Opinion
No. CV 05-4000278 S
May 28, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner has brought this amended habeas corpus petition alleging that his incarceration is illegal because his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the Connecticut and the United States constitutions. The petitioner additionally alleges that he is actually innocent. Respondent's return denies petitioner's material allegations and that he is entitled to habeas corpus relief. Additionally, the return raises the affirmative defense that petitioner has procedurally defaulted. Petitioner did not file a reply to the return.
The matter came before the court on June 14, 2007 and September 11, 2007, for a trial on the merits. Witnesses included Assistant State's Attorney Cornelius Kelly, Department of Children and Families (DCF) Worker Cynthia Pfeiffer, Dr. Suzanne Sgroi, Mary Ruiz, Samantha Ruiz, the petitioner himself, Dr. Ronald Anderson, and attorney Michael Blanchard. Additionally, the court has considered the documents entered into evidence. The court permitted post-trial briefing, and the parties' briefs were filed on December 20, 2007. Based on the court's review of the testimony and evidence, judgment enters granting the habeas corpus petition only as to count one.
FINDINGS OF FACTS CRIMINAL TRIAL
The petitioner was the defendant in State v. Michael Torres, Docket Number CR 03-192589 in the Judicial District of Fairfield at Bridgeport, wherein he was charged with: Sexual Assault in the First Degree, in violation of General Statutes § 53a-70, and Risk of Injury to a Minor, in violation of General Statutes § 53-21. The petitioner was represented by attorney David Abbamonte and elected a trial by jury.
"On the basis of the evidence presented at [the criminal] trial, the jury reasonably could have found the following facts. At the time of the underlying crime, the victim was four years old and lived with her mother, her older brothers and the defendant. On May 14, 2002, the victim's mother gave birth to the defendant's son. At the end of May 2002, the victim complained to her mother that her "butt" hurt. Because the child's vagina was irritated and red, her mother took the victim to a pediatric clinic where she was a known patient. Elaine Ingram, a public health nurse at the clinic, noticed a brown, green, yellow, foul smelling stain in the victim's underwear. A wet mount culture of the child's vaginal area tested positive for trichomonas, a sexually transmitted disease. Trichomonas is a protozoa that lives in the urinary tract or prostate of males and in the vagina or urinary tract of females.
"Ingram suspected that the victim had been sexually abused and therefore reported the incident to the department of children and families (department). Cynthia Pfeifer, an investigative social worker with the department, was assigned to the case. According to Pfeifer, the victim told her that no one had ever touched her private parts. Pfeifer requested that everyone in the family be tested for trichomonas. The victim's mother tested positive for the disease, but the other members of the victim's family did not. In June 2002, the defendant left the victim's household. Pfeifer telephoned the defendant and asked that he come to see her on July 29, 2002. When she saw the defendant, Pfeifer arranged for him to be tested for trichomonas, but he did not keep the appointment. In August 2002, Tawanda Ebron, a treatment worker with the department, was assigned to the case. She repeatedly attempted to contact the defendant by leaving telephone messages for him, but she never talked with him.
"When the victim was in kindergarten, her mother gave permission for the child to attend a 'good touch-bad touch' presentation. A day or two after the presentation, the victim's mother discussed the presentation with the child, who revealed that the defendant had touched her. The victim cried when she told her mother what the defendant had done to her. According to the victim, the incident happened in her mother's bedroom while the mother was at a store. At trial, the victim testified that the defendant 'put his thing in my privates.' She demonstrated to the jury with anatomically correct dolls what had transpired between her and the defendant, including the removal of certain garments. The victim told the jury that because the defendant did that to her, she had to go to a doctor. The victim acknowledged that at school, she had learned about good touching and bad touching and feeling safe and not feeling safe. According to the victim, what the defendant had done to her was a bad touch. On cross-examination, the victim responded affirmatively when defense counsel asked her if the defendant's 'thing' went inside her body.
"Janet Murphy, a pediatric nurse practitioner, is affiliated with the child sexual abuse evaluation program at Yale-New Haven Hospital. She examined the victim in 2002. Murphy's physical examination of the victim's genital area was normal, and the victim said 'no' when asked if anything had happened to her. Murphy explained that, typically, a child of the victim's age cannot explain to a professional how the sexual abuse occurred. Furthermore, it is not uncommon for the results of the examination of the genitalia to be normal, even for children who are able to provide specific information about things having been put inside different parts of their bodies. The state placed into evidence two exhibits depicting a generic sketch of the female genitalia, which Murphy explained to the jury. With the aid of the exhibits, Murphy testified as to how the genital area of a young girl may be penetrated without affecting or touching the hymen.
"Lisa Melillo-Bush, a school psychologist and forensic interviewer, testified about children's delayed disclosure of sexual abuse. According to Melillo-Bush, a four-year-old is not expected to have knowledge of sexual activity, and a child would not know that she had been abused until she learned what abuse was. Melillo-Bush also testified that conceptually, children have difficulty relating time and space.
"The defendant, who was thirty years old at the time of trial, was the only defense witness. He testified that he did not put his penis in the victim's vagina or ever attempt to do so. He also testified that he never put the victim in the position she demonstrated with the anatomically correct dolls and that he did not sexually abuse her.
"After the presentation of the state's evidence, the defendant moved for a judgment of acquittal as to the charge of sexual assault in the first degree. The defendant based his motion for a judgment of acquittal on what he perceived to be the lack of evidence of penetration because the only evidence of abuse was the victim's testimony. The court denied the motion. The jury found the defendant guilty, and the court sentenced him to thirty years incarceration execution suspended after twenty years, with fifteen years of probation." State v. Michael T., 97 Conn.App. 478, 480-83, 905 A.2d 670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006).
On appeal, the petitioner ". . . claim[ed] that he was deprived of a fair trial because the court improperly instructed the jury with respect to (1) the penetration element of sexual assault in the first degree and (2) the date of the offense." Id. at 479. The Appellate Court affirmed the judgment of the trial court.
HABEAS TRIAL
At the habeas trial, Senior Assistant State's Attorney Kelly, who successfully prosecuted the petitioner, testified that Abbamonte died several years ago. Kelly further testified that he, consistent with his practice, made a copy of everything in his file and provided it to Abbamonte. A video tape of the child's forensic interview was also provided to Abbamonte once it became available to Kelly and a blank tape for copying was provided by defense counsel.
The habeas court also heard testimony from DCF employee Cynthia Pfeifer, who was the investigative social worker in the child's case. Pfeifer first spoke with the child when the child was about four years old. Pfeifer testified that the basis for DCF's investigation was Dr. Bou-Khalil's report to Pfeifer that trichomonas is transmitted only from penis to vagina. Pfeifer testified that it was difficult to establish whether the child knew the difference between a truth and a lie because the child was not able to name numbers and colors. Pfeifer testified that the child mentioned a person named Carol living in the home, although in fact there was no such person residing there.
