Opinion
No. CV 06-4001127-S
April 1, 2010
MEMORANDUM OF DECISION
The petitioner, Jerry Rodriguez, filed a petition for a writ of habeas corpus on June 5, 2006, challenging the legality of his detention. After the appointment of a special public defender, the petition was amended. The amended petition raises claims in three counts: first, actual innocence; second, ineffective assistance of trial defense counsel; and third, ineffective assistance of appellate counsel. The respondent's return denies the petitioner's material allegations and generally raises procedural default as an affirmative defense. The petitioner did not file a reply to the return.
After the petition was amended by appointed counsel, substitute counsel was appointed, who did not further amend the petition.
The affirmative defense of procedural default is inapplicable to the claims raised in the instant petition, in which the petitioner for the first time since being convicted alleges actual innocence and ineffective assistance of counsel. Accordingly, the court shall not address any claimed procedural default.
The present matter came before this court for a trial on the merits on four consecutive days between October 19-22, 2009. Numerous exhibits were entered into evidence. The court permitted the parties to file post-trial briefs, which were filed on December 18, 2009.
The court has reviewed the evidence and, for the reasons stated more fully below, denies the petition for a writ of habeas corpus.
FACTS
The Appellate Court summarized the following facts pertaining to the convictions at issue in the instant habeas corpus petition.
"The jury reasonably could have found the following facts. At the time of the events giving rise to the defendant's conviction, the victim [N.V.] was four years of age and the defendant was twenty-three years of age. For approximately eighteen months prior to December 1997, the defendant resided with the victim, the victim's mother and the victim's brother. Although the victim usually referred to the defendant as `Daddy' or `Jerry,' the defendant is not the victim's biological father. The defendant is the biological father of the victim's younger brother.
"The defendant continued to have a somewhat amicable relationship with the victim's mother and often visited with her, the victim and the victim's brother even after he no longer resided with them. In January 1999, the victim's mother was employed at a local video rental store; she customarily worked during the 5 p.m. until midnight shift. The victim's maternal grandmother or a female friend of the victim's mother often babysat the victim and her brother while their mother was at work.
"On January 21, 1999, the defendant called the victim's mother and asked if he could baby-sit for the children while she worked that night. After the victim's mother agreed, the defendant picked up the children from the home of their maternal grandmother, picked up the keys to the victim's mother's house from her and took the children to their home. When the victim's mother arrived home from work sometime after 12:30 a.m., the children were sleeping in their beds, and the defendant was asleep on the sofa, where he spent the night.
"On the evening of January 22, 1999, while the victim was using the bathroom, she complained to her mother that `her butt hurt.' When her mother inquired as to the cause, the victim told her that `Daddy put a bone in my butt, and it hurts.' On the next day, the victim's mother called the defendant on the telephone and asked him if he, during the prior evening, had physically reprimanded the victim or if anything else had occurred to explain the victim's statements. At trial, she testified that the defendant seemed upset and that he denied doing anything to hurt the victim. During the day on January 23, 1999, the victim complained sporadically that she felt pain. The victim's mother bathed the victim that night and again inquired of her as to why she felt pain. The victim reiterated the explanation that she had given her mother on the previous night and, as her mother testified, `pointed inside her butt.'
"The next day, the victim's mother took the victim to local police headquarters to report the victim's complaints. The victim's mother then took the victim to a nearby hospital, where emergency medical personnel examined her. The victim reiterated her allegations about the defendant. On January 27, 2000, Judith Kanz, a certified pediatric nurse practitioner and an expert in evaluating children complaining of sexual abuse, examined the victim. The victim reported to Kanz an account of sexual abuse consistent with her earlier statements. Kanz also testified that, during her physical examination of the victim, she found a `borderline abnormal' dilation of the victim's rectum and that this finding caused concern as to whether something had penetrated her rectum. Joanne Iurato, a licensed clinical social worker who specializes in the field of abused children, also interviewed the victim. She testified that the victim told her that her mother's boyfriend, whom she identified as `Daddy' or `Jerry,' had `put a bone in her butt and [that] it appeared to look like a piece of meat.' On the basis of the evidence and expert testimony adduced at trial, the jury could reasonably have found that the defendant had sexually assaulted the victim." State v. Rodriguez, 68 Conn.App. 303, 304-06, 791 A.2d 621, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).
