Opinion
No. CV00-0598782 S
August 17, 2011
MEMORANDUM OF DECISION
On May 15, 2000, the petitioner, Robert A. White, Jr., filed, in the Judicial District of Hartford, a pro se petition for a writ of habeas corpus, challenging his convictions for sexual assault in the first degree. The procedural history of this case is lengthy, but warrants recitation in some detail. The matter was docketed and, on May 18, 2000, referred to the Office of the Chief Public Defender (OCPD) for an indigency investigation and appointment of counsel. On May 31, 2000, the Habeas Corpus Unit, OCPD, filed an appearance and, on November 16, 2000, filed a motion to appoint Attorney Patrice Cohan as a special public defender, which was granted by the court, Rittenband, JTR., on April 17, 2001.
Attorney Cohan filed an appearance on July 25, 2001, and continued to represent the petitioner until the court, Rittenband, J.T.R., on July 16, 2002, granted her motion to withdraw appearance and, on July 22, 2002, referred the matter back to the Habeas Corpus Unit, OCPD, for appointment of substitute counsel. On July 31, 2002, Attorney Shawn Council filed an in lieu of appearance. Thereafter, beginning on August 26, 2002, through June 20, 2003, Attorney Council filed four motions for extension of time to file an amended petition. On July 10, 2003, the petitioner filed a motion which asked the court to dismiss appointed counsel, premised on a break down of the attorney-client relationship, and appoint new counsel. On October 28, 2003, the motion to dismiss appointed counsel was withdrawn. Between October 2003 and April 2004, Attorney Council filed four position statements that apprised the court, opposing counsel and the petitioner of the investigative efforts and status of the case.
The order page bears the notation that the petitioner and counsel agreed for her to continue representing the petitioner, even if it takes a long time, but that counsel would advise the petitioner and the court as to the progress. A notice issued by the clerk on October 28, 2003 indicates that counsel was "required to provide the court and the petitioner a progress report within 30 day[s] (11-28-03)."
In a second motion to dismiss appointed counsel, captioned March 26, 2004, the petitioner renewed his effort to have another substitute special public defender appointed in this matter. Then, on April 21, 2004, notice was sent to all parties of record that this case was being transferred to the Judicial District of Tolland, effective May 24, 2004, and that all pleadings should be filed in the new judicial district on or after that effective date. On April 12, 2004, Attorney Council filed a response to the petitioner's motion to dismiss her, in which she denied his allegations and factual recitation but did not object to the granting of the motion. Attorney Council also filed, on June 7, 2004, a motion for permission to withdraw because the attorney-client relationship had irretrievably broken down. By order dated June 22, 2004, the court, White, J, permitted Attorney Council to withdraw and referred the matter to OCPD, Habeas Corpus Unit, for appointment of counsel.
On June 28, 2004, a motion to appoint Attorney Genevieve Salvatore was filed, and was granted on July 12, 2004, although Attorney Salvatore had already filed an appearance on July 2, 2004. Thereafter, on April 5, 2005, Attorney Salvatore filed an amended petition raising numerous claims in two counts but, on August 9, 2005, also sought permission to withdraw in accordance with Practice Book § 23-41. On April 4, 2006, the court, J Kaplan, J., denied Attorney Salvatore's motion for permission to withdraw, as articulated by that court in its memorandum of decision. After several continuances, Attorney Salvatore filed a second amended petition on May 9, 2007, and, in response to a request for a more specific statement, filed a revised second amended petition on June 20, 2007. The respondent filed a return to the second amended petition on July 24, 2007.
Practice Book § 23-41 pertains to motions for permission to withdraw after appointed counsel has concluded that there are no non-frivolous claims, i.e., that the case has no merit. See also Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as adopted by the Connecticut Supreme Court in State v. Pascucci, 161 Conn. 382, 288 A.2d 408 (1971).
The materials filed by Attorney Salvatore in support of the motion for permission to withdraw were filed under seal, as was Judge Kaplan's memorandum of decision. This court has not reviewed any of these documents under seal per Practice Book § 23-41(c).
The matter was to proceed to trial on January 29, 2008; however, counsel for the respondent failed to appear on the day of trial. Per order of the court, Schuman, J., the trial was continued to April 22, 2008. Judge Schuman further ordered that "[c]ounsel for the petitioner and respondent will make their best efforts to stipulate to any testimony that respondent's attorney would have to give, so as to avoid disqualification of respondent's counsel. The petitioner shall file, by February 29, 2008, a further amendment of the petition or some other pleading memorializing the representation that he is no longer pursuing count two of the petition. Finally, any motion by the petitioner to dismiss his attorney and to proceed pro se must also be filed by February 29, 2008." On February 28, 2008, counsel for the petitioner filed a third amended petition that complied with the court's order, which prompted the respondent to file another request for a more specific statement on March 12, 2008.
In the operative petition at that time, the Revised Second Amended Petition, count two alleged prosecutorial misconduct by Assistant State's Attorney Eva Lenczewski, the original prosecutor during the criminal trial and counsel for the respondent.
On March 31, 2008, the petitioner filed a motion to dismiss counsel, permit the petitioner to represent himself, and for appointment of stand-by counsel. On June 20, 2008, after counsel and the petitioner appeared before the court, Shuman, J., the court granted the motion to dismiss counsel and the petitioner filed a pro se appearance. On October 10, 2008, the petitioner filed an amended petition, and shortly thereafter, on October 24, 2008, filed a notice with the court that he had not received copies of documents Attorney Salvatore was to provide to him after she was released from representation. On December 11, 2008, the respondent to file a request for a more specific statement and, on February 27, 2009, Attorney Salvatore filed a notice that she had provided the petitioner with a copy of her file in this matter.
Then, on June 21, 2010, the Habeas Corpus Unit, OCPD, filed an appearance and a motion to appoint a special public defender, Attorney Heather Golias, which was granted by the court, Fuger, Jr., J., on July 9, 2010, although Attorney Golias had already filed her appearance in this matter on June 21, 2010. Attorney Golias filed a fifth amended petition (amended petition) on February 22, 2011, which has remained as the operative complaint, and she has continued to represent the petitioner to the present.
The amended petition raises claims in three counts: first, ineffective assistance of trial counsel, Attorney Lawrence Hopkins; second, trial counsel's conflict of interest; and third, prosecutorial misconduct. As relief the petitioner asks this court to vacate his convictions and sentences, refer the matter back to the trial court for further proceedings, and such other relief as law and equity may require. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief. The return also raises several affirmative defenses: as to count one, procedural default and collateral estoppel; as to count three, procedural default. The petitioner filed a reply that is responsive to the return.
In State v. Fauci, 282 Conn. 23, 26 n. 2, 917 A.2d 978 (2007), the Supreme Court determined that "the term 'prosecutorial impropriety' . . . is more appropriate than the traditional term of 'prosecutorial misconduct' . . ." (Citation omitted.) Although the petitioner has alleged prosecutorial misconduct, this court instead shall utilize the phrase prosecutorial impropriety.
The matter proceeded to trial on May 4, 2011, at which time the petitioner presented testimony from his former trial defense counsel, Attorney Lawrence Hopkins, as well as his own testimony. Additionally, the petitioner entered numerous documents, primarily transcripts, into evidence. The court has considered the testimony and reviewed the documentary evidence and, based on the admitted allegations and the evidence presented, makes the following findings of fact. For the reasons stated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
The court did not permit or order post-trial briefs; however, the court permitted counsel to bring to the court's attention any case law relevant to the court's inquiries of counsel at the close of trial. Counsel for the petitioner filed a letter with the court on May 26, 2011. The letter was certified to opposing counsel and has been made part of the court's file.
FINDINGS OF FACT
The petitioner was charged in the judicial district of Waterbury, docket number CR 96-0252888, with two counts of sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(1). Attorney Lawrence Hopkins represented the petitioner in that matter, both during the pre-trial and trial phases. On September 30, 1997, after jury selection had begun, the petitioner came before the court, Iannotti, J., to enter a written plea of nolo contendere to one count of sexual assault in the first degree in exchange for an agreed sentence of eight years of incarceration, suspended after the service of three and one-half years, followed by ten years of probation, which was agreeable to the victim. Judge Iannotti accepted the plea and the prosecutor placed the factual basis for the plea on the record.
Petitioner's Exhibit 16 (Tr. Sept. 30, 1997), pgs. 1-3.
Judge Iannotti thoroughly canvassed the petitioner to ensure that his plea was knowing, intelligent, voluntary and after consultation with counsel. After the court asked whether he presently was under the influences of any alcohol, drugs, or medication of any kind, the petitioner indicated that he was on anti-depressant medication. After further inquiry by the court, most importantly whether the medication in any way affected the petitioner's understanding of the plea bargain and his discussions with Attorney Hopkins, the petitioner indicated that he understood the discussions with counsel and the plea canvass proceeding. Judge Iannotti asked the petitioner if he understood that the agreed upon recommendation was for a sentence of eight years, execution suspended after three and one-half years, followed by ten years probation. The petitioner was also asked whether he had discussed with Attorney Hopkins the evidence that the state claimed to have in support of the charged offenses. The petitioner answered in the affirmative to all the foregoing inquiries by the court, but requested the opportunity to further discuss with Attorney Hopkins the evidence the state would present at trial.
Id., pg. 5.
Id., pg. 5-6.
Id., pg. 6
Id., pgs. 6-7.
Id., pgs. 7-8.
The petitioner and Attorney Hopkins discussed the evidence and both indicated to the court that the petitioner understood the evidence. However, the petitioner then continued by expressing that he was not guilty and that he disagreed that the state would be able to prove he committed the charged offenses. Judge Iannotti asked the petitioner if he wanted to withdraw his nolo contendere plea. The petitioner initially stated that he would take the suggested sentence, but again proclaimed that he was not guilty and decided to take the matter to trial. The nolo contendere plea was withdrawn and jury selection recommenced.
