Opinion
CV134005209S
03-03-2016
Jeffrey Williams (#106570) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Jeffrey Williams, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal and direct appeal counsel provided him ineffective legal representation. He further asserts due process violations relating to evidence submitted by the prosecuting authority that he claims to be false. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent leaves the petitioner to his proof and asserts the special defenses of res judicata and procedural default.
The court finds the issues for the RESPONDENT and DENIES the petition.
Procedural History
In the criminal matter State v. Jeffrey Williams, CR02-0012033, in the New Haven Judicial District, the petitioner was convicted on April 6, 2005, of three counts of sexual assault in the first degree in violation of Connecticut General Statutes § 53a-70, two counts of sexual assault in the third degree in violation of Connecticut General Statutes § 53a-72a(a)(1), and seven counts of risk of injury to a minor, in violation of General Statutes § 53-21(a)(1) and (a)(2).
On June 3, 2005, the Court, Devlin, J., sentenced the petitioner to a total effective sentence of thirtyfive years to serve. Attorney Michael Moscowitz represented the petitioner at the underlying trial. The petitioner appealed the judgment of conviction, which was affirmed. State v. Williams, 102 Conn.App. 168, 926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). In so doing, that reviewing court made the following findings of fact.
" The jury reasonably could have found the following facts on the basis of the evidence presented. Between the spring of 1997 and mid-October 1999, the victim and her three younger sisters lived with their mother, who was the defendant's girlfriend, her uncle and the defendant at various residences in the city of New Haven. The victim was approximately eight years old when the defendant began to abuse her. The defendant beat her about once a week for a variety of reasons. In November 1997, the defendant knocked the victim to the floor, causing a spiral fracture of her left humerus. The victim was taken to a hospital, but her mother instructed her and her sisters to attribute the injury to the victim's having fallen off her bed. On another occasion, the defendant banged the victim's head on a sink, breaking one of her teeth. When the victim told her mother of the broken tooth, her mother instructed her to go outside and play. The defendant struck the victim with a wooden paddle and on one occasion gave her a black eye. The victim's mother put makeup on the bruise to cover it. The victim's teacher, however, noticed the makeup and bruise. At another time, the school personnel discovered a hickey on the victim's neck. The victim had told her mother that the defendant had given her the hickey. The defendant convinced her mother that someone else had given the victim a hickey and then beat the victim.
" Sometime between August and October 1999, the defendant placed the victim in a situation that was likely to injure her health. When the victim did not comply with the defendant's instructions, he made her put her head out a window and then he poured water over her head. He made her stay there until it was time to go to school.
" At night, the defendant would awaken the victim and take her to his room where he told her to rub his back. Initially, the defendant lay face down but would turn over and instruct the victim to rub his lower body. The defendant took the victim's hand and placed it on his penis, at first outside of his boxer shorts and then inside. The defendant's sexual abuse progressed beyond back-rubs and having the victim touch his penis. The defendant began to grope the victim's vagina, buttocks, thighs and undeveloped chest. On three or four occasions, the defendant forced his penis into the victim's vagina. If the victim asked the defendant to stop, he would tell her not to tell him what to do. The victim bled after the first and second rapes and told her mother, who told her she was having her menstrual period. Although the victim reported the abuse to her grandfather, he refused to believe her. Consequently, the victim did not report the continuing abuse for fear that no one would believe her. The victim eventually disclosed the defendant's sexual abuse to her cousin but implored her not to tell anyone.
" In early 2001, the victim, her sisters and mother moved to a homeless shelter in Waterbury, after which the victim and her sisters were removed from their mother's custody by the department of children and families (department). The victim was placed in a foster home. While the victim and her foster mother were watching a television movie about sexual abuse, the victim ran from the room crying. Because the victim was so overcome with emotion, her foster mother waited until the next day to discuss the subject with her. During the conversation, the victim confided that the defendant had raped her and hurt her private parts. The foster mother reported the complaint to a department social worker.
" Subsequently, the victim was interviewed by a forensic specialist, examined by a pediatric nurse practitioner and interviewed by a detective, Michael Hunter. The nurse practitioner found a furrow running through the victim's hymen, an injury consistent with penile penetration. Hunter also interviewed the defendant and recorded his statement. According to the defendant, subsequent to his having back surgery, he slept in a hospital bed in the living room where he awoke one night to find the victim stroking his penis. The defendant so informed the victim's mother, who beat the victim. One month later, the defendant again awoke and found the victim fondling his penis. He again reported the incident to the victim's mother who administered " a whupping." In his statement, the defendant acknowledged having spanked the victim, but denied that he ever punched her, hit her, broke her arm or had sexual intercourse with her.
