutes § 53a-49 provides in pertinent part: “Criminal attempt: Sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . . .”

       General Statutes § 53a-62 provides in pertinent part: “Threatening: Class A misdemeanor, (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical iqjury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience. ...”

       General Statutes § 54-57 provides: “Joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information, unless the court orders otherwise.”

       Practice Book § 829 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together."

       Practice Book § 828 provides: “If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon his own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require.”

       The defendant does not argue that the evidence is not cross admissible.

       Evidence of the charges against the defendant would probably have been cross admissible had they been tried separately because the factual scenarios involved likely would have been deemed part of a common plan or scheme. Although evidence of other crimes is not admissible to show bad character or a disposition to commit a crime, such evidence is admissible to show such issues as a common scheme, intent, malice, identity, motive or opportunity. State v. Greene, supra, 209 Conn. 464-65. The evidence must be relevant and material to an element of the crime and its probative value must outweigh its prejudicial effect. Id., 465.
      In this case, both crimes were perpetrated in the early morning hours in the same neighborhood. The defendant drove both of his victims, who each separately identified him, to the same area of Fair Haven to commit the crimes. The defendant used the same language with each woman, and threatened each with anal intercourse. Both women were attacked when the perpetrator of the crimes discovered that they were not working as prostitutes.

       At the time that Silver was considered, the language of the rules of practice tracked the statutory language of § 54-57 to provide for consolidation when the offenses were of the “same character.” The rules of practice were amended in 1976 so that Practice Book § 829 no longer refers to “offenses of the same character.”

       The trial court’s instructions were in part as follows: “The defendant in this case is charged under two informations. Under the information in which J.C. is the complainant, he is charged with two offenses which are stated in two counts. Under the information in which K.R. is the complainant, he is charged with three offenses, which are stated in three counts. You must render a verdict of guilty or not guilty on each of the five counts separately.” The court then proceeded to review all the evidence and referred to which charge the evidence applied.

       Defense counsel objected on these grounds at trial.

       The remarks at issue were as follows: “You’re not here to do the easy thing. The oath you took is to do what justice requires. And justice, in this case, requires that the law be enforced, it can’t be enforced by the police, they just make arrests. It can’t be enforced by his Honor, because the Judge only presides over jury trials. If the law is going to be enforced, it’s got to be enforced by jurors like yourselves. These laws are enacted to protect, not just the Ks not just the Js, but all of us, all of us are protected .... And now, for the protection of society, you, too, must help by enforcing the law and finding [the defendant] guilty of each of these charges.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. SAMUEL MCMILLAN
    Dupont, C. J., and O’Connell, Foti, Lavery, Landau, Heiman, Schaller, Spear and Hennessy, Js.
    Considered October 23
    officially released December 10, 1996

      Susan C. Marks, supervisory assistant state’s attorney, in support of the motion.

      G. Douglas Nash, public defender, in opposition to the motion.
   FOTI, J.

The state has filed a motion for review of the trial court’s order denying the state permission to appeal under General Statutes § 54-96. We conclude that the proper means for challenging that order is by direct appeal. We therefore dismiss the state’s motion as improper.

The defendant, Samuel McMillan, was taken into custody after a warrantless arrest and then charged with six drug related offenses. The trial court granted the defendant’s oral motion to dismiss all charges for lack of probable cause. The state moved for permission to appeal pursuant to § 54-96. The trial court denied the motion and the state filed a motion for review in this court pursuant to Practice Book § 4Q53.

