Hickey v. Commissioner of Correction ( 2016 )

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DENIS HICKEY v. COMMISSIONER OF CORRECTION
(AC 37045)
Lavine, Alvord and Mihalakos, Js.
Argued October 14, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Mullins, J.)
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were David S. Shepack,
state’s attorney, and Erika L. Brookman, assistant
state’s attorney, for the appellant (respondent).
Alan Jay Black, for the appellee (petitioner).
Opinion
LAVINE, J. The respondent, the Commissioner of
Correction, appeals after the habeas court granted his
petition for certification to appeal from the court’s judg-
ment granting the amended petition for a writ of habeas
corpus filed by the petitioner, Denis Hickey. On appeal
the respondent claims, in part, that the habeas court
improperly determined that the petitioner was preju-
diced by the legal representation provided him by trial
and appellate counsel. We agree and, therefore, reverse
the judgment of the habeas court.
The following procedural history underlies the pre-
sent appeal. In June, 2009, the petitioner was convicted
of one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2) and one
count of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2). See State v. Hickey, 135 Conn.
App. 532, 534, 43 A.3d 701, cert. denied, 306 Conn. 901,
52 A.3d 728 (2012). At trial, the jury reasonably could
have found that the petitioner digitally penetrated the
anus of his then girlfriend’s five year old daughter (vic-
tim) while she and her family were living with the peti-
tioner.1 Id., 535. The petitioner was sentenced to a term
of thirty years in the custody of the respondent, execu-
tion suspended after twenty years, and thirty-five years
of probation. Id., 536.
On August 9, 2011, the self-represented petitioner
filed a petition for a writ of habeas corpus, alleging that
he received the ineffective assistance of trial counsel,
who failed to call a witness to testify on his behalf.
After this court affirmed the petitioner’s conviction, on
August 12, 2013, appointed counsel for the petitioner
filed an amended petition for a writ of habeas corpus,
alleging the ineffective assistance of trial and appellate
counsel.2 The habeas court tried the case in December,
2013, and issued its memorandum of decision on July
1, 2014. The habeas court granted the amended petition
on the ground that the petitioner’s constitutional right
to the effective assistance of trial and appellate counsel
had been violated. On July 16, 2014, the habeas court
granted the respondent’s petition for certification to
appeal.3 The respondent appealed.
The standard of review regarding a claim of ineffec-
tive assistance of trial and appellate counsel is well-
known. ‘‘Although the underlying historical facts found
by the habeas court may not be disturbed unless they
are clearly erroneous, whether those facts constituted
a violation of the petitioner’s rights under the sixth
amendment is a mixed determination of law and fact
that requires the application of legal principles to the
historical facts of this case. . . . As such, that question
requires plenary review by this court unfettered by the
clearly erroneous standard. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. Strickland v. Wash-
ington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)]. This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . It is axiomatic that the right to counsel is the
right to the effective assistance of counsel.’’ (Citation
omitted; internal quotation marks omitted.) Thiersaint
v. Commissioner of Correction, 316 Conn. 89, 100–101,
111 A.3d 829 (2015).
The petitioner’s allegations of ineffective assistance
of counsel center on trial counsel’s failure to ask the
trial court to give a cautionary instruction to the jury
at the time evidence of the petitioner’s alleged prior,
uncharged sexual misconduct was admitted into evi-
dence and to file a request to charge consistent with
State v. DeJesus, 288 Conn. 418, 476, 953 A.2d 45 (2008)
(en banc). The petitioner claims his appellate counsel
provided ineffective assistance by failing to raise the
unpreserved instructional error on appeal. To provide
the legal context for those allegations, we briefly review
the law regarding the admission of prior, uncharged
sexual misconduct evidence established by our
Supreme Court in DeJesus.
In DeJesus, our Supreme Court was called upon to
determine whether it had ‘‘the authority to reconsider
the liberal standard for the admission of uncharged
sexual misconduct evidence in sexual assault cases
despite the adoption of the code by the judges of the
Superior Court codifying the common-law rules of evi-
dence.’’4 Id., 439. In that case, the defendant ‘‘claim[ed]
that the liberal standard of admission [of uncharged
sexual misconduct evidence] should be overruled
because it is inadequate to demonstrate the existence
of a genuine plan in the defendant’s mind, and crimes
of a sexual nature are neither more secretive, aberrant
nor pathological than crimes of a nonsexual nature.
