author: DUPONT, J. DiPENTIMA, J.,

text:
    STATE OF CONNECTICUT v. NICKETA WRIGHT
    (AC 28498)
    DiPentima, McLacMan and Dupont, Js.

      Argued October 14, 2008
    officially released May 19, 2009

      Richard S. Cramer, for the appellant (defendant).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Nicketa Wright, appeals from the judgment of conviction, rendered after a jury trial, of three crimes: sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1); sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1); and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly refused to disclose information contained in the victim’s Juvenile Court file after its in camera inspection of the file and, therefore, denied him his right to confront and to cross-examine witnesses under the sixth amendment to the United States constitution and his due process right to obtain exculpatory evidence under the fourteenth amendment to the United States constitution. The defendant requests that this court review the victim’s Juvenile Court file to determine whether the trial court properly concluded that it did not contain exculpatory information and, if we disagree with the court’s conclusion, that we remand the case for a new trial and issue an order releasing the file to him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 19, 2005, the victim, who was fourteen years old, was living with her mother on the second floor of a two-family house in New Britain. That morning, after her mother left for work, the victim missed her bus to school and subsequently decided to stay home. She proceeded to call a man named Lee, whom she had met through a telephone chat line, and invited him to her house. The victim was under the impression that Lee was eighteen years old and lived in Hartford. She had never seen him but had spoken to him approximately ten times over the telephone.

Shortly thereafter, Lee arrived at her house with two other males—the defendant, who identified himself as Duane, and another male, who identified himself as Ryan. The four watched a movie together, during which the victim and Lee went into her bedroom. Lee kissed the victim on her neck, biting her in the process, and touched her buttocks. He tried to convince her to have further sexual contact with him, but the victim refused, telling him to let her go, which he did. The two rejoined the defendant and Ryan, who were still watching the movie in the living room. The defendant then told the victim that he wanted to talk to her, and they both went into her bedroom. Once inside her bedroom, the defendant pushed the victim onto her bed and took off her pants and underwear. He then put a condom on and proceeded to have sexual intercourse with the victim, despite her asking him to stop. Approximately three minutes later, the defendant put his clothes back on, and he and the victim returned to the living room.

Lee then took the victim back into her bedroom and attempted to have sexual contact with her for a second time by opening her legs with his hands. The victim rebuffed Lee’s advances, which prompted the three men to leave the victim’s house. Within five minutes of their departure, the victim left her home and went across the street to her neighbor’s house. The victim told her neighbor that she had been raped. The neighbor called the victim’s mother, who immediately left work and took the victim to New Britain General Hospital. At the hospital, Ann Alexander, an emergency room staff nurse, examined the victim, using a sexual assault kit in the course of the examination. She observed bite marks on the left and right side of the victim’s neck. She was unable to determine from the examination whether the victim had been sexually assaulted.

Upon returning home from the hospital, the victim spoke with Marcin Ratajczak, an officer with the New Britain police department. She told Ratajczak how she came to know Lee and related the sexual assault by the defendant. She described the defendant as a black male with a Jamaican accent, six feet tall and weighing 170 pounds. She described Lee as wearing a blue MECCA shirt and provided Ratajczak with Lee’s telephone number. Ratajczak performed a reverse listing inquiry for the telephone number, which produced the address of 203 Sargeant Street, Hartford.

Ratajczak went to the residence, where he located a man who identified himself as Lloyd Aldridge, Sr. Aldridge told Ratajczak that Lee was his son and that Lee’s real name was Lloyd Aldridge, Jr. Lee subsequently came out of the house. Ratajczak immediately noticed that Lee’s clothing matched the description given by the victim, as he was wearing a blue MECCA shirt. Ratajczak then arrested Lee but was unable at that time to locate the defendant.

Two to three days after the alleged sexual assault of the victim and the arrest of Lee, Michael Steele, a detective with the New Britain police department, was assigned the task of finding the defendant. On October 11, 2005, he discovered that the defendant’s real name was Nicketa Wright. A department of motor vehicles record check revealed that the defendant lived at 205 Sargeant Street in Hartford, which was located in the same multifamily house in which Lee lived. Steele then compiled a photographic array that included the defendant’s photograph and asked the victim to come to the police station to view it. The victim immediately, and with certainty, identified the defendant as the man who had sexually assaulted her.

Subsequently, on December 16, 2005, Matthew Kelly, an officer with the New Britain police department, arrested the defendant in connection with the sexual assault of the victim. During the booking process, Kelly learned that the defendant was twenty-four years of age, six feet, one inch tall, weighed 170 pounds and spoke with a Jamaican accent.

On the first day of the evidentiary portion of the defendant’s trial, the court, D’Addabbo, J., informed defense counsel that the state had issued a subpoena for the victim’s Juvenile Court file so that the court could review it in camera to determine whether it contained any exculpatory information. Judge D’Addabbo further stated to defense counsel that the Juvenile Court, Quinn, J., had held a hearing earlier that morning on the victim’s motion to quash the state’s subpoena and, at the conclusion of the hearing, had issued an order for the release of the file to the trial court for an in camera review, absent all mental health screening and assessment information. The state then represented to Judge D’Addabbo that the victim and her mother, after consultation with an attorney, had no objection to the court performing an in camera review of the victim’s confidential Juvenile Court file.

After a short recess, Judge D’Addabbo announced that he had reviewed the victim’s Juvenile Court file, as redacted, and found that it contained no exculpatory information. Judge D’Addabbo explained that he had reviewed similar files in the past and that he looked at the file with an eye toward “anything that could affect the cross-examination needs of the defense attorney, including the ability [of a witness] to perceive, to recollect, to testify, tell the truth, veracity.” Judge D’Addabbo, therefore, did not disclose the contents of the file to the parties and had the file sealed and marked for appellate review, to the extent that there was such appellate review. Judge D’Addabbo next asked the parties if they wanted to say anything. Defense counsel replied: “Nothing to add, Your Honor.” Judge D’Addabbo further asked defense counsel: “All right. Any requests that you have at this point?” Defense counsel replied: “No, Your Honor.” The court then swore in the jury and commenced the evidentiary portion of the trial.

After the victim and two other witnesses had testified, the court and the parties met in chambers to discuss the victim’s status as a juvenile in a juvenile probation matter. The state represented to the court that it had advised defense counsel during jury selection that the victim was on probation and had informed defense counsel of the general nature of the probation. Defense counsel agreed that the substance of the information was given to him. The court then stated: “And so you’re aware of it, then. You made some tactical decisions during the cross-examination concerning that information.” Defense counsel replied: “That’s correct, yes.”

I

The defendant claims that the court denied him his sixth amendment right to confrontation and fourteenth amendment right to exculpatory evidence when it refused to disclose the information contained in the victim’s Juvenile Court file after the court’s in camera inspection. A close review of the defendant’s brief and oral argument to this court, however, reveals that he also claims that the Juvenile Court improperly redacted the victim’s mental health screening and assessment information from the victim’s Juvenile Court file, thereby excluding it from the trial court’s in camera review. We will first dispose of this second claim.