" The defendant was arrested and charged on December 5, 2002. The state filed a twelve-count long form information. The theory of defense was that the victim lied about the abuse to avoid being returned to the care of her mother. The jury found the defendant guilty of all charges alleged."
State v. Williams, supra, 102 Conn.App. 170-73.
Regarding Ms. Moskal-Kanz, the Appellate Court recited the following trial testimony and made the following relevant findings.
" During its case-in-chief, the state called Judith Moskal-Kanz, a pediatric nurse practitioner and forensic medical examiner for child sexual abuse and child abuse, as a witness. Moskal-Kanz testified, in part, on direct examination by the prosecutor that scarring on the victim's hymen was consistent with penile penetration and consistent with the victim's description of the intercourse the defendant had forced on her. On cross examination, defense counsel asked Moskal-Kanz, among other things, a series of questions concerning her opinion and whether the furrow in the victim's hymen could have been the result of something other than penile penetration, including hypothetical events not in evidence.
" On redirect examination, the prosecutor asked Moskal-Kanz the following questions, which, on appeal, the defendant claims were improper because they called for an answer to the ultimate question in the case:
" Q: Now, you were asked [on cross examination] repeatedly to leave out of your opinion the history that was taken by you of [the victim]. " A: Yes. " Q: Do recall that series of questions? I want you to put it in. Everything that [the victim] told you about the sexual abuse that's reflected in your report, add that into what you observed of the injury to the hymen. Do you have an opinion based upon all of that as to whether that injury was caused by sexual penetration of her by [the defendant's] penis? " A: My entire opinion? " Q: Your entire opinion. " A: My entire opinion is that the insertion of a penis into a vagina is a purposeful act which would not result in any other extenuating injuries that an accidental insertion of an object would cause, so that the injury is most likely, especially coupled with that history, to be the result of the penile penetration that [the victim] described since there are no extenuating injuries that would be consistent with an accidental injury." " We now focus on the defendant's claim that the prosecutor improperly questioned Moskal-Kanz about the victim's credibility. We are unpersuaded by the defendant's claim. " On cross examination, defense counsel queried Moskal-Kanz about the veracity of allegations of sexual abuse made by children: " Q: And there are individuals in your field that believe when a child makes an allegation of sexual abuse it has to be true; am I correct? " A: I think you're not correct. " Q: Well, let me ask you this. Do you believe when a child makes an allegation of sexual abuse, it has to be true? " A: That's not true. " Q: So, children can make up allegations of sexual abuse; am I correct? " A: It's very rare, but it certainly could happen. " Q: Okay. It's very rare. How do you find out-there [are] ways of finding out whether a child is making a false allegation; am I correct?" " Defense counsel then asked Moskal-Kanz about the influence family dynamics have on a child's allegations of sexual abuse. " On redirect examination, the prosecutor asked Moskal-Kanz the following questions to which the defendant now objects, although he did not object at trial: " Q: Have you interviewed children who you felt were not being completely truthful about their allegations? " A: I have had cases where children have not been truthful about the allegations. " Q: And in those cases have you had the kind of detail that you were provided by [the victim]? " A: No, absolutely not. " Q: How did it compare? " A: It can go in either direction. Most common direction is that the details are exceptionally vague because there aren't the details in existence to remember. It can also go in the opposite extreme where a child can try to provide you with perfect detail and thereby there [are] clear conflicts. " Q: Conflicts in the details? " A: Yes. " Q: Did you see any such conflicts in the details given to you by [the victim]? " A: No. " Q: Or any such exaggeration that cause you to have any concern about whether this was true or not? " A: No."
" The prosecutor's redirect examination concluded with this question and answer. On recross examination, defense counsel immediately questioned Moskal-Kanz about false allegations of sexual abuse and what factors influence a child's ability to be truthful about sexual abuse. Defense counsel also posed a series of questions to Moskal-Kanz about the victim's having a reason to lie, such as wanting to remain with her foster mother rather than returning to her mother's home where she took care of her younger sisters, and whether she had a history of being untruthful.