The report made by Pfeifer as part of the investigation contained an entry concerning masturbation. Pfeifer indicated that a follow-up phone call from the pediatrician mentioned that the victim masturbated. Pfeifer testified that for a child that age, the behavior could be self-exploratory or learned behavior.
Pfeifer additionally testified that when she met with the child for the second time, the child indicated that persons named Felix, David, Johnnie and Destiny had touched her. Pfeifer thereafter spoke with the child's mother to determine who these persons were and whether they had touched her. According to the child's mother, the named persons were schoolmates.
On cross examination, Pfeifer stated that the condition of the child's house was that there was a lot of clutter and laundry in the kitchen. Pfeifer remembered a dirty laundry odor throughout the house. Pfeifer also testified that the information that the victim masturbated was provided by the child's mother to the pediatrician. Pfeifer responded that it would not seem unusual for a child with irritation accompanying trichomonas to be touching herself a lot in the genital area.
Both the petitioner and Maria Ruiz testified at the habeas corpus trial as to the living conditions in the house at the time the child became infected with trichomonas. The petitioner testified that the house was dirty and that the laundry used to pile up so that there would about a month's worth of laundry accumulated in piles. According to the petitioner, because there was no washing machine in the house, he and the child's mother would take the laundry to her mother's house once a month to wash the laundry. The petitioner testified that as the supply of clean towels were used up, towels were shared by members of the household. Maria Ruiz also testified about the piles of dirty laundry and generally unsanitary living conditions.
Dr. Suzanne Sgroi, a licensed physician who at different times has specialized in the treatment of sexually transmitted diseases and childhood sexual abuse, provided expert testimony on sexually transmitted diseases and investigative techniques employed in childhood sexual abuse cases. Dr. Sgroi's professional experience includes training law enforcement officers on assessment and investigation of child abuse, neglect and sexual abuse; consulting to the Bridgeport Child Guidance Clinic's sexual abuse team; for twenty years performed contract work for DCF providing training and consultation for traumatized, neglected and sexually abused adolescent girls; and for thirty years performed contract work training DCF staff on investigation of complaints of child sexual abuse, particularly with regard to investigative interviewing of children. Dr. Sgroi was qualified as an expert in child sexual abuse and venereal disease. The court finds the testimony provided by Dr. Sgroi during the habeas corpus proceeding, as discussed below, to be highly credible.
The court notes that Dr. Sgroi also produced an eleven-page report for petitioner's habeas counsel. See Petitioner's Exhibit 12. Dr. Sgroi's testimony at the habeas corpus proceeding, as discussed below, mirrors this report. Dr. Sgroi was asked by petitioner's counsel ". . . to comment on two separate aspects of the evidence presented by the state in Mr. Torres' 2004 trial: First, on the possibility that a child might acquire a vaginal infection with Trichomonas vaginalis through a non-sexual mode of transmission; second, on the reliability and credibility of the methods used to elicit a report of alleged sexual abuse from the victim in State of Connecticut v. Michael Torres." Petitioner's Exhibit 12, at pg. 1.
As to the first question, Dr. Sgroi concluded it was her ". . . impression, based on [her] own clinical experience and medical literature review, . . . that non-sexual transmission of Trichomonas infections to female children is possible and sometimes does occur. In this case, the DCF records indicated that the nurse at the [child's] school was concerned about dirty under garments and strong-smelling urine (both symptoms of a possible vaginal infection) as early as May 20, 2002. Less than one month after [the child's] Trichomonas infection was documented on May 31, 2002, her mother also was diagnosed with a Trichomonas infection. This means that there was an opportunity for [the child's] infection to have occurred through non-sexual household contact. I believe that it would have been helpful to the jury to have this point explained by an expert defense witness in State of Connecticut v. Michael Torres." Id., at pg. 6.
As to the second question, Dr. Sgroi concluded ". . . the documents and videotape reflect that there were a variety of problems with the way in which the victim in this case was interviewed, both by professionals and by her mother. Without the benefit of explanation and clarification by a defense expert, I think it would be very difficult for lay persons in a jury to discern how all of these complicating and contaminating factors could have affected the victim's reports and trial testimony." Id., at pg. 11.
Dr. Sgroi testified that trichomonas is a very common organism that survives by getting its nutrients from the human body. However, trichomonas is able to survive outside the body for up to eight to ten hours. According to Dr. Sgroi, it has been possible to isolate living trichomonas organisms for up to eight to ten hours after they have been deposited on a towel or a toilet seat. Dr. Sgroi also testified that there have been reports that trichomonas could be cultured from either swimming pools or bathtubs used by infected persons. Additionally, trichomonas can infect women's urine if there is enough vaginal discharge to contaminate the urine. Dr. Sgroi further testified that a person may harbor the trichomonas organism and not show any symptoms of an infection. Dr. Sgroi testified that she has encountered trichomonas very frequently in adults. During more than thirty years of treating patients infected with trichomonas, Dr. Sgroi saw a minimum of ten to twelve cases of trichomonas in little girls.
Dr. Sgroi in detail summarized the chronology of events pertaining to the child in the instant matter. Toward the end of May 2002, the child's teacher and a school nurse became concerned about an odor emanating from the child's soiled undergarments. A letter was either dated or sent May 20, 2002 to the child's home and arrived on or about May 22, 2002. The child's mother thereafter took the child on May 29, 2002 to a pediatric clinic for an examination by Dr. Mack. The pediatric clinic then sent the child to the Bridgeport hospital emergency room for a more complete examination. These examinations ultimately resulted in the matter being referred to DCF, which initiated its investigation.
DCF worker Pfeifer spoke to the head teacher at the child's school. The teacher reported that the child attended school regularly, but that there were great concerns regarding the child's hygiene. The teacher indicated to Pfeifer that the child's undergarments were filthy and that the child urinated on herself from the time that she began attending the school in September of 2001. Additionally, the teacher reported that the child was afraid to go to the bathroom alone. Dr. Sgroi pointed out that the significance of the information and timeline reported by the teacher to Pfeifer was that the child had urinary/vaginal symptomology documented at least as early as September of 2001, about eight (8) months prior to the school's letter that arrived May 22, 2002. Thus, according to Dr. Sgroi, the child had symptoms at least since May 20, 2002, sought help on May 29, 2002, but possibly had symptoms as early as September of 2001.
Although the child had been seen on May 29, 2002 at the Bridgeport emergency room, she had not received treatment at the hospital. On May 31, 2002, the child's mother brought her back to Dr. Mack's office because the child continued to have symptoms. Dr. Bou-Khalil, the pediatrician who examined the child on May 31, did a wet preparation, which involves taking a specimen of the discharge and, after preparing the slide, viewing it under a microscope. Dr. Bou-Khalil observed trichomonas organisms in the wet preparation slide. Dr. Bou-Khalil identified trichomonas as a sexually transmitted disease and indicated that the only way that trichomonas is transmitted in people is only from contact of the penis and the vagina. As a result of her observations and conclusions, Dr. Bou-Khalil contacted DCF and reported her findings and conclusions.