. . . [Our Supreme Court agreed] with [the defendant]
that, in light of [its] recent clarification of the nature
and scope of the common scheme or plan exception
. . . evidence of uncharged misconduct admitted
under the liberal standard ordinarily does not reflect
the existence of a genuine plan in the defendant’s mind.
Nonetheless, given the highly secretive, aberrant and
frequently compulsive nature of sex crimes, [it con-
cluded] that the admission of uncharged misconduct
evidence under the liberal standard is warranted and,
therefore, [it adopted] this standard as a limited excep-
tion to § 4-5 (a) of the [Connecticut Code of Evidence],
which prohibits the admission of [e]vidence of other
crimes, wrongs or acts of a person . . . to prove the
bad character or criminal tendencies of that person.’’
(Citation omitted; internal quotation marks omitted.)
Id., 439–40.
Our Supreme Court held that ‘‘evidence of uncharged
sexual misconduct properly may be admitted in sex
crime cases to establish that the defendant had a ten-
dency or a propensity to engage in aberrant and compul-
sive criminal sexual behavior if: (1) the trial court finds
that such evidence is relevant to the charged crime in
that it is not too remote in time, is similar to the offense
charged and is committed upon persons similar to the
prosecuting witness; and (2) the trial court concludes
that the probative value of such evidence outweighs its
prejudicial effect. . . . [P]rior to admitting evidence of
uncharged sexual misconduct under the propensity
exception . . . the trial court must provide the jury
with an appropriate cautionary instruction regarding
the proper use of such evidence.’’5 Id., 476–77.
We now turn to the relevant facts from the petitioner’s
criminal trial. Prior to trial, the state gave notice that
it would present evidence of the petitioner’s prior,
uncharged sexual misconduct through the testimony of
R.N., a cousin of the petitioner’s former wife. Defense
counsel filed a motion in limine with respect to R.N.’s
proffered testimony,6 arguing that the difference in age
between the victim and R.N. was too great for them to
be similar, that their relationships with the petitioner
were dissimilar, and that the events were not proximate
in time. State v. Hickey, supra, 135 Conn. App. 544–45.
After analyzing the proffer under the DeJesus three
prong test; see State v. DeJesus, supra, 288 Conn. 441;
the trial court ruled that the state could present R.N.’s
proffered testimony.7 State v. Hickey, supra, 545. At the
time R.N. testified in accordance with the proffer, the
court did not provide a cautionary instruction to the
jury.
Prior to the conclusion of evidence, trial counsel sub-
mitted a request to charge that included a charge on
prior, uncharged misconduct. The petitioner’s request
to charge stated in relevant part: ‘‘You have also heard
testimony in this case about what is called uncharged
misconduct. In criminal cases which contain charges
such as those in this trial, evidence of a defendant’s
commission of another offense or offenses may be
admissible and may be considered for its bearing on
any matter to which it is relevant. However, evidence
of a prior offense on its own is not sufficient to prove
[the defendant] guilty of the crimes charged in this trial.
Bear in mind as you consider this evidence that at all
times the state has the burden of proving beyond a
reasonable doubt that [the defendant] committed each
of the elements of the offenses charged in this trial. I
remind you that [the defendant] is not on trial for any
act, conduct or offense not charged in the information
for this case.’’8
The trial court charged the jury with respect to prior,
uncharged sexual conduct as follows. ‘‘In a criminal
case in which the defendant is charged with a crime
exhibiting aberrant and compulsive criminal sexual
behavior, evidence of the defendant’s commission of
another offense or offenses is admissible and may be
considered for its bearing on any matters to which it
is relevant. However, evidence of a prior offense on its
own is not sufficient to prove the defendant guilty of
the crime—crimes charged in the information. Bear in
mind, as you consider this evidence that at all times,
the state has the burden of proving that the defendant
committed each of the elements of the offense charged
in the information. I remind you that the defendant is
not on trial for any act, conduct, or offense not charged
in the information.’’9
Following his conviction, the petitioner appealed
claiming, in part, that the trial court abused its discre-
tion by admitting evidence of his prior, uncharged sex-
ual misconduct involving another minor. State v.
Hickey, supra, 135 Conn. App. 542. The petitioner
argued that the ages of the victim and R.N. were not
similar and the time of the alleged misconduct involving
R.N. and the manner in which it occurred were not
similar to the petitioner’s sexual assault on the victim.