The petitioner was sentenced to a total effective sentence of fifteen years to serve, suspended after the service of ten years, followed by ten years of probation.
Additional facts will be discussed below as necessary to address the petitioner's specific claims.
DISCUSSION Count One
The petitioner's first claim is that he is actually innocent of sexual assault in the first degree and risk of injury to a minor, the petitioner's two convictions resulting from the jury trial.
In Miller v. Commissioner of Correction, 242 Conn. 745, 746, 700 A.2d 1108 (1997), the Supreme Court addressed ". . . the legal standard [of persuasion] that must be met by a habeas corpus petitioner claiming actual innocence in order to gain a new trial at which his guilt or innocence will again be determined . . ."
The Miller court began its consideration of the standard of proof for an actual innocence claim with the following remark: "In doing so, we assume without deciding that the petitioner's claim must be based on `new evidence,' that is, evidence that is not cumulative, was not available to the petitioner at his criminal trial, and could not have been discovered by him at that time through due diligence. See Summerville v. Warden, [ 229 Conn. 397, 426, 641 A.2d 1356 (1994)]. . ." Miller v. Commissioner of Correction, supra, 242 Conn. 789 n. 29. The Supreme Court has not yet had occasion to address the `new evidence' requirement, although the Appellate Court has addressed this requirement.
"[A] claim of actual innocence must be based on newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. Williams v. Commissioner of Correction, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Batts v. Commissioner of Correction, [ 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004).]" Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470, 922 A.2d 221 (2007).
In count one of the amended petition, the petitioner makes many factual allegations in support of his actual innocence claim. Most of these allegations are not, however, indicative of any evidence that would be proffered at the habeas corpus proceeding that could not have been discovered prior to the petitioner's criminal trial. Quite the contrary: most of the factual allegations in count one are premised on circumstances, events and facts known at the time of the criminal trial. There are two allegations, however, that assert facts not known at the time of the underlying criminal trial.
First, that following the petitioner's convictions on February 1, 2000, Edgardo Caban, N.V.'s step-grandfather, was arrested for and convicted of sexually assaulting another under-aged female. According to the petitioner's allegations, Caban now is a registered sex offender. Although Caban's conviction and registration occurred subsequent to the petitioner's criminal trial, the fact that Caban posed a potential threat to N.V. and potentially supported a third-party culpability defense was known at the time of the petitioner's criminal trial.
At the criminal trial, Attorney Louis Avitabile, the petitioner's criminal defense and appellate counsel, attempted to elicit testimony from N.V.'s mother, Sandra Pacheco, that she herself had been sexually molested by Caban when she was six or seven years old. Petitioner's Exhibit 1 (Tr. February 9, 2000, at pg. 78). After the prosecutor objected, the jury left the courtroom and the court heard counsel's arguments on that line of questioning. The court concluded that Avitabile had not established a sufficient basis to continue asking questions about Caban's molestation of Pacheco. Id., at pg. 83-84.
The petitioner testified in his own defense during the criminal trial. The issue of Pacheco's allegation against Caban also was brought out by Avitabile on redirect examination. Id., (Tr. February 16, 2000, at pg. 61). After the redirect examination, the prosecutor asked further questions on recross-examination about Pacheco, Caban, and the potential risk he might present to young girls. Id., at pgs. 65-66.
After the petitioner completed testifying in the criminal case, the defense rested and the prosecutor called a rebuttal witness, Lydia Caban, Pacheco's mother and N.V.'s grandmother and wife of E. Caban. The prosecutor questioned Mrs. Caban about Pacheco being concerned about not leaving children, especially N.V., alone with her husband. Id., at pg. 80. On cross-examination, Avitabile questioned Mrs. Caban about Pacheco's reasons for not wanting N.V. to be left alone with Caban. Avitabile asked Mrs. Caban whether Pacheco had ever told her that Caban had molested her, to which she responded `yes.' Id., at pg. 88.