Dr. Sgroi testified further about the events that led up to Dr. Bou-Khalil's report to DCF on May 31, 2002 that the child had trichomonas likely resulting from penile penetration. DCF worker Pfeifer utilized Lisa Bowen, a registered nurse in Pfeifer's office, to learn more information and interpret findings in cases that have medical findings. Bowen contacted both Drs. Mack and Bou-Khalil and spoke to them. Bowen asked Dr. Bou-Khalil if she saw any evidence of penetration. According to Dr. Bou-Khalil, there was no evidence that confirmed penetration, but that penetration could not be ruled out because the only way to get trichomonas is through penetration. Dr. Sgroi interpreted from a medical perspective Dr. Bou-Khalil's statement to mean that although there was no physical evidence from the May 31, 2002 genital examination demonstrating penetration, there nevertheless must have been penetration because of the trichomonas penetration. Dr. Bou-Khalil's statements to DCF presented precisely that inference.
According to Dr. Sgroi, Bowen also contacted the hotline for sexually transmitted diseases and A.I.D.S. sponsored by the Centers for Disease Control (CDC) in Atlanta, Georgia. The CDC provides treatment information, diagnosis information and provides answers to questions from both medical and non-medical personnel. Bowen called on June 7, 2002, to inquire about how trichomonas is transmitted. Bowen was told that there have been occasions where trichomonas has been transmitted between two people in non-sexual ways. For example, a child can become infected during birth when passing through the mother's birth canal. The hotline staffer also indicated to Bowen that there have been rare occasions where trichomonas infections occurred after contact with a warm, moist environment such as a bathing suit. Such infections can occur if there are flesh fluids from an infected person and the warm, moist environment serves as a means of transmission. The hotline staffer also indicated that protozoa such as trichomonas can live in chlorinated water, although this mode of transmission, as well as a garment or other material, is not well documented and is considered an uncertain mode of transmission. The CDC hotline staffer advised Bowen that trichomonas is usually contracted through genital-to-genital contact and penetration.
Dr. Sgroi also reviewed the testimony given by Dr. Allen during the underlying criminal trial. Dr. Allen had examined the child's mother on May 13, 2002, the day before she gave birth to a child. According to Dr. Allen's testimony, no tests were performed on the mother that would have shown the mother also had trichomonas. However, on June 24, 2002, the mother went to Dr. Allen for a six-week post-partum check up and asked to be checked for trichomonas. Dr. Allen determined after performing a Pap smear that there were abundant trichomonas organisms present in the mother.
Another doctor who testified at the criminal trial was Dr. Rao. According to Dr. Sgroi's understanding from her review of the trial transcripts, Dr. Rao testified as an expert witness on sexually transmitted diseases. Dr. Rao testified on direct examination during the criminal trial that the only known mode of transmission for trichomonas is sexual transmission. Petitioner's Exhibit 15, at pg. 21. Dr. Rao was then asked whether urine and semen could serves as modes of transmission. Dr. Rao responded that "If it is sexually transmitted, it [is] mainly through the semen. It is the contact or the deposition of semen. In literature it is seen in urine. There are tests available to identify main carriers who by collecting the urine to make sure if they have the disease or not it is seen in the urine, but as a mode of transmission it is rare." Id. This testimony by Dr. Rao was simultaneously unequivocal and qualified. Dr. Rao further testified on direct examination that while trichomonas can live in women for up to six months, in men it lives for a much shorter period, "around ten days or more," and then "just goes away." Id., at pg. 22. Dr. Rao emphasized that trichomonas is never seen in children, that it is only present "in children who have been abused." Id.
On cross examination by Attorney Abbamonte, Dr. Rao was questioned if there are non-sexual modes of transmitting trichomonas. Dr. Rao responded that he could not say that. Id., at 27. When asked whether a toilet seat could transmit trichomonas, Dr. Rao testified that such transmission could be found in the literature, but that just because it was reported in the literature was not an indication that this type of transmission can happen. Id., at 28. Dr. Rao elaborated on the quality of medical journals and, thereby, impliedly opined that medical journals that reported non-sexual modes of transmitting trichomonas were "trashy" journals, "tabloids" and "throw-away" journals. Id.
Dr. Rao did concede on cross examination that trichomonas has been found in urine and semen several hours after being deposited. Id. Dr. Rao also conceded that because trichomonas is a protozoa that propels itself with flagella, trichomonas could find its way from a toilet seat into a vagina. Id. Trichomonas cannot live long in a dry environment, according to Dr. Rao, but can live a lot longer in wet environments. Dr. Rao testified that trichomonas has been seen in urine and semen, but that it has never been documented in wet towels as a mode of transmission. Id., at 28-29. When questioned by attorney Abbamonte whether a woman who comes into contact with sperm and then touches another female can transmit trichomonas to another woman by some form of physical contact, Dr. Rao testified that this has never been documented.
Attorney Abbamonte asked Dr. Rao the following question: "Now, if [a female infected with trichomonas] comes in contact with sperm and then touches another female, say, with her hand or whatever, it could be passed on that way?" Id., at 29. Dr. Rao responded that: "It's never [been] documented to be transmitted in fomites. It has only been documented to be transmitted through a deposition of semen." Id. Dr. Rao further indicated he knew of no situation in which a female had passed trichomonas on to another female through the transmission of liquids, and answered in the affirmative when asked whether ". . . it's just sperm and seminal fluid that would cause [transmission]?" Id., at 30. Dr. Rao never indicated with more specificity on cross examination what the term "fomites" means and attorney Abbamonte did not question him regarding fomites, what fomites are and whether they can be a mode of transmitting trichomonas. On redirect examination, however, the very first question asked of Dr. Rao was what the term "fomite" means. Dr. Rao testified that "Fomites are your hands." Id., at 32. When asked whether a towel would be considered a fomite, Dr. Rao responded "No." Id., at 32-33.
Dr. Sgroi testified at length during the habeas corpus proceeding regarding Dr. Rao's testimony. According to Dr. Sgroi, Dr. Rao's testimony contained a number of errors, inaccuracies and misstatements. Thus, Dr. Rao's testimony that the only known mode of transmission for trichomonas is via sexual transmission was not accurate, as there have been cases involving non-sexual transmission. Also, Dr. Rao inaccurately testified that trichomonas is never seen in children unless they have been abused. Another inaccuracy was Dr. Rao's testimony that transmission via seminal fluid on a person's hand was possible from a man to a woman, but that transmission from a woman infected with trichomonas to another woman had not been documented. Dr. Rao in error referred to hands as "fomites," which according to Dr. Sgroi, instead are substances (e.g., towels, clothing, bedding, etc.) that can absorb and transmit an infecting organism or disease that then can infect another person.
