Opinion
No. CV 07 4001523
September 8, 2011
Memorandum of Decision
After a jury trial in 2003, the petitioner was convicted of sexual assault in the first degree-sexual assault in the third degree, and two counts of risk of injury to a child. The charges arose primarily from the petitioner's alleged sexual abuse of his daughter when she was between eight and twelve years of age. The court, Scarpellino, J., sentenced the petitioner to forty-five years suspended after thirty-five years in prison. The Appellate Court affirmed. State v. Thomas H., 101 Conn.App. 363, 922 A.2d 214 (2007). The petitioner has now filed a petition for a writ of habeas corpus alleging that he was not competent to stand trial and that his trial and appellate counsel were ineffective. As explained below, the court grants the petition.
I
The Appellate Court recited the following facts that the jury could reasonably have found. "Between August 1997, and May 2000, the defendant and his four daughters lived together in a condominium. The victim and her twin sister were the defendant's oldest children. The children's mother had left the family shortly after the birth of the youngest daughter.
"As a result of complaints by neighbors about the squalid physical condition of the defendant's condominium, the children came to live with their grandmother in May 2000. [footnote 2: "The defendant subsequently agreed to the termination of his parental rights to all four children."] In August of that year, because the grandmother found herself unable to continue to care for them, she relinquished custody to the commissioner of the department of children and families. The department placed the victim in a series of foster homes and ultimately in a so-called safe house. During this time, the victim was treated by two therapists, Susan Gagnon and Noel Federle. The victim told each of these two women and her grandmother that the defendant had assaulted her both physically and sexually." Id., 365-66.
II
In count I, the petitioner alleges that he was not competent to stand trial because the department of correction (department) discontinued his antidepression medication. The petitioner also contends, in count II, paragraph 1, that his trial counsel, attorney Louis Avitabile, was ineffective for failure to raise the issue of petitioner's incompetence before the court.
The respondent does not allege that the petitioner has procedurally defaulted by failing to pursue the incompetency claim on direct appeal. Therefore, the court considers this claim on the merits.
The court finds that, although the department did discontinue his antidepression medication during the time of trial, it did so appropriately because the petitioner was not exhibiting symptoms of depression at the time and there were no psychotic or cognitive problems. There are no indications in the medical record of any possible incompetency to stand trial. The fact is that "[a]n accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense . . ." (Internal quotation marks omitted.) State v. George B., 258 Conn. 779, 787, 785 A.2d 573 (2001).
There is also no indication from the trial record or the trial participants that the petitioner was incompetent. Neither party suggests that the state's attorney trying the case, who had an obligation to do justice and to protect any conviction that she obtained, ever expressed any concerns in the trial court. Critically, the petitioner does not cite any instance in which the trial judge, who had an independent obligation to raise the issue of incompetence sua sponte; see State v. Johnson, 253 Conn. 1, 22, 751 A.2d 298 (2000); ever questioned the petitioner's competence, despite the fact that the trial judge saw the petitioner in court throughout jury selection and during all seven days of trial. Accordingly, there is no basis to conclude that the petitioner was incompetent at trial or that Avitabile was ineffective in failing to raise this issue.
III CT Page 19142
The remainder of count II contains a series of specifications of alleged ineffective assistance of attorney Avitabile. "To determine whether the petitioner has demonstrated that [trial] counsel's performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . ." (Citations omitted; internal quotation marks omitted.) Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008). "It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
"The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment." (Internal quotation marks omitted.) Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 70. In this regard, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks' omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186, cert. denied 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) (quoting Strickland v. Washington, supra, 466 U.S. 688-90.)
IV
In paragraph 2 of count II, the petitioner claims that Avitabile should have recommended that the petitioner accept the state's offer of ten years to serve in exchange for a guilty plea by the petitioner, apparently to one or more counts of cruelty to persons. Counsel, however, is not required to make a plea recommendation in every case. See Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901 (2011) (quoting Purdy v. United States, 201 F.3d 41, 48 (2d Cir. 2000): "We think it unwise to read Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996), cert. denied, 521 U.S. 1118 (1997)] to have established a per se rule that defense counsel must always expressly advise the defendant whether to take a plea offer"). There is no claim here of bad advice. Cf. Ebron v. Commissioner of Correction, 120 Conn.App. 560, 564, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010). Nor did the petitioner, who took the stand at the habeas trial, testify that he would have accepted the offer if counsel had recommended it. Indeed, the petitioner testified that he was opposed to any deals and would not accept a plea bargain. Accordingly, the petitioner has not proven deficient performance or prejudice on this claim.
