Opinion
TSRCV144006315S
07-12-2017
Scott Jacobson v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John F. Mulcahy, Judge Trial Referee.
The petitioner initiated this proceeding by way of a pro se petition for a writ of habeas corpus, filed on or about June 25, 2014, challenging multiple convictions, after a jury trial, on sexual assault and risk of injury charges. The petitioner's " Second Amended Petition" filed on November 4, 2016 alleges, in two counts, ineffective assistance of appellate counsel and ineffective assistance of habeas counsel. Specifically, the petitioner alleges that both appellate counsel and habeas counsel failed to raise claims of improper joinder.
I.
The petitioner was arrested by warrant on June 29, 2001 on sex offense charges relating to the complainant M., age nine. He was also arrested by warrant on July 16, 2001 on similar charges concerning B., age seven. A pretrial motion to sever the two cases (CR01-0170616 and CR01-70776) was heard and denied by the court, Damiani, J., on October 24, 2002. The trial began before a jury on December 3, 2002; on December 11, 2002, the petitioner was found guilty as follows: as to M., two counts of first degree sexual assault and two counts of risk of injury; as to B., one count of attempt to commit first degree sexual assault, one count of third degree sexual assault, and three counts of risk of injury. On February 7, 2002, the court, Owens, J., sentenced the petitioner to a total effective sentence of twenty years, execution suspended after the service of fifteen years, followed by twenty years probation. The convictions were affirmed on direct appeal: State v. Jacobson, 87 Conn.App. 440, 866 A.2d 678 (2005), and on certification to the Supreme Court, State v. Jacobson, 283 Conn. 618, 930 A.2d 628 (2007).
Attorney James J. Ruane, Juris No. 052104, represented the Petitioner in the relevant criminal trial proceedings. Attorney David B. Bachman, Juris No. 400974, represented the Petitioner in the relevant Appellate Court proceedings. Attorney Norman A. Pattis, Juris No. 408681, represented the Petitioner in the relevant Supreme Court proceedings.
On January 20, 2011, the Superior Court, Schuman, J., denied petitioner's former petition for a writ of habeas corpus. On April 3, 2013, the Appellate Court affirmed the judgment of the habeas court. Jacobson v. Commissioner of Correction, 142 Conn.App. 903, 64 A.3d 855 (2013) (per curiam). On June 5, 2013, the Supreme Court denied the petition for certification to appeal the judgment of the Appellate Court. Jacobson v. Commissioner of Correction, 309 Conn. 902, 68 A.3d 657 (2013).
Attorney Susan P. Chetwin, Juris No. 421346, and Attorney Rebecca I. Bodner, Juris No. 427122, represented the petitioner in the relevant habeas court proceedings.
On January 23, 2014, the habeas court denied the petitioner's second petition for a writ of habeas corpus without a hearing and without appointing counsel.
On June 25, 2014, the petitioner filed a pro se petition initiating this proceeding. Upon appointment of counsel, the operative " Second Amended Petition" was filed November 11, 2016.
II.
The opinions of both the Appellate Court and the Supreme Court, affirming the petitioner's convictions on direct appeal, set forth the following facts that could have been reasonably found by the jury on the evidence received at the criminal trial.
" In 1995, as (the) coach of a youth ice hockey team, the defendant met seven-year-old B., whose older brother was a member of the team, and B.'s mother. The defendant befriended B.'s mother, who was having marital difficulties at the time, offering to drive her son to Greenwich for hockey practices and games. She welcomed the help and even let B., who was not a team member, tag along for the rides. During that time, the defendant expressed a special interest in B., encouraging him to play hockey, helping him with his schoolwork and letting him sleep at his home a few nights a week. They became so close that the defendant became B.'s godfather.