Dr. Sgroi summarized her concerns about Dr. Rao's expert testimony as follows: ". . . number one, he says he has never seen or treated a child for a trichomonas infection, and number two, he seems to have a very narrow definition, far narrower than that by the Centers for Disease Control about how trichomonas can be transferred from one person to another, and he seems to have neglected females as a primary source of infection because in his testimony, he's essentially saying males can transmit it to females, but if female genital secretions, according to Dr. Rao, do not harbor the organism, then females can't transmit it to males, and I believe the position of the Centers for Disease Control is the opposite, that women are the primary source of infection because they can harbor the organism for up to six months whereas it is believed that in males, the organism, if it's present in the urethra is very self-limiting. The males usually do not have symptoms, and it's usually gone within six to twenty-eight days." Transcript (June 14, 2007), at pg. 30-31.
Dr. Sgroi additionally testified about her own experience since the 1970s with sexually transmitted diseases, in particular using them to help identify children who had been sexually abused. Dr. Sgroi testified that certain sexually transmitted diseases, such as gonorrhea, are very strong indicators of sexual abuse. Trichomonas is not such an indicator because of the potential for trichomonas to be transmitted via non-sexual modes of transmission. Dr. Sgroi has not considered trichomonas to be indicative of sexual abuse because there are varied plausible reasons for a child to have trichomonas infection unrelated to sexual abuse. Thus, according to Dr. Sgroi, a "child . . . living in the same home with somebody who had the infection, who wasn't all that careful about hygiene, perhaps because of not being careful about laundering towels or having community towels in the bathroom, perhaps because of washing the child in bath water already used by adults and the like." Id., at pg. 40.
Dr. Sgroi testified that the Academy of Pediatrics publishes guidelines for the evaluation of sexual abuse of children. These guidelines, updated by one of the academy's committees, are published approximately once every ten years, with the most recent guideline published in January 1999. The 1999 guideline shows that sexually transmitted diseases such as gonorrhea, syphilis, HIV and chlamydia are diagnostic of sexual abuse. Trichomonas is not diagnostic of sexual abuse, but sexual abuse is highly suspicious. The suggested action for these five sexually transmitted diseases is for the physician to report the condition to child protective services.
The January 1999 guidelines are petitioner's exhibit 3.
Dr. Sgroi proffered the following testimony, based on her experience and training and review of the materials and testimony, about her impression of how the medical information in this case was developed: ". . . Doctor Bou-Khalil from Doctor Mack's office set the tone for the entire investigation of suspected sexual abuse of [the child] not just by making her mandated report of suspected child abuse to the Department of Children and Families, which she was required by law to do, but also by saying definitively there is only one way this little girl could have acquired this infection. It is sexually transmitted. This could have happened only . . . with contact between the penis and the vagina. My impression is that although attempts were made to find out if there were nonsexual ways by which [the child] could have acquired the trichomonas infection, my impression is that both the DCF investigator and [the child's] mother were understandably quite convinced by Doctor Bou-Khalil's assertion that this is what must have happened. The records reflected that Ms. Lawson was questioning [the child] as early as the 29th of May 2002 about whether or not someone had touched her." Id., at pg. 43.
Dr. Sgroi further concluded, based on the child's developmental difficulties and very young age, that the child in this case was very susceptible to the accusatory approach utilized in the questions about who touched her. Dr. Sgroi examined the questioning performed to assess the impact of multiple interviewing on the child. Dr. Sgroi concluded, based on her review, that the repeated efforts to obtain information from the child were both accusatory and repetitive. Furthermore, these efforts included the child's mother sending the child to the Good Touch/Bad Touch class presented in the child's school so that the child would open up. Dr. Sgroi's review led her to conclude that the child's disclosure after the Good Touch/Bad Touch class was anything but spontaneous. The mother sent the child to the class with the specific goal of questioning the child afterward and, when the child provided answers about the class, the mother added leading information. This process of obtaining the disclosure, according to Dr. Sgroi, made it non-spontaneous and tainted the disclosure, which meant the disclosure did not have the necessary indicia of credibility and reliability it should have and was indicated to have had in this case.
Another critical flaw in the investigative process identified by Dr. Sgroi was the interview conducted by Ms. Vitulano on . . . During the interview the child provided extremely contradictory information, which Ms. Vitulano did not cross check and verify. The information provided by the child during the April 2003 interview was the cornerstone of the evidence that the petitioner sexually abused the child and a critical part of the arrest warrant application.
Dr. Sgroi proffered the following opinion concerning the procedures used by the various professionals to elicit the disclosure that the petitioner had sexually abused the child: ". . . the entire investigation was based on a false premise, and the false premise is that since [the child] had a sexually transmitted disease, a male must have put his penis in her vagina, which in turn created an accusatory context for all of the interviewing. Although . . . the professional interviewing by Ms. Vitulano was entirely adequate and [there appear] no significant errors of omission in the way she interviewed [the child], . . . it was an incomplete investigation process, and . . . there were significant errors of omission in that although a great deal of information was obtained from [the child], in April of 2003, no effort that was recorded and documented was made to clarify that information, clarify contradictions, be certain that the child was telling about events that really happened." Id., at pg. 80.
Additionally, Dr. Sgroi concluded that the interview protocol employed failed to sufficiently verify and clarify contradictory and at times unbelievable information provided by the child. Dr. Sgroi concluded that ". . . there was a significant amount of contamination that occurred prior to both MIT investigative interviews." Id., at pg. 81. Thus, according to Dr. Sgroi, ". . . the interviewing procedures were inadequate to the task of finding out was this child telling us a detailed, reliable, trustworthy account of alleged sexual abuse by [the petitioner]." Id., at pg. 82. Dr. Sgroi ultimately concluded that the investigation procedures were not trustworthy because of all the foregoing omissions. Id.
Attorney Michael Blanchard testified as an expert witness on the use of expert witnesses to assist the defense in a criminal trial. Attorney Blanchard testified that the proper preparation for a criminal trial involving charges of sexually assaulting a minor, in particular when the defendant denies the charges and will proceed to trial, necessitates the utilization of an expert witness both for trial preparation and during the trial itself. Attorney Blanchard was of the opinion that Dr. Sgroi's testimony, in particular the child's developmental delays, detailed analysis of the videotaped interview, multiple interviewing and possible coaching, as well as non-sexual modes of transmitting trichomonas, during the habeas corpus trial was so compelling and powerful that it should have been presented to the jury.
Additional facts will be discussed as necessary.
The court has assembled a time line of key events in this matter which is attached as an appendix.
DISCUSSION Procedural Default
Respondent's return raises the special defense of procedural default. Consequently, the court will first address that affirmative defense. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 738 n. 23, 937 A.2d 656 (2007) ("a habeas court should expressly address and resolve the threshold issue of procedural default when the issue has been raised as a defense").
Respondent avers that petitioner has procedurally defaulted by failing to pursue his claim of ineffective assistance of counsel in his previous petition for a writ of habeas corpus, docket number CV01-810230. Petitioner did not, in accordance with Practice Book § 23-31, file a reply. The purpose of the reply is to refute the claimed procedural default by ". . . alleg[ing] any facts and assert[ing] any cause and prejudice claimed [by the petitioner] to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition." Practice Book § 23-31(c).
