Gibson v. Commissioner of Correction

986 A.2d 303

118 Conn.App. 863

Tony E. GIBSON v. COMMISSIONER OF CORRECTION.

No. 29386.

Appellate Court of Connecticut.

Argued September 11, 2009.

Decided January 19, 2010.

David B. Rozwaski, special public defender, for the appellant (petitioner).

Frederick W. Fawcett, special assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Gerard P. Eisenman, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, LAVINE and FREEDMAN, Js.

FREEDMAN, J.

The petitioner, Tony E. Gibson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and improperly determined that his trial counsel had rendered effective assistance. We conclude that under the circumstances of this case, in which the principal issue involved the question of induced error versus sound trial strategy, the habeas court abused its discretion in denying certification to appeal. We agree, however, with the court's determination that the petitioner's trial counsel rendered effective assistance. Accordingly, we affirm the judgment of the habeas court.

The facts and procedural history underlying the petitioner's appeal have been recounted in prior decisions of this court and our Supreme Court. "The [petitioner] was charged in a five count information with five separate crimes involving C, J and I, three of the daughters of P, to whom the [petitioner] had been engaged. With respect to C, who was eight years old when the crimes were committed, the [petitioner] was charged with sexual assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-70(a)(2) and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(2). With respect to J, who was thirteen years old when the crimes were committed, the [petitioner] was charged with sexual assault in the second degree in violation of General Statutes (Rev. to 1999) § 53a-71(a)(1) and risk of injury to a child in violation of § 53-21(2). With respect to I, who was thirteen years old when the crimes were committed, the [petitioner] was charged with threatening in violation of General Statutes (Rev. to 1999) § 53a-62(a)(1). The [petitioner] was convicted of all five crimes and received a total effective sentence of twenty years imprisonment, execution suspended after sixteen years, and twenty-five years probation." State v. Gibson, 270 Conn. 55, 58-59, 850 A.2d 1040 (2004).

In State v. Gibson, 75 Conn.App. 103, 106-109, 815 A.2d 172 (2003), rev'd in part, 270 Conn. 55, 850 A.2d 1040 (2004), this court determined that the jury reasonably could have found the following facts that are relevant to the present appeal. "The [petitioner] occasionally stayed overnight at the family home of [P, who is] the mother of the three victims of the crimes with which the [petitioner] was accused.... [On the morning in question], after her mother had left, J was in her room when the [petitioner] called her into her mother's bedroom. The [petitioner] told [J] to sit on the bed, which she did. He then removed her pants and pulled her underpants down to her knees. He inserted his penis into her vagina. She was on her back and he was on top of her, moving back and forth. I ... saw J lying on her back with her legs spread and the [petitioner] on top of her, moving back and forth. J had on a top, but no pants or underpants, and the [petitioner] was wearing only a shirt. I went to a fourth sister's room and told her what she had just seen....

"The information alleged that all of the crimes took place during the `early morning hours' or the `morning hours' of August 7, 2000. Over the objection of the [petitioner], J testified that on more than one occasion prior to August 7, 2000, at her home, when her mother was not there, the [petitioner] engaged in sexual intercourse with her. The state acknowledges that those occasions occurred one or two years prior to August 7, 2000. On some of the occasions, the [petitioner] had given [J] money afterward, with which she bought candy.

"The state sought the admission of the prior acts ... to [prove a] common scheme and motive, and the testimony was admitted by the court `for purposes of showing a common design and limited to that.' Before [J] testified ... the court stated [outside of the presence of the jury] that it would admit her testimony but that `[it would] give some cautionary instructions to the jury' as to the proper use of the testimony. The day after the testimony, not having yet given such instructions, the court again stated that it would give such an instruction to tell the jury that the testimony was offered for the purpose of showing `a common design and limited to that.' Later that same day, the court asked the [petitioner] if he wanted such an instruction and [counsel for the petitioner] answered: `It's the position of the [petitioner] that the prejudicial impact of [the testimony] so outweighs the probative value ... that the [petitioner] feels no amount of cautionary instructions would help.' [Counsel for the petitioner] then requested a mistrial, which the court denied. The court then stated: `I'm not going to give an instruction, then. [The petitioner] has ... requested that I not do so, all right? All right.' The court also stated that it might `address [the issue]' during the course `of the charge to the jury.'

