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Giattino v. Commissioner of Correction

Court of Appeals of Connecticut

December 6, 2016

RICHARD GIATTINO
v.
COMMISSIONER OF CORRECTION

          Submitted on briefs September 14, 2016

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

          Jennifer B. Smith, assigned counsel, filed a brief for the appellant (petitioner).

          Maureen Platt, state's attorney, Leon F. Dalbec, Jr., senior assistant state's attorney, and Eva B. Lenczew-ski, supervisory assistant state's attorney, filed a brief for the appellee (respondent).

          Lavine, Keller and Flynn, Js.

          OPINION

          KELLER, J.

         The petitioner, Richard Giattino, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the habeas court erred when it (1) declined to conduct an in camera review of school records pertaining to the victim[1] of the underlying crimes; and (2) rejected the petitioner's claim that his criminal trial counsel rendered ineffective assistance. We decline to reach the merits of the petitioner's first claim, and conclude that the habeas court did not err with regard to the second claim. We therefore affirm the judgment of the habeas court.

         In 2011, the petitioner was convicted, following a trial to the court, Prescott, J., of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), [2] and one count of injury or risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21 (a) (2).[3] Aside from concluding that the prosecution proved each element of the crimes beyond a reasonable doubt, the trial court did not set forth detailed factual findings in rendering its determination of guilt. On the basis of its findings, however, we can conclude that the trial court was persuaded by evidence of the following facts.

         The petitioner married the victim's mother in 2009 and shortly thereafter began residing with her and her family. During the relevant time period, the petitioner, the victim's mother, the victim, and the victim's three younger siblings all occupied a three bedroom apartment in Naugatuck. The petitioner was then forty-eight or forty-nine years old, and the victim was fourteen years old. The victim's boyfriend, Brandon Jones, then seventeen years old, and a family friend, Scott Beasley, also lived with the family in the apartment for substantial periods of time.

         At the beginning of the marriage between the petitioner and the victim's mother, the victim's relationship with the petitioner was, by the victim's account, warm and close. The victim, who had no relationship with her biological father, considered the petitioner ‘‘like my father figure.'' The petitioner would take the victim and her siblings for rides on his motorcycle and to a park to play. The victim would confide in the petitioner about personal problems, such as if she had an argument with her boyfriend.

         That relationship, however, soon began to change. One day the petitioner approached the victim to talk about sex. As the victim later testified at trial: ‘‘[the petitioner] would say that he wanted to talk to me about having sex because . . . I was a virgin, and he wanted me to not be scared for the situations that I would have when I was older and I did start having sex.'' The victim testified that as a result of this conversation she ‘‘was in shock . . . cause I really didn't think that he would say something like that . . . cause I considered him like my father.''

         The petitioner then took things further. During one instance in which he approached the victim and started to talk about sex, the petitioner began kissing the victim on her mouth and breasts, stopping only when her mother entered the house. The victim described several more instances of sexual contact with the petitioner. The second instance occurred when the victim stepped out of the shower to find the petitioner standing in the bathroom. The petitioner began kissing the victim's mouth and breasts and inserted his fingers into her vagina. The third incident occurred as the victim was changing clothes in the bathroom. The petitioner entered and again began kissing the petitioner's mouth and breasts and digitally penetrated her. The fourth incident occurred when the victim was again in the bathroom, this time arranging her hair and texting on her phone. As the victim was sitting on the toilet, the petitioner entered the bathroom and approached her. After a few moments, the petitioner exposed his penis and, as the victim testified, ‘‘pushed [her] head forward and . . . made [her] move [her] mouth on his penis.'' The victim testified that she did not remember any of the dates on which the incidents occurred, but that they all happened in the ‘‘summertime'' of 2009.[4] She later testified that ‘‘[i]t was at . . . the end of the summertime that this all started that we were just starting to go back to school.'' When asked by the court whether ‘‘summertime'' meant ‘‘like, August, '' the victim responded affirmatively.

         The victim reported the abuse to Jones and then to her mother. The victim's mother forced the petitioner to leave the apartment. Shortly thereafter, the victim's mother took the victim to the family's nurse practitioner, Judy Moskal-Kanz, for a physical examination. The victim recounted the sexual abuse to Moskal-Kanz. Moskal-Kanz did not find any physical evidence of sexual abuse as a result of the physical examination. After the appointment with Moskal-Kanz, the victim reported the abuse to a detective at the Naugatuck Police Department and an investigator with the Department of Children and Families (department).

