Opinion
CV084002343S.
12-10-2012
Juan RAMIREZ v. WARDEN, State Prison.
Rebecca Ilene Bodner, Rocky Hill, for Juan Ramirez. Michael Joseph Proto, Rocky Hill, for Warden, State Prison.
UNPUBLISHED OPINION
Rebecca Ilene Bodner, Rocky Hill, for Juan Ramirez.
Michael Joseph Proto, Rocky Hill, for Warden, State Prison.
T. SANTOS, J.
The petitioner, Juan Ramirez, alleges in his petition for a writ of habeas corpus, initially filed on April 9, 2008, and amended on January 7, 2011, that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments of the United States constitution and article first, § 8, of the constitution of Connecticut. For the reasons set for more fully below, the petition is denied.
This matter came to trial on March 1, 2011. The Court heard testimony from Attorney Robert Gulash, petitioner's trial attorney. The respondent proffered the Expanded Record as one exhibit, which includes the criminal trial and sentencing and the decision of the Appellate Court and the Supreme Court. The respondent and the petitioner filed post-trial briefs on July 26, 2012 and August 17, 2012 respectively.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Danbury, docket number CR00-0110176. He was charged with sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(1).
2. As stated by the Appellate Court, the jury could reasonably have found the following facts underlying the offense: " On June 25, 1999, the victim and her then boyfriend Johnny Ramirez, who is the defendant's brother, attended a party at the home of the defendant's parents. After consuming several drinks, the victim became ill. The defendant offered to escort the victim to the bathroom. When they reached the bathroom, the defendant remained with the victim while she vomited. The defendant then told the victim that she looked ‘ sexy’ and ‘ pretty’ and began to fondle her breasts. She begged him to stop and then vomited again. The defendant then proceeded to force the victim to engage in sexual intercourse, penetrating her vagina with his fingers, mouth and penis. The victim repeatedly implored the defendant to stop, but did not have the strength to physically restrain him.
3. " The next morning, the victim awoke alone in a bed in the defendant's parents' home. When she awoke, she found that her clothing was in disarray. She ate breakfast with the defendant's family. At that time, she was not entirely certain what had transpired the previous night and who had been involved, so she did not say anything to anybody about the incident in the bathroom. Later, the defendant drove the victim and Johnny Ramirez to Johnny Ramirez's apartment. At that time, the victim was still confused about the events of the previous night. Johnny Ramirez later took the victim to her parents' home where she lived. She did not tell her parents that evening what had transpired the previous night.
4. " The next morning, the victim went to work. While she was at work, she realized she had been raped, but was not certain of the identity of her assailant. Later in the day, however, she became more confident that the defendant had raped her. She returned home, where she told her mother about the assault and called the police. They then went to the hospital, where she was examined and rape kit tests were performed.
5. " The defendant was later arrested in New York and taken to a correctional facility in that state. The authorities in New York subsequently delivered him into the custody of the Danbury police department." State v. Ramirez, 79 Conn.App. 572, 574-75, 830 A.2d 1165, cert. denied, 267 Conn. 902, 838 A.2d 211, (2003). (Ramirez I. )
6. After a jury trial, presided over by the Honorable Gary J. White, the petitioner was convicted as charged and sentenced to a term of incarceration.
7. Petitioner appealed his conviction and the Appellate Court set it aside granting him a new trial. State v. Ramirez, supra, 79 Conn.App. at 572, 830 A.2d 1165.
8. After a new trial, presided over by the Honorable Robert J. Callahan, Judge Trial Referee, petitioner was again convicted as charged.
9. On November 19, 2004, petitioner was sentenced to twenty years, suspended after the service of ten years, followed by ten years probation.
