Opinion
CV104003608S
06-29-2018
Jesus RUIZ (Inmate #244594) v. WARDEN
UNPUBLISHED OPINION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. 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." (Footnotes renumbered.) Id., 120.
"The unrelated matter involved a nonsexual incident between N and S concerning a knife and did not involve the defendant."
"N and C, after spending time in foster care, eventually went to live with a different aunt, who obtained legal custody of N in August 2007."
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). 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. 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. He also claims that this mistake deprived him of his constitutional right to confrontation. We disagree.
"In State v. Jarzbek, supra, 204 Conn. at 704, 529 A.2d 1245, our Supreme Court held that ‘in 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.’ (Internal quotation marks omitted.) In re Tayler F., 296 Conn. 524, 540, 995 A.2d 611 (2010)."
"This conclusion is a factual determination of the trial court and is not within the purview of this court; see State v. Jarzbek, supra, 204 Conn. at 706, 529 A.2d 1245; unless there has been an abuse of discretion in the court’s ruling; see State v. Bronson, 258 Conn. 42, 49, 779 A.2d 95 (2001) (trial court abused discretion when it denied request to appoint expert to examine child prior to Jarzbek hearing); or a factual finding which is clearly erroneous. See Auerbach v. Auerbach, 113 Conn.App. 318, 327, 966 A.2d 292 (‘[a] factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made’ [internal quotation marks omitted] ), cert. denied, 292 Conn . 902, 971 A.2d 40 (2009)."
"The defendant maintains that our standard of review is whether the court abused its discretion because ‘an evidentiary ruling is reviewed under an abuse of discretion standard.’ The videotaped testimony however, is not hearsay; its introduction by the court is not an evidentiary exception to the hearsay rule and it is the functional equivalent of testimony in court. State v. Jarzbek, supra, 204 Conn. at 697, 529 A.2d 1245. As such, we review the court’s findings to determine if they were clearly erroneous. See State v. Alterisi, 47 Conn.App. 199, 205, 702 A.2d 651 (1997); see also Practice Book § 60-5."
"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) and State v. Jarzbek, supra, 204 Conn. at 704-05, 529 A.2d 1245.
"General Statutes § 54-86g(a) provides: ‘In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and wellbeing of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.’ "
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 excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question ... [T]he state bears the burden of proving such compelling need by clear and convincing evidence ... The defendant’s right to confrontation is not violated when the state shows, by clear and convincing evidence, that if the victim testified in the defendant’s presence, the victim’s testimony would be less reliable or accurate. See State v. Jarzbek, [supra, 204 Conn. at 704-05, 529 A.2d 1245].’ (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Gombert, 80 Conn.App. 477, 485-86, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004). In summary, [t]he procedures prescribed by § 54-86g(a) are designed to balance carefully both the defendant’s right to confrontation and the state’s interest in securing reliable testimony from minor victims of sexual assault. See General Statutes § 54-86g(a). We approved of virtually identical procedures in State v. Jarzbek, [supra, 204 Conn. at 683, 529 A.2d 1245].’ State v. Arroyo, 284 Conn. 597, 620, 935 A.2d 975 (2007).
" ‘The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist ... State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. [2103, 104] L.Ed.2d 664 (1989).’ (Emphasis in original; internal quotation marks omitted.) In re Giovanni C., 120 Conn.App. 277, 279, 991 A.2d 638 (2010).
"The defendant maintains on appeal that the majority of Goldin’s testimony, and indeed the majority of Goldin’s contact with N during the two years that Goldin treated N, involved N’s relationship with her mother, not the defendant, and, therefore, was insufficient to prove by clear and convincing evidence that it was his presence that would intimidate N. On the basis of our review of the record, we conclude that the court reasonably could have concluded that N had weak language skills, poor self-esteem and a high level of anxiety, and that she was very easily intimidated. The court also reasonably could have concluded that it was highly probable that the defendant’s presence would cause N to ‘freeze’ such that she would not speak at all. ‘The victim’s complete inability to testify destroys any opportunity for reliable or accurate testimony.’ State v. Gombert, supra, 80 Conn.App. at 486, 836 A.2d 437. Viewing the evidence in the light most favorable to sustaining the court’s determination, the court’s decision that the state had shown by clear and convincing evidence that there was a compelling need to videotape N’s testimony outside the [petitioner’s presence was not clearly erroneous. See id.