The state argues that this claim is “wholly unreviewable” because the defendant did not object to Judge Quinn’s order removing the mental health information and did not request that Judge D’Addabbo review that information or that it be made part of the record for appellate review. We agree. Although the record reveals that defense counsel was not present at the hearing in front of Judge Quinn, Judge D’Addabbo made counsel aware, on the record, that the hearing had taken place and that at the hearing, Judge Quinn had issued an order that included the redaction of any information regarding the victim’s mental health. The defendant, therefore, was put on notice of the Juvenile Court’s order at that point in time but failed to object to it and appeal from it. The defendant now attempts to raise a claim relating to the Juvenile Court’s order in his appeal from the trial court’s judgment. The Juvenile Court’s order to exclude the victim’s mental health records from her juvenile file, however, is wholly unrelated to any action of the trial court. Thus, we will not consider the merits of the defendant’s claim that the victim’s mental health record was improperly excluded from the victim’s Juvenile Court file.

With regard to the defendant’s primary claim, namely, that the court violated his constitutional rights when it refused to disclose the victim’s Juvenile Court file as redacted, the state, in its brief, argues that this claim is unreviewable because it was not preserved at trial and the defendant did not request this court to review his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state further argues that even if this court finds the defendant’s claim to be reviewable, the trial court properly concluded that the file contained no exculpatory information. We agree with the state that the defendant’s claim is unpreserved due to his failure to object to the trial court’s ruling. We conclude, however, that the defendant’s claim is reviewable pursuant to Golding, despite his failure to specifically invoke Golding in his request for review by this court.

As a general rule, appellate courts do not review claims not raised at the trial level. In State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), however, our Supreme Court established review for unpreserved claims that constituted “ ‘exceptional circumstances’ . . . .” The court recognized “two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second ‘exceptional circumstance’ may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” (Citation omitted.) Id., 70.

The cases decided after Evans, interpreting and reinterpreting its precepts, were not always consistent with each other and caused our Supreme Court, in Golding, to “articulate guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal.” State v. Golding, supra, 213 Conn. 239. Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), the court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 239-40.

Golding is often misconstrued to require the satisfaction of each of these four conditions to obtain review by this court. Instead, the language in Golding provides that all four conditions must be met for a defendant to prevail on a claim of constitutional error not preserved at trial. This court’s ability to review a claim, and the defendant’s ability to prevail on his claim, are two entirely different concepts. Case law is clear that “[t]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002). As the Supreme Court stated in Golding, the defendant “bears the responsibility for providing a record that is adequate for review of his claim” and “demonstrating that his claim is indeed a violation of a fundamental constitutional right,” thereby satisfying the first and second prongs.” State v. Golding, supra, 213 Conn. 240. Should the defendant do so, “[an appellate court] will [then] review [the claim] and arrive at a conclusion as to whether the alleged constitutional violation clearly exists and . . . clearly deprived the defendant of a fair trial,” and decide whether the state was able to demonstrate harmlessness, thereby satisfying the third and fourth prongs. Id., 241. Thus, the court in Golding ultimately held that this court “erred by refusing to review the defendant’s claim since she proffered a constitutional claim and the record was clearly adequate to review that claim.” Id., 238.

We recognize that in a number of cases, both this court and the Supreme Court have denied review of an unpreserved alleged constitutional claim on the ground that the defendant failed to request review by citing Golding. In recent years, cases have refined this concept as the defendant’s failure to affirmatively request appellate review by citing Golding. These cases can be traced to State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002).

In Ramos, the defendant brought a number of claims in his direct appeal to the Supreme Court. Id., 159. The court determined that two of those claims were unpreserved. Id., 165, 171. As to the first of those claims, the court held that the defendant, having sought review under Golding and having satisfied the first two prongs, failed to satisfy the third prong “because he [had] not demonstrated that the alleged constitutional violation exists.” Id., 165. As to the second claim, the court determined that it could not review that claim because the defendant had failed to request Golding review. Id., 171. The court was not explicit as to the manner in which the defendant had failed to request Golding review properly. Id. Instead, it stated: “A party is obligated . . . affirmatively to request review under [the Golding doctrine].” Id.

Ramos cited the following statement in State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997), in support of the claimed necessity for an affirmative request: “[Defendants who seek consideration of unpreserved constitutional claims [on appeal] . . . bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding.” As previously noted, under the precise guidelines of Golding, a defendant who seeks consideration of his claim, i.e., review, need only provide an adequate record and proffer a claim “of constitutional magnitude alleging the violation of a fundamental right . . . .” State v. Golding, supra, 213 Conn. 239-40. We do not interpret Ramos and its progeny as requiring a specific mention of Golding by name, which would effectively add a fifth prong to its test. “The only justification for the requirement that a defendant specifically cite Golding in its brief is that an appellate court should be clear on the level of review a defendant seeks because “[i]t is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000). Given the prominence of Golding, and its predecessor, State v. Evans, supra, 165 Conn. 61, in our jurisprudence, however, it is difficult to conclude that even without a specific mention of Golding, an appellate court would fail to realize that a request for Golding review is being made in a defendant’s brief, when a defendant explores the Golding methodology by establishing that there is an adequate record for review and proffering and discussing a claim that is of constitutional magnitude.

The rationale of Evans and Golding is that fundamental constitutional rights are of such importance that appellate courts should review claims of alleged constitutional violations even when a defendant fails to take an exception to the alleged violation at the trial court level. Evans and Golding are intended to deal with “substance, not labels.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). In Gooch, Evans was characterized by Justice Parskey as a “trial court bypass,” although a narrow one, as opposed to an “appellate Champs-Elysees.” Id. A narrow bypass, however, is not necessarily a street with a neon sign on it, emblazoning the words "Golding Review.” Moreover, after elimination by our Supreme Court in Golding of the hurdle of “failure to preserve” constitutional claims at the trial court level, so that appellate review could be obtained for some unpreserved constitutional claims, it is not logical for us to establish another hurdle, namely, the necessity of the mention of the very case that gives the defendant the right to obtain review of the claim he or she failed to preserve at trial.

To require a ritualistic incantation in a defendant’s brief of the four prongs of Golding, followed by a citation to the case by name and volume, would do an injustice to the principles of the case. It is our belief that public confidence in judicial proceedings is more likely to be gained, rather than undermined, if we review a claim authorized by Supreme Court and Appellate Court decisions, instead of turning a “deaf pen” to the claim because the name of the case entitling the defendant to such review was omitted in his or her brief. In addition, our holding promotes judicial economy, as it provides a lessened need for future habeas corpus petitions that allege ineffective assistance of appellate counsel for failure to obtain appellate review of an unpreserved constitutional claim because counsel failed to cite Golding specifically in a brief.

