Giattino v. Commissioner of Correction ( 2016 )

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RICHARD GIATTINO v. COMMISSIONER
OF CORRECTION
(AC 37496)
Lavine, Keller and Flynn, Js.
Submitted on briefs September 14—officially released December 6, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Jennifer B. Smith, assigned counsel, filed a brief for
the appellant (petitioner).
Maureen Platt, state’s attorney, Leon F. Dalbec, Jr.,
senior assistant state’s attorney, and Eva B. Lenczew-
ski, supervisory assistant state’s attorney, filed a brief
for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Richard Giattino, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. He claims
that the habeas court erred when it (1) declined to
conduct an in camera review of school records per-
taining to the victim1 of the underlying crimes; and (2)
rejected the petitioner’s claim that his criminal trial
counsel rendered ineffective assistance. We decline to
reach the merits of the petitioner’s first claim, and con-
clude that the habeas court did not err with regard to
the second claim. We therefore affirm the judgment of
the habeas court.
In 2011, the petitioner was convicted, following a trial
to the court, Prescott, J., of two counts of sexual assault
in the second degree in violation of General Statutes
§ 53a-71 (a) (1),2 and one count of injury or risk of injury
to, or impairing the morals of, a child in violation of
General Statutes § 53-21 (a) (2).3 Aside from concluding
that the prosecution proved each element of the crimes
beyond a reasonable doubt, the trial court did not set
forth detailed factual findings in rendering its determi-
nation of guilt. On the basis of its findings, however,
we can conclude that the trial court was persuaded by
evidence of the following facts.
The petitioner married the victim’s mother in 2009
and shortly thereafter began residing with her and her
family. During the relevant time period, the petitioner,
the victim’s mother, the victim, and the victim’s three
younger siblings all occupied a three bedroom apart-
ment in Naugatuck. The petitioner was then forty-eight
or forty-nine years old, and the victim was fourteen
years old. The victim’s boyfriend, Brandon Jones, then
seventeen years old, and a family friend, Scott Beasley,
also lived with the family in the apartment for substan-
tial periods of time.
At the beginning of the marriage between the peti-
tioner and the victim’s mother, the victim’s relationship
with the petitioner was, by the victim’s account, warm
and close. The victim, who had no relationship with
her biological father, considered the petitioner ‘‘like my
father figure.’’ The petitioner would take the victim and
her siblings for rides on his motorcycle and to a park
to play. The victim would confide in the petitioner about
personal problems, such as if she had an argument with
her boyfriend.
That relationship, however, soon began to change.
One day the petitioner approached the victim to talk
about sex. As the victim later testified at trial: ‘‘[the
petitioner] would say that he wanted to talk to me about
having sex because . . . I was a virgin, and he wanted
me to not be scared for the situations that I would have
when I was older and I did start having sex.’’ The victim
testified that as a result of this conversation she ‘‘was
in shock . . . cause I really didn’t think that he would
say something like that . . . cause I considered him
like my father.’’
The petitioner then took things further. During one
instance in which he approached the victim and started
to talk about sex, the petitioner began kissing the victim
on her mouth and breasts, stopping only when her
mother entered the house. The victim described several
more instances of sexual contact with the petitioner.
The second instance occurred when the victim stepped
out of the shower to find the petitioner standing in
the bathroom. The petitioner began kissing the victim’s
mouth and breasts and inserted his fingers into her
vagina. The third incident occurred as the victim was
changing clothes in the bathroom. The petitioner
entered and again began kissing the petitioner’s mouth
and breasts and digitally penetrated her. The fourth
incident occurred when the victim was again in the
bathroom, this time arranging her hair and texting on
her phone. As the victim was sitting on the toilet, the
petitioner entered the bathroom and approached her.
After a few moments, the petitioner exposed his penis
and, as the victim testified, ‘‘pushed [her] head forward
and . . . made [her] move [her] mouth on his penis.’’
