Donald G. v. Comm'r of Corr.

311 A.3d 187

224 Conn.App. 93

DONALD G.

v.COMMISSIONER OF CORRECTION^*

(AC 45422)

Appellate Court of Connecticut.

Argued September 19, 2023

Officially Released March 5, 2024

James E. Mortimer, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Margaret E. Kelley, state’s attorney, and Angela R. Macchiarulo, supervisory assistant state’s attorney, for the appellee (respondent).

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

BRIGHT, C. J.

₉₆In this certified appeal, the petitioner, Donald G., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court improperly (1) failed to consider two of his claims of ineffective assistance of appellate counsel and (2) concluded that his appellate counsel did not render ineffective assistance by failing to raise claims of prosecutorial impropriety on direct appeal from the petitioner’s criminal conviction. We affirm the judgment of the habeas court.

On the basis of the evidence presented at the petitioner’s criminal trial, the jury reasonably could have found the following facts, as set forth by this court in the petitioner’s direct appeal. "The minor victim … is the niece of the [petitioner]. In the time period between May and October, 2003, when the victim was age ten ₉₇or eleven, she, along with her sister and her friend, went to the [petitioner’s] workplace to help him paint the interior of the building. The victim went upstairs to paint the office while her sister and her friend remained downstairs. The [petitioner] entered the office," where he sexually assaulted the victim. State v. Donald H. G., 148 Conn. App. 398, 400, 84 A.3d 1216, cert. denied, 311 Conn. 951, 111 A.3d 881 (2014). "The [petitioner] later took the victim’s sister and the victim’s friend home, but he returned to his workplace with the victim where he continued to sexually assault her …. On the basis of these facts, [hereinafter referred to as the 2003 incident] the state charged the [petitioner] with one count of sexual assault in the first degree and two counts of risk of injury to a child." Id., at 401, 84 A.3d 1216. The state also charged the petitioner with (1) one count of sexual assault in the third degree and one count of risk of injury to a child in connection with an incident involving the victim at a 2007 Christmas party hosted by her family and (2) one count of sexual assault in the first degree in connection with another incident involving the victim at a 2008 Christmas party hosted by her family. Id., at 401-402, 84 A.3d 1216.

"On July 2, 2009, the victim, while staying with a friend’s family due to a deterioration in her relationship with her family, confided in her friend’s mother that the [petitioner] repeatedly had sexually abused her. A few days later, the friend’s mother drove the victim to the police station to report the sexual abuse. The victim made further disclosures to the police on August 27, 2009, and September 5, 2009.

"The [petitioner] was arrested and charged, by way of an amended information, with two counts of sexual assault in the first degree, one count of sexual assault in the third degree, and three counts of risk of injury to a child. The jury found the [petitioner] guilty of all charges with the exception of the count of sexual ₉₈assault in the first degree that stemmed from the 2008 Christmas party incident, for which the jury returned a verdict of not guilty. The court accepted the jury’s verdict, rendered judgment of conviction on five counts, and imposed a total effective sentence of thirty years [of] incarceration, ten years of which were mandatory, followed by five years of parole with special conditions, and lifetime registration as a sexual offender." Id., at 402-403, 84 A.3d 1216.

The petitioner appealed from his conviction, claiming that "(1) the court erred in allowing the state to introduce evidence of uncharged misconduct, (2) the court erred when it refused to conduct an in camera review of the victim’s psychological records, (3) the court’s improper response to a question posed by the jury during its deliberations deprived him of a fair trial, and (4) the prosecutor committed prejudicial impropriety during closing and rebuttal argument."¹ Id., at 400, 84 A.3d 1216. This court rejected the petitioner’s claims and affirmed the judgment of conviction. Id. The petitioner was represented in his direct appeal by Attorney W. Theodore Koch III.