10. The conviction was affirmed on direct appeal and the Supreme Court denied petitioner's petition for certification. State v. Ramirez, 101 Conn.App. 283, 921 A.2d 702, cert. denied, 283 Conn. 909, 928 A.2d 539, (2007), cert. denied, 552 U.S. 1109, 128 S.Ct. 895, 169 L.Ed.2d 747 (2008). (Ramirez II. )
11. At all times relevant to the claims in the instant petition, petitioner was represented by Attorney Robert Gulash. He graduated from Lehigh University in 1972 and, later, from the Stetson Law School. Mr. Gulash became a member of the Connecticut Bar in 1976, and, subsequently was also admitted to the bar in Florida. His first professional position in Connecticut was with the Public Defender's Office in Bridgeport where he practiced for five years. He then entered private practice with the firm of Gulash and Riccio. Mr. Gulash is a past president of the Connecticut Criminal Defense Lawyers Association and is a Fellow in the College of American Trial Attorneys. His practice consists of virtually all criminal work. In 2004, when he represented the petitioner, he had already handled well over one thousand Part A cases and had had over 100 jury trials.
12. Additional facts will be discussed as needed.
Respondent's Exhibit A, Appendix G, pp. 3-6.
Respondent's Exhibit A, Appendix H, p. 38.
Although the petitioner was granted a new trial in Ramirez I, the Appellate Court in Ramirez II restated the facts of Ramirez I. State v. Ramirez, supra, 101 Conn.App. at 285, 921 A.2d 702.
DISCUSSION
The petitioner now comes before this court seeking to vacate his conviction for sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) in docket number DBD CR00-0110176 and restore his case to the docket for further proceedings in accordance with law.
The claim of ineffectiveness assistance of counsel, in the amended petition, complains that trial counsel's performance was not reasonably competent because he failed to request a limiting jury instruction in reference to the victim's mother's testimony regarding constancy of accusation pursuant to State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), and that his acts and omissions fell below the range of competence displayed by lawyers with ordinary training and skill in the criminal law. Petitioner asserts that but for these deficiencies, the result of the trial would have been more favorable to the petitioner.
The respondent's return admits and denies certain facts and because there isn't sufficient information to admit or deny other facts, leaves the petitioner to his burden of proof.
The standard this court must apply is well established. " A petitioner's right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel ... The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted) Woods v. Commissioner of Correction, 85 Conn.App. 544, 549, 857 A.2d 986 cert. denied, 272 Conn. 903, 863 A.2d 696 (2004). " The Sixth Amendment recognized the right to the assistance of counsel because it envisions counsel playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney ... who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
" In Strickland v. Washington, [supra], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient ... Second, the [petitioner] must show 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 adversarial process that renders the result unreliable." (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn.App. 432, 436, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). " A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one." Citing William C. v. Commissioner of Correction, 300 Conn. 922, 14 A.3d 1007, cert. denied. 300 Conn. 922 (2011). (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn.App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).
Attorney Gulash's representation was not deficient for failing to request a limiting jury instruction in reference to the constancy of accusation testimony given by the victim's mother as fully discussed below.
" In Troupe, [the Supreme Court] modified the constancy of accusation doctrine ... to better accommodate the interest of the victim in being protected ‘ against the unwarranted, but nonetheless persistent view that a sexual assault victim who did not report the crime cannot be trusted to testify truthfully about the incident, ’ and the interest of the accused in being protected against ‘ an enhanced risk that the jury may be unduly swayed by the repeat iteration of the constancy of accusation testimony.’ " State v. Samuels, 273 Conn. 541, 547, 871 A.2d 1005 (2005), citing and quoting State v. Troupe, supra, 237 Conn. at 303, 677 A.2d 917. The modification of the constancy of accusation doctrine as codified in the § 6-11(c) of the Connecticut Code of Evidence provides that, " [A] person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person ... to whom the assault was reported. The testimony of the witness is admissible only to corroborate the victim's testimony and not for substantive purposes." See also State v. Samuels, supra, 273 Conn. at 548-49, 871 A.2d 1005.
" In addition, the defendant is entitled to an instruction that any delay by the victim in reporting the incident is a matter for the jury to consider in evaluation the weight of the victim's testimony." State v. Samuels, supra 273 Conn. at 548, 871 A.2d 1005, citing and quoting State v. Troupe, supra, 237 Conn. at 304-05, 677 A.2d 917.