The victim testified that she did not remember any of
the dates on which the incidents occurred, but that they
all happened in the ‘‘summertime’’ of 2009.4 She later
testified that ‘‘[i]t was at . . . the end of the summer-
time that this all started that we were just starting to
go back to school.’’ When asked by the court whether
‘‘summertime’’ meant ‘‘like, August,’’ the victim
responded affirmatively.
The victim reported the abuse to Jones and then to
her mother. The victim’s mother forced the petitioner
to leave the apartment. Shortly thereafter, the victim’s
mother took the victim to the family’s nurse prac-
titioner, Judy Moskal-Kanz, for a physical examination.
The victim recounted the sexual abuse to Moskal-Kanz.
Moskal-Kanz did not find any physical evidence of sex-
ual abuse as a result of the physical examination. After
the appointment with Moskal-Kanz, the victim reported
the abuse to a detective at the Naugatuck Police Depart-
ment and an investigator with the Department of Chil-
dren and Families (department).
The petitioner was represented at trial by public
defender Tashun Bowden-Lewis. The prosecution’s
case-in-chief consisted of testimony from the victim,
the victim’s mother, Jones, Beasley, Moskal-Kanz, and
the department investigator. The petitioner’s case-in-
chief consisted solely of his own testimony, in which
he denied the allegations. In closing argument, the peti-
tioner highlighted inconsistencies in the victim’s testi-
mony and prior statements, as well as the lack of any
physical evidence of abuse. The petitioner also con-
tended that the victim had fabricated the charges to
retaliate against the petitioner because he had earlier,
along with the victim’s mother, ordered Jones to move
out of the apartment. After a two day trial, the court
found the petitioner guilty of the previously discussed
three counts. The court sentenced the petitioner to a
total effective term of twenty years imprisonment, exe-
cution suspended after twelve years, and twenty years
of probation.
In 2014, the petitioner, represented by Attorney Jason
C. Goddard, filed an amended petition for a writ of
habeas corpus, wherein the petitioner alleged that his
criminal trial counsel rendered ineffective assistance
by, inter alia, failing to obtain records pertaining to the
victim, including the victim’s school records, in addition
to other alleged failures in the pretrial investigative
process. After a trial, the habeas court, Fuger, J., for
reasons detailed below, denied the petition but granted
the petitioner certification to appeal. The petitioner
then brought the present appeal.
I
The petitioner first claims that the habeas court erred
when it declined to conduct an in camera review of the
victim’s school records. The respondent, the Commis-
sioner of Correction, argues, however, that the habeas
court merely issued a preliminary denial as to the school
records, and that because the petitioner did not renew
his motion for an in camera review, the petitioner failed
to preserve the issue for appeal. We agree with the
respondent, and accordingly decline to review the mer-
its of this claim.
The following additional information is relevant to
our discussion. Prior to the habeas trial, the petitioner
filed a motion with the habeas court requesting disclo-
sure of, inter alia, ‘‘[a]n unredacted copy of the victim’s
school records’’ from two high schools she attended.
The petitioner did not provide any reasons in the motion
as to why such records would contain exculpatory infor-
mation.
The petitioner subpoenaed the records from the Nau-
gatuck public schools, and an attorney for the schools
brought the records, under seal pursuant to General
Statutes § 10-15b,5 to the court on the morning of the
habeas trial. At the beginning of the trial, the habeas
court questioned the petitioner as to the relevancy of
the victim’s school records. The petitioner’s attorney
responded in part: ‘‘During the trial [the victim] had
indicated . . . that one of the instances [of abuse]
occurred. She recalled one of the instances because
she had gotten into trouble in school that day.6 So, I
looked to—to verify that—sort of, to see if there was
any—any truth to that, and . . . I needed the school
records to see if there was any sort of disciplinary action
taken in and around the time . . . of the incident.’’
(Footnote added.)
