Opinion
No. TSR CV03 0004139-S
April 16, 2007
MEMORANDUM OF DECISION
Petitioner filed a pro se petition for a writ of habeas corpus on August 29, 2003, which was for the final time on December 18, 2006. The second amended petition raises claims in four counts. First that attorney Thomas K. McDonough, petitioner's criminal trial defense counsel, rendered ineffective assistance of counsel through a multitude of alleged failures. Second, that attorney Patrick F. Caruso, petitioner's appellate counsel, rendered ineffective assistance of counsel for failure to raise three claims on appeal. Third, that petitioner's confinement is unlawful due to prosecutorial misconduct during the criminal trial. Fourth, that a clerical error allegedly made by court personnel violated petitioner's right to a fair trial. Respondent's return denies that petitioner is entitled to the relief he seeks and raises the affirmative defense of procedural default as to the claims in counts three and four. Petitioner's reply to the return alleges the cause and prejudice only as to count three and withdrew count four.
The matter came before the court on December 21, 2006 for a trial on the merits as to counts one, two and three. Witnesses included petitioner, McDonough, Caruso and Cara Eschuk. The court finds the testimony of McDonough, Caruso and Eschuk to be highly credible and the testimony of petitioner to be credible in part and not credible in part. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACT
On or about October 21, 1996, petitioner was arrested for sexual assault of N.P. which occurred on various dates when N.P. was between the ages of five and nine years. This matter was prosecuted in the Superior Court, judicial district of Waterbury, Docket No. CR96-253404.
On or about April 11, 1997, the state filed a substitute long form information charging petitioner in count one with sexual assault in the first degree in violation of Gen. Stat. § 53a-70(a)(2); in count two with attempted sexual assault in the first degree in violation of Gen. Stat. §§ 53a-70(a)(2)/53a-49; in count three with risk of injury to a minor in violation of § 53-21; in count four with sexual assault in the first degree in violation of Gen. Stat. § 53a-70(a)(2); in count five with attempted sexual assault in the first degree in violation of Gen. Stat. §§ 53a-70(a)(2)/53a-49; in count six with risk of injury to a minor in violation of § 53-21; and in count seven with risk of injury to a minor in violation of § 53-21. The assistant state's attorney, Cara Eschuk, further alleged that petitioner had committed these crimes on various dates between June 1, 1993 and October 31, 1995 at Locations on East Main Street, North Main Street and South Street in the city of Waterbury.
At the outset of trial, the state filed a second long form substitute information dated June 17, 1998 which charged petitioner with the same seven crimes but removed any allegation as to the location of the offenses. The matter was thereafter tried to the jury over a period of five days in July 1998. On July 7, 1998, at the close of the state's case, the court, Gill, J., granted petitioner's motion for judgment of acquittal (MJOA) as to count two. The following day, the court revisited the issue and also granted judgment of acquittal as to count three. In response to the court's ruling on the MJOA, the state filed a substitute information which renumbered counts four, five, six and seven of the substitute information dated June 17, 1998. This substitute information, dated July 8, 1998, was submitted to the jury who found petitioner guilty of all five counts. On July 15, 1998, McDonough filed a post-trial motion for acquittal which was denied by the court in a written memorandum of decision dated August 5, 1998. Thereafter, on September 11, 1998, petitioner was committed to the custody of the commissioner of correction for twenty-five years execution suspended after fifteen years and probation for twenty-five years. On appeal, the Appellate Court affirmed petitioner's convictions.
The substitute information dated June 17, 1998 alleged as follows:
CARA F. ESCHUK Assistant State's Attorney for the Judicial District of Waterbury accuses JESUS ROMERO now or formerly of the Town of Waterbury of the crime of Sexual Assault in the First Degree in violation of Section 53a-70(a)(2) of the Connecticut General Statutes and charges that on a date or dates between October 1, 1993 and June 30, 1995 at an address in the City of Waterbury, the [petitioner] engaged in sexual intercourse with a child under the age of thirteen years who was more than two years younger than himself by having said child whose date of birth is March 4, 1987, perform fellatio (oral sex) on him.
COUNT TWO
The said Cara F. Eschuk further accuses the said JESUS ROMERO of the crime of Attempted Sexual Assault in the First Degree in violation of Section 53a-70(a)(2) and Section 53a-49 of the Connecticut General Statutes and charges that on a date or dates between October 1, 1993 and June 30, 1995 at an address in the City of Waterbury, the [petitioner] attempted to engage in sexual intercourse with a child under the age of thirteen years who was more than two years younger than himself by attempting to penetrate the vagina of said child whose date of birth is March 4, 1987, with his penis.
COUNT THREE
The said Cara F. Eschuk further accuses the said JESUS ROMERO of the crime of Risk of Injury to a Minor in violation of Section 53a-21 of the Connecticut General Statutes and charges that on a date or dates between October 1, 1993 and June 30, 1995 at an address in the City of Waterbury, the [petitioner] did an act likely to impair the morals of a child under the age of sixteen, to wit, he had sexual contact with the intimate parts of a child whose date of birth is March 4, 1987, in a sexual and indecent manner likely to impair the morals of said child.
COUNT FOUR
The said Cara F. Eschuk further accuses the said JESUS ROMERO of the crime of Sexual Assault in the First Degree in violation of Section 53a-70(a)(1) of the Connecticut General Statutes and charges that on a date or dates between July 1, 1995 and October 31, 1995 at an address in the City of Waterbury, the [petitioner] engaged in sexual intercourse with a child under the age of thirteen years who was more than two years younger than himself by having said child whose date of birth is March 4, 1987, perform fellatio (oral sex) on him.
COUNT FIVE
The said Cara F. Eschuk further accuses the said JESUS ROMERO of the crime of Attempted Sexual Assault in the First Degree in violation of Section 53a-70(a)(2) and Section 53a-49 of the Connecticut General Statutes and charges that on a date or dates between July 1, 1995 and October 31, 1995 at an address in the City of Waterbury, the [petitioner] attempted to engage in sexual intercourse with a child under the age of thirteen years who was more than two years younger than himself by attempting to penetrate the vagina of said child whose date of birth is March 4, 1987, with his penis.
COUNT SIX
The said Cara F. Eschuk further accuses the said JESUS ROMERO of the crime of Risk of Injury to a Minor in violation of Section 53a-21 of the Connecticut General Statutes and charges that on a date or dates between July 1, 1995 and October 31, 1995 at an address in the City of Waterbury, the [petitioner] did an act likely to impair the morals of a child under the age of sixteen, to wit, he had sexual contact with the intimate parts of a child whose date of birth is March 4, 1987, in a sexual and indecent manner likely to impair the morals of said child.
