Opinion
No. CV 07-4030606
May 1, 2009
MEMORANDUM OF DECISION
I. Introduction
Michael Brown, the petitioner, was accorded a trial (underlying trial) conducted September 20 through 24 of 2004, at G.A. 13 in Enfield. The petitioner was convicted by jury verdicts of guilty to: Sexual Assault in the Third Degree, a violation of General Statutes § 53a-72a(a); Unlawful Restraint in the First Degree, a violation of § 53a-95; Threatening in the Second Degree, a violation of § 53a-62(a)(2); Assault in the Third Degree, a violation of § 53a-61(a)(1); and Breach of Peace, a violation of § 53a-181(a)(5).
The petitioner appealed his convictions. In State v. Michael Brown, 96 Conn.App. 700, 901 A.2d 86, cert. denied, 280 Conn. 912, 908 A.2d 539 (2006), the verdicts were affirmed.
In the instant matter petitioner seeks habeas corpus relief and alleges in his Second Amended Petition dated September 23, 2008, in Count One that he was denied effective assistance of trial counsel, and in Count Two that he was denied due process of law in that exculpatory information was not disclosed by the state in a timely manner.
The petitioner does not cite adequate statutory or constitutional authority for the claimed violations of the laws which he posits. Although the pleadings are deficient, this court is of the opinion that the pleadings provide "sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party" that the court will consider the claims advanced. See Carpenter v. Commissioner of Correction, 274 Conn. 834, 842, 878 A.2d 1088 (2005).
The respondent, state of Connecticut, in the Return dated October 3, 2008, relevant to Count One generally leaves the petitioner to his proof and as to Count Two avers that the petitioner is procedurally defaulted.
In petitioner's Reply dated October 9, 2008, the petitioner claims relevant to Count Two that he is not procedurally defaulted because "[t]here is not adequate information on the record as to what information was disclosed and when this information was disclosed."
The habeas trial was held before this court October 21 through 22 of 2008.
II. Issues Presented
A. Relevant to count one: Did the trial attorney fail to provide effective assistance of counsel to the petitioner in the trial of the underlying charges? If so, was that prejudicial to the petitioner?
B. Relevant to count two: Is the petitioner procedurally defaulted from his claim that the state failed to disclose exculpatory information to the defense in a timely manner at trial? If not, were the due process rights of the petitioner violated by the failure of the state to disclose exculpatory information in a timely manner at trial?
III. Findings of Fact A. THE UNDERLYING CRIMINAL TRIAL
Based upon a full review of the testimony and the evidence presented, this court finds that the jurors could have reasonably found the following facts.
There is no appellate record of the jury's findings in that the petitioner limited the appeal to a due process claim that the trial court failed to voir dire the jury adequately after an allegation of juror bias.
At the time of trial Kristine, the complainant, resided in Feeding Hills, Massachusetts. She was married and her husband was a firefighter.
In the underlying criminal trial the full name of the complainant was used. The court is not aware of any explicit waiver of confidentiality and is not, at this time, inclined to find an implicit waiver. Accordingly, pursuant to General Statutes § 54-86e, the complainant will be identified by her first name as Kristine. Court Exhibit #1 includes the victim's surname.
On September 18, 2002, at approximately 10:00 P.M., Kristine telephoned her former co-worker, Bridgett Bayliss (Bayliss), an individual with whom she occasionally socialized. Bayliss invited Kristine to come visit her at her apartment that very night in Enfield. Bayliss explained that she spent the evening with her boyfriend, the petitioner, that he was about to leave, and both she and Kristine could enjoy a movie together. Kristine agreed and traveled approximately ten minutes to the Bayliss apartment.
When Kristine arrived she found Bayliss in the common hallway of her apartment with the petitioner and several neighbors. Kristine had met petitioner previously. Eventually all entered the Bayliss apartment.
Bayliss provided Kristine with something to eat and indicated that they had bought Mike's Hard Cranberry drink for Kristine. Bayliss then offered Kristine the drink, which Kristine accepted. The neighbors did eventually leave.
Kristine did expect the petitioner to leave next so that she and Bayliss could watch a movie together as was planned. Instead, the petitioner suggested that they play checkers. Bayliss suggested that they play shot checkers — "a checker game with shot glasses that you fill up, and then when you jump somebody, you have to drink what's in the shot glass." Kristine agreed to play upon being assured she could continue with Mike's Hard Cranberry drink even though Bayliss was filling the shot glasses for petitioner (relevant to the game) with liquor. Bayliss kept petitioner's glass filled with liquor. Kristine played the checkers game with petitioner. Petitioner lost the game and insisted they play another game. Kristine played two games of shot checkers with petitioner.
During the second game the conversation turned to a shopping trip undertaken by Bayliss and petitioner for sex toys. Bayliss retrieved the shopping bag and displayed the items purchased. Bayliss then put the items away and left the apartment. Kristine still was in possession of her original drink. Kristine was alone in the apartment with petitioner making small talk. Bayliss returned to the apartment shortly thereafter. Kristine won the second game of shot checkers and petitioner suggested they play another. Kristine indicated she no longer wished to play.
Kristine then indicated her intent to leave but first asked permission to use the restroom. Kristine went into the bathroom and was utilizing the facilities. She was feeling nauseous, picked up and vomited into a wastebasket. Kristine described the bathroom as "extremely tiny" and "very tiny."
While still in the bathroom, there were two successive knocks on the bathroom door and Kristine responded that she would be out in a moment. The door then opened and petitioner entered and closed the door behind him. Kristine was sitting on the toilet with her pants down and placed the wastebasket on the floor. Petitioner came over to Kristine, grabbed her by the hair, pulled her head back and asked her what her husband "was into?" Kristine explained that her husband was a firefighter and was working a twenty-four-hour shift this night.
Petitioner pulled Kristine by her hair onto the floor and grabbed her by the throat. He related to her words to the effect that when he was in Vietnam he would torture and kill children who lied to him. Petitioner threatened to kill Kristine and her entire family. Petitioner was much larger than Kristine.
There was a knock on the bathroom door and Bayliss asked if everything was alright. Petitioner covered Kristine's mouth with his hand and she could not answer. Petitioner responded that all was fine and that they were just talking.
