J.R. v. Commissioner of Correction

• Decision Date: 19 February 2008
• Docket Number: No. 27487.,27487.
• Citation: 105 Conn.App. 827,941 A.2d 348
• Court: Connecticut Court of Appeals
• Parties: J.R.<SMALL><SUP>1</SUP></SMALL> v. COMMISSIONER OF CORRECTION.

941 A.2d 348

105 Conn.App. 827

J.R.¹ v. COMMISSIONER OF CORRECTION.

No. 27487.

Appellate Court of Connecticut.

Argued November 26, 2007.

Decided February 19, 2008.

Michael Zariphes, special public defender, for the appellant (petitioner).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cara F. Eschuk, supervisory assistant state's attorney, for the appellee (respondent).

FLYNN, C.J., and McLACHLAN and GRUENDEL, Js.

FLYNN, C.J.

The petitioner, J.R., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that it improperly rejected his claims that his trial counsel had provided ineffective assistance by failing (1) to introduce into evidence employment records of the petitioner, (2) to introduce a psychological report of the victim, (3) to introduce evidence about the lack of a police record regarding the alleged sexual assault of the victim by her uncle and (4) to make a proper request that the jury be polled. We dismiss the petitioner's appeal.

The facts giving rise to this case are set forth in State v. J.R., 69 Conn.App. 767, 797 A.2d 560, cert. denied, 260 Conn. 935, 802 A.2d 89 (2002). "During her early childhood, the victim, a biological daughter of the [petitioner] lived in Puerto Rico with her grandmother. At the age of eight, the victim moved to Waterbury and lived with the [petitioner], her stepmother and her two half-siblings. In 1992, when she was eleven years old, the victim was sexually abused by the [petitioner]. The sexual abuse continued over the next four years while her stepmother was at work.

"In 1997, the victim reported the abuse to a counselor at her school. The counselor contacted investigators at the. department of children and families (department), who notified the police. The [petitioner] subsequently was arrested and charged with nine counts of sexual misconduct." Id., at 768, 797 A.2d 560. After a trial to the jury, the petitioner was convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, three counts of sexual assault in the second degree in violation of General Statutes § 53a-71, two counts of sexual assault in the third degree in violation of General Statutes § 53a-72 and two counts of risk of injury to a child in violation of General Statutes § 53-21. The court thereafter sentenced the petitioner to a total effective term of forty-three years imprisonment, execution suspended after twenty-three years, and fifteen years probation, The petitioner's conviction was upheld on appeal.

On June 16, 2004, the petitioner filed a second amended petition for a writ of habeas corpus, alleging that his trial counsel, Louis S. Avitabile, had rendered ineffective assistance in several respects.² Following a habeas trial, the court rejected the petitioner's ineffective assistance of counsel claims and dismissed the petition. Subsequently, the court also denied the petition for certification to appeal. This appeal followed.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner's appeal. "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.... 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 the merits....

"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." (Internal quotation marks omitted.) Falcon v. Commissioner of Correction, 98 Conn.App. 356, 359, 908 A.2d 1130, cert. denied, 280 Conn. 948, 912 A.2d 480 (2006).

"We examine the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 424, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006).

"In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.... Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Citations omitted; internal quotation marks omitted.) Griffin v. Commissioner of Correction, 98 Conn. App. 361, 365-66, 909 A.2d 60 (2006).

"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness.... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment....

"The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding.... Rather, [the 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.... 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." (Citation omitted; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn.App. 133, 136-37, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). Having set forth the applicable legal principles, we now address the petitioner's claims in turn.

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim that he received ineffective assistance of counsel as a result of Avitabile's failure to introduce the petitioner's employment records into evidence. The petitioner argues that the employment records should have been used to impeach the victim's testimony concerning the time at which the sexual assaults allegedly occurred and to support an alibi defense.³ We are not persuaded.

The following additional facts are relevant to our resolution of the petitioner's claim. At the petitioner's criminal trial, the victim testified that, beginning in 1992, the petitioner would sexually abuse her on a regular "basis when he returned home after work and while her stepmother was at work. The victim also testified that the petitioner had sexually assaulted her on February 17, 1997, "around 5 or 6" p.m. when the he returned home from work.

During the habeas trial, the petitioner testified that prior to his arrest, he had been employed at LesCare Kitchens. The petitioner further stated that when he had commenced his employment at LesCare Kitchens, his hours were from 6 a.m. to 5 p.m. At some point, the petitioner's schedule changed,...