Opinion
CV144006185S
01-28-2019
Donald GRADY (Inmate #165397) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner filed a pro se petition for a writ of habeas corpus on April 30, 2014. The pro se petition raised claims alleging ineffective assistance by trial counsel premised on failures to call witnesses, investigate the facts and evidence of the case, and object to prosecutorial misconduct. The petitioner requested and was granted assigned counsel; however, counsel was permitted to withdraw after a breakdown of the attorney-client relationship. The matter was referred to the Office of the Chief Public Defender (OCPD) for assignment of substitute counsel. The petitioner was assigned successor counsel, although the petitioner subsequently sought removal of that counsel and was permitted to represent himself in this matter. Thereafter, the petitioner has amended his habeas corpus petitioner three times, with the third amended petition raising only a claim of ineffective assistance by trial counsel, albeit premised on four specified grounds. The respondent’s return leaves the petitioner to his burden of proof.
The parties appeared before the court on April 25 and 26, 2018, for a trial on the merits. The petitioner and the respondent entered numerous exhibits into evidence, primarily consisting of transcripts and various documents pertaining to the underlying criminal proceedings. Additionally, the court received testimony from the petitioner, his former trial counsel, Attorney Robert Lacobelle, Linda and Gary Hoppes, Theresa Charette, Charles Stango, and Private Investigator Daniel Markle. The parties filed post-trial briefs.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
DISCUSSION
The petitioner was the defendant in a criminal case, docket number CR09-0072182-T, in the judicial district of Ansonia/Milford at Milford. The petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(1)(A), and three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2). The petitioner proceeded to trial and was found guilty by a jury on all counts except the count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). On February 14, 2012, the trial court, Keegan, J., sentenced the petitioner to a total effective sentence of thirty years incarceration, of which ten years are mandatory minimum, followed by five years of special parole and lifetime registration as a sexual offender.
The Appellate Court summarized the following facts as reasonably found by the jury: "The minor victim, who was born in October 1992, is the niece of the [petitioner]. In the time period between May and October 2003, when the victim was age ten or eleven, she, along with her sister and her friend, went to the [petitioner’s] workplace to help him paint the interior of the building. The victim went upstairs to paint the office while her sister and her friend remained downstairs. The [petitioner] entered the office, where he kissed the victim, pulled down his pants, and asked the victim to perform fellatio on him. The victim complied, while the [petitioner], who was standing against the wall, guided her head. Before he ejaculated, the [petitioner] warned the victim and told her to swallow it. The victim again complied. The [petitioner] told the victim she was doing ‘a good job.’ The [petitioner] then pulled down the victim’s shorts and began to perform cunnilingus on her for a couple of minutes, while looking to make sure no one was entering the room. The [petitioner] also penetrated the victim’s vagina with his tongue.
"The [petitioner] later took the victim’s sister and the victim’s friend home, but he returned to his workplace with the victim where he continued to sexually assault her by inserting his fingers into her vagina. The [petitioner] told the victim that she was ‘grown up and mature, ’ and he convinced the victim that the sexual assault was their secret. The [petitioner] also asked the victim if she wanted to go to a movie theatre with him. The victim pretended to telephone her mother because she did not want to go with the [petitioner], and she told the [petitioner] that her mother said she could not go with him. On the basis of these facts, the state charged the [petitioner] with one count of sexual assault in the first degree and two counts of risk of injury to a child.
"On or about December 24, 2007, the victim’s family had a Christmas party, which the [petitioner] and others attended. During the party, the victim went into the garage, which had an upstairs room with a bar, pool table, television and bathroom, to get a beverage, during which time she encountered the [petitioner]. When the [petitioner] walked by the victim, he slapped her buttocks. ‘[F]lustered and annoyed, ’ the victim retreated to her bedroom, where the [petitioner] appeared shortly thereafter. The [petitioner], who had been drinking but did not appear intoxicated, asked the victim to kiss him or to perform fellatio on him. The victim declined, but the [petitioner] began to rub her back and squeeze her buttocks. The [petitioner] also tried to convince the victim to go for a ride with him, but she refused and returned to the party. On the basis of these facts, the state charged the [petitioner] with one count of sexual assault in the third degree and one count of risk of injury to a child.