COUNT SEVEN
The said Cara F. Eschuk further accuses the said JESUS ROMERO of the crime of Risk of Injury to a Minor in violation of Section 53a-21 of the Connecticut General Statutes and charges that on a date or dates between June 1, 1993 and September 30, 1993 at an address in the City of Waterbury, the [petitioner] did an act likely to impair the morals of a child under the age of sixteen, to wit, he compelled a child whose date of birth is March 4, 1987, to have sexual contact with the [petitioner's] genitals in a sexual and indecent manner likely to impair the morals of said child.
In the substitute information dated July 8, 1998, count one remained the same as alleged in the substitute information dated June 17, 1998. Count four, however, became count two; count five became count three; count six became count four; and count seven became count five.
State v. Romero, 59 Conn.App. 469, cert. denied, 255 Conn. 919 (2000).
The jury could have found the following facts: The victim, N.P., was born March 4, 1987 Petitioner was the boyfriend of the victim's mother, L.B. Beginning in 1989, petitioner moved in with L.B. and lived with N.P.'s family for six years.
Petitioner moved out of L.B.'s home on December 24, 1995.
When N.P. was five years old, petitioner began sexually abusing her. Between 1993 and 1995, petitioner on several occasions had N.P. perform oral sex on him. On one occasion in 1995, petitioner attempted to have vaginal intercourse with N.P., but was unsuccessful. During these incidents, L.B. was not home.
N.P. initially did not report these incidents to anyone. In August 1996, however, N.P. told her mother about petitioner's conduct. L.B. then contacted the police. Lieutenant Kathleen Wilson of the Waterbury police department interviewed N.P., who disclosed the details of petitioner's conduct, including that petitioner had a mole on his penis.
Photographs submitted at trial confirmed this distinguishing mark as did the testimony of N.P., L.B. and petitioner. Additionally L.B., as well as petitioner, testified that there was no innocent way that N.P, could inadvertently have observed petitioner.
On or about June 1997, N.P.'s family moved to New Hampshire. At this time, N.P. recanted her allegations. Thereafter at the state's request, L.B. took N.P. to see Sidney Horowitz, a psychologist. During her meeting with Horowitz, N.P. again recanted her allegations against petitioner. At trial, N.P. testified that she had recanted because she felt bad for her half-brother, who was petitioner's son.
In 1997, N.P. told a friend, D.M., about petitioner's conduct. N.P. then informed L.B. that her original allegations against petitioner were true. D.M. testified as a constancy of accusation witness regarding N.P.'s complaint. In addition to N.P.'s testimony, N.P.'s written statement dated August 30, 1996 was introduced as evidence in the criminal trial.
At the criminal trial N.P. testified that the assaults occurred when her mother was away from the home shopping. N.P. testified that on those occasions, her mother would take her older brother, Wilfredo, with her and that N.P. and her younger brother, Anthony, would remain at home. N.P. further testified that during the assaults, Anthony would either be sleeping or outside playing. Both L.B. and petitioner corroborated this account. Petitioner additionally testified that during various of the times alleged, there was also a daycare provider in the house.
At all relevant times during the trial of his criminal case, petitioner was represented by attorney Thomas McDonough. McDonough was admitted to the bar of the state of Connecticut in October 1979 and since 1980, has maintained a general practice of law including criminal defense. As of the time of his representation of petitioner, McDonough had tried three or four felony cases to verdict. Additionally McDonough had conducted jury selection and presented evidence in numerous other felony cases which had settled prior to verdict.
McDonough met with petitioner on numerous occasions during the two years after petitioner's arrest and before the criminal trial. Petitioner told McDonough that he was innocent of the state's allegations, that N.P. had been put up to making these allegations by L.B., who was angry with petitioner for breaking up with her and that L.B. had wanted to reconcile with him, but that he had refused. Additionally petitioner told McDonough that he had explanations for all of the alleged incidents including one where L.B. had found petitioner and N.P. in a bedroom semi-naked.
McDonough asked petitioner if he wanted to hire an investigator. Petitioner responded that he did not want to hire one and further that he did not believe he needed one. During the pendency of the criminal case, petitioner had been released on bond and was working part-time as a school bus driver. As a result, he told McDonough that he had ample time on his hands to do his own investigation. According to McDonough, petitioner provided McDonough with a great deal of information regarding the various addresses where petitioner and N.P.'s family resided during the time periods covering the crimes. Petitioner also provided McDonough with tape recordings of six months worth of phone conversations between himself and L.B. At trial, McDonough introduced excerpts from these tapes which portrayed L.B. in one tape as admitting to physically disciplining N.P. for obtaining bad grades in school and in another tape as threatening to send petitioner to jail for life.
At the criminal trial, L.B. testified for both the state and the defense. After the state's direct examination, McDonough extensively cross examined L.B. L.B. admitted that she had initiated the breakup of her relationship with petitioner by throwing him out of their house on Christmas Eve, 1995. L.B. also admitted that thereafter she desired to reconcile with petitioner and to that end for the next six months, she called him almost everyday. L.B. also admitted that in July 1996, she gave petitioner an ultimatum in which she stated that he had to chose between her and his own mother. L.B. testified that petitioner chose his mother. L.B. also admitted on cross examination that on occasion she used corporal punishment against her children. She further denied that she had ever been arrested and McDonough was allowed to contradict that assertion with the testimony of petitioner and his mother. McDonough also presented evidence that L.B. had repeatedly threatened that she would put petitioner in jail forever, that she had lied to the Welfare Department, that her brother was a Waterbury police officer, that she had had people arrested in the past, that she was manipulative and controlling, that she used the children as a tool against petitioner, and that she had threatened petitioner, petitioner's family and petitioner's property.
At all relevant times attorney Patrick Caruso represented petitioner in his appeal of the trial court verdict. Caruso graduated from law school in 1996 and for the next eighteen months clerked for a federal judge in Hartford. In 1997 Caruso joined Cummings and Lockwood as a litigation associate in the field of civil business litigation. In 2000, he joined the United States Attorney's Office for the District of Connecticut. He is presently an Assistant United States Attorney assigned to the organized crime and drug enforcement task force.
In 1998, Cummings and Lockwood had an interest in doing pro bono criminal work and to that end approached the Office of the Chief Public Defender. As a result Cummings and Lockwood was assigned several criminal appeals. In many of these appeals Caruso assisted lead counsel by researching and writing portions of the appellate brief. Thereafter Caruso was assigned to be lead counsel on petitioner's appeal.
Caruso obtained petitioner's trial file from the public defender's office. He then conducted a painstaking review of the file as well the entire trial transcript. Caruso thereafter undertook extensive research to determine which issues would succeed on appeal and then chose the issues.