"The court gave no instruction during the trial, or in its final instruction to the jury, as to the proper use of the evidence of the prior uncharged misconduct, which had occurred one or two years before August 7, 2000." State v. Gibson, supra, 75 Conn.App. at 106-109, 815 A.2d 172.

"In its final instructions, however, the court advised the jury as to the element of time: `The state has alleged that the [petitioner] committed these crimes at a certain time. It is not essential in a criminal prosecution ... that a crime be proved to have been committed at a precise time alleged. It is sufficient for the state to prove the commission of the crime at any ... time prior to the date of the complaint within the statute of limitations. Time is not an essential element of the offense.' The [petitioner] did not take exception to any portion of the charge or file a written request to charge, pursuant to Practice Book § 42-16, seeking a limiting instruction as to the use of the prior uncharged misconduct evidence.

"During its deliberations, the jury sent a note to the court asking when the [petitioner] had committed the first of the several acts of prior uncharged misconduct described by J. The court responded that there had been no testimony regarding when the prior acts had taken place other than that they had occurred before August 7, 2000. The jury then completed its deliberations and returned a verdict of guilty on all five counts." State v. Gibson, supra, 270 Conn. at 63-64, 850 A.2d 1040.

On direct appeal to this court, the petitioner claimed, as to the sexual assault in the second degree and risk of injury charges involving J, that the omission of a limiting instruction, when combined with the nonspecific language of the court's instruction as to the time that the crimes were committed, absolved the state of having to prove the crimes charged. State v. Gibson, supra, 75 Conn.App. at 115, 815 A.2d 172. The petitioner argued that his claim was constitutional because the instruction compromised his right under the sixth amendment to the United States constitution to be informed of the nature and cause of the charges against him and his due process right to a unanimous verdict. Id., at 117, 815 A.2d 172. The petitioner sought review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine, as embodied in Practice Book § 60-5. State v. Gibson, supra, at 117, 815 A.2d 172.

This court first determined that the petitioner's claim raised a sixth amendment issue that warranted review under Golding. Id., at 118, 815 A.2d 172. It next concluded, with respect to the petitioner's conviction of sexual assault in the second degree, that "[t]he lack of a limiting instruction was exacerbated by the instruction of the court that the [petitioner] could be found guilty without any need for the state to prove the commission of the crime at the precise time alleged and that it was `sufficient for the state to prove the commission of the crime ... at any time prior to the date of the complaint....' The combination almost surely guarantee[d] a verdict of guilt ... because the uncharged misconduct evidence was likely used by the jury for the substantive purpose of proving the charged crime...." (Citation omitted; internal quotation marks omitted.) Id., at 120, 815 A.2d 172. This court reached a similar conclusion with respect to the count charging the petitioner with risk of injury to a child as to J.¹ This court, therefore, reversed the petitioner's conviction of sexual assault in the second degree and risk of injury to a child with respect to J and ordered a new trial on those counts. Id., at 133, 815 A.2d 172.

Following our Supreme Court's grant of certification, the state appealed from the Appellate Court's judgment to the Supreme Court, which reversed the judgment in part and remanded the case to this court with direction to render judgment affirming the trial court's judgment. State v. Gibson, supra, 270 Conn. at 69, 850 A.2d 1040. The Supreme Court concluded that even if the trial court's failure to give a limiting instruction as to the prior uncharged misconduct evidence was error, such error was induced by the petitioner. Id., at 66, 850 A.2d 1040. Specifically, the Supreme Court "conclude[d] that any error stemming from the trial court's failure to give a limiting instruction on the uncharged...