This court’s position is reinforced by the fact that in a number of instances, both this court and our Supreme Court have reviewed an unpreserved alleged constitutional claim despite the defendant’s failure to request a Golding review. In both State v. Alvarez, 216 Conn. 301, 315-16, 579 A.2d 515 (1990), and State v. Moye, 214 Conn. 89, 97-98, 570 A.2d 209 (1990), our Supreme Court presumed that the defendant was seeking an Evans-Golding review because he asserted a claim of constitutional magnitude that he did not raise at trial, allowing the court to then proceed to analyze the claim under the prongs of Golding. This court also, in State v. Rodriguez, 37 Conn. App. 589, 617-18, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995), stated: “Presumably, the defendant seeks review under . . . Golding . . . although he has not cited that case, which allows review of an unpreserved claim of constitutional error under certain conditions. The claim is reviewable under the first two prongs of Golding, but the actual review shows the defendant’s claim to be meritless.”

Furthermore, our Supreme Court in Waz, the case on which Ramos relies, addressed the defendant’s unpreserved constitutional claim, despite the defendant’s failure to make an express reference to the guidelines specified in Golding. State v. Waz, supra, 240 Conn. 371 n.11. In Ramos itself, the Supreme Court stated: “In certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the Golding or plain error doctrines.” State v. Ramos, supra, 261 Conn. 172 n.16; see Practice Book § 60-5 (plain error review); see also State v. Jones, 281 Conn. 613, 618 n.5, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). Moreover, in State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995), a unanimous Supreme Court, in a per curiam decision, held that a defendant need not invoke the guidelines of Golding to get review of an unpreserved insufficiency of the evidence claim because “[i]t is an essential of the due process guaranteed by the [fourteenth [a]mendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof . . . .” (Internal quotation marks omitted.) Id., 212-13.

In conclusion, although we do not make it mandatory for a defendant to cite Golding to obtain review of an unpreserved claim of a constitutional deprivation at trial, we do require that a defendant present a record that is adequare for review and affirmatively “[demonstrate] that his claim is indeed a violation of a fundamental constitutional right.” State v. Golding, supra, 213 Conn. 240. In the present case, the defendant has provided a record adequate for review and has sufficiently demonstrated, by discussion of relevant authority, that his claim that the court improperly refused to disclose the information contained in the victim’s Juvenile Court file implicates his sixth amendment right to confront witnesses and his fourteenth amendment due process right to obtain exculpatory evidence, both of which are of constitutional magnitude. Therefore, he has met the requirements for review as set out in Golding, even though he failed to cite the case by name in his brief.

II

Having concluded that the defendant’s unpreserved claims are reviewable, we next determine whether a constitutional violation clearly exists and clearly deprived the defendant of a fair trial, such that he should prevail. The defendant first claims that the court’s refusal to grant him access to the victim’s Juvenile Court file violated his sixth amendment right to confrontation. He argues that when the state’s case rests on the victim’s testimony and when the defense amounts to an attack on the victim’s credibility, the defendant is entitled to access exculpatory information in the victim’s Juvenile Court file for possible use in cross-examination.

“A criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception.” (Internal quotation marks omitted.) State v. Webb, 75 Conn. App. 447, 456, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003). Thus, “[a] conflict exists between a defendant’s right to confrontation and the public policy interest of preserving the confidentiality of certain records.” (Internal quotation marks omitted.) State v. McKiernan, 84 Conn. App. 31, 47, 851 A.2d 1198, cert. denied, 271 Conn. 915, 859 A.2d 573 (2004). “[I]n some instances, otherwise privileged records . . . must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. . . . The defendant’s right of cross-examination does not, however, allow him to discredit and impeach in whatever way, and to whatever extent, the defendant might wish. . . . [T]he right to cross-examine witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. . . .

“Our Supreme Court has set forth a specific procedure to accommodate the tension between the defendant’s constitutional right of cross-examination and the privacy interest of a witness in her confidential records. If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. . . . If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . .

“Our standard of review of a challenge to a court’s refusal to disclose privileged records is whether there was an abuse of discretion. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Access to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records. ... On appeal, this court has the responsibility of conducting its own in camera inspection of the sealed records to determine if the trial court abused its discretion in refusing to release those records to the defendant.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Webb, supra, 75 Conn. App. 456-58.

We have carefully examined the victim’s Juvenile Court file and conclude that the trial court did not abuse its discretion when it refused to disclose the file to the defendant on the basis of its determination that the file did not contain evidence that was probative of the victim’s testimonial capacity or relevant to her impeachment. Therefore, we conclude that the defendant failed to satisfy the third prong of Golding because he has not demonstrated that the alleged constitutional violation exists. See State v. Golding, supra, 213 Conn. 239-40.

Ill

The defendant next claims that the denial of access to the victim’s Juvenile Court file violated his due process right to exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The defendant argues that “there is a slight suggestion [from the victim’s juvenile probationary status] that meaningful and exculpatory information was available in those sealed records.”

Brady v. Maryland, supra, 373 U.S. 83, involves the duty of the prosecution to disclose exculpatory evidence to the defendant. Typically, “[a] due process violation occurs under Brady only if the prosecution withholds material evidence favorable to a defendant.” State v. Harris, 227 Conn. 751, 762, 631 A.2d 309 (1993). United States v. Agurs, 427 U.S. 97, 106, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), however, specifically approves the procedure of the court making an in camera determination. Therefore, although the heart of the holding in the Brady case is the prosecution’s suppression of evidence; State v. Bember, 183 Conn. 394, 404, 439 A.2d 387 (1981); and although here the state had no access to the records and thus could not have suppressed them, we must assume that “if the trial court discovers, in the course of an in camera inspection, evidence which is exculpatory ... in the Brady and Agurs senses, it would have a similar duty of disclosure to the defense.” (Internal quotation marks omitted.) State v. Storlazzi, 191 Conn. 453, 461, 464 A.2d 829 (1983). Consequently, “[a]fter performing an in camera inspection, the trial court is required to release only information that is material and favorable to the defense.” State v. Leduc, 40 Conn. App. 233, 249, 670 A.2d 1309 (1996), on appeal after remand, 44 Conn. App. 744, 690 A.2d 1390, cert. denied, 241 Conn. 909, 695 A.2d 541 (1997).

“Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. ... On the other hand, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Leduc, supra, 40 Conn. App. 249-50. “If the information discovered during an in camera inspection probably would have changed the outcome of [a] trial the defendant must be given a new trial . . . .” (Internal quotation marks omitted.) Id., 250.