Kristine then heard the apartment door close. Kristine did not know whether Bayliss left the apartment or not, but hoped that she did leave in order to summon help. Kristine did not scream because she was frightened.
Petitioner said that he was going to turn off the bathroom light and admonished Kristine not to try anything. The light switch was on the wall outside the bathroom door. Petitioner got up, opened the bathroom door, reached his hand out, turned off the bathroom light and closed the bathroom door. Petitioner grabbed Kristine by the leg and held her foot. Petitioner put the toilet lid down and sat on the toilet and grasped Kristine's big toe and bent it which caused her pain.
Petitioner then removed Kristine's jeans and panties which were still pulled down. Petitioner instructed Kristine to remove the rest of her clothing. She took off her sweatshirt and told him she had all her clothing off. Petitioner twisted her toe forcefully and said he knew she was lying. Kristine then removed her T-shirt and bra.
Petitioner then told Kristine that he wanted her to "play with" herself. Petitioner explained that he wanted Kristine to masturbate. Kristine simulated the act. Petitioner indicated he knew she was not doing what she was supposed to be doing and continued to inflict pain. Kristine complied. Kristine was lying on the bathroom floor, naked, while masturbating. It was the beginning of her menstrual cycle and there was a "mess [of blood] on me." (Transcript, Sept. 20, 2004, pp. 108-11.)
Petitioner started talking about how much he loved Bayliss. Petitioner further commented that it would be more fun to have Bayliss participate with them. Petitioner said he wanted Kristine to manipulate Bayliss and bring her to orgasm. Kristine indicated she would be willing to participate with Bayliss as a ruse in order to free herself from the bathroom. Petitioner then allowed Kristine up from the floor and grabbed her nipple and twisted it hard and warned her not to cause any problems.
Petitioner opened the bathroom door and pushed Kristine towards the living room. Kristine commented that Bayliss was not in the apartment. Petitioner was under the impression that Bayliss was in bed. Bayliss was not in the apartment. The petitioner proceeded to open the apartment door and stepped into the hallway. Petitioner was clad only in his shorts. Kristine slammed the apartment door behind him and locked it. Kristine put the chain on the door and placed a chair under the doorknob.
Kristine retrieved her purse, with her cell phone within, and began dialing 911. Apparently, Bayliss had returned, found petitioner locked out of the apartment and unlocked the door with her key. Petitioner was attempting to disengage the chain lock. Kristine slammed the door on his hand, locked it again and completed the 911 call. Kristine got dressed and awaited the arrival of the police in the apartment.
Officer Ralph Jensen, Jr. was dispatched to the subject apartment and when he arrived on the scene with his sergeant he observed the petitioner in the common hallway "in his boxer shorts" and Bayliss on the floor (of the hallway). Officer Jensen knocked on the apartment door, identified himself as a police officer and was admitted into the apartment by Kristine. They awaited the arrival of the investigating officer, Officer Ronald Renaud.
Officer Renaud (Renaud) arrived and entered the apartment, and at least one officer remained in the hallway with the petitioner. Kristine was of the belief she may have met Renaud on a previous occasion but did not recognize him at the time. Renaud interviewed Kristine in the apartment and obtained a written statement. Later Renaud obtained a second written statement from Kristine in his police vehicle. Renaud was the only officer who formally interviewed Kristine.
Officer Dave Thomas arrived as a back up officer. While Officer Thomas and Officer Jensen were in the hallway with the petitioner, the petitioner began whistling loudly, the time being approximately 3 a.m. Upon being told repeatedly to desist, the petitioner directed expletives to the officers and resumed his loud whistling. At least one tenant of the complex peered out from an apartment. The petitioner was arrested for disorderly conduct for his behavior in the hallway and placed in a cruiser. On the way to the police department the defendant banged his head multiple times on the glass partition in the cruiser.
Sergeant Steven Kaselouskas also observed the petitioner in the hallway knocking on the apartment door clad only in his underwear. The sergeant reviewed Kristine's initial written statement and, while Kristine was in Renaud's police cruiser, asked her to submit a second statement which would include more details of the incident. Kristine complied.
About one year prior to the commencement of the underlying trial, a girlfriend of Kristine had a Halloween party which Kristine attended and encountered Renaud. Kristine subsequently shared an apartment with Renaud and later, in December of 2003, the relationship became intimate.
At the time of the underlying trial, in September 2004, Kristine was separated from her husband and was co-habitating with Renaud, the investigating officer, in a romantic relationship. Renaud was also a judicial marshal and was assigned to that very courthouse at the time of trial.
B. THE HABEAS CORPUS TRIAL
Based on the testimony and evidence presented, the court makes the following findings of fact.
Deanna Renaud-Doucette (Renaud-Doucette), the former wife of Officer Renaud, learned that Renaud was having an affair with Kristine in mid-November 2002, and that both Renaud and Kristine moved in together in July of 2003. Renaud-Doucette was not called as a witness at the underlying criminal trial. The date of the crime was September 18-19 of 2002.
Donald Light was retained by the petitioner's trial counsel, Attorney Scott Sandler, as a private investigator on behalf of petitioner. As part of Light's investigation in the underlying matter he went and examined the Bayliss apartment — more specifically, the bathroom area — interviewed the petitioner and Kristine's former husband. Light photographed and prepared a diagram of the subject bathroom and characterized the bathroom as "extremely small". Petitioner's Exhibit #2, a sketch of the bathroom that included measurements, but was not drawn to scale, was admitted as evidence at the habeas trial. Petitioner's Exhibit ##3, 4, 5 and 6 are photographs of the subject bathroom and were admitted as full exhibits in the habeas trial. Light was never asked to investigate the purported relationship between Renaud and Kristine. Light was not called as a witness in the underlying trial. Attorney Sandler became a member of the bar in 1994 and was experienced in G.A. matters and juvenile matters but had no Part A or jury trial experience up to the time of the petitioner's underlying trial.
Sandler was made aware that the complainant, Kristine, was, at the time of trial, in an intimate relationship and living with Renaud. Sandler could not recall exactly when he learned of the relationship; however, he related that it was not brought to his attention at the pre-trial proceedings but at a later date, either before or after voir dire but prior to the taking of testimony.