As to the allegation that Caban's arrest and conviction subsequent to the petitioner's convictions are newly discovered evidence, the court concludes that Caban's predilection, danger and potential risk to N.V. were sufficiently put before the jury that the mere fact of his eventual arrest and conviction cannot be considered newly discovered evidence. Furthermore, there is no indication whatsoever that Caban's conviction had any connection to the events at issue involving N.V. and her report that the petitioner "put a bone in her butt." Simply put, there is nothing to show that the petitioner is actually innocent as a result of Caban's eventual arrest and conviction.
The second factual allegation that falls into the category of potentially being newly discovered evidence is as follows: "[a]lso following the conviction, Ms. Pacheco began expressing to the state and to Petitioner that Petitioner had been wrongly convicted. Her letters to Petitioner are heavily laden with expressions of guilt that her untruthfulness produced his conviction. She reported to the state that she had overheard N.V. saying things about Petitioner that were inconsistent with some of the accusations that had been made in furtherance of the prosecution. Ms. Pacheco's post-trial report prompted the state to have N.V. interviewed by a counselor on videotape. During that interview, N.V. unequivocally stated that no assault had been perpetrated by Petitioner. N.V. said that she had never accused Petitioner, and that she had, in fact, accused Edgardo Caban. She expressed her belief that Petitioner had been jailed because N.V. had not spoken up in court. She said that she liked Petitioner and hoped that he could come home." Amended Petition, at pgs. 5-6.
At the habeas trial, evidence was presented showing that Pacheco contacted both the prosecutor and Avitabile sometime in the timeframe of August-September of 2002, about two years after the jury convicted the petitioner. Avitabile testified that after Pacheco called him, he had a friend set up a camera and record the ensuing conference. Avitabile then provided the prosecuting attorney with a copy of the tape so that a determination could be made whether a new trial was warranted. The prosecutor, by way of letter dated September 26, 2002, informed Avitabile about being contacted by Pacheco, who indicated that N.V. had "in effect, recanted." Respondent's Exhibit J.
The letter to Avitabile goes on to note that ". . . Pacheco indicated that she had overheard N.V. talking with her half brother (the biological son of [the petitioner]) and stating that [the petitioner] was her favorite dad. Ms. Pacheco indicated that she had questioned N.V. about this statement since it seemed inconsistent with her earlier complaint and that, after a day or so N.V. indicated that [the petitioner] had not hurt her but the Ms. Pacheco's stepfather had done so. Since Ms. Pacheco claims that she was victimized by her stepfather, Ms. Pacheco was very concerned that [the petitioner] had been wrongly convicted." Id.
The letter to Avitabile concludes with the following: "I did arrange to have N.V. interviewed by Sharon Kelly, the local MDT [Multi-Disciplinary Team] team coordinator and interview and enclose a copy of her report. Given all the factors involved I do not feel that there is an unambiguous recantation — if there even is a recantation. I do not propose to take any further action at this time on the part of the State." Id.
The prosecutor apprised Pacheco by letter dated November 22, 2002, that the state had closed its file on the matter. Respondent's Exhibit K. The letter informed Pacheco, as Avitabile himself had already been informed, that the prosecutor "did not feel that the situation that [Pacheco] brought to [the prosecutor's] attention was sufficiently clear as to require this Office to take any action to set aside the conviction." Id.
Also entered into evidence were several letters from Pacheco to the petitioner while he was incarcerated. Petitioner's Exhibit 2. The letters clearly evidence an ongoing desire by Pacheco to have contact with the petitioner, even asking for his forgiveness for her role in the underlying criminal matter. The letters do not contain anything, however, that would substantiate a claim of actual innocence with clear and convincing evidence.