In opposition to the state’s motion for review, the defendant argues that pursuant to Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994) (Simms II), the state should have filed an appeal and raised as the first issue whether the trial court improperly denied the state permission to appeal under § 54-96. In Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), and Simms II, both of which involved the denial of the same petition for certification to appeal in a habeas proceeding under General Statutes § 52-470 (b), our Supreme Court discussed the denial of a request of the state for permission to appeal under § 54-96. Pursuant to § 54-96, the proper procedure for the state to follow to challenge a trial court’s denial of the state’s request for permission to appeal is to file an appeal. In discussing the standard of review in such cases, the Simms I court noted that “under General Statutes § 54-96 . . . on appeal, the issue is whether the record manifests a clear and extreme abuse of discretion or whether injustice appears to have been done. State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977); State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 312, 521 A.2d 1017 (1987).” (Emphasis added; internal quotation marks omitted.) Simms I, supra, 189. The Simms II court reiterated that “[i]n cases arising under § 54-96, we have inquired, on appeal, whether the record demonstrates that the denial of permission to the state to appeal constituted a clear and extreme abuse of discretion or resulted in an apparent injustice. State v. Bergin, supra, [660-61]; State v. S & R Sanitation Services, Inc., supra, [311]; State v. Avcollie, supra, [110-11].” (Emphasis added.) Simms II, supra, 615.

In reaching its conclusion that filing an appeal is the proper method for the state to challenge the trial court’s denial of permission to appeal under § 54-96, the Supreme Court in Simms I and Simms II cited, inter alia, its previous decisions of State v. S & R Sanitation Services, Inc., supra, 202 Conn. 300, and State v. Avcol-lie, supra, 174 Conn. 100. Our review of the procedure followed by the state in those cases further supports our conclusion.

In State v. Avcollie, supra, 174 Conn. 103, the trial court denied the state permission to appeal and then “rescinded” that order and granted the state permission to appeal. After the state appealed, the defendant moved to dismiss the appeal for, inter alia, lack of subject matter jurisdiction because the trial court originally denied the state permission to appeal. Our Supreme Court concluded that in the original order denying the state permission to appeal, the trial court abused its discretion. Id., 111. The Supreme Court determined that the state properly filed an appeal and approved the procedure of filing of an appeal to seek review of the trial court’s decision denying the state permission to appeal. Id., 110-12. “Section 54-96 does not . . . preclude an appeal by the state seeking review of the court’s denial of permission to appeal in those unusual cases in which . . . the court’s denial was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. In such cases the statute’s condition requiring the court’s permission to appeal cannot serve to insulate a trial court from review by this court; rather, the statute as a whole remains operative to allow appeal by the state.” (Emphasis added.) Id., 110.

In both State v. S & R Sanitation Services, Inc., supra, 202 Conn. 300, and State v. Bergin, supra, 214 Conn. 657, after the trial court denied the state permission to appeal, the state filed a motion for review of that decision in this court. Upon consideration of the motion for review, we granted the motion for review and set aside the order denying the state permission to appeal. The state then filed an appeal in this court in both cases, which the Supreme Court transferred to itself. In response to each defendant’s argument that the court lacked subject matter jurisdiction because the trial court had denied the state permission to appeal, the Supreme Court reviewed de novo whether the trial court’s denial of permission to the state to appeal was an extreme abuse of discretion.

In S & R Sanitation Services, Inc., our Supreme Court reached the opposite conclusion from this court on the motion for review and determined that the trial court did not abuse its discretion in denying the state permission to appeal. The Supreme Court, therefore, dismissed the state’s appeal for lack of subject matter jurisdiction. State v. S & R Sanitation Services, Inc., supra, 202 Conn. 306-13. In Bergin, on the other hand, the Supreme Court, upon de novo review, reached the same conclusion as this court that the trial court had abused its discretion in denying the state permission to appeal. The Supreme Court, therefore, determined that the appeal was properly before it. State v. Bergin, supra, 214 Conn. 660-63.

