State v. Manini

¶1dissenting. I do not agree with the majority’s opinion as it relates to the rape shield statute.

¶2I

¶3The trial court record does not raise a rape shield question and, therefore, this appeal is not a proper vehicle for construing that statute.

¶4The procedure for raising a rape shield question is clearly set forth in the statute. When a defendant seeks the benefit of one of the statutory exceptions, he must make a motion containing an offer of proof. Lacking the requisite motion, the statutory prohibition against admission of evidence of sexual conduct remains in effect and bars admission of such evidence. Examination of the trial court file discloses that the defendant never made the mandated motion, either in writing or orally.

¶5The defendant was attempting to impeach the victim’s credibility by cross-examining her concerning psychiatric records pertaining to prior rape claims. The state objected. Following argument in the jury’s absence, the trial court sustained the objection, ruling that, because of the rape shield statute, the defendant could not question the complainant about “the subject.”

¶6Whatever the ruling of the trial court, it was not the result of an exercise of its discretion after a rape shield *120hearing held pursuant to a motion. This is an attempt to bring the rape shield statute in through the side door and should not be allowed.

¶7II

¶8Even if the defendant had properly raised the rape shield issue at trial, I would still dissent because of the majority’s creation of the requirement of a preliminary showing of relevancy before a trial court may order an evidentiary hearing.

¶9First, the issue of a preliminary showing of relevancy as a prerequisite to a hearing under General Statutes § 54-86f was not raised in the trial court, nor was it argued or briefed by the parties on appeal. It is axiomatic, with exceptions not relevant here, that we will not determine issues not distinctly raised in the trial court and preserved for review. Madison Hills Ltd. Partnership II v. Madison Hills, 35 Conn. App. 81, 83, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). In Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994), the Supreme Court reversed a decision of this court because it addressed an issue sua sponte “rather than at the behest of one of the parties, thereby depriving the parties of an opportunity to brief the issue.” Although Lynchwas a civil jury case, we should learn from its strongly worded rebuke. Lynchis an extension of Lo Sacco v. Young, 210 Conn. 503, 509, 555 A.2d 986 (1989), in which we were reversed for considering a procedural issue sua sponte. We should not consider an issue of this magnitude that has not been fully explored, both in the trial court and by the parties on appeal. See Jaser v. Jaser, 37 Conn. App. 194, 196-97 n.2, 655 A.2d 790 (1995).

¶10Second, even if I could be convinced that the matter is properly considered sua sponte by this court, I am not persuaded by the merits of the majority opinion. I commence my analysis with the established common *121law evidentiary principle that all evidence is admissible unless there is a rule that expressly excludes it. Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998 (1895); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 6. Absent a statute, sexual conduct evidence had been admissible in Connecticut. This changed in 1982 when the rape shield statute was enacted. General Statutes § 54-86f1 makes such evidence “admissible only after a hearing on a motion to offer such evidence containing an offer of proof.” (Emphasis added.) Statutes in derogation of the common law must be strictly construed. Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 513, 642 A.2d 709 (1994).

¶11Because of the enactment of the rape shield law, “evidence of the sexual history of a sexual assault victim is now admissible only in clearly and narrowly defined circumstances established in a separate hearing.” State v. Rothenberg, 195 Conn. 253, 259-60, 487. A.2d 545 (1985). Policies underlying this law include protecting the victim's sexual privacy and shielding the victim from undue harassment, encouraging reports of sexual assault and enabling the victim to testify in court with less fear of embarrassment. State v. Rinaldi, 220 Conn. 345, 346, 599 A.2d 1 (1991); State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

¶12The statute is clear and unambiguous; a defendant who seeks to qualify evidence under one of the four statutory exceptions must make a motion containing an offer of proof. The trial court is directed to hold a hearing on the motion and “[i]f, after hearing, the court finds that the evidence meets the requirements of [the statute] and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may *122grant the motion.” (Emphasis added.) General Statutes § 54-86f. Nowhere in the statute is the trial court given authority to exercise discretion concerning exclusion or admission until after the hearing. Yet, the majority creates a condition precedent to the statutorily mandated hearing on the motion containing an offer of proof.