Sandler was of the opinion that upon learning of the relationship between Kristine and Renaud that he was prepared to question Kristine on it and, under the circumstances, did not require a continuance in order to further investigate the relationship. Sandler was of the belief that he was prepared to cross-examine Kristine because he had previously interviewed Bayliss, who revealed much of Kristine's background.
The testimony concerning Kristine's relationship with Renaud was brought before the jury by Kristine on direct examination on the first day of trial.
There was no physical evidence introduced at the underlying trial to corroborate Kristine's testimony. There were neither photographs of any marks on her person, nor torn clothing offered. Sandler was of the opinion that everything an officer was trained to do at a crime scene did not occur as part of the subject investigation. No photographs of the apartment or of any physical injuries of the complainant were introduced into evidence by the state. The officers did not refer the complainant to the hospital for examination but allowed her to drive herself home. Kristine testified that clumps of her hair were pulled from her head by the petitioner, yet no hair was admitted at the underlying trial.
Based upon the lack of any physical evidence corroborating Kristine's claims, the defense developed the theory that reasonable doubt would exist in the minds of the jurors.
Although there was presumably a 911 tape of Kristine's call to police, trial counsel made no effort to obtain the tape and review it. There was no indication at the habeas trial as to whether the 911 tape had been preserved or destroyed or was available.
Officer Renaud was not on the witness list in the underlying trial and Sandler "was thrilled." Sandler was pleased that Renaud was not on the state's witness list because Sandler feared that if called as a witness Renaud would testify to his observations of the complainant that would corroborate her statements and further incriminate the petitioner. Sandler looked forward to raising the issue of the failure of the state to call the investigating officer to testify at the underlying trial.
Sandler recalled the bathroom was small but did not recall if the size of the bathroom was made an issue at the underlying trial. He did not introduce photographs or the diagram of the bathroom into evidence at the underlying trial. Sandler indicated that he discussed with the investigator having the investigator testify to the small size of the bathroom but elected not to do so because the size of the bathroom would not have rendered the physical acts alleged impossible to have occurred in the bathroom. Sandler also expressed some concern that the lock to the bathroom door (although there was no testimony relevant to the lock's condition at the time of the incident at trial) was capable of being "popped" from the outside.
Sandler's advice at the underlying trial as to whether the petitioner should testify was that he should not. Sandler was of the opinion that due to the lack of physical evidence in the state's case and the defense attacks on the complainant's credibility that a reasonable doubt would exist in the minds of the jurors. Sandler was also concerned that in the event the petitioner testified he would have to relate some sordid details that were going on in the apartment that night: the drinking games at midnight, shot checkers and the bringing out of the sex toys, and therefore it was best he not testify. Although testimony about what was going on in the apartment was already before the jury, Sandler believed that it was in the context of focusing on Kristine, the complainant, and not the petitioner. Sandler asked rhetorically, "What sort of a woman would come out late on a week night and play a drinking checkers game?"
After the state rested its case in the underlying trial, Sandler and the petitioner went out into the courthouse parking lot and engaged in a lengthy discussion on the topic of whether the defendant was to testify. The petitioner wanted to consult his brother, who was a police officer, and he did so at that time. Apparently, the petitioner's brother warned the petitioner that in the event that he took the witness stand and the jury caught him in one lie about anything, they were going to disbelieve everything. Apparently the brother opined that if the attorney was of the opinion the state's case was lacking, the petitioner could only make things worse by testifying. Ultimately, the petitioner elected not to testify in the underlying trial.
Sandler related that the fact that the petitioner was a marine caused him some concern because some of the jurors may think that a military man may have a propensity for violence. He was also concerned about how the petitioner would present himself in the event that he took the witness stand.
In the underlying trial, Sandler did introduce into evidence Kristine's written statements to the police and maintains that the effect of the statements demonstrated to the jury the discrepancy between Kristine's initial statements to police and her testimony at the trial — specifically, to demonstrate what the statements did not contain.
The transcript identifies the "sworn statement" a reference in the singular. The record of the underlying trial is clear that two written statements were provided to the police by the complainant on the night of the incident. Therefore, it is unclear as to which statement the witnesses are referring.
Although, it was Sandler's first jury trial, he had no concerns about handling the matter because the fact pattern was quite narrow and he reviewed the state's file in preparation. Sandler discussed the strengths and the weaknesses of the case with the defendant and was of the opinion that he was prepared to cross examine Kristine due to the fact that he earlier interviewed Bayliss, in preparation, who proved to be a substantial source of information for Sandler's subsequent questioning of Kristine.
Sandler was of the opinion that there was an absence of physical evidence in the case and that the complaining witness had character issues and he believed that the jury would find the complainant not credible and that would create a reasonable doubt of petitioner's guilt.
Prior to the commencement of the underlying trial, Sandler filed a motion to sever the two sets of allegations regarding the disorderly type offenses that occurred in the officer's presence to avoid that misbehavior brought before the jury in relation to the more serious assault case concerning Kristine. The motion to sever was denied.
At the underlying trial Sandler called Bayliss as a witness in his case in chief because Bayliss had a relationship with the complainant. Sandler sought to paint Kristine as an untruthful person and Bayliss so opined in the presence of the jury.
Sandler did acknowledge the difficulties in the case, namely, that the petitioner said to his girlfriend Bayliss "just give us more time" (to be in the bathroom with Kristine) and the fact the petitioner was found in the hallway by police in his boxer shorts.
Upon hearing the testimony of Renaud-Doucette during the habeas trial, Sandler opined that he would in all likelihood not have called her as a witness in the underlying trial. Sandler stated that according to Renaud-Doucette's testimony the relationship between Kristine and Officer Renaud commenced after the subject incident; therefore, Kristine's written statements were completed and further investigation would not have altered those statements or Renaud's investigation.
Sandler acknowledged that if the defense produced a witness who testified that relationship between Kristine and Renaud occurred earlier in time than that testified to by Kristine such testimony could impact Kristine's credibility.
Petitioner testified that he learned of the relationship between Kristine and Renaud on the first day of trial from the state's attorney assigned the case. Petitioner was of the opinion that an effort should have been made to obtain the phone records of Kristine and Renaud in order to ascertain whether the relationship commenced earlier in time than acknowledged by Kristine (or Renaud-Doucette); however, no phone records were proffered at the habeas trial.