" Sometime later, the defendant registered B. to play on a youth football team. It was (through that team) that the defendant met nine-year-old M., one of B.'s teammates, and M.'s mother, a divorcee. M. saw the defendant about twice a week during the football season and once a week after the football season ended, and occasionally he stayed the night at the defendant's home, along with B. At the request of M.'s mother, the defendant helped M. with his schoolwork and became, according to M.'s mother, part of her support system.
" In 1999, the defendant moved to Florida, but he maintained contact with both M. and B. He purchased a (cellular) telephone for M. and called him regularly for updates on his schoolwork. He checked on B. a couple of times a week to find out how he was faring in school and with sports. He also returned periodically to Connecticut to visit them both.
" On one such visit, in 2001, the defendant stayed two nights at B.'s house, along with M. The defendant slept in the same bedroom as M., B., and two of B.'s brothers. The beds were pushed together, and the defendant slept next to M. M. testified that he awoke the first night and realized that the defendant was under the covers performing oral sex on him. Rather than confront the defendant, M. pretended to be asleep. The next day, M. accompanied the defendant and B. to breakfast but decided not to mention what had occurred the night before. That night, M. and the defendant again stayed at B.'s house, the sleeping arrangements being the same. According to M., he awoke in the night to find the defendant performing oral sex on him . . .
" Shortly thereafter, M.'s mother had a falling out with her parents, with whom she and her two sons were living, and was asked to leave. After speaking with the defendant about the falling out, she and her two boys left for Florida and eventually moved into an apartment with the defendant. According to M.'s mother, she and the defendant initially got along quite well, but as time went on, she became increasingly concerned [about] his relationship with M., claiming that he spent an inordinate amount of time and money on M. As her relationship with the defendant soured, she asked him to leave the apartment, after which [M. told her that the defendant has sexually assaulted him]. She immediately contacted the local police and arranged for M. to return to Connecticut. Before returning to Connecticut herself, M.'s mother confronted the defendant with her son's allegation, to which he responded that M. was lying.
" Back in Connecticut, M. informed the Monroe police department that he had been sexually assaulted by the defendant at B.'s house in March 2001. The police contacted B.'s mother, who was on vacation in Florida, and asked her to bring B. to the police station when she returned to Connecticut. She flew back the next day, contacted the police department and was told that the defendant allegedly had sexually assaulted M. According to B.'s mother, she refused to believe the allegation. On the drive to the police station, she expressed to B. her frustration with M. and his mother, telling B. that it was a waste of time to go to the police department. B. responded 'I know this happed to (M.) because it happened to me, too.'
" According to B., while he was in the third grade [in 1997, the defendant sexually assaulted him] on three occasions. The first incident occurred when he slept at the defendant's home, in the same bed, and awoke to find the defendant touching his penis with his hands and mouth. B said nothing and eventually fell back asleep. The second incident occurred a few weeks after the first incident. B again slept at the defendant's house and before he fell asleep, the defendant forced B. to touch the defendant's penis, after which he asked B. to keep it secret. The third incident occurred a few months later, again at the defendant's house. That night, before B. fell asleep, the defendant, who was naked, approached B., fondled his penis, giving him an erection, and attempted sodomy." State v. Jacobson, supra, 283 Conn. 622-27.
Additional facts will be set forth as necessary.
III.
The parties appeared before this court on March 2, 2017 for a trial on the merits. The court received testimony from Attorney David B. Bachman, the attorney who represented the petitioner in the direct appeal to the Appellate Court; Attorney Norman A. Pattis, who handled the petitioner's direct appeal to the Supreme Court; and Attorney Rebecca I. Bodner, who represented the petitioner in the former habeas proceedings.
The parties stipulated that Attorney Chetwin's current medical condition prevented her from testifying in this trial.
Additional evidence presented at trial included transcripts on a digital jump drive from the underlying criminal proceedings, direct appeal decisions of the Appellate Court and the Supreme Court, the motion to sever, and the decision on the prior habeas petition.
In lieu of post-trial briefs, the parties presented oral summations on May 18, 2017.
IV.