In paragraph 3, the petitioner alleges that Avitabile should have filed a motion for a bill of particulars or a motion for a statement of essential facts. The state did file a long-form information that alleged in four counts that the petitioner committed sexual acts on the victim "on diverse dates between August 1997 and May 2000, at or near 140 Fulkerson Drive, Waterbury . . ." (Exhibit 1, pp. 11-12.) There is no showing that the state could have been more particular, as is commonly the problem in child sexual assault cases in which the victim's memory is imprecise and the offense is of a continuing nature. See, e.g., George M. v. Commissioner of Correction, 290 Conn. 653, 663 n. 4, 967 A.2d 179 (2009); State v. Hickey, 23 Conn.App. 712, 715, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1234, cert. denied, 501 U.S. 1252 (1991); State v. Blasius, 211 Coun. 455, 462-63, 559 A.2d 1116 (1989). Nor has the petitioner proven any prejudice from the lack of precision in the state's information. Accordingly, the court rejects this claim of ineffective assistance.
V
One of the petitioner's principal claims is that Avitabile insisted on reading to the jury a statement of the victim to a police officer in which the victim described the petitioner's sexual assault upon her. The respondent concedes that Avitabile's performance was deficient in this regard. The critical question is, therefore, one of prejudice.
On direct examination, the victim was reluctant to testify about the sexual assault. (Exhibit 1, pp. 144-47.) Ultimately, the prosecution succeeded in obtaining the court's permission to have the victim write down, in the presence of the jury, her answer to the question of what happened in an incident with her father that took place one evening shortly after a condominium association meeting. (Exhibit 1, pp. 147-54.) The court thereupon read the written note to the jury: "I got under the blanket and he got on top of me, and then he put his penis inside of me and started moving up and down. When he was done, he got dressed and left downstairs. I then got my clothes, and went upstairs." (Exhibit 1, p. 155.)
The Appellate Court approved the trial court's ruling in that regard. State v. Thomas H., supra, 101 Conn.App. 369-70. The Court also noted that "[t]he victim testified with precision that the final sexual assault occurred immediately after a condominium association meeting concerning the deplorable physical condition of the defendant's condominium." Id., 367 n. 3.
The state then elicited the victim's testimony that she did not notice any blood in her underpants, that this type of incident had happened more than once, and that she told a police officer that during the incident in question "something came out of [her] father's penis." (Exhibit 1, pp. 156, 162.) Next, a colloquy ensued in which the state obviously labored to get the victim to tell the jury that there was blood in her underwear:
Q [by the state]: "What did you tell the police about your underwear? Do you want to look at the statement again to refresh your recollection?
A [by the victim]: "No. I know what it says.
Q: "Do you remember?
A: "I know what it says.
Q: "You know what it says. So what did you tell the police about your underwear?
A: "There was something in it.
Q: "What sort of something? Do you want to check your statement?
A: "No.
Q: "What was on your underwear? Can you answer that question?
A: "I did.
Q: "I'm sorry, I didn't hear you. I really can't hear you. I'm sorry, can you please say louder what you told — what you just said?
A: "Blood.
Q: "Okay. Okay. Thank you. Did you have your period at that time?
A: "No.
Q: "Do you remember how old you were when this happened?
A: "Ten or eleven." (Exhibit 1, pp. 162-63.)
At the habeas trial, the petitioner sought to amend orally his petition to allege that Avitabile was ineffective in failing to object to this line of questioning by the state. The petitioner did not, however, specify the grounds on which Avitabile should have objected and the grounds are not readily apparent to the court from reading the transcript. The petitioner had a full opportunity to brief this matter in accordance with the scheduling order, which called for pretrial briefs two weeks prior to the trial date, but the petitioner did not take advantage of this opportunity. For all these reasons, the newly proposed claim is denied both on procedural grounds and on the merits.