The petitioner's pro se petition, sworn to under oath, specifically indicates that he has not previously filed any other habeas corpus petitions and does not identify any docket numbers. The amended petition filed by and through counsel avers in counts one and two that petitioner has not filed any prior habeas petitions concerning the claims in those counts. None of the evidence presented to this court sheds any light on to the issue of whether petitioner has, in fact, previously challenged his underlying convictions via a habeas corpus petition. However, given that petitioner was arrested in 2003 and convicted and sentenced in 2004, the court has little difficulty concluding that either the docket number CV01-810230 referenced in respondent's return, which predates even the charged offense dates of January though May of 2002, is incorrect or that procedural default was raised in error. Because there is absolutely no indication in the record that petitioner has previously challenged the convictions at issue by way of a petition for a writ of habeas corpus, the court concludes that the affirmative defense of procedural default was raised in error and is inapplicable.
See, e.g., Petitioner's Exhibit 17 (Tr. July 17, 2004), at pgs. 27 and 30.
The court further notes that the petitioner initiated this instant matter on January 19, 2005, approximately a scant four (4) months after being sentenced, while his direct appeal was pending.
Count one
In the first count of the amended petition, petitioner claims that attorney Abbamonte rendered deficient performance by failing to: utilize a subject matter expert at the pretrial stage of the case concerning the propensity, or lack thereof, of the petitioner to engage in sexual abuse of a child; utilize a subject matter expert at the trial on the issue of the reliability of the disclosure of the victim; utilize a subject matter expert in the pretrial stage of the case concerning the disease known as trichomonas; utilize a subject matter expert at the trial concerning the disease known as trichomonas; adequately investigate; and engage in effective pretrial discovery. Petitioner avers that but for these errors and omissions, it is reasonably probable that the result of the trial court proceedings would have been different.
"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show 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 adversarial process that renders the result unreliable . . .
"The first part of the Strickland analysis requires the petitioner to establish that counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . The right to counsel is not the right to perfect representation . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the 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 . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt . . ." (Internal citations omitted.) Servello v. Commissioner of Correction, 95 Conn.App. 753, 757-58, cert. denied, 280 Conn. 904 (2006).
The court will first address those claims alleging deficient performance during the pretrial stage. These claims, while varied, are unified by the fact that they are all related to attorney Abbamonte's pretrial investigation and the development of defenses for trial. Accordingly, the court will address the claims that attorney Abbamonte failed to utilize a subject matter expert at the pretrial stage of the case concerning the propensity, or lack thereof, of the petitioner to engage in sexual abuse of a child; utilize a subject matter expert in the pretrial stage of the case concerning the disease known as trichomonas; adequately investigate; and engage in effective pretrial discovery together.
". . . [A]lthough it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility . . . In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence . . ." (Citation omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 598-99 (2008). "The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense . . ." (Citation omitted.) Servello v. Commissioner of Correction, supra, 95 Conn.App. 763-64.
In the instant matter, the court is unable to address the claims attacking attorney Abbamonte's pretrial and investigative efforts in any meaningful way. There is no evidence aside from petitioner's scant testimony regarding attorney Abbamonte's pretrial and investigative efforts, as well as an affidavit from Deputy Chief Public Defender Brian S. Carlow. The affidavit only indicates the Office of the Chief Public Defender has no record of attorney Abbamonte requesting approval for the expenditure necessary to retain an expert witness, nor is there a record of any expenditure. Attorney Abbamonte's file was not offered into evidence and the petitioner offered virtually no precise testimony about attorney Abbamonte's investigative efforts. The court is left in the untenable position of speculating as to what attorney Abbamonte exactly did as part of his investigation. The court may not and will not engage in such speculation.
While it is likely that the petitioner's burden here has been complicated by the death of his trial defense counsel, the burden of proof nevertheless is the petitioner's. Here, maybe in part due to prior counsel's death and ensuing unavailability, the court is put in the impossible position of substantively addressing a claim without any substantiation. However, because counsel's efforts during the trial are clearly affected by the pretrial investigation and preparation, and the record of the underlying criminal proceeding and the testimony presented in the habeas trial permit the trial-related claims to be addressed, the pre-trial claims are tangentially related to the trial claims addressed below. Based upon the foregoing, the court concludes that the claims pertaining to attorney Abbamonte's pretrial efforts and investigation must be denied.
Petitioner claims attorney Abbamonte rendered deficient performance because he failed to utilize a subject matter expert concerning the propensity, or lack thereof, of the petitioner to engage in sexual abuse of a child. The only evidence presented at the habeas trial remotely relevant to this claim was the testimony presented by Dr. Anderson, a clinical psychologist who evaluated the petitioner for purposes of the instant matter. Dr. Anderson was certified as an expert in psychology and the treatment of sexual offenders.
On direct examination, Dr. Anderson was asked the following question: "And isn't it true that there is no physical or psychological test which could actually determine whether or not a specific individual sexually abused the child?" Tr. (Sept. 11, 2007), at pg. 75. Dr. Anderson responded as follows: "That is correct. There is no litmus test for sexual offending." Id. The court fails to discern any evidence presented by the petitioner in support of the claim that attorney Abbamonte rendered deficient performance by failing to utilize a subject matter expert concerning the propensity, or lack thereof, of the petitioner to engage in sexual abuse of a child. The claim is, therefore, without any merit.
The petitioner also claims that attorney Abbamonte rendered deficient performance because he failed to utilize a subject matter expert during the criminal trial on the issues of the reliability of the disclosure of the victim and concerning the disease known as trichomonas. The court has previously and at great length specified its findings of facts. Based on those facts, in particular the testimony by Dr. Sgroi and attorney Blanchard, the court concludes it was deficient performance by attorney Abbamonte not to utilize an expert at all during the underlying proceedings, in particular during the criminal trial.
"[The Appellate Court very recently noted] that, under certain circumstances, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. Siano v. Warden, 31 Conn.App. 94, 99-105, 623 A.2d 1035 (failure to call orthopedic surgeon who would have testified that due to extensive injuries, it would have been difficult for petitioner to carry heavy computer equipment from residence constituted inadequate assistance of counsel), cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); see also Bell v. Miller, 500 F.3d 149 (2d Cir. 2007) (failure to present expert testimony regarding effects of trauma, significant blood loss and certain medication on memory of witness constituted ineffective assistance); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) (failure to consult expert on sexual abuse of children constituted inadequate assistance)." (Emphasis added.) Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 71-72 (2008).