After several more exchanges, the court stated: ‘‘Well
. . . at this point I don’t see any reason that I need to
examine them. . . . Again, I’m not going to categori-
cally rule out that there’s that possibility because I
haven’t heard anything, but based on what I have heard,
it doesn’t seem like it’s too likely . . . . I’m going to
allow the subpoenaed records to be lodged with the
court. . . . Now, both of these records [the school
records and other records the petitioner subpoenaed]
shall remain sealed. In the event we get to the point
that I think it might be necessary to determine whether
they should be unsealed, then we’ll bring that up on a
second day of trial, so that I don’t have to tie up [the
individuals who brought the records to the court]. So,
I’m going to put the onus on you, Mr. Goddard, to—
you know, you’ve got to convince me that you’re over
the hurdle . . . . Until that, I’m not going to order them
unsealed. Is that clear?’’ The petitioner’s attorney
replied that it was.
Although the petitioner questioned his criminal trial
counsel at the habeas trial concerning the latter’s deci-
sion not to seek disclosure of the school records, the
petitioner never renewed his motion for in camera
review of the records or otherwise sought a definitive
ruling from the court on the matter before the close of
evidence. In lieu of oral closing arguments, the peti-
tioner and the respondent submitted posttrial briefs.
The following legal principles govern our disposition
of this claim. ‘‘Practice Book § 60-5 provides in relevant
part that [t]he court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial. . . . For us [t]o review [a]
claim, which has been articulated for the first time on
appeal and not before the trial court, would result in
a trial by ambuscade of the trial judge. . . . We have
repeatedly indicated our disfavor with the failure,
whether because of a mistake of law, inattention or
design, to object to errors occurring in the course of a
trial until it is too late for them to be corrected, and
thereafter, if the outcome of the trial proves unsatisfac-
tory, with the assignment of such errors as grounds of
appeal.’’ (Internal quotation marks omitted.) Ferraro
v. Ridgefield European Motors, Inc., 313 Conn. 735,
758–59, 99 A.3d 1114 (2014). Our Supreme Court has
concluded that the failure to renew a motion following
a preliminary denial results in abandonment of that
claim on appeal. See, e.g., State v. Francis, 246 Conn.
339, 352, 717 A.2d 696 (1998) (‘‘because the trial court
had ruled only preliminarily and allowed the defendant
the opportunity to renew this line of questioning once
its relevancy had been established, we conclude that
this issue is not reviewable’’).
At the outset, we conclude that the previously dis-
cussed ruling of the habeas court was a preliminary
one. It was, therefore, ‘‘incumbent on the [petitioner]
to seek a definitive ruling . . . in order fully to comply
with the requirements of our rules of practice for pre-
serving his claim of error . . . .’’ State v. Johnson, 214
Conn. 161, 170, 571 A.2d 79 (1990). The fact that the
ruling was preliminary, and that the petitioner was free,
at a point later in the habeas trial, to make his offer of
proof as to the relevancy of the school records, is plain
from the language of the habeas court, which clearly
placed such burden on the petitioner.7
The petitioner argues that this issue was subsequently
preserved because, first, ‘‘he explicitly addressed how
the records would have been favorable to the defense
in his posttrial brief,’’ and, second, the habeas court
‘‘expressly ruled on the claim in its memorandum of
decision . . . .’’ We address, and dispose of, each argu-
ment in turn.
First, even assuming, arguendo, that the petitioner
could successfully renew his motion for in camera
review after the close of evidence in a posttrial brief,
our review of the brief discloses that he made no such
request. To be sure, the petitioner’s posttrial brief
argued that his criminal trial counsel performed defi-
ciently in not obtaining the victim’s school records. The
petitioner thus claims that he renewed his motion for
in camera review in his posttrial brief because he ‘‘thor-
oughly marshaled the evidence . . . to show how the
victim’s educational records would have been
important to obtain to impeach the victim’s credibility,
and how they contained information that would have
been material to his defense.’’ This argument is without
merit. It was not the habeas court’s responsibility to
divine the petitioner’s intent, or, sua sponte, to raise
again the issue of in camera review. We thus reject the
petitioner’s argument that his posttrial brief somehow
served to renew his motion to conduct an in camera
review of the victim’s school records.
