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Michael D. v. Commissioner of Correction

Appellate Court of Connecticut

December 24, 2019

MICHAEL D.
v.
COMMISSIONER OF CORRECTION[*] ##

         Argued September 18, 2019

         

         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.

         COUNSEL:

          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).

          Judges: DiPentima, C. J., and Bright and Lavery, Js. In this opinion the other judges concurred.

         OPINION

Page 393

         [195 Conn.App. 7] 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.

Page 394

          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 [195 Conn.App. 8] 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 [195 Conn.App. 9] 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 ...


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