Caruso was assisted by two more senior attorneys in the firm who also reviewed portions of the record and consulted with Caruso on the appropriate issues for appeal. Caruso spent approximately 300 hours on petitioner's appeal. In June 1999, Caruso filed a brief with the Appellate Court.
Caruso believed that the strongest issues for appeal involved various of the trial court's rulings on the constancy of accusation testimony of D.M. Caruso's appellate strategy was to present a few strong issues to the Appellate Court rather than a lot of issues which were marginal and which could have had the effect of diminishing the strength of the constancy issue. Issues which Caruso considered but rejected included: ineffective assistance of counsel, sufficiency of the evidence, deficiencies in the jury charge and prosecutorial misconduct. In each instance Caruso rejected these issues because the trial record did not support such a claim.
At the habeas trial petitioner testified that after he had engaged McDonough, he told McDonough he was interested in hiring an investigator. Petitioner told McDonough that because L.B.'s brother is a Waterbury police officer, the case was not fully investigated. At the habeas trial petitioner further asserted that an investigator could have interviewed N.P.'s brothers, Anthony and Wilfredo, who would have said that they were present in the home at the times the assaults allegedly occurred. Petitioner claims that he paid McDonough $1,000.00 for this purpose, but McDonough applied this money to petitioner's outstanding legal bill.
At the habeas trial, as at the criminal trial, petitioner claimed that L.B. put N.P. up to the complaint against him in retaliation for petitioner's refusal to move back in with L.B. Petitioner claims that he informed McDonough about L.B.'s physical abuse of N.P. which he believes was a "critical part" of his defense. Petitioner admitted that he gave McDonough a copy of a tape recording of L.B. admitting to striking N.P. as punishment for her poor grades in school. Although McDonough successfully introduced this tape into evidence, petitioner believes McDonough should have also cross examined L.B. with this tape.
Petitioner also complained that McDonough should have objected to the state's use of a police photographer to record the mole on his penis. Petitioner claims that a medical professional should have taken the photograph because a medical professional would have ensured that a scar on petitioner's leg was also included in the photo. Petitioner believes that if the jury had been shown the more complete photo, the jury would have concluded N.P. was lying because N.P. never testified to the presence of the scar. On cross examination, petitioner admitted that the mole is approximately one millimeter in diameter. Further petitioner admitted that in order to observe the mole, a person would have to be very close to petitioner's penis and petitioner would have to be completely undressed.
Additional facts will be discussed as necessary.
DISCUSSION I. Ineffective Assistance of Trial Counsel A. Legal Standard
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . . Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
"It is well established that [a court] need not determine the deficiency of counsel's performance in consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . To prevail on the prejudice prong, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . ." (Internal citations and quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 530-31 (2007).
Count one of the Second Amended Petition identifies fourteen ways in which trial counsel allegedly performed in a constitutionally deficient manner. At the habeas trial, four of these allegations were completely withdrawn and one was partially withdrawn. Consequently, the court will address only the remaining allegations.
The court draws attention to State v. Pelletier, 209 Conn. 564, 566-67 (1989). The Supreme Court noted in that appeal that ". . . defendant has launched a wholesale attack on every aspect of this prosecution and some aspects of the preceding prosecution . . . This torrent of claimed error, including an issue that the defendant himself has directed to be argued, serves neither the ends of justice nor the defendant's own purposes as possibly meritorious issues are obscured by the sheer number of claims that are put before us.
"Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error.
But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one issue . . . Multiplying assignments of error will dilute and weaken a good case and will not save a bad one . . .
Most cases present only one, two, or three significant questions . . . Usually . . . if you cannot win on a few major points, the others are not likely to help . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . ." (Internal citations and quotation marks omitted.)
These four withdrawn bases are identified in count one of the Second Amended Petition as ¶¶ 13a, f, l, n, and that portion of m pertaining to exhibit 2.
B. Failure to object to constancy of accusation evidence and preserve issue for appeal
Petitioner's pre-trial brief argues that McDonough failed to object to D.M. being presented as a constancy of accusation witness under the exception in State v. Troupe, 237 Conn. 284 (1996) (en banc). The evidence shows that on or about July 1, 1998, McDonough was informed that the state intended to put D.M. on in its case in chief as a constancy of accusation witness. When D.M. was called to testify on July 6, 1998, McDonough objected on the grounds that any disclosures to D.M. by N.P. were (1) unreliable in that D.M. was a minor and (2) untimely in that they were made four years after the fact. McDonough's objection was overruled.
The court notes at this juncture that petitioner's lengthy pre-trial brief focuses on only two of the numerous allegations: the constancy of accusation violation and prosecutorial misconduct. The brief concludes with the statement that ". . . petitioner has articulated his claims as accurately as he can, given the fact that the brief is filed prior to the introduction of evidence. The petitioner may be introducing additional evidence not included in this brief and does not wish this brief to limit the scope of the trial." Brief, at 39. Notwithstanding this statement, claims raised in the amended petition without evidentiary support produced at trial do limit the scope of the trial.
D.M. thereafter testified that on one occasion N.P. told D.M. that she had been molested by her stepfather, Jesus. N.P. reported that she was made to touch petitioner and that petitioner also touched her. D.M. further indicated that N.P. was crying at the time she revealed these facts and that D.M. believed N.P. When asked by Eschuk what advice D.M. had given to N.P., D.M. was unable to remember.
Appellate counsel subsequently raised four claims on appeal pertaining to constancy of accusation, though three were not addressed by the Appellate Court because they were not properly preserved for appellate review. Two of these three unpreserved claims form the basis of the claim that McDonough failed to properly object to constancy of accusation witness. According to petitioner, McDonough should have objected to the proposed constancy of accusation witness because N.P.'s recantation caused a break in the chain of constant accusation and the trial court allowed constancy of accusation testimony that exceeded what is permissible under Troupe.
"On appeal, the [petitioner] claim[ed] that the trial court improperly admitted certain constancy of accusation testimony that was (1) made long after the events complained of, (2) no longer constant due to an intervening recantation, (3) beyond the scope permitted by State v. Troupe, 237 Conn. 284 . . . (1996) (en banc), and (4) in violation of the state and federal constitutions." State v. Romero, supra, 59 Conn.App. 471. The Appellate Court addressed the first claim, but declined to review the second, third and fourth claims.
In Troupe, the Supreme Court ". . . conclude[d] that a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim's complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator . . . In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim's testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant." (Footnotes omitted.) State v. Troupe, supra, 237 Conn. 284.
