DENIS HICKEY v. COMMISSIONER OF CORRECTION
(AC 37045)
Connecticut Appellate Court
Argued October 14, 2015—officially released January 26, 2016
Lavine, Alvord and Mihalakos, Js.
(Appeal from Superior Court, judicial district of Tolland, Mullins, J.)
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Marjorie Allen Dauster, senior assistant state’s attorney, 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 judgment 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 prejudiced 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 present appeal. In June, 2009, the petitioner was convicted of one count of sexual assault in the first degree in violation of
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.
‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the
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 evidence 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 evidence.’’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 concluded] that the admission of uncharged misconduct evidence under the liberal standard is warranted and, therefore, [it adopted] this
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 tendency or a propensity to engage in aberrant and compulsive 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
Prior to the conclusion of evidence, trial counsel submitted 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
Following his conviction, the petitioner appealed claiming, in part, that the trial court abused its discretion by admitting evidence of his prior, uncharged sexual 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. Golding, 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 further stated that in DeJesus, ‘‘our Supreme Court set forth the conditions for admission into evidence of
Justice McDonald disagreed with the state’s argument 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 certification 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 evidence was introduced’’; ‘‘fail[ing] to object to an inadequate 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 assistance 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 counsel, 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 misconduct 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 constituted deficient performance.
The habeas court also found that the petitioner had satisfied his burden of demonstrating
The habeas court also found that the petitioner’s appellate counsel rendered ineffective assistance ‘‘in failing to challenge the trial court’s jury instruction concerning 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 petitioner was prejudiced thereby. In coming to that conclusion, 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 assistance that was prejudicial, the habeas court granted the amended petition for a writ of habeas corpus. Thereafter, 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
Claims of ineffective assistance of counsel are governed 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 standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings 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 [petitioner] 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 confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting 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 assistance 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 appropriate 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 appellate counsel) . . . .’’ (Citations omitted.) Small v. Commissioner 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 consider 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 showing 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. Morrison, 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 microscopic 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 reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.’’ (Internal quotation marks omitted.) 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
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. Commissioner 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 second prong considers whether there is a reasonable probability 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 omitted.) 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 failure 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
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 matter for further proceedings as to trial counsel. As to appellate counsel, the habeas court improperly concluded that his performance was prejudicial to the petitioner.
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.
Notes
‘‘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 compulsive 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 qualifies 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.