We are likewise not persuaded by the petitioner’s
second argument that the habeas court ‘‘did not con-
sider [his] claim abandoned because it expressly ruled
on the claim in its memorandum of decision . . . .’’ In
its memorandum of decision, the habeas court con-
cluded in part: ‘‘The petitioner asserts that his trial
defense counsel failed to locate and introduce pertinent
evidence that would have led the trial judge to conclude
that the petitioner was not guilty. Nevertheless, the
petitioner introduced no evidence that had any proba-
tive value to show that there was any such exculpatory
material out there. To be sure, the petitioner tried to
engage in speculative explorations of medical, psycho-
logical, and school records of the victim, but since the
petitioner did not offer anything concrete to even sug-
gest that there was any reliable admissible evidence
contained therein, these records were not unsealed.’’
We do not believe that this portion of the habeas
court’s memorandum of decision constitutes a ‘‘ruling’’
on a motion for in camera review of the school records,
particularly in light of the fact that, as explained pre-
viously, the petitioner did not renew his motion for in
camera review in his posttrial brief or otherwise.
Rather, the court appeared merely to be referencing its
preliminary ruling on the motion, not articulating a new
one. Accordingly, the petitioner’s request for in camera
review of the victim’s school records is not deemed
preserved merely because the habeas court briefly
addressed the issue in its memorandum of decision.
As a final matter, we address the petitioner’s argu-
ment, made in passing in his appellate brief, that the
habeas court erred because it ‘‘appeared to have
assumed, without conducting a complete factual
inquiry, that the victim would not consent to the release
of her educational records.’’ The petitioner refers to a
point in the habeas trial when the court, the petitioner,
and the respondent discussed whether the victim would
waive her right to confidentiality as to certain sealed
records that the petitioner subpoenaed. The relevant
portion of that discussion is as follows:
‘‘The Court: . . . I have two sealed envelopes here
with material that apparently you’ve subpoenaed. . . .
One is the—[the petitioner’s] medical file. I presume
you have—since you subpoenaed it, that you have no
objection to [it] being unsealed.
‘‘[The Petitioner’s Counsel]: No objection, Your
Honor. . . .
‘‘The Court: And then I have some information from
the Wheeler Clinic. . . . Ms. [Eva B.] Lenczewski
[counsel for the respondent], do you know if the person
who’s referred to in these records intends to waive the
confidentiality of the records?
‘‘[The Respondent’s Counsel]: Your Honor, I’ve not
had any contact with her. I can’t imagine that she would.
This was a—
‘‘The Court: Well, she might. I don’t know.
‘‘[The Petitioner’s Counsel]: Well, she’s here today.
I—
‘‘The Court: I . . . I have no idea, first of all, who
she is. I presume that you might, Ms. Lenczewski.
‘‘[The Respondent’s Counsel]: I would presume that
that is a record of the victim, the minor child at the
time, and I would object to any—even questioning her
about the consent to open them. It sounds like it’s a
fishing expedition.
‘‘The Court: Well, I can’t say it’s a fishing expedition
yet, but it certainly is beginning to have that appearance.
But the first question is, whether it is or it isn’t . . .
would you be able to discuss with the person to whom
the records pertain as to whether he or she would be
willing to waive confidentiality? If so, then that elimi-
nates a lot of problems. If not, then—well, we’re right
where we are anyway.
‘‘[The Respondent’s Counsel]: I would do that if Your
Honor wished. I’m told by counsel that the individual
is present, and he’ll . . .
‘‘The Court: You’ve never spoken to her, I take it?
‘‘[The Respondent’s Counsel]: I have never met her.
‘‘The Court: So, you don’t know her?
‘‘[The Respondent’s Counsel]: No.
‘‘The Court: In the most broad terms possible, what
is it you expect to see in these records?’’