“It is true that [w]hen a conviction depends entirely upon the testimony of certain witnesses . . . information affecting their credibility is material in the constitutional sense since if they are not believed a reasonable doubt of guilt would be created.” (Internal quotation marks omitted.) State v. Storlazzi, supra, 191 Conn. 462. Our review of the victim’s Juvenile Court file, viewed in conjunction with the entire trial transcript, fails to convince us that anything in the file left undisclosed by the trial court would have affected the victim’s credibility or would have created a reasonable doubt of the defendant’s guilt. The trial court, therefore, did not fail to disclose any evidence so material as to undermine confidence in the outcome of the trial. See State v. Harris, supra, 227 Conn. 763. Accordingly, we conclude that the court did not abuse its discretion and that the defendant has failed to satisfy the third prong of Golding because he has not demonstrated that the alleged constitutional violation exists. See State v. Golding, supra, 213 Conn. 239-40.

The judgment is affirmed.

In this opinion McLACHLAN, J., concurred.

DiPENTIMA, J.,

concurring. I agree with my colleagues that the conviction of the defendant, Nicketa Wright, should be affirmed. I respectfully disagree, however, that the defendant adequately has briefed the threshold question of whether this court should review his claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Accordingly, I concur in the judgment of the majority.

Our Supreme Court recently stated: “It is well established . . . that parties affirmatively seek to prevail under Golding, and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims.” (Emphasis added.) In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009). Moreover, this court repeatedly has observed that the “failure to address the four prongs of Golding amounts to an inadequate briefing of the issue . . . .” (Internal quotation marks.) State v. Bourguignon, 82 Conn. App. 798, 801, 847 A.2d 1031 (2004); see also State v. DeVivo, 106 Conn. App. 641, 647, 942 A.2d 1066 (2008); State v. David P., 70 Conn. App. 462, 474, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002).

I am persuaded by the majority’s reasoning that there is no necessity for a talismanic incantation of the Golding citation or the rote recitation of its four prongs. I agree that to demonstrate that appellate review of an unpreserved claim of a constitutional deprivation is warranted, a defendant is required to employ the methodology of Golding by providing an adequate record for review and alleging that a constitutional violation occurred at the trial court. To accomplish this, a defendant must present this court with a coherent, logical argument for review with authoritative citations to precedent. I depart from the majority in its conclusion that the defendant has satisfied that latter requirement. The defendant’s appellate brief sets forth a claim of a constitutional violation. It fails, however, to address his entitlement to review, much less the adequacy of the record. As a result, I reluctantly depart from the opinion of the majority and conclude that the defendant has failed to brief adequately the issue of whether he is entitled to Golding review.

I respectfully concur.

       The defendant was sentenced to a total effective term of thirteen years of imprisonment followed by seven years of special parole.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right ... to be confronted with the witnesses against him . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law . . . .”

       Alexander testified that this is common in cases in which the victim is an adolescent and the perpetrator used a condom.

       MECCA is a brand of clothing.

       The defendant’s birth date is September 30, 1981, and, therefore, on the day of the assault, he was twenty-three years of age.

       Pursuant to General Statutes § 46b-124 (b), all records of cases of juvenile matters are “confidential and for the use of the court in juvenile matters, and open to inspection or disclosure to any third party . . . only upon order of the Superior Court . . . .”

       The record reveals that defense counsel was not present at the hearing before Judge Quinn. The victim was represented by a guardian ad litem at the hearing.

       The Juvenile Court redacted the mental health information and requested that the office of probation services place a note in the file indicating generically what had been removed. General Statutes § 46b-124 Q) provides in relevant part: “[A]ny information concerning a child that is obtained during any mental health screening or assessment of such child . . . shall be used solely for planning and treatment purposes and shall otherwise be confidential and retained in the files of the entity providing such services or performing such screening, assessment or evaluation. . . . Such information shall not be subject to subpoena or other court process for use in any other proceeding or for any other purpose.” Presumably, the Juvenile Court excluded all mental health assessment information in compliance with this statute.

       See footnote 9.

       We note that even if we attempted to reach the merits of the defendant’s claim, we would be unable to do so as the record does not contain an unredacted version of the victim’s Juvenile Court file. It appears that General Statutes § 46b-124 (j) would have prevented the Juvenile Court from releasing the victim’s mental health information to the trial court or this court, and that the Juvenile Court was in compliance within the statutory requirements when it prevented the trial court’s review of the information by redaction. See footnote 9. Because we will not review the propriety of the Juvenile Court’s order absent an appeal from it, we will not discuss a possible conflict between this statute and the defendant’s right to exculpatory information and confrontation. We note that this statute has been amended by Public Acts 2008, No. 08-86, § 4, effective October 1, 2008.

       The defendant did not cite Golding in his brief. The state, in its brief, referenced Golding to claim that the defendant was not entitled to review because he did not specifically request review by citing Golding, nor did he specifically address its four prongs in his brief. At oral argument, both the defendant and the state addressed whether the lack of a specific request for review under Golding in the defendant’s brief precluded our review.

       The state concedes that it really has no way of knowing this because it has not viewed the contents of the sealed file.

       The state itself in this case has entangled an appellate court’s ability to review an unpreserved claim with an appellate court’s determination, after review, that the defendant should or should not prevail. The state, in its brief, first argues that the defendant is not entitled to review because he did not request review under Golding. The state then immediately argues that the fact that the defendant alleged that his claim is of constitutional magnitude does not satisfy Golding because the defendant’s failure to address the four prongs of Golding renders his claim inadequately briefed and, therefore, abandoned. Again, our case law is clear that to obtain review, a defendant must provide an adequate record and assert a claim “of constitutional magnitude alleging the violation of a fundamental right. . . .” State v. Golding, supra, 213 Conn. 239-40. Accordingly, inadequate briefing actually relates to whether the defendant has established that the alleged constitutional violation clearly existed and clearly deprived him of a fair trial, in satisfaction of the third prong of Golding, which concerns whether the defendant can prevail, not whether the defendant can obtain Golding review.

       See, e.g., State v. Bowman, 289 Conn. 809, 815, 960 A.2d 1027 (2008); Johnson v. Commissioner of Correction, 288 Conn. 53, 60, 951 A.2d 520 (2008); State v. Reid, 277 Conn. 764, 781, 894 A.2d 963 (2006); State v. Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005); State v. Faison, 112 Conn. App. 373, 381, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009); State v. DeVivo, 106 Conn. App. 641, 646, 942 A.2d 1066 (2008).

       Although the Supreme Court in In re Melody L., 290 Conn. 131, 962 A.2d 81 (2009), specifically noted that the respondent failed to meet Golding in her brief when it declined to review her unpreserved constitutional claim, the court did not state that Golding review could be obtained by the specific mention of Golding. The court, therefore, left available other means for a party to meet its burden of establishing that he or she is entitled to Golding review.

