162 Conn.App. 505
Conn. App. Ct.2016Background
- Denis Hickey was convicted in 2009 of first‑degree sexual assault and risk of injury to a child; sentenced to a lengthy term with long probation. His conviction was affirmed on direct appeal (State v. Hickey, 135 Conn. App. 532).
- At trial the state elicited testimony from R.N. about uncharged prior sexual misconduct; the trial court admitted that evidence under the DeJesus propensity framework but did not give a contemporaneous cautionary instruction when R.N. testified.
- Trial counsel filed a motion in limine and later submitted a request to charge on uncharged misconduct, but did not ask the court to give the DeJesus cautionary instruction immediately after R.N.’s testimony; the court gave a propensity instruction only after the close of evidence.
- Hickey filed a habeas petition alleging ineffective assistance of trial and appellate counsel for failing to secure or to raise on appeal a proper, timely DeJesus cautionary instruction; the habeas court granted relief as to both trial and appellate counsel and certified the respondent’s appeal.
- The Appellate Court reviewed Strickland prejudice and instructional‑error standards, concluded the habeas court failed to analyze prejudice in context of the full trial record and evidence, reversed as to appellate counsel, and remanded for further proceedings limited to the trial‑counsel prejudice inquiry.
Issues
| Issue | Plaintiff's Argument (Hickey) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not requesting a DeJesus cautionary instruction at the time R.N. testified | Failure to request timely cautionary instruction and failure to propose a limiting propensity charge denied fair trial | Counsel may have had reasonable strategy; omission alone insufficient without showing prejudice | Habeas court found deficiency but appellate court reversed that part of the remedy for lack of prejudice analysis and remanded for further proceedings on prejudice as to trial counsel |
| Whether appellate counsel was ineffective for not raising the untimely/inadequate instruction on direct appeal | Appellate counsel should have raised the instructional error despite it being unpreserved | The instructional claim was unpreserved and not reviewable on direct appeal; raising it likely would not have succeeded, so no prejudice | Appellate court held habeas court erred: appellate counsel’s failure did not demonstrate prejudice and petition must be denied as to appellate counsel |
| Whether omission of a contemporaneous cautionary instruction (and the charge given later) prejudiced Hickey | The absence of the contemporaneous caveat likely produced undue prejudice sufficient under Strickland | The charge given conformed to DeJesus/model instruction; the habeas court failed to assess the charge against the whole record and other evidence (e.g., medical testimony) | Appellate court held habeas court failed to analyze prejudice in the context of the entire trial record; remanded for further consideration of prejudice as to trial counsel |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong test for ineffective assistance of counsel)
- State v. DeJesus, 288 Conn. 418 (adopts limited propensity exception for uncharged sexual misconduct and requires a cautionary instruction)
- State v. Hickey, 135 Conn. App. 532 (direct appeal of Hickey’s conviction; discussion of admission and timing of DeJesus instruction)
- Thiersaint v. Commissioner of Correction, 316 Conn. 89 (describes right to effective assistance and standards of review)
- Kimmelman v. Morrison, 477 U.S. 365 (addresses ineffective assistance in context of litigation of Fourth Amendment claims and prejudice standard)
- State v. Golding, 213 Conn. 233 (sets conditions under which unpreserved claims may be reviewed on appeal)