Id., pg. 8.
Id., pg. 9.
Id., pg. 10.
Id., pg. 10-11. The petitioner adamantly expressed his desire to proceed to trial: "I've got to take this to trial because I'm not guilty, damn it." Id., pg. 11.
The matter proceeded to trial before a jury, which convicted the petitioner of both counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). "The jury reasonably could have found the following facts. The [petitioner] was the brother-in-law of the victim's best friend and was known to the victim from prior social gatherings. On the evening of July 6, 1996, the [petitioner] arrived at the victim's residence unannounced. The victim, a thirty-two year old female, was home with one of her daughters. The [petitioner] was very upset and crying because he and his wife had been arguing. He explained to the victim that his wife had banished him from their residence, and that he had been sleeping at work and in his truck and needed a shower. The victim admitted the [petitioner] into her residence and allowed him to use the shower. She did not feel threatened by the [petitioner] because she knew him.
"After showering, the [petitioner] stated that he needed a place to sleep, and the victim told him that he could stay for one week and sleep on a couch. Shortly thereafter, the [petitioner] informed the victim that he was leaving to attend a party. The [petitioner] did not return until 9:30 the following morning.
"On July 7, 1996, after the victim's daughter left to visit with her father, the [petitioner] and the victim began discussing his marital problems. As the conversation progressed, the [petitioner] began what the victim described as sexual talk and offered to give the victim a massage, which she declined. Later that day, the [petitioner] resumed the 'sexual talk' in a suggestive tone that caused the victim to feel uncomfortable. At one point, the victim went outside to avoid the [petitioner]. The [petitioner] followed her, however, and continued talking in a sexually suggestive manner. The victim ignored him but felt he was staring at her. The [petitioner] again sought to give the victim a massage and she again refused.
"The victim went back inside and was followed by the [petitioner]. The [petitioner] approached the victim from behind and began groping her and fondling her breasts. The victim asked, '[W]hat are you doing?' and the [petitioner] pushed her onto the couch, pinning her arms behind her. In the process, the [petitioner] fell onto the couch with her, and his weight and leverage held the victim against the couch, rendering her immobile. The [petitioner] had a 'very mean look' on his face, removed the victim's shorts, forcibly held her legs down and performed cunnilingus on her. After the [petitioner] stopped, he stood and started to remove his clothing. The victim was dazed when she got up from the couch and tried to walk toward the bathroom, but the [petitioner] guided her into the bedroom, pushed her onto the bed and engaged in vaginal intercourse.
"During this ordeal, the victim was horrified and experienced great pain. Finally able to free herself, she ran into the bathroom and ordered the [petitioner] to leave. The victim was initially reluctant to contact the police, fearing that the [petitioner] would harm her. After contacting a friend and a rape crisis center, she notified the police later that same day.
"The [petitioner], who had four prior felony convictions, . . . admitted at trial that he performed cunnilingus and engaged in vaginal intercourse with the victim, but claimed that their encounter was consensual." (Footnote omitted.) State v. White, 55 Conn.App. 412, 414-16, 740 A.2d 399, cert. denied, 252 Conn. 908, 743 A.2d 621 (1999).
On appeal, the petitioner raised the following claims: ". . . that the trial court improperly (1) found that the state presented sufficient evidence to sustain the verdict, (2) instructed the jury on the element of lack of consent, (3) admitted statements made by the defendant under the admissions exception to the hearsay rule and (4) admitted evidence that the defendant had used an alias." Id., pg. 414.
The court, Espinosa, J., sentenced the petitioner to a total effective sentence of thirty years, suspended after the service of twenty years, followed by ten years probation.
The Appellate Court affirmed the judgment of the trial court and the Supreme Court denied certification to appeal from the Appellate Court's decision.
Additional facts shall be addressed below as needed.
DISCUSSION I.
The petitioner's first claim is that Attorney Hopkins rendered ineffective assistance of counsel, premised on a dozen purported failures. According to the petitioner, trial defense counsel failed to: (1) adequately advise him about the nolo contendere plea; (2) negotiate and secure a plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), with the same agreed sentence as the plea of nolo contendere; (3) object to evidence of the alleged victim's medical history presented by the state; (4) object to lay witness testimony by Drs. Hakim and Siegler of their expert opinion; (5) improperly elicited and then did not object to testimony by Dr. Siegler about the alleged victim's truthfulness; (6) improperly waived for appeal the motion to preclude the state from questioning him about two robbery convictions that were more than ten years old; (7) object to the closing argument by the state in which the prosecutor improperly vouched for the credibility of the state's witnesses; (8) object to the jury charge by the court, Espinosa, J., which instructed the jury that two lay witnesses, Drs. Hakim and Siegler, were qualified as experts and provided expert opinions; (9) improperly argued in closing to the jury and failed to request a jury charge on the prior misconduct evidence introduced by the State; (10) investigate and present evidence in mitigation of the penalty in connection with the petitioner's sentencing; (11) prepare the petitioner for his presentence investigation interview; and (12) advise the petitioner about his allocution before he addressed the court at his sentencing hearing.
"The Alford doctrine allows a defendant to plead guilty without admitting guilt. In pleading guilty, however, the defendant acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea." (Internal quotation marks omitted.) State v. Boscarino, 86 Conn.App. 447, 451 n. 4, 861 A.2d 579 (2004). United States Supreme Court cases have described Alford pleas as permitting a defendant to plead guilty while protesting innocence. See, e.g., United States v. Vonn, 535 U.S. 55, 69 n. 8, 122 SC 1043, 152 LE2d 90 (2002); Henderson v. Morgan, 426 U.S. 637, 648 n. 1, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (White, Stewart, Blackmun and Powell, Js., concurring).
The respondent's return asserts the affirmative defenses of procedural default and collateral estoppel to some of these claims. The petitioner's reply to the return asserts that procedural default is improperly asserted by the respondent because the claims are claims of ineffective assistance of counsel raised for the first time. Except as to the claim of prosecutorial impropriety raised in count three, the court agrees that procedural default is inapplicable to the petitioner's claims. And as to the defense of collateral estoppel, the court also concurs that it is not applicable to the claimed ineffective assistance counsel, again raised for the first time.
Procedural default is raised as to the claims in paragraphs 16, 17, and 21 of the amended petition. Collateral estoppel is raised as to the claims in paragraph 21 of the amended petition.
The court will address these various claims, albeit occasionally grouped into logical clusters.
A. CT Page 18004
"The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. 'In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.' (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 70-71, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).
"To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. See Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). Competent representation is not to be equated with perfection. '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.' (Internal quotation marks omitted.) Jeffrey v. Commissioner of Correction, 36 Conn.App. 216, 219, 650 A.2d 602 (1994). '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.' (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn.App. 297, 300-01, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).
"With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that 'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Strickland v. Washington, supra, 466 U.S. 687. 'It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . 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.' (Citations omitted; internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 408, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 107 L.Ed.2d 514 (1989)." 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).
B.
The petitioner's first two claims, that Attorney Hopkins failed to adequately advise him about the nolo contendere plea, as well as negotiate and secure a plea under North Carolina v. Alford, supra, with the same agreed sentence as the plea of nolo contendere, are the first logical grouping. These two claims can be distilled to their essence: that the petitioner now asserts that he would have pleaded guilty under Alford had Attorney Hopkins properly explained the differences between an Alford plea and a plea of nolo contendere. Stated somewhat differently, the petitioner asserts that he did not accept the nolo contendere plea because he did not understand that an Alford plea would permit him to maintain his innocence. The credible evidence belies these assertions.
The petitioner, through Attorney Hopkins, negotiated a written nolo contendere plea and appeared before Judge Iannotti on September 30, 1997. Attorney Hopkins testified on direct examination at the habeas trial that the purpose of the nolo contendere plea in the petitioner's case was to ward off liability in a potential civil suit by the complainant victim. Attorney Hopkins further testified that a nolo contendere plea is tantamount to a guilty plea, that he likely discussed an Alford plea with the petitioner, and that he thought the court would have accepted any form of a guilty plea, whether a straight, nolo contendere or under the Alford doctrine. According to Attorney Hopkins, an Alford plea would not be barred from submission to a civil jury, as is the nolo contendere plea, therefore making the latter the better option in the petitioner's circumstances.
"The United States Circuit Courts of Appeals have held that pleas of nolo contendere may not be used to establish guilt conclusively in subsequent civil and criminal proceedings. See, e.g., Doherty v. American Motors Corp., 728 F.2d 334, 337 (6th Cir. 1984) ('a plea of nolo contendere is a confession only for the purpose of the criminal prosecution and does not bind the defendant in a civil action for the same wrong'); Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893-94 (2d Cir. 1976) (consent decrees, like nolo contendere pleas, may not be used in subsequent proceeding for collateral estoppel purposes, since issues sought to be precluded were not actually litigated). The majority of state courts also have so held. See, e.g., State v. Ruby, 650 P.2d 412, 414 (Alaska App. 1982) ('[A] conviction, even though based upon a plea of nolo contendere, is admissible in a subsequent probation revocation proceeding to prove a violation of law . . . Consistent with general law governing pleas of nolo contendere, such evidence is, however, not conclusive against [the defendant]. It does not collaterally estop him from protesting his innocence and, consequently, he should be given an opportunity, if he requests it, to put on evidence which would support his contention that he is not guilty . . .' [Emphasis omitted]); Maselli v. State, 446 So.2d 1079, 1080-81 (Fla. 1984) (at probation revocation proceeding, '[t]he judge may rely on [a] conviction even if it was imposed pursuant to a plea of nolo contendere,' but 'the probationer must be provided an opportunity to be heard on . . . whether he is guilty of the charge to which he pleaded no contest'). Connecticut decisions are in accord with this majority view. State v. Bridgett, 3 Conn. Cir.Ct. 206, 208-09, 210 A.2d 182 (1965) ('[t]he defendant is not estopped from denying the facts to which he pleaded nolo contendere in a subsequent judicial civil proceeding'). With respect to an Alford plea, the Appellate Court stated in Johnson v. Commissioner of Correction, 36 Conn.App. 695, 706, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995), that 'an Alford plea . . . would have enabled [the defendant] to continue to maintain his innocence.'" State v. Daniels, 248 Conn. 64, 84-85, 726 A.2d 520 (1999), overruled on other grounds by State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005) (McDonald, J., concurring).
