Opinion
No. CV06 4001166 S
September 6, 2011
MEMORANDUM OF DECISION
The petitioner, Allen Alterisi, alleges in his Second Amended Petition for a writ of habeas corpus, filed on January 20, 2010, that he was denied the effective assistance of counsel: during his criminal trial (Count One), on appeal from his conviction (Count Three), and during his first habeas corpus matter (Count Two). On March 2, 2010, the court, Santos, J., granted the respondent's motion to dismiss Count One because it constituted a successive petition premised on the same legal grounds as an earlier petition and seeking the same relief. Consequently, this matter went to trial before this court only on Counts Two and Three. As to Count Two, the petitioner claims that his prior habeas counsel, William Palmieri, was ineffective because he failed to raise certain ineffectiveness claims as to the petitioner's trial counsel, John Donovan. In particular, the petitioner claims that Attorney Palmieri should have argued during the prior habeas proceeding that Attorney Donovan was ineffective for not objecting to: 1) questions asked of the petitioner on cross-examination about mental health issues, drug treatment, and the fact that he lived with 19 other women, all of whom had children; and 2) the prosecutor's comments during his rebuttal argument about the 19 women and their children. In Count Three, the petitioner alleges that his appellate counsel, Robert Casale, failed to argue that the above-referenced comments of the prosecutor constituted prosecutorial impropriety. In addition to denying the essential allegations of Counts Two and Three, the respondent has alleged a defense of procedural default as to Count Three. In response, the petitioner claims that the defense is just a restatement of the abuse of writ argument rejected by the court when it ruled on the motion to dismiss. In addition, he claims that any default was caused by Attorney Palmieri's ineffectiveness in not raising the claim, and that he has been prejudiced.
The petition actually alleges that appellate counsel was Robert Berke. This appears to be a mistake. Attorney Berke represented the petitioner in his appeal from the denial of his prior habeas petition. In any event, the only claim stated in the petition regarding appellate counsel relates to the direct appeal of the petitioner's conviction, which was handled by Attorney Casale. Furthermore, the court only received evidence, including Attorney Casale's testimony, about the direct appeal, and the parties have briefed and argued the issues related to that appeal. Thus, the court has considered on the merits the claims as to Attorney Casale, but has not considered any issues as to Attorney Berke.
The respondent had also moved to dismiss this claim as an abuse of the writ. That motion was denied by the court, Santos, J., at the same time the court granted the motion to dismiss Count One.
The respondent's return does not specify that the defense only applies to Count Three. However, because this is the first time that the petitioner has raised his claim of ineffective assistance of prior habeas counsel, the defense cannot apply to Count Two. Furthermore, the respondent has not argued at any time in these proceedings that the defense applies to Count Two.
The trial of the matter began on October 5, 2010, and, for a variety of reasons, did not conclude until May 10, 2011, when counsel presented their closing arguments. The court heard from four witnesses: Attorney Donovan; Attorney Casale; Attorney Palmieri, and an expert witness, Attorney Auden Grogins, offered by the petitioner. The court also received as exhibits: transcripts from the petitioner's criminal trial, pleadings from petitioner's direct appeal, and pleadings and transcripts from his prior habeas proceeding.
BACKGROUND
The petitioner was the defendant in a criminal case, docket number CR93-153809, in the Judicial District of New Haven, in which he was charged with and convicted of three counts of sexual assault in the first degree in violation of Conn. Gen. Stat. § 53a-70(a)(1); two counts of sexual assault in the first degree in violation of Conn. Gen. Stat. § 53a-70(a)(2); and six counts of risk of injury to a minor, in violation of Conn. Gen. Stat. § 53-21. The trial court sentenced the petitioner to a total effective sentence of thirty-two years to serve. The petitioner was represented at the trial court level by Attorney Donovan.
The petitioner appealed his conviction to the Appellate Court, where he raised one ground. He argued that the trial court violated his state and federal constitutional rights by allowing the two minor complainants to testify by pre-recorded video. The Appellate Court rejected the petitioner's claims and affirmed his convictions. State v. Alterisi, 47 Conn.App. 199, 702 A.2d 651 (1997). Attorney Casale represented the petitioner on his appeal.