Two other items need to be addressed: a notarized statement from Pacheco dated April 4, 2006, in which she states that she and therapists who have treated N.V. over the years are convinced that the petitioner is innocent; and Pacheco's testimony during the habeas corpus proceeding. Pacheco's testimony before this court does not corroborate the April 4, 2006 notarized statement. To the contrary: Pacheco neither presented testimony that could be viewed as being newly discovered, nor was any of her testimony clear or convincing. Pacheco's testimony at the habeas corpus proceeding in no material way differed from what she presented during the criminal proceedings.
Lastly, N.V. also testified at the habeas corpus trial. N.V. understandably could not recall many of the specifics of the events that transpired more than a decade ago, when she about four years old. N.V. presently has no independent recollection of the 1999 sexual assault or the interview conducted in the prosecutor's office in 2002.
Based upon the foregoing, the court concludes that the petitioner has failed to present any newly discovered evidence in support of his claim of actual innocence. Even if any of the evidence were viewed as newly discovered, the petitioner has fallen far short of presenting any evidence that is clear and convincing. The claim in count one is totally unsubstantiated.
Count Two
In count two, the petitioner alleges that Avitabile rendered ineffective assistance of counsel. The amended petition asserts a vast myriad of failures — no less than twenty-six — committed during the criminal trial by Avitabile. Given the relative brevity of the criminal trial, there seems, at least from the petitioner's allegations, little that Avitabile did correctly during his representation. The petitioner's post-trial brief only addresses a fraction of all these alleged failures, so the court will limit itself to the purported failures that are addressed in the post-trial brief and deem all others abandoned.
The court will not -reiterate the multitude of purported deficiencies.
"The petitioner's failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim. `[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief. Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court . . . Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).' (Emphasis in original; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 869, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005); see also Collins v. Goldberg, 28 Conn.App. 733, 738, 611 A.2d 938 (1992) (failure to brief certain clams set forth in complaint constituted abandonment of claims in trial court)." Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796-97 (2009), cert. denied, 294 Conn. 926 (2010).
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"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 . . ." 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 factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
"A court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance if it is easier to dispose of the claim on the ground of insufficient prejudice." Taft v. Commissioner of Correction, 47 Conn.App. 499, 504, 703 A.2d 1184 (1998), citing and quoting Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993).
The primary claim against Avitabile is that he was successful when pursuing a motion to suppress and strike testimony of the minor child, N.V., because it was the unreliable product of improperly suggestive interview techniques and therapy. A hearing conducted as a result of such a motion has become known as a "taint hearing." The state objected to this motion and sought to have N.V. testify during the criminal trial. Although Avitabile sought a taint hearing, the trial court ultimately ended up conducting a hearing that determined that N.V. was not competent to testify.
As recently as 2009, the Supreme Court at length discussed such hearings. See State v. Michael H., 291 Conn. 754, 763-68, 970 A.2d 113 (2009). Connecticut is a jurisdiction that does not formally recognize pretrial taint hearings.
"Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim . . . In order to discover child abuse, investigators often rely on forensic interviews because children's free recall memory tends to be sparse and often omits important details. This is particularly true for young children in which case fear, embarrassment or loyalty may inhibit them from disclosing instances of abuse . . . Some research, therefore, has shown that interviews employing directed and leading questions can be useful in securing information regarding abuse. At the same time, we recognize that [b]ecause [y]oung children are sensitive to the status and power of their interviewers and as a result are especially likely to comply with the implicit and explicit agenda of such interviewers . . . [c]hildren . . . are more willing to go along with the wishes of adults and to incorporate adults' beliefs into their reports . . . A critical finding of psychological research is that young children, particularly preschool age children, appear to be more suggestible as a basic psychological characteristic than older children and adults . . . The present case, [ State v. Michael H.], therefore, raises the issue of how best to balance the state's need to present evidence in these difficult cases with a defendant's right to a fair trial." (Internal citations and quotation marks omitted.) Id., at pg. 764.