At the habeas trial, Attorney David Bachman testified, preliminarily, to his educational background: Princeton, 1980; University of Michigan, Master's and Law degree (1989). He was admitted to the Connecticut bar in 1990. In terms of experience, he began doing legal work immediately upon admission to the bar, has practiced with law firms, has practiced primarily in the area of criminal law, and has provided private and assigned counsel representation, mostly in criminal appeals. He is currently a sole practitioner doing substantially, if not exclusively, criminal appeals.
The witness was privately retained by the petitioner's family to handle the appeal from the conviction(s) in the Superior Court. Attorney Bachman identified the brief he filed in the Appellate Court and the claims of error raised: admission into evidence of fifty-nine photographs; testimony regarding a ziplock bag of hair; testimony concerning alleged prior misconduct of the defendant; prosecutorial misconduct stemming from comments during closing argument; and violation of due process rights resulting from instructional error concerning specific times, dates, and places in sexual abuse cases. The attorney acknowledged that he did not file a reply brief and that joinder was not claimed as error.
With regard to a reply brief, Attorney Bachman explained that it was his practice not to file an unnecessary response where, upon examination of the State's brief, he found all issues were sufficiently addressed in his original brief. With reference to joinder, or more specifically any viable appellate issue arising from Judge Damiani's denial of the motion to sever, the attorney testified, most credibly, concerning the standard procedure he normally follows in assessing the issues to be best raised and asserted in any given criminal appeal. He obtains and reviews the entire trial court record. He reads the transcripts of the trial, noting " anywhere that I think there's possible error" and considers the trial court's overruling of defense objections. After identifying a number of issues, and perhaps " weeding out" some of them, the attorney would then proceed to research the remaining issues to determine which would be the most effective to raise for the appeal. He testified, " I try to winnow it down" to the issues most likely to succeed in the appeal. It " is a process of assessing the relative strengths of the claims that might be included in appellant's brief." The gist of the witness' testimony was that he generally avoids the " kitchen sink" approach, typically not raising every possible legal claim that potentially could be included in the brief.
In preparing for this appeal, the attorney reviewed any defense motions that were filed, full documentation on any hearings, and the trial court's rulings. Attorney Bachman was aware that trial counsel had filed a motion to sever, and that it had been denied. He would have considered the action taken on that motion in preparing for this appeal. While his memory regarding the specifics of his preparation and research is somewhat obscured, due to time passed, he was familiar with the Boscarino decision and its guidance regarding joinder, and he believes he would have considered the issue. The issue was not raised since he " would have determined that the other issues were stronger and . . . [he] wanted to focus the Court's . . . thinking on the issues . . . raised."
Judge Damiani's written denial of the motion to sever details the legal basis for his ruling.
State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987).
The lawyer testified, and the record confirms, that the Appellate Court brief was filed February 26, 2004. As indicated, the attorney began practicing in1990. During certain ensuing years he suffered from a condition described as " generalized anxiety and depression." He stated it is a chronic condition that is currently under control and was under control in the 2003/2004 time frame, The disability would come and go, and it manifest itself through some difficulty meeting deadlines and in persisting with work. There was evidence that a grievance in an unrelated case was filed in January 2005. Attorney Norm Pattis represented him in the grievance proceeding. Thereafter, Attorney Bachman withdrew from practice on disability to about 2011.
The oral argument in the Appellate Court was on October 22, 2004; the decision was released February 15, 2005. The Appellate Court accepted Attorney Bachman's claimed trial court error, but determined the error to be harmless.
Attorney Bachman testified, credibly, that he does not feel that his health difficulties " in any way, shape or form impacted . . . [his] work on this appeal."
Attorney Pattis testified he assumed the appeal, which had been certified to the to the Supreme Court, handling the oral argument. He testified that he did not undertake to raise any issues other than those certified. He stated that his firm's typical approach upon taking a case on appeal is to review the record with two things in mind: are there reversible errors that will result in a new trial, and, are there potential habeas issues. The attorney testified that much of the preparation had been completed before he took over the appeal.