N.P., the victim, was the first witness in the criminal trial and testified concerning the facts of the sexual assaults and that she had disclosed the sexual assaults to D.M. A review of D.M.'s testimony shows that she testified about how she knew N.P., the identity of the perpetrator, the place of the sexual assaults, and some details of the assaults. This testimony clearly falls within the scope of corroborative testimony permissible under Troupe, namely that the testimony was ". . . strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator." State v. Troupe, supra, 237 Conn. 284. Thus McDonough had no basis under Troupe to object to D.M. being called as constancy of accusation witness.
Next petitioner claims that McDonough should have objected that D.M.'s testimony exceeded the permissible scope of Troupe when D.M. testified that she was friends with N.P., that N.P. was crying when she told D.M. of the abuse and that D.M. believed N.P.'s account. None of these facts testified to by D.M., however, violate the constraints of Troupe. Thus petitioner's reliance on Troupe is misplaced.
In State v. Cosby, 99 Conn.App. 164, cert. denied, 281 Conn. 920 (2007), the victim of a sexual assault first testified that she told her cousin that the defendant had sexually assaulted her. Thereafter the cousin was allowed to testify that the victim told him she had been sexually assaulted by the defendant. The state then followed up by asking the cousin what the cousin had said to the victim and the defendant objected claiming that this question was beyond the scope of Troupe. The trial court overruled the objection reasoning that Troupe did not preclude the state "from asking questions that are outside of the parameters of Troupe." State v. Cosby, supra, 99 Conn.App. 172. The Appellate Court affirmed and held that: "Under Troupe, `any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge . . .' (Emphasis added.) State v. Troupe, supra, 237 Conn. 304 . . . [In the present case] [t]he state did not ask [the] cousin to provide any details that [the victim] may have given him regarding the defendant's alleged conduct. Because [the victim's] cousin did not testify regarding any details surrounding the assault, Troupe is inapplicable to this portion of his testimony." (Emphasis in original.) Id. In the present case, D.M.'s testimony that she was friends with N.P., that N.P. cried and that she believed N.P. was truthful also did not concern the details surrounding the assault. Accordingly McDonough was not deficient in failing to object to this testimony on Troupe grounds. See also State v. Brown, 59 Conn.App. 243, 247 (2000) (The limitations established in Troupe do not prohibit testimony of the victim's conduct after the assault.)
Petitioner also claims McDonough should have objected to the admission of D.M.'s testimony on the ground that D.M.'s testimony was not testimony of constant accusation due to N.P.'s recantation prior to her disclosure to D.M. Petitioner cites State v. Brigandi, 186 Conn. 521 (1982), in support of this proposition. Petitioner's reliance on Brigandi is, however, misplaced.
In Brigandi, a woman was sexually assaulted by her neighbor. She immediately reported the incident to the police but informed them that she did not know who attacked her. Hours later the victim told several other people that the defendant had sexually assaulted her and also reported this to the police. At trial the state sought to introduce this evidence as constancy of accusation. The defendant objected claiming that such evidence could not be constancy evidence in that the victim's first statement made "a permanent break in the chain of constancy of accusation." Id. at 526. The trial court overruled the objection and admitted the evidence. In affirming the trial court, the Supreme Court held that the victim's first statement was not an accusation of anyone. Thus the victim's accusations against the defendant were constant and were admissible as constancy evidence.
In Brigandi the Supreme Court never reached the issue of whether a recantation after an accusation breaks the chain of constancy such that a later accusation against the same person is inadmissible. Thus Brigandi does not stand for the proposition that a constancy statement made after a recantation is inadmissible evidence. Petitioner has cited no other authority for this proposition. While petitioner's claimed limitation on constancy evidence may at some point in the future constitute the rule in Connecticut that is not the case at present and was not the law at the time of petitioner's criminal trial. Failure of trial counsel to predict the future does not constitute deficient performance. See State v. Hickey, 80 Conn.App. 589, 597, cert. denied, 267 Conn. 917 (2004); Larkin v. Commissioner of Correction, 45 Conn.App. 809, 819 (1997). Thus McDonough was not deficient when he failed to object to D.M.'s testimony on this ground.
C. Failure to object to physical examination and photographing procedures
Petitioner alleges that McDonough failed to object to the procedure for the physical examination and photographing of petitioner that denied him the ability to present physical evidence that would contradict the identification of petitioner by a distinguishing mark. Petitioner now claims that a medical professional should have taken the photograph because a medical professional would have ensured that a scar on petitioner's leg was also included in the photograph.
During the pretrial proceedings, the state filed a motion for non-testimonial evidence in which it sought to obtain a photograph of the petitioner's penis. McDonough was unable to recall if he objected to this procedure. The court granted the state's motion and petitioner's motion for a protective order. Thereafter in a conference room in the Waterbury courthouse, Waterbury police officer Michael Silva took a photograph of petitioner's penis including a picture of a mole approximately one millimeter in size and located at the tip of his penis. McDonough was in attendance at this procedure.
The protective order prohibited the disclosure of the photograph to anyone other than the parties and their witnesses.
When first interviewed by the police, N.P. ". . . disclosed the details of [petitioner's] conduct, including that [he] had a mole on his penis. Photographs submitted at trial confirmed this distinguishing mark as did the testimony of the victim, the victim's mother and the defendant. Moreover, the mother, as well as [petitioner], testified that there was no innocent way that the victim could inadvertently have observed [petitioner]." (Emphasis in original.) State v. Romero, supra, 59 Conn.App. 472.
Initially it should be noted that petitioner has failed to adduce any evidence a medical professional would have ensured that the scar on petitioner's leg was included in the photograph. Moreover even if a medical professional had taken photographs including the scar, petitioner has in no way affirmatively shown that the inclusion of the scar in a picture would be relevant. The scar on petitioner's leg, although itself a distinguishing mark, has little if any bearing on the victim's identification of petitioner as the perpetrator of the sexual assaults. Additionally petitioner has neither presented evidence that contradicts the photographic identification nor shown that his ability to present such evidence, if it existed at all, was restricted. During the criminal trial petitioner testified in his defense and confirmed the distinguishing mark on his penis and that there was no innocent way N.P. could inadvertently have seen the mole. At trial petitioner could also have, but chose not to present evidence of the existence of any scar. Consequently, the court finds that this basis for ineffective assistance of counsel is wholly without merit.
D. Failure to present and argue evidence that other family members were in the home when the offenses occurred
Petitioner next claims that McDonough's failure to present and argue evidence that other family members were in the home when the offenses took place was deficient performance. Petitioner also claims that such evidence would tend to disprove the state's case. This claim is without merit. N.P. testified during the criminal trial that her younger brother was in the house during the assaults. L.B. also testified that she left N.P. and petitioner's son home alone with petitioner. Petitioner himself testified in the criminal trial that N.P. was left at home with her younger brother and that a daycare provider was also in the house during several of the times the offenses occurred.