As set forth by our Appellate Court, the jury reasonably could have found the following facts. "In 1990, the [petitioner] was living in Meriden with his girlfriend, A, and her two sons, B, age five, and D, age three. During the two years that the [petitioner] lived with A, he often took care of the children while she worked as a waitress in the evenings. In January 1992, A lost custody of the boys due to her substance abuse and psychiatric problems. The children were sent to live with A's sister and brother-in-law, who became the boys' custodial guardians. B and D remained at the home of their aunt and uncle in Meriden for four years.
"When the boys arrived at the home of their aunt and uncle, they exhibited unusual behavior. The aunt and uncle and school officials noticed that the boys were very aggressive, punching and hitting each other and other adult males in the groin. This behavior and other incidents prompted the aunt and uncle to take the boys to a child therapist at the Child Guidance Clinic in Meriden (clinic).
"In February 1992, the boys began attending weekly counseling sessions with Steven Thermes, a social worker at the clinic. In individual counseling sessions, both children expressed a strong fear of the [petitioner]. They stated that he hit them, locked them out of the house in the cold weather, and forced them to urinate and defecate outdoors. In February 1993, the boys first disclosed to Thermes that they had been sexually assaulted by the [petitioner]. Both boys revealed that, among other actions, the [petitioner] had touched their genitals with his hand. The children appeared relieved to have disclosed this information to Thermes. The following week, Thermes reported the allegations to the Meriden police.
"On February 26, 1993, the children were separately interviewed by Detective Gary Brandl of the sex crimes unit of the Meriden police department. B and D both asserted that the [petitioner] had undressed them and touched their genitals on numerous occasions when their mother was at work. Each provided graphic detail about the incidents. The boys stated that some of the activity took place in the presence of both brothers. During their interviews, Brandl showed each boy a series of anatomically correct drawings depicting figures of an adult male and a young boy. With the aid of these drawings, each child described the [petitioner's] conduct. They also stated that the [petitioner] had threatened to hurt them and their mother if they told anyone about these regular occurrences.
"At trial, the state introduced, over the [petitioner's] objection, videotaped testimony of B and D that was taken outside the physical presence of the [petitioner]. Both boys testified that the [petitioner] had touched them on their penises and rectal areas, and that they had been forced to do the same to the [petitioner]. The state also presented constancy of accusation evidence from Thermes and Brandl, as well as testimony from the boys' mother and aunt." Id., 200-02.
The petitioner brought his first habeas petition in 1999. In that petition, he alleged various claims of ineffective assistance of his trial counsel, Attorney Donovan. That matter was tried before the court, DeMayo, J., in December 1999. Judge DeMayo issued his memorandum of decision denying the petition on March 16, 2000. That decision was affirmed on appeal in a per curiam opinion of the Appellate Court. Alterisi v. Commissioner of Corrections, CT Page 19030 67 Conn.App. 625, 789 A.2d 489 (2002).
LEGAL STANDARD
"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). Here, the petitioner claims that the ineffective assistance of his habeas counsel, in failing to raise errors of trial counsel, and appellate counsel have led to such a result.
In general, "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). With respect to a claim against prior habeas counsel, the petitioner's burden is particularly daunting. "To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial." Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992).
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that judicial 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 . . . 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 [or appellate] strategy . . . Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504-05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004). In particular, typically, "the decision of a trial lawyer not to make objections is a matter of trial tactics, not evidence of incompetency." (Citation omitted; internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985).
As to the prejudice prong, "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment . . . The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland v. Washington, supra, 691-92. Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense. Id., 693. Put another way, in order to meet the prejudice prong the petitioner must prove 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." Id., 694.
