Hickey v. Comm'r of Corr.

188 A.3d 715, 329 Conn. 605
CourtSupreme Court of Connecticut
DecidedJuly 31, 2018
DocketSC 19781
StatusPublished
Cited by9 cases

This text of 188 A.3d 715 (Hickey v. Comm'r of Corr.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hickey v. Comm'r of Corr., 188 A.3d 715, 329 Conn. 605 (Colo. 2018).

Opinion

ROBINSON, J.

**607The sole issue in this certified appeal is whether a criminal defendant received the effective assistance of counsel at his trial when his attorney failed to request (1) a limiting instruction contemporaneous with testimony about prior, uncharged sexual misconduct, and (2) the inclusion of language in the trial court's final charge limiting the use of that testimony to the issue of propensity. The respondent, the Commissioner of Correction (commissioner), appeals, upon our grant of his petition for certification, from the judgment of the Appellate Court, which remanded the case to the habeas court, in part, for a new trial on the amended petition for a writ of habeas corpus filed by the petitioner, Denis Hickey.1 Hickey v. Commissioner of Correction , 162 Conn. App. 505, 524, 133 A.3d 489 (2016). On appeal, the commissioner contends that the Appellate Court improperly created a per se rule requiring defense counsel, upon the introduction of prior, uncharged sexual misconduct evidence, to ask for a contemporaneous limiting instruction and a final charge restricting the use of such evidence to propensity and, in so doing, failed to hold the petitioner to his burden of proof under Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The commissioner also contends that, after concluding that the habeas court improperly *718analyzed prejudice, the Appellate Court should have engaged in a plenary review of the evidence in the record and determined that the petitioner had **608failed to prove prejudice. We agree with the commissioner, and conclude that even if we assume, without deciding, that the performance of the petitioner's trial counsel was deficient, the petitioner failed to prove prejudice. We therefore conclude that the petitioner cannot prevail on his claim of ineffective assistance of trial counsel and, accordingly, reverse in part the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the relevant facts and procedural history. "In June, 2009, the petitioner was convicted of one count of sexual assault in the first degree in violation of General Statutes [Rev. to 2001] § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes [Rev. to 2001] § 53-21 (a) (2).... At trial, the jury reasonably could have found that the petitioner digitally penetrated the anus of his then girlfriend's five year old daughter (victim)2 while she and her family were living with the petitioner.... The petitioner was sentenced to a term of thirty years in the custody of the respondent, execution suspended after twenty years, and thirty-five years of probation." (Citations omitted; footnotes added and omitted.) Hickey v. Commissioner of Correction , supra, 162 Conn. App. at 506-507, 133 A.3d 489 ; see also State v. Hickey , 135 Conn. App. 532, 535-36, 43 A.3d 701, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).

"Prior to trial, the state gave notice that it would present evidence of the petitioner's prior, uncharged sexual misconduct through the testimony of R.N., a cousin of the petitioner's former wife. [The petitioner's trial] counsel filed a motion in limine with respect to **609R.N.'s proffered testimony,3 arguing that the difference in age between the victim and R.N. was too great for them to be similar, that their relationships with the petitioner were dissimilar, and that the events were not proximate in time.... After analyzing the proffer under the [three prong test set forth in State v. DeJesus , 288 Conn. 418, 441, 953 A.2d 45 (2008) ] the trial court ruled that the state could present R.N.'s proffered testimony.4 ... At the time R.N. testified in accordance *719with the proffer, the [trial] court did not provide a cautionary instruction to the jury.

"Prior to the conclusion of evidence, [the petitioner's] trial counsel submitted a request to charge that included a charge on prior, uncharged misconduct. The petitioner's request to charge stated in relevant part: 'You have also heard testimony in this case about what is called uncharged misconduct. In criminal cases which contain charges such as those in this trial, evidence of a defendant's commission of another offense or offenses may be admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence **610of a prior offense on its own is not sufficient to prove [the petitioner] guilty of the crimes charged in this trial. Bear in mind as you consider this evidence that at all times the state has the burden of proving beyond a reasonable doubt that [the petitioner] committed each of the elements of the offenses charged in this trial. I remind you that [the petitioner] is not on trial for any act, conduct or offense not charged in the information for this case.'5 **611*720"The trial court charged the jury with respect to prior, uncharged sexual conduct as follows. 'In a criminal case in which the defendant is charged with a crime exhibiting aberrant and compulsive criminal sexual behavior, evidence of the defendant's commission of another offense or offenses is admissible and may be considered for its bearing on any matters to which it is relevant.

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337 Conn. 718 (Supreme Court of Connecticut, 2021)
Schuler v. Commissioner of Correction
200 Conn. App. 602 (Connecticut Appellate Court, 2020)
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Ruiz v. Commissioner of Correction
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Dennis v. Commissioner of Correction
208 A.3d 282 (Connecticut Appellate Court, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
188 A.3d 715, 329 Conn. 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickey-v-commr-of-corr-conn-2018.