See id., 543. This court concluded, after distinguishing
the cases cited by the petitioner in his brief, that the
trial court did not abuse its discretion by admitting
R.N.’s testimony under DeJesus. Id., 548. On direct
appeal, the petitioner did not claim that the trial court
improperly instructed the jury with respect to prior,
uncharged misconduct.
In a concurring opinion, Justice McDonald, sitting
as a judge trial referee on this court, opined that the
‘‘uncharged misconduct testimony and jury instructions
gave rise to unfair prejudice, which, being unpreserved,
as no exception was taken on these grounds and not
the subject of review on appeal or under State v. Gold-
ing, 213 Conn. 233, 567 A.2d 823 (1989), or plain error
claims by the defendant, cannot be reviewed in this
appeal.’’ State v. Hickey, supra, 135 Conn. App. 558–59
(F. McDonald, J., concurring). Justice McDonald fur-
ther stated that in DeJesus, ‘‘our Supreme Court set
forth the conditions for admission into evidence of
uncharged propensity evidence. To minimize the risk
of undue prejudice, its admission must be ‘accompa-
nied’ by an appropriate cautionary instruction to the
jury . . . .’’ Id., 559. An appropriate cautionary instruc-
tion expressly prohibits ‘‘the jury from using such evi-
dence as evidence of the bad character of the defendant,
or as evidence of a tendency to commit criminal acts
in general, or as proof that he committed the acts
charged in that case.’’ Id., 560. Justice McDonald found
that the record of the petitioner’s criminal trial dis-
closed that the trial court did not give a cautionary
instruction concerning the use of prior, uncharged sex-
ual misconduct evidence when R.N. testified. Id., 561.
The trial court gave an instruction on uncharged mis-
conduct ‘‘after the evidence was closed and before the
case went to the jury.’’ Id.
Justice McDonald disagreed with the state’s argu-
ment that the admission of the uncharged misconduct
evidence was harmless in light of the other evidence
against the petitioner and the jury instruction given by
the trial court. Id., 563. He stated that ‘‘DeJesus clearly
and repeatedly set forth the timing and requirements
of a cautionary instruction. Here, the unfair prejudice
was not minimized but any review must await, because
of defense counsel’s actions, review by habeas corpus
if undertaken for ineffective assistance of counsel.’’ Id.
Thereafter, the petitioner filed a petition for certifica-
tion to appeal, which was denied by our Supreme Court.
State v. Hickey, 306 Conn. 901, 52 A.3d 728 (2012).
After the petitioner’s conviction was affirmed, the
petitioner’s appointed habeas counsel amended the
habeas petition the petitioner filed in 2011, to allege,
in relevant part, that trial counsel rendered deficient
performance by ‘‘fail[ing] to ask the trial judge to
instruct the jury concerning prior bad acts and the uses
a jury could make of them immediately after the evi-
dence was introduced’’; ‘‘fail[ing] to object to an inade-
quate jury instruction concerning evidence of prior
uncharged conduct introduced at trial’’; and ‘‘fail[ing]
to posit an adequate jury instruction that would limit
the use of the evidence to the issue of propensity and
one that would instruct the jury on the uses of bad
character as a tendency to commit criminal acts in
general.’’ The amended petition also alleged, in relevant
part, that appellate counsel rendered ineffective assis-
tance by failing to ‘‘raise the deficient jury instruction
on appeal . . . .’’
In its memorandum of decision, the habeas court
made the following relevant factual findings and legal
conclusions. With respect to the petitioner’s trial coun-
sel, the court found that he filed a motion in limine to
preclude R.N.’s testimony, which was denied by the
trial court. During trial, however, trial counsel did not
ask the court to provide a cautionary instruction to the
jury immediately prior to or after R.N. testified about
the petitioner’s prior, uncharged sexual misconduct.
Moreover, the habeas court found that trial counsel’s
request to charge as to prior, uncharged sexual miscon-
duct did not limit the use of such evidence to the issue
of propensity. The habeas court found that the only
instruction the trial court gave the jury with respect
to the uncharged misconduct came after the close of
evidence and before the case went to the jury, and that
the instruction ‘‘did not limit the use of the evidence
to the issue of propensity.’’ The habeas court concluded
that trial counsel’s failure to request the appropriate
cautionary jury instruction at the proper times consti-
tuted deficient performance.