Included among the issues certified was whether the Appellate Court properly determined that the admission of the defendant's prior misconduct was harmless error. Although affirming the determination of harmless error with respect to the other evidentiary issues certified, the Supreme Court held that the admission of the prior misconduct evidence was not error at all, but was correctly admitted at trial as indicative of common scheme or plan.
Attorney Pattis has known Attorney Bachman since approximately 1992; they were both with the New Haven law firm of Williams and Wise, Attorney Bachman having been there when Mr. Pattis joined the firm. To say the firm was " fairly busy . . . is an understatement." They became colleagues and friends. He described his colleague as " [i]diosycratic; working; brilliant; and, like himself, somewhat lacking in organizational skills--furthermore, " he taught me a lot of law." It was Mr. Pattis' testimony that when he took over the appeal he was entirely satisfied with the briefing; he described the brief as " brilliant." After both attorneys had left the firm, they consulted one another regularly and talked about cases and the law." The witness testified that during the years, he did not observe anything suggesting that Attorney Bachman had somehow lost his command of the case law or his ability to spot issues.
With reference to any joinder question, Attorney Pattis did not see it as an issue that should have been raised in the appeal.
Attorney Rebecca Bodner, counsel for the petitioner on the previous habeas, testified concerning her educational and professional background: a graduate of Emerson College in 2001, obtaining her law degree from the University of Connecticut in 2006. Thereafter, she was employed for sixteen months in the Public Defender Division of the trial court in Springfield, Massachusetts. Ms. Bodner was admitted to Connecticut bar in 2007 and she began with the Office of The Chief Public Defender, State of Connecticut, Habeas Corpus Unit, where she remained until 2013.
Attorney Bodner represented the petitioner on the previous petition alleging ineffective assistance of trial counsel. That ineffective assistance claim was premised on three grounds: a conflict of interest on the part of trial counsel; trial counsel's failure to pursue a motion to suppress testimony of a child witness, or, alternatively, a motion in limine re such testimony; and failure to consult with, or present testimony from, an expert regarding the investigation or interviewing of child witnesses. The attorney stated that she did not consider, as best she can recall, alleging ineffective assistance of appellate counsel for not claiming error resulting from improper joinder. Typically, she would have reviewed the entire record, including the appellate documentation, and having done so, in her analysis, she " did not see that there was anything to raise having to do with appellate counsel's representation of petitioner." The attorney has no specific recollection, at this time, as to whether she considered the issue, but had she, the analysis would have concerned whether the burden of proof could be met with respect to an improper joinder as an ineffectiveness ground. Ms. Bodner, based on her past experience, was not unfamiliar with the law relating to joinder.
The participation of Attorney Susan Chetwin in that habeas proceeding was minimal. She was brand new to the unit and the supervising attorney, Ms. Pieszak, asked if she could sit in for training purposes. Attorney Chetwin conducted the examination of merely one " easy witness, " an investigator with the habeas unit. The evidence fairly indicated Attorney Chetwin had no role in determining what issues would be raised in the habeas proceeding; that responsibility rested entirely with Attorney Bodner.
Respecting issue formulation, Attorney Bodner's view was that by pursuing every possible claim, you risk actually diluting a petitioner's stronger, more persuasive and legally viable, appellate contentions. Accordingly, her tendency was to focus on the stronger claims, rather than trying to litigate everything conceivably possible. That was the analysis she would have taken in formulating the issues to be asserted.
V.