       Not only are Golding and Evans fixtures in appellate decisions, but they have also been discussed in numerous law review articles, treatises andjournals. See, e.g., S. Sellers, “State v. Golding: A Standardless Standard,” 65 Conn. B.J. 245 (1991); J. Ranucci, “State v. Evans: The Unexceptional Exception,” 61 Conn. B.J. 359 (1987).

       “Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 213 Conn. 240.

       We do not agree with the state that the defendant’s claims are briefed inadequately and, therefore, abandoned. See footnote 14. As is always true in all cases, issues can be reviewed only if adequately briefed. The defendant, however, set forth a developed argument as to the existence of the constitutional violations and the manner in which they deprived him of a fair trial. The mere omission of a reference to Golding does not render his claims inadequately briefed. Furthermore, as specifically stated in Golding, it is the state’s burden to demonstrate harmlessness; State v. Golding, supra, 213 Conn. 241; and therefore, the defendant’s failure to incorporate a harmlessness analysis also does not render his brief inadequate for review of his claims.

       Because the state subpoenaed the victim’s Juvenile Court file, the defendant in the present case did not have to make such a showing.

       General Statutes § 46b-120 indicates that a juvenile may be placed on probation for reasons other than violations of federal or state law. The reasons include, but are not limited to, violations of municipal or local ordinances, running away from home, unexcused absences from school and defiance of school rules and regulations.

       “Connecticut courts have refused to attach talismanic significance to the presence or absence of particular words or phrases. See, e.g., State v. Robinson, 227 Conn. 711, 731, 631 A.2d 288 (1993) (failure to use talismanic words does not indicate failure to make necessary determination); State v. Onofrio, 179 Conn. 23, 45, 425 A.2d 560 (1979) ([tjhere is no talismanic ritual of words that must be spoken by a dying declarant to render statements admissible); State v. Peters, 89 Conn. App. 141, 146, 872 A.2d 532 (the fact that the court did not use the specific words psychiatric disabilities does not warrant reversal under the plain error doctrine), cert. denied, 274 Conn. 918, 879 A.2d 895 (2005); State v. Peters, 40 Conn. App. 805, 823, 673 A.2d 1158 (jury charge not improper for failure to recite talismanic words), cert. denied, 237 Conn. 925, 677 A.2d 949 (1996).” (Internal quotation marks omitted.) State v. Edwards, 100 Conn. App. 565, 578-79 n.6, 918 A.2d 1008, cert. denied, 282 Conn. 928, 929, 926 A.2d 666, 667 (2007).


source: Caselaw Access Project

author: ARNOLD, J.

license: Public Domain

text:
    WILLIAM EASTWOOD v. COMMISSIONER OF CORRECTION
    (AC 29357)
    Flynn, C. J., and DiPentima and Arnold, Js.

      Argued January 14
    officially released May 19, 2009

      Michael Zariphes, special public defender, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Linda N. Howe, senior assistant state’s attorney, and Linda F. Currie-Zeffiro, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

ARNOLD, J.

The petitioner, William Eastwood, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner argues that the court improperly concluded that his defense counsel was not ineffective in representing him at trial. We affirm the judgment of the habeas court.

The following facts and procedural history are necessary for the resolution of the petitioner’s appeal. The petitioner was convicted, following a jury trial, of three counts of attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-94 (a), three counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (a) (1), as amended by Public Acts 2000, No. 00-207, § 6, and one count of interfering with an officer in violation of General Statutes § 53a-167a. The petitioner was sentenced to a total effective term of nine years imprisonment, to be followed by fifteen years of special parole. Thereafter, the petitioner filed a direct appeal, claiming that the trial court improperly (1) denied his motion to suppress items that the police seized from his van, (2) admitted these items into evidence and (3) denied his motion for a judgment of acquittal with regard to the risk of injury counts. This court affirmed the judgment of conviction. State v. Eastwood, 83 Conn. App. 452, 454, 850 A.2d 234 (2004), cert. denied, 286 Conn. 914, 945 A.2d 978 (2008).

In the petitioner’s direct appeal, this court determined that the jury reasonably could have found the following facts. “During the afternoon hours of October 16, 2000, the [petitioner] drove in his van to Liberty Street in New Haven. He parked his van near a multifamily house where ten year old J, eleven year old R and twelve year old N, who are brothers, resided with their family. In the early evening hours, after the boys had returned home from school, R and N walked to a nearby market to purchase snacks. J received a quarter from his uncle and began walking toward the market to join his brothers. J was not wearing a shirt.

“The [petitioner], who was sitting in the driver’s seat of his van with the driver’s window rolled down, observed J walking alone toward the market. The [petitioner] called to J, saying, ‘little boy . . . come here, come here.’ J declined. The [petitioner] then said to J, ‘come in this van,’ and indicated that he wanted to take him to Madison. When J again refused to approach, the [petitioner] said, ‘when I take you, you’re not going to tell your parents.’ The [petitioner] told J, ‘don’t make me come out of this van and grab you and kill you; you ain’t gonna see your parents again.’ The [petitioner] then opened the driver’s door of his van and stepped out. The [petitioner] threatened to kill J if he did not get into the van. J smelled alcohol on the [petitioner’s] breath, observed the [petitioner] drinking from a square shaped bottle and observed through a window a mattress in the back of the van.

“Frightened by the [petitioner], J ran to the market and told his brothers about his encounter with the [petitioner]. Shortly thereafter, the three brothers left the market together. They soon encountered the [petitioner], who called to them. The [petitioner] had spoken with R shortly before, asking him to go with him in his van. The [petitioner] now asked the boys, as a group, to accompany him to Madison. J left the scene to get his uncle, who lived in his house. The [petitioner] again asked R and N to get into the van so he could ‘take them somewhere.’ The [petitioner] threatened to kill R and N if they did not get into the van. The [petitioner] told R that he was not a stranger and that he was not dangerous. R refused to get into the van, telling the [petitioner], among other things, to leave him alone and that he was a stranger.

“J summoned his uncle, telling him that ‘there is a guy that wants to take me to Madison; if I don’t get in the car, he is going to kill me.’ The victims’ uncle immediately walked to the van and asked the [petitioner] what he wanted. The uncle had never met the [petitioner] before and believed that the [petitioner] was intoxicated. The [petitioner] asked the uncle if he could take the boys to Madison. The uncle strongly refused, instructed his nephews to go back inside their house and dialed 911 on his cordless telephone.

“The [petitioner], watching the boys’ home, remained in his van until Gregory Catania, a New Haven police officer, arrived. The [petitioner] disobeyed Catania’s commands to exit the van. Catania opened the driver’s door of the van, pulled the [petitioner] out of the van and attempted to handcuff the [petitioner]. The [petitioner] resisted. A second police officer, Rosealee Reid, arrived and assisted Catania in handcuffing the [petitioner] and placing him in the back of Catania’s police cruiser. Catania placed the [petitioner] under arrest.” Id., 454-56.