¶13Denying the defendant a hearing on his offer of proof is contrary to the established law of the state. We determined that a defendant has the right to make an offer of proof in State v. Zoravali, 34 Conn. App. 428, 433, 621 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994), where we held that “[t]he trial court improperly denied the defendant’s request to make an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review. . . . State v. Lussier, 7 Conn. App. 528, 531, 509 A.2d 81 (1986). The appellant bears the burden of providing an adequate appellate record through the offer of proof, among other vehicles. State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993) (noting rules of practice through which appellant ensures adequate record). A trial court cannot prevent a defendant from doing so. State v. Lussier, supra, 532 (noting that trial court could not have prevented defendant from making offer of proof).” (Internal quotation marks omitted.)

¶14Recognizing the personal and sensitive nature of the evidence that may be involved in the hearing, the statute wisely provides that the hearing may be held in camera.2 The majority goes beyond the statute and grants *123additional protection for the victim by providing that even before the hearing takes place, in camera or in open court, the defendant must establish a preliminary showing of the relevancy of the evidence. I find no justification in our statute or case law for what is, in effect, requiring an offer of proof to make an offer of proof.

¶15I appreciate the majority’s sincerity and well-intentioned purpose, but it is not the function of courts to revise statutes. Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1995). We must interpret them as written. Zachs v. Groppo, 207 Conn. 683, 690, 542 A.2d 1145 (1988). Where the language of a statute is clear and unambiguous, the court may not by construction substitute its own idea of what might be a wise provision. First Bethel Associates v. Bethel, 231 Conn. 731, 739, 651 A.2d 1279 (1995). It is not the function of courts to read into clearly expressed legislation provisions that do not find expression in its words. Plasticrete Block & Supply Corp. v. Commissioner of Revenue Services, 216 Conn. 17, 27, 579 A.2d 20 (1990). This court must construe the statute without reference to whether we feel that the law might have been improved by the inclusion of other provisions. Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989). It is our duty to apply the law, not to make it. Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987); see generally 20 Am. Jur. 2d, Courts § 64 (1995). “ ‘The intent of the legislature, as [the Supreme Court] has repeatedly observed, is to be found not in what the legislature meant to say but in the meaning of what it did say.’ ” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441, 623 A.2d 1007 (1993), quoting Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981).

¶16The majority lists nine Connecticut cases in which a defendant moved to introduce evidence of the victim’s *124prior sexual conduct under the rape shield statute and points out that without exception the trial courts allowed an evidentiary hearing to determine the admissibility of the evidence. I submit that those decisions followed the law as written and that it was understood that no attempt could be made to inject a new requirement.

¶17Third, the cases from sibling jurisdictions relied on by the majority do not support its position. The Idaho statute, for example, does not contain an offer of proof requirement. The preliminary showing of reasonable cause, judicially adoptedin that state, serves essentially the same purpose as the offer of proof requirement, which our legislature added in 1983.3 For us to superimpose the requirement of a preliminary showing of relevancy in addition to the statutory offer of proof would establish an unwarranted second obstacle to a defendant’s right of cross-examination. State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990).

¶18Fourth, the preliminary showing of relevancy requirement as a prerequisite to a hearing on a defendant’s offer of proof is contrary to prior decisions of this court. Earlier in this opinion, I pointed out that we have held that a party may not be denied a hearing on an offer of proof. State v. Zoravali, supra,34 Conn. App. 433; State v. Lussier, supra,7 Conn. App. 532. If we are going to overrule those cases, we should do it only after a thoroughly briefed and argued appeal based on a proper trial court record.

¶19For the foregoing reasons I respectfully dissent from the majority opinion and would affirm the judgment of the trial court.