On cross-examination, Avitabile sought to read into evidence the victim's April 23, 2002 statement to Detective Anthony Rickevicius of the Waterbury Police Department. The court denied permission on the ground that the statement was not in evidence. The state, understandably, then remarked that it "would not object to it being admitted as a full exhibit, if counsel wishes to have it done." The court accordingly stated that "if both parties want to agree, it can be a full exhibit." (Exhibit 2, pp. 53-54.) The statement became state's exhibit 2.
Avitabile proceeded to read the following statement to the jury: "My statement taken 255 East Main Street, voluntary statement. Date on top, April 23rd 2002. Case number 2002033945. I, the undersigned A.H. of . . . Waterbury, Connecticut, telephone number . . . being 13 years of age, born in Waterbury, on . . . do hereby make the following statement to Anthony Rickevicius, having been first identified as a Waterbury police detective. I, A.H., give the following statement to Detective Anthony Rickevicius of my own free will, and knowing that it can be used in a court of law at a later date. No threats or promises have been made to me. I would like to say I am 13 years old and attend the North End Middle School here in Waterbury. I want to tell the detective about the things my father Thomas [H.] did to me while I lived with him along with my sisters. I remembered things started when I was little. My father began to touch me on my breasts and vagina. He did this under my clothing. This went on a lot. And then he had sex with me. I remember one time he called me into his bedroom and told me to get undressed and get in bed with him. He had no clothes on. When I got on top, he — excuse me — when I got in bed, he got on top of me and put his penis in my privates. I remember some kind of liquid coming out of his penis, but I don't remember what color. I did what he told me, because I was afraid of him, and I also remember one time after my father had done this, there was blood in my underwear. I would take a shower afterwards. Back in February after DCF came to visit us, my father told me if I say anything, he would come and get me. I think he said they came because of something about the house being dirty. I have read this statement, and everything here is the truth." Avitabile then observed that the statement "doesn't indicate — it seems to indicate there may have been more than one time" and asked the victim "is that correct?" The victim responded: "Yes, sir." (Exhibit 2, pp. 54-55.)
The respondent did not call Avitabile as a witness at the habeas trial to explain why he would read this statement to the jury and ask the follow-up question. The respondent offers no strategic explanation for Avitabile's actions. Instead, the respondent properly and commendably concedes deficient performance.
Based on the court's independent review of the record, the only possible explanation for Avitabile's actions was to develop inconsistencies between the police statement and other testimony. During closing argument, Avitabile claimed that, contrary to the police statement, the state had indicated that A.H. did not remember saying anything about blood in her underwear. (Exhibit 7, p. 55.) Even if this claim were correct, however, it would not have helped the defense because the statement would then have reinforced the point that there was in fact blood in the victim's underwear. Continuing with closing argument, Avitabile suggested a second inconsistency: "in State's Exhibit 2, her father is on top, and she may have told Miss Federle that she was on top . . ." (Exhibit 7, pp. 55-56.) Of course, these propositions may not necessarily have been inconsistent if they referred to different episodes or different portions of the same episode.
In fact, the claim does not appear to be correct because, as the testimony quoted above reveals, the victim ultimately admitted on direct examination that there was blood in her underwear.
Thus, there was no valid, strategic reason or any reasonable explanation for Avitabile's actions in introducing the victim's police statement or in asking the follow-up question about how many times the incident occurred. Indeed, the court's review reveals that Avitabile's actions were bizarre in that he was assisting the prosecution more than the defense. This case is truly one in which "counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment." (Internal quotation marks omitted.) Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 70. The court accepts the respondent's concession of deficient performance.
The court also finds prejudice. The respondent argues that the police statement was cumulative of the victim's direct testimony. This point is true to some degree. However, the police statement adds the fact that the petitioner began to touch the victim's sexual organs when she was little and that this behavior "went on a lot." More importantly, the police statement, unlike the direct testimony, contains the whole story in one apparently seamless narrative. It shows none of the reluctance that the victim displayed on direct examination. The language — for example, "I remember some kind of liquid coming out of his penis but I don't remember what color" — is at times graphic. The exhibit bears the imprimatur of an official police statement. The jury had the exhibit in the jury room to read and examine during deliberations. Under these circumstances, the exhibit was highly damaging to the defense.