Citing no legal authority, the petitioner argues that
the habeas court erred when, after the preceding collo-
quy, it ‘‘immediately turned to the question of whether
the petitioner had made the requisite showing to over-
come a lack of consent, without having confirmed that
the victim had, in fact, decided not to waive her con-
sent.’’ The record reveals, however, that this discussion
was confined to the subject of the victim’s confidential
mental health records. There was no discussion during
the habeas trial as to whether the victim should be
asked to consent to an in camera review of her confiden-
tial school records. Moreover, our review of the record
shows that the petitioner did not raise this claim before
the habeas court. Accordingly, we elect not to review
its merits. See Ferraro v. Ridgefield European Motors,
Inc., supra, 313 Conn. 758–59.
II
The petitioner next claims that the habeas court erred
when it rejected his claim that his criminal trial counsel
rendered ineffective assistance. Specifically, the peti-
tioner claims that his criminal trial counsel was defi-
cient in failing (1) to adequately cross-examine the
victim about, inter alia, inconsistencies in her testi-
mony, and (2) to obtain the victim’s school records.
The petitioner also argues that these deficiencies were
prejudicial to him. For the reasons provided below, the
petitioner cannot prevail on these claims.
A
The petitioner first claims that his criminal trial coun-
sel performed deficiently in cross-examining the victim.
More specifically, the petitioner asserts that counsel
failed to challenge the victim with respect to ‘‘several
glaring inconsistencies’’ in her testimony and failed to
adequately cross-examine her in order to establish a
more definite time period during which the alleged
instances of abuse occurred. The respondent argues,
however, that these issues are not reviewable because
the petitioner failed to raise them in his amended habeas
petition, and the habeas court did not address their
merits in its decision. We agree with the respondent
and therefore decline to review the merits of this claim.
The following legal principles guide our analysis.
‘‘Practice Book § 60-5 provides . . . that [t]he court
shall not be bound to consider a claim unless it was
distinctly raised at the trial or arose subsequent to the
trial.’’ (Internal quotation marks omitted.) Ferraro v.
Ridgefield European Motors, Inc., supra, 313 Conn.
758–59. ‘‘A petition for a writ of habeas corpus must
set forth specific grounds for the issuance of the writ.
Practice Book § 23-22 (1) specifically provides that the
petition shall state the specific facts upon which each
specific claim of illegal confinement is based and the
relief requested . . . . A reviewing court will not con-
sider claims not raised in the habeas petition or decided
by the habeas court. . . . Appellate review of claims
not raised before the habeas court would amount to an
ambuscade of the [habeas] judge.’’ (Internal quotation
marks omitted.) Rodriguez v. Commissioner of Correc-
tion, 131 Conn. App. 336, 351, 27 A.3d 404 (2011), aff’d,
312 Conn. 345, 92 A.3d 944 (2014).
As to the petitioner’s argument that his criminal trial
counsel was deficient in failing to challenge the victim
with respect to inconsistencies in her testimony, the
petitioner identifies two such inconsistencies. The first
occurred when, at the criminal trial, the victim testified
that the petitioner had abused her five times,8 in con-
trast to a statement to the police in which she reported
six to seven instances. The second claimed inconsis-
tency occurred when, as previously discussed in foot-
note 4 of this opinion, in response to a question from
the prosecution as to whether the petitioner initiated
any other sexual contact with the victim in the petition-
er’s bedroom, the victim recounted another incident
that did not involve any physical contact. In his
amended habeas petition, the petitioner did not assert
these claims of failure to explore inconsistencies in
the victim’s testimony, nor did the habeas court, in its
written memorandum of decision, address them. We
therefore decline to reach the merits of these claims.
As to the petitioner’s argument that his criminal trial
counsel was deficient in failing to adequately cross-
examine the victim in order to establish a more definite
time period during which the alleged instances of abuse
occurred, thereby forgoing an opportunity to impeach
the victim or develop an alibi defense, this particular
claim also does not appear in the amended habeas peti-
tion, nor did the habeas court address the matter. We
therefore decline to reach the merits of this claim as
well.
In his reply brief, the petitioner nonetheless argues
that the preceding issues were preserved because, first,
in his amended habeas petition, he asserted that his
criminal trial counsel was ineffective for failing to
obtain the victim’s school records. The petitioner con-
tinues: ‘‘The sole purpose in obtaining these records
was to cross-examine, impeach, or otherwise challenge
the victim’s testimony. There was no other reason to
obtain these records.’’ Such a position essentially obli-
gates the habeas court to divine the petitioner’s intent.