The trial record shows that the jury was presented with evidence that other people, including other family members, were in the home when the assaults occurred. Additionally, McDonough argued in closing that other people were present. The only witness identified by petitioner in the habeas who was not identified as being present in the home was N.P.'s older brother, Wilfredo. Petitioner has failed to show, however, how Wilfredo's testimony, if presented, would have been anything other than duplicative of other trial testimony. Petitioner has failed, consequently, to show that McDonough was deficient based on this allegation.
E. Failure to investigate and present evidence of DCF interviewing children and finding no evidence of abuse in the home
Petitioner also alleges that McDonough failed to investigate and obtain evidence that DCF interviewed the children in the household and found no evidence of abuse in the home. The court finds this claim to be without merit.
McDonough pursued this defense theory by subpoenaing DCF and its records at the criminal trial, At some point prior to or during the trial. Eschuk provided McDonough with pages one, four and five of a seven-page Department of Children and Families (DCF) investigation protocol dated July 26, 1996. On July 6, 1998, for the record, Eschuk indicated that she had provided McDonough with these copies and that this report was "all that [DCF] supplied to me." The following day for the record, Eschuk reported that that morning McDonough and Eschuk had met with a representative of DCF and that the representative had indicated no other records existed. The trial record clearly shows that all available DCF records were provided to the prosecution, which in turn provided the same records to McDonough. Thus as an initial matter, petitioner has failed to prove that McDonough did not obtain the records of DCF.
At the outset of the habeas trial, respondent gave petitioner copies of these same DCF records. Petitioner, however, never introduced these records at the habeas trial. This court, therefore, is unaware of the allegations and findings contained in the DCF records. Without such evidence, this court is unable to determine the relevancy, if any, of this evidence to the issues in the criminal trial and whether McDonough adequately investigated and presented these claims at the criminal trial. Additionally petitioner has not shown how, if McDonough had utilized this evidence, the outcome of the criminal trial would have been different. "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001). "Mere conjecture and speculation are not enough to support a showing of prejudice." Burke v. Commissioner of Correction, 90 Conn.App. 370, 278, cert. denied, 275 Conn. 926 (2005).
Assuming these records corroborate petitioner's claim that on occasion L.B. physically disciplined N.P., this exact evidence was presented to the jury through McDonough' s cross examination of L.B. and by virtue of a tape recording in which L.B. admitted to so doing. Thus any DCF records to this effect would have been nothing more than duplicative of other evidence already introduced in the trial.
F. Failure to object to hearsay evidence
Petitioner next avers that McDonough failed to object to hearsay questions from the prosecutor. In particular petitioner claims that D.M.'s testimony as to her friendship with N.P., D.M.'s description of N.P.'s emotional state and D.M.'s belief that N.P. was truthful constituted impermissible hearsay evidence to which McDonough should have objected. Petitioner's claims are without merit.
The following colloquy occurred:
"[State's Attorney]: . . . [W]ere you her friend before she told you this?
"[D.M.]: Yep.
"State's Attorney]: Are you still her friend?
"[D.M.]: Yeah."
Criminal Trial Transcript, July 6, 1998, p. 174.
The following colloquy occurred:
"[State's Attorney]: How did she act when she was telling you?
"[D.M.]: At first `cuz of the way she shows her nervousness she kind of was like — like that; and then — then when I go, really; and she goes yeah; and then all of a sudden she just started to cry. I didn't really believe her at first, and then when she told me like everything and stuff and then I really knew; and why would she lie about that."
Criminal Trial Transcript, July 6, 1998, p. 173.
See footnote 13.
" `Hearsay' means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Code of Evid. § 8-1(3). "C[onnecticut] C[ode of] E[vidence] § 8-1 restates the standard definition of hearsay. A statement made out of court that is offered to establish the truth of the facts contained in the statement is hearsay. Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718 (1902)." Tait's Handbook of Connecticut Evidence § 8.1.2 3rd ed. 2001.
In the present case, D.M.'s testimony of her friendship with N.P. was not hearsay in that it was not a statement made out of court and offered to establish the truth of the matter asserted. Moreover ". . . [if a statement] is offered for a purpose other than to establish the truth of the matter asserted, the statement is not hearsay." State v. Esposito, 223 Conn. 299, 315 (1992). The testimony of D.M. regarding her friendship with N.P. was admissible for the purpose of showing why D.M. was in a position to receive N.P.'s disclosures and why N.P. would have related this information to D.M. Thus any objection by McDonough to this evidence on hearsay grounds would have been unavailing.
Likewise D.M.'s testimony that N.P. was truthful was not a statement made out of court and offered to prove the truth of the matter asserted. While D.M.'s opinion as to N.P.'s truthfulness may have been inadmissible lay opinion evidence, it was not hearsay. Thus any objection by McDonough on hearsay grounds would have been overruled. Moreover even if D.M.'s statement that she believed N.P. was truthful was inadmissible, petitioner has failed to overcome the presumption that McDonough's failure to object to this evidence was not legitimate trial strategy. D.M. was not a strong witness for the state. At the time of trial she was twelve years old; additionally during her testimony, she was often hesitant in her answers, not forthcoming with testimony and at times forgetful of the details of her interaction with N.P. For those reasons McDonough may well have decided that objecting would have drawn unwanted attention to D.M.'s opinion and could also have engendered sympathy for this witness.
"[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . . An [e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury." Servello v. Commissioner of Correction, 95 Conn.App. 753, 761, cert. denied, 280 Conn. 904 (2006). Petitioner here has not rebutted this strong presumption. Additionally petitioner has failed to show that the admission of this assertion by a juvenile, non-eye-witness to the crimes would have changed the outcome of a five-day trial.
Finally D.M.'s testimony about N.P.'s emotional state was also not hearsay. A description of the conduct of a victim is admissible as non-hearsay. " `Nonverbal conduct may . . . be hearsay if intended as an assertion. If the conduct is assertive in nature, that is, meant to be a communication — like the nodding or shaking of the head in answer to a question — it is treated as a statement, and the hearsay rule applies . . . However, conduct not intended as an assertion is not hearsay . . . Thus, [n]onassertive conduct such as running to hide, or shaking and trembling is not hearsay.' (Citations omitted; internal quotation marks omitted.) State v. King, 249 Conn. 645, 670 (1999)." State v. Brown, 59 Conn.App. 243, 247 (2000) (Aunt's testimony of her observations of victim's crying and fears of being alone admissible as non-hearsay evidence of victim's state of mind.). In the present case, D.M.'s description of N.P.'s emotional state was admissible as a nonhearsay description of the conduct of the victim subsequent to the assault. Thus McDonough's failure to object to this evidence on hearsay grounds did not constitute deficient performance.