Furthermore, the case was a close one. The matter was primarily a credibility contest in which the victim "was the crucial witness against the defendant on each of the charges of which he was convicted." State v. Thomas H., supra, 101 Conn.App. 367. The lone piece of physical evidence was the testimony about blood in the victim's underwear. On direct, the victim's testimony was halting and uncertain in recognizing this point. Much of this uncertainty was resolved when Avitabile read the jury the victim's statement to the police that "I remember one time after my father had done this there was blood in my underwear."
The state took proper but full advantage of the police statement during closing argument. First, the state reminded the jury that "[y]ou will have a voluntary statement that's been referred to. The one that Detective Rickevicius took. You can accept that as you can accept any evidence that is a full exhibit in the jury room, in the same way as you would spoken evidence here." (Exhibit 7, p. 23.) Then the state addressed the critical issue of corroboration. "We don't like to think about people like Mr. [H.] sexually molesting their little girls. It's very threatening, and we would much rather think that somebody else put her up to it, or that she made it up out of whole cloth. The problem is this. We have information which corroborates it. It's not like DNA. It's not as clear as that. But we do have that information.
"When you look at AH's statement to the police officer, you'll see that she talks about how after one time that that happened, she had blood on her underpants." (Exhibit 7, p. 24.)
Finally, on the element of penetration, the state told the jury that "we have her testimony that there was penetration, and we have, in my submission, based on her testimony, that is to say, in the police report, I'm sorry, the police statement, we have the reference back which will explain, now, in a way that it wasn't with Dr. Rokowsky, that, in fact, there was penetration, there was blood, and you can take those matters into consideration in deciding whether you find, beyond a reasonable doubt, that, in fact, Mr. [H.] subjected her to sexual intercourse." (Exhibit 7, pp. 32-33.) Although the state's remarks were based on the exhibit that Avitabile had introduced into evidence and thus were fully legitimate under the rules, the damaging effect of these remarks is hard to deny.
To make matters worse for the petitioner, Avitabile then reread the police statement to the jury during his closing argument. As discussed previously, Avitabile's efforts to elicit inconsistencies between the statement and other testimony focused on obscure or nonexistent contradictions. (Exhibit 7, pp. 55-56.) Undoubtedly, the damage to the petitioner's case of reminding the jury of the victim's graphic description of the petitioner's sexual assaults outweighed any minimal benefit that Avitabile achieved for his client.
Finally, the evidence of blood in the victim's underwear, which the police statement documented, was apparently a critical issue for the jury. During deliberations, the jury asked two questions: 1) "what was the date of the blood in the underwear incident; and 2) what was the date of the subsequent doctor's visit for the above situation." (Exhibit 7, p. 136.) The court answered the jury's question by telling them that the doctor's visit occurred on May 29, 1998 and that the blood in the underwear occurred the previous month. Approximately one hour later, the jury returned a verdict of guilty on all counts. (Exhibit 7, pp. 136-43.) Based on all of these circumstances, the court concludes that "there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . ." (Citations omitted; internal quotation marks omitted.) Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 70.
In paragraph 6, the petitioner alleges that Avitabile called Michael Rokowski, a pediatrician, as a witness and that Rokowski could not exclude sexual assault as a cause of the blood found in the victim's underwear. The petition is unclear whether it is claiming ineffective assistance in that regard or it is just providing narrative. Further, the petition provides no transcript cite for the proposition that Rokowski could not exclude sexual assault and it is unclear to the court to what testimony the petition refers. Rokowski did testify that there were no bruises, tears, or other evidence of trauma to the vaginal area and that, as a mandated reporter, he saw no reason to make a report of child abuse. (Exhibit 5, pp. 6-7, 19-22.) Because this testimony supported the defense case, and the petitioner has not identified any specific damaging testimony, it was not ineffective for Avitabile to have called Rokowski as a witness.
VI
The other troubling issue concerns the "dream defense." The Appellate Court described this matter in terms of "the victim's testimony about a conversation with her grandmother in which the victim alluded to an event of sexual abuse by the defendant on the victim and on her cousin by her uncle." State v. Thomas H., supra, 101 Conn.App. 367. The Court added: "[t]hroughout a good deal of the trial, the evidence was unclear whether the victim was describing a dream or her memory of an actual occurrence in 1992." Id.
The evidence is indeed very confusing. Avitabile's questions, statements, and attempted explanations to the court are rambling, imprecise, and unfocused. The petitioner's failure to file a brief in accordance with the scheduling order in this case, which might have helped identify the portions of the transcript and clarify the claims, has further hampered the court's review.
