Ruiz v. Warden

Jesus RUIZ (Inmate #244594) v. WARDEN

No. CV104003608S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

June 29, 2018

UNPUBLISHED OPINION

OPINION

Kwak J., Superior Court Judge

The present matter has a lengthy procedural history, which began with the filing of a pro se petition in 2010, and which will detailed more fully below. The matter came before this court for proceedings pursuant to the Appellate Court’s remand in Ruiz v. Commissioner of Correction, 156 Conn.App 321, 113 A.3d 485 (2015). Specifically, the remand order states: "... this case must be remanded to the habeas court for consideration of prejudice in accordance with this opinion, and, if necessary for the ultimate resolution of the petitioner’s ineffective assistance claim consideration of the petitioner’s allegations of deficient performance, and any applicable special defenses filed by the respondent, the Commissioner of Correction." (Emphasis added.) Id., 338.

The parties appeared before this court on November 27, 2017, for a single day of evidence. Both parties entered various documents into evidence that supplemented the evidence entered previously. Dr. David Mantell, the petitioner, and Pamela Goldin, all three of whom testified previously, again testified. The parties filed post-trial briefs.

For the reasons articulated more fully below, judgment enters denying the remanded claim.

PROCEDURAL HISTORY

The petitioner was charged with 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). The petitioner proceeded to a jury trial in which he was represented by attorneys John Ivers and Robert Casale. The jury returned guilty verdicts on all four counts. The petitioner was sentenced to a total effective sentence of seventeen years of incarceration, suspended after the service of twelve years, followed by ten years of probation.

The petitioner appealed from the judgment of conviction. Represented by appellate counsel attorney Carlos Candal, the petitioner "claim[ed] that (1) the trial court improperly granted the state’s motion, made pursuant to General Statutes § 54-86g(a), to allow the victim, N, ... to testify outside the [petitioner’s] presence and to present her testimony to the jury via videotape, and (2) certain remarks made by the prosecutor during closing arguments to the jury were improper and caused substantial prejudice, which denied the [petitioner] a fair trial." (Footnote omitted.) State v. Ruiz, 124 Conn.App. 118, 3 A.3d 1021, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010).

The Appellate Court summarized the relevant facts and procedural history: "The charges against the defendant arise out of two incidents of inappropriate sexual contact he had with N. In January 2006, the defendant resided with N, N’s mother and N’s older brother, S. N’s younger sister, C, resided with an aunt. At the time of the trial, N was eleven years old. The offenses occurred sometime between 2002 and 2003 when N was five or six years old and in the first or second grade. In January 2006, when N 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.^[1] At that time, N reported to Gionfriddo one instance of sexual abuse by the defendant. N went to live with her aunt and C during the investigation of that abuse. In April 2006, N revealed to Carla Barrows, a department social worker assigned to the family and who conducted regular visits with N at her aunt’s house, a second instance of the defendant’s abuse."^[2] (Footnotes renumbered.) Id., 120.

Of the two claims raised on direct appeal, the Appellate Court’s discussion of the first claim is both relevant and important to the present limited remand and, although lengthy, is restated in full.

"Regarding the defendant’s first claim, the issue to be resolved is whether, in a criminal prosecution involving the alleged sexual abuse of a child, the victim may testify through the use of a videotape made outside the presence of the defendant if the court has concluded, after an evidentiary hearing, that the state has demonstrated a compelling need to exclude the defendant from the witness room during the videotaping of the victim’s testimony. See State v. Jarzbek, 204 Conn. 683, 684-85, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988).^[3] In this case, the court found, after a hearing pursuant to § 54-86g, that the state had shown a compelling need for the videotaping procedure used.^[4] The defendant claims that the court abused its discretion by allowing N to testify outside his presence because the state failed to show, by clear and convincing evidence, that her testimony would have been less reliable if she had been required to testify in his presence.^[5] He also claims that this mistake deprived him of his constitutional right to confrontation. We disagree.

"The following additional facts are relevant to our resolution of the defendant’s claim. The state filed a motion to videotape N’s testimony outside the presence of the defendant pursuant to § 54-86g(a)^[6] and State v. Jarzbek, supra, 204 Conn. at 704-05, 529 A.2d 1245.

The court held a hearing to determine whether N had the ability to testify reliably in the presence of the defendant. 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 N for two years. According to Goldin, N 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 N. She testified that N was distraught that her mother did not believe the accusations that she had made about the defendant. When Goldin and N prepared for a session at which N’s mother also would be present, Goldin testified that N talked at length about all the things she wanted to make sure she told her mother. Goldin testified that N ‘froze’ when the time came for N to speak to her mother. She could not speak and said very little of what she wanted to say, even though she was in a ‘secure, familiar setting with a number of people there with whom she was comfortable and felt supported.’ Goldin testified that this behavior occurred at two separate sessions. She testified that during her work with N, she and N discussed the allegations that N had made against the defendant ‘so that if she wanted to discuss at length what happened with the defendant that she could. And she did tell me a little bit, but she was clearly uncomfortable discussing it at great length. And I didn’t press her.’ She stated that testifying in the defendant’s presence, in addition to being a ‘real hardship for [N]’ that would ‘set her back emotionally,’ would cause N to ‘freeze.’ Goldin testified: ‘I don’t think she’d speak- I think she’d just be totally intimidated.’ I doubt that she would ... speak in the way that people are going to need her to speak in order to give the information you’ll be asking of her.’

"Following the hearing, the court found: ‘[Goldin] observed [the] child for almost two years. How [N] reacts when this incident would come up. How, when she confronted the mother, she became [mute and] left the room ... [K]nowing this young girl for two years, [Goldin testified that N] could not testify truthfully and reliably in front of the defendant. [Goldin gave] her reasons why, based upon her anxiety level, she’d be frightened, she’d be intimidated, her lower level of education, her low level of esteem ... I find [that] the state has met its burden by clear and convincing evidence pursuant to Jarzbek ... [Goldin] also said that [N] would be so stressed ... I just can’t take two years of treatment and ignore it. She didn’t meet this young girl a week or a month ago.’ Accordingly, the court granted the state’s motion.

"Our standard of review is well established. ‘On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous ... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous ... In evaluating preliminary determinations of the trial court in a criminal case, [t]he evidence will be construed in a way most favorable to sustaining the [determination] ...

" ‘[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible ... [A] trial court must balance [in a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question ... [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for...