After his conviction and subsequent direct appeal, the petitioner filed an amended petition for a writ of habeas corpus on November 27, 2006, specifying various ways in which his trial counsel was ineffective. A trial was held on April 26, 2007. On October 19, 2007, the court denied the petition, finding that the petitioner had failed to satisfy his burden of proving ineffective assistance of counsel. The court subsequently granted the petition for certification to appeal to this court, and this appeal followed.

On appeal, the petitioner argues that his trial counsel was ineffective in that he failed (1) to investigate properly and to secure and to present evidence regarding the closed position and inoperability of the driver’s side window of the petitioner’s van after having been apprised fully of this information by the petitioner prior to trial, (2) to consult with and to put forth an expert witness at trial to help illustrate to the court and jury alternative theories and distinctions between dreams and fantasy and the motive and intent to commit the crimes charged, and (3) to advise the petitioner meaningfully as to sentence review and to file the petitioner’s application for sentence review after he had signed the application and delivered it to trial counsel. We disagree with the petitioner and, accordingly, affirm the judgment of the habeas court.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction, 80 Conn. App. 499, 503, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Nieves v. Commissioner of Correction, 92 Conn. App. 534, 536, 885 A.2d 1268 (2005), cert. denied, 277 Conn. 903, 891 A.2d 2 (2006).

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” (Internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn. App. 129, 135, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006). “Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [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. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Internal quotation marks omitted.) Id. With these principles in mind, we now address each of the petitioner’s claims in turn.

I

The petitioner first claims that his trial counsel failed to undertake an investigation after the petitioner told him that the driver’s side window of the van was closed and not able to be opened. We do not agree.

The following additional facts are necessary to resolve the petitioner’s claim. At the petitioner’s underlying criminal trial, J testified that the petitioner was sitting in the driver’s seat in the van during the incident in question and that the window was down. J also testified that when the petitioner opened the van door, the light came on inside the van, and he was able to see inside. R testified that the petitioner manually opened the window on the driver’s side when the petitioner spoke to him. The victims’ uncle testified that when he approached the van, the petitioner was sitting in the driver’s seat. The uncle testified that the window and the door were closed, but the petitioner opened the door when he approached. Catania testified that he was a patrol officer on the night in question and responded to this incident, and that when he got to the van, the door was shut and the window was up.

The petitioner testified at the habeas trial that the centerpiece of the state’s case was that his alleged threat to the youngest boy, J, was made through the open window on the driver’s side of the petitioner’s van. Trial counsel acknowledged at the habeas trial that he, in fact, did inspect the van, which had been impounded by the police, but he could not recall if he checked to verify whether or not the driver’s side window was inoperable and in a closed position. Trial counsel testified that in his opinion, whether the window was inoperable was a minor issue. There was evidence that the van door also was open, which tended to prove the witnesses’ ability to see inside the van and to hear the petitioner’s conversation.

Trial counsel made a tactical decision to impeach the testimony of R that the petitioner manually rolled down the window, rather than utilize information that the window was inoperable. He did so by showing that the window was controlled electronically and, thus, could not be operated manually. In addition, as the habeas court noted, trial counsel cross-examined witnesses regarding discrepancies in their testimony regarding the window and emphasized those discrepancies during his closing argument to the jury. The jury, therefore, was presented with substantial impeachment evidence as a result of counsel’s cross-examination of the witnesses. “[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn. App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). The petitioner has not rebutted sufficiently the strong presumption that trial counsel’s strategy was reasonable in his cross-examination of the witnesses with regard to the window.

Furthermore, the petitioner has the burden of showing what benefit additional investigation of the window would have revealed or what benefit a different line of impeachment would have achieved. The petitioner failed to carry his burden of showing that there is a reasonable probability that the outcome of the trial would have been different in light of the strong and overwhelming evidence presented by the state. “Mere conjecture and speculation are not enough to support a showing of prejudice.” (Internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn. App. 526, 532, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007). The petitioner thus has failed to meet his burden under both prongs of the Strickland standard.

II

The petitioner’s second claim is that his trial counsel failed to consult with and to put forth an expert witness at trial to help illustrate to the court and jury alternative theories and distinctions between dreams and fantasy and the motive and intent to commit the crimes charged.

In the trial court, the petitioner had challenged the admission of thirty-four pages of typewritten materials that he authored. First, the petitioner had filed a motion to suppress the evidence for lack of probable cause in support of the search warrant. The court denied the motion to suppress. See State v. Eastwood, supra, 83 Conn. App. 456-63. The petitioner next challenged the admissibility of this evidence. On direct appeal, this court found that “[t]he journal was compelling circumstantial evidence of the [petitioner’s] motive in approaching the victims in this case and in determining whether the [petitioner] acted in the manner alleged by his victims and charged by the state.” Id., 466. A central theme in the journal was the petitioner’s desire to engage in sexual relationships with young boys. “The journal is replete with graphically detailed descriptions of sexual encounters between the [petitioner] and young boys. The [petitioner] portrayed some of these encounters as past events, others as dreams and others as something to which he aspired and would work to make a reality.” Id.

At the habeas trial, the petitioner argued that his trial counsel was ineffective because he failed to call an expert during his trial to testify as to the difference between dreams and fantasies and the intent to commit the crimes with which the petitioner was charged. The petitioner called Kenneth M. Selig, a psychiatrist, who described the difference between a “dream” and a “fantasy.” Selig testified that dreams are an unconscious process usually occurring during REM sleep, and fantasies are conscious thoughts that represent desires, wishes or undesirable thoughts. Selig further testified that there was no automatic connection between dreams and fantasies and the motive to do a particular act. The petitioner then called Michael Blanchard, an attorney, to testify as an expert in the area of criminal law. Blanchard testified that the journal writings would be a significant issue at the petitioner’s trial and would have a profound effect on the jury. Therefore, it would have been appropriate for trial counsel to utilize an expert witness to interpret the journal writings for the jury properly. The habeas court weighed this testimony and found that the understanding of dreams and fantasies was within the common knowledge of jurors and that the jury did not require expert testimony to help distinguish them from the required showing of intent by the state. We agree with the habeas court. See State v. Padua, 273 Conn. 138, 149, 869 A.2d 192 (2005) (expert testimony required only when question goes beyond field of ordinary knowledge and experience of trier of fact).

Regarding Blanchard’s testimony that trial counsel should have utilized an expert witness to distinguish dreams and fantasies from motive and intent, “[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” State v. Taiton, 197 Conn. 280, 297, 497 A.2d 35 (1985); see Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). The court properly found that trial counsel was not deficient in failing to call an expert to distinguish dreams and fantasies from motive and intent because the petitioner’s expert failed to establish that such testimony would have assisted the petitioner at trial. In this regard we note that although Selig testified that there was no automatic connection between dreams and fantasies and the motive to do a particular act, he also testified that when a person memorializes his dreams and intermingles those memorializations with conscious desires, those writings, in fact, could be indicative of motive and intent.