Our Supreme Court recently refined the prejudice standard as it relates to claims of ineffective assistance of appellate counsel. In Small v. Commissioner of Corrections, 286 Conn. 707, 720-22, 946 A.2d 1203, cert. denied sub nom. CT Page 19032 Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008), the court determined that the proper question is not whether there is a reasonable probability that a new trial would lead to a different outcome but for appellate counsel's error, but instead is whether there is a reasonable probability that but for his counsel's error, [the petitioner] would have prevailed on his appeal." (Citation omitted; internal quotation marks omitted.) Id., 720. "[T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Id., 722. The court emphasized that "the task before [the court] is not to conclude definitively whether the petitioner, on appeal, would have prevailed . . . Rather, the task before [the court] is to determine, under Strickland, whether there is a reasonable probability that the petitioner would have prevailed on appeal." (Emphasis in original.) Id., 731.
DISCUSSION I. COUNT TWO
The petitioner claims that Attorney Palmieri failed to argue that Attorney Donovan did not raise objections to certain questions asked of the petitioner when he was cross-examined during his criminal trial. The first question related to whether the petitioner had mental health issues. The following additional facts are relevant to this claim. During his direct examination, the petitioner testified that he was on a veteran's disability due to a fall he took while in the Navy. He testified that he injured his back and knee. Attorney Donovan then asked the petitioner: "Are you currently receiving a disability payment in connection with your injuries?" Pet. Ex. 3, p. 113. The petitioner responded:, "Yes, I receive Social Security disability and VA Comp." Id. On cross-examination, the prosecutor began to ask the petitioner if he had told a state police detective that his disability was a personality disorder. Id., p. 136. Attorney Donovan, anticipating where the prosecutor was going, objected before the question was finished and asked to be heard outside the presence of the jury. Id. After the jury was excused, Attorney Donovan argued that: "I think [the prosecutor] is trying to get into a psychiatric situation that my client has. It's not relevant to this case, it's prejudicial, and it's not relevant unless there is an offer." Id., p. 137. In response, the prosecutor argued that he was offering the petitioner's statement to the police as a prior inconsistent statement because it contradicted the petitioner's claim that his disability payments were for his naval injuries. Id. After a lengthy argument, the following exchange took place:
THE COURT: The representation by [Attorney Donovan] is that he is drawing two different disability pensions, one from VA for his knee and back and one from Social Security Administration for some personality problem.
[PROSECUTOR]: He testified on direct he is getting disability, the Social Security and VA comp, and he is getting it for his back and his knee. I believe it was kind of lumped together. I can make my question more specific.
THE COURT: I think that you had better — he has not been asked, he has not been asked, he hasn't said on the stand what his Social Security disability, is, has he?
[PROSECUTOR]: I think he lumped them together, that was my understanding of the direct. What I could do is break them down to both and ask separately.
THE COURT: Go ahead and ask him in the absence of the jury.
[PROSECUTOR]:
Q: Mr. Alterisi, you said you are collecting a Social Security and VA compensation disability, correct?
A: Yes.
Q: What are you collecting the Social Security disability for?
A: The Social Security disability is for a personality disorder, bipolar manic depressive.
THE COURT: Objection sustained. Bring the jury back. That statement is consistent with his testimony.
[PROSECUTOR]: I would be able to ask that question, though?
THE COURT: Oh, certainly.
[PROSECUTOR]: Objection as to the inconsistent part.
THE COURT: Yes.
Id., pp. 144-46.
The jury then returned to the courtroom, and the prosecutor continued with his cross-examination of the petitioner by asking the same question as to the basis for his Social Security disability. He then asked a couple of follow-up questions regarding the petitioner's treatment for his personality disorder. Attorney Donovan did not object to these questions.
Attorney Donovan did object to a question regarding whether the petitioner had voluntarily stopped taking his medication for the personality disorder. That objection was overruled by the court.
The petitioner claims that Attorney Donovan was ineffective for failing to keep from the jury evidence of the petitioner's personality disorder. He further claims that Attorney Palmieri was ineffective for failing to raise this issue in the first habeas. In support of this claim, the petitioner's expert witness, Attorney Grogins, testified that reasonably competent counsel would have argued further outside the presence of the jury for exclusion of the testimony. She testified that Attorney Donovan had a favorable ruling that he let slip away without explanation. She further testified that reasonably competent habeas counsel would have raised such an important claim. According to Attorney Grogins, evidence of a mental health issue is highly prejudicial to a defendant in a child sexual assault case.
