Opinion
No. CV 05 4000278
October 15, 2007
MEMORANDUM OF DECISION ON MOTION FOR IN CAMERA REVIEW OF RECORDS HELD BY THE DEPARTMENT OF CHILDREN AND FAMILIES
On July 19, 2006, the petitioner was convicted by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70 and risk of injury, to a minor in violation of § 53-21. In the present habeas action, the petitioner claims that he was denied the effective assistance of trial defense counsel and that he is actually innocent.
Just prior to the conclusion of the habeas trial on September 11, 2007, the petitioner filed two motions requesting the court to conduct an in camera review of records held by the Department of Children and Families (DCF). The first motion concerns records pertaining to the child victim in the petitioner's underlying criminal case, EM. The petitioner asserts that he is entitled to an in camera review of EM's records on two grounds: the right to confrontation and the right to due process. The second motion concerns records pertaining to DW, a child who allegedly engaged in sexual activity with EM during the time that the petitioner was in pretrial confinement. The petitioner asserts that he is entitled to an in camera review of DW's records on two grounds: the right to due process and the right to present third-party culpability evidence.
DISCUSSION
The confidentiality of DCF records is protected under General Statutes § 17a-28(b), which provides in relevant part: "[R]ecords maintained by the department shall be confidential and shall not be disclosed. Such records of any person may only be disclosed, in whole or in part, to any individual, agency, corporation or organization with the consent of the person . . ." This statutory protection, however, is not absolute. State v. Kulmac, 230 Conn. 43, 57, 644 A.2d 887 (1994); State v. Leduc, 40 Conn.App. 233, 243, 670 A.2d 1309 (1996). A right to an in camera review of DCF records exists under the confrontation clause of the sixth amendment to the United States constitution and the due process clause of the fourteenth amendment to the United States constitution. State v. Kulmac, supra, 230 Conn. 59; State v. Leduc, 40 Conn.App., supra, 40 Conn.App. 248-49.
The qualified privilege attached to DCF records has been extensively discussed in cases concerning appeals from criminal prosecutions; however, the Connecticut appellate courts have not squarely addressed the disclosure of DCF records in the context of a habeas corpus case. Although the issue has not been reviewed on appeal, the issue was put before the habeas court in Provost v. Commissioner of Correction, 47 Conn.Sup. 649, 652-53 [34 Conn. L. Rptr. 180] (2003). In Provost, the petitioner sought an in camera inspection of the minor victim's DCF records. The victim objected, arguing that the case law pertaining to the review of DCF records applies only in criminal cases. Id., 652. The court (Rittenband, J.) did not agree, reasoning that "[a]lthough the petitioner does not have to prove his innocence or ineffective assistance of counsel . . . beyond a reasonable doubt, the similarities [between criminal and habeas cases] are obvious." Id. This court also takes that position.
Although a habeas corpus matter is a civil action, it is in this "court of last resort" that an imprisoned individual has a final opportunity to challenge the legality of his underlying criminal conviction. Indeed, both a habeas petitioner and criminal defendant have substantial liberty interests at stake. Id. Moreover, much like a criminal appeal, in a habeas action many details of the criminal trial are reviewed and the actions or omissions of trial defense counsel analyzed. Based on these considerations, this court finds it appropriate to apply the criminal cases governing the right to an in camera review of DCF records with equal force to such disclosures sought in a habeas trial. See id., 652-53.
Constitutional Grounds for In Camera Review
In this habeas matter, the petitioner claims that his trial counsel failed to adequately investigate his case and failed to utilize an expert in the area concerning the reliability of disclosures made by child victims of sexual assault. Underlying these claims is the assertion that trial defense counsel never filed a motion for disclosure of the information contained in EM's and DW's DCF records. Although it is clear, based on the record, that defense counsel did have access to some information contained in the DCF files; it is not clear exactly what information the state's attorney possessed and was turned over under the duty to disclosure exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); General Statues § 17a-28(1).
The petitioner relies on Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and State v. Leduc, supra, 40 Conn.App. 233, for his claim that he is entitled to an in camera review of the DCF records on due process grounds. The facts and circumstances in Ritchie and Leduc are markedly similar. In both cases, the defendant was charged with sex crimes as a result of allegations made by his minor daughter. Pennsylvania v. Ritchie, supra, 43; State v. Leduc, supra, 235. The case was referred to a state agency charged with investigating allegations of child abuse. Pennsylvania v. Ritchie, supra, 43; State v. Leduc, supra, 236. Requests by the defense to review the agency's confidential records were denied by the trial court. Pennsylvania v. Ritchie, supra, 44-45; State v. Leduc, supra, 240. Citing Ritchie, the Connecticut Supreme Court in Leduc held that, upon a sufficient showing, a defendant "has a due process right to an in camera inspection of the qualified confidential reports of DCF, not in the possession of the prosecution, in order that the court may determine whether exculpatory evidence exists." State v. Leduc, supra, 248.
