Opinion
No. CV03-0003971
February 3, 2006
MEMORANDUM OF DECISION
The petitioner, Javier Rivera alleges in his petition for a Writ of Habeas Corpus initially filed on May 30, 2003 and amended for the final time on June 16, 2004, that his 1999 convictions of nine counts of sexual child abuse after a jury trial in the Judicial District of Waterbury under Docket No. CR97-0261518 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of trial defense counsel. Accordingly, he asks that his convictions be set aside and his case restored to the docket for further processing.
This matter came on for trial before this Court on October 5, 2004, April 4, 2005 and for a final time on June 28, 2005 at which time testimony was received from the petitioner; his trial defense counsel, Attorney Louis Avitabile; the payroll manager at the petitioner's former place of employment, Ms. Pat Larivee; a Waterbury police officer, LT Edward Daponte; and Attorney Thomas Farver, testifying as an expert in the field of criminal defense work. The transcript of the petitioner's trial (12 volumes), and a long form information were received into evidence. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The parties were allowed to file post-trial briefs and both parties did so as scheduled. Unfortunately, the briefs were filed in the case file but were never brought to the attention of the court. In December 2005, Respondent's Counsel who was present in Court on an unrelated matter inquired as to when the decision would be forthcoming. It was at this point that the Court first became aware that the file had, in fact, been ready for decision in July 2005. Unfortunately, over 120 days had passed since the time that the briefs were filed. On January 24, 2006, at a session of the Court in which the Court received oral closing argument the parties waived the 120-day requirement.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Waterbury, under Docket Number CR97-0261518 entitled State v. Rivera. The petitioner was charged with: two separate counts of Risk of Injury to a Minor in violation of CGS § 53-21, two separate counts of Sexual Assault in the Third Degree in violation of CGS § 53a-72a(a)(1), two separate counts of Sexual Assault in the First Degree in violation of CGS § 53a-70(a)(2), three separate counts of Sexual Assault in the Second Degree in violation of CGS § 53a-71(a)(1), for a total of nine counts in all. The alleged victim of these sexual assaults was the petitioner's daughter, M.R. who complained that the events took place at various times between the time she was eleven and fifteen years of age.
2. Attorney Louis Avitabile of Waterbury represented the petitioner throughout the criminal proceedings.
3. The jury reasonably could have found the following facts. "During her early childhood, the victim, a biological daughter of the defendant, lived in Puerto Rico with her grandmother. At the age of eight, the victim moved to Waterbury and lived with the defendant, her stepmother and her two half-siblings. In 1992, when she was eleven years old, the victim was sexually abused by the defendant. The sexual abuse continued over the next four years while her stepmother was at work.
4. "In 1997, the victim reported the abuse to a counselor at her school. The counselor contacted investigators at the department of children and families (department), who notified the police." See State v. J.R., 69 Conn.App. 767 at 768 (2002).
5. On December 3, 1999, the jury returned a verdict of guilty as to all of the counts in the information. Although the petitioner's counsel made a request for a polling of the jury, the trial judge ruled that the request was not timely and the jury were never polled individually.
6. On March 24, 2000 the petitioner was sentenced by the Court, Bryant, J., to a total effective sentence of forty-three (43) years, execution suspended after the service of twenty-three (23) years and fifteen (15) years probation.
7. Additional facts shall he discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner most clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Correction, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
In the instant case, there are five primary allegations involving the performance of Attorney Avitabile. Specifically, he is alleged to have been ineffective by: (a) failing to introduce the petitioner's employment and time and attendance records, (b) failing to introduce a report of Dr. Sidney Horowitz, a psychiatrist who had examined the victim or to use him as a witness at trial, (c) failing to introduce evidence that there had been a previous false complaint of sexual abuse against an uncle by the same victim, (d) failing to insure that the jury was polled, and, (e) failing to object to the trial court's Consciousness of Guilt charge. As to the allegations contained in (a), (b), (c), and (d) there was sufficient proof adduced at the habeas trial to allow this Court to find that the allegations are factually correct. The Court is persuaded in regard to allegation (e) that the petitioner's trial defense counsel did object to the Consciousness of Guilt instruction, was overruled by the trial court and thereafter made a sound tactical decision to not pursue a request to have the trial judge marshal the evidence in that regard as it would only have proven injurious to his client. Consequently allegation (c) cannot serve as any sort of basis for relief.