"On or about December 24, 2008, the victim’s family again was hosting a Christmas party, which the [petitioner] and others attended. During the party, the victim was watching television in the room above the garage, when the [petitioner], who appeared to be intoxicated, entered the room and asked the victim to make him a cocktail. As she made the cocktail, the [petitioner] kept trying to get close to the victim, but she kept moving away. The victim was scared and just wanted the [petitioner] to let her go. When she tried to exit the room, the [petitioner], whom the victim described as a ‘really big guy [who is] strong, ’ pinned her against the wall and began to run his hands down her body, kissing her and grabbing her chest, while holding both of her hands with one of his hands. The victim also testified that the [petitioner] digitally penetrated her vagina during this assault. The victim was afraid, especially because of the [petitioner’s] size and the fact that she ‘was a scrawny kid ...’ She ‘just— I wanted help ... [and] didn’t want this to happen anymore.’ On the basis of these facts, hereinafter referred to as the ‘2008 Christmas party incident, ’ the state charged the [petitioner] with one count of sexual assault in the first degree.
"On July 2, 2009, the victim, while staying with a friend’s family due to a deterioration in her relationship with her family, confided in her friend’s mother that the [petitioner] repeatedly had sexually abused her. A few days later, the friend’s mother drove the victim to the police station to report the sexual abuse. The victim made further disclosures to the police on August 27, 2009, and September 5, 2009.
"The [petitioner] was arrested and charged, by way of an amended information, with two counts of sexual assault in the first degree, one count of sexual assault in the third degree, and three counts of risk of injury to a child. The jury found the [petitioner] guilty of all charges with the exception of the count of sexual assault in the first degree that stemmed from the 2008 Christmas party incident, for which the jury returned a verdict of not guilty. The court accepted the jury’s verdict [and] rendered judgment of conviction on five counts ..." State v. Donald HG., 148 Conn.App. 398, 400-03, 84 A.3d 1216, cert. denied, 311 Conn. 951, 111 A.3d 881 (2014).
The petitioner appealed from the judgment of conviction. On appeal, the petitioner "claim[ed] ... (1) the court erred in allowing the state to introduce evidence of uncharged misconduct, (2) the court erred when it refused to conduct an in camera review of the victim’s psychological records, (3) the court’s improper response to a question posed by the jury during its deliberations deprived him of a fair trial, and (4) the prosecutor committed prejudicial impropriety during closing and rebuttal argument." Id., 400. The Appellate Court affirmed the judgment of the trial court. Id., 427.
The petitioner then initiated the present habeas corpus matter in which the third amended petition alleges ineffective assistance by Attorney Lacobelle on four delineated grounds.
I. Standard for Ineffective Assistance of Trial Counsel
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings ... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... As enunciated in Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ...
" ‘[J]udicial 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 ... 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
" ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the [petitioner’s] own, statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the [petitioner] and on information supplied by the [petitioner]. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’ Strickland v. Washington, supra, 466 U.S. at 690-91, 104 S.Ct. 2052.
" ‘Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’ State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985). Furthermore, ‘[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’ Id., at 297, 497 A.2d 35.
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
II. Ground One— Failure to Call Witnesses at Trial
The petitioner first alleges that Attorney Lacobelle failed to call four witness in support of the petitioner’s defense. According to the petitioner, these four witnesses— Linda and Gary Hoppes, and Janet and Dennis Bludnicki— would not have placed the petitioner at the scene of the December 24, 2007, Christmas party incident that was the basis for the fourth and fifth counts of the state’s third amended information. See Respondent’s Exhibit V. The petitioner asserts that these four witnesses testified that he was not at the December 22, 2008 party, the incident underlying the sixth count of the operative information, the only count on which the jury returned a "not guilty" verdict, yet were not asked about the December 24, 2007 family party. These four witnesses also did not place the petitioner at the December 22, 2007 neighborhood party, from which no charges arose. Janet and Dennis Bludnicki did not testify at the habeas trial, so there is no showing that their testimony would have been helpful to the defense.