The first issue for the court is whether Attorney Palmieri was ineffective for failing to raise this issue in the prior habeas. The court finds that Attorney Palmieri testified credibly that he made a tactical decision not to raise the issue. He gave a number of reasons for not doing so. First, he felt Attorney Donovan had more than adequately addressed the issue by arguing it extensively outside the presence of the jury. The court sustained his objection to the question about the petitioner providing an inconsistent statement to the police. Second, he did not find the testimony sufficiently prejudicial to justify raising it in the habeas petition. The questioning on the subject was brief, and the state made no attempt to link a past personality disorder with child molestation.
In addition, arguing that Attorney Donovan should have objected to the admission of such evidence would have been inconsistent with and undermined an issue that Attorney Palmieri decided to pursue in the first habeas proceeding. In that matter, the petitioner claimed that Attorney Donovan was ineffective for failing to introduce evidence that the petitioner's medication for his personality disorder made it impossible for him to get an erection. The petitioner argued that such evidence would have undermined the testimony of the victims that they saw the petitioner's erect penis. Of course, putting on such evidence would have required disclosing to the jury the petitioner's personality disorder.
The petitioner now faults Attorney Palmieri's approach. He now claims, relying to a large degree on Attorney Grogins' testimony, that such an argument was weak and should have never been pursued.
Based on the evidence presented, the court cannot find that Attorney Palmieri's handling of this issue was not reasonably competent. He reviewed the transcript, conferred with the petitioner, and made a tactical decision on how best to use the evidence regarding the petitioner's mental health issues. That tactical decision is entitled to a strong presumption of reasonableness. The petitioner cannot overcome that presumption by second-guessing an approach that proved to be unsuccessful.
Finally, the petitioner's argument and Attorney Grogins' testimony on this issue reflect a fundamental misunderstanding of the evidentiary issue before the trial court and how it was resolved. A careful review of the trial transcript reveals that the trial court was asked to rule on whether the state could ask the petitioner if he had made a statement to the police that was inconsistent with what he just told the jury. After hearing extensive argument, the court sustained that objection. Thus, the petitioner was never asked if he told two different stories. Nor was the jury left with the impression that the petitioner either lied to them or lied to the police.
The court did allow the state to ask the petitioner about the basis for his Social Security disability, but only after the petitioner raised the issue during his direct examination. Pet. Ex. 3, p. 113. The law is clear that once a defendant testifies or elicits testimony on a subject, he has opened the door to further questioning on that subject by the state. State v. Victor O., 301 Conn. 163, 20 A.3d 669 (2011). Significantly, the petitioner's reference to his Social Security disability was not brought out by Attorney Donovan, but was volunteered by the petitioner when Attorney Donovan asked him if he was receiving a disability payment for injuries to his knee and back. Had the petitioner simply responded to Attorney Donovan's question about his knee and back injuries by testifying about his VA disability, his Social Security disability, which was unrelated to the knee or back, would have never come up. Instead, his testimony about the Social Security disability opened the door to the prosecutor's follow-up questions on that subject. That is all the court allowed. Attorney Donovan cannot be faulted for failing to object to evidence that is admissible. Cabral v. Commissioner, 108 Conn.App. 1, 14-19, 946 A.2d 1278, cert. denied, 288 Conn. 915, 954 A.2d 183 (2008).
The second question to which the petitioner claims Attorney Donovan should have objected relates to the petitioner's involvement in a VA drug program. The following additional facts are relevant to this claim. During cross-examination, the petitioner was asked the following question: "In 1990, about December of 1990, didn't you check into the West Haven VA for 30 days for a drug program?" To which the petitioner answered: "Yes." Pet. Ex. 3, p 150. Attorney Donovan did not object to this question.