After reviewing other states' approaches, the Supreme Court discussed this state's approach. "In Connecticut, strong policies exist to encourage and protect child testimony. See General Statutes § 54h-86h ("No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.); . . . At the same time, we must acknowledge the trial court's gate keeping function with regard to unreliable evidence. Although not directly on point, we find instructive our holding in State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000). In that case, we noted that statements that satisfy the requirements of State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), are presumptively admissible. State v. Mukhtaar, supra, 298-99. We further recognized, however, that such a statement "may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness." Id., 306. In such a case, the court must then exercise its gate keeping function to protect the fairness of the fact-finding process and shield the jury from considering the substance of the unreliable statement . . . [T]he court's gate keeping function with respect to a Whelan statement is triggered only upon a showing by the party seeking to exclude it, that the statement was unreliable. Id., 307." (Citations omitted.) State v. Michael H., supra, 291 Conn. 766-67.
In Michael H., the Supreme Court ". . . decline[d] to decide whether some form of pretrial hearing is required to determine the reliability of [the victim's] testimony because the defendant has failed to make any showing that such testimony was the product of unduly coercive or suggestive questioning." Id., at pg. 767.
Here, Avitabile was able to achieve an unusual victory: a conclusion by the trial court that N.V. was not competent to testify. After the trial court found N.V. not competent to testify, Avitabile then sought to use the transcript of the taint hearing to help undermine N.V.'s credibility, but the trial court ruled against Avitabile. At first glance such a victory, a victory that is contrary to this state's jurisprudence, would seem to be proof of very effective representation. However, because the evidence that resulted in the petitioner's convictions was presented by witnesses other than the minor victim, Avitabile's decision to pursue the taint hearing is subject to attack in this habeas because it was successful. Stated differently, the trial court's finding that N.V. was not competent is now being used to argue that Avitabile was ineffective because if N.V. had testified, the testimony that resulted in her being found not competent to testify would, if presented to the jury, have altered the outcome of the criminal trial. Such an approach inverts the manner in which habeas courts review claims of ineffective assistance of counsel.
"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 [petitioner] 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 . . ." Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798-99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
This court must indulge a strong presumption that Avitabile's decision to pursue a taint hearing was sound trial strategy. Even if this court were to not indulge in such a presumption, Avitabile's strategy was eminently reasonable and surprisingly successful. The petitioner's claim is the pinnacle of emphasizing the distorting effects of hindsight. Although an expert witness for the petitioner opined that Avitabile should have withdrawn his motion when he realized that potentially exculpatory evidence came to light during N.V.'s testimony, the trial court had the inherent authority to find that N.V. was incompetent, even in the absence of a defense motion. And from the trial court's eventual determination that N.V. was not competent, the petitioner simply cannot show that Avitabile, had he attempted to withdraw his motion as its success became more and more apparent, could have affected the trial court's competency determination. Furthermore, it is sheer speculation to guess what weight the jury would have assigned to N.V.'s testimony had she testified during the criminal trial. Even if the jury completely disregarded N.V.'s testimony, the other witnesses provided sufficient testimony and evidence to convict the petitioner. The petitioner has failed to show that Avitabile rendered deficient performance when he sought a taint hearing that resulted in N.V.'s unavailability.
The petitioner's post-trial brief next argues that Avitabile failed to properly advocate the petitioner's innocence. Thus, several years after the criminal trial, when Pacheco was asserting that the petitioner was innocent, Avitabile "did nothing but wait for the State to act. Now, many years later, the victim sat in court claiming not to recall the incident. At the criminal trial [Avitabile] said nothing about glaring inconsistencies which went to the heart of innocence, such as whether the alleged victim had actually seen the assault." Petitioner's Post-trial Brief, at pg. 16.
The court has already addressed aspects of this claim in the context of the actual innocence claim raised in count one. Avitabile had N.V.'s statements videotaped and provided a copy of the tape to the prosecutor, who separately was also having N.V.'s statements evaluated to determine whether the result of the criminal trial should be reconsidered. After evaluating all N.V.'s statements, the state concluded that there was no unambiguous recantation, even if there was a recantation, and that the situation Pacheco brought to the prosecutor's attention was not sufficiently clear to require the state to support further action. Again, the court fails to see how the course of action pursued by Avitabile was deficient merely because it ultimately was not successful.