The Supreme Court did not discuss the propriety of the state’s preappeal motion for review in either case. The court noted in S&R Sanitation Services, Inc. that the case reached the Supreme Court “in an unusual posture. ” State v. S & R Sanitation Services, Inc., supra, 202 Conn. 308. Despite the ambiguity as to the appropriateness of the preappeal motion for review, the Supreme Court in both cases reinforced the premise set forth in State v. Avcollie, supra, 174 Conn. 100, that the state may appeal where the trial court’s denial of permission to appeal was an extreme abuse of discretion. “[Wjithout [the] permission [of the trial court] there is no viable appeal unless the court’s denial of permission is so unreasonable as to constitute an abuse of discretion.” (Internal quotation marks omitted.) State v. S & R Sanitation Services, Inc., supra, 308. “Section 54-96 . . . does not preclude an appeal by the state when the denial [of permission to appeal] was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. . . . [T]he statute as a whole remains operative to allow appeal by the state.” (Internal quotation marks omitted.) State v. Bergin, supra, 214 Conn. 660.

The proper procedure for the state to follow when it has been denied permission to appeal under § 54-96 is to file a direct appeal. Simms II, supra, 230 Conn. 608; Simms I, supra, 229 Conn. 178; State v. Bergin, supra, 214 Conn. 657; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 300; State v. Avcollie, supra, 174 Conn. 100. In keeping with this precedent, the state in this case should have filed a direct appeal rather than a motion for review.

The state’s motion for review is dismissed as improper. We sua sponte grant the state permission to file a late appeal within twenty days of the issuance of notice of this decision, and direct the state, if an appeal is filed, to raise as the first issue whether the trial court improperly denied the state permission to appeal under § 54-96.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court, or to the appellate court,, in the same manner and to the same effect as if made by the accused.”

       Practice Book § 4053 provides in relevant part: “The court may, on written motion for review stating the grounds for the relief sought, modify or vacate any order made by the trial court . . . relating to the . . . procedure of prosecuting or defending against an appeal . . . .”

       The Avcollie decision essentially overrules the decision in State v. Audet, 170 Conn. 337, 365 A.2d 1082 (1976). After the trial court denied the state permission to appeal in Audet, the state filed an appeal with our Supreme Court. The state requested that, if the appeal was dismissed, the Supreme Court consider the state’s motion for review. In considering the defendant’s motion to dismiss the appeal for lack of jurisdiction, the Supreme Court stated: "Statutes authorizing an appeal in a criminal case must be strictly followed. . . . The conditions of [§ 54-96] must therefore be met to have a valid appeal." (Citations omitted; internal quotation marks omitted.) Id., 340. Because the appeal was taken without the requisite trial court permission, the Supreme Court granted the motion to dismiss the appeal. Id., 341. Regarding the motion for review, the Supreme Court concluded that the motion was improper because there was no valid appeal pending. Id., 343.

         The state followed the same procedure in State v. Bellamy, 4 Conn. App. 520, 495 A.2d 724 (1985).


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. KIM LYONS
    (14924)
    Dupont, C. J., and Landau and Freedman, Js.
    Argued September 25
    officially released December 10, 1996

      Maura T. Kehoe, certified legal intern, with whom 'were Richard Emanuel, assistant public defender, and, on the brief, Jessica Bom, certified legal intern, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palumbo, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant, Kim Lyons, 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) (l). On appeal, the defendant claims that the trial court improperly (1) restricted his constitutional rights of confrontation and to present a defense, and (2) admitted “constancy of accusation” evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On July 26, 1993, at approximately midnight, S was standing on the corner of East Washington Avenue and William Street in Bridgeport when she was approached by the defendant. The defendant asked S if she wanted to “get busy or trick.” S responded no. The defendant then asked her if she “got high.” S responded yes and accompanied the defendant to the second floor of an abandoned building. Once inside the abandoned building, the defendant failed to produce the drugs and reiterated his desire to “trick,” i.e., to engage in sexual intercourse. S again refused and started to leave when the defendant said they would “smoke.” When S returned, the defendant hit her in the face with his fist and then proceeded to punch and bite her all over her body. S screamed for help and tried to escape throughout the attack but was unsuccessful. During the attack, the defendant penetrated S’s vagina three times, once with his fingers and twice with his penis. After about one hour of this struggle, S broke free and escaped to the second floor landing, but the defendant caught her there and engaged her in a headlock.