Proof of these predicate facts in allegations (a) through (d) is not, however, sufficient to justify the granting of a petition for a writ of habeas corpus. While there is proof of the underlying facts, there was no proof at the habeas trial as to whether any of these failures to act were indeed viable strategies that should have been pursued and, more importantly, what would have happened had Attorney Avitabile done these things. Consequently, there is no way that this court can conclude that the petitioner has met his burden of proof that he was the "victim" of ineffective assistance of counsel. He has expressly failed to show both deficient performance and prejudice as required.
Habeas Courts are cautioned to be respectful of tactical decisions of trial defense counsel often made in the "heat of battle" and under intense pressure. "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 . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor arid impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984). Justifiably, then the burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Moreover it is not even necessary for a habeas court to even consider whether a trial counsel's performance may or may not have been deficient if the habeas court is satisfied that there was no prejudice to the defendant by the actions, or inactions, of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsels performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. The Sixth amendment right to counsel is the right to an effective counsel.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, CT Page 3025 397 U.S. 358 at 361 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc . . . Nevertheless, effective representation is crucial. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
Concerning the employment records, it is clear that there was no harm to the petitioner for the failure to use these records, even though such records may have been available. The state had charged the petitioner with committing these crimes on an unspecified date within a range of dates. The sole purpose of the petitioner's employment records would have been to establish an alibi for the crimes, however, given the range and diversity of the dates, it would have been virtually impossible to have been successful. Consequently, it was a sound tactical decision on the part of trial defense counsel to forgo this avenue. Insofar as the use of Dr. Horowitz, it must be noted that the report was never actually received into evidence in the habeas trial, consequently, this court is unsure of what may have been contained therein. Attorney Avitabile did testify that he had reviewed the report and concluded that it would have only helped to bolster the state's case if he were to attempt to make use of it at trial. Attorney Avitabile stated that the victim's testimony before the jury was disjointed and confused. He noted that Dr. Horowitz's examination and report helped explain that process. Consequently, he made a sound tactical decision not to use the report. The issue of the polling of the jury is a total red herring. While it is true that the trial defense counsel did not obtain a polling of the jurors and arguably, this is deficient performance, there simply has been no evidence that this jury's verdict was anything other than unanimous. Consequently, there is no way for the habeas court to conclude that the petitioner was prejudiced by the failure to poll the jury.
Moreover, given that Dr. Horowitz did not testify at the trial it is highly problematic as to whether the report could have come into evidence at all.
This was also the major issue raised in the petitioner's direct appeal and it was again adversely decided to the petitioner. See State v. J.R. 69 Conn.App. 767 (2002).
The issue is a little closer as regards the allegation of a previous false complaint against an uncle by the victim. Certainly, if a complaining witness can be shown to have made a previous false complaint, then that might be a fact that could undermine the entirety of her testimony. However, it can also redound to the petitioner's detriment if the jury are unconvinced as to the falsity of the previous complaint and reads this as an attempt to smear the victim. It is a delicate dance for a trial defense counsel in these sorts of cases to conduct impeachment of the complaining witness who may often times come into the courtroom as a sympathetic figure. Here, the trial defense counsel had some evidence that the victim had falsely claimed abuse by an uncle. At trial, the victim testified that when she was nine, her uncle had sexually assaulted her. She testified that she told her aunt and that the police were called as a result. In order to impeach the victim, the trial defense counsel called the Aunt who testified that her niece, the victim, had never made such a complaint to her. Petitioner now complains that it was ineffective representation for his trial defense counsel not to call the police to confirm the absence of a police report. Even though it appears that this would have been the testimony at trial, had Attorney Avitabile done so, this habeas court concludes that the failure to call a police department records custodian is neither deficient performance nor would it have a reasonable probability of changing the outcome of this jury trial.
It is axiomatic that a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. (October 20, 2003).
Accordingly, the Petition for a Writ of Habeas Corpus is denied.