Ruiz v. Comm'r of Corr.

156 Conn.App. 321

113 A.3d 485

Jesus RUIZ

v.COMMISSIONER OF CORRECTION.

No. 36175.

Appellate Court of Connecticut.

Argued Nov. 13, 2014.

Decided April 7, 2015.

Damon A.R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, for the appellant (petitioner).

Lisa Herskowitz, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and SHELDON and FLYNN, Js.

Opinion

SHELDON, J.

The petitioner, Jesus Ruiz, appeals from the judgment of the habeas court, denying his petition for a writ of habeas corpus, challenging his conviction of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2), one count of risk of injury to a child in violation of General Statutes § 53–21(a)(2) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A). On appeal, the petitioner claims that the habeas court improperly rejected his claims of ineffective assistance of counsel. Specifically, he claims that the habeas court improperly determined that (1) he was not prejudiced by his trial counsel's allegedly deficient performance in representing him at a pretrial hearing on the state's motion in limine seeking permission to videotape the testimony of the child victim¹ in his absence pursuant to State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988),² and (2) his trial counsel's decision not to pursue a suggestibility defense at trial did not constitute deficient performance. We reverse in part and affirm in part the judgment of the habeas court.

This court affirmed the petitioner's conviction in State v. Ruiz, 124 Conn.App. 118, 3 A.3d 1021, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010). In so doing, the court recited the following relevant facts: “The charges against the [petitioner] arise out of two incidents of inappropriate sexual contact he had with [the victim]. In January, 2006, the [petitioner] resided with [the victim], [the victim's] mother and [the victim's] older brother, S. [The victim's] younger sister, C, resided with an aunt. At the time of trial, [the victim] was eleven years old. The offenses occurred sometime between 2002 and 2003 when [the victim] was five or six years old and in the first or second grade. In January, 2006, when [the victim] was nine years old, she met with her school guidance counselor and Amy Gionfriddo, an investigative social worker for the department of children and families (department), regarding an unrelated matter. At that time, [the victim] reported to Gionfriddo one instance of sexual abuse by the [petitioner]. [The victim] went to live with her aunt and C during the investigation of that abuse. In April, 2006, [the victim] revealed to Carla Barrows, a department social worker assigned to the family and who conducted regular visits with [the victim] at her aunt's home, a second instance of the [petitioner's] abuse.” (Footnote omitted.) Id., at 120, 3 A.3d 1021.

On October 2, 2012, the petitioner filed an amended petition for a writ of habeas corpus, claiming, inter alia, ineffective assistance of his trial counsel.³ Following a trial, the habeas court filed a memorandum of decision on September 4, 2013, rejecting the petitioner's claims that his trial counsel, John Ivers and Robert Casale, provided ineffective assistance in failing (1) at a Jarzbek hearing, to conduct an adequate cross-examination of the state's expert witness and to present an expert witness to rebut the state's claim, and (2) at trial, to pursue a suggestibility defense.⁴ The habeas court found that the petitioner failed to prove that the outcome of his criminal trial would have been different but for his attorneys' allegedly deficient performance in connection with the Jarzbek hearing and, thus, that he failed to prove that he was prejudiced by said performance. The habeas court also found that counsel's decision not to pursue a suggestibility defense did not constitute deficient performance. The habeas court thus concluded that the petitioner was not deprived of his right to the effective assistance of counsel and denied his petition. On October 3, 2013, the court granted the petitioner's request for certification to appeal and this appeal followed.

We begin with the applicable standard of review and the law governing ineffective assistance of counsel claims. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary....

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong....

“To satisfy the performance prong [of the Strickland test] 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 and skill in the criminal law.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy....

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Holloway v. Commissioner of Correction, 145 Conn.App. 353, 363–65, 77 A.3d 777 (2013). With those principles in mind, we turn to the petitioner's claims on appeal.

I

The petitioner first challenges the habeas court's rejection of his claim that he was denied the effective assistance of counsel at his Jarzbek hearing. The petitioner contends that his trial counsel's representation of him at the Jarzbek hearing was deficient and that that deficiency resulted in the court's granting of the state's motion to videotape the victim's testimony, thereby depriving him of his right to confrontation under the sixth and fourteenth amendments to the United States constitution. The habeas court did not address the petitioner's claims of deficient performance, but, instead, rejected his claim of ineffective assistance on the ground that he failed to prove that he was prejudiced by any allegedly deficient performance, reasoning that even if the victim had testified in the presence of the petitioner, it is unlikely that her testimony would have been different from her videotaped testimony. The petitioner challenges the legality of the habeas court's determination that he was not prejudiced by his attorneys' allegedly deficient performance in representing him at the Jarzbek hearing, and argues that a presumption of prejudice arises when the right to confrontation is violated and, thus, that the habeas court erred in requiring him to prove that the outcome of his trial would have been different but for his counsel's alleged deficient performance. Although we disagree with the petitioner's contention that a presumption of prejudice arises any time the right to confrontation is violated, we conclude that the habeas court improperly based its lack of prejudice determination on the conclusion that the victim's testimony would have been the same as her videotaped testimony had she testified in the presence of the petitioner.

The following additional facts are relevant to the petitioner's challenge to the habeas court's prejudice determination. Prior to trial, “[t]he state filed a motion to videotape [the victim's] testimony outside the presence of the [petitioner] pursuant to [General Statutes] § 54–86g (a) and State v. Jarzbek, supra, 204 Conn. at 704–705, 529 A.2d 1245. The court held a hearing to determine whether [the victim] had the ability to testify reliably in the presence of the [petitioner]. Pamela Goldin, a licensed clinical social worker employed by the Child Guidance Clinic for Central Connecticut, Inc., for more than twenty-seven years, testified that she had been treating [the victim] for two years. According to Goldin, [the victim] has ‘weak language skills,’ ‘[h]er ability to express herself is below average for her age,’ she has poor self-esteem, she becomes ‘overwhelmed with anxiety’ and she is ‘very easily intimidated.’

“Goldin discussed a specific experience with [the victim]. She testified that [the victim] was distraught that her mother did not believe the accusations that she had made about the [petitioner]. When Goldin and [the victim] prepared for a session at which [the victim's] mother also would be present, Goldin testified that [the victim] talked at length about all the things ...