Ineffective Assistance of Appellate Counsel Standard
" It is axiomatic that, in order to establish a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish both deficient performance and the resulting prejudice. See Mozell v. Commissioner of Correction, 87 Conn.App. 560, 562, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005). The performance prong requires proof that appellate counsel's performance fell below an objective standard of reasonableness. Id., 563. There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Just as the decision of trial counsel not to object to certain evidence is a matter of trial tactics, not evidence of incompetency; Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985); the tactical decision of appellate counsel not to raise a particular claim is ordinarily a matter of appellate tactics, and not evidence of incompetency, in light of the presumption of reasonable professional judgment. Orellana v. Commissioner of Correction, 135 Conn.App. 90, 99, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012). This is particularly apt because our courts have frequently chided appellate counsel for not exercising more discriminating judgment in selecting which claims to present on appeal, so as not to dilute the strength of strong arguments by forcing the court to consider weak ones. See, e.g., id., 98; Johnson v. Commissioner of Correction, 131 Conn.App. 805, 809, 29 A.3d 166 (2011); DaEria v. Commissioner of Correction, 107 Conn.App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).
" The prejudice prong requires proof that, had the prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal. Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808. A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel. Crawley v. Commissioner of Correction, 141 Conn.App. 660, 665, 62 A.3d 1138, cert. denied, 308 Conn. 946, 68 A.3d 656 (2013)." Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 222-23, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
" [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . The right to counsel is not the right to perfect representation . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v . Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008). See also Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808-09.
Ineffective Assistance of Prior Habeas Counsel Standard
" 'A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment . . . Put another way, 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, a claimant must demonstrate 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.) Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008). With respect to the prejudice component, '[i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.' (Internal quotation marks omitted.) Toccaline v . Commissioner of Correction, 80 Conn.App. 792, 799, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413 (2004), cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). '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.' King v. Comm'r of Corr., 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). 'A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.' Nieves v. Commissioner of Correction, 51 Conn.App. 615, 620, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999)." Atkinson v. Commissioner of Correction, 125 Conn.App. 632, 638-39, 9 A.3d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, [466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citations omitted; internal quotation marks omitted.) Id.
" '[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland v. Washington, [ supra, 466 U.S. 687, ] standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that [his] prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . .
" 'Unless a [petitioner] makes both [deficient performance and prejudice] showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.' (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 474-75, 53 A.3d 257 (2012)[, aff'd, 316 Conn. 225, 112 A.3d 1 (2015)]." Davis v. Comm'r of Corr., 140 Conn.App. 597, 603-04, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013).
Thus, a petitioner claiming ineffective assistance of one or more prior habeas counsel, based on ineffective assistance of trial counsel and/or appellate counsel, must satisfy the Strickland standard numerous times, once for each counsel. No matter how many attorneys are in the chain of representation, a petitioner must ultimately prove that trial counsel rendered ineffective assistance of counsel to undermine a habeas court's confidence in the outcome of the underlying criminal proceedings and in the conviction itself.
VI.
Alleged Ineffective Assistance As to Appellate Counsel
The petitioner alleges that Attorney Bachman, appellate counsel, was ineffective in that he failed to raise a claim of improper joinder in the direct appeal. The petitioner alleges there is a reasonable probability that, but for the failure to raise the issue, the petitioner would have prevailed in his direct appeal.
Preliminarily, it is observed that the joinder issue was preserved by trial counsel, Mr. Ruane. A motion to sever the two informations was filed, argued, and denied. Prior to the start of voir dire, joinder was again discussed with the trial judge; thus, it does not appear, and there is no claim, that trial counsel's representation was lacking with respect to the joinder issue.
In denying severance, the court referred to the Boscarino criteria finding that the charges involved discrete, easily distinguishable scenarios; the trial would not be unduly long; the cases are not particularly complex; and although sexual assault crimes involving children are of " a shocking violent nature, " that could be ameliorated with a curative instruction.
As to the different types of sexual acts, the court referred to State v. Rivera, 63 Conn.App. 319, 323, 775 A.2d 1006 (2001).