It was recently noted that "[i]n sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel . . . This particularly so where the prosecution's case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony." (Citations omitted.) Gersten v. Senkowski, 426 F.3d 588, 607 (2nd Cir. 2005). See also Eze v. Senkowski, 321 F.3d 110 (2nd Cir. 2003); Pavel v. Hollins, 261 F.3d 210 (2nd Cir. 2001); Lindstadt v. Keane, [ supra, 239 F.3d 201, citing with approval and quoting Beth A. Townsend, Defending the "Indefensible": A Primer to Defending Allegations of Child Abuse, 45 A.F.L.Rev. 261, 270 (1998) ("It is difficult to imagine a child abuse case . . . where the defense would not be aided by the assistance of an expert")].
The Gersten court went further: ". . . in a case where the only direct evidence that any crime occurred or that, if it did, the petitioner committed it, was the testimony of the alleged victim, for defense counsel to simply concede the medical evidence without any investigation into whether it could be challenged was performance that the state court could not reasonably find to be objectively reasonable." Id., at pg. 608. A court should ". . . judge the reasonableness of the purported 'strategic decision' on the part of defense counsel 'in terms of the adequacy of the investigations supporting.' . . . [T]his is not a case where counsel made a reasonable decision to cease further investigation as a result of having 'discovered . . . evidence . . . to suggest that' challenging the prosecution's medical or psychological evidence 'would have been counterproductive, or that further investigation would have been fruitless.' . . . Nor is this a case of 'diligent counsel . . . draw[ing] a line when they have good reason to think further investigation would be a waste.' Rather, counsel here never discovered any evidence to suggest one way or another whether such challenges would be counterproductive or such investigation fruitless, nor did counsel have any reasonable basis to conclude that such investigation would be wasteful . . . It was deficient performance on counsel's part to adopt a weak position that evidence was 'consistent with innocence' without having first made any attempt to investigate whether a case could be made that the evidence was not consistent with guilt." (Internal citations omitted.) Id., at 609-10.
In assessing the trustworthiness of statements, the Connecticut Supreme Court has ". . . considered five factors suggested by the United States Supreme Court in Idaho v. Wright, [ 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)]. These factors include: '(1) the degree of spontaneity inherent in the making of the statements; (2) consistent repetition by the declarant; (3) the declarant's mental state; (4) use of terminology not within the average ken of a child of similar age; and (5) the existence of a motive to fabricate or lack thereof.' State v. Merriam, [ 264 Conn. 617, 639, 835 A.2d 895 (2003)]. The Supreme Court in Wright emphasized that the 'unifying principle' underlying the enumerated factors is that they 'relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.' . . . The court further noted, however, that the list of factors it had identified was not exclusive, that it was not endorsing any particular 'mechanical test for determining particularized guarantees of trustworthiness under the [Confrontation] Clause' . . . and that 'courts have considerable leeway in their consideration of appropriate factors.' . . . Id., 639-40, quoting Idaho v. Wright, [ 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)]." (Internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 815-16, CT Page 8941 865 A.2d 1135 (2005). Applying these factors to the specific facts of this case and the child's statements, it is difficult assigning much trustworthiness to the statements.
Having concluded it was deficient performance by attorney Abbamonte not to utilize an expert witness in the criminal trial, the court must also address whether the petitioner has also shown the required level of prejudice. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by [counsel's] errors." Gersten v. Senkowski, supra, 426 F.3d 611, citing and quoting Strickland v. Washington, supra, 466 U.S. 696. In addressing the prejudice prong given the facts of Gersten, that court noted the "[d]efense counsel's failure to investigate the prosecution's evidence led him to decide not to challenge what was clearly the most significant corroborative evidence — the medical expert testimony that the physical condition of the alleged victim supported a conclusion that penetration had taken place. Counsel's decision not to consult with or call an expert precluded counsel from offering a potentially persuasive affirmative argument that the alleged victim's condition was not indicative of or consistent with forced sexual penetration. Counsel's failure also prevented him from challenging the psychological evidence offered to explain the victim's delay in coming forward and failure to recall events in detail as the result of something other than a lack of credibility — which would as a general matter be a common inference to draw from such shortcomings." Gersten v. Senkowski, supra, 426 F.3d 611-12.
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment . . . To merit habeas relief, the defendant must show that the deficient performance prejudiced the defense . . . The level of prejudice the defendant need demonstrate lies between prejudice that had some conceivable effect and prejudice that more likely than not altered the outcome in the case . . . Thus [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The Court defined 'reasonable probability' as one that 'undermine[s] confidence in the outcome . . .' Even serious errors by counsel do not warrant granting habeas relief where the conviction is supported by overwhelming evidence of guilt." (Internal citations and quotation marks omitted.) Lindstadt v. Keane, supra, 239 F.3 204. If the evidence presented at the trial is relatively weak, the ". . . confidence in the judgment of conviction . . . may be undermine[d] . . . by a relatively smaller quantity of prejudice than might ordinarily suffice." (Internal quotation marks omitted.) Pavel v. Hollins, supra, 261 F.3d 226.
In the instant matter, this court's confidence in the outcome of the proceeding has been undermined, especially due to the mistakes, flaws and omissions underscored by Dr. Sgroi's expert testimony. Here the conviction is not supported by overwhelming evidence of guilt. The court finds, therefore, that the petitioner has proven his claim of ineffective assistance of counsel during the criminal proceedings.
Count two
Petitioner's claim in count two is that he is actually innocent. "[A] substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial . . . To prevail on a claim of actual innocence, the petitioner must satisfy two criteria. First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime . . ." (Citation omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470-71, 922 A.2d 221 (2007). ". . . [I]n order to prevail on a claim of actual innocence, a petitioner must present newly discovered evidence that was not available at the time of the criminal trial. See Johnson v. Commissioner of Correction, [ supra]." Grant v. Commissioner of Correction, 103 Conn.App. 366, 369, 928 A.2d 1245, cert. denied, 284 Conn. 921, 933 A.2d 723 (2007).
The petitioner has not met this stringent evidentiary burden. Viewing all the evidence of the criminal and habeas corpus trials together, the petitioner has not shown by clear and convincing evidence that he is actually innocent of the crimes of which he was convicted. The petitioner also has not established that no reasonable fact finder would find him guilty of the crimes at issue. Accordingly, the court denies the claim in count two.
CONCLUSION
The petition for a writ of habeas corpus is granted as to count one and denied as to count two. The petitioner's convictions in Docket Number CR 03-192589, Judicial District of Fairfield at Bridgeport, are hereby vacated and the criminal case is restored to the docket for further proceedings in accordance with the law. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.
APPENDIX
NOV. 9, 1997: CHILD IS BORN. INVOLVED IN BIRTH TO THREE PROGRAM DUE TO DEVELOPMENTAL DELAYS
SEPT. 2001: STAFF IN VICTIM'S SCHOOL FIRST BECOME AWARE OF CHILD'S SOILED UNDERWEAR, URINATING ON SELF, ETC.
MAY 20, 2002: SCHOOL SENDS LETTER TO MOTHER BECAUSE OF CONCERNS FOR CHILD'S HYGIENE.