"The defendant also claims that he was deprived of his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity for cross examination and the witness is unavailable to testify at trial. The defendant does not claim that the court failed to follow the procedures identified in § 54-86g or Jarzbek. Rather, he claims that his right to confrontation requires N to testify in court so that he may confront his accuser face-to-face and that our Supreme Court should reconsider Jarzbek in light of Crawford.
"This claim must fail in light of our Supreme Court’s ruling in State v. Arroyo, supra, 284 Conn. at 597, 935 A.2d 975, in which the court considered the precise constitutional claims raised by the defendant. The Arroyo court, like the court in Jarzbek, considered the importance of face-to-face confrontation. The court noted that criminal defendants do not have ‘the absolute right to a face-to-face meeting with witnesses against them at trial’; (emphasis in original; internal quotation marks omitted) id., at 622, 935 A.2d 975; but, rather, ‘under appropriate circumstances, the state’s interest in securing reliable testimony from the particular child victim in question may outweigh a defendant’s right of face-to-face confrontation.’ Id., at 623, 935 A.2d 975.
"We note that our Supreme Court in State v. Arroyo, supra, 284 Conn. at 622 n. 18, 935 A.2d 975, squarely rejected the defendant’s argument that Crawford undermined the constitutional underpinnings of Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), in which the United States Supreme Court upheld a Maryland statute that permitted a child to testify outside the defendant’s presence. ‘The court in Craig expressly declined to hold that the child witness’ closed circuit testimony constituted out-of-court statements ... Therefore, Craig ’s reliance on [Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled in part by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], among other precedents, for its conclusion that the right to face-to-face confrontation properly may be balanced against competing public interests, does not invalidate its holding that such a balancing is proper.’ (Citation omitted; internal quotation marks omitted.) State v. Arroyo, supra, at 622-23n .18, 935 A.2d 975."
"In the present case, the court’s finding that the state showed, by clear and convincing evidence, that if N testified in the defendant’s presence, her testimony would be less reliable or accurate was not clearly erroneous. The defendant’s right to confrontation is not violated when the state makes that showing. A review of the record reveals that defense counsel had ample opportunity to cross examine N. We note that the defendant does not claim that the court failed to follow the procedures identified in § 54-86g or Jarzbek. We conclude that the defendant’s right to confrontation was not violated." (Footnotes renumbered.) State v. Ruiz, supra, 124 Conn.App. 121-28.
The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on May 20, 2010, and amended for the second time by assigned counsel on October 2, 2012. The second amended petition raised claims in two counts: (1) ineffective assistance of trial counsel; and (2) ineffective assistance of appellate counsel. The respondent’s return denied the petitioner’s claims and asserted procedural default and deliberate bypass as affirmative defenses to any claims that the petitioner could have raised on appeal but did not. The return additionally asserted res judicata to any claims the petitioner was attempting to litigate again after having previously raised them on appeal. The matter proceeded to trial on six different days. The prior habeas court, Sferrazza, J., denied the claims for reasons articulated in a memorandum of decision. Ruiz v. Warden, 53 Conn.Supp. 347, 113 A.3d 497 (2013).
Only the first count of the second amended petition is relevant to the remand. The claim of ineffective assistance of counsel in count one, paragraphs (24)(A) through (M), averred no less than thirteen separately alleged bases for deficient performance by attorneys Ivers and Casale. Although two of these allegations specifically pertained to the Jarzbek hearing (i.e., paragraphs (24)(B) and (C) ), most of the allegations of deficient performance related to the investigation and cross examination, impeachment, and other challenges to various witnesses at the criminal trial itself (i.e., paragraphs (24)(A), and (E) through (M) ). The prior habeas court did not address whether counsel were deficient regarding the Jarzbek hearing; instead, the court resolved the ineffective assistance of trial counsel claims by concluding that the petitioner had failed to prove he was prejudiced. Id., 349-56.
The prior habeas court granted the petition for certification to appeal, and the petitioner so appealed. The petitioner on appeal claimed that the prior habeas court erred when it concluded that he was not prejudiced by counsels’ alleged deficient performance. The Appellate Court disagreed with the petitioner’s contention that prejudice should be presumed when a criminal defendant’s right to confrontation is violated. Ruiz v. Commissioner of Correction, supra, 156 Conn.App. 327-28. The Appellate Court also disagreed with the first habeas court’s prejudice determination as premised "... 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." Id., 328. Relying on a series of criminal cases, the Appellate Court concluded that "[b]ecause the right to confrontation is not absolute, and the violation of that right is subject to harmless error analysis, it stands to reason that, in the context of a habeas proceeding for ineffective assistance of counsel, prejudice is not presumed when that ineffective assistance results in a violation of the right to confrontation. Thus, in a habeas action, the petitioner must show that there is a reasonable probability that, but for his counsel’s allegedly deficient performance, the result of his trial would have been different ..." (Footnote omitted.) Id., 334-35.