G. Failure to argue for acquittal on all five counts on grounds of insufficiency of evidence
In this claim, petitioner alleges that McDonough failed to argue for an acquittal on all five counts of the information on the ground that the state presented insufficient evidence from which the jury could find that the alleged acts occurred during the specified dates in the information. After the state concluded its case on July 7, 1998, McDonough moved for a judgment of acquittal. As to counts two and three of the substitute information dated June 17, 1998, McDonough essentially argued that the evidence failed to substantiate the offenses occurred during the two-year period alleged in the information. McDonough additionally sought to have count one dismissed for lack of evidence, a judgment of acquittal entered as to count five based on lack of evidence that sexual intercourse occurred, a judgment of acquittal entered as to count six based on lack of evidence that petitioner had contact with the victim's private parts, and a judgment of acquittal as to count seven based on lack of evidence that there was any sexual contact at all during the alleged time period. McDonough did not move for a judgment of acquittal as to count four. The state disagreed with McDonough's motions except as to count two, which the state conceded should be granted.
The trial court granted the defense motion only as to count two. The defense then began putting on its case. On July 8, 1998, the second day of the defense case, the court indicated that it had reconsidered the motion for judgment of acquittal and would additionally grant the motion as to count three. The matter proceeded on the five remaining counts which eventually were charged in the information dated July 8, 1998 and petitioner was found guilty.
The trial court record shows that on July 15, 1998, McDonough filed a post-trial motion for acquittal and a post-trial motion for new trial. In a written memorandum of decision, the motion for acquittal was denied on August 5, 1998. Thereafter on September 11, 1998, the court orally denied the motion for new trial. In the motion for acquittal, McDonough moved for acquittal only as to court two of the information dated July 8, 1998. Petitioner claims that McDonough's failure to additionally move for acquittal on the other four counts constituted deficient performance. McDonough's performance can be deficient, however, only if the evidence adduced at trial did not support the jury's verdict.
"The standard of review [applied] to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction [courts] apply a two-part test. First, [courts] construe the evidence in the light most favorable to sustaining the verdict. Second, [courts] determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . .
". . . [T]he jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt . . .
"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical . . ." State v. Lopez, 280 Conn. 779, 808 (2007).
In the present case, construing the evidence in the light most favorable to sustaining the verdict, there was ample direct and circumstantial evidence for the jury to conclude that N.P. was forced to perform fellatio on petitioner when she was in second grade; that during the summer when N.P. lived on South Street, she was again forced to perform fellatio on petitioner; that petitioner attempted to have vaginal intercourse with N.P. when she was eight years old and in third grade; and that N.P. was first forced to touch petitioner's penis during the summer between kindergarten and first grade.
Count one alleges that this incident took place on a date between October 1, 1993 and June 30, 1995. N.P. was in second grade from September 1994 — June 1995.
Count two of the information dated July 8, 1998, alleges that this incident took place on a date between July 1, 1995 and October 31, 1995. N.P. lived on South Street during the summer of 1995.
Counts three and four of the information dated July 8, 1998, alleges that this incident took place on a date between July 1, 1995 and October 31, 1995. N.P. was eight years old and in third grade beginning in September 1995.
Count five of the information dated July 8, 1998, alleges that this incident took place on a date between June 1, 1993 and September 30, 1993. The summer between kindergarten and first grade was June — August 1993.
While there may have been other evidence adduced at the criminal trial to show that the various assaults occurred at times other than alleged in the information, any conflicts or inconsistencies in this regard were for the jury to resolve which it did by convicting petitioner of all five counts. Thus even if it could be said that McDonough was deficient for failure to file a motion for acquittal on the grounds of insufficient evidence, petitioner has failed to prove that the outcome of the trial would have been different. ". . . [T]he defendant, by focusing on inconsistencies in the witnesses' testimony, primarily is attacking the credibility of the witnesses. It is well settled that it is the exclusive province of the trier of fact `to weigh the conflicting evidence and determine the credibility of witnesses.' . . . Furthermore, `[t]he [jury] can . . . decide what — all, none or some — of a witness' testimony to accept or reject.' . . . `Questions of whether to believe or to disbelieve a competent witness are beyond . . . review.' . . .
"In the present case, the credibility of the witnesses was a question solely for the jury. The defendant had a full opportunity to testify and to cross examine [the state's witnesses] . . . Because `[s]uch credibility issues are typical grist for the [trier of fact's] mill'; . . . the jury was free to believe or disbelieve the testimony of [the state's witnesses] as well as the testimony of the defendant. Thus, the defendant's challenge to the sufficiency of the evidence fails as long as a reasonable view of the evidence would support the jury's conclusion . . ." (Internal quotation marks omitted; citations omitted.) State v. Howell, 98 Conn.App. 369, 375-76 (2006).
"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal . . . On [review], we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty. (Internal quotation marks omitted.) State v. Gary, 273 Conn. 393, 405-06 . . . (2005)." State v Ledbetter, 275 Conn. 534, 543 (2005). As noted previously, there was ample evidence adduced at the criminal trial for the jury to find petitioner guilty. The claim of ineffective assistance of counsel premised on insufficient evidence must, therefore, fail.
H. Failure to ask for specific jury charge
Petitioner alleges that McDonough failed to ask for a specific jury charge that the jury had to find the incidents alleged occurred within the dates alleged on the information. A review of the charge shows that the court charged the jury as to the dates alleged in the July 8, 1998 information. The jury was also properly instructed on the elements of the charged offenses. As to those offenses where a determination of the victim's age was critical (e.g. count one, where the jury had to find N.P. was under the age of thirteen when the offense occurred), the jury reached a verdict that the state proven all elements, either via direct, inferred or cumulative evidence. Petitioner has neither shown that McDonough was deficient in not asking for a specific charge indicated above, nor has he shown the required prejudice.
I. Failure to object to prosecutorial misconduct
This claim alleges that McDonough failed to object to prosecutorial misconduct in that the state's attorney improperly asked the defendant to comment on the veracity of another witness. In State v. Stevenson, the Supreme Court recently held that "[t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor . . . The issue is whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process . . . In determining whether the defendant was denied a fair trial by virtue of prosecutorial misconduct [a court] must view the prosecutor's comments in the context of the entire trial . . .
"It is not the prosecutor's conduct alone that guides [this] inquiry, but, rather, the fairness of the trial as a whole . . . [Courts] are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent . . . By reason of his or her office, the prosecutor usually exercises great influence upon jurors. The prosecutors conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he or she represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he or she should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe . . .
"In analyzing claims of prosecutorial misconduct, [courts] engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question . . ." (Internal citations and quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 571-72 (2004).