On cross-examination, Attorney Hopkins emphasized that he strove to convince the petitioner to resolve the matter short of trial. However, the petitioner was not amenable to resolving the matter by way of a plea agreement. On redirect examination, Attorney Hopkins indicated that he thought that it would have been more difficult for the petitioner to successfully get through an Alford plea, compared to a nolo contendere plea, because the former required an admission by the petitioner that he likely would be convicted at trial. Attorney Hopkins testified that every plea requires a factual basis. Whether or not Alford pleas necessitate a factual basis, Attorney Hopkins was concerned about the petitioner successfully completing an Alford plea canvass because it would require an admission by him that he likely would be convicted after trial, which was completely antithetical to the petitioner's insistence that he was not guilty.
Counsel for the petitioner on May 26, 2011, filed a letter with the court apprising this court of relevant case law on whether or not a factual basis is required for Alford guilty pleas. The letter, as had the petitioner's pre-trial brief, cites to Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 730, 789 A.2d 1046 (2002), and State v. Gidek, 182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981), in support of the contention that Alford pleas do not require factual bases. Those cases indicate that our procedural rules do not require a factual basis for a court to accept an Alford plea. Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. 730; State v. Godek, supra, CT Page 18038 182 Conn. 364. Nevertheless, a court has the discretion to require a factual basis before accepting either a nolo contendere or Alford plea. Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. 730 n. 10; State v. Godek, supra, 182 Conn. 365 n. 13. The Supreme Court in Godek did note that "[w]hile a defendant who is permitted to plead nolo contendere does not expressly admit his guilt in doing so[,] . . . the defendant effectively consents to being punished as if he were guilty." (Citations omitted.) State v. Godek, supra, 182 Conn. 365 n. 13. This court fails to discern, within the context of the petitioner's claims, any meaningful, practical or legal distinction between an Alford plea and a plea of nolo contendere.
The petitioner testified on direct examination that he and Attorney Hopkins discussed the plea and whether the state had enough evidence to convict him. The petitioner further testified that he did not know what an Alford plea was, that he intended to plead guilty, and that he felt he was not guilty, and that the state could not prove he was guilty. According to the petitioner, Attorney Hopkins did not explain an Alford plea to him, but he now understands that an Alford plea would have permitted him to maintain his innocence but plead and agree to a sentence. On cross-examination, the petitioner conceded that he was pleased with the state's offer of eight years to serve, execution suspended after the service of three and one-half years, in exchange for a guilty plea to one count of sexual assault in the first degree, and that this was not too much time for the charged offense. The petitioner again stressed that he was not guilty and that he had a difficult time admitting that the state had sufficient evidence to convict him.
Based upon the foregoing, the court concludes that the petitioner has failed to show that Attorney Hopkins rendered deficient performance. The credible evidence supports the conclusion that Attorney Hopkins properly advised the petitioner regarding the nolo contendere plea. Although nolo contendere and Alford pleas are functional equivalents, potential subsequent legal consequences or liability may not be identical. For the instant purpose of determining whether Attorney Hopkins failed to secure an Alford plea, the court is unable to discern any legally meaningful distinctions between nolo contendere and Alford pleas. Both types of pleas are forms of guilty pleas. The petitioner now contorts his continuing protestation of innocence into an assertion that he would have entered an Alford plea because he thereby would have been able to maintain an aura of innocence while obtaining the benefit of a lower sentence. The transcript of the plea canvass completely undermines this claim. The petitioner explicitly told Judge Iannotti that the state did not have enough evidence to prove him guilty. Such a position made an Alford plea impossible.
"Although State v. Godek, supra, 182 Conn. 363-64, dealt with a plea of nolo contendere, it addressed the issue of whether the Practice Book provisions regarding pleas apply only to pleas of guilty or to those in which the defendant does not admit to the crime. Concluding that those provisions apply only when the defendant admits guilt, the Godek court used the language and reasoning set forth in North Carolina v. Alford, supra, 400 U.S. 25. State v. Godek, supra, 363-64. Our Supreme Court also has noted that the United States Supreme Court has treated Alford pleas and pleas of nolo contendere as the 'functional equivalent' of one another. State v. Palmer, 196 Conn. 157, 169 n. 3, 491 A.2d 1075 (1985). We have stated previously that the two are functionally equivalent. See, e.g., State v. Banks, 24 Conn.App. 408, 412, 588 A.2d 669 (1991); State v. Pena, 16 Conn.App. 518, 533, 548 A.2d 445, cert. denied, 209 Conn. 830, 552 A.2d 1217 (1988). As a result, the rationale in Godek that a factual basis is not required for Alford pleas applies." Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. 730 n. 11.
The petitioner chose, against the advice of counsel, to proceed to trial because he maintained his plea of not guilty, wanted to hold the state to its burden of proof and have the matter tried to a jury because he maintained his innocence. The adamancy of the petitioner's insistence of his innocence and compulsion to take the matter to trial belie his present claim that he would have pleaded guilty under the Alford doctrine. The petitioner has, therefore, failed to show both deficient performance and prejudice as to these first two bases of ineffective assistance.
C.
The next grouping of claims pertains to Attorney Hopkins' performance during the trial itself. More specifically, that he failed to object to various testimonies. "'[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . .' (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 801. An '[e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury.' (Internal quotation marks omitted.) State v. Davis, 76 Conn.App. 653, 665, 820 A.2d 1122 (2003)." Servello v. Commissioner of Correction, 95 Conn.App. 753, 761-62, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).
1.
The first allegation is that Attorney Hopkins failed to object to evidence of the complainant victim's medical history presented by the state. The petitioner asserts that her medical history was not relevant and more prejudicial than probative. This court disagrees with that assertion.
The victim testified on direct examination during the criminal trial that the petitioner with force had sexual intercourse with her. According to her, the forced sexual intercourse was "very forceful" and caused her "[u]nbelievable pain." The pain that she initially felt beginning with the vaginal intercourse continued for a while thereafter, though altering her body position provided some comfort. Additionally, the victim testified that her doctor, Dr. Hakim, had advised her to abstain from sexual intercourse because of cysts on her left ovary that were very painful when there was sexual intercourse. She also was concerned about the ovary potentially rupturing or having to be removed and that she then would have to resort to hormonal therapy should the remaining ovary be removed. The victim further testified that the pain subsequent to the forced sexual intercourse did not go away and that several days after the sexual assault she went to see Dr. Hakim. Thereafter, she returned to work but experienced significant pain and, after calling Dr. Hakim, went to an emergency room. Dr. Hakim met her at the hospital and performed surgery to remove her one remaining ovary.
Petitioner's Exhibit 8, pg. 65.
Id., pg. 68.
Id., pg. 77.
Id.
Id., pg. 79.
Id., pg. 80.
The victim was then asked whether she had any other medical conditions that she could attribute to the sexual assault. Attorney Hopkins objected to her giving an opinion as to what caused any such medical conditions, emphasizing that there were numerous medical records and that medical experts could testify and render their opinions. The court sustained defense counsel's objection over the prosecutor's indication that she claimed the testimony.
Id.
Id.
Id., pgs. 80-81.
On cross examination, the victim testified that she was hospitalized for six days due to the surgery to remove her remaining ovary and missed about six weeks of work. She reiterated that she had been abstaining from sexual intercourse and that Dr. Hakim was monitoring the cyst to see if it would shrink before resorting to surgery. Additionally, she testified that the surgery she underwent was, in her opinion, hastened by the sexual assault she suffered at the petitioner's hands. On redirect, the victim explained that her long history of gynecological problems dating back to 1984, about twelve years prior to the sexual assaults, had resulted in not just the initial removal of an ovary, but also of her uterus, cervix and fallopian tubes. The forceful sexual assault and the violent penetration caused her immediate pain that lasted until Dr. Hakim performed surgery.
Id., pg. 96.
Id., pg. 139.
Id., pgs. 144-45.
Id., pg. 152. According to her testimony, there were five or six surgeries subsequent to 1987, as well as subsequent to an ectopic pregnancy in 1984. Id.
Id., pgs. 157-58.
Dr. Siegler testified on direct examination about treating the victim after she went to the emergency room and performing a physical exam. According to Dr. Siegler, the victim reported pain in her lower abdomen on the left side that was worse when Dr. Siegler palpitated that area. Dr. Siegler confirmed, to a reasonable degree of medical certainty, that the reported pain was consistent with pressure on the cyst during forcible sexual intercourse. As to the tender area in her lower abdomen, the area Dr. Siegler palpitated, he was only able to indicate that such tenderness could be consistent with forcible sexual intercourse.
Petitioner's Exhibit 9, pgs. 6-13.
Id., pg. 10. This is consistent with her having one ovary, namely the left one.
Id., pg. 11.
Id.
On cross-examination, Attorney Hopkins got Dr. Siegler to concede that the tenderness and pain would be equally consistent with consensual sexual intercourse. Dr. Siegler additionally testified that there were no visible physical injuries or trauma sustained by the complainant victim. The external examination of her genitalia and remainder of her body also showed no injuries or trauma.