Attorney Bachman's brief was filed in the Appellate Court on February 26, 2004. For some years, before and after the petitioner's appeal, there existed a strong and clear presumption in favor of joinder and against severance. State v. Johnson, 289 Conn. 437, 451, 958 A.2d 713 (2008); State v. Davis, 286 Conn. 17, 29, 942 A.2d 373 (2008); see e.g., State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012). Accordingly, at all times relevant hereto, a party " [would bear] a heavy burden of showing that the denial of severance resulted in substantial injustice, or that any resulting prejudice was beyond the curative power of the court's instructions." State v. Gupta, 297 Conn. 211, 223, 998 A.2d 1085 (2010); State v. Randolph, 284 Conn. 328, 337, 933 A.2d 1158 (2007).
The foundation for the presumption in favor of joinder, and against severance, was established in State v. King, 187 Conn. 292, 445 A.2d 901 (1982). King was overruled, well after the petitioner's appeal, by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012).
In addition to the strong presumption favoring joinder, there has been a liberal standard regarding the admission of prior sex crime evidence. Historically, other crimes evidence has been admissible, subject to certain qualifications, under the common scheme or plan exception, which was codified in Section 4-5(b), Connecticut Code of Evidence. " We are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in [trials] of sex related crimes than in [trials of] other crimes." State v. George B., 258 Conn. 779, 792, 785 A.2d 573 (2001), cited more recently in the Supreme Court decision in the instant case, State v. Jacobson, supra, 283 Conn. 631.
The Code provision reads, as follows: " (a) . . . Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. (b) evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as . . . common plan or scheme . . ."
Joinder has been found to be proper where the evidence of the other crimes or uncharged misconduct would have been cross admissible at separate trials. State v. Gupta, supra, 297 Conn. 223; State v. McKenzie-Adams, 281 Conn. 486, 520, 915 A.2d 822 (2007). See also: State v. Devon, 321 Conn. 656, 667-68, 138 A.3d 849 (2016). " When evidence of one incident can be admitted at the trial of the other, separate trials would provide [a] defendant no significant benefit. It is clear that, under such circumstances, [a] defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial. State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987). We consistently have found joinder to be proper if we have concluded that the evidence of other crimes or uncharged misconduct would have been cross admissible at separate trials." State v. Johnson, supra, 289 Conn. 451-52; State v. McKenzie, supra, 281 Conn. 520.
Evidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan when the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar in the prosecuting witness. The inquiry necessarily focuses on each of the three factors because no single factor is likely to be determinative. State v. George B., supra, 258 Conn. 791-92; State v. Jacobson, supra, 283 Conn. 631.
With reference to (1), remoteness in time, M. testified that he was sexually molested by the petitioner on two separate occasions in March 2001. B testified to being sexually assaulted by petitioner during 1997, when he was in third grade. Thus, the incidents were roughly four years apart. As observed by our Supreme Court; State v. Jacobson, supra, 283 Conn. 632-33; in considering the admissibility of evidence of petitioner's sexual misconduct toward separate children, a time interval of " six to ten years" is not insignificant; however, in State v. Romero, 269 Conn. 481, 498, 849 A.2d 760 (2004), the Court upheld admission of uncharged sexual misconduct evidence relating to events occurring nine years prior to the charged misconduct, and in State v. Kulmac, 230 Conn. 43, 62 n.14, 644 A.2d 887 (1994), ten years prior to the charged misconduct.
As to number (2) above, the similarity of the prior offense(s) to the offense(s) charged is evident from the facts set forth in section II of this opinion, and from the trial record. The charges as to the sexual assaults on M. stemmed from the two nights on which the petitioner and M. slept over at B.'s house; beds were pushed together, each night the petitioner slept next to M., and on each night M. awoke to find the petitioner performing oral sex on him. The charges pertaining to the sexual assaults on B. resulted from acts occurring in 1997 on the three nights he slept in the same bed with the petitioner at the petitioner's home; on the first night, he awoke to find the petitioner touching his genitals with hands and mouth; on the second occasion, the petitioner forced B. to touch his genitals; and on the third occasion, fondled B.'s genitals in an attempt to perform sodomy. That the specific sexual acts differed in some respects as to each victim would not negate cross admissibility or mandate separate trials. State v. McKenzie-Adams, supra, 281 Conn. 522-24 (distinguishing State v. Ellis, 270 Conn. 337, 852 A.2d 676 (2004)). Such seems particularly true considering the totality of the evidence, most especially evidence of the similar grooming of each of the two young boys, M. and B., as discussed hereinafter.