It is noteworthy that the Appellate Court concluded in the petitioner’s direct appeal that his right to confrontation was not violated. State v. Ruiz, supra, 124 Conn.App. 127-28 ("... the court’s finding that the state showed, by clear and convincing evidence, that if N testified in the defendant’s presence, her testimony would be less reliable or accurate was not clearly erroneous. The defendant’s right to confrontation is not violated when the state makes that showing. A review of the record reveals that defense counsel had ample opportunity to cross examine N. We note that the defendant does not claim that the court failed to follow the procedures identified in § 54-86g or Jarzbek. We conclude that the defendant’s right to confrontation was not violated").
Again relying on criminal cases and how to assess whether a constitutional violation is harmless, specifically when there is an alleged violation of the right to confrontation, the Appellate Court concluded that the first habeas court incorrectly analyzed prejudice. "The speculation of what may have occurred if confrontation had been permitted, which was the sole basis for the lack of prejudice explicated by the habeas court, is precisely the inquiry that is proscribed by Coy [v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)]. As stated in Coy, an examination of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged or unaltered, but, rather, must have been examined on the basis of the remaining evidence presented at trial. To be sure, a harmlessness analysis in a case involving a violation of the right to confrontation entails an examination of the unconfronted witness’ testimony, but only insofar as it relates to the whole of the state’s case- the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, and the overall strength of the prosecution’s case without it. These are thus the proper considerations that must inform the habeas court’s determination of the petitioner’s prejudice claim." (Emphasis added.) Id., 338.
Both the petitioner and the respondent filed petitions for certification to appeal from the decision of the Appellate Court. The Supreme Court denied the petitioner’s petition for certification to appeal. Ruiz v. Commissioner of Correction, 319 Conn. 923, 125 A.3d 199 (2015). The Supreme Court granted the respondent’s petition to certification to appeal, "limited to the following issue: ‘Did the Appellate Court properly conclude that the habeas court improperly determined that the petitioner had failed to prove prejudice arising from ineffective assistance of counsel at a hearing conducted pursuant to State v. Jarzbek, [supra ,]?’ " Ruiz v. Commissioner of Correction, 319 Conn. 923, 125 A.3d 199 (2015). The respondent’s appeal, assigned docket number SC19550, was withdrawn several months later on January 28, 2016.
The matter then was assigned to this court for further proceedings in accordance with the Appellate Court’s remand.
DISCUSSION
I. Ineffective Assistance of Counsel Standard
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. 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 and skill in the criminal law ... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... The claim will succeed only if both prongs are satisfied ... Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, __ U.S. __, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013). Consequently, [i]t is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier ... Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); see also Strickland v. Washington, supra, 697 (a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant) ... Small v. Commissioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008)." (Emphasis omitted; internal quotation marks omitted.) Sanchez v. Commissioner of Correction, 314 Conn. 585, 605-06, 103 A.3d 954 (2014).
"In order to prevail on a claim of ineffectiveness of counsel, the 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome ... [T]he question is whether there is a reasonable probability that, absent the [alleged] errors, the [fact finder] would have had a reasonable doubt respecting guilt ...
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
"To succeed on his claim, the petitioner ‘must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by ‘the Sixth Amendment [to the United States constitution]. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ Strickland v. Washington, [supra, 466 U.S. 687]; see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ghant v. Commissioner of Correction, 255 Conn. 1, 8, 761 A.2d 740 (2000). In other words, the prejudice results from the deficient performance. See, e.g., Duncan v. Commissioner of Correction, 171 Conn.App. 635, 648, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017); Jones v. Commissioner of Correction, 169 Conn.App. 405, 415-16, 150 A.3d 757 (2016), cert. denied, 324 Conn. 909, 152 A.3d 1246 (2017); Hanson v. Commissioner of Correction, 169 Conn.App. 317, 325, 150 A.3d 234 (2016), cert. denied, 324 Conn. 910, 153 A.3d 653 (2017).
" ‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.’ (Internal quotation marks omitted.) Constantopoulos v. Commissioner of Correction, 47 Conn.App. 828, 833, 708 A.2d 588, cert. denied, 244 Conn. 927, 711 A.2d 726 (1998)." (Emphasis added.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 174, 180, 774 A.2d 148 (2001).
II. Evidence Considered Upon Remand
The procedural posture of the remanded issue, as detailed above, illustrates that this court’s determination is narrow. However, the evidence that must be considered to make this determination and to comport with the Appellate Court’s remand order is much broader. This court, to determine whether the petitioner was prejudiced, pursuant to the examination outlined by the Appellate Court, has reviewed all of the evidence in this matter. Thus, this court’s analysis and discussion is premised on the Jarzbek hearing transcripts, criminal trial transcripts, the six prior days of habeas trial, and all full exhibits including videos (forensic interview, victim’s video recorded testimony, etc.) as augmented by the one day of evidence after the remand. See, e.g., Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591 (1979) ("The trial court has the power to take judicial notice of court files of other actions between the same parties"); see also P.B. § 23-36.
The court has considered all of the evidence in its entirety to assess the prejudice prong and, if necessary, the deficient performance prong, as well as any special defenses that were raised by the respondent. Ruiz v. Commissioner of Correction, supra, 156 Conn.App. 338. This assessment would normally occur in the reverse order: addressing special defenses, then whether deficient performance occurred, and then whether that deficient performance resulted in prejudice. But because a habeas court can deny an ineffective assistance of counsel claim solely on the prejudice prong, and the remand specifically orders the habeas court how to proceed, this court strictly construes the remand order and shall first address the prejudice prong.
III. Prejudice Prong Assessment
The first habeas court assessed the prejudice prong of the Strickland test by considering the evidence from both the criminal and the habeas trials, and then concluding that there was no prejudice. Ruiz v. Warden, supra, 53 Conn.Supp. 356. The first habeas court noted that "the petitioner must prove, by a preponderance, not only that the Jarzbek motion would have been denied and/or the Marquis motion granted, but that these hypothetical outcomes create a reasonable probability that he would have been acquitted ..." Id., 356-57.
State v. Marquis, 241 Conn. 823, 699 A.2d 893 (1997). A Marquis motion would seek a court order "to have the victim examined by a defense expert." Ruiz v. Commissioner of Correction, supra, 156 Conn.App. 330 n.5.
The first habeas court then further indicated the following: "Assuming, arguendo, that the victim had to testify in person and in the presence of the petitioner, there was absolutely no persuasive evidence presented at the habeas trial that her testimony or believability would have been altered. This was not a case where the victim recanted her accusations against the petitioner or even wavered as to the content of those accusations. The petitioner cannot have it both ways. He cannot argue that the victim was so capable of testifying accurately in person that videotaped testimony was unnecessary under Jarzbek analysis and simultaneously argue for presumption that the victim, when subjected to the inquisitorial presence of the jury and the petitioner, would have been too intimidated to testify or would have dramatically contradicted her video testimony. Conjecture cannot be the basis upon which the prejudice prong of Strickland is founded ... Prejudice must be established by demonstrable realities." (Internal citations and quotation marks omitted.) Id.
The Appellate Court concluded that the first habeas court incorrectly determined that there was no prejudice to the petitioner. The first habeas court applied the Strickland prejudice prong without determining that the ineffective assistance of counsel in the petitioner’s case was harmless in his case. Ruiz v. Commissioner of Correction, supra, 156 Conn.App. 335. That harmlessness determination "depends upon the totality of the evidence presented at trial ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless ... Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case ... Most importantly, [courts] must examine the impact of the evidence on the trier of fact and the result of the trial." Id., 335-36, citing and quoting State v. Madigosky, 291 Conn. 28, 45, 966 A.2d 730 (2009).
In Madigosky, a direct appeal from a criminal conviction, the defendant claimed that the trial court improperly admitted a statement by the defendant’s mother. The state had subpoenaed the mother to testify at trial, but she failed to appear due to illness. The state offered her statement to a police detective and, over the defendant’s objection that it would violate his right to confrontation, the trial court admitted the statement. Id., 42-43. The state conceded on appeal that the defendant’s right to confrontation was violated and that he was not able to cross examine his mother. Id., 45. The state, therefore, had the burden of proving that this error was harmless beyond a reasonable doubt. Id. Because the statement was found to have been offered to show the defendant’s remorse and "was cumulative in that it was only one of several pieces of evidence that the jury heard demonstrating the defendant had [shown guilt and remorse,]" and there was "ample other evidence corroborating the defendant’s controlled behavior following strangulation of the victim, which the jury evidently relied on to reject the defendant’s affirmative defenses[,]" the Supreme Court concluded that the trial court’s error was harmless beyond a reasonable doubt. Id., 46-47.