Id., pgs. 14-15.
Id., pg. 15.
Id., pgs. 17-20, 27.
Dr. Hakim, the victim's gynecologist, testified on direct examination about her medical history, including the prior surgeries he had performed on her to remove several organs. Dr. Hakim saw the victim on multiple occasions when she complained of pelvic pain and performed surgeries to relieve the pain. According to Dr. Hakim, she visited his office on June 12, 1996, nearly one month prior to the sexual assaults, and complained about pain in her left lower quadrant that had been gradually worsening for about three months. The standard recommendation given to patients experiencing pelvic pain is to abstain from sexual intercourse and other activities that could trigger pelvic pain. On July 8, 1996, the day after the sexual assault, the victim visited Dr. Hakim and informed him that she had been raped and continued to experience pain in her lower left quadrant. Dr. Hakim did not perform an examination because she had been examined the night before at the emergency room and he did not want to exacerbate any trauma. Yet another day later, on July 9, 1996, Dr. Hakim met the victim at the emergency room and performed the surgery to remove the one remaining ovary. Dr. Hakim confirmed that forcible vaginal sexual intercourse could increase the amount of pain that she was experiencing, as well as that the ovarian cyst could be twisted or ruptured by such forcible vaginal sexual intercourse.
Petitioner's Exhibit 10, pgs. 6-7.
Id., pgs. 8-9.
Id., pg. 10.
Id., pg. 12.
Id.
Id.
Id., pgs. 13-15.
Id., pgs. 15-16.
Attorney Hopkins then cross-examined Dr. Hakim regarding the foregoing testimony. Most importantly, Attorney Hopkins was able to get Dr. Hakim to concede that he did not know whether the sexual assault caused the exacerbation of the ovarian cyst and that the surgeries themselves can cause painful adhesions within her pelvis. The prosecutor briefly conducted redirect examination and then the trial court asked Dr. Hakim about why he in June of 1996 advised the victim to abstain from intercourse. Dr. Hakim explained that such advice was standard and emphasized that it was not possible to quantify the degree to which the forced sexual intercourse exacerbated her problems, problems for which he had not indicated surgery in June of 1996.
Id., pgs. 18-25.
Id., pgs. 27-28.
From the foregoing, it is readily apparent that the victim's medical history was highly relevant to the criminal case, both to the prosecution and to the defense. "'Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.' (Internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 788-89, 699 A.2d 91 (1997). 'The trial court has wide discretion to determine the relevancy of evidence' and '[e]very reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion.' (Internal quotation marks omitted.) State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). 'The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence . . . is irrelevant.' (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 605, 669 A.2d 562 (1995)." State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).
Attorney Hopkins testified at the habeas corpus trial that he received copies of the victim's medical records. Therefore, he was aware that her prior surgeries were the basis for Dr. Hakim's advice that she avoid sexual intercourse. The medical records were, according to Attorney Hopkins, essentially as equivocal as were the testimonies by Drs. Siegler and Hakim. Simply put, there was nothing about the victim's physical condition that showed a forced sexual assault occurred.
This court is unable, based upon the foregoing discussion, to conclude that there were valid reasons for Attorney Hopkins to object to the medical history based on relevance grounds. Such evidence was highly relevant to both sides. For the prosecution, the evidence buttressed the victim's testimony that she would not have consensual sex with the petitioner. For the defense, the history failed to prove that the sex between the victim and the petitioner was forced. In fact, it was so equivocal that it is inconceivable how any prejudice, if there even was any, outweighed its probative value. There is no merit to the claim that Attorney Hopkins rendered deficient performance by failing to object to medical history evidence and the prosecutor's use thereof during closing arguments.
2.
The second allegation is that Attorney Hopkins failed to object to lay witness testimony by Drs. Hakim and Siegler of their expert opinions, to a reasonable degree of medical probability or certainty, respectively, about forcible sexual intercourse. The petitioner identifies several instances where Dr. Hakim testified about whether a forced sexual assault would have negatively impacted the complainant victim's preexisting medical conditions. See Petitioner's Exhibit 10, pgs. 17, 15-17, and 26-27. The petitioner also identifies one instance in which Dr. Siegler testified about the pain being consistent with forcible sexual intercourse. See Petitioner's Exhibit 9, pg. 11. The petitioner does not claim that Drs. Hakim and Siegler were not qualified to provide this testimony, or that there was not a basis for it. Instead, he claims that Attorney Hopkins should have objected to its admission for the sole reason that the witnesses had not been disclosed by the state as expert witnesses.
In fact, there is little question that the evidence was in all other respects admissible. "[O]ur case law is clear that a physician's medical opinion is not inadmissible because it is formed, in whole or in part, on the basis of hearsay statements made by a patient. See George v. Ericson, 250 Conn. 312, 320, 736 A.2d 889 (1999) (although '[i]t is the general rule that an expert's opinion is inadmissible if it is based on hearsay evidence . . . [o]ne exception to this rule . . . is the exception which allows a physician to testify to his opinion even though it is based, in whole or in part, on statements made to him by a patient for the purpose of obtaining from him professional medical treatment or advice incidental thereto') [citation omitted; emphasis added; internal quotation marks omitted]). The rationale for this exception is that 'the patient's desire to recover his health . . . will restrain him from giving inaccurate statements to a physician employed to advise or treat him.' (Internal quotation marks omitted.) State v. Cruz, 260 Conn. 1, 7, 792 A.2d 823 (2002); see also C. Tait E. Prescott, Connecticut Evidence (4th Ed. 2008) § 8.20.2, p. 520 ('[the] exception is based on the theory that persons who consult a doctor for advice or treatment will be motivated by a desire to recover . . . and that such persons will therefore refrain from giving inaccurate statements to the individual advising or treating them'). Accordingly, we conclude that the treating physicians' reliance on statements provided by the patient to establish a temporal basis for their medical conclusions did not render their opinions, as to causation inadmissible. See George v. Ericson, supra, 325 ('fact that an expert opinion is drawn from sources not in themselves admissible does not render the opinion inadmissible' [internal quotation marks omitted]); Poulin v. Yasner, [ 64 Conn.App. 730, 743, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001)] (trial court improperly precluded physician's expert testimony that was based in part on statements by injured party)." (Emphasis added.) Milliun v. New Milford Hospital, 129 Conn.App. 81, 96-97, 20 A.3d 36 (2011).
The claim here is not that Attorney Hopkins failed to object on hearsay grounds. The foregoing passage from Milliun does, however, support the conclusion that the doctors' testimonies would not have been excluded had Attorney Hopkins objected that the doctors were providing lay testimony of their expert opinions. Both doctors had hybrid roles in this case, as both were treating physicians who treated the complainant victim based on her preexisting medical conditions and the reported forced sexual assault. A doctor's expertise automatically is part of treating a patient. The petitioner here seems to advocate that treating physicians leave their expertise at the courthouse doorsteps prior to testifying about the causation of the complainant victim's pain and exacerbated medical conditions.
From the evidence presented to this court, it does not appear as though Drs. Siegler and Hakim were disclosed by the state as expert witnesses. They both were treating physicians and were fact witnesses. Nevertheless, given their respective expertise, both Drs. Siegler and Hakim proffered testimony about the causation of the pain and the potential for the forcible sexual assault to exacerbate preexisting medical conditions. Attorney Hopkins testified that the testimonies presented by both doctors were equivocal. This court concurs with that assessment. Attorney Hopkins effectively used cross-examination of both doctors to show that it would be speculation to definitively link the sexual assault as the cause of the pain and worsened condition that necessitated surgery.
After reviewing the challenged testimonies, the court concurs with Attorney Hopkins' assessment that both Drs. Siegler and Hakim presented equivocal evidence. Whether to object to their testimony was a tactical decision made in furtherance of the overarching trial strategy. The petitioner admitted having sexual intercourse with the victim, but claimed that it was consensual. According to both doctors, the victim's pain and worsening medical conditions could also have resulted from consensual intercourse with the petitioner. To object that the doctors were presenting expert testimony although only testifying as lay witnesses would contradict and undermine both the trial strategy and the tactical decision to use cross-examination to make this point. Consequently, the court is unable to conclude that Attorney Hopkins was deficient for failing to object on this ground.
3.
The third and final allegation in this grouping is that Attorney Hopkins "improperly elicited and failed to object to testimony by Dr. Samuel Siegler about the alleged victim's truthfulness, which was argued by the State in closing arguments to the jury, and which was the ultimate conclusion for the jury to decide at trial." Amended Petition, pg. 4. Additionally, the petitioner claims that Attorney Hopkins "failed to object to the closing argument by the State in which the prosecutor improperly vouched for the credibility of the State's witnesses, offered her opinion about the evidence, and appealed to the emotions of the jurors." Id., pg. 5.
The amended petition goes on to assert that "Dr. Siegler testified on cross-examination by trial counsel that '. . . I thought she was legitimate. That was my own opinion.' and that "I felt her — that she was a reliable historian . . .' P. Exh. 9 at 24, 27. He testified on redirect examination by the State that 'in this particular situation, I was impressed to the point that I could say that she was reliable . . . It just seemed like she was reliable . . . just based on my feeling, ah, just the way she came off that she seemed reliable and to the — . You know, it seems as though she was telling the truth.' P. Exh. 9 at 28-29. The State argued Dr. Siegler's testimony about the alleged victim's reliability in closing to the jury. P. Exh. 11 at 93-94." Amended Petition, pgs. 4-5.
The foregoing excerpts from the transcripts are a matter of record. The following additional excerpts are also relevant to this claim.
[Attorney Hopkins:] And you saw this woman for 30 minutes?
[Dr. Siegler:] That's right.