With regard to factor (3), the similar circumstances of the sexual offenses committed on each of the two boys, both victims were male, approximately the same age. Further, petitioner came to know each boy through sports involvement; M.'s mother was divorced and the petitioner became part of her support system, helping M. with his studies; B.'s mother was having marital difficulties and accepted the petitioner's help, which included driving B.'s brother, along with B., to hockey practice, and helping B. with schoolwork. The evidence indicated the petitioner became uncommonly close to both boys; became B.'s godfather; after moving to Florida, he telephoned them regularly checking on schoolwork and sports; and, he visited periodically with the boys in Connecticut.
Significantly, at the criminal trial, there was expert testimony concerning the " grooming process" frequently used by sex offenders in the seduction of young children. According to the testimony, the stages of that process generally include: seeking out the child; getting to know the child and gaining the child's trust; and first engaging in somewhat questionable conduct, not arising to actual sexual abuse, to ascertain if the child will report it to the parent. Evidence that the petitioner " manifested an uncommon interest" in M. and B., established a close relationship with each, gained their trust by active engagement in their lives, and slept in the same bed with them, could be considered, on the totality of the evidence, conduct indicative grooming which culminated in sexual abuse. The evidence was relevant and cross admissible.
Given the similarities discussed, and the facts developed by the evidence in its entirety, evidence of the petitioner's abuse of B. would be admissible in M.'s case, and the petitioner's abuse of M. would be admissible in B.'s case. Therefore, severance was not required, and the petitioner was not prejudiced by the joint trial.
Attorney Bachman could not be faulted for declining to press as a ground for appeal a claim of questionable merit; as he testified, he regularly tried " to winnow it down" to the issues most likely to succeed on appeal. Petitioner has not established ineffective performance or prejudice; that is, the appellate attorney's tactical practice not to include unviable assertions (here, improper joinder) as grounds for appeal did not render his professional performance below an objective standard of reasonableness. Similarly, it did not provide any basis for a conclusion that, had such a ground been raised, the outcome of the appeal would have been in the petitioner's favor.
Alleged Ineffective Assistance As to Habeas Counsel
The petitioner alleges that Attorney Bodner, former habeas counsel, was ineffective in that she failed to raise a claim in the prior habeas proceeding of ineffective assistance of appellate counsel premised on Attorney Bachman's not having asserted improper joinder as a ground in the direct appeal. The petitioner alleges there is a reasonable probability that, but for the failure to raise ineffective appellate counsel, the petitioner would have prevailed in the previous habeas action.
The preceding habeas petition alleged ineffective representation of trial counsel on three grounds, all ruled on by the Superior Court (Schuman, J.) on February 15, 2011. Attorney Bodner testified, credibly, she typically would have reviewed the entire record, including appellate documents. Although she has no specific recollection, it is her belief that she did not seen anything in the record which, conducting her usual analysis, could be raised having to do with the appellate representation.
Much of what has been stated concerning Mr. Bachman's appellate representation also applies with respect to habeas counsel. If the appellate attorney was not ineffective for failing to raise a claim of questionable merit (improper joinder), then the former habeas attorney was hardly remiss in not alleging ineffective appellate representation on that basis. For the reasons stated heretofore in this opinion, habeas counsel's not having alleged appellate ineffectiveness in the former habeas petition, which would have centered around an unsustainable claim of improper joinder, certainly does not demonstrate that the habeas representation " was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." Concerning prejudice, the petitioner has not established that had a claim of ineffective appellate representation been raised by habeas counsel, the result of the habeas proceeding would have been different.
VII.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent.
It is so ordered.