Meanwhile, Bridgeport police officer Michael Taylor had been dispatched to the scene on a report of a woman screaming. Some time after Taylor emerged from his patrol car, he heard a woman screaming for help. As he approached the building, he pointed his flashlight up the stairs to the second floor and observed the defendant holding S in a headlock. Taylor drew his gun, identified himself as a police officer, and ordered the defendant to release the victim. He repeated his order two or three times before the defendant released S. Upon being released, S ran down the stairs and Taylor noticed that her nose was bleeding heavily. He also noticed that the defendant was naked from the waist down. Taylor and his backup, Officer Roger Soltis, proceeded up the stairs and placed the defendant under arrest.

The defendant argues that his right to confront and cross-examine the state’s witnesses was unduly restricted, that his right to present a defense was violated by the trial court’s undue restriction of his direct examination of S when she was called as a defense witness, and that his rights were violated by the prosecutor’s numerous objections during defense counsel’s closing argument. We address these issues in turn.

I

The defendant first argues that the trial court unduly restricted his right to confront and cross-examine the state’s witnesses in violation of his sixth amendment right to confrontation. The trial court precluded the defendant from exploring on cross-examination three general areas of inquiry. These areas were S’s drug use and reckless lifestyle, prostitution, and motive and bias.

The federal constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const., amend. VI. A primary interest secured by the sixth amendment’s confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . .” (Citations omitted; internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995). It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof, 205 Conn. 262, 277, 533 A.2d 545 (1987). “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-examination viewed in relation to the issues actually litigated at trial. ...” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

Applying the foregoing principles to the present case, we conclude that the trial court did not unduly restrict the defendant’s cross-examination of the state’s witnesses. We begin by reviewing the defendant’s cross-examination of S.

The first area of inquiry precluded by the trial court was S’s drug use and reckless lifestyle. On cross-examination, the trial court permitted the defendant to explore S’s drug use at great length. The cross-examination focused on S’s drug use on the night of the assault, including how she smoked freebase cocaine and its effect upon her, and that she went with the defendant because she wanted to smoke more drugs. The defendant was also permitted to explore S’s intent to trade the use of her drug paraphernalia in exchange for freebase cocaine because she did not have any money. Finally, the defendant asked S whether she was under the influence of drugs at the time of her testimony. The trial court precluded the defendant from inquiring into, inter alia, with whom S resided on the day of the offense, who gave her a ride to William Street the night of the offense, how many times she smoked cocaine that day, and how many men she met while at the William Street location that night.

In the area of “prostitution,” the trial court permitted the defendant to explore on cross-examination what S was wearing the night of the assault, whether she had ever been to that area before, and whether she had ever met the defendant before that night. The trial court sustained the state’s objection to defense counsel’s question whether she dressed as she had all the time or only when she went to the William Street area.

Finally, the defendant sought to impeach S by attempting to elicit evidence of S’s bias and motive. The defendant suggested that S reported the sexual assault to explain her whereabouts to her husband. The trial court permitted the defendant to ask S whether she complained to the police about the sexual assault only because she was afraid of what her husband might think. S denied that she was so motivated. The trial court sustained the state’s objection to the question whether “this was a perfect opportunity for you to make a complaint that would not only pay back the person who you expected to get drugs from, but explain your whereabouts to your husband.”

It is clear from the record that the majority of the state’s objections and the trial court’s subsequent rulings were based on relevancy. The bases for the remainder of the trial court’s rulings are not clear from the record, but the defendant’s failure to make an adequate record precludes us from reviewing any nonrelevancy issues. “In determining the admissibility of evidence, [t]he trial court has broad discretion to determine both the relevancy and remoteness of evidence.” (Internal quotation marks omitted.) State v. Coleman, 35 Conn. App. 279, 285, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994), quoting Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. 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.” (Internal quotation marks omitted.) State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993), quoting State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986).

