Rhoderick Boyd v. Comm'r of Correction.

• Citation: 130 Conn.App. 291,21 A.3d 969
• Decision Date: 19 July 2011
• Docket Number: No. 31351.,31351.
• Court: Appellate Court of Connecticut
• Parties: Rhoderick BOYDv.COMMISSIONER OF CORRECTION.

130 Conn.App. 291

21 A.3d 969

Rhoderick BOYD

v.COMMISSIONER OF CORRECTION.

No. 31351.

Appellate Court of Connecticut.

Argued April 12, 2011.Decided July 19, 2011.

Mary Boehlert, special public defender, for the appellant (petitioner).Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee (respondent).GRUENDEL, BEACH and SCHALLER, Js.SCHALLER, J.

The petitioner, Rhoderick Boyd, appeals following the habeas court's granting of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claims of ineffective assistance of trial counsel. Specifically, he claims that his trial counsel, Donald O'Brien, rendered ineffective assistance because (1) he failed to object on two occasions to testimony offered by the state's expert witness, a psychiatrist who testified that the victim had been sexually assaulted, and (2) he did not undertake an independent investigation or take photographs of the area of the building where the assault took place. We affirm the judgment of the habeas court.

The petitioner's conviction was the subject of a direct appeal before this court, State v. Boyd, 89 Conn.App. 1, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005), overruled in part on other grounds by State v. Kemah, 289 Conn. 411, 432, 957 A.2d 852 (2008). The following facts and procedural history are relevant to our disposition of the petitioner's claims. After a jury trial, the petitioner was convicted of sexual assault in the first degree, kidnapping in the first degree and assault in the third degree, and was sentenced to an effective prison term of eighteen years incarceration, suspended after fourteen years, and twenty-five years of probation. Id., at 2, 6–7, 872 A.2d 477. All charges resulted from an incident that occurred in the fall of 1999 while the petitioner was an employee of a corporation that provided food services to a boarding school in Connecticut.¹ Id., at 4, 872 A.2d 477. The petitioner supervised the sixteen year old victim who, in addition to attending classes at the boarding school, worked in the dining hall as a dishwasher. Id. “On the evening of the assault, the victim was scheduled for a two hour shift. Near the end of her shift, the [petitioner] instructed the victim to go downstairs [to the pot room] to clean large pots and pans. The petitioner grabbed the victim's arm and escorted her into the elevator leading to the lower level”; id., at 4–5, 872 A.2d 477; and, after exiting the elevator on the lower level, the petitioner physically and sexually assaulted the victim.² Id., at 5, 872 A.2d 477. Additional facts will be set forth as necessary.

We set forth the appropriate standard of review for a challenge to the denial of a petition for a writ of habeas corpus when certification to appeal is granted. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous....” (Citation omitted; internal quotation marks omitted.) Smith v. Commissioner of Correction, 122 Conn.App. 637, 641, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011). “[O]ur 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.... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn.App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

We now set forth the principles of law relevant to the petitioner's claim that O'Brien rendered ineffective assistance. The habeas court determined that the petitioner failed to satisfy the first prong of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 126 Conn.App. 453, 457, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011). “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unworkable.... Only if the petitioner succeeds in [this] herculean task will he receive a new trial.” (Internal quotation marks omitted.) Id., at 458, 11 A.3d 730.

I

The petitioner first claims that O'Brien rendered ineffective assistance because he failed to object on two occasions to testimony offered by Lucy Puryear, the state's expert witness. We conclude that the petitioner has failed to overcome the presumption that O'Brien's trial strategy was reasonable and, thus, has failed to prove that his performance was deficient.

The following additional facts and procedural history are relevant to the petitioner's claim. After the assault, the victim returned to her room and showered. State v. Boyd, supra, 89 Conn.App. at 5, 872 A.2d 477. The day after the assault, “the victim participated in a school volleyball game. During the game, she fell to the ground, striking her head. Following her fall, the victim was unable to move. An ambulance transported her to a hospital, where she received treatment. Thereafter, she returned to her parents' home. The victim had regained movement in her arms while in the hospital, but was unable to move her legs for several days.” Id.

In his direct appeal from his conviction, the petitioner sought review of his claim that the trial court should have, sua sponte, struck certain testimony given by Puryear, a psychiatrist who had treated the victim. “During direct examination, Puryear testified in relevant part as follows:

‘[The Prosecutor]: All right. When did [the victim] start having problems ...?

‘[The Witness]: [The victim] started having problems after the incident.

‘[The Prosecutor]: October 21, 1999?

‘[The Witness]: Correct.

‘[The Prosecutor]: And did she have any history of mental problems before the sexual assault?

‘[The Witness]: No, she didn't.’

Puryear subsequently stated that the victim's inability to move following her fall on the volleyball court was ‘related to the sexual assault the day before....’ ” Id., at 18, 872 A.2d 477.

Because O'Brien failed to object to the testimony during trial, so the petitioner sought this court's review of his unpreserved evidentiary claim pursuant to Golding³ and the plain error doctrine embodied in Practice Book § 60–5. Id. This court declined to review the unpreserved claim under either doctrine because the claim was evidentiary, not constitutional, in nature and we were not persuaded that the court's failure to strike the challenged testimony sua sponte constituted plain error. Id., at 19–21, 872 A.2d 477. Specifically, we noted that “[a]lthough perhaps the court would have been required to strike this portion of Puryear's testimony after a proper objection, we cannot conclude that the defendant's constitutional rights were implicated or that the defendant received a fundamentally unfair trial.” ⁴ Id., at 21 n. 14, 872 A.2d 477.

As we review the petitioner's claim that O'Brien rendered ineffective assistance under these facts, we are mindful that “[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant 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.” (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn.App. 57, 62, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

“[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.... [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment....” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 768, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). It is well established that “[a] reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may...