" Furthermore, the transcript discloses that on recross examination, defense counsel questioned Moskal-Kanz at length in an effort to discredit the victim, to imply that the victim had an ulterior motive to allege sexual abuse by the defendant and that Moskal-Kanz had failed to conduct an investigation to determine whether the victim had a reputation for or history of lying. Defense counsel had a full opportunity to vet Moskal-Kanz' assessment of the victim's allegations of sexual abuse and her history for veracity.
State v. Williams, supra, 102 Conn.App. 181-89. The petitioner then filed a pro se petition for a writ of habeas corpus on or about January 26, 2006, assigned docket number CV-06-4000932. This matter was dismissed without trial by the Court, Santos, J., On January 24, 2011. On or about January 25, 2013, the petitioner initiated the instant matter with the filing of his pro se petition.
In his Amended Petition dated March 9, 2015, the petitioner, in sum, asserts the following:
1. Ineffective assistance of trial counsel, Michael Moscowitz, in myriad ways related to essentially every stage of the criminal litigation (although there was no evidence submitted or argument offered in support of several of the claims);
2. Ineffective assistance of appellate counsel. There was no evidence submitted or argument offered in support of this claim. Accordingly, the Court deems this claim abandoned;
3. The petitioner's due process rights were violated by the prosecuting authority's knowing presentation of false testimony from Nurse Judith Moskal-Kanz. In the alternative, the petitioner asserts;
4. The petitioner's due process rights were violated by the prosecuting authority's unknowing presentation of false testimony from Nurse Judith Moskal-Kanz. The Court summarily dismisses this ground as there is no recognized cause of action in this state for such a claim. Additionally, as previously noted in this opinion, on its merits, the Court does not find the referenced testimony to be false.
The Court heard the trial of this matter on July 29 and September 17, 2015. The petitioner presented a number of witnesses and exhibits, including a video and transcribed deposition. The respondent presented no witnesses and two full exhibits.
II
Law/Discussion
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original). Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
1. Attorney Michael Moscowitz
Attorney Michael Moscowitz represented the petitioner at the underlying criminal jury trial as a special public defender (now referred to as assigned counsel). Attorney Moscowitz testified to his extensive experience in defending clients against allegations of child sexual abuse and other physical abuse, including those with expert medical testimony related to findings of trauma supported by culposcopic examinations. Counsel also testified to his having in the past consulted with experts as necessary to assist in the defense of the aforementioned category of cases.
Counsel testified to having consulted with a doctor related to alternative explanations for the spiral break in the victim's arm in the underlying matter. He testified credibly that, although the petitioner was " a difficult client, " there was no breakdown in the attorney-client relationship.
Counsel testified that, in furtherance of his efforts to gain an acquittal in cases of this nature, he does not call an expert defense witness to impeach the testimony of the victim. Instead, he testified that he " [tries] to make their expert my expert." In anticipation of cross examining the state's expert, counsel testified credibly that he consults with his experts to " devise questions that the state's expert would have to answer favorably [for] the defense" and that, in the underlying matter, he asked cross examination questions related to family dynamics and possible influences based on prior consultation with experts.
" [C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross-examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167 (1976). The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
Specifically, in the underlying matter, counsel testified to a trial strategy of the " domino theory, " i.e. to concentrate on and undermine both the " minor" and " major" allegations in the eyes of the jury so that the entire prosecution case collapses. The strategy in this matter was to try to develop a motive as to why the victim would lie. In furtherance of the trial strategy, counsel testified to having developed cross examination questions after having consulted with Dr. Loftus, a forensic psychologist from Columbia University. In cases such as the underlying where the perpetrator is the boyfriend of the mother of the victim, he " usually [asserts the defense that the] children want the boyfriend out of the house." In terms of an " alternative innocent explanation" for the victim's reports of abuse to DCF, counsel identified the victim's motive to lie so that she could stay in foster care and not have to return to her home with her mother and the petitioner. Counsel testified to a strategic decision not to call his own expert psychologist so as to avoid the appearance of putting the testimony of a " hired gun" before the jury, choosing instead to use the fruits of the consultation to elicit testimony favorable to the defense from the state's expert. Counsel further testified that calling a medical expert can hurt the defense as the witness may have to concede the probability that the injuries could have been caused in a manner consistent with the prosecution's theory of the case and that is difficult to find a medical expert to testify to the polar opposite findings of the prosecuting authority's expert.
