329 Conn. 605
Conn.2018Background
- Denis Hickey was convicted in 2009 of first‑degree sexual assault and risk of injury to a child for digitally penetrating a five‑year‑old; sentenced to 30 years (20 years to serve) and 35 years probation.
- State notified it would introduce testimony of prior uncharged sexual misconduct by a different minor (R.N.); trial court admitted the testimony under the DeJesus propensity exception after a motion in limine.
- Trial counsel objected to admission but did not request a contemporaneous limiting instruction when R.N. testified and did not secure explicit "propensity" language in the final charge; the court gave a DeJesus‑style instruction at the end of the case.
- Habeas court found trial counsel deficient for failing to request contemporaneous and propensity‑limited instructions and concluded prejudice, granting habeas relief on that basis.
- Appellate Court agreed the performance was deficient as a matter of law but held the habeas court’s prejudice analysis was inadequate and remanded for further proceedings on prejudice.
- Supreme Court assumed, without deciding, deficient performance but held petitioner failed to prove prejudice given the final charge, prosecutor’s limited use of the testimony, corroborating evidence, and the presumption that juries follow instructions.
Issues
| Issue | Plaintiff's Argument (Hickey) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Whether trial counsel was per se unreasonable for not requesting a contemporaneous limiting instruction and a final charge limiting the evidence to propensity | Counsel erred by not asking for timing and content required by DeJesus; this was not sound strategy | Counsel could have had strategic reasons; omission not per se unreasonable | Court assumed deficiency without deciding but rejected Appellate Court’s per se‑strategy rule and focused on prejudice |
| Whether omission of explicit "propensity" language in final charge prejudiced the defense | Absence of explicit propensity wording likely misled jury and was prejudicial | The final DeJesus‑style charge sufficiently limited use; omission did not create reasonable probability of different outcome | No prejudice; final charge and other instructions adequate |
| Whether failure to request contemporaneous instruction prejudiced the defense | A contemporaneous caution was required by DeJesus and its absence was prejudicial | Final charge cured any potential harm; juries are presumed to follow instructions | No prejudice; jury presumed to follow final instructions |
| Whether Appellate Court should have conducted plenary review of prejudice rather than remanding | Appellate Court’s remand was proper to allow habeas court to analyze prejudice | Appellate Court should have performed plenary review and resolved prejudice as a matter of law | Supreme Court: Appellate Court should have performed plenary review; remand for new habeas trial on prejudice reversed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged test for ineffective assistance: deficient performance and prejudice)
- State v. DeJesus, 288 Conn. 418 (Conn. 2008) (admitted limited propensity exception for uncharged sexual misconduct and required cautionary instruction)
- Davis v. Commissioner of Correction, 319 Conn. 548 (Conn. 2015) (reciting Strickland framework and standards)
- Anderson v. Commissioner of Correction, 313 Conn. 360 (Conn. 2014) (verdicts weakly supported by the record are more likely to be affected by errors)
- State v. Flores, 301 Conn. 77 (Conn. 2011) (jury instructions judged in context of entire charge)