The habeas court also found that the petitioner had
satisfied his burden of demonstrating prejudice because
‘‘there is a reasonable probability that the outcome of
the proceedings would have been different had it not
been for [trial counsel’s] deficient performance.’’ The
habeas court quoted the summary of R.N.’s testimony
as set forth in the concurring opinion of State v. Hickey,
supra, 135 Conn. App. 559, but it did not refer to other
evidence presented at the petitioner’s criminal trial.
Rather, the habeas court concluded that in DeJesus,
our Supreme Court ‘‘stressed that it was adopting ‘a
limited exception to the prohibition on the admission
of uncharged misconduct evidence in sexual assault
cases to prove that the defendant had a propensity
to engage in aberrant and compulsive criminal sexual
behavior’; State v. DeJesus, supra, [288 Conn.] 422; and
‘to minimize the risk of undue prejudice to the defen-
dant, the admission of evidence of uncharged sexual
misconduct under the limited propensity exception
adopted herein must be accompanied by an appropriate
cautionary instruction to the jury.’ . . . Id., 474.’’
(Emphasis altered.) The habeas court stated that ‘‘while
the court’s instruction in the petitioner’s case was based
on language from DeJesus, it did not follow all of the
timing and content requirements of a cautionary
instruction repeatedly set forth by the DeJesus court.
Given the impact this uncharged sexual misconduct
evidence likely had in the petitioner’s case, the court
finds that there is a reasonable probability that the
outcome of the proceedings would have been different
had it not been for [trial counsel’s] deficient perfor-
mance.’’ (Emphasis added.) The court, therefore,
granted the petition for a writ of habeas corpus on the
ground of ineffective assistance of trial counsel.
The habeas court also found that the petitioner’s
appellate counsel rendered ineffective assistance ‘‘in
failing to challenge the trial court’s jury instruction con-
cerning uncharged sexual misconduct.’’ The habeas
court concluded that appellate counsel’s failure to
include a claim of improper jury instruction on appeal
constituted deficient performance and that the peti-
tioner was prejudiced thereby. In coming to that conclu-
sion, the habeas court cited Justice McDonald’s
concurring opinion in the petitioner’s direct appeal.10
The habeas court stated that the petitioner’s claims as
to his appellate counsel must also be granted.
On the basis of having found that both the petitioner’s
trial and appellate counsel rendered ineffective assis-
tance that was prejudicial, the habeas court granted
the amended petition for a writ of habeas corpus. There-
after, the habeas court granted the respondent’s petition
for certification to appeal. The respondent appealed.
On appeal, the respondent claims that the habeas
court improperly found that (1) trial counsel rendered
ineffective assistance because (a) the petitioner did not
establish that trial counsel did not have a reasonable
strategic reason for not requesting a limiting instruction
at the time of R.N.’s testimony, (b) the trial court’s
instruction was consistent with DeJesus and counsel
reasonably could have chosen not to request that the
instruction limit the use of the evidence to propensity,
and (c) any deficiency did not prejudice the petitioner;
and (2) appellate counsel rendered ineffective assis-
tance because (a) he reasonably could have chosen not
to raise an unpreserved challenge to a jury instruction
that adhered to DeJesus and the model charge, and (b)
any deficiency of appellate counsel did not prejudice
the petitioner. We agree with the respondent that the
habeas court improperly concluded that the petitioner
suffered prejudice due to the allegedly deficient perfor-
mance of his trial and appellate counsel.11
Claims of ineffective assistance of counsel are gov-
erned by the two pronged test set forth in Strickland
v. Washington, supra, 466 U.S. 687. ‘‘Under Strickland,
the petitioner has the burden of demonstrating that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings would have been different had it not been for
the deficient performance.’’ (Internal quotation marks
omitted.) Thiersaint v. Commissioner of Correction,
supra, 316 Conn. 101.
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Internal quotation marks omitted.) White
v. Commissioner of Correction, 145 Conn. App. 834,
841–42, 77 A.3d 832, cert. denied, 310 Conn. 947, 80
A.3d 906 (2013).