Initially, the petitioner was of the opinion that he did not need to testify on his own behalf. Later in the trial, however, due to what petitioner considered facts that should have been elicited by Sandler and were not, petitioner was of the opinion that he should perhaps testify. Petitioner indicated that in the event he elected to testify Sandler requested he sign a waiver and this notion of signing a waiver "freaked [him] out"; thus, after consulting with his brother, petitioner elected not to testify.
Petitioner was of the opinion that his trial counsel was not as experienced as he had initially believed. Petitioner was of the opinion that Sandler's questioning of the witnesses was inadequate. Petitioner made notes for the benefit of his attorney to help clarify the testimony of a particular witness, for example: that in his questioning of Bayliss, Sandler should specify what door he and Bayliss were referring to in her testimony; that Kristine testified that Bayliss left the apartment on two occasions, when petitioner claims she only left once; that Kristine testified that Bayliss poured the drinks, when he in fact poured the drinks; that the petitioner was not wearing "boxer shorts," he was wearing shorts that were "sweatpants with the seven dwarves on them" and other purported inconsistencies.
Apparently, on the night of the incident an argument ensued where petitioner and Bayliss advised Kristine that she was intoxicated and were adamant that she must not drive in that condition and implored her to spend the night at the Bayliss apartment. Kristine resisted. The petitioner eventually indicated that he and Bayliss did not care if Kristine left and in the event her husband ever called looking for her that they would no longer cover for her. Petitioner suggested that his indicating a refusal to further cover for Kristine in the event that her husband made inquiry may be a motive for Kristine's lying about the assault.
Petitioner wanted Sandler to give greater attention to the small dimensions of the bathroom. Petitioner related that Sandler never obtained or reviewed the 911 tape. Petitioner did indicate that on the night in question he was drunk and belligerent with the officers.
Attorney Thomas Farber testified as an expert witness for the petitioner. Attorney Farber served in the Marine Corps JAG program for three and one-half years and was admitted to the Connecticut bar in 1980. Attorney Farber's practice consists of mostly criminal matters, approximately 60-65% is criminal, in both the G.A. and Part A forums. Attorney Farber participated in approximately fifty Part A trials since the 1990's. Attorney Farber was accepted as an expert witness and testified at length.
The court finds Attorney Farber to be knowledgeable and credible.
The questions petitioner's habeas counsel posed to Attorney Farber on direct examination, however, were predominantly either based upon false premises (i.e. "Let's say . . . there's a witness who can testify that the victim is lying about the time when this relationship began . . .") or used facts in evidence contained in the hypothetical questions that did not bear a true and fair relationship to each other and to the whole evidence.
The court is aware that a hypothetical question need not contain all the pertinent facts in evidence. However, in the direct questioning of Attorney Farber the petitioner's habeas counsel did not once include, in any hypothetical, facts with which the trial attorney was confronted in the underlying trial — aspects of the evidence that could reasonably be interpreted as detrimental to the petitioner or his cause. Specifically, no hypothetical was posed to Attorney Farber concerning the fact that:
— the petitioner's girlfriend corroborated the testimony of the complainant that the petitioner was in the bathroom alone with the complainant for an appreciable amount of time;
— the complainant saw an opportunity to free herself and locked the petitioner in the hallway in order to prevent further victimization;
— as many as four police officers could corroborate that the petitioner was locked out of his girlfriend's apartment, in the common hallway, in a state of undress — i.e. in his "boxer shorts" — in an agitated and belligerent state;
— the complainant immediately summoned the police;
— the testimony of the complainant that while in the bathroom the petitioner related words to the effect that "[w]hen he was in Nam (Vietnam) he killed children who he thought had lied to him . . ."
Petitioner's habeas counsel simply presented to the expert witness that the trial testimony had been simply a he-said, she-said with no other corroborative evidence (i.e. "[S]ay we're dealing with a sexual assault case with no evidence except for the testimony of the victim . . ."). There existed in the record, however, evidence corroborative of the complainant's testimony that was not made known to the expert.
Generally, the more assertive answers the expert provided on direct examination became more equivocal during cross-examination.
Petitioner's counsel, by the sanitized questioning, removed from Attorney Farber's consideration that evidence with which the petitioner's trial counsel was confronted and, that at least in part, formulated trial counsel's strategy and advise to the petitioner. In light of this manner of questioning, the court finds the testimony of Attorney Farber as not particularly helpful to the trier.
IV. Discussion of Law COUNT ONE: INEFFECTIVE ASSISTANCE OF COUNSEL
The court will first address the claim of petitioner in Count One: that trial counsel was ineffective in his representation of petitioner.
A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Baez v. Commissioner of Correction, 34 Conn.App. 236, 242-43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994).
In Strickland v. Washington, supra, the United States Supreme Court adopted a two-part analysis for claims of ineffective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for defense counsel's deficient representation, the result of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. 694; Copas v. Commissioner of Correction, 234 Conn. 139, 154-55, 662 A.2d 718 (1995).
The Strickland court imposed this prejudice requirement because "[t]he government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense." Strickland v. Washington, supra, 466 U.S. 693.
"[J]udicial scrutiny of counsel's performance must be highly deferential but also the reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Quintana v. Warden, 220 Conn. 1, 5 (1991).
A. Petitioner's claimed deficiencies of trial counsel
In his Second Amended Petition, the petitioner claimed some nineteen deficiencies in trial counsel's representation. Based upon a review of the petitioner's claims at the habeas trial and his post-trial brief, the court has consolidated some of the claims into what the court considers to be seven areas of alleged deficiencies in trial counsel's performance in the underlying trial. First, is the claim that trial counsel failed to adequately investigate the criminal case (this claim pertains to the size of the bathroom and the failure to introduce the 911 tape of the emergency call to police). (Sec. Amend. Pet., sec. 14(a)). "The right to the effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits . . ." Copas v. Commissioner of Correction, supra, 234 Conn. 154. "Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). The petitioner claims that the trial attorney should have placed more emphasis at trial on the size of the bathroom. The testimony reveals that the bathroom was described as "very tiny" and "extremely tiny."
Relevant to the following claims raised in the Second Amended Petition, sec. 14(b), (i), (j), (k), (l) and (r), the petitioner presented no evidence at the habeas trial, thus the court deems these claims abandoned.