Regarding the sexual abuse and medical findings, counsel testified credibly to consulting with medical experts in practically every case he has tried with medical findings of trauma, although he could not specifically recall consulting with a medical expert in this case. Counsel had access to all of the relevant medical information in the case as part of the discovery process. He testified credibly that if, in his consultation with a medical expert, the consultant opined that the findings were " normal, " he would either have the witness take the stand in his case-in-chief or use the information to cross examine the state's witness.
He further testified to the tactical decision of not pushing his cross examination of the victim as he did not wish to risk " [making] the child cry."
" [A]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
Regarding the non-sexual abuse, counsel testified to educating himself on spiral fractures through research and of adopting the trial strategy of attempting to show that the injury in the underlying matter resulted from the victim falling while jumping up and down on the bed. Counsel testified that gaining concessions from the state's medical expert regarding the mechanism of injury in the spiral fracture was not particularly useful in the underlying matter as the " heart of the case" were the sexual assault allegations and the testimony of the child victim. Counsel testified that if he had access to information or an expert opinion that the victim's hymen showed no signs of trauma, it would " be another factor in the case."
Counsel testified that he and the petitioner discussed the petitioner's back surgery in the course of trial preparation as well as the petitioner's theory that he was not physically capable of committing the assaults based on his back problems. Counsel specifically testified that the petitioner's preferred theory of defense would be severely damaged at trial based on potential evidence that the petitioner would wake the children up in the nighttime hours to rub his back. Counsel aptly described this potential evidence as " not good." Counsel further testified to the weakness of this potential defense theory based on evidence that the petitioner was not bed-ridden at all, instead being sufficiently ambulatory to be out looking for drugs with the victim's mother during the relevant time period. Based on the foregoing, counsel reached the conclusion that evidence suggesting that the petitioner was physically incapable of committing the offense would not have been helpful as the factfinder was not likely to believe it.
Concerning whether to place Neil Alford, the petitioner's son, on the witness stand based on a claim that Mr. Alford was present in the home continuously during the time period when the assaults occurred, counsel testified credibly that he would have to evaluate the witness, examine any criminal history of that witness and determine whether the witness would present himself well to the jury. He indicated reasonable concern when discussing the necessity of having to subpoena the petitioner's son to testify on behalf of his father. Counsel was further concerned with having the witness testify with pending criminal charges.
The petitioner asserts twenty-two different ways in which counsel is alleged to have been deficient during the underlying litigation. Though not withdrawn, counsel failed to put forward evidence regarding and argue a great many of these claims. Specifically as to claims 3(A), (B), (H), (I), (J), (L), (M), (Q) and ®, the Court deems these claims abandoned. See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239 (" The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration"), cert. denied, 289 Conn. 902, 957 A.2d 873 (2008). As to the remaining claims, the Court finds, after a review of the entire record, the petitioner has failed to overcome the presumption of competence as to quality of the legal representation of attorney Moscowitz during all phases of the litigation.
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689.
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686. This Court cannot say that any actions of underlying counsel undermined the fairness of the verdict.
2. Dr. John Strugar
Dr. John Strugar, the petitioner's neurosurgeon, testified at the habeas trial. Dr. Strugar performed the petitioner's back surgery in 1999, describing it as " fairly dramatic" based on the petitioner's " extensive lumbar spine disease, " including stenosis and nerve compression. The witness had performed several thousand similar surgeries prior to the petitioner's. Based on the petitioner's age at the time of the surgery, 44 years old, the doctor testified that the petitioner would " still [require] some help" to perform certain activities. The doctor testified that the petitioner experienced 6-8 weeks of " relative incapacity" post-surgery, including pain and stiffness, difficulty driving, lifting restrictions and limited range of motion.
The witness described the petitioner in 1999 as a " large, muscular person" complaining, before the surgery, of " chronic, persistent pain." Although the witness observed that the petitioner was unable to sit up completely straight and was wearing a " soft brace" lumbar corset, records from the period indicate that, other than some mild leg weakness on his right side, he had full strength on his left side and " normal strength" in both arms which " seemed to be fine." The witness testified that heat, massage and backrubs would help to relax spasms in the petitioner's back. Dr. Strugar summarized the petitioner's pre-surgery condition as consisting of pain, discomfort and right foot weakness, descending to right quadriceps weakness shortly before surgery. The witness testified that the surgery went " very well in the end" and in a follow-up appointment two weeks post-operation, records indicate that the petitioner was " doing fairly well, " reporting some pain and weakness in his lower extremities. The doctor testified that the petitioner's " pain [seemed] to have decreased remarkably." The witness noted that, although he had recommended the petitioner wear a soft brace corset, the petitioner appeared at the appointment wearing a hard shell brace.