The Stevenson court also took the ". . . opportunity to clarify our due process analysis in cases involving incidents of prosecutorial misconduct that were not objected to at trial. In doing so, [if] concluded that, in cases like the present one, it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40 . . . (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540 . . . (1987). As [the court] stated in that case: `In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted and the strength of the state's case.' . . .
"Regardless of whether the defendant has objected to an incident of misconduct, a reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial. The application of the Williams factors, therefore, is identical to the third and fourth prongs of Golding, namely, whether the constitutional violation exists, and whether it was harmful . . . Requiring the application of both Williams and Golding, therefore, would lead, as in fact has occurred in the present case, to confusion and duplication of effort. Furthermore, the application of the Golding test to unchallenged incidents of misconduct tends to encourage analysis of each incident in isolation from one another. Because the inquiry must involve the entire trial, all incidents of misconduct must be viewed in relation to one another and within the context of the entire trial. The object of inquiry before a reviewing court in claims involving prosecutorial misconduct, therefore, is always and only the fairness of the entire trial, and not the specific incidents of misconduct themselves. Application of the Williams factors provide for such an analysis, and the specific Golding test, therefore, is superfluous. In light of these observations, [the court] conclude[d] that, following a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the Williams factors to the entire trial.
"This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any incident of the prosecutor's improper conduct. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant's right to a fair trial. State v. Negron, 221 Conn. 315, 330 . . . (1992); see also State v. Andrews, 248 Conn. 1, 19-20 . . . (1999) (failure of defense counsel to object to prosecutor's rebuttal argument suggested that `defense counsel did not believe that it was unfair in light of the record of the case at the time'); State v. Robinson, 227 Conn. 711, 745-46 . . . (1993) (failure to object to closing arguments indicated that defense counsel `did not regard . . . remarks as seriously prejudicial at the time they were made'). Moreover, ordinarily, when a defendant who raises an objection to the allegedly improper remarks of a prosecutor elects to pursue one remedy at trial instead of another, he will not be permitted to claim on appeal that the remedy he pursued was insufficient. Cf. State v. Drakeford, 202 Conn. 75, 81 . . . (1987) . . . In other words, the fact that defense counsel did not object to one or more incidents of misconduct must be considered in determining whether and to what extent the misconduct contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.
"We emphasize the responsibility of defense counsel, at the very least, to object to perceived prosecutorial improprieties as they occur at trial, and we continue to adhere to the well established maxim that, defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time . . . Moreover as the Appellate Court has observed, defense counsel may elect not to object to arguments that he or she deems marginally objectionable for tactical reasons, namely, because he or she does not want to draw the jury's attention to it or because he or she wants to later refute that argument . . . Accordingly, we emphasize that counsel's failure to object at trial, while not by itself fatal to a defendant's claim, frequently will indicate on appellate review that the challenged comments do not rise to the magnitude of constitutional error Put differently . . . prosecutorial misconduct claims are not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that . . . have deprived a criminal defendant of his right to a fair trial . . ." (Citations omitted; internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 572-76.
1. Failure to object to prosecutorial misconduct in cross examination
Petitioner first claims that McDonough failed to object to the prosecutor asking petitioner on cross-examination about another witness' [i.e, L.B.'s] veracity. McDonough's failure to do so suggests that he did not believe it was unfair in light of the record of the case at that time. Furthermore, it is rather apparent that not raising such objection was part of McDonough's strategy of undermining L.B.'s credibility. For example, McDonough vigorously emphasized L.B.'s lack of credibility during his closing argument. Consequently, in the absence of an objection by McDonough, no request for a curative instruction and no motion for a mistrial, McDonough presumably did not view the alleged impropriety as prejudicial enough to seriously jeopardize petitioner's right to a fair trial. State v. Negron, supra, 221 Conn. 330. Petitioner has failed to show that McDonough's performance was deficient. He also has not shown that there was alleged misconduct was a `gross prosecutorial impropriety' that deprived petitioner of his right to a fair trial.
2. Failure to object to prosecutorial misconduct in closing argument
Petitioner also claims McDonough failed to object to prosecutorial misconduct in that the state's attorney improperly vouched for the veracity of the victim-witness on six occasions and argued facts not in evidence on three occasions. A careful review of the state's attorney's closing argument reveals that the state's attorney did not impermissibly vouch for the credibility of her witnesses. Rather the trial transcript shows that the state's attorney permissibly argued that the totality of the facts in evidence corroborated N.P.'s testimony. See, State v. Bermudez, 274 Conn. 581, 590-95 (2005) (Prosecutor did not commit misconduct when he argued victim's credibility based on reasonable inferences that could be drawn from the evidence).
Next petitioner claims that the state's attorney argued facts not in evidence. In two of three instances cited in petitioner brief, the state's attorney permissibly argued from the facts in evidence. On the third occasion the state's attorney averred that in child sex abuse cases, it is rare for an adult to almost catch a defendant in the act. There was, however, no evidence adduced at trial to support this assertion. Thus the prosecutor's statement to this effect amounted to misconduct to which McDonough did not object. Petitioner has, however, failed to rebut the presumption that McDonough did not object for tactical reasons. Thus petitioner has failed to show that McDonough's performance was deficient. He also has not shown that the alleged misconduct was a `gross prosecutorial impropriety' that deprived petitioner of his right to a fair trial. State v. Bermudez, supra 274 Conn. 599-603 (Although prosecutor improperly compared the case on trial with other cases he had prosecuted, this brief and isolated comment to which defendant did not object was not "grossly egregious.")
II. Ineffective assistance of appellate counsel A. Legal Standard
The Strickland standard also applies to claims of ineffective assistance of appellate counsel. "The first part of the CT Page 5445 Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . .
"To satisfy the prejudice prong, a petitioner must, thus, establish that, as a result of appellate counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a particular claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt . . . In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different . . .
"Because both prongs of Strickland must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . ." (Citations omitted; internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1, 11-12 (2007).
B. Failure to raise claim of prosecutorial misconduct
Count two first claims that Caruso failed to appeal the issue of prosecutorial misconduct in that the state's attorney improperly asked petitioner to comment on the veracity of another witness [i.e., L.B.], improperly vouched for the veracity of the victim-witness, used facts not in evidence, testified during closing arguments and misled the court on what exhibits were fully admitted.
At the habeas trial, petitioner withdrew a portion of count one, paragraph 13m, as that claim pertains to Exhibit 2. That claim in count one had alleged that the prosecutor had improperly represented that the victim's statement, Exhibit 2, was marked as full. Though petitioner did not withdraw that portion of count two, paragraph 13a, that clearly is related to 13m in count one, the court deems 13a of count two abandoned.