The court first notes that it has reviewed the transcripts of the criminal trial. Attorney Lacobelle effectively advocated the petitioner’s defense and strove to show, through the testimony of four witnesses, that the petitioner was not present at the Christmas parties. These four witnesses— Linda and Gary Hoppes; Janet and Dennis Bludnicki— testified during the criminal trial about the Christmas parties. Transcript (November 17, 2011), pp. 55-186. All four of these witnesses for the defense presented testimony on direct or cross-examination that the petitioner was not at the Christmas parties both in 2007 and 2008, and was present at the Hoppes’ house when they arrived there returning home from the parties.
The petitioner faults Attorney Lacobelle for not similarly questioning these four witnesses about the December 24, 2007 family Christmas party. The petitioner’s presence at that party, however, could not be brought into contention the same way that Attorney Lacobelle was able to call into question the December 22, 2008 incident. Detective Steven Young testified at the criminal trial that when he was investigating the matter, he met the petitioner at a worksite and questioned him about the incidents on December 24, 2007, which involved C.D.’s buttocks. Transcript (November 16, 2011), pp. 29-31. According to Detective Young, the petitioner attempted to explain his contact with C.D.’s buttocks as resulting from accidental contact that occurred while wrestling.
It is readily apparent that Attorney Lacobelle could not challenge the charges underlying the December 24, 2007 based counts in the same manner as the December 22, 2008 based count. The petitioner had acknowledged to Detective Young that he was present when the conduct occurred that is at issue in counts four and five of the third amended information. Therefore, Attorney Lacobelle’s trial strategy focused on using cross examination of C.D. and Detective Young regarding the conduct at issue in counts four and five.
Attorney Lacobelle at the habeas trial acknowledged that it would have been a risk to have the Hoppes and Bludnickis also testify that they did not see the petitioner at the December 24, 2007 family Christmas party. Their credibility in general might then have been more questionable and the jury might not have found them credible regarding the December 22, 2008 incident, where the petitioner had not acknowledged his presence to a law enforcement official. The risk was the jury not believing these four witnesses at all and convicting the petitioner on all counts.
Linda and Gary Hoppes testified at the habeas trial that Attorney Lacobelle questioned them about the various neighborhood and family parties in 2007 and 2008. According to both Linda and Gary Hoppes, the petitioner was not present at any of the parties including the family parties. Both also testified that they went to bed at a time in the evening that would have left a several-hour window for the petitioner to leave their residence and go the party, which could last into the early morning hours. Thus, the Hoppes do not provide a complete alibi for the petitioner because they cannot account for the petitioner’s presence at all relevant times, nor can they account for the entire time of the family Christmas parties.
The court concludes that Attorney Lacobelle’s different trial strategies for the different dates to be highly reasonable and not indicative of deficient performance. The petitioner has failed to show that Attorney Lacobelle was deficient for not asking the Hoppes and Bludnickis about the petitioner’s absence from the December 24, 2007 family party. To conduct such questioning would have jeopardized the defense to the charge arising from another date and incident when the petitioner had not acknowledged his presence and physical contact with C.D. Furthermore, because the Hoppes cannot provide a complete alibi, the petitioner has also failed to show how he was prejudiced.
III. Ground Two— Counsel’s Alleged Conflict of Interest
The petitioner’s second ground for ineffective assistance is premised on his allegation that he and Attorney Lacobelle had a sexual relationship. According to the petitioner, that purported sexual relationship influenced, precluded, and inhibited counsel’s representation to the petitioner’s detriment. The amended petition and the petitioner’s testimony are replete with unusual, even bizarre, allegations of inappropriate conduct by Attorney Lacobelle, who categorically denied the petitioner’s lurid charges.