[Attorney Hopkins:] And one can only assume that you spent a lot of that time doing the physical examinations that you described?
[Dr. Siegler:] I spent — I'm sure I spent a good 5 or 10 minutes just in dialogue and not on physical exam. And I think that although I'm not a psychiatrist, we practice a lot of psychiatry, so to speak, in the emergency room, and we have to assess people's mental status and their reliability, and we have to qualify our history based on the patient's reliability. And based on my perception of her mental status and her emotional state, I thought she was legitimate. That was my own opinion.
[Attorney Hopkins:] That's your opinion?
[Dr. Siegler:] Right.
[Attorney Hopkins:] And it's really based on speculation because there is no physical evidence that she was physically [assaulted]?
[Dr. Siegler:] That's true.
[Attorney Hopkins:] There is none. Absolutely none. I mean we can agree on that, can't we?
[Dr. Siegler:] Yeah.
[Attorney Hopkins:] And so that when you give this opinion, you base it on your 30 minutes of time that you — that you spent with her, and that you speculate based on what you observed of her, that what she was telling you, there may have been some truth to it? You really didn't get a very good description from her or a very detailed description of exactly what happened, did you?
[Dr. Siegler:] I did.
Petitioner's Exhibit 9, pgs. 24-25.
Attorney Hopkins continued asking questions on cross-examination that eventually led to Dr. Siegler indicating that the complainant victim "didn't appear to be somebody who was hysterical or fabricating." Attorney Hopkins then concluded his cross-examination as follows:
Id., pg. 26.
[Attorney Hopkins:] Okay. So she wasn't hysterical then? There was — I thought you indicated on direct that she seemed at some juncture to be hysterical, but that's not your present recollection?
[Dr. Siegler:] No. Not hysterical.
[Attorney Hopkins:] And there is nothing about your physical examination of her, again, from which you could determine that she had been forcibly sexually assaulted?
[Dr. Siegler:] That's correct.
[Attorney Hopkins:] And so you speculate based on your observation of her demeanor that there may have been something true to what she was saying to you?
[Dr. Siegler:] That's correct. I felt her — that she was a reliable historian and . . .
[Attorney Hopkins:] Okay.
[Dr. Siegler:] And there did not appear to be any inconsistencies.
[Attorney Hopkins:] So your not having been at the scene of this incident, you are convinced by what you observed of her demeanor, not of her physically, but of her demeanor that this occurred? You can sit there under oath and tell the ladies and gentlemen of this jury that she was forcibly sexually assaulted based on what you observed of her demeanor in those 30 minutes?
[Dr. Siegler:] I could only say that she seemed like a reliable historian. I — there was based on — you know I — I don't think I'm in a position to say whether it happened or not.
Id., pgs. 26-27.
On redirect examination, the prosecutor immediately sought to capitalize on the testimony Attorney Hopkins elicited from Dr. Siegler. To wit:
"Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject . . . The party who initiates discussion on the issue is said to have 'opened the door' to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence . . . This rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context . . . The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence . . . Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal . . ." (Internal citations and quotation marks omitted.) State v. Graham, 200 Conn. 9, 13-14, 509 A.2d 493 (1986).
[Ms. Lenczewski:] And, Doctor Siegler, you take medical histories from most of the patients you deal with?
[Dr. Siegler:] Everybody. Virtually everybody.
[Ms. Lenczewski:] And is it your training and in your experience to look for signs of unreliability in relating that history?
[Dr. Siegler:] That's correct.
[Ms. Lenczewski:] And do you also do that with individuals who come in complaining of sexual assaults?
[Dr. Siegler:] Yes. Everybody.
[Ms. Lenczewski:] And did you do that in this instance?
[Dr. Siegler:] Yes.
[Ms. Lenczewski:] And did you see any signs of unreliability or any reason to not accept what was given to you as history or as past events?
[Dr. Siegler:] No. Um, I do see a fair number of sexual assaults and there are — we make no attempt to determine guilt or innocence, you know, or whether the patient's a legitimate victim or not. But just based on — you always make an attempt to assess the patient's mental status and whether they seem reliable or not. And in this particular situation, I was impressed to the point that I could say that she was reliable. She was unimpaired. There was no smell of alcohol. No evidence of overuse of narcotics or large ingestion of Codeine she takes symptomatically for her ovarian cyst, and the entire history seemed consistent, and there was no tentativeness. It just seemed like she was reliable. You know. That she seemed reliable as far as — I mean there are patients who seem reliable and obviously they are telling the lies, but in her situation, I mean, just based on my feeling, ah, just the way she came off that she seemed reliable and to the — You know, it seems as though she was telling the truth.
Id., pgs. 28-29.
Attorney Hopkins neither objected to the foregoing questions on redirect, nor did he make a motion to strike the testimony, nor did he request that the court give a curative instruction. In closing arguments the prosecutor, discussing Dr. Siegler, stated, "It's part of his job to look for that, to look for trauma, to look at reliability, consistency in story. And he told you about that. He described to you his judgment that she was traumatized, that she appeared shaken up, that she was reliable in her history and her facts, and she had been clear on what happened to her."
Petitioner's Exhibit 11, pgs. 93-94.
In addition to the state arguing the complainant victim's reliability to the jury in closing arguments, Attorney Hopkins also integrated Dr. Siegler's testimony into his closing arguments:
This Doctor Siegler, the emergency physician who testified, the bottom line with his testimony, you know, and it's interesting because we do all of these pretextural negotiations that is if somebody makes a complaint that they are a crime victim and maybe more particularly a sexual assault victim, that our pretextural notion, our first response is to accept that because we feel why would somebody say that if it weren't true? Why would they put themselves through an exam as the state's attorney suggested or through any humiliation or being forced to testify if, in fact, this weren't true? And I think it's fair to say that we probably have all — have this initial response in these types of circumstances. Certainly the doctor had that response. But when push came to shove and it was interesting because you could tell very interestingly the way he testified that he was trying to project the fact that he felt that his woman made a claim and I've seen other women make claims, and because she made this claim, it therefore must be true. It's consistent with what I've seen. And therefore I take it to be true and I'm about to suggest to you that it's true because that's my opinion period. But when pressed on the fact that there is no physical evidence of any of this and that well that's not unusual, I mean everything concen — everything — is it consistent if they are beaten, it's consistent if they don't have a mark on them. Is everything consistent because that's the way it goes? Because we want to protect people who are victims of sex crimes? No question about it. But the bottom line is when push comes to shove, he's not prepared to tell you ladies and gentlemen of the jury this woman was physically, sexually assaulted. That just is the bottom line. As much as he would like to not face reality and under oath, he is not about to. He said look, I have looked at this woman. Can you say whether or not she was forcibly sexually assaulted based on what you heard under oath? Under oath you can tell ladies and gentlemen of the jury that she was forcibly sexually assaulted? Well, no. I can't. Meaning though, as much as I would like to, I'm trying to intimate that I think she was. I'm trying to do the right thing. After all, I'm a physician in the emergency room. I'm trying to do my part in this prosecution because I'm here and that's my job, but can I tell them that she was forcibly sexually assaulted? No, I can't. So be it. So much for that. The medical records. You have no — . He does and examination, head, eyes, nose, and [throat]. No problems. Her chest, no problems. Back, nothing remarkable. Breasts? Breasts, nothing remarkable after she's grabbed by her breasts. Her clothes aren't torn, her abdomen nothing unusual except for pain in her groin which we know was a preexisting condition. Her extremities, arms, nothing. No visible signs of any problem. Legs, nothing. Thighs, nothing. Where she had this intense pressure on her thighs some hour and a half, two hours later, this examining physician finds absolutely not a shred of evidence that that ever occurred. Remarkable. In your logic, no deficit, nothing unusual. Then he does and evalu — an examination as is ordinary in a complaint of sexual assault of the external genitalia, the labia majora, labia [minora], the hymen, the vagina, the cervix, the uterus, ad adnexia, the posterior forchette, the perenium, the anus, the rectum. None of which show any signs whatsoever that any type of forcible assault ever took place. Not a shred of physical evidence. None. Zero. Zilch.
Id., pgs. 135-38.
The underlying criminal case at issue is the prototypical credibility contest between a complainant victim, in this case an adult, and an accused. In such situations, appellate courts have emphasized the exceeding importance of neutral and disinterested witnesses. Bryant v. Commissioner of Correction, 290 Conn. 502, 518, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) ("in circumstances that largely involve a credibility contest, as did the petitioner's trial, 'the testimony of neutral, disinterested witnesses is exceedingly important'"), citing and quoting Williams v. Washington, 59 F.3d 673, 682 (7th Cir. 1995); State v. Lenarz, 301 Conn. 417, 439 (2011) ("state's case . . . was based entirely on complainant's account of the defendant's conduct, and because the privileged communications contained highly specific facts relating to the credibility of the complainant and the adequacy of the police investigation in that case, the communications went to the heart of the defense").
"'The determination of the credibility of a witness is solely the function of the jury.' (Internal quotation marks omitted.) State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986). 'It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony.' State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness' claims. See State v. Freeney, 228 Conn. 582, 592, 637 A.2d 1088 (1994). 'An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact . . . Experts can [however,] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.' (Citation omitted; internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); see also Conn. Code Evid. § 7-3.
"Additionally, in cases that involve allegations of sexual abuse of children, we have held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. See State v. Spigarolo, [ 210 Conn. 359, 380, 556 A.2d 112 (1989)]. Such evidence assists a jury in its determination of the victim's credibility by explaining the typical consequences of the trauma of sexual abuse on a child. Id., 378. It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim's claims are truthful. Id., 379; see also State v. Butler, 36 Conn.App. 525, 530-31, 651 A.2d 1306 (1995); In re Noe M., 23 Conn.App. 410, 423, 580 A.2d 996 (1990). In this regard, [the Supreme Court has] found expert testimony stating that a victim's behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse. See State v. Freeney, supra, 228 Conn. 592-93 (court admitted expert testimony regarding consistency of victim's behavior stating that 'neither expert gave an opinion as to whether this particular victim had . . . in fact suffered physical or sexual abuse').