         The petitioner was represented at trial by public defender Tashun Bowden-Lewis. The prosecution's case-in-chief consisted of testimony from the victim, the victim's mother, Jones, Beasley, Moskal-Kanz, and the department investigator. The petitioner's case-in-chief consisted solely of his own testimony, in which he denied the allegations. In closing argument, the petitioner highlighted inconsistencies in the victim's testimony and prior statements, as well as the lack of any physical evidence of abuse. The petitioner also contended that the victim had fabricated the charges to retaliate against the petitioner because he had earlier, along with the victim's mother, ordered Jones to move out of the apartment. After a two day trial, the court found the petitioner guilty of the previously discussed three counts. The court sentenced the petitioner to a total effective term of twenty years imprisonment, execution suspended after twelve years, and twenty years of probation.

         In 2014, the petitioner, represented by Attorney Jason C. Goddard, filed an amended petition for a writ of habeas corpus, wherein the petitioner alleged that his criminal trial counsel rendered ineffective assistance by, inter alia, failing to obtain records pertaining to the victim, including the victim's school records, in addition to other alleged failures in the pretrial investigative process. After a trial, the habeas court, Fuger, J., for reasons detailed below, denied the petition but granted the petitioner certification to appeal. The petitioner then brought the present appeal.

         I

         The petitioner first claims that the habeas court erred when it declined to conduct an in camera review of the victim's school records. The respondent, the Commissioner of Correction, argues, however, that the habeas court merely issued a preliminary denial as to the school records, and that because the petitioner did not renew his motion for an in camera review, the petitioner failed to preserve the issue for appeal. We agree with the respondent, and accordingly decline to review the merits of this claim.

         The following additional information is relevant to our discussion. Prior to the habeas trial, the petitioner filed a motion with the habeas court requesting disclosure of, inter alia, ‘‘[a]n unredacted copy of the victim's school records'' from two high schools she attended. The petitioner did not provide any reasons in the motion as to why such records would contain exculpatory information.

         The petitioner subpoenaed the records from the Naugatuck public schools, and an attorney for the schools brought the records, under seal pursuant to General Statutes § 10-15b, [5] to the court on the morning of the habeas trial. At the beginning of the trial, the habeas court questioned the petitioner as to the relevancy of the victim's school records. The petitioner's attorney responded in part: ‘‘During the trial [the victim] had indicated . . . that one of the instances [of abuse] occurred. She recalled one of the instances because she had gotten into trouble in school that day.[6] So, I looked to-to verify that-sort of, to see if there was any-any truth to that, and . . . I needed the school records to see if there was any sort of disciplinary action taken in and around the time . . . of the incident.'' (Footnote added.)

         After several more exchanges, the court stated: ‘‘Well . . . at this point I don't see any reason that I need to examine them. . . . Again, I'm not going to categorically rule out that there's that possibility because I haven't heard anything, but based on what I have heard, it doesn't seem like it's too likely . . . . I'm going to allow the subpoenaed records to be lodged with the court. . . . Now, both of these records [the school records and other records the petitioner subpoenaed] shall remain sealed. In the event we get to the point that I think it might be necessary to determine whether they should be unsealed, then we'll bring that up on a second day of trial, so that I don't have to tie up [the individuals who brought the records to the court]. So, I'm going to put the onus on you, Mr. Goddard, to- you know, you've got to convince me that you're over the hurdle . . . . Until that, I'm not going to order them unsealed. Is that clear?'' The petitioner's attorney replied that it was.

         Although the petitioner questioned his criminal trial counsel at the habeas trial concerning the latter's decision not to seek disclosure of the school records, the petitioner never renewed his motion for in camera review of the records or otherwise sought a definitive ruling from the court on the matter before the close of evidence. In lieu of oral closing arguments, the petitioner and the respondent submitted posttrial briefs.

         The following legal principles govern our disposition of this claim. ‘‘Practice Book § 60-5 provides in relevant part that [t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge. . . . We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.'' (Internal quotation marks omitted.) Ferraro v. Ridgefield European Motors, Inc., 313 Conn. 735, 758-59, 99 A.3d 1114 (2014). Our Supreme Court has concluded that the failure to renew a motion following a preliminary denial results in abandonment of that claim on appeal. See, e.g., State v. Francis, 246 Conn. 339, 352, 717 A.2d 696 (1998) (‘‘because the trial court had ruled only preliminarily and allowed the defendant the opportunity to renew this line of questioning once its relevancy had been established, we conclude that this issue is not reviewable'').

         At the outset, we conclude that the previously discussed ruling of the habeas court was a preliminary one. It was, therefore, ‘‘incumbent on the [petitioner] to seek a definitive ruling . . . in order fully to comply with the requirements of our rules of practice for preserving his claim of error . . . .'' State v. Johnson, 214 Conn. 161, 170, 571 A.2d 79 (1990). The fact that the ruling was preliminary, and that the petitioner was free, at a point later in the habeas trial, to make his offer of proof ...


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