To the contrary: it is the petitioner’s responsibility to
clearly present his claim to the habeas court, as well
as the specific facts upon which his claim relies. See
Rodriguez v. Commissioner of Correction, supra, 131
Conn. App. 351.
Second, the petitioner argues that he properly raised
these claims because, in his posttrial brief, he asserted:
‘‘Counsel failed to obtain documentary evidence that
would have compromised the victim’s credibility, failed
to adequately cross-examine the victim regarding her
glaring inconsistencies, many of which proved the inci-
dents could not have happened.’’ The petitioner’s post-
trial brief goes on to discuss alleged ineffectiveness
by his criminal trial counsel for, inter alia, failing to
adequately cross-examine the victim about the time line
of the abuse. However, we again observe that ‘‘[a]
reviewing court will not consider claims not raised in
the habeas petition or decided by the habeas court.’’
(Internal quotation marks omitted.) Rodriguez v. Com-
missioner of Correction, supra, 131 Conn. App. 351;
see also Elsey v. Commissioner of Correction, 126
Conn. App. 144, 169, 10 A.3d 578 (‘‘[i]t is well settled that
[t]he petition for a writ of habeas corpus is essentially a
pleading and, as such, it should conform generally to
a complaint in a civil action. . . . The principle that a
plaintiff may rely only upon what he has alleged is basic.
. . . It is fundamental in our law that the right of a
plaintiff to recover is limited to the allegations of his
complaint. . . . This court is not bound to consider
claimed errors unless it appears on the record that the
question was distinctly raised . . . and was ruled upon
and decided by the court adversely to the appellant’s
claim.’’ [Internal quotation marks omitted.]), cert.
denied, 300 Conn. 922, 14 A.3d 1007 (2011). Thus, even
if we were to conclude that the petitioner raised in his
posttrial brief his claim that his criminal trial counsel
was ineffective in cross-examining the victim, such
claim would still be unpreserved on appeal because
the petitioner did not distinctly raise it in his habeas
petition, nor did the habeas court specifically rule on
it in its memorandum of decision. We therefore decline
to review the merits of the petitioner’s claim that his
criminal trial counsel was ineffective for failing to ade-
quately cross-examine the victim.
B
The petitioner next claims that his criminal trial coun-
sel performed deficiently because she did not obtain
the victim’s school records. The petitioner asserted this
claim in his amended habeas petition, as well as in his
posttrial brief. Furthermore, the habeas court
addressed this issue in its memorandum of decision.
The petitioner has therefore preserved this claim for
appeal. However, for the reasons provided below, the
petitioner cannot prevail with respect to this claim.
We begin with the applicable standard of review.
‘‘[T]he right to counsel is the right to the effective assis-
tance of counsel. . . . There are two components of a
claim of ineffective assistance of counsel. First, the
defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that
the deficient performance prejudiced the defense.’’
(Citation omitted; internal quotation marks omitted.)
Johnson v. Commissioner of Correction, 218 Conn. 403,
424, 589 A.2d 1214 (1991).
‘‘The underlying historical facts found by the habeas
court may not be disturbed unless the findings were
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. So-called mixed questions of fact and law,
which require the application of a legal standard to
the historical-fact determinations, are not facts in this
sense. . . . Whether the representation a defendant
received at trial was constitutionally inadequate is a
mixed question of law and fact. . . . As such, that ques-
tion requires plenary review by this court unfettered
by the clearly erroneous standard.’’ (Internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, 285 Conn. 585, 597–98, 940 A.2d 789 (2008).