It is noteworthy that Attorney Avitabile, the complainant victim's employer and witness during the petitioner's criminal trial, was appellate counsel in Butler. The Appellate Court decided Butler prior to both the offenses at issue in this case and the petitioner's criminal trial. In fact, the Butler decision was released nearly two years prior to the petitioner's criminal trial.
"Moreover, [the Supreme Court has] noted that even indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim's testimony. See State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001). Finally, in cases in which an expert witness reaches a conclusion on the ultimate issue in part based upon statements made by the victim . . . Connecticut case law has previously recognized the general rule of law that the expert is necessarily making a determination about the victim's credibility. See State v. Apostle, 8 Conn.App. 216, 232-33, 512 A.2d 947 (1986) (court concluded that physician's opinion that intercourse was nonconsensual was inadmissible because it went beyond his physical examination and was based on victim's description of incident). Such credibility determinations are more properly within the sole province of the jury. See State v. Smith, supra, 200 Conn. 550." State v. Iban C., 275 Conn. 624, 634-36, 881 A.2d 1005 (2005).
The case most relevant to the instant matter is State v. Butler, supra. In Butler, the Appellate Court concluded that the defendant was deprived of a fair trial "after the trial court permitted a hospital social worker to testify as to her opinion of whether the victim was truthful regarding the claims of sexual abuse." State v. Butler, supra, 36 Conn.App. 528. The Appellate Court concluded that it was trial court error to permit the social worker "to testify that she 'never got the sense that [the victim] was fabricating or making up the story,' and that she 'felt that what [the victim] was saying was true.' Clearly, such testimony involves an assertion by an expert witness that validates the truthfulness of the purported victim." Id., pg. 531.
The social worker's testimony was presented by the state on direct examination.
The Butler court had to assess the harmfulness of the claimed error and determine whether "it is more probable than not that the improper action affected the result [of the trial.] . . . The question is whether the . . . error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court's ruling, though erroneous, likely to affect the result?" (Citations and quotation marks omitted.) Id., pg. 532. After considering the nature of the evidence, the Appellate Court concluded that the defendant had shown he was deprived of a fair trial.
In Butler, "[t]here was no physical or medical evidence linking the defendant with the alleged crime. The entire case offered by the state consisted of the testimony of the victim, testimony of other witnesses offered only under the theory of constancy of accusation, and testimony of a psychologist as to the general behavioral characteristics of victims of child sexual abuse under State v. Spigarolo, supra, 210 Conn. 380. Against this array was the testimony of the defendant, denying his grandchild's claims of sexual abuse. The entire fabric of the state's case against the defendant turned, therefore, on the credibility of the victim and on which version of the facts the jury chose to believe. [The Appellate Court] thus conclude[d] that since the entire case turned on the issue of the credibility of the victim, [the social worker's] testimony vouching for the truthfulness of the victim affected the outcome of the trial and denied the defendant his right to a fair trial." State v. Butler, supra, 36 Conn.App. 532.
There is no question that Dr. Siegler, both on cross-examination and redirect, testified as to his view of the victim's credibility when she related the sexual assault to him. The court also concludes, based on the decisions of our Supreme and Appellate Courts noted above, particularly Butler, that such testimony in a case like this one typically cannot be viewed as harmless or nonprejudicial. Consequently, the question for the court is whether Attorney Hopkins' handling of this important testimony was reasonably competent. In making this assessment, the court is well aware that it is not the function of a habeas court to second guess trial counsel's actions. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances . . . Additionally, [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [Moreover], a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance . . ." (Internal citations and quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 63, 951 A.2d 520 (2008).
Our Appellate Court addressed a situation very similar to the one presented here in, supra. There, the court reversed the habeas court's granting of a petition premised on numerous grounds, including ineffective assistance of counsel. In Toccaline ". . . a licensed clinical social worker at a counseling and mental health center, testified on direct examination as part of the state's presentation that when he met with [the fourteen year old victim] . . . she described instances of sexual contact with her by the petitioner. [The social worker] stated his belief that [the victim] had suffered sexual abuse by the petitioner. Finally, he opined that [the victim's] testimony was truthful, based, in part, on the consistency of her accusations. Counsel for the petitioner did not object to any of [this] testimony.
"At the habeas trial . . . the petitioner's trial counsel, was called as a witness. He testified that although at the time of the trial he was not specifically aware of the rule that an expert witness may not testify that a victim is credible, he was aware, however, that the questioning in that regard was improper. He stated that as a general rule, he does not make many objections during trial and that when that testimony was given, he thought he might be able to use [the social worker's] statement of opinion on cross-examination to demonstrate that [the social worker] had reached his opinion rashly on the basis of just a brief interview of [the victim].
"At the habeas hearing, [the petitioner presented testimony from an attorney, who] testified as an expert witness on the petitioner's behalf that it was below the standard of competence for [trial counsel] not to have objected to [the social worker's] testimony regarding [the victim's] veracity because it is well established in Connecticut that a constancy of accusation witness may not offer an opinion at trial as to a victim's veracity. The court agreed. Additionally, the court concluded that if [trial counsel] had objected to the testimony, [the social worker's] credibility would have been negatively affected. The court further concluded that a diminution in [the social worker's] credibility would have caused reasonable doubt resulting in an acquittal . . ." (Footnotes omitted.) Toccaline v. Commissioner of Corrections, supra, 80 Conn.App. 800-01.
The Appellate Court reversed the trial court and held that, "'[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.' (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). '[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . .' (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). In this case, [trial counsel] testified as to his belief that he may have made a tactical decision not to object in order to use the statement to discredit [the social worker] on cross-examination. [The Appellate Court's] review of the trial court record corroborates [trial counsel's] testimony. It appears from his cross examination of [the social worker] that [trial counsel] was attempting to discredit [the social worker's] opinion by showing that he had met Mc only one time . . . His closing statement to the jury further supports his habeas testimony . . . In apparent acceptance, however, of a wooden proposition that competent counsel must always object to objectionable opinion testimony by an expert, the court accorded no deference to the exercise of discretion and use of tactics by trial counsel. In determining that [trial counsel] was ineffective for not objecting to [the social worker's] testimony merely because the testimony was, in fact, objectionable, the court ignored our jurisprudence that mandates deference to the tactics of trial counsel. (Footnote omitted.) Id., 801-02.
With these principles in mind, the court turns to Attorney Hopkins' actions. First, it is important to note that Attorney Hopkins did not solicit Dr. Siegler's views as to the victim's credibility. Instead, Attorney Hopkins merely asked Dr. Siegler on cross-examination about the amount of time spent doing the physical examination. Dr. Siegler answered that question and then continued by providing testimony about his opinion of the victim's legitimacy that was non-responsive to the question. Attorney Hopkins had a number of options available to him to deal with Dr. Siegler's answer. He could have moved to strike the answer as non-responsive. However, not all trial attorneys like to make such motions because many believe that, notwithstanding a judge's instruction to the jury to ignore the testimony, some jurors are not, either consciously or subconsciously, able to do so. See, e.g., Servello v. Commissioner of Correction, supra, 95 Conn.App. 761, citing and quoting State v. Davis, supra, 76 Conn.App. 665 ("An [e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury"). Instead, Attorney Hopkins chose to ask further questions in an effort to neutralize Dr. Siegler's opinion by showing that it was the product of speculation. He further was able to show through his follow-up questions that Dr. Siegler was not in a position to say whether the sexual assault happened, and that he could point to no physical evidence from which he could conclude that the victim had been forcibly sexually assaulted. Based on the evidence presented, the court is unable to conclude that Attorney Hopkins' approach to cross-examining Dr. Siegler was not a reasonable strategy. While, by the time the cross-examination ended, the jury did have the benefit of Dr. Siegler's view of the victim's credibility, they also heard that Dr. Siegler had little basis for that view.
Unlike in Toccaline, in the present case there was no evidence presented as to why trial counsel took the approach he did to the witness' opinion as to the veracity of the victim's complaint. The closest Attorney Hopkins came to the subject was his response to a general question asked about his decision not to object to the testimony of "the doctors." He stated that if he thought he could have objected, he would have. Such testimony is of little help regarding why Attorney Hopkins chose not to move to strike Dr. Siegler's non-responsive answer. Thus, the court does not have direct evidence from Attorney Hopkins that not moving to strike Dr. Siegler's initial answer as non-responsive was a tactical decision. Nevertheless, the transcript of the cross-examination clearly reflects that Attorney Hopkins decided to aggressively challenge Dr. Siegler on his conclusion, and that he did so effectively.
There is still the question though of whether Attorney Hopkins should have taken some action to limit the prosecutor's redirect of Dr. Siegler through which the doctor further expounded on his views of the victim's truthfulness. As noted above, the general rule is that once a party addresses a topic with a witness, even as to matters that would be inadmissible if objected to, the party has "opened the door" for the opposing party to examine the witness on the same topic. However, there are limits to what a prosecutor can do in rebuttal when the defendant has "opened the door." See, Footnote 57, supra. The question then is whether Attorney Hopkins should have taken some step to try to keep the prosecutor from walking through the door he had opened.