Psychiatric testimony at trial carried with it the danger of highlighting and emphasizing the disturbing contents of the journal writings. Instead, trial counsel relied on argument to the jury that the petitioner had no control over the subject of his dreams and that they should not be considered in determining motive and intent. Trial counsel’s decision enjoys a strong presumption that it was a matter of sound trial strategy, and the petitioner has not overcome this presumption. See Bova v. Commissioner of Correction, supra, 95 Conn. App. 137-38. The journal writings were cumulative of other compelling evidence of motive and intent, including eyewitness testimony and the many items seized from the petitioner’s van. Even if counsel’s failure to present an expert witness in the field of psychiatry was deemed to be deficient, there was more than sufficient evidence of the petitioner’s guilt for the jury to consider. It is not reasonably probable that the outcome of the trial would have been different had the petitioner presented an expert on this topic.

Ill

The petitioner’s final claim is that his trial counsel rendered ineffective assistance when he failed to advise the petitioner meaningfully as to sentence review and to file the petitioner’s application for sentence review under General Statutes § 51-195, after he had signed the application and delivered it to counsel for filing.

The petitioner testified at his habeas trial that he was distressed from the trial proceedings, and, although he was unsure of exactly what he signed, he thought that trial counsel would take care of it. Trial counsel testified that he did not file the application for sentence review because he had discussed the matter with the petitioner and had advised the petitioner that if the petitioner chose to exercise his right to sentence review, there was a potential that he could receive an increased sentence. Trial counsel considered the sentence imposed on the petitioner to be fair, given the facts of the case, and, because the petitioner did not want to receive an increased sentence, the petitioner ultimately decided not to proceed with the application for sentence review.

The habeas court found that trial counsel had advised the petitioner that if he applied for sentence review, he could receive an increased sentence, and, following this consultation, the petitioner opted not to pursue sentence review. The court found that under these circumstances, trial counsel did not render ineffective assistance. The habeas court heard the testimony of the petitioner and trial counsel and credited the testimony of trial counsel that the petitioner decided not to pursue sentence review. “The court, in its role as finder of fact, was the sole arbiter of the credibility of the witnesses and the weight to afford their testimony.” Batts v. Commissioner of Correction, 85 Conn. App. 723, 728, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004). This court does not “second-guess findings related to the credibility of witnesses.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       There was sufficient compelling evidence that the petitioner was obsessed with the goal of engaging in sexual acts and relationships with young boys. Items seized from the petitioner’s van included a security guard badge, a camera and lighting equipment, a pair of boys underwear, photographs of partially clothed or nude boys, and pages from a journal detailing his past experiences, dreams, fantasies and future goals involving sexual acts with young boys. See State v. Eastwood, supra, 83 Conn. App. 458-59.

       Selig testified as follows: “A dream is an unconscious process that typically occurs during REM sleep and represents a variety of possible issues that have psychological relevance to the dreamer. These could include the playing out of conflicts. They can include the expression of wishes. They can include some disguise manifestations of other emotional or mental issues that the dreamer may have.”
      Selig further testified: “[FJantasy is not exactly a technical psychiatric term. Fantasy as it’s used by laypeople generally implies conscious thoughts that represent desires or wishes that one may have or nonreality kinds of thinking that may or may not be desirable. There can be fantasies which would be thoughts about an undesired reality. For example, the fantasies of someone who is depressed could be very morose and very despondent kinds fantasies. So, the notion of fantasies would be thinking that is not reality but rather represents some emotional or other kind of need or feeling that the person doing the fantasizing might have. People could fantasize about their being very wealthy. They could fantasize about their death. So, it’s thinking about a whole variety of things, but it’s not—but it’s like going on in the conscious mind, not actually being played out in reality.”

       General Statutes § 51-195 provides: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”


author: FLYNN, C. J.

text:
    ADAM CARMON v. COMMISSIONER OF CORRECTION
    (AC 28397)
    Flynn, C. J., and Gruendel and Harper, Js.

      Argued March 12
    officially released May 19, 2009

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Micha,el Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Adam Carmon, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. The petitioner claims that the court improperly concluded that he was not deprived of the effective assistance of trial and prior habeas counsel. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. Following a 1995 jury trial, the petitioner was convicted of murder, assault in the first degree and carrying a pistol without a permit. He was sentenced to a total effective term of eighty-five years incarceration. Following a direct appeal, the judgment of conviction was affirmed by this court. State v. Carmon, 47 Conn. App. 813, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998).

The opinion of this court set forth the following facts underlying the conviction: “On the night of February 3, 1994, Charlene Troutman was in the living room of her apartment located on Orchard Street in New Haven waiting for a taxicab. With her, among others, was her seven month old granddaughter. Shots fired from the street passed through the living room window killing the granddaughter and leaving Troutman permanently paralyzed. At the time the shots were fired, Jaime Stanley and Raymond Jones were [in a vehicle] stopped at a traffic light near Troutman’s apartment and saw a man firing into the apartment. As the shooter ran away, both Stanley and Jones saw his face. Both witnesses identified the [petitioner] during trial as the person who had fired the shots through the window of Troutman’s apartment.” Id., 815.

Following his conviction, the petitioner filed a petition for a writ of habeas corpus claiming that his trial counsel, Richard Silverstein, had rendered ineffective assistance. In the prior habeas proceeding, the petitioner was represented by Richard Smith. The court rejected the petitioner’s claims and denied the petition. The court granted certification to appeal, and an appeal was filed with this court on December 5,2002. On March 25, 2003, the petitioner’s appointed appellate counsel was permitted to withdraw her appearance upon the filing of an Anders brief. Thereafter, the petitioner failed to file an appellate brief, and this court dismissed his appeal.

The petitioner filed his second petition for a writ of habeas corpus in 2003, claiming again that his trial counsel had rendered ineffective assistance. In the second petition, he included allegations of deficient performance that had not been claimed in his first petition. The petitioner alleged that Silverstein rendered ineffective assistance because he failed to investigate and to introduce fingerprint evidence taken from the storm window at the crime scene and from an empty ammunition cartridge box found near the crime scene. He also alleged that Smith rendered ineffective assistance at the habeas trial because Smith failed to raise the claim that Silverstein’s failure to pursue the fingerprint evidence denied the petitioner the effective assistance of counsel at the underlying criminal trial.

A habeas trial was held on February 15 and May 3, 2006. The parties filed posttrial briefs, and the habeas court issued its memorandum of decision on November 14, 2006, denying the petition for a writ of habeas corpus. This appeal followed.

Facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact to which we accord plenary review unfettered by the clearly erroneous standard. Minnifield v. Commissioner of Correction, 111 Conn. App. 776, 778-79, 960 A.2d 1117 (2008), cert. denied, 290 Conn. 914, 965 A.2d 553 (2009).