The habeas court concluded with regard to this claim:
‘‘The petitioner asserts that his trial defense counsel
failed to locate and introduce pertinent evidence that
would have led the trial judge to conclude that the
petitioner was not guilty. Nevertheless, the petitioner
introduced no evidence that had any probative value
to show that there was any such exculpatory material
out there. To be sure, the petitioner tried to engage in
speculative explorations of medical, psychological, and
school records of the victim, but since the petitioner
did not offer anything concrete to even suggest that
there was any reliable admissible evidence contained
therein, these records were not unsealed. . . . Simply
put, there is no basis at all in any of the evidence put
forth to conclude that [the petitioner’s criminal trial
counsel] was in any way ineffective.’’
The petitioner claims that ‘‘[t]here was no reasonable
strategic basis for [the petitioner’s criminal trial coun-
sel] not to obtain the victim’s [school] records because
the prosecuting authority’s case was based entirely on
the credibility of the victim, and the only information
that she had to undermine the credibility of the victim
was obtained from biased sources.’’ The petitioner
argues that had his criminal trial attorney obtained the
records, she would have been able to, first, impeach
the victim by revealing that she had been skipping
school and was suspended for stealing, and that she
deceived her parents as to her involvement in both of
these activities; and, second, establish a time line of
the abuse that could have led to the development of
an alibi defense. We address, and dispose of, each argu-
ment as follows.
As to the petitioner’s argument that the victim’s
school records would have disclosed material with
which to impeach the victim’s credibility—namely, that
the victim had been skipping school and was suspended
for stealing—the problem, of course, is that because
the habeas court did not unseal the victim’s school
records, we do not in fact know whether those factual
assertions are correct.9 Thus, we cannot conclude on
this basis that the petitioner’s criminal trial counsel
performed deficiently in failing to obtain the victim’s
school records.
We likewise find no merit in the petitioner’s second
argument that, had his criminal trial counsel obtained
the victim’s school records, ‘‘she could have used them
to cross-examine the victim about the date that school
started and narrow down the time line of the five inci-
dents of sexual abuse.’’ The petitioner’s argument in this
regard appears to proceed as follows: the petitioner’s
criminal trial counsel failed to obtain the victim’s 2009–
2010 school calendar,10 which would have shown that
the victim began school on August 27, 2009. Using this
date and the victim’s testimony concerning the time
line of the abuse, including, apparently, her testimony
that one incident occurred on the afternoon of a day
when she had been disciplined at school, the petitioner
reasons that the instances of abuse could have occurred
only within a period of three consecutive days in late
August, 2009. The petitioner continues: ‘‘Had trial coun-
sel narrowed down the time line of the abuse to a three
day period, she could have developed an alibi defense
to present at the petitioner’s trial.’’
This argument relies on a faulty factual premise, to
wit: the victim testified that all of the instances of abuse
occurred in August, 2009. The more plausible reading
of the victim’s testimony is that the abuse merely began
in August, 2009, at about the time that the victim’s
school year began.11 Moreover, this claim rests on the
unproven premise that, had specific dates been identi-
fied by means of the calendar and other school records,
the petitioner could have provided compelling alibi evi-
dence for such dates.12 This being the case, we fail to
see how the victim’s school calendar or disciplinary
record (the existence of which, we have noted, is
entirely conjectural at this point) provide any material
exculpatory to the petitioner. See Griffin v. Commis-
sioner of Correction, 119 Conn. App. 239, 241–42, 987
A.2d 1037 (‘‘[i]n a habeas corpus proceeding, the peti-
tioner’s burden of proving that a fundamental
unfairness had been done is not met by speculation . . .
but by demonstrable realities’’ [emphasis in original;
internal quotation marks omitted]), cert. denied, 295
Conn. 912, 989 A.2d 1074 (2010).
Accordingly, the habeas court’s conclusion that the
petitioner failed to demonstrate that his criminal trial
counsel performed deficiently was not in error, as there
is no evidence that the victim’s school records con-
tained evidence that could have been employed to exon-
erate the petitioner. Consequently, we need not address
the petitioner’s prejudice argument. See Ham v. Com-
missioner of Correction, 301 Conn. 697, 704, 23 A.3d
682 (2011) (‘‘[a] court can find against a petitioner, with
respect to a claim of ineffective assistance of counsel,
on either the performance prong or the prejudice prong,
whichever is easier’’).
