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Hickey v. Commissioner of Correction

Supreme Court of Connecticut

July 31, 2018

DENIS HICKEY
v.
COMMISSIONER OF CORRECTION

          Argued March 26, 2018

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Mullins, J.; judgment granting the petition; thereafter, the respondent, on the granting of certification, appealed to the Appellate Court, Lavine, Alvord and Mihalakos, Js., which reversed the trial court's judgment and remanded the case with direction to deny the petition in part and for a new trial, and the respondent, on the granting of certification, appealed to this court. Reversed in part; judgment directed.

          Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellant (respondent).

          Alan Jay Black, for the appellee (petitioner).

          Palmer, McDonald, Robinson, D'Auria and Kahn, Js. [*]

          OPINION

          ROBINSON, J.

         The sole issue in this certified appeal is whether a criminal defendant received the effective assistance of counsel at his trial when his attorney failed to request (1) a limiting instruction contemporaneous with testimony about prior, uncharged sexual misconduct, and (2) the inclusion of language in the trial court's final charge limiting the use of that testimony to the issue of propensity. The respondent, the Commissioner of Correction (commissioner), appeals, upon our grant of his petition for certification, from the judgment of the Appellate Court, which remanded the case to the habeas court, in part, for a new trial on the amended petition for a writ of habeas corpus filed by the petitioner, Denis Hickey.[1] Hickey v. Commissioner of Correction, 162 Conn.App. 505, 524, 133 A.3d 489 (2016). On appeal, the commissioner contends that the Appellate Court improperly created a per se rule requiring defense counsel, upon the introduction of prior, uncharged sexual misconduct evidence, to ask for a contemporaneous limiting instruction and a final charge restricting the use of such evidence to propensity and, in so doing, failed to hold the petitioner to his burden of proof under Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The commissioner also contends that, after concluding that the habeas court improperly analyzed prejudice, the Appellate Court should have engaged in a plenary review of the evidence in the record and determined that the petitioner had failed to prove prejudice. We agree with the commissioner, and conclude that even if we assume, without deciding, that the performance of the petitioner's trial counsel was deficient, the petitioner failed to prove prejudice. We therefore conclude that the petitioner cannot prevail on his claim of ineffective assistance of trial counsel and, accordingly, reverse in part the judgment of the Appellate Court.

         The opinion of the Appellate Court sets forth the relevant facts and procedural history. ‘‘In June, 2009, the petitioner was convicted of one count of sexual assault in the first degree in violation of General Statutes [Rev. to 2001] § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes [Rev. to 2001] § 53-21 (a) (2). . . . At trial, the jury reasonably could have found that the petitioner digitally penetrated the anus of his then girlfriend's five year old daughter (victim)[2] while she and her family were living with the petitioner. . . . The petitioner was sentenced to a term of thirty years in the custody of the respondent, execution suspended after twenty years, and thirty-five years of probation.'' (Citations omitted; footnotes added and omitted.) Hickey v. Commissioner of Correction, supra, 162 Conn.App. 506-507; see also State v. Hickey, 135 Conn.App. 532, 535-36, 43 A.3d 701, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).

         ‘‘Prior to trial, the state gave notice that it would present evidence of the petitioner's prior, uncharged sexual misconduct through the testimony of R.N., a cousin of the petitioner's former wife. [The petitioner's trial] counsel filed a motion in limine with respect to R.N.'s proffered testimony, [3] arguing that the difference in age between the victim and R.N. was too great for them to be similar, that their relationships with the petitioner were dissimilar, and that the events were not proximate in time. . . . After analyzing the proffer under the [three prong test set forth in State v. DeJesus, 288 Conn. 418, 441, 953 A.2d 45 (2008)] the trial court ruled that the state could present R.N.'s proffered testimony.[4] . . . At the time R.N. testified in accordance with the proffer, the [trial] court did not provide a cautionary instruction to the jury.

         ‘‘Prior to the conclusion of evidence, [the petitioner's] trial counsel submitted a request to charge that included a charge on prior, uncharged misconduct. The petitioner's request to charge stated in relevant part: ‘You have also heard testimony in this case about what is called uncharged misconduct. In criminal cases which contain charges such as those in this trial, evidence of a defendant's commission of another offense or offenses may be admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove [the petitioner] guilty of the crimes charged in this trial. Bear in mind as you consider this evidence that at all times the state has the burden of proving beyond a reasonable doubt that [the petitioner] committed each of the elements of the offenses charged in this trial. I remind you that [the petitioner] is not on trial for any act, conduct or offense not charged in the information for this case.'[5]