The Supreme Court very recently noted that it has not addressed the measurement of harm for constitutional errors in collateral proceedings versus direct appeals. Epps v. Commissioner of Correction, 327 Conn. 482, 175 A.3d 558 (2018); see also Hinds v. Commissioner of Correction, 321 Conn. 56, 76-94, 136 A.3d 596 (2016).
Cases such as Madigosky and others utilizing the harmless error test in direct appeals inherently rely on, as they must, the trial court record on appeal. These cases do not involve claims of ineffective assistance of counsel, which the Supreme Court has said usually require evidentiary proceedings to further develop the record. State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986) ("... ineffective assistance claim[s] should be resolved ... after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify"). Evidence of deficient performance, which must be found before a determination can be made by a habeas court that counsel’s deficient performance inured to a petitioner’s prejudice, rarely is available from the criminal trial court record alone, as it is generally silent about trial counsel’s investigation, tactics, strategy, etc.
In the present matter, the exclusion of N’s testimony in the criminal trial leaves virtually no direct evidence in support of the criminal charges. After the playback of N’s videotaped testimony, the state presented the testimonies of N’s aunt (Gladys S.), Pamela Goldin, Amy Gionfriddo, Carla Barrows, Theresa Montelli, and Janet Murphy, who all were constancy of accusation witnesses. Both the state’s and the defense’s closing arguments emphasized that it was the victim’s credibility that was the central issue to be determined by the jury. It becomes readily apparent that in the absence of N’s testimony, the state’s case would be untenable. N’s testimony was the most important part of the prosecution’s case; N’s testimony itself was not cumulative; the other witnesses were constancy of accusation witnesses who corroborated N’s reporting of the sexual abuse, but neither corroborated nor contradicted N’s testimony about the sexual abuse; and the state’s case would implode without N’s testimony. Thus, if this court completely discounts N’s testimony and does not consider it at all in the prejudice analysis, it is unclear how the petitioner could not but prevail.
A note from the jury requested playback of N’s videotaped testimony. The trial transcript indicates that N’s testimony was played back in its entirety. Transcript (July 11, 2008), pp. 101-03.
This appears to be tantamount to the petitioner’s claim on appeal from the prior habeas court’s decision that prejudice must be presumed when a defendant’s right to confrontation is violated. However, the Appellate Court concluded that prejudice cannot be presumed in such a situation. Ruiz v. Commissioner of Correction, supra, 156 Conn.App. 334-35.
However, because the ineffective assistance standard necessitates that a petitioner first prove deficient performance by counsel, because it is such proven deficient performance that causes prejudice, this court must by necessity address the performance prong.
IV. Deficient Performance by Attorneys Ivers and Casale
The claim of ineffective assistance of counsel in count one, paragraphs (24)(B) and (C), avers deficient performance by attorneys Ivers and Casale. More specifically, as pleaded in the second amended petition, the petitioner alleges that counsel failed to: "(B) ... adequately cross-examine, impeach, and otherwise challenge the testimony of Pamela Goldin during the hearing on the prosecuting authority’s motion for permission to have the complainant testify outside of the presence of the petitioner and by videotape, under State v. Jarzbek, 204 Conn. 683 (1987), and Corm. Gen. Stat. § 54-86g(a), by showing that Goldin was not qualified to conduct the evaluation, that Goldin did not conduct an adequate evaluation, and that Goldin’s opinions were not reliable; (C) ... present the testimony of a forensic psychologist, forensic psychiatrist, or other similar mental health professional, with an expertise in conducting psychological evaluations of children for hearings related to State v. Jarzbek, 204 Conn. 683 (1987), and Conn. Gen. Stat. § 54-86g(a), during the hearing on the prosecuting authority’s motion for permission to have the complainant testify outside of the presence of the petitioner and by videotape, under State v. Jarzbek, 204 Conn. 683 (1987), and Conn. Gen. Stat. § 54-86g(a), to establish that Goldin was not qualified to conduct the evaluation, that Goldin did not conduct an adequate evaluation, that Goldin’s opinions were not reliable, and that it was necessary for the defense to conduct an evaluation of the complainant (see Expert Disclosure of David M. Mantell, Ph.D., dated September 21, 2012)."
