Michael D. v. Commissioner of Correction

          Argued September 18, 2019

         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, Kwak, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Bright and Lavery, Js.

          OPINION

          LAVERY, J.

         The petitioner, Michael D., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the habeas court erred in concluding that he did not prove that his trial counsel provided ineffective assistance of counsel by failing (1) to ensure that a pornographic magazine was not admitted into evidence by ensuring that the trial court conduct an in camera review of the magazine and (2) to request a specific unanimity instruction. We disagree and affirm the judgment of the habeas court.

         The following facts-as gleaned from the record, by this court in the petitioner's direct appeal from his conviction and by the habeas court in its memorandum of decision-and procedural history are relevant to our disposition of the appeal. ‘‘The [petitioner] and Ann P. were married in December, 1999. At the time of their marriage, Ann P. had a six year old daughter from a previous relationship, the victim. From 1999 until 2005, the [petitioner] lived with [Ann P.] and the victim in Meriden. The state alleged that the [petitioner] sexually assaulted the victim on three separate occasions between 2001 and 2003. The victim testified that the assaults had taken place at intervals of approximately one year . . . .

         ‘‘In October, 2004, Ann P. became suspicious that the [petitioner] was having an affair. Believing that she might find evidence of her husband's suspected infidelity, Ann P. searched the vehicle the [petitioner] regularly drove . . . . Secreted in a small storage space behind the rear row of seats in the vehicle she found a plastic bag. Upon examining the contents of the bag, she discovered that it contained several articles of her daughter's outgrown clothing . . . and two pornographic magazines: an unnamed adult fetish magazine and another magazine entitled ‘Barely Legal,' in which young females were depicted in sexually suggestive settings and poses. . . . At some point, she went through the bag and discovered that some of her daughter's clothing felt ‘stiff' to the touch, which she attributed to the possible presence of semen. Shortly after discovering the bag and its contents, Ann P. filed for divorce. The divorce was finalized in February, 2005.

         ‘‘In the years following the divorce, Ann P. occasionally asked her daughter ‘in a roundabout way' whether ‘anybody [had] ever done anything' inappropriate to her. . . . She disclosed at that time that the [petitioner] had sexually assaulted her.'' State v. Michael D., 153 Conn.App. 296, 299-301, 101 A.3d 298, cert. denied, 314 Conn. 951, 103 A.3d 978 (2014).

         On October 27, 2009, the petitioner was arrested and charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and risk of injury to a child in violation of § 53-21 (a) (2). He was represented by public defenders Joseph Lopez and Tejas Bhatt. Prior to trial, in a memorandum of law in support of a motion in limine filed on January 18, 2012, defense counsel moved to preclude from evidence the ‘‘Barely Legal'' magazine (magazine) and the shorts found in the petitioner's car on the grounds that such items were ‘‘immaterial, irrelevant, unreliable and, even if relevant, their admission would be unfairly prejudicial and outweigh whatever minimal probative value they possess.'' In support of the motion, trial counsel presented the testimony of Dennis Gibeau, a clinical psychologist specializing in the assessment and treatment of sexual offenders.^[1] The trial court denied this motion, and counsel orally renewed the motion. The court stood by its prior ruling and admitted the magazine as a full exhibit at trial.

         The petitioner was convicted, after a three day jury trial, of both risk of injury to a child charges but was acquitted of the sexual assault charge. He subsequently filed adirect appeal, and this court affirmed the petitioner's conviction. See State v. Michael D., supra, 153 Conn.App. 299.

         On June 12, 2017, the petitioner filed the operative amended habeas petition, in which he alleged that his criminal trial counsel, attorneys Lopez and Bhatt, had provided ineffective assistance of counsel. Following a trial on December 11, 2017, the habeas court denied the petition in a written memorandum of decision issued on April 9, 2018. The petitioner then filed a petition for certification to appeal the habeas court's decision on April 17, 2018, which the court granted on April 19, 2018. This appeal followed.

         The petitioner claims that the habeas court erred in concluding that he failed to prove ineffective assistance of counsel by his trial attorneys. He contends that Lopez and Bhatt rendered ineffective assistance by failing (1) to assert a proper challenge to the admission of the magazine into evidence by ensuring that the trial court conducted an in camera review of the magazine and (2) to request a specific unanimity instruction. We are not persuaded.

         ‘‘In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our 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.'' (Internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 720, 789 A.2d 1046 (2002).

         ‘‘A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).'' (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

         The petitioner has the burden of establishing that ‘‘(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.'' (Emphasis omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).

         Ultimately, ‘‘[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'' Strickland v. Washington, supra, 466 U.S. 686. ‘‘A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong . . . .'' (Internal quotation marks omitted.) Brian S. v. Commissioner of Correction, 172 Conn.App. 535, 539, 160 A.3d 1110, cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017).

         I

         We first address the petitioner's claim that the habeas court erred in concluding that he had failed to prove that trial counsel had rendered ineffective assistance by failing to challenge the admission of the magazine into evidence by ensuring that the trial court conduct an in camera review of the magazine. He contends that the attorneys were aware of the impact the magazine could have on the jury. In particular, the petitioner argues: ‘‘They also knew that it needed to be understood to appreciate how irrelevant and prejudicial it truly was. They failed to take steps to make [the trial court] understand the magazine . . . .'' (Emphasis in original.) Specifically, the habeas court found that the petitioner's amended petition claimed that trial counsel provided ineffective assistance by ‘‘failing to (1) file a written request for an in camera review of the ‘Barely Legal' magazine found in the petitioner's vehicle, (2) ask the trial court to articulate whether it had made an in camera review of the magazine, [and] (3) ask the trial court to reconsider its ruling based on an in camera review of the magazine . . . .'' The respondent, the Commissioner of Correction, argues that the habeas court was correct in concluding that the petitioner failed to prove that ‘‘his counsel performed deficiently in their efforts to preclude the magazine, where they filed a motion in limine and presented testimony, evidence, and argument in support of the motion . . . .'' We agree with the respondent.

         ‘‘To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the [s]ixth [a]mendment.'' (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. ‘‘It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the ‘counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial.'' Jones v. Commissioner of Correction, 169 Conn.App. 405, 415-16, 150 A.3d 757 (2016), cert. denied, 324 Conn. 909, 152 A.3d 1246 (2017). When assessing trial counsel's performance, the habeas court is required to ‘‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'' Strickland v. Washington, supra, 689.

         Both trial attorneys testified at the habeas trial and conceded that neither conclusively knew whether the trial court ever had reviewed the contents of the magazine. They also testified, however, to the numerous steps they took in their attempt to preclude the magazine from being admitted into evidence. When Attorney Lopez asked the trial court to reconsider its ruling, he specifically asked the court to review the contents, and not just the cover, of the magazine in balancing its potential prejudicial effect against its probative value. The trial court responded that it would review the magazine's contents and rule on the petitioner's request for reconsideration the next morning.^[2] Additionally, Attorney Bhatt orally requested that the trial court articulate the relevancy of the magazine as related to the petitioner's ...