Avitabile first attempted to offer evidence of the victim's dream during his cross-examination of Mary H., the defendant's mother, at the beginning of trial. The court sustained the state's objection and Avitabile did not pursue the matter further with that witness. (Exhibit 1, pp. 52-53.)
The issue arose again on Avitabile's cross-examination of the victim. Again the state objected and a long colloquy ensued outside the jury's presence. (Exhibit 1, pp. 169-70.) The state and the court expressed concern, if not incredulity, about Avitabile's actions because normally it is the state that presents prior misconduct of the defendant. (Exhibit 1, pp. 174-75.) Avitabile at various points explained that the purpose of his offer was to show that the victim had made a false allegation or that the victim had dreamt, rather than actually experienced, the misconduct. (Exhibit 1, pp. 170, 182.)
After that colloquy, Avitabile proceeded to elicit from the victim that she had a dream about a sexual assault by her father unrelated to the incident for which he was charged. (Exhibit 1, p. 190.) Avitabile then raised the subject in passing once more with the victim and once with Susan Gagnon, a therapist. (Exhibit 2, pp. 44-45, 173-74, 176.)
In the latter instance, it was the state that brought out that the victim may have dreamed about the matter. (Exhibit 176-77.)
When Avitabile recalled Mary H., the victim's grandmother, in his case, Avitabile requested, with the jury out, that the court allow him to go into the details of the prior incident. (Exhibit 5, p. 128.) The state then warned Avitabile: "[t]he danger of doing that, Your Honor, is that it suggests — and the dream — is that Mr. [H.] was a participant in that matter, and certainly the state will adduce evidence that the defendant, Thomas Halloway, pled guilty to an assault on his daughter. If the defense wishes to go there, then they should do so with their peril." (Exhibit 5, pp. 133-34.) Undeterred, Avitabile elicited from Thomas H., with the jury back, that the victim had told her that her father and her uncle had taken the victim and her cousin into a wooded area where they had sexually assaulted them. Thomas H. further testified that the uncle had been convicted of assault in the second degree in connection with this incident. There was no reference to a dream at this point. (Exhibit 5, 142-44, 147.)
Avitabile's performance was clearly deficient. Evidence of a defendant's prior sexual misconduct is obviously sensitive evidence that would normally come in only when offered by the state, usually over the defendant's objection, and only under very limited conditions defined by our case law. See State v. DeJesus, 288 Conn. 418, 472-74, 953 A.2d 45 (2008). The purpose of these conditions is to ensure that the probative value outweighs the undeniable prejudicial effect of this evidence. Id., 473-74. In the present case, there is no clear indication that Avitabile ever succeeded in establishing any probative value in the 1992 incident. Indeed, Avitabile only mentioned it in passing during closing argument. (Exhibit 7, pp. 50-52.) On the other hand, testimony that the defendant sexually abused his daughter prior to the charged sexual misconduct with the same victim was highly prejudicial evidence that showed that the defendant "had a propensity to engage in aberrant and compulsive criminal sexual behavior." Id., 422. Avitabile may have attempted to erect a straw man and shoot him down, but the dangers of doing so clearly outweighed the benefits. Here again, Avitabile on this matter acted more like a prosecutor than defense counsel.
An additional problem is that the jury could have concluded that, because the victim dreamed about the abuse, it must have been real. At the habeas trial, the petitioner called a psychiatrist who dispelled this notion by testifying that dreams relate to reality in a very disguised form and that they are not a literal recollection of what actually happened. Avitabile could have called such an expert, but failed to do so. For all these reasons, the court finds that the petitioner has proven deficient performance.
On balance, however, the court concludes that the petitioner has not proven prejudice. The petitioner's prior sexual abuse of the victim was a matter that was already in evidence, albeit largely because of Avitabile's introduction of state's exhibit 2. Further, although the state during closing argument referred to the dream evidence as a possible cause of the victim's post traumatic stress disorder (PTSD), it never argued that, because of the petitioner's prior sexual abuse of the victim, he had a sexual propensity or that it was more likely that he committed the charged sexual abuse. (Exhibit 7, pp. 21, 37.) Finally, the court twice instructed the jury that the state must prove that the alleged crimes occurred between August 1997 and May 2000, thus reducing the import of an incident that occurred in 1992. (Exhibit 7, pp. 99, 109.) For these reasons, the court concludes that it was not reasonably probable that the introduction of the dream evidence led to a different result in this case.