This court has reviewed the transcripts of both the criminal trial, including the Jarzbek hearing, and the six days of proceedings before the prior habeas court. Goldin testified during the Jarzbek hearing, the criminal trial, the prior habeas proceedings, as well as before this court on the remanded proceedings. Goldin has testified, therefore, on four separate occasions, more than any other witness.
Goldin’s testimony during the Jarzbek hearing was not extensive, spanning less than thirty pages. See Transcript (April 24, 2008), pp. 3-29. Goldin, who has a Master’s degree in social work and had been employed as a licensed clinical social worker for approximately three decades, had a therapeutic relationship with N. Goldin treated N for approximately two years preceding the Jarzbek hearing. Attorney Ivers conducted voir dire, raised objections on direct examination, and conducted cross examination of Goldin. The cross examination elicited from Goldin that her therapeutic relationship came about through efforts to assist N to deal with her problems, in particular with her estranged mother. However, N eventually also discussed the sexual abuse during their sessions. The discussions regarding the sexual abuse and the petitioner were a minor component of the therapeutic sessions. Attorney Ivers effectively highlighted through his questioning that the therapeutic sessions primarily focused on N and her mother. According to Goldin, N was very nervous and concerned about potentially testifying in juvenile court proceedings and the criminal case. Attorney Ivers also elicited from Goldin that there are no professional guidelines to follow when determining if a child is too intimidated to testify, that it is a "judgment call" by the person assessing the child.
Attorney Ivers presented effective arguments after Goldin completed her Jarzbek testimony. Counsel requested a defense expert evaluation of N, also known as a Marquis motion, but which the court denied because, unlike other cases in which a proffered expert had not evaluated a child, Goldin had a two-year therapeutic relationship with N. The trial court noted specifically that despite Goldin’s acknowledgement that it was ultimately a judgment call, N would experience a high level of anxiety, would be frightened and intimidated, and that her lower level of education and low level of esteem would be problems. The trial court determined that to have N examined pursuant to Marquis would further traumatize and intimidate N. The trial court also concluded that the state had met its burden of proof with clear and convincing evidence as to N’s inability to testify in the petitioner’s presence.
Goldin subsequently presented testimony to the jury. Transcript (July 9, 2008), pp. 93-137. Goldin then testified in the prior habeas trial. Transcript (January 31, 2013), pp. 17-31. Lastly, Goldin testified before this court. Transcript (November 27, 2017), pp. 54-78. Whether her testimony is viewed individually or collectively, Goldin’s post-Jarzbek testimony in all proceedings does not support the petitioner’s claims of ineffective assistance of counsel related to the Jarzbek hearing. Goldin never deviated from her conclusion that, in her best judgment, N would not be able to testify in the petitioner’s presence.
Attorney Ivers testified in the prior habeas proceeding about his strategies for the Marquis motion and Jarzbek hearing. Ivers had consulted with Dr. Mantell and wanted him to assess N. Goldin’s therapeutic relationship was primarily focused on N and her mother, and not the petitioner. Transcript (January 30, 2013), p. 72-74. Ivers wanted to show that Goldin was not able to give a Jarzbek evaluation. Id., p. 100. Ivers forwarded to Dr. Mantell the videotaped statements and all police reports, and sought Dr. Mantell’s professional opinion as a forensic psychologist about the reliability of what N had reported. Id., pp. 101-02. According to Dr. Mantell, there were signs of reliability in N’s disclosures and also potential problems to explore. Id., p. 103.
Dr. Mantell, a forensic psychologist who was consulted during the criminal trial and provided guidance to defense counsel, testified at length during the prior habeas trial. Transcript (April 25, 2013), pp. 2-91. According to Dr. Mantell, those investigating and assessing N needed to consider alternative hypotheses, in particular that N copied Tiffany’s disclosure to be like her. N did not spontaneously report sexual abuse; instead, the first disclosure occurred after Tiffany described to N a very similar occurrence of sexual abuse she experienced. The subsequent repetition thereafter by N of her reported sexual abuse would have reinforced this false report in N’s own mind. Dr. Mantell was critical of some aspects of the forensic interviews, though these interviews only tangentially pertain to the Jarzbek hearing. For example, Dr. Mantell indicated that certain questions or prompting during the interviews could have led N to report more details or incidents of sexual abuse to please the questioners and be seen as telling the truth. Dr. Mantell was also critical of interviewers repeating or repeatedly asking the same question, which can potentially disqualify an answer already given. Dr. Mantell acknowledged that there is no published protocol for Jarzbek procedures; nevertheless, he has his own procedures which were described in detail. The testimony presented at the Jarzbek hearing by Goldin emanated from a therapeutic relationship, which Dr. Mantell also views with skepticism because it is less objective.