Our Supreme Court very recently addressed a similar situation in State v. Victor O., 301 Conn. 163, 20 A.3d 669 (2011). In that case, the defendant claimed that the trial court improperly permitted the state to elicit testimony from an expert, Rosenberg, that the primary purpose of the forensic interview of an alleged child victim of sexual abuse is to determine whether the child's allegations are credible. The defendant contended that this testimony, which the state elicited during its redirect examination of the witness, constituted improper opinion testimony regarding the credibility of the victim in that it allowed the jury to infer, albeit indirectly, that, because charges ultimately were brought against the defendant, the forensic interviewers must have determined that the victim's claims were credible. Id., 184.
The court, after noting the importance of not permitting an expert witness to testify, even indirectly, about the credibility of a complaining witness, nevertheless held that the trial court did not err in allowing the testimony because the defendant has opened the door to such testimony through his cross-examination of the expert. According to the court, "defense counsel questioned Rosenberg extensively as to why a forensic interview, in contrast to an interview conducted for the purpose of counseling, is performed only once. In questioning Rosenberg in this manner, defense counsel sought to highlight the distinction between the two types of interviews, apparently for the purpose of demonstrating that forensic interviews may be less likely to uncover the truth than interviews conducted in a counseling setting. Having questioned Rosenberg about the purposes of the two different kinds of interviews, defense counsel opened the door to redirect examination on this subject. Indeed, the question that the state's attorney ultimately posed to Rosenberg during redirect examination, that is . . . the forensic interview . . . used to determine whether the allegation is credible,' was substantively identical to defense counsel's questioning of Rosenberg as to whether the purpose of the forensic interview 'is to get to the truth . . .' Moreover, Rosenberg's response to the inquiry of the state's attorney during redirect examination was not materially different from his response to the questions that defense counsel had posed to him during cross-examination. Accordingly, the defendant cannot prevail on his claim that the trial court abused its discretion in permitting the state's attorney to adduce this testimony from Rosenberg." Id., 190.
Similarly, here, the questions asked by the prosecutor on redirect were substantively the same as those asked by Attorney Hopkins on cross-examination. Moreover, Dr. Siegler's ultimate response on redirect was the same as the answers he gave on cross-examination — the victim seemed reliable, but he was making "no attempt to determine guilt or innocence, you know, or whether the patient's a legitimate victim or not." Consequently, having opened the door on cross-examination, Attorney Hopkins could do little to limit the prosecutor's redirect examination on the same subject. He was, therefore, not deficient in failing to object to or moving to strike the prosecutor's line of questioning.
Petitioner's Exhibit 9, pg. 28.
Nor is there any merit to the claim that Attorney Hopkins should not have opened the door in the first place. As noted above, his decision to do so was a reasonable strategic one, and, as such cannot be the basis for a finding of ineffective assistance of counsel. Similarly, his decisions not to ask for a limiting instruction as to Dr. Siegler's testimony or to object to the prosecutor's reference to Dr. Siegler in closing arguments were part and parcel of Attorney Hopkins' approach to dealing with Dr. Siegler's initial non-responsive answer. The transcript reflects that Attorney Hopkins chose to undermine Dr. Siegler through further questioning, rather than ask for the court for assistance through a motion to strike the testimony or a limiting instruction and thereby potentially highlighting the testimony in the jury's minds. The court finds that this decision was also tactical in nature and, therefore, not subject to attack.
The transcript reflects that Attorney Hopkins followed through with this strategy in closing arguments when he spent a significant amount of time emphasizing that Dr. Siegler could do nothing but speculate as to the victim's reliability because, as Dr. Siegler acknowledged, there was no physical evidence to support her claim. Petitioner's Exhibit 11, pgs. 135-38.
As was the court in Butler, this court is mindful of the significance expert opinion testimony regarding witness credibility can play in a case such as this. The jury here was left to decide the petitioner's guilt largely on its assessment of the victim's credibility. Nevertheless, given the presumption of reasonableness to be given to counsel's actions, and the evidence here, in light of the legal principles set forth above, particularly those discussed in Toccaline and Victor O., the petitioner simply has not met his burden to prove that Attorney Hopkins was not reasonably competent in his handling of Dr. Siegler.
4.
The next allegation is that Attorney Hopkins "improperly waived for appeal the motion to preclude the State from questioning Petitioner about two robbery convictions that were more than ten years old when he asked Petitioner about those convictions on direct examination." Amended Petition, pg. 5.
"As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990), quoting State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). The trial court, however, may allow the state to mention specific prior convictions as evidence of a defendant's credibility provided such convictions carry a penalty of more than one year in prison and provided that their prejudicial effect does not far outweigh their probative value. State v. Geyer, 194 Conn. 1, 16, 480 A.2d 489 (1984). The trial court has wide discretion in this balancing determination and every reasonable presumption should be given in favor of the correctness of the court's ruling . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977)." State v. Small, 242 Conn. 93, 109-10, 700 A.2d 617 (1997).
"'Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.' State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); see also Conn. Code Evid. § 6-7. Credibility also may be challenged by 'acts of misconduct other than a felony conviction if those acts bear a special significance upon the issue of veracity . . .' (Internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986).
"In Nardini, our Supreme Court adopted the ten year rule embodied in rule 609(b) of the Federal Rules of Evidence . . . as 'a rough bench mark in deciding whether trial court discretion has been abused . . .' State v. Nardini, supra, 187 Conn. 526. A prior conviction that is more than ten years old may, therefore, be admissible under some circumstances. See, e.g., id.; see also State v. Cooper, 227 Conn. 417, 436, 630 A.2d 1043 (1993) (finding no abuse of discretion in admission of twenty-six-year-old conviction); State v. Prutting, 40 Conn.App. 151, 162, 669 A.2d 1228 (finding no abuse of discretion in admission of two eleven-year-old convictions), cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996)." State v. Stavrakis, 88 Conn.App. 371, 375-76, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005).
Given the real possibility that the prior convictions could have been admitted on cross-examination even if the petitioner was not asked about them on direct, the court cannot say it was an unreasonable strategic decision to bring them out on direct in an effort to diminish their significance. In fact, such a tactic is common amongst defense attorneys. Consequently, the petitioner has failed to show any merit to this claim.
5.
The petitioner next claims that Attorney Hopkins "failed to object to the jury charge given by the Court, Espinosa, J., which instructed the jury that two lay witnesses, Drs. Hakim and Siegler, were qualified as experts and provided expert opinions." Amended Petition, pg. 5. There is no indication in the transcripts of the criminal trial that Drs. Hakim and Siegler were proffered as expert witnesses. Attorney Hopkins testified that he could not recall whether the doctors were disclosed as expert witnesses or were qualified as such. There is no evidence presented to this court that one or both of these doctors were either disclosed as expert witnesses or were so qualified. Nevertheless, the "expert" testimonies presented by both Drs. Siegler and Hakim were completely equivocal. The court fails to discern how the petitioner was prejudiced by Attorney Hopkins' purported failure to object to the court's jury charge. The claim is, therefore, denied.
6.
Next, the petitioner avers that Attorney Hopkins "improperly argued in closing to the jury and failed to request a jury charge on the prior misconduct evidence introduced by the State, and also argued by the State in closing to the jury, of the Petitioner's previous infidelity and alleged sexual compulsion. In closing, trial counsel argued: '. . . the fact that [the Petitioner] admits to having been unfaithful, what does that have to do with an allegation of sexual assault? Nothing. That he has some sort of sexual compulsion admittedly meaning that he likes sex, that he's had sex with other women than his wife, that essentially he's probably no different than most other men except for the fact that he's acted on these and cheated on his wife.' P. Exh. 11, at 115. Over trial counsel's objection, Detective Laura Harrison testified on direct examination by the State that the Petitioner admitted orally to sexual compulsions and infidelity. P. Exh. 9 at 61-62. The State also cross-examined the Petitioner about prior infidelities, over trial counsel's objection. P. Exh. 11 at 41-42. In closing, the State argued the Petitioner had confessed to Detective Harrison that he 'has a sexual compulsion problem' and 'already had problems with infidelity in his marriage.' P. Exh. 11 at 101-02, 156." Amended Petition, pgs. 5-6.
The following additional facts are relevant to this claim. "On the day following the sexual assault, the [petitioner] went to the Naugatuck police station and voluntarily provided a written statement concerning the incident. The police had not summoned or requested that the [petitioner] come to the station, nor had they questioned him regarding the incident or the victim's complaint. The [petitioner] testified that he went to the police station after his wife informed him that the victim had telephoned and made accusations that she had been raped by the [petitioner]. Laura Harrison, a detective with the Naugatuck police department, testified that when asked why he came to the police station, the [petitioner] provided the same explanation to her. Harrison further testified that upon arrival at the station, the [petitioner] was observed to be 'extremely upset, extremely nervous,' and spent approximately two hours writing his statement and that 'it seemed like he struggled to go through it.' In addition, Harrison testified as to oral statements made by the [petitioner] while he was at the police station, in which he admitted having sexual compulsion problems. Specifically, Harrison testified that the [petitioner] stated that he 'has a real problem with sex . . . needs to have it all the time and can't help himself or control himself.' Harrison also testified that the [petitioner] told her that he was experiencing marital problems as a result of his sexual compulsions and infidelity. The trial court admitted the testimony concerning the [petitioner's] statements regarding his sexual compulsions pursuant to the party admission exception to the hearsay rule. The [petitioner] objected on the grounds that the testimony was irrelevant and 'more highly prejudicial than probative under the circumstances.' The court found that the testimony's probative value outweighed the prejudice." State v. White, supra, 55 Conn.App. 421-22.
The Appellate Court affirmed the trial court's ruling, noting that "[i]n the present case, the central issue at trial was whether the [petitioner] compelled the victim to engage in sexual intercourse by the use of or by the threat of use of force. The [petitioner's] statements concerning his sexual compulsion and self-control problems clearly were relevant, material and highly probative on the issue of whether he compelled the victim to engage in sexual intercourse. 'The trial court's discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. State v. Joly, 219 Conn. 234, 253, 593 A.2d 96 (1991).' (Internal quotation marks omitted.) State v. Spivey, supra, 53 Conn.App. 655." State v. White, supra, 55 Conn.App. 423.