The Connecticut appellate courts do not recognize an ineffective assistance of counsel claim based on the cumulative effect of deficient performances. See, e.g., Diaz v. Commissioner of Correction, 125 Conn.App. 57, 72, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).
Ironically, Avitabile objected to the court providing the traditional instruction on prior misconduct evidence. (Exhibit 7, pp. 9-10.)
The petitioner makes the related claim that Avitabile was ineffective in failing to recall Waterbury Detective Cassada to testify about the contents of the victim's statement to him. In that statement the victim recounted that "her therapist stated that because she had a dream about some type of sexual conduct that it did in fact happen. Her therapist stated that because she was now in a safe place her brain relaxed and unblocked her past sexual trauma. Therefore her dream about the sexual conduct must have happened since she dreamt it." Petition, paragraph 6.
The petitioner does not presently clarify the purpose for offering this statement. If it was for the truth, then it was inadmissible as double hearsay. If it was to show a prior inconsistent statement it was likely to be inadmissible as well. When recalled by Avitabile as a defense witness, the victim did not remember the contents of this statement. (Exhibit 6, pp. 30-33.) Although ordinarily that failure in memory would allow for extrinsic evidence of a prior inconsistent statement to impeach credibility; see State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988); in this case, the statement contained a second level of hearsay. The court would have had full discretion to exclude the statement on the ground that the petitioner was not attempting to impeach credibility but was instead attempting to use the statement substantively. Therefore, the court cannot fault Avitabile for failing to recall Cassada.
VII
The petitioner alleges in paragraph 11.A.1 that Avitabile should have introduced evidence that during the time frame in question she was being assaulted by James Morris, an employee at her day care center, in order to rebut the state's contention that the victim's PTSD was caused by the petitioner's actions. The petitioner does not explain how this evidence would have been admissible under the rape shield statute; General Statutes § 54-86f, or how Avitabile would have proved this allegation, given that the charges against Morris were only pending at the time. (Exhibit 2, p. 157; Exhibit 11.) In any event, on cross-examination of Susan Gagnon, a licensed clinical social worker who treated the victim in 2000 at a hospital outpatient program; (Exhibit 2, pp. 125-29); Avitabile did elicit the victim's disclosure that other men had abused her in her father's house. (Exhibit 2, p. 163.) Thus, there was no ineffective assistance in this regard.
In contradictory fashion, the petitioner alleges, in paragraph 9, that it was ineffective for Avitabile to elicit this testimony and to raise an "outrageous claim defense." The gist of such a defense is that the victim has made so many charges of sexual abuse that they are no longer credible. As the state acknowledged, however, this approach is a recognized defense strategy. (Exhibit 2, p. 158.)
In paragraph 11.B.2, the petitioner alleges ineffective assistance in Avitabile's failure to object to certain portions of the direct testimony of Jennifer Avenia, a licensed clinical social worker for the department of children and families (DCF). The two most objectionable portions of her direct examination occurred when the state improperly elicited from her that the DCF record — which was admitted without objection as a business record — revealed that AH had alleged in 2000 that her father had sexually abused her and that AH had made a disclosure of sexual abuse to Noel Federle and Susan Gagnon in 2000-2001. (Exhibit 1, pp. 87-88, 94-95.) Avitabile failed to object on hearsay, relevance, or any other grounds.
The court, however, cannot conclude that this failure resulted in ineffective assistance. As a general matter, "[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). In this case, Avitabile, instead of objecting, was able to bring out on cross-examination that one of the allegations of sexual abuse was unsubstantiated. (Exhibit 1, pp. 119-20.) As to the other evidence of sexual assault complaints, no details emerged at this time. It is not clear that they refer to the charged crimes. If they did, however, the evidence that the victim had made undetailed reports of sexual abuse to others amounted to constancy of accusation testimony that could properly have come into evidence later in the trial, after the victim testified. See State v. Troupe, 237 Conn. 284, 304-05, 677 A.2d 917 (1996). Indeed, such evidence did come in later through Federle. (Exhibit 2, pp. 90-91, 109.) Although Avitabile did not request a limiting instruction at the time, the trial court at the conclusion of the trial properly instructed the jury that testimony that the victim reported the sexual abuse to Federle constituted constancy of accusation testimony which was "admitted solely to corroborate or not corroborate her testimony in court . . . [I]t is not to be considered by you to prove the truth of the matter asserted in those out of court statements." (Exhibit 7, pp. 100-01.) Given these facts, Avitabile's failure to object did not ultimately change what happened at trial.