Thereafter, the petitioner filed his first petition for a writ of habeas corpus, claiming that his trial counsel, Attorney Robert A, Lacobelle (defense counsel), provided ineffective assistance in that he (1) failed to call four witnesses in support of an alibi defense, (2) allegedly had a conflict of interest, (3) improperly referred to the complainant as the "victim" during trial and failed to object or request a curative instruction when the prosecutor did the same, and (4) failed to adequately investigate an alleged incident of uncharged misconduct that the state introduced at trial. After a trial on ₉₉the merits, the court, Kwak, J., denied the petition. See Donald G. v. Commissioner of Correction, 203 Conn. App. 58, 63, 247 A.3d 182, cert. denied, 337 Conn. 907, 253.A.3d 45 (2021). The petitioner subsequently filed a petition for certification to appeal, which the habeas court granted. Id. This court affirmed the judgment, and our Supreme Court denied the petitioner’s subsequent petition for certification to appeal. See Donald G. v. Commissioner of Correction, 337 Conn. 907, 253 A.3d 45 (2021).

In 2017, the self-represented petitioner initiated the present habeas action, claiming that Koch had rendered ineffective assistance. On May 24, 2021, the petitioner filed the operative petition—his second amended petition. In the operative petition, the petitioner raised ten separate "grounds" for relief, only three of which are relevant to the present appeal. First, the petitioner claimed in "ground three" that Koch rendered ineffective assistance by failing to raise on direct appeal a claim that the petitioner was prejudiced by the prosecutor’s and defense counsel’s references to the complainant as the "victim" during trial in violation of a court order. Second, the petitioner alleged in "ground nine" that the prosecutor had improperly identified in the trial audience the third girl whom the victim had testified was present during the 2003 incident and improperly made a comment during closing argument that implied that the petitioner had lied to Detective Steven Young when Young interviewed him about the 2003 incident. The petitioner also alleged that the state’s failure to provide the defense with a complete copy of Young’s notes from that interview regarding the number of girls on the scene of the 2003 incident violated his right to confrontation and constituted a violation of Brady v. Maryland, 878 U.S. 88, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The petitioner then alleged in "ground ten" that Koch performed deficiently by "failing ₁₀₀to raise the significant [and] obvious claims described in ground nine … [on] direct appeal over issues actually raised" and that Koch’s deficient performance prejudiced him.

The respondent, the Commissioner of Correction, left the petitioner to his proof on grounds three and ten and raised several affirmative defenses to ground nine, including that the petitioner had failed to state a claim on which relief could be granted, that he had procedurally defaulted on that claim and that he was barred from raising it by the doctrine of res judicata, all of which the petitioner denied in his reply.

The habeas court, Oliver, J., held a one day trial on July 26, 2021, during which the petitioner represented himself with the assistance of court-appointed standby counsel. The petitioner presented the testimony of Koch and the prosecutor from his criminal trial, Attorney Charles M. Stango Following trial, the petitioner filed a brief, and the respondent filed a notice that he would not file a posttrial brief because the petitioner had failed to proffer any evidence in support of his claims. On January 20, 2022, the court issued a memorandum of decision, in which it rejected the respondent's affirmative defenses but nevertheless denied the petitioner’s habeas petition due to his failure to prove his claims. This certified appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner claims that the habeas court improperly (1) failed to review his claims that Koch had rendered ineffective assistance by not raising a Brady claim and a claim that the prosecutor had improperly stated, during closing argument to the jury that the petitioner had lied to a police detective, and (2) concluded that the petitioner’s right to effective assistance of appellate counsel was not violated when Koch failed to raise two other claims of prosecutorial ₁₀₁impropriety on direct appeal. We address each claim in turn.

I

The petitioner first claims that the habeas court erroneously concluded that the operative petition did not allege that Koch rendered ineffective assistance by failing to raise (1) a Brady claim arising out of the state’s suppression of a complete copy of Young’s notes and (2) a prosecutorial impropriety claim relating to the prosecutor’s statement during rebuttal argument to the jury that the petitioner had "told Detective Young some BS," and that the court thus improperly failed to consider those claims. We agree with the petitioner, but because we conclude that both claims would have failed on their merits had Koch raised them on direct appeal, the court’s error was harmless.

A

The following additional facts, as undisputed in the record, and procedural history inform our analysis. In its memorandum of decision denying the habeas petition, the habeas court interpreted the operative petition as "[raising] a single claim of...