The petitioner claims that Attorney Palmieri was ineffective for not raising during the prior habeas proceeding Attorney Donovan's failure to object. In support of this claim, Attorney Grogins testified that reasonably competent habeas counsel would have raised the issue, and further testified that reasonably competent trial counsel would have objected to the question and would have filed a motion in limine to preclude the state from even asking the question.
Attorney Palmieri testified that although he found the prosecutor's question objectionable, he did not believe that Attorney Donovan was ineffective for not objecting to it. He explained that the program was in 1990, which was before the petitioner was living with the victims. He also testified that checking in to a program for 30 days does not make someone a drug addict. He testified that, in his view, Attorney Donovan made a decision not to maximize the negative information, instead simply deciding to let it pass and move on. As to a motion in limine, Attorney Palmieri testified that filing such a motion is a discretionary call of trial counsel. He also testified that many attorneys are wary of filing such motions because they can alert the prosecutor about an area that worries the defense.
The court found Attorney Palmieri's testimony to be credible, and his analysis more than reasonable. Based upon the information available to Attorney Palmieri at the time, the court cannot say that he was ineffective for not raising this issue. This is particularly true given that our appellate courts have repeatedly held that "the decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." (Internal quotation marks omitted; citations omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 801, 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).
Attorney Donovan testified that he could not remember whether there was a tactical reason, more than 14 years ago, not to object to the prosecutor's question regarding the drug treatment program. This failure of memory, which is not surprising, "does not reverse the Strickland presumption of effective performance. Without evidence establishing that counsel's strategy arose from the vagaries of ignorance, inattention, or ineptitude, Strickland's strong presumption must stand." (Internal quotation marks omitted.) Greiner v. Wells, 417 F.3d 305, 326 (2d Cir. 2005). The only such evidence offered by the petitioner was the expert testimony of Attorney Grogins, which the court did not find persuasive.
The final question to which the petitioner claims Attorney Donovan should have objected related to the fact that the petitioner lived with 19 women, all of whom had children, prior to the living with the victims and their mother. The following additional facts are relevant to this claim. During the petitioner's cross-examination, the following exchange took place:
Q: Haven't you lived with 19 women, all of which who have had children.
A: Somewhere around there, I don't know the exact number.
Q: So, somewhere around 19 women you have lived with and they all had children?
A: It's hard to find a single girl without kids today.
Q: And I suppose none of these children were yours?
A: No, they weren't.
Pet. Ex. 3, pp. 155-56.
The state knew this information from an interview they did of the petitioner prior to trial. That interview was supposed to immediately precede a polygraph examination of the petitioner. The polygraph examination did not take place because the petitioner told the examiner during the pre-interview that he was currently taking medication, and the examiner thought the medication might affect the results of the examination. Attorney Donovan was not present for the pre-interview, which was video recorded. Prior to trial Attorney Donovan reviewed the recording, and was, therefore aware of the petitioner's statements during the interview. Attorney Donovan did not object at trial to the questions set forth above, and did not file a motion in limine to preclude the state from asking the questions.
The petitioner claims that Attorney Palmieri was ineffective for failing to raise this issue in the petitioner's prior habeas proceeding. Attorney Grogins testified that, in her opinion, any reasonably competent habeas counsel would have raised the issue because any reasonably competent trial counsel would have objected to this evidence being admitted, and would have filed a motion in limine to prevent inquiry into the area. She also testified that the evidence was highly prejudicial because it left the jury with the impression that the petitioner sought out women with young children whom he could molest.
Again, the court must start with Attorney Palmieri's handling of the issue. Attorney Palmieri testified that the issue was the subject of substantial testimony and argument in the first habeas. The record shows this to be true. Unfortunately for the petitioner, the tact that Attorney Palmieri took on the issue did not persuade the court. The evidence reflects that Attorney Palmieri made two arguments in the first habeas regarding the 19 women. First, he claimed that Attorney Donovan was ineffective for failing "to present as defense witnesses the adult children of women with whom the petitioner had lived prior to his relationship with the mother of the complainants, although such witnesses would have testified that the petitioner never behaved inappropriately with them." Pet Ex. 7, ¶ 2L. During the first habeas trial, Attorney Palmieri sought to offer evidence regarding this claim. The habeas court ruled that the testimony of these other witnesses would be inadmissible, and sustained the respondent's objections to further inquiry into the area. Pet. Ex. 9, pp. 44-48.
