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Gerald W. v. Commissioner of Correction

Court of Appeals of Connecticut

November 29, 2016


          Argued September 16, 2016

         Appeal from Superior Court, judicial district of Tolland, Sferrazza, J.

          James E. Mortimer, with whom, on the brief, was Michael D. Day, for the appellant (petitioner)

          Linda F. Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Craig P. Nowak, senior assistant state's attorney, and Susann E. Gill, former supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Keller and Prescott, Js.


          PRESCOTT, J.

         The petitioner, Gerald W., appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court improperly rejected his claim that he received ineffective assistance from his prior habeas counsel. We affirm the judgment of the habeas court.

         The record reveals the following relevant facts and procedural history. The petitioner was convicted following a jury trial of three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2). The relevant facts underlying the judgment of conviction were set forth in this court's opinion affirming that judgment. ‘‘From the evidence adduced at trial, the jury reasonably could have found the following facts. The victims are three minor children, S, the [petitioner's] daughter; P, the [petitioner's] cousin; and T, the cousin of the [petitioner's] girlfriend. At the time of trial, the three victims were age fourteen, fifteen and sixteen, respectively. The victims often would visit the [petitioner] at his apartment, where he lived with his girlfriend. When S was approximately six years old, she began visiting the [petitioner] on a weekly basis. Sometime in December, 2001, when she was eleven years old, the [petitioner] engaged in what would become a pattern of sexual abuse of S, which continued until sometime in early 2003. During some of these visits, the [petitioner] would touch her chest and vaginal area with his penis, finger or hand. On one evening during 2001, when P was eleven, the [petitioner] pulled down her pants and attempted to engage in sexual intercourse. When T was nine years old, she began to visit the [petitioner] and her cousin. During the ensuing five year period, the [petitioner] inappropriately touched both her chest and vaginal area approximately ten times.

         ‘‘After the [petitioner's] conduct was disclosed to the police, the [petitioner] was arrested and charged in a substitute information dated May 5, 2005, with three counts of risk of injury to a child and one count of attempt to commit sexual assault in the first degree. Following a jury trial, the [petitioner] was convicted on all counts and sentenced to a total effective term of forty years imprisonment.'' State v. Gerald W., 103 Conn.App. 784, 786-87, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007).

         As previously indicated, the petitioner appealed from the judgment of conviction. He claimed on appeal that the trial court improperly had instructed the jury regarding the presumption of innocence and had construed the rape shield statute improperly in excluding evidence of T's allegations of prior sexual abuse by her biological father. Id., 786. This court affirmed the judgment of the trial court on September 18, 2007, and our Supreme Court later denied certification to appeal. Id.

         In April, 2007, the petitioner filed his first petition for a writ of habeas corpus. Throughout that first habeas action, the petitioner was represented by Attorney Jodi Zils Gagne. He alleged in his first petition that his trial counsel, Jonathan Demirjian, had provided ineffective assistance in a number of ways. In particular, the operative petition provided that Demirjian was ineffective because he had failed (1) to move for separate trials as to each of the three victims; (2) to compel the prosecutor to specify the precise dates of the offenses; (3) to investigate alibi witnesses adequately; (4) to advise the petitioner about the maximum jail time he faced if unsuccessful at trial; (5) to submit into evidence videotaped forensic interviews of the victims; (6) to explain to the petitioner the state's evidence against him; (7) to prevent the admission of improper evidence offered by the state, including evidence of uncharged misconduct; (8) to subpoena testimony from the Department of Children and Families (department) about its investigation; and (9) to correct allegedly confusing information provided to the jury regarding the existence of a police report. Zils Gagne eventually withdrew the specifications of ineffective assistance that related to the videotaped interviews of the victims and to Demirjian's failure to call witnesses about the department's investigation. Following a trial, the habeas court denied the first petition and subsequently denied a petition for certification to appeal. The petitioner appealed from the habeas court's decision. This court dismissed the appeal by a memorandum decision dated January 24, 2012, and our Supreme Court subsequently denied certification to appeal. Gerald W. v. Commissioner of Correction, 133 Conn.App. 901, 33 A.3d 898, cert. denied, 304 Conn. 901, 38 A.3d 113 (2012).

         On February 21, 2012, the petitioner filed a second habeas petition-the petition underlying the present appeal. An amended petition was filed on April 1, 2014, and contained two counts. The first count reasserted that trial counsel had provided ineffective assistance. Although the petitioner acknowledged in the petition that he previously had raised this claim in his first habeas petition, he asserted that he had not received a full and fair hearing of the claim. The petitioner listed thirteen specifications of ineffective assistance by trial counsel, the majority of which were not raised in the first habeas petition.[2]

         The second count of the petition asserted that the petitioner received ineffective assistance from his prior habeas counsel, Zils Gagne. The sole ground alleged in the count was that Zils Gagne's ‘‘performance was deficient because she failed to adequately raise the [specifications of ineffective assistance of trial counsel] identified in [count] one of this amended petition for a writ of habeas corpus.''

         In his response to the habeas petition, the respondent, the Commissioner of Correction, pleaded by way of a special defense that the first count directed at trial counsel's performance had been raised previously and unsuccessfully litigated in the petitioner's first habeas action, and, therefore, it was barred by the doctrines of successive petition, res judicata and/or collateral estoppel.

         The habeas court, Sferrazza, J., conducted a trial on the second habeas petition over four days in August and September, 2014. The petitioner presented testimony from a number of witnesses including Demirjian, Zils Gagne, and Michael Blanchard, a criminal defense attorney with experience in child sexual abuse cases. At the close of evidence, the habeas court, with the consent of counsel, dismissed the first count of the petition, noting on the record that it was ‘‘really just part of the proof of the second count, '' and that ‘‘there was already a habeas [court judgment] which addressed trial counsel.'' The parties each submitted posttrial briefs. On December 15, 2014, the court issued a memorandum of decision denying the remainder of the habeas petition.

         The court first noted that although the petitioner had presented expert testimony from Blanchard in support of his claim that prior habeas counsel was ineffective, Blanchard testified extensively only about the performance of trial counsel, and ‘‘expressed no opinion concerning habeas counsel's performance in the first habeas action. Nor did he voice any opinion regarding whether the purported deficiencies of [trial counsel] affected the outcome of the earlier habeas case or the criminal trial. In short, the petitioner produced no expert witness who maintained that [habeas counsel] rendered unprofessional legal assistance for the first habeas trial nor as to the prejudice prong of the Strickland standard with respect to either level of litigation.'' (Emphasis omitted.) See Strickland v.Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing ...

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