To trigger the right to an in camera review under Leduc and Ritchie, a defendant must show that the DCF records might contain exculpatory evidence. State v. Leduc, supra, 247-48; Pennsylvania v. Ritchie, supra, 44. In doing so, the defendant "must at least make some plausible statement of how the information would be both material and favorable to his defense." State v. Leduc, 248, quoting Pennsylvania v. Ritchie, 58 n. 15. Additionally, the claims in Leduc and Ritchie were premised on the fact that the records at issue involved the same incident that gave rise to the defendants' criminal charges. State v. Leduc, supra, 247.
Upon subpoena by the petitioner in the present case, DCF provided the court with a large envelope containing the case records of EM and DW. It is not entirely clear to this court if the envelope contains other documents, those that pertain to matters above and beyond the case that formed the basis of the petitioner's criminal charges, in addition to the records pertaining to the petitioner's criminal case. It is important, therefore, that this point is clear: For the purposes of this habeas matter, the court is only concerned with the records involving the incident that led to the petitioner's criminal charges.
The petitioner claims that there may be exculpatory information in the records of EM "bearing on the child's development and ability to accurately relate personal historical events." Evidence was presented at the habeas trial that EM had some developmental issues and difficulty relating certain facts. The petitioner has also raised some questions about the reliability and credibility of the interviewing methods used with EM. All of this information is material to the petitioner's criminal charges and could potentially cast doubt on the victim's version of events. Moreover, any exculpatory information in the records that could have been disclosed to trial defense counsel serve as a basis for the petitioner's habeas claim that further investigation of the petitioner's case, as well as the retention of an expert witness, was warranted. Based on the foregoing, this court concludes that the petitioner has made the requisite showing to trigger an in camera review of EM's records on due process grounds.
Because this court finds a due process right to an in camera review of EM's records, there is no need to decide whether a right to an in camera review exists under the confrontation clause of the sixth amendment.
The issues concerning the request for an in camera review of DW's records are a bit more complicated. The records do not involve "the same incident that form[ed] the basis of [the petitioner's] criminal charges." State v. Leduc, supra, 244. They stem from a report of an incident involving DW and EM that occurred while the petitioner was in pretrial confinement. This does not provide an adequate basis to grant an in camera review of DW's records on due process grounds. See State v. Berube, 256 Conn. 742, 455-58, 775 A.2d 966 (2001) (trial court properly refused to conduct in camera review of DCF file of defendant's biological child when criminal charges stemmed from acts involving defendant's stepchildren).
Notwithstanding that conclusion, DW's records are relevant to the question of whether the petitioner sexually abused EM. Although the reported abuse by DW occurred during the petitioner's absence from the home, DW lived in the household with EM and the petitioner at the time of the petitioner's alleged abuse of EM. Both DW and the petitioner, therefore, had physical access to EM prior to the petitioner's incarceration. Moreover, in a Child Abuse Multidisciplinary Investigation Team report entered into evidence at the habeas trial (Ex. 9), EM indicated that the abuse by DW occurred in three different rooms in the house, which indicates three separate occurrences of abuse. EM was unable to communicate, however, exactly when the incidents took place. Given these facts, the records that pertain to the incident between EM and DW are relevant to the petitioner's criminal conviction in that the facts lend support to the petitioner's suggestion that it was the abuse of EM by DW that prompted the initial DCF investigations, not abuse by the petitioner. This theory serves as the basis for the petitioner's alternative request for an in camera review based on the doctrine of third-party culpability.
Concerning the issue of third-party culpability, it is well established that "a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged . . . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused." (Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 548-49 (1992). "The rules of relevancy govern . . . the initial presentation of third party culpability evidence . . ." State v. Vasquez, 66 Conn. App 118, 130, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001).
As the court previously indicated, the information sought in DW's records is relevant to the petitioner's criminal case. The records are equally relevant to the petitioner's habeas matter. In the amended petition, the petitioner claims that he was denied the effective assistance of counsel and that he is actually innocent. Whether favorable evidence contained in DW's records went unused due to trial counsel's ineffective assistance cannot be determined unless a review of the records is conducted. The court will therefore grant the petitioner's request for an in camera review of DW's records based on the principle of third-party culpability.
After conducting the in camera review, it is within the discretion of the court to determine whether any information will actually be disclosed to the petitioner. See State v. Francis, 267 Conn. 162, 172, 836 A.2d 1191 (2003). Nothing from DW's records will be disclosed if the evidence contained therein merely "affords a possible ground of possible suspicion" against the petitioner. Id., 174. As noted above, "evidence of third culpability must directly connect the third party to the crime." Id., 175.
Orders may enter accordingly.