In the present case, the habeas court concluded that
trial and appellate counsel rendered ineffective assis-
tance that was prejudicial to the petitioner. In reaching
its conclusion that the petitioner suffered prejudice,
however, the habeas court neglected to substantiate its
conclusions with a factual analysis of how the trial
court’s failure to give a cautionary instruction at the
time R.N. testified and to give a propensity instruction
at the close of evidence misled the jury, or resulted in
an unfair trial or reasonable doubt as to the petitioner’s
guilt. ‘‘[T]o determine whether a habeas petitioner had
a reasonable probability of prevailing on appeal, a
reviewing court necessarily analyzes the merits of the
underlying claimed error in accordance with the appro-
priate appellate standard for measuring harm. See, e.g.,
Turner v. Duncan, [158 F.3d 449, 459 (9th Cir. 1998)]
(assessing likelihood that claim of improper instruction
would have been successful if raised on appeal by appel-
late counsel) . . . .’’ (Citations omitted.) Small v. Com-
missioner of Correction, 286 Conn. 707, 722, 946 A.2d
1203, cert. denied sub nom. Small v. Lantz, 555 U.S.
975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
‘‘A court hearing an ineffectiveness claim must con-
sider the totality of the evidence before the judge or
jury. . . . [A] court making the prejudice inquiry
must ask if the [petitioner] has met the burden of show-
ing that the decision reached would reasonably likely
have been different absent the errors.’’ (Emphasis
added; internal quotation marks omitted.) Woods v.
Commissioner of Correction, 85 Conn. App. 544, 550,
857 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696
(2004). ‘‘Only those habeas petitioners who can prove
under Strickland . . . that they have been denied a
fair trial by the gross incompetence of their attorneys
will be granted the writ . . . .’’ Kimmelman v. Mor-
rison, 477 U.S. 365, 382, 106 S. Ct. 2574, 91 L. Ed. 2d
305 (1986). Here, the habeas court concluded that the
trial court’s failure to give a propensity charge likely
caused the petitioner prejudice, but in reaching that
conclusion, the court did not assess the charge in the
context of the state’s evidence or the final arguments
of counsel. Nor did it assess how the trial court’s failure
to give a cautionary charge when R.N. testified likely
caused prejudice to the petitioner in view of the other
evidence in the case.
‘‘The standard of review for claims of instructional
impropriety is well established. [I]ndividual jury
instructions should not be judged in artificial isolation,
but must be viewed in the context of the overall charge.
. . . The pertinent test is whether the charge, read in
its entirety, fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law. . . . Thus, [t]he whole
charge must be considered from the standpoint of its
effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error.’’ (Internal quotation
marks omitted.) State v. Wallace, 290 Conn. 261, 272,
962 A.2d 781 (2009). When considering whether the
court’s jury instructions misled the jury, a reviewing
court must examine the charge given in the context
of the evidence presented at trial. See Buchanan v.
Angelone, 522 U.S. 269, 277–79, 118 S. Ct. 757, 139 L.
Ed. 2d 702 (1998); State v. Santiago, 305 Conn. 101,
265–66, 49 A.3d 566 (2012). ‘‘[A]n [impropriety] in
instructions in a criminal case is reversible [impropri-
ety] when it is shown that it is reasonably possible for
[improprieties] of constitutional dimension or reason-
ably probable for nonconstitutional [improprieties] that
the jury [was] misled.’’ (Internal quotation marks omit-
ted.) State v. Cutler, 293 Conn. 303, 317, 977 A.2d 209
(2009).
The habeas court failed to analyze the trial court’s
charge with respect to prior, uncharged misconduct
and to explain how its use prejudiced the petitioner.
The charge given by the trial court conformed to the
example provided by our Supreme Court in State v.
DeJesus, supra, 288 Conn. 474 n.36, and the charge the
trial court found on the judicial branch website.12 The
habeas court made no finding that the jury was misled
or that the jury failed to follow the instruction provided
by the trial court.13
Moreover, our Supreme Court has instructed that the
trial court is to give a cautionary instruction regarding
prior, uncharged sexual misconduct at the time of the
testimony to reduce the risk of undue prejudice. In the
present case, the trial court did not give the cautionary
instruction and the petitioner’s trial counsel did not
bring the omission to the attention of the trial court.
In concluding that the petitioner was prejudiced by the
performance of his trial counsel, the habeas court did
not assess the risk of undue prejudice posed by R.N.’s
testimony, particularly in the face of the medical testi-
mony that substantiated the victim’s sexual abuse. The
habeas court merely assumed that R.N.’s testimony
likely prejudiced the petitioner. Also, the habeas court
failed to assess how the petitioner was prejudiced by
the trial court’s failure to give a cautionary instruction at
the time the prior, uncharged misconduct was admitted.