The trial attorney hired a private investigator, Donald Light, who, among other duties, inspected, photographed and created a diagram (although not to scale) of the bathroom and took measurements of the bathroom.
The trial attorney did not call Light to testify at the trial. The trial attorney elected not to highlight the size of the bathroom because he was of the opinion that the acts alleged were capable of taking place in a bathroom of that small size.
Aside from the testimony of the petitioner at the habeas hearing that it was not possible that the acts alleged could have taken place in the small confines of the bathroom, there was no testimony offered in the habeas trial to suggest that the dimensions of the bathroom made the acts impossible.
At the habeas trial petitioner failed to introduce the 911 tape or represent to the court whether the tape existed at the time of the underlying trial, the nature of its content in the event it was available, or any proffer as to what value the 911 tape would have provided for the petitioner or his cause.
Second, the petitioner claims the trial attorney failed to contact complainant's husband. (Sec. Amend. Pet., sec. 14(c)).
Investigator Light credibly testified that he did interview a potential witness that the court infers, from the testimony provided, was the complainant's husband.
At the habeas trial the petitioner neither called the complainant's husband nor made an offer of proof or any representations as to what benefit the complainant's husband had to offer the petitioner or his cause.
Third, the petitioner claims the trial attorney failed to contact, prepare and adequately question witnesses. (Sec. Amend. Pet., sec. 14(d), (e) and (f)).
At the habeas trial, the only witness the petitioner claims that the trial attorney failed to call at the underlying trial was Renaud-Doucette (see Fifth, infra). To prove his claim, the petitioner must show that Renaud-Doucette's testimony would have been helpful to his defense. See e.g. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
The petitioner asserts that in the event trial counsel requested and was granted a continuance, the existence of Renaud-Doucette would have come to counsel's attention and if called as a witness, she would have proved that the complainant "is lying." The testimony provided by Renaud-Doucette at the habeas trial, however, does not establish that the complainant was lying about the incident involving the petitioner. At best, for the petitioner, the proffered testimony provides what may be a contradiction to the testimony of the complainant. The complainant testified at the underlying trial that she had seen Officer Renaud on various occasions but it was not until a Halloween party in October of 2003 that she encountered Renaud, that she was seeking alternate housing and decided to share a residence with him. According to the complainant, it was later, in December of 2003, that a relationship developed and she and Renaud became intimate.
Although a strong argument could be made that the proffered testimony of Renaud-Doucette would not have been allowed at the underlying trial on the ground of immateriality and/or that the proffer is collateral in nature, the court will consider the proffer.
Renaud-Doucette testified at the habeas trial that she discovered in mid-November 2002 that her husband, Renaud, was having an affair with the complainant, Kristine. It is noteworthy that Renaud-Doucette places the relationship at a earlier point in time as compared to the trial testimony of Kristine. Any fact finder in assessing Renaud-Doucette's testimony would be free to consider any bias she may harbor in light of the fact that she was married to Renaud for thirteen years and, purportedly, this relationship with Kristine was the cause of her divorce from her husband. Renaud-Doucette relates in her testimony that Renaud and Kristine were living together as early as July 2003 based upon her visit to his residence on one occasion in which Kristine was present.
There is nothing in the record or presented to the habeas court from which an inference could reasonably be made that the relationship predated the mid-November 2002 date proffered by Renaud-Doucette or that the investigation of the subject incident went beyond the date of the incident of September 18-19 of 2002.
Moreover, after witnessing Renaud-Doucette testify at the habeas hearing, Sandler indicated that in the event she were known to him at the time of the underlying trial he would in all likelihood not have called her as a witness for the defense. Thus, after reviewing the entirety of Sandler's cross examination of Kristine (see Fifth, infra), and considering the habeas trial testimony of Renaud-Doucette, the court concludes that the impact of the purported inconsistency concerning the time of the commencement of the relationship between Renaud and Kristine would have been negligible.
The petitioner identifies no other specific witness that should have been contacted as a witness in the underlying trial.
Fourth, the petitioner claims the trial attorney failed to properly cross examine the witnesses. (Sec. Amend. Pet., sec. 14(g), (o) and (p)). This court can only glean from the claim that petitioner is referring to the cross-examination of the complainant, Kristine. The petitioner identifies no other witness whose cross-examination was purportedly deficient.
The petitioner claims that the cross-examination of Kristine by trial counsel was wanting. Petitioner claims it was a mistake to admit the complainant's entire written statements into evidence at the underlying trial and that it would have been more effective to challenge the credibility of her testimony by means of offering only that segment of her written statement(s) that was inconsistent with her trial testimony.
A review of the trial testimony reveals that the cross-examination of Kristine comprises approximately ninety pages of testimony (albeit, that also includes some objections and discussion of counsel with the court). A review of the cross-examination reveals that trial counsel had ample time and latitude, and conducted a vigorous and far reaching cross-examination of Kristine. Kristine was questioned, inter alia, about: her coming out late in the evening on a work night to engage in drinking games; the extent of her drinking that evening and on prior occasions; the details regarding the time line of the events of the evening; the extent of her relationship with Bayliss, which Kristine described as somewhat casual yet she entrusted to Bayliss's care and custody private personal papers that she wanted kept hidden from her husband; her relationship with other men, including one with whom she purchased a motor vehicle during her marriage, a fact not known to her husband; the sequence of alleged events that took place in the bathroom, which revealed some confusion and mistakes in her written statements; the multiple facts she omitted from both written statements; and, the nature and extent of her relationship with Renaud, as well as the curious factors relevant to when the relationship commenced.
During the cross-examination of Kristine, in an effort to attack her credibility, trial counsel did offer into evidence both of the written statements that she provided to the police: It was the intent of the trial attorney to emphasize to the jury that which the complainant testified to at trial but omitted from her written statements.
At the underlying trial, the complainant simply testified to a myriad of facts, some of which indeed were not contained in the written statements. Consequently, there was no occasion for trial counsel to admit only that portion of Kristine's statement(s) that was inconsistent. Certainly, the statements were not all inclusive and many factors were testified to that were not contained in the statements. The courts consider such omissions as inconsistent statements. See State v. Whelan, 200 Conn. 743, 748-49 n. 4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). Moreover, perhaps trial counsel could have emphasized, through questioning alone, that which was omitted from the statements without introducing the written statements in their entirety. Nevertheless, the court concludes that trial counsel's cross examination of Kristine was more than adequate and his admission of Kristine's statements into evidence does not rise to the level of deficient performance.
