COMMISSIONER OF CORRECTION[*] ##
September 18, 2019
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
L. O'Brien, assigned counsel, with whom, on the brief,
was Christopher Y. Duby, assigned counsel, for the appellant
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.
Conn.App. 7] LAVERY, J.
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
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,
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).
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