Opinion
No. CV02-0466794
May 17, 2005
MEMORANDUM OF DECISION ON PETITIONER'S SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner was the defendant in three dockets, which had been consolidated for trial, in the Judicial District of New Haven. After a jury trial the defendant was convicted of three counts of sexual assault first degree and two counts of risk of injury to a child in docket CV97-181428, two counts of sexual assault first degree and two counts of risk of injury to a child in docket CR97-181945, and one count of sexual assault third degree and one count of risk of injury to a child in docket CR97-182745. On May 19, 2000 the petitioner was sentenced to a total effective sentence of ninety years incarceration by the court. (Fracasse, J.). The convictions were affirmed on direct appeal. State v. David P., 70 Conn.App. 462, cert denied, 262 Conn. 907 (2002). The petitioner remains in the custody of the respondent pursuant to said sentence and is presently confined in a maximum security facility in the state of Rhode Island. The petitioner was represented at trial by Attorney William Palmieri, and by Mr. Palmieri and Attorney Dawn Westbrook on appeal. Mr. Palmieri prepared the brief and the appeal was argued by Ms. Westbrook.
The petitioner filed a two-count second amended petition for writ of habeas corpus on October 6, 2003, and the respondent filed a return to this petition on October 23, 2003. This court conducted a trial on the petition on August 5, 2004.
The Appellate Court opinion stated that the jury reasonably could have found the following facts.
The defendant lived with all three victims at the time of the assaults. The defendant assaulted the first victim, A, on two occasions while she was in the fourth grade. Both times, the defendant called the victim at her grandparents' residence and asked that she come home alone. The first time, he called the victim to his bedroom and told her to get on the bed. After instructing the victim to remove her clothing, the defendant began touching her. He then put his finger into her vagina and made her touch his penis. The second time, the defendant once again called the victim at her grandparents' home. Once she arrived, the defendant called her to his bedroom, but this time there was a pornographic video displayed on the television. He told the victim to get undressed and get on the bed. The defendant again told the victim to touch his penis, and he placed his finger into her vagina.
The defendant began assaulting the second victim, B, while she was also in the fourth grade. In the beginning, the defendant touched the victim's breasts and kissed her on the lips while she was still dressed. After the victim started the fifth grade, the defendant began having sexual intercourse with her in his bedroom, sometimes placing Vaseline on his penis beforehand. The assaults continued while the victim attended the sixth grade. On one occasion, the defendant forced the victim to perform oral sex.
The defendant assaulted his third victim, C, while she attended the second and third grades. During the assaults, the defendant touched her when he placed his hand under the victim's shirt and down her pants. That also occurred in the defendant's bedroom.
State v. David P., supra 465-66.
The first count of the petition alleges that the petitioner was denied the effective assistance of appellate counsel in violation of his rights as guaranteed by the United States Constitution and the Connecticut Constitution. The second count alleges that the petitioner was denied the effective assistance of trial counsel in violation of the same rights as guaranteed by the federal and state constitutions.
The petition makes several specific claims which allegedly demonstrate ineffective assistance of both trial and appellate counsel. Most of these claims have not been pursued in the petitioner's post-trial brief and are deemed to have been abandoned.
The only claims pursued in the petitioner's brief concerning the alleged ineffective representation by trial counsel are that Attorney Palmieri failed to obtain and offer time sheets from the petitioner's employers, Specta Strip Company and the Department of Correction, and from his wife's employer, the West Haven Veterans Hospital. It is claimed that the petitioner's work records would have shown that he was either at Specta Strip or the Department of Corrections at the times of the alleged offenses and thereby establish an alibi defense. With respect to his wife's work records, the petitioner claims that they would have shown that his wife was not at work, and therefore at home, during the times of the alleged offenses, and that this evidence would have cast doubt on the petitioner's opportunity to commit the alleged acts, all of which were claimed by the state as occurring in the petitioner's home.
The first claim pursued in the petitioner's brief with respect to the alleged ineffective assistance of appellate counsel is that the appellate brief prepared by Mr. Palmieri was inadequate in a certain respect. This was the second trial on the three informations. The first trial resulted in an acquittal on one charge and a mistrial on all other charges. In the first trial evidence was admitted from two of victim B's friends, and an investigator for the department of children and families, that the two friends had made a false complaint to the department that the petitioner had sexually abused victim B. Also admitted was testimony from victim B that her friends had threatened to make a false report. In the second trial the trial court granted a state's motion in limine with respect to this evidence, ruling that it was not relevant to the issues in the case. On appeal Mr. Palmieri raised a claim that the trial court was in error in precluding the testimony that was admitted in the first trial. Also raised on appeal was a separate claim that the trial court unconstitutionally restricted the petitioner's right of cross-examination. The Appellate Court found no error in the refusal of the trial court to admit the testimony about the false report, and found that the claim about the restriction on the right of cross-examination was inadequately briefed and the court declined to review that claim. The petitioner claims that appellate counsel was ineffective in not properly briefing the claim concerning the restriction on the right of cross-examination.