Fifth, the petitioner claims that trial counsel failed to request a continuance in order to investigate new, potentially exculpatory, evidence — namely, the relationship between Kristine, the complainant, and Renaud, the investigating officer. (Sec. Amend. Pet., sec. 14(h) and (q)).
The information concerning the relationship was imparted to the defense, at the very earliest, on the first day of trial, at the very latest, prior to the first witness taking the stand. There is nothing in the record as to when the state became aware of the relationship.
Petitioner has had approximately a four-year hiatus since the completion of the underlying trial to ascertain whatever salient circumstances of the relationship that he could uncover and present to the habeas court. The only additional evidence that the petitioner did present for the habeas court to consider was the testimony of Renaud's former wife, Deanna Renaud-Doucette.
Trial counsel made use of the information of the relationship during his thorough cross-examination of Kristine in order to attempt to discredit her. The habeas court was not provided with any evidence suggesting that the relationship was on-going at the time of the subject incident or that the relationship in any way effected the investigation.
At the habeas trial, Attorney Sandler opined that, under the circumstances of the case, a continuance to investigate the relationship was not necessary. It appears to the court that a continuance would have revealed nothing more than that which was revealed at the habeas hearing by the petitioner: a witness who, if allowed to testify and found credible, would have simply placed the start of the relationship (arguably a matter that is collateral) at a point in time that was not consistent with the trial testimony of the complainant, Kristine. The sole proffer of petitioner to the habeas court, the testimony of Renaud-Doucette, corroborates to a substantial degree the decision of trial counsel that a continuance was not necessary in order to investigate the relationship. Indeed, Renaud-Doucette would have added nothing of benefit to the petitioner's criminal case.
Sixth, the petitioner claims that trial counsel failed to communicate with the petitioner and to present a theory of defense. (Sec. Amend. Pet., sec. 14(m) and (s)).
Here, the petitioner makes a bold, general claim that is devoid of any specifics. The trial attorney testified, credibly, that he was prepared for trial and at all times kept the petitioner apprised of the situation. Attorney Sandler did indeed have a defense strategy: in light of the state's failure to present any physical evidence that would corroborate the complainant's version of events, combined with an attack on the complainant's credibility, the state would be unable to prove the charges beyond a reasonable doubt. In fact, trial counsel testified at the habeas trial that he was surprised by the guilty verdicts.
The petitioner testified at the habeas trial that relevant to the relationship between Renaud and Kristine, he wanted his trial attorney to obtain phone records of the parties in order to establish if the relationship began at an earlier point in time. The petitioner also indicated that there were several areas of inquiry that he desired trial counsel to clarify. At no time, however, did the petitioner testify that there was a lack of communication between him and his attorney or that he was not made aware of the theory of defense.
Seventh, the petitioner claims that the trial counsel failed to properly advise the petitioner concerning petitioner's decision whether to testify at trial. (Sec. Amend. Pet., sec. 14(n)).
Petitioner takes issue with the trial attorney's advice not to testify at the underlying trial. Petitioner claims at the time of trial he was employed, had no criminal history and was a former U.S. Marine and in the reserves. This background, claims petitioner, would have enhanced his credibility in the event he testified at trial.
Because only the petitioner and Kristine were witnesses to that which did or did not transpire in the bathroom conventional wisdom might lead one to the conclusion that petitioner would have been compelled to testify. It was incumbent upon trial counsel, however, in order to properly advise his client, to consider and evaluate the evidence put forward by the state in its case in chief and to evaluate the totality of circumstances including the manner in which the client, petitioner, would present himself in the event he elected to testify.
The court must review the situation as it unfolded before the trial attorney at the time of trial. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland v. Washington, supra, 689.
The trial attorney had multiple factors to consider in order to properly evaluate the state's case and the circumstances surrounding his client and whether his client, the petitioner, would present well in the event he elected to testify. Some of the factors for trial counsel to assess are the following:
1. Strengths in the state's case
(a) The apparent corroboration of complainant's testimony. The trial attorney would have to assess whether, and to what extent, the complainant's testimony is corroborated by others.
At the underlying trial, the complainant testified that only she and the petitioner were in the bathroom together at the critical times. The petitioner's girlfriend, Bayliss, an individual who one would assume would be a witness favorable to the petitioner, did not help his cause. Bayliss corroborates the testimony of the complainant, Kristine, to the extent that she places the petitioner in the bathroom, alone, with Kristine at all relevant times.
Upon exiting the bathroom and observing the petitioner venture into the common hallway apparently looking for Bayliss, Kristine saw her opportunity to protect herself and locked the petitioner out of the apartment and immediately summoned the police. These factors, that were subject to being testified to by others, likewise, tend to corroborate, to a degree, the claim of Kristine that she was victimized.
(b) Compromising circumstances in which petitioner placed himself. Trial counsel was concerned because petitioner placed himself in what could be categorized as questionable or compromising circumstances, which, in the event the petitioner elected to testify, would, in all likelihood, be difficult for the petitioner to controvert. The compromising circumstances include, but are not limited to, the following:
— the petitioner placed himself, for what may be an extended period of time, alone, in the bathroom with the female complainant;
— as many as four police officers observed the petitioner in the common hallway, locked out of his girlfriend's apartment, clad only in "boxer shorts" and in an agitated and belligerent state. The demeanor of the petitioner as observed by the officers further collaborates the claims of the complainant that the petitioner was acting in a bizarre and threatening manner during the bathroom incident.
2. Weaknesses in the state's case
(a) The trial attorney pointed out the nature of the police investigation was wanting. Trial counsel indicated that "everything that, I believe, that they learned at the academy as to what to do on a criminal case, let alone a sexual assault, did not occur."
There is no evidence that the officers at any time entered the bathroom — the so-called crime scene. No photographs were introduced at the underlying trial of the complainant, the apartment or the bathroom. No testimony was offered at trial relevant to the observations made by the police of the complainant's appearance, condition or demeanor. No testimony was offered of the condition of any of the complainant's garments that she was wearing that night, or whether any items were seized.
