Minor v. Comm'r of Corr.

• Decision Date: 10 June 2014
• Docket Number: No. 34651.,34651.
• Citation: 92 A.3d 1008,150 Conn.App. 756
• Court: Connecticut Court of Appeals
• Parties: Mickey MINOR v. COMMISSIONER OF CORRECTION.

150 Conn.App. 756

92 A.3d 1008

Mickey MINOR

v.COMMISSIONER OF CORRECTION.

No. 34651.

Appellate Court of Connecticut.

Argued Feb. 3, 2014.

Decided June 10, 2014.

Albert J. Oneto IV, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and KELLER and WEST, Js.

DiPENTIMA, C.J.

The petitioner, Mickey Minor, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying certification to appeal and (2) improperly denied his claim that his criminal trial counsel provided ineffective assistance in failing to consult with, or to present the testimony of, an expert in the field of forensic child psychology. We disagree, and, accordingly, dismiss the appeal.

After a jury trial, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a–70 (a)(2) and two counts of risk of injury to a child in violation of General Statutes § 53–21(2). This court affirmed the judgment of conviction on direct appeal and determined that the jury reasonably could have found the following relevant facts. See State v. Minor, 80 Conn.App. 87, 89, 832 A.2d 697, cert. denied, 267 Conn. 907, 840 A.2d 1172 (2003). The petitioner arranged to stay temporarily with the victim's mother at her home. Id., at 89–90, 832 A.2d 697. It was during this stay, in January, 2000, that the crimes occurred. Id. One assault occurred when the victim, who was seven years old at the time, went to sleep in her mother's bed, where her mother, brother, and the petitioner were sleeping. Id., at 90, 832 A.2d 697. The other assault happened during an indoor game of hide-and-seek. Id. Following these assaults, the petitioner ended his stay and left the victim's home. Id. Approximately six months later, the victim disclosed the assaults to her mother. Id. The victim and her mother then reported the assaults to the police. Id. The petitioner eventually was convicted and sentenced. Id., at 94, 832 A.2d 697.

Our review of the criminal trial proceedings reveals the following. During the criminal trial, several inconsistencies surfaced in the victim's story as told to the victim's mother and to a clinical psychologist, Elizabeth Donahue, and through the victim's own trial testimony. In particular, there were discrepancies about the sequence of events: whether the assault in the mother's bed happened before or after the hide-and-seek assault, and whether the assaults happened on consecutive or nonconsecutive days. There was also conflicting testimony about specific details of the assaults, circumstances surrounding the actual disclosure, and the nature of the victim's relationship with the petitioner. Principally to explain the inconsistencies in the victim's story and her failure to disclose the abuse earlier, the state offered the testimony of two experts in the field of clinical psychology. One of the experts, Donahue, conducted an interview with the victim shortly after the abuse was reported. The other expert, Sidney Horowitz, neither treated nor interviewed the victim.

Donahue testified that children will often delay disclosure—and sometimes never make a disclosure—for a number of reasons, including fear of getting into trouble. She further testified on cross-examination that with respect to the sequence of the assaults, she would expect a child's report to be reliable. When asked on redirect examination to clarify her response, she testified: “It's easier for a child to tell you what happened on Saturday and perhaps have it in some sort of correct order than to tell you which Saturday it was that it happened in time.” When asked about a child's ability to tell “details about what happened first, what happened second,” she testified: “Again, it's what relevance it's had to that child, how they've made sense of it in their head, how many times they've told the story. It's hard to tell.”

Regarding her clinical interviewing techniques, Donahue testified that her standard method of interviewing was to allow a child to give a narrative first and then to follow up with more specific questions to fill in details. She also testified that during her interviews she would look for signs of a child “parroting somebody else's words.” When asked if she saw such signs during her interview with the victim, she testified: “The information that [the victim] gave me was given to me in the language of a seven or eight year old child....”

Like Donahue, Horowitz offered testimony about a child's delayed disclosure and “sequential processing” of abuse. Essentially, Horowitz testified that it would be the exception, not the rule, for a seven year old child to report abuse immediately, unless the abuse was done by an absolute stranger and associated with significant physical trauma. Moreover, he testified that the “sequential processing” of an adult is more developed than that of a child, so whereas an adult might place events in a precise order, a child might look more at the “big picture.” When asked, hypothetically, if a seven year old child might be inconsistent in sequencing two events, Horowitz testified that such behavior would be consistent with his understanding of a child's sequencing process. Defense counsel did not cross-examine Horowitz.

Turning to the proceedings underlying this appeal, the petitioner filed an amended petition for a writ of habeas corpus claiming, among other things, that his criminal trial counsel, David Channing, had provided ineffective assistance in failing (1) to “adequately cross-examine, impeach, and otherwise challenge” the testimony of the victim, the victim's mother, Donahue, Horowitz, and a police detective, and (2) to “present the testimony of an expert with an expertise in investigating and assessing child sexual abuse allegations.” After reviewing the criminal trial transcripts and considering the testimony at the habeas trial of Channing, Donahue, Horowitz, and an additional clinical psychologist, David Mantell, the habeas court denied the amended petition. The court found that Channing's performance was not deficient and that the petitioner failed to prove that he had been prejudiced. The court then denied the petition for certification to appeal. This appeal followed.

The standard of review and relevant legal principles are well known. “Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its 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.... If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court.” (Internal quotation marks omitted.) Perillo v. Commissioner of Correction, 149 Conn.App. 58, 60–61, 88 A.3d 1228 (2014).

“The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. 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....

“With respect to the performance component of the Strickland test, [t]o prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness.... 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....

“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.) Smith v. Commissioner of Correction, 148 Conn.App. 517, 523–25,...