45 Conn. App. 809 | Conn. App. Ct. | 1997
Opinion
The petitioner, Scott Larkin, was convicted of two counts of sexual assault in the second degree, one count of sexual assault in the fourth degree and one count of risk of injury to a child. The petitioner appealed that conviction to this court. We affirmed the judgment of the trial court. State v. Larkin, 38 Conn. App. 125, 659 A.2d 1211, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). The petitioner thereafter filed a petition for a writ of habeas corpus, which, after a hearing, was dismissed by the habeas court. The petitioner then filed a request for certification of appeal by this court, which was also denied. This appeal followed.
On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification of appeal by improperly (1) denying his request to review the victim’s medical and psychological records, (2) finding that State v. Cassidy, 236 Conn. 112, 672
“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.
“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).” (Emphasis in original; internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 815-16, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996). We now apply this standard of review to each of the petitioner’s claims.
I
The petitioner first claims that the habeas court abused its discretion in refusing to review the victim’s medical and psychological records and to allow him to amend his petition. We disagree.
The following facts pertain to this issue. During the original trial, the court reviewed the victim’s medical
The petitioner claims that, if the habeas court had reviewed the records, it could have determined whether either the trial court had improperly failed to disclose exculpatory information to the defense or the state had improperly failed to turn over the information to the trial court for its review. Moreover, he argues that, had these records been available to him at trial, he could have attacked the credibility of the victim and used it to impeach the state’s expert witness who testified that the victim could distinguish reality from fantasy. The petitioner, therefore, maintains that the habeas court abused its discretion in not reviewing the records or allowing him to amend his petition to add this issue. The habeas court denied his requests because it found that the petitioner could have pursued the issue concerning access to the victim’s records on appeal. We
“The appropriate standard for reviewability of a constitutional claim not raised before sentencing or on direct appeal is the Wainwright
Here, the petitioner failed to offer any evidence explaining why he did not previously challenge the trial court’s determination that certain records were not material to the impeachment of the victim by requesting the Appellate Court to review the sealed records. The petitioner also failed to demonstrate adequately that he was prejudiced by his lack of access to the records. The habeas court properly denied the petitioner’s requests.
II
The petitioner next claims that the habeas court improperly determined that the holding in State v. Cassidy, supra, 236 Conn. 112, did not apply retroactively. We disagree with the petitioner.
The petitioner alleges that the state violated his constitutional right to due process by remarks made during its cross-examination of the petitioner and its closing
In reviewing this claim, the habeas court noted that direct review had been completed and that the petitioner was attempting collaterally to attack his conviction on the basis of the holding in Cassidy. Relying on Johnson v. Warden, 218 Conn. 791, 796, 591 A.2d 407 (1991), the habeas court held that the holding in Cassidy did not apply because new constitutional rules of criminal procedure cannot be announced or applied to cases that are on collateral review.
The petitioner urges this court to apply the criteria set forth in Stovall v. Deno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), to determine the retroactivity of a rule.
In Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the United States Supreme Court abandoned the criteria applied in Stovall for cases on
Ill
The petitioner next claims that the habeas court abused its discretion in concluding that the petitioner had effective assistance of counsel. Prior to trial, the trial court granted the petitioner’s motion pro hac vice, allowing Attorney Frederick Busconi, a member of the Massachusetts bar, to represent him. In compliance with Practice Book § 24, Busconi was “sponsored” by local counsel.
“The sixth amendment of the federal constitution requires that ‘the accused shall enjoy the right ... to have the assistance of counsel for his [defense]’ in all criminal prosecutions.” State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977). “The right to counsel means the right to the conscientious services of competent counsel.” Id.
“In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his 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 competence contributed so significantly to his conviction as to have deprived him of a fair trial. Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A reviewing court can find against the petitioner on whichever ground is easier. Valeriano v. Bronson, supra [85-86]; Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).” (Internal quotation marks omitted.) Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990).