(b) No physical evidence was introduced at trial to corroborate the complainant's claims. The complainant said in one of her statements that there was redness to her neck area, yet that claim was not further memorialized or refuted. The complainant testified that the petitioner pulled clumps of hair from her head; however, no hair was introduced at trial. The complainant testified that she was pulled off of the toilet by the petitioner, brought to the floor and, while naked, was forced to masturbate at a time early in her menstrual cycle. She related that she was bloodied — it created a small "mess on me" — yet any hair or body fluids that were taken from the bathroom floor were not offered at trial. Although the court is aware that there may be plausible explanations as to why these matters may or may not have been present, there is no indication in the record of the underlying trial that the bathroom was inspected by the authorities.
3. Considerations of the petitioner and how he would present himself
Petitioner is critical of the trial attorney's advice to him concerning not to take the witness stand. It was the duty of the trial attorney to evaluate his client to the best of his professional ability in the context of the case, as well as the apparent strengths and weaknesses of the state's case. Petitioner was adamant at the habeas trial that his untainted background mandated that he be advised to testify.
It is noteworthy, in this context, that during the assault in the bathroom Kristine testified at the underlying trial that the petitioner came into the bathroom, pulled her hair and in a threatening manner "started telling me this story about when he was in Nam (Vietnam) and how he tortured and killed children who would lie to him . . ." Given this testimony, trial counsel was concerned that in the event the petitioner took the witness stand and the jury became aware of his military background, under the circumstances of this case, the military history may not be received as the customary positive attribute. Trial counsel opined that the petitioner's military history, combined with the petitioner's disruptive and abusive behavior in the hallway in the presence of the police, could likely work to the petitioner's disadvantage. The jury would be free to infer that the military experience and the belligerency demonstrated in the hallway, could serve to corroborate the testimony of the complainant.
Petitioner testified at the habeas trial that he indicated to his trial attorney that he wanted to testify in order to clarify certain matters before the jury. The testimony that petitioner desired to clarify were, inter alia, the following: it was he who poured the drinks on the night in question and not Bayliss; that Bayliss left the apartment only once not two times; and he was not wearing "boxer shorts" while in the hallway, but shorts with the seven dwarfs on them.
In stating his reasons for wanting to testify at the underlying trial the petitioner indicated it was his desire to "clarify" that which he perceived to be inaccuracies in the prior testimony. One could reasonably infer that the topics with which the petitioner was concerned were not substantial in nature and may reflect on the petitioner's success or lack of success as a witness. One could also reasonably infer that the petitioner was unable to perceive that which was substantive and important to his cause. Moreover, in the event the petitioner took the witness stand and was subject to cross-examination, he would have undoubtedly placed himself in situations that trial counsel considered better left undisturbed — to wit, both Kristine and Bayliss place the petitioner in the bathroom with Kristine for an extended period and when the police arrive they observed the petitioner locked out of the apartment, in his boxer shorts in an agitated state.
It is apparent to the court that the concerns expressed by petitioner relevant to those matters upon which he desired to testify did not, arguably, appear to be substantive in nature and may have been considered by counsel in his assessment as to how petitioner would present himself in the event he elected to testify.
In his testimony at the habeas trial, the petitioner did deny having assaulted Kristine. The petitioner did not deny being in the bathroom alone with the complainant. The petitioner, however, offered no plausible information as to what did or did not take place in the confines of the bathroom at the relevant times. This aspect of the petitioner's testimony does not necessarily lend to the petitioner's credibility. Instead, it muddies the court's credibility assessment and fails to provide an effective contradiction to the complainant's version of events. The court therefore draws no inference other than there was no offer of testimony provided to the habeas court as to the manner in which the petitioner would have helped his cause in the event he testified at the underlying trial.
It is clear from the testimony at the habeas trial that much time and discussion between trial counsel and the petitioner was expended concerning the issue of whether or not the petitioner should testify at the underlying trial. During one of these discussion sessions, the petitioner contacted his brother, a police officer, who apparently gave the petitioner advice on the possible consequences if petitioner elected to testify.
In sum, trial counsel was unsure as to how the petitioner would present himself in the event he were to testify. The fact that the petitioner was found in certain compromising circumstances, which were corroborated by others, added to trial counsel's dilemma. Due to the wanting police investigation and the lack of any physical evidence corroborating the complainant's story, trial counsel reasonably determined that it was best his client not testify and advised him accordingly.
Whether to testify or not is a decision to be made by the petitioner with the advice of counsel. There is no claim that trial counsel provided the petitioner incorrect information, misinformation or incomplete information relevant to petitioner's decision to testify. The petitioner elected not to testify. It was his decision to make and trial counsel's advice as to that decision was reasonable under the circumstances of the petitioner's case.
The petitioner claims the assistance of trial counsel was ineffective. The term "effective" is defined by an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 668. A reviewing court must look at the totality of circumstances, understanding that counsel's effectiveness is not to be measured against a standard of perfection. Jeffrey v. Commissioner of Correction, 36 Conn.App. 216, 219, 650 A.2d 602 (1994). Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland v. Washington, supra, 466 U.S. 690.
Because of the difficulties inherent in making this evaluation, the habeas court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Quintana v. Warden, supra, 220 Conn. 4-5; Williams v. Warden, 217 Conn. 419, 423, 586 A.2d 582 (1991).
Based on the foregoing and a consideration of the situation as it presented itself to Attorney Sandler at the time of the underlying trial, the court concludes that the petitioner has failed to prove deficient performance. There is simply no evidence that the trial decisions made by counsel were less than reasonable or outside the wide range of professionally competent assistance. Therefore, the court finds that the petitioner has failed to satisfy the first part of the Strickland test.
B. Petitioner claims trial counsel's deficiencies resulted in prejudice
For the second prong of the Strickland test, the petitioner must prove a reasonable probability that, but for defense counsels' deficient representation, the result of the proceeding would have been different. This has been characterized as the requirement that the petitioner demonstrate "prejudice."
"A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Fair v. Warden, 211 Conn. 398, 411 (1989), citing Strickland v. Washington, supra, 697. It would have been easier, in the instant case, for the court to address the ineffectiveness claim on the ground of lack of sufficient prejudice first. However, the court is of the opinion that a review of the claimed deficiencies, under the facts of this case, would better serve the parties. Although not required, the court will also address the question of prejudice.