The court observed the demeanor and heard the testimony of both the petitioner and Attorney Lacobelle. Based on its observations and assessments, the court finds the petitioner to be completely not credible, while finding Attorney Lacobelle very credible. The petitioner’s assertions are outlandish and, in this court’s analysis, only intended to humiliate former counsel. Because the petitioner’s claims are without any merit and frivolous, there is no conflict of interest that impacted Attorney Lacobelle.
IV. Ground Three— References to Complainant as the "Victim"
The third ground on which the petitioner alleges ineffective assistance by Attorney Lacobelle centers on several references to C.D. as the "victim." Counsel did file a pretrial motion in limine to preclude use of the term "victim" when referring to C.D. The prosecutor did not have an objection to the motion in limine and acknowledged that the state of the law supported the defense’s motion in limine. The court granted the motion in limine. Nevertheless, both the defense and the prosecution several times used the term "victim" when referring to C.D. during the trial. The petitioner identifies two such instances by Attorney Lacobelle and six instances by the prosecutor. Third Amended Petition, p. 9.
" ‘Our Supreme Court has stated that a court’s repeated use of the word victim with reference to the complaining witness is inappropriate when the issue at trial is whether a crime has been committed ... A different set of circumstances exists [however] when the person making [such a] reference to the complaining witness is the prosecutor.’ (Citation omitted.) State v. Rodriguez, 107 Conn.App. 685, 701, 946 A.2d 294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008). This is so, our courts have held, for two basic reasons. First, although a prosecutor’s reference to the complainant as the ‘victim, ’ in a trial where her alleged victimization is at issue, risks communicating to the jury that the prosecutor personally believes that she in fact is a victim, and thus the defendant is guilty of victimizing her, the isolated or infrequent use of that term in a trial otherwise devoid of appeals to passion or statements of personal belief by the prosecutor will probably be understood by jurors to be consistent with the prosecutor’s many proper references to the complainant as the complainant or the alleged victim, particularly where the prosecutor openly acknowledges and willingly accepts the state’s burden of proving the defendant guilty beyond a reasonable doubt solely on the basis of the evidence admitted at trial. Second, when a prosecutor uses that term in argument, where his or her role is generally expected and understood to be that of an advocate, such isolated or infrequent references to the complainant as the ‘victim’ are likely to be understood by jurors as parts of a proper argument that the evidence has established the complainant’s victimization, and thus the defendant’s guilt, beyond a reasonable doubt. In either of those circumstances, the prosecutor’s use of the term ‘victim’ in reference to the complainant is not considered improper because such usage does not illicitly ask the jury to find the defendant guilty on the basis of the prosecutor’s personal belief in the complainant’s victimization or the defendant’s guilt.
"Notwithstanding our courts’ willingness, in the previously described circumstances, to excuse a prosecutor’s rare and infrequent use of the term ‘victim’ to describe the complainant in a criminal trial, our Supreme Court has expressly admonished prosecutors to refrain from making excessive use of that term because of its obvious potential for prejudice. Thus, in State v. Warholic, 278 Conn. 354, 370 n.7, 897 A.2d 569 (2006), where the court upheld the defendant’s conviction despite the prosecutor’s two unobjected-to references to the complainant as the victim during his rebuttal closing argument, the court warned prosecutors as follows: ‘We caution the state, however, against making excessive use of the term ‘victim’ to describe a complainant when the commission of a crime is at issue because prevalent use of the term may cause the jury to draw an improper inference that the defendant committed a crime against the complainant.’ Consistent with that warning, the Supreme Court later, in State v. Victor O., 301 Conn. 163, 20 A.3d 669, cert. denied, 565 U.S. 1039, 132 S.Ct. 583, 181 L.Ed.2d 429 (2011), made the following, telling observation when affirming a conviction despite the prosecutor’s one-time use of the term ‘victim’ in a case where the trial court had denied the defendant’s motion in limine to prevent any use of that term at all: ‘We note, ’ said the court, ‘that, although the trial court had denied the defendant’s motion in limine to preclude the state from using the term "victim" when referring to [the complainant], the state’s attorney prudently avoided the use of that term except on the one occasion that the defendant has identified.’ (Emphasis added.) Id. at 191 n.11, 20 A.3d 669. Under these authorities, in order to avoid the risk of prejudice naturally arising from a prosecutor’s reference to the complainant as the victim— a usage which our Supreme Court has expressly urged prosecutors, out of prudence, to avoid in any case where the issue is whether or not a crime was committed— a trial court obviously has the power to order a prosecutor not to use the term ‘victim’ in reference to the complainant during trial." State v. Thompson, 146 Conn.App. 249, 268-70, 76 A.3d 273, cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013).