Second, Attorney Palmieri testified that he sought to address the 19 women issue in the first habeas by arguing that Attorney Donovan was ineffective for leaving the petitioner unrepresented at the interview where he made the statement in question. The transcript of the first habeas trial supports Attorney Palmieri's testimony. Attorney Palmieri specifically argued that Attorney Donovan should not have left the petitioner alone for the interview. Id., pp. 41-42.
The petitioner argues now that Attorney Palmieri's testimony before this court should be rejected because it is contradicted by the brief that Attorney Palmieri filed in the first habeas proceeding, which failed to make either of these arguments. In addition, the petitioner points out that the second argument is nowhere set forth in the petition from that proceeding.
This argument misses the mark. Whether Attorney Palmieri effectively argued or presented his theory on the 19 women is not at issue in this matter. The petition does not claim that Attorney Palmieri was ineffective in his presentation of the arguments. Instead, it claims that a different approach should have been taken. Thus, the petitioner has framed the issue as one attacking Attorney Palmieri's strategic choice and not his performance in presenting the arguments he found most worthy of pursuing.
The undisputed fact remains that Attorney Palmieri did make arguments regarding the state's cross-examination regarding the 19 women. Thus, there is evidence that Attorney Palmieri made a tactical decision as to how to approach this issue. Based on that evidence, the court cannot say that Attorney Palmieri's tactical decision was unreasonable. The petitioner himself made the comment about the 19 women in the interview because he thought if the police talked to those women, the police would conclude that he was not a child molester. Attorney Palmieri argued that Attorney Donovan should have taken a similar approach at trial, taking advantage of the door opened by the prosecutor's questioning of the petitioner. The habeas court at the petitioner's first trial was not convinced, and did not even allow Attorney Palmieri to offer evidence on the subject, despite the fact that the theory was explicitly pled in the petition. The fact that Attorney Palmieri's approach was ultimately unsuccessful at trial does not lead to the conclusion that he was ineffective for not taking a different approach to the issue.
Given the habeas court's reaction to the argument, and the fact that it precluded all evidence on the subject, it is not surprising that Attorney Palmieri did not further address the issue in his post-trial brief.
In addition, the court cannot conclude that it was unreasonable for Attorney Palmieri not to argue that the failure to object to a question constituted ineffective assistance of counsel. As noted above, decisions not to object made in the heat of trial are presumed to be tactical, and are almost unassailable. The same is true as to the decision not to file a motion in limine. As Attorney Palmieri noted, filing such a motion can sometimes serve to bring to your opponent's attention an issue he might not have otherwise pursued. Based on the evidence presented to this court, the petitioner has not met his burden to prove that Attorney Donovan's failure to object or file a motion in limine constituted ineffective assistance of counsel. Consequently, Attorney Palmieri's failure to raise that as an issue in the first habeas proceeding cannot constitute ineffective assistance of counsel.
Attorney Donovan was never asked why he did not object to the prosecutor's questions. Consequently, the court can only draw reasonable inferences as to his thinking from the other evidence presented. Attorney Donovan's testimony regarding his decision not to object to the prosecutor's comments in closing arguments regarding the 19 women provides the basis for the court to reasonably infer that he did not object to the prosecutor's questions on the same subject for the same reason. The court has no other credible evidence from which it could conclude that Attorney Donovan's failure to object was other than a tactical decision.
The petitioner's final claim as to Attorney Palmieri is also related to the petitioner's testimony about living with 19 women. The petitioner claims that Attorney Donovan was ineffective for not objecting to statements made by the prosecutor in closing arguments about this testimony. The following additional facts are relevant to this claim. In his rebuttal argument, the prosecutor made the following statement:
[The petitioner] admitted he is 36 years old and he has said he lived with, lived with 19 different women. And every single one of those 19 different women all had children, that should tell you something. The odds of that are phenomenal. You don't live with 19 separate women and you are only 36 years old and they've all had children. It seems like he is seeking women with children. And you wonder why is he seeking women with children, because he is a pedophile. And how do we know that? Because the state has proved that he is a pedophile here in court. You heard [the victims] testify.