This court notes that Pacheco's desire to reunite with the petitioner shortly after being convicted, as well as the circumstances surrounding N.V.'s videotaped statement given at Avitabile's office, with Pacheco and others present, assuredly influenced N.V. and are factors that must be considered in assessing N.V.'s post-conviction interview at Avitabile's office. It is difficult, if not impossible, to conclude that there are sufficient indicia of reliability.
The only other deficient performance that the petitioner faults Avitabile for is not securing an expert witness during the criminal trial. According to the petitioner's post-trial brief, this is "critical to properly preparing for and presenting a defense in a claimed child sexual assault case. [Avitabile's] examination of the Nurse Practitioner served no purpose other than to cement in the minds of the jurors this questionable, borderline claim of a medical condition which was not even observed by the attending physician in the Emergency Room." Petitioner's Post-trial Brief, at pg. 16.
"The failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim . . . The petitioner seeks to have us use hindsight with [regard] to his counsel's decision not to call the witnesses to testify. [Courts] will not do so . . . [T]he presentation of testimonial evidence is a matter of trial strategy . . . 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 . . . In the absence of such a showing, [courts] are unable to conclude that the petitioner was prejudiced by counsel's failure to call an expert witness." Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).
While the petitioner alleges that Avitabile failed to present expert testimony, the petitioner has failed to present any evidence, as required, to show that such expert testimony would have helped establish a defense. Furthermore, Avitabile testified that the defense of sexual assaults, especially involving minors, was an area of interest and that he educated himself with materials and studies and even regularly attended lectures at seminars and conferences. Avitabile very thoroughly cross-examined all witnesses, and his decision to rely on such cross-examination is presumed to be sound trial strategy in the absence of a showing that it was otherwise.
Consequently, the petitioner has failed to prove that Avitabile rendered deficient performance as trial defense counsel.
Count Three
The third and final count alleges that Avitabile rendered ineffective assistance as appellate counsel on the petitioner's direct appeal. More specifically, the petitioner alleges the following: "Two appellate issues were addressed to the court: (1) the trial court's ruling that N.V. was incompetent to testify; and (2) the trial court's refusal to admit at trial N.V.'s competency hearing testimony and certain statements concerning that testimony made by N.V. to her guardian ad litem." Amended Petition, at pg. 10.
Based upon the foregoing, the petitioner alleges that Avitabile was ineffective because he failed to: brief the standard of review with respect to the first of the two issues raised on appeal; address the second issue raised on appeal as a violation of the petitioner's right to present a defense; address the second appellate claim as a violation of the petitioner's right to confront witnesses against him; address as an issue the court having allowed the introduction of multiple unreliable hearsay statements of N.V., who did not testify and was, therefore, unavailable to be cross examined; and address the issue of prosecutorial misconduct for delay of disclosure of exculpatory materials and numerous improper statements during closing arguments.
The petitioner's post-trial brief does not address count three's allegation of ineffective assistance by appellate counsel. The court may, therefore, deem the claim to be abandoned. See discussion, infra, at pg. 10.
Even if the court were to not deem the claims in count three to be abandoned, the petitioner has failed to meet his burden of proof. The Strickland stand applies, with some modification, to claims of ineffective assistance by appellate counsel. "[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish `that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal." Charles v. Commissioner of Correction, 112 Conn.App. 349, 351, 962 A.2d 868, cert. denied, 290 Conn. 922, 966 A.2d 235 (2009), citing Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008)." Davis v. Commissioner of Correction, 117 Conn.App. 737, 740, 980 A.2d 933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). The determination of ". . . whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Small v. Commissioner of Correction, 286 Conn. 722.
"[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue . . . [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Watson v. Commissioner of Correction, 111 Conn.App. 160, 169, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).
The petitioner has in no way proven that Avitabile performed deficiently as appellate counsel, nor has he show that he would have prevailed on appeal had such claims in fact been raised.
CONCLUSION
For the reasons stated above, the judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.