Regarding the petitioner's mobility, Dr. Strugar testified that he did not recommend the petitioner stay in bed and remain immobile. To the contrary, the witness testified credibly that, as the purpose of the surgery was to have the petitioner return to previous activities, he was recommended to start exercising his muscles and restore the range of motion in his hips. Records from a September 27, 1999 visit indicate that the petitioner's surgical wounds were " healing appropriately" and that the witness, giving the petitioner " the benefit of the doubt, " prescribed him additional pain medication.
Notes from medical records of the petitioner's last visit with the witness on October 11, 1999 indicate that the petitioner reported " new" symptoms of weakness in his thighs and arrived at the appointment in a wheelchair. The witness testified that he found this unusual as the doctor opined, after checking the petitioner's legs, that he " had good motor strength in his legs" and " could walk." The witness further opined that there was " no objective reason" that would prevent the petitioner from lifting 120 pounds in October of 1999, although he would experience " some pain" and that lifting and twisting with 120 pounds " would be a little challenging." On cross examination the witness emphasized the petitioner's ability to walk and stand, stating the he had " good . . . excellent strength in his legs" and that he " could possibly walk for two to three blocks before needing to sit down." During the court's own inquiry the witness testified that the petitioner's strength was " never an issue" and that he was " always strong."
3. David Mantell, Ph.D.
Doctor Mantell is a clinical psychologist specializing in child abuse and neglect issues. The doctor testified to his excellent credentials and extensive experience in the area of child abuse and neglect investigations and forensic interviews.
The doctor's testimony consisted mainly of a discussion of the reasons children report or fail to report sexual abuse. In sum, although somewhat interesting, this court finds that the testimony of Dr. Mantell in this particular case did not add much of probative value for the factfinder. His testimony of the various motives for children to both report abuse when it did not occur and deny abuse when it did occur was the classic " two-edged sword" as described by attorney Moscowitz that may have been as harmful as it was helpful to the defense. Finally, his description and explanation of the data relating to percentages of false allegations and recantation rates, if allowed to come before the jury, could easily have been turned to the prosecuting authority's advantage. Accordingly, this claim fails.
4. Dr. Jennifer Canter
Dr. Jennifer Canter, a well-qualified child abuse pediatrician, testified for the petitioner at the habeas trial. Dr. Canter is board certified in both pediatric and the child abuse pediatrics sub-specialty. She has been a physician at the Westchester Medical Center administering child abuse programs in the Hudson Valley in New York State for a number of years. She also runs a separate consulting practice wherein she reviews cases submitted to her and testifies occasionally.
When asked to opine about the underlying trial testimony of Judith Moskal-Kanz concerning an abnormal finding on the victim's hymen, based on Dr. Canter's own review of color copies of colposcopy photos, the witness testified that the victim had an " absolutely normal exam, " a " normal hymen" and that there was " no scar or furrowing." She testified that she was not aware of the terms, " disruption" and " furrow" used by Nurse Kanz. She further testified that, while a normal finding does not mean that sexual abuse did not occur, in this matter there was " no affirmative evidence of laceration." Dr. Canter testified that, although expert witnesses can have " different opinions, " she did not " see what [Nurse Moskal-Kanz] saw." The photos upon which she based her opinions showed a " normal, classic hymen." She did not examine the victim. The doctor opined that while performing an examination of a hymen with the naked eye might make a difference in what the examiner is able to see in making a finding, she did not believe the instant matter was such an instance. Finally, the witness opined that Ms. Moskal-Kanz might have confused a fold in the victim's hymen with some sort of trauma-related injury.
Regarding the underlying prosecution testimony concerning the victim's spiral fracture of her humerus, Dr. Canter testified, similar to the underlying trial cross examination of Nurse Kanz, that such injuries are " common [accidental injuries] in mobile children" and that the defense theory that the victim fell off a bed was " plausible." Dr. Canter opined that it is " not an uncommon pathway for disclosure of abuse" for the victim to initially report an accident as the mechanism of injury, then to disclose physical abuse. The witness further testified that whether the injuries to the victim in the instant matter was a " fracture of abuse depends on the history provided, " and that she could not opine that the victim was not physically abused related to the fracture.
" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ."
Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
It is clear to this court that attorney Moscowitz's performance in consulting either relying on his experience and/or consulting with a medical expert was not objectively unreasonable or constitutionally deficient. It would be the very definition of the kind of second-guessing disfavored in the law to allow the petitioner to substitute both the strategic judgments and the newly discovered medical expert of habeas counsel for that of his underlying trial counsel. Accordingly, this claim fails.
5. Neil Alford
Neil Alford, the petitioner's son, gave testimony via video-taped deposition from Orlando, Florida taken September 11, 2015. Mr. Alford testified that he has resided in Florida since 2002 after willfully failing to appear in court to answer to felony drug possession charges stemming from an arrest in Bridgeport, Connecticut. Mr. Alford appears to have continuously resided in Orlando since 2002, with intermittent trips to Connecticut to visit relatives. Based on his testimony, this court has no reasonable basis to conclude that Mr. Alford's location was made known to attorney Moscowitz or that Mr. Alford would have returned to Connecticut to testify. Additionally, this Court does not find that any testimony from Mr. Alford would have been helpful to the defense based on the cross examination conducted by the respondent. This court found him to be a less than credible witness for several reasons. First, Mr. Alford appeared uncertain as to the dates he resided in the petitioner's home. Second, this Court does not find reasonable the sporadic assertions of Mr. Alford that his constant presence in the home made it impossible for the petitioner to have assaulted and abused the victim. Mr. Alford testified that he was immediately given a room upstairs in the petitioner's home where he slept, stating, " I had a room upstairs, but sometimes I slept--if I fell asleep on the couch in the living room, that's where I slept. If I went in my room, that's where I--that's where I slept." He further testified that the petitioner slept in a hospital-type bed downstairs. Although he later stated that he slept on the downstairs couch more often than in his bedroom, he later admitted on cross examination that he spent some evenings at and slept at his sister's home. Third, although Mr. Alford offered that the petitioner was physically helpless during his convalescence in the home, was unable to lift anything and needed a wheelchair to move about, he later testified that the petitioner was walking when Mr. Alford fled the jurisdiction, including on two occasions walking with Mr. Alford what reads to be a considerable distance to buy shoes and boots. Mr. Alford further testified that the petitioner was " strong." Finally, Mr. Alford's description of the difficulty with which the petitioner moved his arms is in stark contrast to the credible habeas trial testimony of Dr. Strugar. Accordingly, this claim fails.
Brady Violation/Prosecutorial Impropriety
The petitioner asserts that the prosecuting authority improperly allowed false testimony from Nurse Judith Moskal-Kanz regarding the victim's sexual and physical abuse and let the false testimony stand uncorrected for the jury's consideration at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
" The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal . . . In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).
The constitutional violation ultimately claimed by the defendant is the failure of the prosecuting authority to correct false trial testimony, thereby undercutting the related material impeachment evidence at trial. " In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Internal quotation marks omitted.) State v. Rivera, 152 Conn.App. 248, 255, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102 A.3d 85 (2014). " To establish a Brady violation, the [defendant] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [defendant], and (3) it was material [either to guilt or to punishment] . . . Impeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused." (Citation omitted; internal quotation marks omitted.) State v. Richard W., 115 Conn.App. 124, 137, 971 A.2d 810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009); State v. Giovanni P., 155 Conn.App. 322, 342, 110 A.3d 442, 456-57 (2015).
" The rules governing our evaluation of a prosecutor's failure to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and we begin our consideration of the respondent's claim with a brief review of those principles. The United States Supreme Court also has recognized that " [t]he jury's estimate of the truthfulness and reliability of a . . . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeachment evidence; e.g., United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); which, broadly defined, is evidence " having the potential to alter the jury's assessment of the credibility of a significant prosecution witness." (Internal quotation marks omitted.) United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004). Because a plea agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose. See, e.g., State v. McIntyre, 242 Conn. 318, 323, 699 A.2d 911 (1997)." Adams v. Commissioner of Correction, 309 Conn. 359, 369-70, 71 A.3d 512, 519 (2013).
The court dismisses this ground on its merits after considering the whole record. This Court does not find the subject testimony to be false. Although the petitioner's expert opined as to the glaring inaccuracy of the subject testimony, the petitioner has failed to establish the falsity of the testimony, as opposed to a disagreement between expert witnesses.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.