The court has examined the other instances in which Avitabile allegedly should have objected. Contrary to the petitioner's claims, in none of them did the witness cross the line and offer "expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse . . ." (Internal quotation marks omitted.) State v. Favoccia, 119 Conn.App. 1, 18-19, 986 A.2d 1081, cert. granted, 295 Conn. 909, 989 A.2d 604 (2010).
The penultimate claim of ineffective assistance of trial counsel is in paragraph 11.B.5, in which the petitioner alleges that Avitabile failed to object to portions of the expert opinion testimony rendered by Jennifer Avenia and Noel Federle. The court has previously noted and rejected the claim concerning Avenia. Federle was a licensed clinical therapist who served as the director of a therapeutic home in which A.H. was placed from October 2000 to June 2002. (Exhibit 2, pp. 70-80.) The court has reviewed the portions of the testimony that the petitioner cites as examples of Avitabile's failure to object. Here again, in no case did Federle render an opinion vouching for the credibility of the victim's complaint of sexual abuse. Cf. State v. Favoccia, 119 Conn.App. 1, 18-19, 986 A.2d 1081, cert. granted, 295 Conn. 909, 989 A.2d 604 (2010).
The petitioner for some reason makes no claim of ineffective assistance based on Avitabile's request that Federle disclose the contents of A.H.'s disclosure. These details would ordinarily be inadmissible under the constancy of accusation doctrine. See State v. Troupe, supra, 237 Conn. 304-05. When asked, Federle replied: "All revealed to me that her father used to make her climb on top of him and quote, unquote, have sex with me. She stated that it happened frequently, and over a long period of time, but she wasn't specific." (Exhibit 2, p. 109.) This testimony was obviously damaging to the defense.
Finally, the court has examined the claims of ineffective assistance in paragraphs 11.B.1, 11.B.3, and 11.B.4 of the petition and concludes that there is no merit to these claims.
VIII
In count III, the petitioner alleges ineffective assistance of appellate counsel, Joaquin Borges King, for failing to raise on appeal the issue of whether Avenia and Federle rendered improper expert opinions. King could not have presented this issue, however, because Avitabile did not object, and the matter is purely one of state evidentiary law that cannot be raised for the first time under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or plain error. See State v. Antwon, 118 Conn.App. 180, 197-98, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010). Therefore, there was no ineffective assistance of appellate counsel.
IX
The petition for a writ of habeas corpus is granted. Judgment shall enter for the petitioner vacating the conviction and sentence in docket No. CR02-0311968-T and restoring the case to the superior court docket for further proceedings in accordance with law. If the respondent appeals, it shall submit a judgment file within thirty days of the date of this decision.
The delay in prosecuting this habeas case is unacceptable. Petitioner's counsel filed his appearance on June 25, 2007. There is no activity in the file until March 18, 2009. A scheduling order was finally entered on January 7, 2010 calling for trial on October 1, 2010. Trial began on that date. Just prior to trial, the petitioner asked for permission, which the court granted, to convene a second day of trial. On November 18, 2010, after the parties submitted briefs, the court rendered a written decision on some admissibility issues that would affect the second day of trial. Thereafter, the court proposed several dates to reconvene the trial, but counsel could not both make themselves available. Petitioner's counsel did not file any request for expedited resumption of the trial.
Petitioner's counsel, undoubtedly aware of the strength of the petitioner's claims in this case, should have pressed harder for completion of the habeas trial. His client, whom the court has concluded did not receive a fair trial, has been incarcerated over this entire time period. The court intimates no view on the merits of the underlying criminal charges other than that it is possible that the petitioner is not guilty. Under these circumstances, petitioner's counsel should have at least made some efforts to advance this case. The delay in this case is completely contrary to the statute governing habeas matters, which provides that the "court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts or issues of the case . . ." General Statutes § 52-470(a).
It is so ordered.