MAY 29, 2002: MOTHER ASKS CHILD IF ANYONE TOUCHED HER OR IF ANYONE TOLD HER NOT TO TELL, WHICH THE CHILD DENIES. MOTHER TAKES CHILD TO PEDIATRICIAN (DR. MACK), WHO REFERRED CHILD TO BRIDGEPORT HOSPITAL ER FOR FURTHER EVALUATION.
MAY 30, 2002: DCF WORKER PFEIFER ASSIGNED TO CASE AT 4:57 P.M.
MAY 31, 2002: PFEIFER COMMENCES INVESTIGATION; MEETS WITH MOTHER AND CHILD AT DR. MACK'S OFFICE. PFEIFER MEETS PRIVATELY WITH CHILD. CHILD DID NOT KNOW HER NUMBERS AND COLORS. CHILD INCORRECTLY STATES A "CAROL" LIVES AT HOUSE WITH HER; NO SUCH PERSON LIVES THERE. CHILD DENIES ANYONE EVER TOUCHING HER PRIVATE PARTS OR BUTTOCKS AREA. DR. MACK CALLS PFEIFER TO REPORT CULTURES FOR HERPES AND CHLYMDIA WERE NEGATIVE; GONORRHEA RESULTS STILL FORTHCOMING. DR. MACK INFORMS PFEIFER THAT MOTHER ALSO REPORTED CHILD MASTURBATES. DR. BOU-KHALIL CALLS PFEIFFER AND INFORMS HER CHILD TESTED POSITIVE FOR TRICHOMONAS. PER DR. BOU-KHALIL, SEXUALLY TRANSMITTED AND ONLY TRANSMITTED FROM PENIS TO VAGINA. PFEIFER MEETS PRIVATELY WITH CHILD'S MOTHER. MOTHER SIGNS SERVICE AGREEMENT NOT ALLOWING CHILD TO BE WITH ANY MALES, INCLUDING HER SIBLINGS UNSUPERVISED. PFEIFER REITERATES THIS AT A LATER POINT THE SAME DAY; MOTHER AGREES.
JUNE 3, 2002: PFEIFER CALLS MOTHER, WHO STATES SHE ASKED CHILD AGAIN IF ANYONE HAD TOUCHED HER. CHILD GAVE NAMES OF BOYS AND GIRLS IN HER SCHOOL. PFEIFER REQUESTS THAT MOTHER NOT ASK CHILD ABOUT IT ANYMORE TO PREVENT TAINTING OF MIT INTERVIEW. IF CHILD SPONTANEOUSLY TALKS ABOUT IT, TO THEN DISCUSS IT WITH HER.
JUNE 4, 2002: PFEIFER VISITS HOME, WHICH SHE OBSERVES TO BE CLUTTERED BUT ADEQUATE WITH NO SAFETY CONCERNS. PFEIFER INTERVIEWS PETITIONER AND CHILD'S OLDEST SIBLING, D., WHO IS 12 YEARS OLD AT THAT TIME. D. DENIES BEING THE VICTIM OF ANY TYPE OF SEXUAL ABUSE OR INAPPROPRIATE TOUCHING. D. ALSO DENIES BOTH THAT HE HAS TOUCHED ANYONE ELSE AND THAT HE HAS WITNESSED ANY INAPPROPRIATE TOUCHING IN THE HOUSE.
JUNE 10, 2002: RN BOWEN CONTACTS DR. BOU-KHALIL, WHO INDICATES SHE BELIEVES CHILD SEXUALLY ABUSED BECAUSE OF THE DISCHARGE AND CULTURES, BUT DOES NOT BELIEVE PENETRATION OCCURRED. ALTHOUGH NO EVIDENCE OF PENETRATION, PENETRATION IS NOT RULED OUT BECAUSE OF THE TRICHOMONAS INFECTION, WHICH DR. BOU-KHALIL SAYS CAN ONLY BE CONTACTED VIA PENETRATION. BOWEN BELIEVES CHILD'S INFECTION LIKELY CONTRACTED THROUGH SEXUAL ABUSE. PER BOWEN, BECAUSE TRICHOMONAS IS AN STD, INFECTION IN A YOUNG CHILD MAY INDICATE SEXUAL ABUSE. BOWEN RECOMMENDS THAT CHILD AND HER SIBLINGS BE EXAMINED FOR SIGNS AND SYMPTOMS OF SEXUAL ABUSE AND TESTED FOR STDS.
JUNE 11, 2002: CHILD ABUSE MULTIDISCIPLINARY INVESTIGATION TEAM (MIT) INTERVIEW WITH CHILD. ASSESSMENT OF CHILD'S DEVELOPMENT SHOWS DIFFICULTY WITH POSITIONS AND SPATIAL RELATIONS. CHILD MAKES NO DISCLOSURE. MIT CONCLUDES BY NOTING THAT IF ANY ADDITIONAL INFORMATION COMES FORWARD, IT IS RECOMMENDED THAT THE CHILD BE INTERVIEWED AGAIN IN THE FUTURE.
JUNE 12, 2002: PFEIFER AND BOWEN DISCUSS BOWEN'S CONVERSATIONS WITH DRS. BOU-KHALIL AND MACK AND THEIR CONCLUSIONS RE SEXUAL ABUSE W/OUT PENETRATION.
JUNE 17, 2002: PFEIFER DISCUSSES TESTING FOR STDS W/ CHILD'S MOTHER, WHO AGREES TO GO TO GYNECOLOGIST AND GET TESTED. PFEIFER ALSO DISCUSSES W/ MOTHER THAT CHILD'S SIBLINGS SHOULD ALL BE TESTED AS WELL.
JUNE 26, 2002: PFEIFER AND MOTHER TAKE CHILD TO YALE NEW HAVEN HOSPITAL PEDIATRIC CLINIC. EXAMINATION OF CHILD WAS NORMAL AND NO DISCLOSURE OF ABUSE. CHILD'S HYMEN NORMAL.
JULY 2, 2002: CASE DECISION MADE TO CONFIRM SEXUAL ABUSE OF CHILD GIVEN SHE HAS TESTED FOR AN STD AGAINST PERPETRATOR UNKNOWN. DECISION MADE TO SUBSTANTIATE SEXUAL ABUSE OF CHILD BY PERPETRATOR UNKNOWN.
JULY 12, 2002: PFEIFER VISITS MOTHER'S RESIDENCE. SHE AND MOTHER DISCUSS CASE; PFEIFER TELLS MOTHER DCF IS CONFIRMING SEXUAL ABUSE AGAINST UNKNOWN PERPETRATOR. TELLS MOTHER DCF HAS GREAT CONCERN DUE TO CHILD HAVING STD. REQUESTS MOTHER CONTACT PEDIATRICIAN TO HAVE CHILD'S SIBLINGS TESTED FOR TRICHOMONAS. PFEIFER OBSERVES HOME TO BE CLEAN AND ADEQUATE WITH NO SAFETY CONCERNS.