This court is unable to conclude that Attorney Hopkins' arguments and purported failure to request a charge on the prior misconduct are indicative of deficient performance. The evidence clearly was relevant to the charges and the defense asserted by the petitioner that the sexual acts between him and the complainant victim were voluntary and consensual. Thus, having failed to prove both deficient performance and the required showing of prejudice stemming therefrom, this claim must be denied.
7.
The final grouping of allegations are that Attorney Hopkins failed to: investigate and present mitigation evidence in mitigation for sentencing, including the petitioner's prior diagnosis of depression and his prior prescription antidepressant and ephedrine abuse; prepare the petitioner for his presentence investigation interview, in which the petitioner stated his position that he did not receive effective representation at trial; and advise the petitioner about his allocution before he addressed the sentencing court. Attorney Hopkins did testify regarding the PSI and the petitioner's depression, indicating that this was not mitigating, had no utility at sentencing and would not sway the sentencing judge. Other than this scant testimony, there has been no evidence presented in support of these claims of deficient performance, let alone the resultant prejudice. The court finds, therefore, that these claims are completely unsupported, without merit, or deemed abandoned.
II.
The petitioner's second claim is that trial defense counsel had a conflict of interest. More specifically, the petitioner alleges that Attorney Hopkins failed to file a motion to continue the petitioner's sentencing hearing, failed to file a motion to withdraw, and continued to represent the petitioner at sentencing while operating under a conflict of interest. The following additional facts are necessary to address this claim.
Attorney Hopkins represented the petitioner both during the pre-trial and trial phases. After the jury returned the guilty verdicts, the matter was continued for sentencing and a presentence investigation report (PSI) was prepared. The matter came before Judge Espinosa for sentencing on December 8, 1997. The sentencing hearing began with the prosecutor summarizing the jury trial and the PSI. Then, Attorney Louis Avitabile, who at the time of the sentencing proceeding had known the victim for about eleven years, and had additionally employed her for several years prior to the sentencing, read a letter from the victim. Attorney Hopkins then addressed the court and presented his arguments in support of a sentence in the lower end of the range confronting the petitioner. The petitioner's sister, wife and mother also addressed Judge Espinosa.
Petitioner's Exhibit 15.
Id., pgs. 1-5.
Attorney Avitabile also testified as a constancy of accusation witness during the criminal trial. See Petitioner's Exhibit 8, pgs. 161-65. As already noted, Attorney Avitabile was appellate counsel in State v. Butler, 36 Conn.App. 525, 651 A.2d 1306 (1995), decided about two years prior to the instant petitioner's criminal trial.
Petitioner's Exhibit 15, pgs. 6-8.
The petitioner was then given an opportunity to address the court. The petitioner first addressed the court and maintained amongst other assertions that he was innocent of the crimes. However, the allocution devolved into the petitioner claiming that Attorney Hopkins had rendered ineffective assistance for failure to call witnesses in support of his defense and investigate the matter. The petitioner also argued, amongst other things, that there had been harmful error in the criminal trial, that his right to confrontation had been violated, and that the state had failed to disclose potentially exculpatory evidence.
Id., pgs. 20-23.
After the petitioner finished addressing the court, Judge Espinosa stated the following: "The court presided over this trial, as I said Mr. Hopkins did an excellent job for you and simply this case came down to your word against the victim's word. You say there is no evidence. [There] is evidence. The jury chose to believe the victim, not believe you and convicted you of the charges which you were charged. That is what the process is about. When you seek a trial you have your day in court and you leave it to the jury to decide the credibility or the believability of the witnesses, in this case the victim and you. And obviously they chose to believe the witness.
The court notes that the petitioner's allocution apparently ends on page 30 of sentencing transcript, Petitioner's Exhibit 15. Judge Espinosa's sentencing remarks apparently also begin on page 30. However, page 30 itself is missing from Petitioner's Exhibit 15.
"This is a case of rape in a situation where the parties knew each other and many rapist[s] think if you don't punch the victim and injur[e] the victim and somehow leave marks, then it's not rape. That if you overcome the victim's will, then it's consent, otherwise it's consent. In this case, obviously the jury didn't buy that. They saw the crimes for what they were." (Emphasis added.) After summarizing the petitioner's extensive criminal history and that he completely lacked remorse, the court imposed its sentence.
Petitioner's Exhibit 15, pg. 31.
The petitioner now claims that a conflict of interest was created at the point during the sentencing proceeding where the petitioner asserted ineffective assistance by Attorney Hopkins. The petitioner faults Attorney Hopkins for failing to file a motion to continue the sentencing hearing and consult with the petitioner about continuing representation after the allegation of ineffective assistance was raised. The petitioner also faults Attorney Hopkins for not filing, either before or at the sentencing hearing, a motion for permission to withdraw from representation. The petitioner myopically draws attention in support of the claimed ineffective representation to his own statement in the PSI that "if I could have afforded a lawyer who really cared about my life, they would haven proven [the] fact [that the victim never attended any rape counseling or therapy]."
Petitioner's Exhibit 17, pg. 4.
"'In a case of a claimed conflict of interest . . . in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.' (Internal quotation marks omitted.) Phillips v. Warden, [ 220 Conn. 112, 133, 595 A.2d 1356 (1991)], quoting Cuyler v. Sullivan, [ 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)]. 'Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.' (Internal quotation marks omitted.) Phillips v. Warden, supra, 133, quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, an ineffectiveness claim predicated on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish actual prejudice. Phillips v. Warden, supra, 132-33.
"An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that 'the possibility of conflict is insufficient to impugn a criminal conviction.' Cuyler v. Sullivan, supra, 446 U.S. 350. A conflict is merely 'a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future.' (Emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, [ 87 Conn.App. 568, 589, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005)], quoting United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004). 'To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party . . . A mere theoretical division of loyalties is not enough.' (Citation omitted; emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 584. If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland prongs will apply . . . See id., 583 n. 14." (Footnote omitted.) Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549-50, 15 A.3d 658, cert. granted, 301 Conn. 921 (2011).
The Supreme Court granted certification, limited to the following issue: "Did the Appellate Court properly determine that the defendant was not deprived of his constitutional right to effective assistance of counsel when both the defendant and a codefendant were represented by a different attorney from the same public defender's office?"
Based upon the evidence presented, which consists of the petitioner's own vague statement in the PSI and the allegations he voiced during the sentencing proceeding, the court fails to discern even a theoretical conflict. First, there is no evidence that Attorney Hopkins was operating under a duty that somehow was inconsistent with the petitioner's interests. Even if he were so operating, that would only show that there was a potential conflict of interest. The petitioner did not apprise the sentencing court of any purported ineffective assistance until immediately preceding the imposition of sentence. That is, the petitioner let the entire sentencing proceeding unfold, including letting Attorney Hopkins address the court on his behalf, before asserting during the allocution that he had received ineffective assistance of counsel. Even if the timing of how the claim was raised is not indicative of a waiver, there are no instances in the record where the petitioner's interests were either impaired or compromised for the benefit of another party. Furthermore, the petitioner has failed to present evidence that Attorney Hopkins was operating under any conflict of interest. Consequently, the court concludes that the claim in count two is entirely without merit.
III.
The petitioner's third and final claim is that there was prosecutorial impropriety. According to the amended petition, the prosecutor improperly elicited expert opinions from two lay witnesses, Drs. Hakim and Siegler, about forcible sexual intercourse; improperly questioned Dr. Siegler about the victim's truthfulness and then argued that testimony in closing arguments to the jury; improperly vouched for the credibility of the State's witnesses and offered her opinion about the evidence in closing arguments to the jury; and improperly appealed to the emotions of the jurors in closing arguments. The respondent's return raises the affirmative defense of procedural default, to which the petitioner filed a reply alleging ineffective assistance of counsel as the cause and prejudice for any procedural default.
The court has already discussed some of these allegations, including all of those relating to the prosecutor's questioning of witnesses, in the context of the claims raised in count one. It would serve no useful purpose to separately address those claims of prosecutorial impropriety. Thus, the court will rely upon its discussion of the prosecutor's questions and arguments as addressed in count one. The court notes that even if it were to discuss this claim in the context of ineffective assistance of counsel, it would not conclude that there was prosecutorial impropriety. In addition, the court has carefully reviewed and considered the prosecutor's opening and rebuttal closing arguments. The court finds nothing improper in the comments she made to the jury.
Furthermore, the petitioner is unable to overcome the respondent's defense of procedural default. Ordinarily, absent some evidence of cause and prejudice, any claim of prosecutorial impropriety not raised on direct appeal cannot form the basis for habeas corpus relief. Here, the petitioner claims cause and prejudice through Attorney Hopkins' ineffective assistance of counsel. The evidence does not support this claim. The court has already addressed, in connection with count one, Attorney Hopkins' performance regarding Drs. Hakim and Siegler, and the prosecutor's examination of and arguments regarding both. Simply put, the petitioner has failed to meet his burden on those issues. As to the other issues the petitioner raises regarding the prosecutor's closing arguments, the court finds that there was no basis for any objection by Attorney Hopkins. Even if such a basis existed, there was nothing so egregious in the prosecutor's remarks that required an objection from Attorney Hopkins. Under the circumstances of this case, it would have been a reasonable trial strategy not to object to avoid bringing further attention to the prosecutor's remarks. The court heard no evidence to the contrary. Thus, the petitioner failed to present sufficient evidence of cause and prejudice. Consequently, as to count three, the petitioner has procedurally defaulted.
CONCLUSION
For all the foregoing reasons, the petition is DENIED.