In Lozada v. Warden, 223 Conn. 834, 842-43, 613 A.2d 818 (1992), our Supreme Court decided that to prevail, a habeas petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective, and that the habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court required both (1) that a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment to the United States constitution and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. See Minnifield v. Commissioner of Correction, supra, 111 Conn. App. 779-80.

On appeal, the petitioner claims that the habeas court improperly concluded that Silverstein’s failure to investigate more fully the fingerprint evidence with respect to the storm window and the cartridge box, and to introduce that evidence at the criminal trial, did not constitute ineffective assistance. Specifically, he argues that all of the fingerprint evidence was favorable to the petitioner because none of his fingerprints were identified on the window or the box. The petitioner further argues that because Stanley testified that the shooter was so close to the window, a juror reasonably could conclude that it was more likely than not that the shooter actually touched it. Further, according to the petitioner, the failure of habeas counsel to raise those deficiencies of trial counsel in the first habeas proceeding likewise constituted ineffective assistance.

As indicated in the habeas court’s memorandum of decision, the petitioner produced two witnesses in support of his claim with respect to the fingerprint evidence at the habeas trial. James Stephenson, a firearms and tool mark examiner at the state forensic science laboratory, testified that he was a detective with the New Haven police department’s bureau of identification at the time of the shootings in February, 1994. The morning after the incident, he had been assigned to the crime scene and had processed latent fingerprints on the window at the multifamily building where the shootings had occurred and on an empty cartridge box found near that building. Although he was able to process fingerprints on both items, Stephenson testified that he did not know whether those fingerprints were identifiable. He further testified that he had no independent knowledge that the window actually had been touched by the shooter.

The second witness, George Shelton, Jr., indicated that he was a latent fingerprint examiner with the New Haven department of police service. Shelton testified that in 2005, his supervisor requested that he compare fingerprint impressions on file in the criminal case with the petitioner’s fingerprints. With respect to the storm window, Shelton testified that none of the fingerprints matched those of the petitioner. On cross-examination, he testified that none of the fingerprints matched any of the several individuals whose names had been provided by the petitioner’s counsel as possible suspects in the shootings.

With respect to the cartridge box, Shelton testified that he had been unable to locate the latent fingerprints that had been processed by Stephenson in 1994. For that reason, he was unable to indicate whether those fingerprints had been identifiable and, if so, whether they matched the fingerprints of the petitioner or the other individuals named by the petitioner’s counsel. There was no testimony as to when the fingerprints had last been seen, and the petitioner argued that the absence of those fingerprints warranted an inference that the evidence would have been favorable to him.

On the basis of that testimony, the habeas court made the following factual findings and conclusions: (1) no evidence had been presented to support a finding that the fingerprint evidence had been intentionally destroyed; (2) the court had no reason to conclude that the New Haven police department was under any obligation to preserve evidence relating to the shootings when the petitioner’s appeal rights had been either exhausted or waived in the criminal case and the first habeas proceeding; (3) unpreserved, untested evidence is not presumed to be exculpatory; (4) the cartridge box was not found directly at the crime scene, and there was no other evidence to connect that box with the shooter; (5) even if the fingerprints from the box had been preserved, identified and found not to match those of the petitioner, it is sheer speculation that a different result would have been produced; (6) there was no evidence that the shooter actually touched the storm window at the crime scene; (7) it is more likely that the fingeiprints from the window were placed there by someone other than the shooter, such as a tenant or visitor to the apartment building, given the lack of evidence that the shooter actually touched the window; (8) Silverstein had visited the crime scene on several occasions and had investigated such issues as the visibility into the apartment from the street and the angle of the bullet trajectories; and (9) the fingerprint evidence produced for the habeas trial did not establish that Silverstein was ineffective in his investigation or that the result of the criminal trial would have been different had he investigated that issue more thoroughly. Because the petitioner failed to show that his trial counsel's performance had been deficient, the habeas court concluded that his claim against Smith with respect to his representation during the first habeas proceeding likewise failed.

We conclude that the facts as found, which are fully supported by the record, do not constitute a violation of the petitioner’s constitutional right to effective assistance of counsel. The habeas court properly determined that the petitioner failed to show that the performance of his trial counsel, Silverstein, or his habeas counsel in the first habeas proceeding, Smith, was ineffective. The petitioner’s argument that the shooter probably touched the window because he was close to it, that he left his fingerprints on that window, that those fingerprints were the ones processed by Stephenson and that the result of the criminal proceedings would have been different if the jury knew that the petitioner’s fingerprints did not match those from the window is, as the habeas court found, sheer speculation. Accordingly, Silverstein’s failure to investigate that matter further was not deficient performance.

The petitioner’s argument with respect to the cartridge box is even more tenuous. That box was not found at the crime scene, and there was no evidence as to when or how it was deposited in the area of a church located near the crime scene. The box was empty, the caliber of the ammunition that had been contained in that box was unknown, there was no eyewitness testimony that the shooter had been seen taking cartridges from a box, and there was no other testimony or evidence linking that box to the crime scene. The fact that the fingerprints processed from the box were no longer available for comparison with the petitioner’s fingerprints twelve years after the shootings did not give rise to a presumption that the evidence would have been favorable to the petitioner. As noted by the habeas court, no evidence had been presented to show that the fingerprints from the box were intentionally destroyed. We conclude that the habeas court correctly determined that the petitioner was not entitled to an inference that the missing fingerprint evidence would have been favorable to him. “[U]npreserved, untested evidence is not presumed to be exculpatory.” Correia v. Rowland, 263 Conn. 453, 474, 820 A.2d 1009 (2003). “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him) . . . .” (Citation omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001).

Because the habeas court properly concluded that the petitioner’s trial counsel had not provided constitutionally ineffective assistance, the petitioner could not prevail on his argument that his habeas counsel in the first habeas proceeding rendered ineffective assistance by failing to claim that his trial counsel’s performance was deficient with respect to the investigation of the fingerprint evidence. See Lozada v. Warden, supra, 223 Conn. 842-43.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under Anders v. California, 386 U.S. 738, 744, 87 S. Cl. 1396, 18 L. Ed. 2d 493 (1967), “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." Such a request must be “accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id.

       The petitioner also raised claims that previously had been raised and determined in the prior habeas proceeding. The habeas court in the present proceeding identified those claims and stated that it would not revisit the issues that already had been resolved.

       The shootings had occurred at 810 Orchard Street. The parking lot of a church was located next to 810 Orchard Street. The church itself was located at 806 Orchard Street, the next building beyond the parking lot. The cartridge box was located in front of the church.

       “While it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility. ... In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation, but by demonstrable realities. . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 87 Conn. App. 517, 525-26, 865 A.2d 1231 (2005).

       Evidence at the criminal trial established that the shooter had used a nine millimeter weapon.