Donald G. v. Comm'r of Corr.

203 Conn.App. 58

247 A.3d 182

DONALD G.

v.COMMISSIONER OF CORRECTION^*

AC 42713

Appellate Court of Connecticut.

Argued October 13, 2020

Officially released March 2, 2021

Donald G., self-represented, the appellant (petitioner).

Linda F. Currie-Zeffiro, senior assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Angela Macchiarulo and Michael Proto, senior assistant state's attorneys, for the appellee (respondent).

Prescott, Elgo and Pavia, Js.

PAVIA, J.

Following the granting of certification to appeal by the habeas court, the petitioner, Donald G., appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly rejected his claim that his right to effective assistance of counsel had been violated because his trial counsel (1) neglected to present testimony regarding the petitioner's whereabouts for one of the nights in question, (2) referenced the complainant as the "victim" and failed to object or to request a curative instruction when the prosecutor also referred to the complainant as the "victim," and (3) failed to investigate properly an incident of uncharged misconduct.¹ We disagree and affirm the judgment of the habeas court.

The petitioner was convicted of sexual assault in the first degree, sexual assault in the third degree and three counts of risk of injury to a child. The judgment of conviction for those crimes was affirmed on direct appeal by this court, and our Supreme Court denied his subsequent petition for certification to appeal. See State v. Donald H. G. , 148 Conn. App. 398, 84 A.3d 1216, cert. denied, 311 Conn. 951, 111 A.3d 881 (2014). The following facts, as set forth by this court in State v. Donald H. G. , supra, at 400–404, 84 A.3d 1216, are relevant to the petitioner's appeal.

"The minor victim, who was born in October, 1992, is the niece of the [petitioner]. In the time period between May and October, 2003, when the victim was age ten or 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 kissed the victim, pulled down his pants, and asked the victim to perform fellatio on him. The victim complied, while the [petitioner], who was standing against the wall, guided her head. Before he ejaculated, the [petitioner] warned the victim and told her to swallow it. The victim again complied. The [petitioner] told the victim she was doing a ‘good job.’ The [petitioner] then pulled down the victim's shorts and began to perform cunnilingus on her for a couple of minutes, while looking to make sure no one was entering the room. The [petitioner] also penetrated the victim's vagina with his tongue."

"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 by inserting his fingers into her vagina. The [petitioner] told the victim that she was ‘grown up and mature,’ and he convinced the victim that the sexual assault was their secret. The [petitioner] also asked the victim if she wanted to go to a movie theatre with him. The victim pretended to telephone her mother because she did not want to go with the [petitioner], and she told the [petitioner] that her mother said she could not go with him. On the basis of these facts, 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."

"On or about December 24, 2007, the victim's family had a Christmas party, which the [petitioner] and others attended. During the party, the victim went into the garage, which had an upstairs room with a bar, pool table, television and bathroom, to get a beverage, during which time she encountered the [petitioner]. When the [petitioner] walked by the victim, he slapped her buttocks. ‘[F]lustered and annoyed,’ the victim retreated to her bedroom, where the [petitioner] appeared shortly thereafter. The [petitioner], who had been drinking but did not appear intoxicated, asked the victim to kiss him or to perform fellatio on him. The victim declined, but the [petitioner] began to rub her back and squeeze her buttocks. The [petitioner] also tried to convince the victim to go for a ride with him, but she refused and returned to the party. On the basis of these facts, the state charged the [petitioner] with one count of sexual assault in the third degree and one count of risk of injury to a child."

"On or about [December 22, 2008],² the victim's family again was hosting a Christmas party, which the [petitioner] and others attended. During the party, the victim was watching television in the room above the garage, when the [petitioner], who appeared to be intoxicated, entered the room and asked the victim to make him a cocktail. As she made the cocktail, the [petitioner] kept trying to get close to the victim, but she kept moving away. The victim was scared and just wanted the [petitioner] to let her go. When she tried to exit the room, the [petitioner], whom the victim described as a ‘really big guy [who is] strong,’ pinned her against the wall and began to run his hands down her body, kissing her and grabbing her chest, while holding both of her hands with one of his hands. The victim also testified that the [petitioner] digitally penetrated her vagina during this assault. The victim was afraid, especially because of the [petitioner's] size and the fact that she ‘was a scrawny kid ....’ She ‘just ... wanted help ... [and] didn't want this to happen anymore.’ On the basis of these facts, hereinafter referred to as the ‘2008 Christmas party incident,’ the state charged the [petitioner] with one count of sexual assault in the first degree."

"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 assault in the first degree that stemmed from the [December 22, 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." (Footnote added.) Id. at 400–403, 84 A.3d 1216.

The petitioner appealed from the judgment of conviction, which was affirmed by this court. Id. at 400, 84 A.3d 1216. Thereafter, the petitioner filed a petition for a writ of habeas corpus. The petitioner amended his petition three times and filed his third amended petition on February 20, 2018. In his third amended petition for a writ of habeas corpus, the petitioner asserted that his trial counsel, Attorney Robert Lacobelle, provided ineffective assistance. The following individuals who provided testimony at the habeas trial included: Linda H., the petitioner's mother; Gary H., the petitioner's stepfather; Theresa Charette, a friend of the victim's mother; Charles Stango, a supervising assistant state's attorney and prosecutor at the underlying criminal trial; Daniel Markle, the private investigator that was retained by the petitioner's trial counsel; and the petitioner's trial counsel. Following the trial, the habeas court, Kwak , J. , in a memorandum of decision, denied the petitioner's habeas petition. In doing so, the court concluded that the petitioner had failed to demonstrate that his trial counsel's assistance was ineffective and found that trial counsel's use of different trial strategies for alternate allegations was "highly reasonable and not indicative of deficient performance." The petitioner filed a petition for certification to appeal, which the habeas court granted. This appeal followed.

On appeal, the petitioner claims that the court improperly failed to conclude that his trial counsel was ineffective for (1) failing to present the testimony of four witnesses regarding the petitioner's whereabouts on one of the nights in question, (2) improperly referencing the complainant as the "victim" and failing to object or to request a curative instruction when the prosecutor did the same, and (3) failing to investigate properly an incident of uncharged misconduct. We disagree.

We begin by setting forth the applicable standard of review and the law governing ineffective assistance of counsel claims. "A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. ... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training...