Caruso testified that he considered the issue of prosecutorial misconduct, but rather quickly rejected raising the issue on appeal. Based on the discussion above and this court's conclusion that McDonough did not render deficient performance, the court also finds that Caruso's representation did not fall below an objective standard of reasonableness considering all of the circumstances. Even assuming deficient performance, petitioner has not shown that but for counsel's deficient performance, there is a reasonable probability that the trial verdict would have been different. Consequently, the claim of ineffective assistance by Caruso for failure to raise a claim on appeal as to prosecutorial misconduct must fail.
C. Failure to appeal issue of insufficiency of evidence
This claim alleges that Caruso failed to appeal the issue of insufficiency of the evidence in that there was no evidence to support the guilty verdicts in the five counts of the July 8, 1998 information given the dates specified in the information.
As with the preceding claim, Caruso testified that he considered but rejected raising a claim premised on insufficiency of the evidence. Caruso rejected this claim because he concluded, after reviewing the trial record, that there was sufficient evidence presented to support each crime charged. As previously addressed by this court in the claims against McDonough, the jury found beyond a reasonable doubt that the state had proven all five offenses charged in the July 8, 1998 information. This court's review of the trial transcripts confirms Caruso's assessment and conclusion that there was sufficient evidence presented to support each conviction.
Petitioner has failed, therefore, to show both deficient performance and that there is a reasonable probability, assuming deficient performance, that the trial verdict would have been different.
III. Claims of prosecutorial misconduct
The applicable standard has already been stated above. Thus, the court will address the claims as raised in count three of the amended petition. Petitioner raises several direct claims of prosecutorial misconduct. These claims allege that the state's attorney misled the court on what exhibits were fully admitted, improperly asked the defendant to comment on the veracity of another witness, improperly argued using facts not in evidence, knowingly used perjured testimony at trial, and improperly vouched for witnesses. Respondent has raised the affirmative defense of procedural default as to the claims in count three. According to respondent, petitioner is barred from raising the claims of prosecutorial misconduct in this habeas petition because he failed to raised them for the first time either at trial or on appeal. Respondent asserts that petitioner cannot establish the required showing of good cause for the procedural default and the resulting prejudice.
Petitioner in count three also has a claim premised on the state's misrepresentation of the victim's statement as a full exhibit. Second Amended Petition, count three, ¶ 13a. The court again concludes that that claim must be deemed abandoned. See footnote 19.
At the habeas trial, without objection, petition sought permission to amend count three. The court permitted petitioner to include a claim of prosecutorial misconduct for improper vouching of witnesses.
Petitioner's reply asserts that there is cause and prejudice for the failure to raise prosecutorial misconduct on appeal, though the reply does not make any assertions regarding the failure to raise the issue at trial. The reply goes onto allege that "[p]art of the cause for petitioner's failure to raise prosecutorial misconduct is the lack of access to information regarding the claim of prosecutorial misconduct. The petitioner believes that the state had information regarding the victim's mother physically abusing the victim that would have supported the petitioner's defense at trial. This information can only be explored through an examination of the prosecutor on the stand. The prejudice is that the petitioner was denied exculpatory information that would have tended to support his defense that the victim was afraid of her mother and accused the petitioner because of that fear. There would also be prejudice if the state presented evidence through testimony of witnesses that it knew was false." Reply, at 1.
A. Legal Standard
"Connecticut law is clear that a petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) good cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. See Cobham v. Commissioner of Correction, 258 Conn. 30, 40 . . . (2001). When a petitioner fails to make that required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409 . . . (1991)." Solman v. Commissioner of Correction, 99 Conn.App. 640, 644 (2007).
"The 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 . . ." Cobham v. Commissioner of Correction, supra, 258 Conn. 40.
B. Prosecutorial misconduct premised on improperly commenting on veracity of another witness, arguing facts not in evidence and vouching for witnessesThese claims have been addressed by the court in the context of the ineffective assistance of counsel claims. This court has previously concluded that that McDonough's and Caruso's decisions at trial and on appeal fall short of being ineffective assistance of counsel. Given those conclusions, it is irrelevant whether their reasons for not raising prosecutorial misconduct at trial or on appeal were tactical, inadvertent or because of ignorance. Petitioner is procedurally defaulted and has failed to show the required good cause.
C. Prosecutorial misconduct premised on knowing use of perjured testimony at trial
Petitioner also alleges that the prosecuting attorney failed to disclose exculpatory evidence and knowingly used perjured testimony. No evidence was presented at the habeas trial in support of these very serious claims that touch upon the integrity of the legal profession and accuse the prosecutor of professional misconduct. Although the reply asserts that an exploration through examination of the prosecutor on the stand would be required, no such exploration was undertaken. After questioning by this court at the habeas trial, petitioner's habeas counsel refused to withdraw the claim that the prosecutor knowingly used perjured testimony. Habeas counsel indicated to this court his client felt very strongly about this claim and, therefore, the claim would remain. Upon further inquiry by this court, petitioner's habeas counsel represented that petitioner believes that the prosecutor knew L.B.'s testimony that she never physically abused N.P. was untrue, yet did nothing to correct this when L.B. testified. At the habeas trial, petitioner never testified to this belief and never offered any other evidence to support this allegation. Because no evidence was presented to this court that there was a knowing use of perjured testimony, the claims in count three are wholly without merit.
Rule 2.1 of the Rules of Professional Conduct (Rules) states in relevant part that "[i]n representing a client, a lawyer shall exercise independent professional judgment . . ." Rule 3-1 of the Rules requires that "[a] lawyer shall not . . . assert . . . an issue . . ., unless there is a basis in law and fact for doing so that is not frivolous . . ." The commentary to Rule 3.1 elaborates on this duty: "The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions . . . The action is frivolous, however, if the lawyer is unable to . . . make a good faith argument."
The preamble to the Rules discusses a lawyer's responsibilities. "Within the frame-work of these Rules . . . many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system."
It is incumbent upon counsel to pursue only non-frivolous claims. In the present case, counsel for petitioner may initially have had a good faith belief to assert this claim in the second amended petition. Nevertheless at the close of evidence in the habeas trial, it was abundantly clear that no evidence had been adduced to support this allegation. Petitioner's counsel, therefore, could have had no good faith basis to continue to pursue a claim that the prosecutor knowingly used perjured testimony. Under these circumstances, counsel's professional obligation to the court mandated that this claim be withdrawn notwithstanding petitioner's desire to the contrary, and failure of counsel to do so contravened the Rules of Professional Conduct. This court cautions petitioner's counsel that similar action in the future may entail court imposed sanctions or referral to the Statewide Grievance Committee.
Based on all the foregoing, judgment shall enter denying the petition for a writ of habeas corpus. Petitioner's counsel shall prepare and file the judgment file within thirty days.