The petitioner has not presented this court with any evidence that he was prejudiced by local counsel’s alleged incompetence. Specifically, there is no support in the record that Busconi, the petitioner’s chosen trial and appellate counsel, did not have adequate knowledge of Connecticut criminal law and, therefore, had to rely on local counsel. The habeas court found that Busconi’s representation was more than adequate. In the absence of such evidence, we cannot conclude that local counsel’s performance deprived the petitioner of a fair trial.
We now turn to the gravamen of the petitioner’s complaint that Busconi rendered ineffective assistance in the conduct of his representation, thereby depriving him of a fair trial. The facts in this case as recited in State v. Larkin, supra, 38 Conn. App. 127, are as follows. “On April 5,1991, the defendant, a twenty year old male, met the victim, a twelve year old girl, at a highway picnic area across the street from the victim’s house.
“In reviewing the claim [of ineffective assistance of counsel], this court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action might be considered sound trial strategy. Levine v. Manson, [195 Conn. 636, 640, 490 A.2d 82 (1985)]; see also Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). In assessing the petitioner’s claim, this court must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Strickland v. Washington, supra [466 U.S.] 689. Levine v. Manson, supra [640]; see also Valeriano v. Bronson, supra, [209 Conn.] 87.” (Internal quotation marks omitted.) Magnotti v. Meachum, supra, 22 Conn. App. 674-75.
In this case, the petitioner claimed at his habeas hearing that his trial attorney lacked knowledge of the rules of evidence. As an example, he cited the fact that Busconi did not object to the prosecutor’s improperly commenting on the defense’s failure to call the petitioner’s brother and others as defense witnesses. The petitioner avers that if his attorney had been familiar with the rule in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960),
The petitioner also argued that Busconi rendered inadequate representation in that he failed to take any action regarding the prosecutor’s statements that the petitioner’s presence in the courtroom during the trial allowed him to tailor his testimony, in violation of the holding in State v. Cassidy, supra, 236 Conn. 112. At the time of the petitioner’s original trial, however, Cassidy had not been decided. His attorney, therefore, can hardly be held accountable for ignoring a ruling not yet made.
The petitioner additionally claimed that his attorney made errors of omission and commission regarding other evidentiary matters. After a careful review of the record and transcripts, we agree with the habeas court that the performance of the petitioner’s trial counsel did not fall below the standard of reasonable competence.
The petitioner has failed to demonstrate that the habeas court abused its discretion in resolving the issues raised in his petition. We, therefore, conclude that the habeas court did not abuse its discretion in denying the petitioner’s certification to appeal the dismissal of his petition for habeas corpus.
The appeal is dismissed.
In this opinion the other judges concurred.
It is not clear from the record how the petitioner gained access to the sealed psychiatric records for his habeas hearing.
Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).
“The criteria guiding resolution of the question [of the retroactivity of the rule] implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Deno, supra, 388 U.S. 297.
Practice Book § 24 provides: “An attorney who is in good standing at the bar of another state, the District of Columbia, or the commonwealth of Puerto Rico, may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state; provided, however, that (1) such application shall be accompanied by the affidavit of the applicant certifying whether such applicant has a grievance pending against him or her, has ever been reprimanded, suspended, placed on inactive status, disbarred, or has ever resigned from the practice of law and, if so, setting forth the circumstances concerning such action and (2) a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. Good cause for according such privilege shall be limited
The petitioner urges this court to adopt the standard set forth in Dorador v. Wyoming, 573 P.2d 839 (Wyo. 1978), which requires that local counsel take an active part in the representation of the client. The petitioner, however, misreads the requirement set forth in this case. The Wyoming Supreme Court ruled that local counsel should “be something more than a matter of form or protocol; it is not intended that he be only a figurehead. It is expected that he take an active part in the representation of the client concerned ... in the absence of out of state counsel.” (Emphasis added.) Id., 841.
The rule set forth in Secondino provides: “The failure of a party to produce a witness who is within his power to produce, and who would