Pet. Ex. 5, p. 40. Attorney Donovan neither objected to this argument, nor requested a mistrial or a curative instruction.
The petitioner claims that Attorney Palmieri was ineffective for failing to raise in the first habeas Attorney Donovan's failure to take any action in response to the prosecutor's comments. Attorney Grogins testified that reasonable habeas counsel would have raised the issue. She further testified that reasonable trial counsel would have taken some action in response to what she viewed as clear prosecutorial impropriety. She further testified that the failure to act was significant because it allowed the jury to view the petitioner as someone who has preyed on children in the past and may do so in the future if not convicted.
Attorney Palmieri testified that he did not think Attorney Donovan erred in not objecting during closing arguments. He recognized that many attorneys choose not to object during closing arguments. The clear implication the court drew from his testimony is that he viewed the decision of whether to object during closings as one of tactics. Attorney Donovan's testimony supported that conclusion. He testified that while he thought the prosecutor's comment was objectionable, he did not want to draw attention to it. He credibly testified that, tactically, it was best to leave it alone, as long as it was isolated, which it was.
Attorney Palmieri also testified that he made a tactical decision to address the 19 women issue, not by focusing on what use the prosecutor made of the petitioner's statement, but instead by focusing on Attorney Donovan leaving the petitioner unrepresented during the interview in which he made the statement. The court previously discussed this issue in connection with the petitioner's claim regarding the cross-examination of the petitioner on this subject. The court's analysis and conclusion there apply with equal force to this claim.
The court found Attorneys Palmieri and Donovan more credible than Attorney Grogins. The court agrees that whether to object to comments made in closing arguments is a tactical decision. While the court agrees that the above-quoted remarks of the prosecutor were objectionable, the court can understand why Attorney Donovan would decide not to object to them. The remarks were isolated in nature, and concluded by bringing the jurors back to the evidence in the case, in particular, the testimony of the two victims. Given the reasonableness of Attorney Donovan's decision not to object, the court finds that it was reasonable for Attorney Palmieri not to raise the issue during the petitioner's first habeas proceeding.
Alternatively, the petitioner claims that Attorney Donovan was ineffective for not asking for a mistrial or a curative instruction outside the presence of the jury. The court is not persuaded. Given the high standard for the granting of a mistrial, the court concludes that there is no reasonable possibility that the trial court would have granted a mistrial based on the isolated nature of the prosecutor's remarks. Because a curative instruction would have had the effect of highlighting the remark and bringing it to the jury's attention again, the court cannot conclude that it was unreasonable not to ask for such an instruction. The court notes that neither party asked Attorney Donovan why he did not ask for such an instruction. Nevertheless, not doing so is consistent with not objecting to the comment to let it fade from the jury's collective mind. Finally, the petitioner argues that Attorney Donovan was ineffective because he failed to preserve the prosecutorial misconduct issue for appeal. For the reasons set forth in Section II, infra, the court finds this argument to be without merit.
II. COUNT THREE
In Count Three, the petitioner claims that Attorney Casale was ineffective for not raising on appeal the prosecutorial impropriety issue discussed above. Attorney Casale testified that the prosecutor's reference to the petitioner as a pedophile was inappropriate. Nevertheless, he did not focus on the issue because it was not preserved for appeal. In his view, given the amount of latitude given during closing arguments, an unpreserved claim of prosecutorial misconduct would not get very far unless the conduct was really bad. He did not view the prosecutor's comments as rising to that level. Consequently, he chose not to pursue the claim as a violation of the petitioner's constitutional rights under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He also testified that had he thought the claim was worth raising, doing so would not have detracted from the sole issue he did raise on appeal. Finally, he testified with some detail as to why he chose to focus on the issue he did.