The habeas court failed to analyze trial counsel’s defi-
cient performance in the context of the entire trial,
including the evidence and arguments of counsel. Due
to the habeas court’s failure to perform the required
analysis, it improperly concluded that trial counsel’s
deficient performance prejudiced the petitioner.
As to the habeas court’s conclusion that appellate
counsel’s deficient performance resulted in prejudice,
the habeas court did not include an analysis of prejudice
the petitioner sustained in its memorandum of decision.
The court properly noted that for a petitioner to prevail
on a claim of ineffective assistance of appellate counsel,
‘‘the petitioner must establish (1) that his appellate
counsel’s performance fell below the required standard
of reasonable competence or competence displayed by
lawyers with ordinary training and skill in the criminal
law, and (2) that this lack of competency contributed
so significantly to the affirmance of his conviction as
to have deprived him of a fair appeal, thus causing an
unreliable conviction to stand. . . . Tillman v. Com-
missioner of Correction, 54 Conn. App. 749, 756, 738
A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d 1250
(1999).’’ (Internal quotation marks omitted.)
‘‘For claims of ineffective appellate counsel, the sec-
ond prong considers whether there is a reasonable prob-
ability that, but for appellate counsel’s failure to raise
the issue on appeal, the petitioner would have prevailed
in his direct appeal, i.e., reversal of his conviction or
granting of a new trial.’’ (Internal quotation marks omit-
ted.) Moore v. Commissioner of Correction, 119 Conn.
App. 530, 535, 988 A.2d 881, cert. denied, 296 Conn. 902,
991 A.2d 1103 (2010). In the present case, the habeas
court should have explained why there is a reasonable
probability that the petitioner would have prevailed in
his direct appeal if appellate counsel had raised a claim
related to the trial court’s failure to give a cautionary
instruction pursuant to DeJesus.
With respect to appellate counsel, the habeas court
concluded that he rendered ineffective assistance
because he had no strategic reason for not raising the
timing or content of the jury charge. But counsel’s fail-
ure to raise the claim is not determinative. As Justice
McDonald noted in his concurrence in State v. Hickey,
supra, 135 Conn. App 559, the claimed error in the jury
instruction was not preserved at trial, and therefore
could not be reviewed pursuant to State v. Golding,
supra, 213 Conn. 239–40, or the plain error doctrine.
See Practice Book § 60-5. ‘‘[T]he failure of the trial court
to give a limiting instruction concerning the use of evi-
dence of prior misconduct is not a matter of constitu-
tional magnitude.’’ (Internal quotation marks omitted.)
State v. Ortiz, 40 Conn. App. 374, 381, 671 A.2d 389,
cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). If the
instructional claims could not have been reviewed on
direct appeal, ipso facto appellate counsel’s failure to
raise the claim could not have resulted in prejudice to
the petitioner. A trial court’s failure to give a limiting
instruction concerning the use of evidence of prior mis-
conduct is not a matter of constitutional magnitude;
State v. Lynch, 123 Conn. App. 479, 499, 1 A.3d 1254
(2010); such claims therefore fail the second prong of
Golding. Such an instructional claim also is not amena-
ble to reversal under the plain error doctrine as it does
not implicate the fairness and integrity of the judicial
process as a whole. Id. The habeas court, therefore,
improperly determined that the petitioner’s appellate
counsel rendered deficient performance that prejudiced
the petitioner.
In conclusion, we reverse the judgment of the habeas
court. With respect to the petitioner’s trial counsel,
the court failed to provide an analysis of prejudice the
petitioner sustained as a consequence of trial counsel’s
deficient performance. We, therefore, remand the mat-
ter for further proceedings as to trial counsel. As to
appellate counsel, the habeas court improperly con-
cluded that his performance was prejudicial to the peti-
tioner.
The judgment is reversed and the case is remanded
with direction to deny the petition for a writ of habeas
corpus as to appellate counsel and for a new trial with
respect to the petition for a writ of habeas corpus as
to trial counsel.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
The amended petition also alleged the existence of newly discovered
evidence. There is no mention of that claim in the habeas court’s memoran-
dum of decision or in either parties’ brief on appeal. We therefore assume
that that claim was abandoned by the petitioner in the habeas court and,
therefore, decline to address it.