To prove prejudice, the petitioner must show that counsel's errors were so serious as to deprive him of a fair trial, one whose result is reliable. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id., 692. A successful petitioner must therefore show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Copas v. Commissioner of Correction, supra, 234 Conn. 156-57.
A reasonable probability is one sufficient to undermine confidence in the outcome. Strickland v. Washington, supra, 466 U.S. 694. When a petitioner challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. Fair v. Warden, 211 Conn. 398, 408, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 107 L.Ed.2d 514 (1989).
The petitioner did not put forth much evidence in support of his claim of prejudice. Nevertheless, the court has reviewed the areas in which petitioner claims his trial counsel was deficient. The court has considered each claimed deficiency separately and has considered the claimed deficiencies as an aggregate. The court finds nothing, alone or in combination, that amounts to a reasonable probability that the outcome of the underlying trial would have been different. It is the burden of the petitioner to prove prejudice and the petitioner has failed to carry that burden.
The court finds that the petitioner has failed to satisfy either prong of the Strickland test. Accordingly, the petitioner's claim for relief based on the alleged ineffective assistance of counsel has failed.
COUNT TWO:SUPPRESSION OF EXCULPATORY EVIDENCE ( BRADY VIOLATION)
In Count Two the petitioner claims that the state failed to disclose exculpatory information in violation of his right to due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the petitioner asserts that information concerning the relationship between the complainant and Officer Renaud is exculpatory and was not provided to the defense in a timely manner.
In accordance with Practice Book § 23-30(b), the respondent in its return expressly affirms that the petitioner "did not challenge the validity of his `Brady Violation by Prosecutor' claim in the trial court or on direct appeal, and therefore, is procedurally defaulted" from raising the issue in the habeas forum.
The court takes judicial notice, and the parties were so advised, that the petitioner did appeal his convictions on the subject charges to the appellate court. In a decision, State v. Michael Brown, supra, the petitioner claimed only that he was denied his right to due process because the trial court failed to voir dire the jury adequately after an allegation of juror bias. No other issue was raised.
"The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure." (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); accord Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
When a petitioner fails to prove cause and prejudice, a court will not reach the merits of his claim. Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007).
The petitioner bears the burden of proof to establish cause and prejudice. Johnson v. Commissioner of Correction, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991). The state, however, must first affirmatively plead the petitioner's procedural default before the petitioner is required to show cause and prejudice. Miner v. Commissioner of Correction, 63 Conn.App. 726, 733, 779 A.2d 156 (2001). Whenever the issue is raised, the court should "expressly address and resolve the issue of procedural default." Orcutt v. Commissioner of Correction, 284 Conn. 724, 738 n. 23, 937 A.2d 656 (2007).
The state, the respondent, having affirmatively plead the petitioner's procedural default in its Return, has placed upon the petitioner the burden to establish cause for the default and the prejudice resulting therefrom. Accordingly, before the court addresses the merits of the petitioner's Brady claim, the court must address the claim of procedural default.
In petitioner's Reply to Respondent's Return, the petitioner denies that he is procedurally defaulted. He further asserts that, in the context of the procedural default for failing to raise the suppression of exculpatory evidence claim, "[d]ue to the factual nature involved in the claim these are not issues that could have been raised on appeal . . . There is not adequate information on the record as to what information was disclosed and when this information was disclosed." Petitioner relies on Miller v. Angliker, 4 Conn.App. 406, 494 A.2d 1226, cert. denied, 197 Conn. 809, 499 A.2d 59 (1985), in support of his claim that this type of issue, the suppression of exculpatory evidence at trial, can only be claimed in the habeas court. In Miller the claimed suppression of information was not known until after the conclusion of trial and therefore not subject to being a part of a direct appeal. The Miller court concluded that because the claims in the petition could not have been successfully appealed directly, there was no violation of the deliberate bypass rule. Id., 417. This court is of the opinion that petitioner's reliance on Miller is misplaced.
There is nothing in the record from which the court can determine when the information concerning the relationship was known to the state. It is undisputed, however, that trial counsel was given the alleged exculpatory information at some point during the underlying trial. A review of the record reflects that, at the very latest, it was on the first day of trial and before the taking of testimony that the state's attorney represented to the defense that Officer Renaud and Kristine, at the time of the commencement of trial, where living together. Indeed, the complainant testified to that fact on direct examination and petitioner's trial counsel used the information about the relationship in his cross examination of the complainant. It is apparent, therefore, that the issue concerning the timing of the disclosure could have been raised in the trial court.
The petitioner may consider the record inadequate because Attorney Sandler did not request a continuance to further investigate the matter of the relationship — consequently, there was no extended discussion on the record concerning the information provided and, thus, no record for appeal. Attorney Sandler's decision not to request a continuance (or any other procedural mechanism), however, does not satisfy the cause necessary to overcome a procedural default. "Cause turns on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule . . . Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default." (Internal quotation marks omitted.) Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 780, 809 A.2d 1126 (2002); see also Mercer v. Commissioner of Correction, 49 Conn.App. 819, 825-26, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998). Any issue regarding Attorney Sandler's decision not to investigate the relationship further should be, as it was in this case (see analysis of Count One, Third and Fifth, supra), raised by way of an ineffective assistance of counsel claim.
In explanation of the alleged procedural default, the petitioner has offered nothing but what is related in his pleading. Before the habeas court, the petitioner argued that this is sufficient to satisfy his burden and the court should therefore reach the merits of his claim. The court does not agree. The burden is upon the petitioner to allege and prove cause and prejudice. As discussed above, Miller v. Angliker, supra, does not apply to the petitioner's case. The petitioner also failed to present any evidence of cause or prejudice at the habeas trial. Accordingly, the petitioner has failed to meet this burden and his claim concerning the alleged suppression of exculpatory information is procedurally defaulted.
In light of the procedural default relevant to Count Two, the merits of the Brady claim will not be addressed.
V. Conclusion Based on the foregoing, relevant to Count One, the petitioner has failed to prove either prong of the Strickland test for the ineffective assistance of counsel claim. Relevant to Count Two, the petitioner failed to demonstrate cause and prejudice for the court to reach the merits of his Brady claim.Accordingly, the PETITION FOR A WRIT OF HABEAS CORPUS IS DENIED.