JULY 16, 2002: PFEIFER CONTACTS DETECTIVE JOHN MEYER, WHO STATES THE CRIMINAL INVESTIGATION IS CLOSED AND HE CANNOT INTERVIEW ANY SUSPECTS WITHOUT A DISCLOSURE FOR CHILD FIRST. NURSE FROM DR. MACK'S OFFICE CONTACTS PFEIFER INQUIRING WHY CHILD'S SIBLINGS HAVE NOT BEEN TESTED. NURSE DESCRIBED BY PFEIFER AS SOUNDING "AGITATED" AND WAS QUESTIONING EXACTLY WHAT DCF WAS DOING WITH THE CASE.
JULY 17, 2002: MOTHER CALLS PFEIFER. IDENTIFIES MALES WHO EITHER LIVED IN RESIDENCE AT TIMES OR WERE BABYSITTER. MATERNAL UNCLE ALSO NAMED MICHAEL, AS IS PETITIONER. MOTHER ANSWERS "NO" WHEN ASKED BY PFEIFER IF SHE HAS EVER TESTED POSITIVE FOR AN STD. MOTHER THEN ADMITS SHE CONTRACTED HERPES ABOUT FIVE YEARS AGO AND THAT THE CHILD CONTRACTED HERPES IN HER THROAT FROM SWALLOWING BLOOD DURING THE BIRTH.
JULY 23, 2002: PFEIFER INFORMED DR. BOU-KHALIL CALLED INQUIRING ABOUT INVESTIGATION. PFEIFER STILL TO FOLLOW UP WITH MALES WHO HAVE HAD CONTACT WITH CHILD.
JULY 25, 2002: MIT TEAM MEETING. PFEIFER DISCUSSES FACTS OF CASE AND DIFFICULTIES. WILL NOT REFER FOR SECOND MIT INTERVIEW AND WILL CONTINUE TO HAVE MALES TESTED FOR TRICHOMONAS. IF NEW INFORMATION ARISES, WILL REFER BACK TO MIT.
JULY 30, 2002: PFEIFER VISIT MOTHER'S RESIDENCE, WHICH IS OBSERVED TO BE CLEAN AND ADEQUATE. PFEIFER TALKS WITH CHILD, WHO DENIES ANY TYPE OF INAPPROPRIATE TOUCHING BY ANYONE. CHILD'S OLDEST SIBLING D. ALSO DENIES ANY INAPPROPRIATE SEXUAL BEHAVIORS OR TOUCHING, AND DENIES EVER OBSERVING OR WITNESSING ANYTHING INAPPROPRIATE BEING DONE TO HIS SISTER.
JULY 31, 2002: PFEIFER TRANSPORTS MOTHER AND CHILD'S MALE SIBLINGS TO YALE PRIMARY CARE CENTER FOR TESTING. DISCUSSES WITH APRN MURPHY INFORMATION RE TRICHOMONAS. MURPHY INFORMS HER THAT IT IS A REMOTE POSSIBILITY TRICHOMONAS TRANSMITTED NON-SEXUALLY, HOWEVER IN ADULTS IT IS SEEN TRANSMITTED SEXUALLY ONLY. MURPHY TELLS PFEIFER IT IS POSSIBLE FOR A FEMALE TO TRANSMIT TO ANOTHER FEMALE.
MARCH 2003: MOTHER SENDS CHILD TO "GOOD TOUCH/BAD TOUCH" PRESENTATION AT SCHOOL. SEVERAL DAYS LATER CHILD REPORTS TO MOTHER THAT PETITIONER SEXUALLY ABUSED HER ONCE BY PUTTING HIS "THING" (PENIS) "DOWN THERE" (HER VAGINA). CHILD TELLS MOTHER SHE WAS AFRAID TO TELL HER BECAUSE PETITIONER PUNCHED AND SLAPPED HER AND THREATENED TO HURT HER MOTHER AND HER SIBLINGS IF SHE TOLD.
APRIL 16, 2003: SECOND MIT TEAM INTERVIEW OF CHILD AS A RESULT OF THE MARCH 2003 DISCLOSURE. CHILD DISCLOSES PHYSICAL AND SEXUAL ABUSE, INCLUDING ONE INCIDENT OF PENILE VAGINAL INTERCOURSE AS WELL AS FONDLING. IDENTIFIES PERPETRATOR AS HER "FATHER" MICHAEL. CHILD UNABLE TO GIVE A TIME FRAME OF WHEN THE SEXUAL ABUSE OCCURRED, BUT REPEATEDLY REFERS TO "YESTERDAY" AS WHEN THE PERPETRATOR MADE HER BLEED DOWN THERE.
APRIL 17, 2003: DETECTIVE MEYER TAKES SIGNED SWORN STATEMENT FROM MOTHER. CHILD TOLD MOTHER THE PERPETRATOR MADE HER BLEED "DOWN THERE." CHILD DISCLOSES TO MOTHER THAT THE INCIDENT OCCURRED IN MOTHER'S BEDROOM SOMETIME AROUND MAY OR JUNE 2002. MOTHER TELLS MEYER THAT SHE WAS TESTED FOR TRICHOMONAS BY DCF AND TESTED NEGATIVE.
SEPT. 3, 2003: PETITIONER ARRESTED. ATTORNEY ABBAMONTE SUBSEQUENTLY APPOINTED TO REPRESENT HIM.
NOV. 13, 2003: CHILD'S OLDEST BROTHER D. CAUGHT IMMEDIATELY AFTER SEXUALLY ASSAULTING HER. D. ARRESTED AND REPORTEDLY CONFESSED TO THE INCIDENT. CHILD TELLS MOTHER THE SEXUAL ACTIVITY OCCURRED THREE TIMES IN THE COURSE OF THAT AFTERNOON.
NOV. 19, 2003: MIT INTERVIEW OF CHILD, NOW AGE 6, AS A RESULT OF THE SEXUAL ASSAULT BY D. CHILD DISCLOSES BOTH ANAL AND VAGINAL PENETRATION BY D. THAT OCCURRED IN THREE DIFFERENT ROOMS IN THE HOUSE WHILE MOTHER WORKING AND CHILDREN BEING BABYSAT BY NIECE. MIT INTERVIEW REPORT CONCLUDES CHILD PROVIDED A CLEAR, COHERENT AND SPONTANEOUS DISCLOSURE. CHILD'S STATEMENTS APPEAR CREDIBLE AND ARE HIGHLY CONSISTENT AND CORROBORATIVE WITH STATEMENTS FROM OTHER WITNESSES AS WELL AS THE PROBABLE EVIDENCE GATHERED IN THIS CASE, WHICH INCLUDED A RAPE KIT THAT WAS CONDUCTED IMMEDIATELY AFTER THE SEXUAL ASSAULT AND TURNED OVER TO POLICE.
JULY 14, 2004: MOTHER ADMITS DURING CRIMINAL TRIAL, CONTRARY TO HER SWORN STATEMENT TO DET. MEYER, THAT SHE TESTED POSITIVE FOR TRICHOMONAS IN JUNE 2002.