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse 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
General Statutes § 53a-71 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the second degree when such person engages in
sexual intercourse with another person and . . . (1) Such other person is
thirteen years of age or older but under sixteen years of age and the actor
is more than three years older than such other person . . . .’’
3
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts . . . of a child under the age
of sixteen years or subjects a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child . . . shall be guilty of
. . . a class B felony . . . .’’
4
When asked by the prosecution on direct examination whether the peti-
tioner initiated any other sexual contact with her in the bedroom belonging
to the petitioner and the victim’s mother, the victim recounted another
incident that occurred between the third and fourth incidents described
previously. As the victim described it, however, the encounter did not involve
any physical contact between her and the petitioner. The victim testified
that she entered the bedroom to find the petitioner sitting on the bed
watching television. The victim testified that ‘‘I stood there for a second, I
was watching a show with him, and he got up and I was—was going to go
into the bathroom to use the bathroom, and he got up and he stood in front
of me and I was—I just—like, I kept my head down, I didn’t really—I didn’t
even look at him, I kept my head down and I—when I looked—I looked up
cause he said—he was, like, [victim’s name], I looked up, and I was, like,
what? He said—I—and he—my little brother had to come home, and he
knocked on the door and he sat back down, and I opened the door and I
walked out and I left.’’
5
General Statutes § 10-15b (c) provides in relevant part: ‘‘If any private
or public school is served with a subpoena issued by competent authority
directing the production of school or student records in connection with
any proceedings in any court, the school upon which such subpoena is
served may deliver such record or at its option a copy thereof to the clerk
of such court. . . . Any such record or copy so delivered to such clerk
shall be sealed in an envelope . . . . No such record or copy shall be open
to inspection by any person except upon the order of a judge of the court
concerned, and any such record or copy shall at all times be subject to the
order of such judge. . . .’’
6
In her testimony in the criminal trial, the victim indicated that the third
instance of sexual abuse described previously occurred on a day when her
school called home to report that she ‘‘had gotten into trouble . . . .’’
7
This conclusion is further borne out by the fact that the court ordered
the sealed records lodged with it until their relevancy was established.
8
We note that one of these instances, as described by the victim, did not
involve physical contact. See footnote 4 of this opinion.
9
To be sure, the petitioner testified before the habeas court that the victim
was disciplined by her school for stealing a cell phone. However, in its
memorandum of decision, the habeas court concluded in part: ‘‘The peti-
tioner is deemed not to be credible as almost all of his statements in his
testimony were self-serving and unworthy of belief.’’ As explained pre-
viously, we must accept the credibility determinations of the habeas court
unless they are clearly erroneous. See Crawford v. Commissioner of Correc-
tion, supra, 285 Conn. 597. Our review of the record does not reveal, and the
petitioner has not identified, any evidence persuading us that this credibility
determination is clearly erroneous. Additionally, the petitioner presented
no evidence purporting to show that the victim had been skipping school.
10
For reasons that are not immediately apparent, the petitioner seems to
equate the victim’s generic school calendar with her confidential school
records. There is no evidence that the victim’s school calendar, which was
entered as an exhibit in the habeas trial, is confidential.
11
As previously discussed, the victim initially testified before the trial
court that the instances of abuse happened in the ‘‘summertime’’ of 2009.
However, after being prompted to clarify by the trial court, she stated that
‘‘[i]t was at . . . the end of the summertime that this all started that we
were just starting to go back to school.’’ When asked by the court whether
‘‘summertime’’ meant ‘‘like, August,’’ the victim answered, ‘‘Yes.’’
12
It is perplexing that the petitioner argues that his criminal trial counsel
performed deficiently for failing to pursue an alibi defense, while at the
same time providing no information whatsoever as to what that alibi might
have been, despite the fact that, under the petitioner’s (albeit flawed) reason-
ing, ‘‘[t]here was only a three day period in which the five [instances of
abuse] could have occurred.’’ (Emphasis omitted.)