         ‘‘The trial court charged the jury with respect to prior, uncharged sexual conduct as follows. ‘In a criminal case in which the defendant is charged with a crime exhibiting aberrant and compulsive criminal sexual behavior, evidence of the defendant's commission of another offense or offenses is admissible and may be considered for its bearing on any matters to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the defendant guilty of the . . . crimes charged in the information. Bear in mind, as you consider this evidence that at all times, the state has the burden of proving that the defendant committed each of the elements of the offense charged in the information. I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the information.'[6]

         ‘‘Following his conviction, the petitioner appealed claiming, in part, that the trial court abused its discretion by admitting evidence of his prior, uncharged sexual misconduct involving another minor. . . . The petitioner argued that the ages of the victim and R.N. were not similar and the time of the alleged misconduct involving R.N. and the manner in which it occurred were not similar to the petitioner's sexual assault on the victim. . . . [The Appellate Court] concluded, after distinguishing the cases cited by the petitioner in his brief, that the trial court did not abuse its discretion by admitting R.N.'s testimony under DeJesus. . . . On direct appeal, the petitioner did not claim that the trial court improperly instructed the jury with respect to prior, uncharged misconduct.'' (Citations omitted; footnotes in original.) Hickey v. Commissioner of Correction, supra, 162 Conn.App. 510-14; see State v. Hickey, supra, 135 Conn.App. 543-48.

         After the petitioner's conviction was affirmed on direct appeal, the petitioner's appointed habeas counsel amended a habeas petition that the petitioner had previously filed as a self-represented party. Hickey v. Commissioner of Correction, supra, 162 Conn.App. 515. The amended petition alleged in relevant part that the petitioner's trial counsel ‘‘rendered deficient performance by ‘fail[ing] to ask the trial judge to instruct the jury concerning prior bad acts and the uses a jury could make of them immediately after the evidence was introduced'; ‘fail[ing] to object to an inadequate jury instruction concerning evidence of prior uncharged conduct introduced at trial'; and ‘fail[ing] to posit an adequate jury instruction that would limit the use of the evidence to the issue of propensity and one that would instruct the jury on the uses of bad character as a tendency to commit criminal acts in general.' The amended petition also alleged in relevant part . . . that appellate counsel rendered ineffective assistance by failing to ‘raise the deficient jury instruction on appeal . . . .'

         ‘‘In its memorandum of decision, the habeas court made the following relevant factual findings and legal conclusions. With respect to the petitioner's trial counsel, the court found that he filed a motion in limine to preclude R.N.'s testimony, which was denied by the trial court. During trial, however, trial counsel did not ask the court to provide a cautionary instruction to the jury immediately prior to or after R.N. testified about the petitioner's prior, uncharged sexual misconduct. Moreover, the habeas court found that trial counsel's request to charge as to prior, uncharged sexual misconduct did not limit the use of such evidence to the issue of propensity. The habeas court found that the only instruction the trial court gave the jury with respect to the uncharged misconduct came after the close of evidence and before the case went to the jury, and that the instruction ‘did not limit the use of the evidence to the issue of propensity.' The habeas court concluded that trial counsel's failure to request the appropriate cautionary jury instruction at the proper times constituted deficient performance.

         ‘‘The habeas court also found that the petitioner had satisfied his burden of demonstrating prejudice because ‘there is a reasonable probability that the outcome of the proceedings would have been different had it not been for [the] deficient performance [of petitioner's trial counsel].' The habeas court quoted the summary of R.N.'s testimony as set forth in the concurring opinion of State v.Hickey, supra, 135 Conn.App. 559, but it did not refer to other evidence presented at the petitioner's criminal trial. Rather, the habeas court concluded that in DeJesus, [the court] ‘stressed that it was adopting ‘‘a limited exception to the prohibition on the admission of uncharged misconduct evidence in sexual assault cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior'' . . . and ‘‘to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception adopted . . . must be accompanied by an appropriate cautionary instruction to the jury . . . .''' The habeas court stated that ‘while the court's instruction in the petitioner's case was based on language from DeJesus, it did not follow all of the timing and content requirements of a cautionary instruction repeatedly set forth [in DeJesus]. Given the impact this uncharged sexual misconduct evidence likely had in the petitioner's case, the court finds that there is a reasonable probability that the outcome of the proceedings would have been different had it not been for [the] deficient performance [of the petitioner's trial counsel].' . . . The court, therefore, granted the petition for a writ of habeas corpus on the ground of ineffective assistance of trial counsel.'' (Citations omitted; emphasis in original.) Hickey v.Commissioner of Correction, supra, 162 Conn.App. 515-17; ...


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