“In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Coleman, supra, 35 Conn. App. 285.

The trial court permitted the defendant to conduct an extensive cross-examination of S. The defendant argues that he was precluded from fully exploring S’s reliability and credibility. The trial court, however, prohibited only areas of inquiry that, at the time the testimony was elicited, were not relevant. The defendant failed to establish the significance of his lines of inquiry and the relevance of the proffered testimony. The trial court limited the scope of the defendant’s cross-examination of S because the defendant had not as yet laid the proper foundation for the three general areas of inquiry.

In reviewing the excluded areas of inquiry and the cross-examination in its entirety, we conclude that the trial court did not abuse its discretion by limiting the scope of S’s cross-examination. “It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” State v. Moynahan, 164 Conn. 560, 589, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

Our review of the entire record further reveals that the defendant’s claim that his right to cross-examine the balance of the state’s witnesses was unduly restricted is equally without merit. See State v. Kelley, 229 Conn. 557, 563, 643 A.2d 854 (1994); State v. Cooke, 42 Conn. App. 790, 795-96, 682 A.2d 513 (1996).

II

The defendant next argues that his right to present a defense was violated by the trial court’s undue restriction of his direct examination of S when she was called as a defense witness. We disagree.

“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. Davis v. Alaska, [415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)] . . . .” (Citations omitted; internal quotation marks omitted.) State v. Barnes, supra, 232 Conn. 746. It is also undisputed that the accused has an equal right under the compulsory process and due process clauses “ ‘to present a defense, 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.’ ” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Kelly, 208 Conn. 365, 375, 545 A.2d 1048 (1988). Thus, “[w]hen defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. Chambers v. Mississippi, [410 U.S. 284, 289-90, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)].” State v. Christiano, 228 Conn. 456, 474, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). It is well settled, however, that “[i]n exercising the right to present witnesses in his own defense, the defendant must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Internal quotation marks omitted.) Chambers v. Mississippi, supra, 302; State v. Kelly, supra, 375-76.

In the present case, at the trial court’s request, the defendant made an offer of proof as to the areas of inquiry he sought to explore on direct examination of S. Although the trial court ruled that the majority of the defendant’s proffered inquiry was irrelevant, it allowed the defendant to call S as a defense witness.

On direct examination, the defendant asked questions similar to those that were disallowed by the trial court on relevancy grounds during the defendant’s cross-examination of S. The trial court did permit the defendant to inquire about S’s alleged drug habit, the effect that drugs had upon her, and what she was wearing that night. The defendant was also permitted, for purposes of impeachment, to ask S how many times she told the examining doctor she was penetrated by the defendant the night of the assault. S responded that she did not remember. The remaining questions were directed toward impeachment of S and were properly precluded by the trial court. There is no evidence, nor has the defendant proffered any evidence, in support of his contention that the contested areas of inquiry were relevant. We conclude, therefore, that the trial court did not deprive the defendant of his right to present a defense.

Ill

Finally, the defendant argues that his rights to present a defense, to effective assistance of counsel, and to due process of law were violated by the prosecutor’s numerous objections during defense counsel’s closing argument. We disagree.

During the course of the defendant’s closing argument, the prosecutor objected twenty-two times. Five objections were overruled, six objections were explicitly or implicitly sustained and eleven objections were not ruled on. The defendant made three separate motions for a mistrial based on alleged prosecutorial misconduct and each was denied.

Prosecutorial misconduct can occur in the course of closing argument. State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “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 upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” State v. Ferrone, 96 Conn. 160, 169, 113 A. 452 (1921). “ ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ ” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). In order to deprive a defendant of his constitutional right to a fair trial the prosecutor’s conduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987).