The petitioner also claims that appellate counsel was ineffective in that he did not raise as an issue on appeal a claim that the trial court improperly excluded a victim's prior inconsistent statements about the sexual assaults.
The petitioner is entitled to receive effective assistance of counsel at both trial and on appeal.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. Denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
"`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.' Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Allion v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980)." "What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . 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.' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
"There is nothing fundamentally unfair about applying the same standard of prejudice to the performance of his appellate counsel that we would be required to apply to the performance of his trial counsel . . ." Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992).
"[T]o prevail on this claim, [the petitioner] must establish (1) that his appellate counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction, as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, 84-86, 546 A.2d 1380 (1988); accord Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).
Mozell v. Commissioner of Correction, 51 Conn.App. 818, 820-21.
In support of his claim of ineffective assistance of trial counsel the petitioner testified at the habeas trial that Mr. Palmieri failed to obtain and offer his work records or his wife's work records, which would have supported his claim that he was not at home during the time of the alleged assaults, and that his wife was at home at those times. Mr. Palmieri contradicted that testimony. He testified that he obtained all of the petitioner's work records, analyzed them, and discussed their contents with the petitioner. Mr. Palmieri pointed out to the petitioner that his work records would not be helpful in trying to show that he was not at home during the times of the alleged assaults, and in fact would have shown that he had many opportunities to commit the various sexual assaults. In connection with the petitioner's wife's records, Mr. Palmieri testified that he was aware of the contents of those records, and that he discussed with the petitioner that it would be foolish to claim that if Mrs. Perry was not working then she necessarily would have been at home during the times the assaults occurred, particularly when they both were aware that she had many medical and physical therapy appointments, as well as many other reasons, that would have kept her out of the house during those times. The court finds in connection with his testimony concerning the work records of he and his wife that the petitioner is not credible. The court does find Mr. Palmieri credible with respect to these claims, and accepts his testimony that he was fully aware of the contents of all the work records and did not use them for valid trial strategy reasons which were discussed with the petitioner.
The petitioner's brief makes two claims in support of his claim of ineffective assistance of appellate counsel. Both relate to the appellate brief prepared by Mr. Palmieri. The first of these is that while appellate counsel made the claim on appeal that the trial court unfairly restricted his right of cross-examination, he failed to brief that issue adequately, and therefore the Appellate Court refused to consider it. The second is that appellate counsel failed to raise on appeal a claim that the court improperly excluded from evidence prior inconsistent statements of one of the victims.
The appellate claim of unfair restrictions on cross-examination, which the Appellate Court did not consider, related to specific questions asked by Mr. Palmieri in an effort to elicit evidence concerning the false accusations made by Victim B's friends that the petitioner has sexually abused Victim B, which had been admitted in the first trial. This entire subject was precluded from admission by Judge Fracasse when he found that that evidence was not relevant and granted the state's motion in limine prior to the start of evidence. Thereafter, during trial, Judge Fracasse consistently sustained objections to that subject which were asked by Mr. Palmieri. Appellate counsel did raise on appeal a claim that the entire subject matter concerning the false accusations was relevant and should have been admitted. The Appellate Court considered that claim and held that the evidence was not relevant and that Judge Fracasse was correct in excluding the evidence. In view of the decision by the Appellate Court that the entire subject of the false accusations was not admissible, the court does not believe that any rulings on specific questions on the same subject made during trial would have been found to be erroneous by the Appellate Court.
This court also notes that the petitioner has failed to make any claim concerning what the Appellate Court would have done if that court had considered the claim of an unfair restriction on cross-examination. He has failed to provide any legal analysis concerning any particular question or questions, or any legal analysis as to why the Appellate Court would have found the trial court's rulings to be erroneous, or any legal analysis as to why any erroneous rulings would have been found to be harmful and prejudicial to the rights of the petitioner.
The second claim of ineffective assistance of appellate counsel is that counsel failed to raise a claim on appeal that the trial court erred in excluding evidence of prior inconsistent statements of a victim. The petitioner has failed to indicate the specific ruling or rulings to which he refers. In addition, he has failed to provide any legal analysis as to why the Appellate Court would have found the trial court's rulings to be erroneous, or any legal analysis as to why any erroneous rulings would have been found by the Appellate Court to be harmful and prejudicial to the rights of the petitioner.
In summary, the court finds that the petitioner has failed to prove that Attorney Palmieri was deficient as trial counsel or appellate counsel in any of the ways which have been briefed, and that he has failed to prove that he has suffered actual prejudice in any of the ways which have been briefed. Therefore, the petitioner has failed to prove ineffective assistance of either trial counsel or appellate counsel in any of the ways which have been briefed.
The second amended petition for writ of habeas corpus is dismissed.
William L. Hadden, Jr. Judge Trial Referee