3
After the respondent appealed, the petitioner filed a motion to terminate
the automatic appellate stay imposed on the execution of the judgment of
conviction imposed when the appeal was filed. The habeas court, Cobb, J.,
denied the motion to terminate the automatic stay. The petitioner filed a
motion for review of the denial of his motion to terminate the automatic stay.
This court granted the motion for review but denied the relief requested.
4
The relevant certified question in DeJesus was: ‘‘Does this court, or any
court have the authority in light of the Connecticut Code of Evidence, to
reconsider the rule that the introductions of prior sexual misconduct of the
defendant in sexual assault cases, is viewed under a relaxed standard?’’
State v. DeJesus, 279 Conn. 912, 903 A.2d 658 (2006).
5
Footnote 36 in DeJesus states: ‘‘The precise content of such an instruc-
tion is beyond the scope of the present appeal. We note, however, that the
following instruction regarding the admission of evidence of uncharged
misconduct under rule 413 of the Federal Rules of Evidence . . . has been
approved by the Tenth Circuit Court of Appeals: In a criminal case in which
the defendant is [charged with a crime exhibiting aberrant and compulsive
criminal sexual behavior], evidence of the defendant’s commission of
another offense or offenses . . . is admissible and may be considered for
its bearing on any matter to which it is relevant. However, evidence of a
prior offense on its own is not sufficient to prove the defendant guilty of
the crimes charged in the [information]. Bear in mind as you consider this
evidence [that] at all times, the government has the burden of proving that
the defendant committed each of the elements of the offense charged in
the [information]. I remind you that the defendant is not on trial for any
act, conduct, or offense not charged in the [information].’’ (Citation omitted;
emphasis added; internal quotation marks omitted.) State v. DeJesus, supra,
288 Conn. 474 n.36. But see footnote 8 of this opinion.
Rule 413 (a) of the Federal Rules of Evidence provides: ‘‘In a criminal
case in which the defendant is accused of an offense of sexual assault,
evidence of the defendant’s commission of another offense or offenses of
sexual assault is admissible, and may be considered for its bearing on any
matter to which it is relevant.’’
Rule 414 (a) of the Federal Rules of Evidence provides: ‘‘In a criminal
case in which the defendant is accused of an offense of child molestation,
evidence of the defendant’s commission of another offense or offenses of
child molestation is admissible, and may be considered for its bearing on
any matter to which it is relevant.’’
6
R.N., a cousin of the petitioner’s spouse at the time, testified that she
baby-sat for the petitioner’s children in the spring or summer of 1999, when
she was twelve or thirteen years old. State v. Hickey, supra, 135 Conn. App.
543. She testified that the petitioner ‘‘touched her on three separate occasions
while she was sleeping at the [petitioner’s] house.’’ Id., 543–44. R.N. fre-
quently baby-sat at night and slept in her clothes on the couch. The first
time the petitioner touched R.N., she was sleeping on the couch when she
woke up and saw the petitioner’s hand on her breast. The second time the
petitioner touched R.N., she woke up and found that the petitioner’s hand
was ‘‘down her pants’’ in the area of her vagina and her ‘‘jeans were unbut-
toned and unzipped.’’ In each of the first two instances, R.N. rolled over,
and the petitioner retreated to his room. The third time the petitioner touched
R.N., she awoke and found the petitioner’s hand in her underwear, in her
vagina. When she rolled over, the petitioner ran his hand down her leg and
asked if she was cold. He then put more pellets in the pellet stove.
7
Trial counsel objected to R.N.’s testimony regarding the petitioner’s prior,
uncharged sexual misconduct.
8
Our plenary review of the record disclosed the following colloquy
between trial counsel and the court regarding the court’s proposed charge.
‘‘The Court: All right. And then we go to the issue of the—I will term it
the DeJesus charge on propensity evidence. I know that in chambers the
defense had an objection to some of the language.
‘‘Trial counsel: Yes, Your Honor, specifically, to the aberrant and compul-
sive behavior language. I have requested that in criminal cases, which contain
charges such as those in this trial, evidence of the defendant’s commission
of another offense may be considered and so forth. My objection is to the
compulsive language—aberrant and compulsive criminal sexual behavior
because that modifies in a criminal case in which the defendant is charged
. . . with one—two offenses, but one incident here. I don’t think that quali-
fies as compulsive, Your Honor.