It is clear from the record that defense counsel, during closing argument, improperly attempted to comment on, or to suggest an inference from, facts not in evidence. State v. Ferrone, supra, 96 Conn. 168-69. In response to the defense counsel’s remarks, the prosecutor promptly objected. The prosecutor’s objections, although numerous, were not representative of a blatant and egregious pattern of misconduct that either “deprive [d] the defendant of a fair trial ... or otherwise implicate [d] the fairness and integrity of and public confidence in the judicial proceedings.” (Citation omitted.) State v. Chance, 236 Conn. 31, 64, 671 A.2d 323 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of the use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

       In the interest of preserving the privacy of the victim, we refer to her by her first initial.

       The following colloquy took place:
      “[Defense Counsel]: And who were you residing with at the time of the—on the day in question?
      “[Prosecutor]: Objection, Your Honor.
      “The Court: Sustained.
      * * *
      “[Defense Counsel]: And who gave you a ride?
      “[S]: A friend of mine.
      “[Defense Counsel]: Male or female friend?
      “[S]: Male.
      “[Prosecutor]: Objection.
      “The Court: Sustained.
      * * *
      “[Defense Counsel]: How many men did you meet while out there in the area of William Street on that night in question?
      “[Prosecutor]: Objection.
      “The Court: Sustained.”

         The following colloquy took place:
      “[Defense Counsel]: Now, is this the clothing that you typically wore all the time or was this the clothing that you wore only when you went over to the area of William Street?
      “[Prosecutor]: Objection.
      “The Court: Sustained.”

       The following colloquy took place:
      “ [Defense Counsel]: And wasn’t this a perfect opportunity for you to make a complaint that would not only pay back the person who you expected to get drugs from, but explain your whereabouts to your husband?
      “[Prosecutor]: Objection.
      “The Court: Sustained.”

       In his brief, the defendant argues that he was denied the opportunity to make an adequate record with regard to several excluded questions. The basis of the defendant’s argument stems from the fact that the trial court ordered that all legal argument, not otherwise requested by the trial court, be conducted while the jury was in recess. The defendant did not avail himself of this opportunity to make a record outside the jury’s presence.

       During the defendant’s cross-examination of Detective Bruce Belco, the trial court, in response to an attempt by the defendant to inquire into S’s alleged drug addiction, stated: “I don’t quarrel whatever that you have every right to produce any evidence on that subject, but it would not be proper examination, cross-examination of this witness because at this juncture in the case that subject is irrelevant to what is alleged to have occurred, so understand that to be my ruling. I’m giving you full opportunity to develop it anytime during the course of your case.”

       Although the defendant makes his claim under the fourteenth amendment to the United States constituí ion and article first, § 8, of the Connecticut constitution, he has failed to support his state constitutional claim with an independent analysis. We, therefore, deem that claim to be abandoned. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Carolina, 40 Conn. App. 762, 768-69 n.7, 673 A.2d 562, cert. denied, 237 Conn. 914, 675 A.2d 886 (1996).

       The following is an example:
      “[Prosecutor]: I would object, Your Honor. He is mischaracterizing the testimony.
      “[Defense Counsel]: Your Honor, it’s a reasonable inference, that she is willing to go to an area at night and take whatever—went into an area that’s known for . . .
      “The Court: The jury has heard the case. I’ll leave it in their hands.”

       While Ferrone involved a state’s attorney’s remarks made during closing argument, the rules apply equally to both the prosecutor and the defense counsel.

       In his brief, the defendant contends that the trial court improperly admitted “constancy of accusation” evidence and sought “whatever relief is accorded to the defendant in [State v.] Troupe, [237 Conn. 284, 677 A.2d 917 (1996)].” At the time the defendant filed his brief, the Supreme Court had not ruled in Troupe. Troupe was officially released on June 11, 1996, and the Supreme Court explicitly stated that the modification of the rule announced therein applied prospectively to cases in which constancy of accusation testimony had not yet been admitted into evidence. Id., 305. As a result, Troupe does not apply to this case and, thus, the defendant’s claim will not be addressed.