The court rejects the respondent's procedural default defense. The claim regarding appellate counsel is being raised for the first time. If it is meritorious, then the petitioner would have established cause and prejudice because Attorney Palmieri failed to raise it.
The only evidence offered by the petitioner in support of this claim is the brief testimony of Attorney Grogins that she would have raised the prosecutorial misconduct issue under Golding because the prosecutor's conduct was so outrageous. The fact that Attorney Grogins would have taken a different approach to the appeal than did Attorney Casale, does not make Attorney Casale's approach unreasonable. Attorney Casale credibly testified that he made a tactical decision regarding what issue to pursue on appeal. He concluded that any prosecutorial misconduct argument was not likely to succeed under Golding review, and therefore was not worth raising. Based on the record available to him, including the isolated nature of the prosecutor's comments, his approach to the appeal was more than reasonable.
In any event, the court concludes that a claim of prosecutorial misconduct, even one that had been properly preserved, was not likely to prevail under the law as it existed in 1996. At the time of the petitioner's trial and appeal, the law on prosecutorial misconduct was clear. "In order to deprive a defendant of his constitutional right to a fair trial, . . . the prosecutor's conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." (Citations omitted; internal quotation marks omitted; footnote omitted.) State v. Atkinson, 235 Conn. 748, 670 A.2d 276 (1996). "In determining whether prosecutorial misconduct is so severe as to amount to a denial of due process, [our Supreme Court has] focused on various factors, including: (1) the extent to which the misconduct was invited by defense counsel or argument; (2) the severity of the misconduct; (3) the frequency of the misconduct; (4) the centrality of the misconduct to the critical issues in the case; (5) the strength of the curative measures adopted; and (6) the strength of the state's case." State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
Application of these factors leads the court to conclude that there was very little chance, if any, of a claim of prosecutorial misconduct prevailing after the petitioner's criminal trial. First, the prosecutor's comments were invited by Attorney Donovan's remarks in closing that one of the defense witnesses "lives with [the petitioner] and at the very least is romantically involved but certainly knows his sexual propensity. I'm sorry that I have to mention that and get into that because it's not dignified, but she knows. She knows she is not living with a child molester." (Emphasis added.) Pet. Ex. 5., p. 35.
Second, the claimed misconduct was not particularly severe. The comments were brief, and concluded by focusing on the evidence presented during the trial.
Third, the comments only happened once and were not repeated.
Fourth, while the statement that the petitioner was a pedophile was the issue in the case, the petitioner conceded during argument that the real problem was not calling the petitioner a pedophile, but the reference to him living with 19 women. That fact, though, was not central to the case. The prosecutor recognized as much when he concluded the passage at issue by saying: "And how do we know that [the petitioner is a pedophile]? Because the state has proved that he is a pedophile here in court. You heard [the victims] testify." Id., p. 40. That was the central issue in the case. Did the jury believe the victims when they testified? The court cannot conclude that the prosecutor's brief comments about the petitioner living with 19 women had any material impact on how the jury viewed the credibility of the victims. Based on these facts, the court concludes that there was no reasonable probability that the petitioner would have prevailed on a claim of prosecutorial misconduct. Consequently, he has failed to demonstrate any prejudice from the failure to raise such a claim, or from a failure to preserve such a claim.
As to the last two factors considered in Williams, first, the court cannot say that the failure to take curative measures was significant here given the limited nature of the remarks at issue. In fact, as noted above, reasonable minds can differ as to whether a curative instruction would have done more harm than good by reminding the jury of the prosecutor's brief comments. Second, the petitioner did not present the court with the video-taped testimony of the victims. Thus, the court cannot fully evaluate the strength of the state's case. Nevertheless, the court notes that the prosecutor was able to rely upon the fact that there was no explanation, other than the petitioner's actions, for the victims' knowledge of certain sexually explicit matters.
Because there was no prejudice to not preserving the issue of prosecutorial misconduct, Attorney Palmieri was not ineffective for not raising in the first habeas proceeding Attorney Donovan's failure to preserve the issue.
CONCLUSION
For all the foregoing reasons, the petition is DENIED.