In this case, there is no dispute that Attorney Gulash did not request a limiting jury instruction regarding the constancy of accusation testimony given by the victim's mother. Petitioner alleges that counsel's failure to request this instruction rises to the level of deficient performance. The court finds that Attorney Gulash's performance was not deficient. Attorney Gulash was a seasoned defense attorney who filed a motion in limine to exclude the testimony of the constancy of accusation witness and which was denied by the court. Further, upon direct examination, Attorney Gulash testified, " that he objected to the constancy evidence ... [The] objection was overruled, and then it was certainly my strategy at the time not to draw further attention to evidence that I had objected to in the first place." This was a strategic decision on the part of counsel and under the facts in this case was reasonable. See Bryant v. Commissioner of Correction, 290 Conn. 502, 512, 964 A.2d 1186, cert. denied, sub nom. Bryant v. Murphy, __ U.S. __, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009). In Bryant, the court indicated that, " 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." Gibson v. Commission of Correction, 118 Conn.App. 863, 874, 986 A.2d 303, cert. denied, 295 Conn. 919, 791 A.2d 565 (2010), citing and quoting Bryant v. Commissioner of Correction, supra, 290 Conn. at 512-13, 964 A.2d 1186.
Respondent's exhibit A, Appendix A, footnote 14.
Petitioner's pre-trial brief (# 121.00), p. 8.
Habeas transcript p. 9.
In this case, by counsel's own testimony, the decision was one of strategy and this court finds that strategy as being reasonable in light of the facts and circumstances of this case and, accordingly, the petition fails on the performance prong.
Assuming arguendo, the court found deficient performance, the petitioner has also failed to prove how he was prejudiced by Attorney Gulash's decision to not request a limiting jury instruction regarding the constancy of accusation testimony.
In order to establish prejudice, the petitioner must show that but for the deficient performance, the outcome of the proceedings would have been different. In other words, " a reasonable probability is one [that] is sufficient to undermine confidence in the result." Gibson v. Commissioner of Correction, supra, 118 Conn.App., at 95-96, 983 A.2d 11 citing and quoting Greene v. Commissioner of Correction, 123 Conn.App. 121, 127-28, 2 A.3d 29 cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied, __ U.S. __, 131 S.Ct. 2925, 179 L.Ed.2d 1248 (2011).
Had, a limiting jury instruction been given, or the mother's testimony been excluded, the state still had a strong case. DNA from the petitioner was found on the victim's skirt. The victim testified in detail about the assault. She also testified that when she awoke, " she sat up ... and realized her bra was unbuckled, the zipper to my skirt was down ... [when she stood up] there was something dripping down my leg and I looked and it looked like semen." The jury heard about the rape kit examination from a nurse, Sheila Mortara that was performed in the hospital, including all the antiviral and preventive medications given to the victim. Given all the evidence presented at trial, this court is not persuaded that had a limiting jury instruction been given regarding the victim's mother's testimony, that the outcome of the proceeding would have been more favorable to the petitioner.
Respondent's Exhibit A, Appendix D, pp. 119-26, 142-44.
Respondent's Exhibit A, Appendix C, p. 48.
Respondent's Exhibit A, Appendix D, pp. 43-46.
This court is bound by the decision of the Appellate Court in State v. Ramirez, 101 Conn.App. 283, 297 n. 6, 921 A.2d 702, (Ramirez II ), which found the testimony of the victim's mother satisfied the parameters of State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc), which held that " a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim's complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator."
For the reasons stated, the court finds no prejudice to the petitioner on failing to request a limiting jury instruction regarding the constancy of accusation testimony given by the victim's mother.
CONCLUSION
The petitioner has not met his burden of proof and has failed to substantiate his claim that Attorney Gulash rendered ineffective assistance. For the reasons stated above, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for petitioner shall prepare and submit a judgment file to the clerk within thirty (30) days of this judgment.