Attorney Lacobelle did file a motion in limine to prevent the prosecutor from using the word "victim." Attorney Lacobelle also knew that he could, if warranted, object to the term. Both the prosecutor and Attorney Lacobelle referred to C.D. mostly as the complainant or simply as "C.D." While there are some references to C.D. as the victim, which Attorney Lacobelle indicated would have been unintentional by him, the context of that term alongside the far more common term complainant did not, in this court’s analysis, prejudice the petitioner. Attorney Lacobelle further indicated that he would have asked for a sidebar instead of objecting to the prosecutor’s use of the word "victim" to avoid drawing the jury’s attention to that phrase. Lastly, Attorney Lacobelle did not make timely objections, nor did he ask the court to give the jury any curative instructions. The court finds that reasonably competent criminal defense counsel would raise timely objections, request curative instructions, and refrain from using the term "victim" after the trial court granted counsel’s motion in limine to preclude the use of that phrase. Consequently, Attorney Lacobelle was deficient in this regard.
Although the word "victim" was used during the jury trial, the court concludes, however, that its usage was not so prevalent as to prejudice the petitioner. The complainant was mostly referred to as C.D. or as the complainant, not as the victim. The court concludes, therefore, that the petitioner was not prejudiced by any errors by Attorney Lacobelle and the infrequent usage of the term "victim" during the trial.
V. Ground Four— Failure to Investigate
The petitioner’s fourth and final ground for deficient performance by Attorney Lacobelle is that he failed to properly investigate the events that were alleged to have occurred at a vacation house in Okemo, Vermont. The petitioner was not charged with offenses that occurred at that location; however, testimony by C.D. about events at Okemo was permitted as uncharged misconduct. Attorney Lacobelle objected to the uncharged misconduct testimony. The prosecutor referenced the Okemo incident and testimony in the closing arguments.
The petitioner alleges that a post-trial investigation revealed that Theresa Charette, the complainant’s aunt, confirmed that the petitioner was not at Okemo during the time C.D. testified that the petitioner engaged in the uncharged misconduct. According to the petitioner, Theresa Charette could confirm that he "was never present on the scene at all during the alleged Okemo incident and that she was personally there the entire time." Third Amended Petition, p. 12. The petitioner faults Attorney Lacobelle for not properly investigating the Okemo incident and calling Theresa Charette as a defense witness to impeach C.D.’s testimony.
Theresa Charette testified at the habeas trial. On direct examination, she recalled only going to Okemo once on a single weekend but did not remember the year she went. She did not see the petitioner at various locations or events. On cross examination, she acknowledged that she did not, contrary to the petitioner’s assertions, know if the petitioner was at Okemo the weekend at issue. Theresa Charette’s testimony before this court leaves open the reasonable possibility that the petitioner was at Okemo, unbeknownst to Theresa Charette and not seen by her.
Based upon the foregoing, the court concludes that the petitioner has failed to show that Attorney Lacobelle was ineffective for failing to investigate the Okemo incident and calling Theresa Charette as a defense witness. Her testimony was of marginal impeachment value and does not undermine this court’s confidence in the outcome of the criminal trial. The petitioner has shown neither that counsel rendered deficient performance nor the required prejudice.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has failed to meet his burden of proof as to all claims in the third amended petition. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.
It is so ordered.