Dr. Mantell also testified before this court. Transcript (November 27, 2017), pp. 7-41. Dr. Mantell reiterated his criticism of the therapeutic relationship between Goldin and N, and how that relationship resulted in Goldin’s Jarzbek assessments being too subjective because she was advocating for N, her patient/client. A forensic assessment such as one Dr. Mantell would have conducted on N, according to his testimony, would have been more objective and not influenced by therapeutic goals. Dr. Mantell described his own protocol for Jarzbek assessments, as well as steps that can be taken, including therapeutic treatment, to assist a child to become capable of testifying in a defendant’s presence when the initial conclusion is to the contrary. Because Dr. Mantell has never conducted an assessment of N, he acknowledged that he cannot form an opinion whether or not N would have been able to testify reliably in the petitioner’s presence.
The petitioner contends that counsel failed to adequately cross examine, impeach, and otherwise challenge the testimony of Pamela Goldin during the Jarzbek hearing. The evidence presented to the prior habeas court and this court does not support that contention. A careful review of the transcripts from the prior habeas proceedings and the testimony presented to this court after the remand fail to show how counsel was deficient. Nor has the petitioner demonstrated what counsel should have done differently in the cross examination of Goldin, nor has the petitioner proven that counsel could have more effectively impeached and challenged Goldin’s Jarzbek testimony. The petitioner failed to prove that Goldin was not qualified to conduct the evaluation, that she did not conduct an adequate evaluation, and that her opinions were not reliable.
It has already been established that the trial court’s ruling after the Jarzbek hearing, which permitted the videotaped testimony of N in the petitioner’s absence, was based on clear and convincing evidence presented by the state and not clearly erroneous. State v. Ruiz, supra, 124 Conn.App. 127-28. Furthermore, the petitioner’s right to confrontation was not violated, and his attorneys had "ample opportunity" to cross examine N during her videotaped testimony. Id., 128. After reviewing the Jarzbek hearing transcript, this court concludes that counsel’s performance did not fall below that of a reasonably competent criminal defense attorney. The petitioner has also failed, therefore, to show that he was prejudiced, because a failure to prove deficient performance inexorably also means that prejudice has not been proven. Strickland v. Washington, supra, 466 U.S. 687; Ghant v. Commissioner of Correction, supra, 255 Conn. 8; Duncan v. Commissioner of Correction, supra, 171 Conn.App. 648; Jones v. Commissioner of Correction, supra, 169 Conn.App. 415-16; Hanson v. Commissioner of Correction, supra, 169 Conn.App. 325.
Based upon the foregoing, the court concludes that the petitioner has failed to prove that Goldin was not qualified to conduct the evaluation, that she did not conduct an adequate evaluation, that her opinions were unreliable, and that it was necessary for the defense to conduct an evaluation of N. The court further concludes that there is no evidence that trial counsel rendered deficient performance regarding the Jarzbek hearing. There also is no evidence that the result of the Jarzbek hearing or the criminal trial would have been any different. The petitioner has not demonstrated that there is a reasonable probability that the outcome of the sentencing would have been different. Thompson v. Commissioner of Correction, 131 Conn.App. 671, 691, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011); Sinchak v. Commissioner of Correction, 126 Conn.App. 670, 681, 14 A.3d 348, cert. denied, 301 Conn. 901, 17 A.3d 1045 (2011); Ramos v. Commissioner of Correction, 67 Conn.App. 654, 665-66, 789 A.2d 502, cert. denied, 260 Conn. 912, 796 A.2d 558 (2002). Thus, the petitioner has failed to prove both deficient performance and that he was prejudiced.
Lastly, the court notes that none of the respondent’s special defenses (i.e., procedural default, deliberate bypass, and res judicata) in the return are applicable to the petitioner’s claim of ineffective assistance of trial counsel raised for the first time.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent. It is so ordered.
It is so ordered.