‘‘The Court: Does the state want to be heard?
‘‘Assistant State’s Attorney: Well, this is obviously new ground, and this
is the DeJesus instruction—the canned instruction that’s recommended by
the judicial website, and so because it’s such a new area, the state would
ask the court to follow the judicial canned website.
‘‘I would point out, I guess, that it is equally plausible for the jury to
consider that the crime with which the defendant is charged is not aberrant
and compulsive and so it almost allows them to make the decision that
it’s not aberrant and compulsive and therefore they can disregard all the
misconduct evidence. That’s perhaps another reading of that, which inures
to the defendant’s benefit.
‘‘Trial counsel: Well, if I may, Your Honor, I believe the instruction as
offered here, or as proposed here, labels this as aberrant and compulsive
criminal behavior.
‘‘The Court: Well, they say a crime exhibiting aberrant and compulsive
sexual behavior. It’s—it is uncharted territory, this is the language that came
from the case. I think the case, in terms of—it was one—it was one victim,
I know there were—obviously, there was prior misconduct evidence, but
it wasn’t as if there were multiple offenses, it was one offense of kidnapping
and sexual assault, I think, in . . . DeJesus. So they allowed this language
to come from that fact pattern. So the court is going to allow it to stand.
‘‘Trial counsel: Again, objection, Your Honor.’’
At the present time, the model jury instruction regarding evidence of
prior, uncharged sexual misconduct states: ‘‘When the defendant is charged
with criminal sexual behavior, evidence of the defendant’s commission of
another offense or offenses is admissible and may be considered if it is
relevant to prove that the defendant had the propensity or a tendency to
engage in the type of criminal sexual behavior with which (he/she) is charged.
However, evidence of a prior offense on its own is not sufficient to prove
the defendant guilty of the crimes charged in the information. Bear in mind
as you consider this evidence that at all times, the state has the burden of
proving that the defendant committed each of the elements of the offense
charged in the information. I remind you that the defendant is not on trial
for any act, conduct, or offense not charged in the information.’’ Connecticut
Criminal Jury Instructions (4th Ed. Rev. 2015) § 2.6-13, available at http://
www.jud.ct.gov/ji/Criminal/part2/2.6-13.htm (last visited January 15, 2016).
‘‘The phrase ‘aberrant and compulsive sexual behavior’ was changed to
‘criminal sexual behavior.’ The latter phrase was thought to be more neutral
and less prejudicial.’’ http://jud.ct.gov/ji/Criminal/changes.htm.
9
We note a transcription error in the habeas court’s memorandum of
decision regarding the court’s charge. The memorandum of decision states
‘‘may be considered for its bearing on any matter to which it is not relevant.’’
(Emphasis added.)
10
In Gibson v. Commissioner of Correction, 118 Conn. App. 863, 876 n.5,
986 A.2d 303, cert. denied, 295 Conn. 919, 991 A.2d 565 (2010), this court
made a point of noting the different procedural postures and standards of
review between an issue raised on direct appeal and one in a petition for
a writ of habeas corpus. ‘‘[T]he burden that the petitioner must sustain for
a favorable outcome on his ineffective assistance of counsel claim is a higher
one than he would have had to sustain had the actual merits of the same
issue been raised on direct appeal. . . . A reviewing court must be highly
deferential to counsel’s decision and judge the action from counsel’s perspec-
tive at the time.’’ (Citation omitted; internal quotation marks omitted.) Nieves
v. Commissioner of Correction, 51 Conn. App. 615, 621, 724 A.2d 508, cert.
denied, 248 Conn 905, 731 A.2d 309 (1999).
11
By resolving the present appeal on the basis of prejudice, we take no
position as to whether the habeas court properly found that the performance
of the petitioner’s trial and appellate counsel was deficient.
12
The habeas court also failed to consider the model prior sexual miscon-
duct charge which was amended in 2013.
13
The habeas court found that trial counsel did not provide a strategic
reason why he did not challenge the charge given by the trial court, although
the respondent contends that trial counsel was never asked. Appellate courts
do not make findings of fact, but it does not escape our notice that during
the charging conference trial counsel argued against the inclusion of the
words aberrant and compulsive in the trial court’s charge. See footnote 8
of this opinion. From our review of the record, it does not appear that the
record of the charging conference was addressed at the habeas trial.